§ Mr. Charles Buller
rose for the purpose of bringing under the attention of the House the present state of the law relating to the trial of controverted elections, and to move for the appointment of a Committee to inquire into it. He was aware that the subject was not of an interesting nature, and that the House might not, perhaps, like to listen to an enumeration of its own misdeeds; but he trusted that attention would be given to him for a short time. He could not help feeling that he should have brought forward his motion with greater advantage during the last Session, when Members had to attend Election Committees, and when their attention was much directed to the subject. At that time many Members on both sides of the House admitted that they found the present system to be inconvenient, and exclaimed loudly against its injustice. If the feelings of hon. Gentlemen had somewhat moderated since then, still he trusted that they had not altogether passed away, but that they were willing to enter upon the consideration of the subject and would devote to him for a short time their serious attention. Some Members might feel shocked at a proposal to make at once a complete change in the system of trying controverted elections; but although he was satisfied that such a course of proceeding would be expedient, still he did not intend to do so, but merely wished to move for a Committee of Inquiry. Before the Grenville Act was passed; the House assumed to itself the right of exercising a jurisdiction in matters of election petitions, and determining in such cases, in the same numbers and the same forms in which it decided political questions, who was entitled to a seat in Parliament. The decision of the House was then come to under the same party feelings as operated on Members' minds in other matters, and a decision in a case of contested ejection was a party triumph. 897 Never, probably, were the rights of such an important body as the elective body in this country so recklessly trampled on as by that which happened to be the predominant party in the House. He would only refer to one fact in the history of the last century in confirmation of this. Every hon. Member was aware that the downfall of Sir Robert Walpole was occasioned by the decisions of the House in two controverted elections. A historian of that period (he believed it was Horace Walpole) said, that, although, in the first of these cases, the Minister was in a majority of four, he thought that such a majority in a matter on which he was said to be doing right, was not sufficient to enable him to go on. The Chamber of Deputies in France also determined all cases of controverted elections in the full House, and he believed that he was justified in saying, with an equal sacrifice of justice to that which was formerly experienced here. The taking these questions out of the hands of the whole House and intrusting them to a Committee of limited numbers, forming something like a jury, was undoubtedly a great improvement; but still the system in many respects was defective. Indeed he believed that it was now generally admitted that the tribunal for determining cases of elections was most imperfect and incompetent, and there was a suspicion attaching to it which he thought they ought to be proud, as Englishmen, did not attach to any other tribunal in the country. If the public were admitted on such occasions, they would, he believed, be surprised at what took place at the ballot of an Election Committee. What would they think if they saw Gentlemen who were to be called upon to exercise their functions in a judicial capacity, come down to the House under what was called "the whip?" This was the case on both sides the House, and therefore he did not bring the charge more against one party than another. For the last three or four years both sides of the House had been assembled on the balloting for every Election Committee under "the whip." What would the public say at hearing the expression of party feeling in the House on the appointment of Members on this judicial tribunal, where three or four names were called from one side. He repeated, that he did not apply the observation to merely one side, for it was equally applicable to both. It was also common to hear a Member's friends com- 898 plain of it as a matter of shame if his name was called and he was not present. Again, if a Member approached the Table to be sworn of the Committee on the grounds of age or official situation, what murmurs arose from his friends, and what feelings of dissatisfaction were manifested! What opinion would the public form of the fairness and impartiality of the House in these proceedings, if they could know the expressions of feeling emanating variously from Members on both sides of the House after a ballot had concluded? If they were allowed to listen to the congratulations of "Oh, you have got a very good Committee;" or the desparing announcement of a Member petitioned against, contained in the words — "I have got a very bad Committee, and I may as well strike at once." In some cases this had been seriously intended, and he remembered last Session an instance in which a specimen of the opinions entertained by the public of the fairness of members of a Committee had been afforded in a very unusual and naive manner. He alluded to the striking of the Canterbury Election Committee, after a great preparation on both sides of the House. The ballot took place, and. on the very same day one of the chief supporters in Canterbury of the Tory candidate stuck up in his window a list of the Committee, with the letters C or R, designating Conservative or Reformer, appended to each name; and on this announcement a jubilation was immediately prepared by the Conservative party in that city, in anticipation of certain triumph before a tribunal so constituted. So much for the estimation in respect to fairness and impartiality, and the absence of party feeling, in which the public held these tribunals as now constituted. That estimation was not without foundation, for he remembered two or three years back two Committees sat on separate petitions, both complaining of bribery. The facts were similar in both cases, both turned upon, the question of agency, and in both the final decision depended on the result of various intermediate resolutions. In one Committee the bribery was held to be proved by a majority of six to five on every one of the intermediate stages, and in the other Committee, by a most singular coincidence, the same majority, in each stage, came to decisions whereby the proof of bribery was shut out. Now, as to the expense of these proceedings, they were, of course, well known to hon. Members who had been so unfortunate as to have 899 been mixed up in such matters. He had, however, inquired the general expense of petitions, and had found the most favourable specimen as to cheapness in the Salisbury case in 1833. That petition cost 1,000l. Another in the same year cost 2,000l., others 3,000l, and 4,000l., and he had learned that in one case the expenses on a petition had amounted to 10,000l., and, it was even said, in another to 20,000l. This was a subject not interesting to the parties alone, but most important to the constituent bodies of this country— they were interested that the right man should be returned, and yet even when another had taken the seat, on a mere majority of seven votes, the expense prevented them from coming to this House to prove the legal majority was the other way. To the expense of these proceedings was to be added the excessive delay by which Committees protracted their inquiries and increased the costs. He had spoken to one of the most eminent practitioners before these tribunals on this subject, and inquired the cause of so much delay. He had been told as the reason, that, in the first place, no Committee considered itself bound by the decision of a former Committee, even on a question of law; that therefore every point of law might be re-argued, and the last Committee generally did great justice to the argument, by upsetting the judgment and decision of its predecessor. He was informed, in the second place, by his professional friend (in the irreverent way in which lawyers are apt to speak of Members of Parliament), that considerable time was further consumed in instructing Committees in the mere elementary doctrines of the rules of evidence, and that no sooner was this accomplished in one Committee than Counsel had to proceed to another, in order to go through the same process. When he thus complained of delay, he trusted he should not be charged with inconsistency in his argument, if he also found fault with the excessive precipitancy of some Committees in arriving at conclusions. As proofs at once both of delay and precipitancy, he need only refer to the two Montgomery cases, well known to the right hon. Gentleman opposite. Before proceeding to call the attention of the House more particularly to those two cases, he must mention an anecdote which bore most completely on his charge of precipitancy. An hon. Friend of his was, some Sessions back, petitioned against, and on inquiring from him the probable result of 900 the petition, he was surprised to hear that it would depend on the state of the weather, for, added his friend, "the whole question turns upon a difficult point of law, and a mass of very wearisome evidence. If the weather be rainy, the Committee, not desiring to get out, will sit and listen to the argument of Counsel; but if the weather be fine, they will all be desirous to ride or drive in the part, and though the law is clearly with me, they will not attend to the discussion enforcing it, and so surely will they oust me from my seat." To return, however, more directly to the subject to which he was desirous to call the serious attention of the House, he contended that the real accusation against these tribunals was, that they were wholly unfit and incompetent for the work that was intrusted to them; it was not that hon. Members were so swayed by party feeling that they would not be just—it was not that they could not be taught their duties, but it was because hon. Gentlemen came to Committees of this kind knowing nothing of the law, possessing no acquaintance with the principles of law or evidence, because one Committee was not bound by the decision of a former Committee, because Committees decided upon no fixed principle, and because there was at present an utter uncertainty both of what the law in this respect has been or will be. In cases of questioned qualification, of necessity, many difficult questions of property in law must arise, and he need instance only the recent Drogheda case, in which Mr. O'Dwyer was unseated on one of the nicest possible points of equity law, to show that these were not questions to be tried by a Committee, constituted as the law now stood. He would next advert to the uncertainty as to decisions of different Committees on the same point. The first question before all Committees was the custody of the poll-books. Now in the Dublin case an objection was taken to the admissibility of the poll-books, on the ground of the omission in the jurat of the affidavit verifying the poll-books of the names of the deponents. That objection was held to be good, and the parties were put to great inconvenience and expense in order to get out of the difficulty. In the Cork City case at the same time, however, the same objection was taken, but the Committee there decided absolutely contrary to the Dublin case, and overruled the objection. The decision of the Roscommon Committee—that the poll-books coming out 901 of the hand of the agent for the returning officer were inadmissible, was overruled, though the circumstances were the same, by the Inverness-shire Committee. Again, in the first Montgomery case, which he had already mentioned; the point raised was the sufficiency of the proof of the custody of the poll-books. The Committee, after argument, held the proof to be insufficient, but the second Montgomery Committee, before whom the same objection was maintained, decided directly the reverse, and quashed the whole case. He was not surprised at the precipitancy with which the last decision was arrived at, when he found that the Committee heard the case on the "Oaks day," There was another very important point, upon which the greatest possible uncertainty prevailed at present, and which it was desirable should be permanently determined; he alluded to the question of opening the registries, or to what extent the registries were to be held to be conclusive. On this point he believed the Committees on English Election cases have decided uniformly right; but in Ireland there was the greatest possible confusion. He meant confusion with reference to this point. Though the Irish Reform Act had declared the registry to be "conclusive," there had been no less than three constructions put on the word "conclusive," as applying to the Barrister's decision. Gal way, Coleraine, and two other Committees, limiting the meaning so as to render the registry utterly useless; Car-low and Youghall interpreting it so amply as to render the registry absolutely final, and so rendering the Committee useless. The Clonmel Committee took a middle course, admitting an appeal from the decision of the Barrister in such votes as were objected to at the time of the registry, and this seemed the most reasonable view of the point. The next point to which he felt it necessary to advert, was the contrariety of decisions as to the necessity of first proving agency before giving acts of bribery in evidence. This was a point with the House ought long since to have settled, and have afforded every facility in the proof of allegations of bribery. At present, however, the charge of bribery was always met with a most formidable technical objection—namely, that it was not allowable to prove acts of bribery committed until the agency of the party committing them was fully proved. Now, in September, 1833, the Newry, Oxford, Warwick, and Norwich Com- 902 mittees decided, that bribery might be shown before agency was proved, while the Ennis and the Hertford Committees held directly the contrary; and though the same point was raised and discussed in the Bristol case, yet even the counsel could not make out how the Committee then adjudicated. But he had a still more singular instance of contrariety of decision afforded him in the Dungarvon case in 1834, where the bribery of a man of the name of Dower was admitted in proof without agency being established, and yet in the very next page of the Report, he cited, the Committee came to an opposite determination, by refusing the bribery proof of Dower's brother until agency was made out. He now came again to the first and second Montgomery cases. In the first, Mr. Pugh, who was unseated for treating, had a "very bad" Committee. A new contest followed, and the Tory candidate, who was started in Mr. Pugh's place, became the petitioner, seeking to unseat his opponent on the ground of treating at the former election. The Committee on the second petition held that the recriminatory case ought to have been gone into on the first petition when it could not have been gone into as the then sitting Member was not a party, the petition being from electors, and refused to entertain it. He was not surprised, for on reference to his Almanack he found that the last Committee sat during the Epsom week. There was another important point on which the decisions had recently been various—he alluded to the question whether after registration, a man could be disqualified from voting. It had been held by all Committees, for a long time, that a man abandoning his qualification after registration, but before the poll, was disfranchised. The contrary had been, however, the decision of the Windsor and second Canterbury Committees last Session. Again, thirteen Committees had held that paupers had no right to vote, until the second Canterbury and the Ipswich Committees admitted pauper votes objected to. Another Committee refused to reject the vote of a minor, because his name appeared on the register, though it was urged by counsel before them, that on the same principle a woman equally disqualified by law from voting might, if registered, be retained on the poll. In the Droitwich case, however, the Committee struck off from the poll the name of a peer, though registered, and here was again a different decision upon two most obviously similar disqualifies- 903 tions. With respect to the disqualification of persons employed in the revenue, the Windsor and Canterbury Committees allowed the votes of such parties, and also of the keepers of post-offices, while the Rochester Committee decided the other way. He had another singular instance of contrariety of decisions in the Monmouth and Worcester cases, both of which turned upon the question whether wagers laid as to the result of a contest did not amount to merely a pretext for a bribe. It appeared that bets of 5s., or a bottle of wine., had been made. In the Worcester case, such a bet was held to disqualify the vote, and Mr. Bailey retained his seat. In the Monmouth case, the Committee on the petition of Mr. Bailey's son held otherwise, and the result was, that the difference of the decisions on the same point seated the father and unseated the son. He thought he had stated enough to justify him in moving for a Committee of Inquiry on this subject. He had prepared a plan for the constitution of Election Committees; but he did not think it would be proper in so young a Member of the House as himself, to call upon Parliament at once to adopt his proposition. He was anxious to have a Committee appointed to consider the subject, and to recommend any plan which they might consider an improvement upon the existing system; and he thought this a better mode of proceeding than the introduction of a Bill in the first instance. He would, however, explain the general nature of the plan he was himself inclined to recommend, and, in doing so, he might, perhaps, shock some Gentlemen by the extreme moderation of the reform he proposed; but the principle upon which he acted, with respect to this and to all other matters, was not to make a greater change than was absolutely necessary. He knew that some Gentlemen were of opinion that no good would be done until the jurisdiction, in cases of controverted elections, should be entirely taken away from the House of Commons and transferred to some legal tribunal. He did not concur in that opinion; for, though a regular legal tribunal might be the best in ordinary times, he still thought it was the duty and the business of the House of Commons to pro-vide for the maintenance of its own independence in unfavourable seasons. For this reason he conceived that the House would not act wisely in allowing the power of deciding on controverted elections to be transferred to Judges, who might happen, at some period or other, to be indisposed to 904 respect the privileges of the Commons. The best course for the House to adopt would be to endeavour to make its own. tribunal as perfect as possible, and it struck him that it would be an obvious improvement on the present system, if the number of the Members composing an Election Committee were reduced, and their individual responsibility thereby increased. He would also advise that the Committees should be struck in such a manner as to avoid all opportunity for the display of that party feeling which, to the discredit of the House, was now occasioned by the ballots. It would be of great advantage, in default of the assistance of an ordinary Judge, if the House were to secure the presence, in the Election Committees, of a permanent chairman or president, in whose judgment, experience, and knowledge of law, confidence might be placed. He would now state the heads of his plan; they were as follows:— A chairman to be elected by the House at the commencement of every Parliament. (Of course there must be more than one chairman; but the number might be settled by the Committee to which he proposed to refer the consideration of the question.) The chairman so elected should preside ex officio over the Election Committees, and vote in all divisions. In the first week of every Session, the names of all Members, whether present or absent, should be placed in the balloting-box, unless reason for the contrary should be stated and allowed by the House; and every name should be put down on paper in the order in which it was drawn, that such paper should form the list from which the Election Committees should be regularly taken, and that it should be printed with the votes. Such an arrangement as this would, he thought, put a complete stop to the canvassing for the attendance of Members at election ballots. That days should be appointed for the consideration of disputed elections; that all applications for delay should be heard and disposed of by the permanent officer elected by the House; that the original Committee list should contain eighteen names, six to be struck off by each party, so that the reduced list would consist of six only. He confessed that he thought that four Members would be enough to constitute a Committee, because the more the number was reduced the greater would the responsibility of the Members become. In all cases in which a division should be called for, the chairman should pronounce his opinion publicly, and, at the termination of the case, 905 should charge the Committee. He did not of course, mean that the Committee should be bound by the opinion of the chairman. All the divisions should be mentioned in the Report of the Committee, with the names of the assentients and dissentients to every Resolution. The only other change which he proposed to make was with regard to the question of costs. At present, the parties whose conduct, either in prosecuting or opposing an election petition, was declared to be frivolous and vexatious, was compelled to pay the whole costs; but he proposed that a regulation should be adopted similar to that which was observed in courts of law, and that the costs should be apportioned by, the Committee, with reference to each allegation of the petition. He would now move "That a Select Committee be appointed, to consider the laws relating to the determination of the right of voting, and the trial of controverted elections."
§ The Chancellor of the Exchequer
said, he only spoke the sentiments of every Member of that House when he expressed the satisfaction which he felt at hearing the clear and able statement which his hon. and learned Friend had just made. He was not only satisfied with the arguments which his hon. and learned Friend had adduced, but the mode in which he had dealt with a question so important in itself, and with which he had taken such pains, and on which he had displayed so much impartiality. No person who was conversant with the subject could deny that some improvements were necessary, and he did not think there was a Member of that House who did not feel the evils of the present state of the election law, and wish to provide against them. If a foreigner had heard the statements of his hon. and learned Friend he might be induced to suspect that they were exaggerated; but, for his own part, he could enumerate many cases which would go the whole length of those statements. The statements of his hon. and learned Friend did not require much to support them, and, without wishing to add to the catalogue of facts which his hon. and learned Friend had laid before the House, he could not refrain from mentioning one or two cases to show the total incompetence of Election Committees as at present constituted. He by no means wished to impute to these tribunals any unfair dealing; but to show that the inconsistency of their decisions was the result of incompetence, and did not proceed from any want of desire to do full and ample justice. The first Committee 906 on which he had sat was appointed to try the allegations of a petition from his hon. Friend, the Member for Aberdeen, against the return of the sitting Member. His hon. Friend, in his petition, alleged that riots had existed during the election, which precluded the possibility of free opinion on the part of the electors of that borough. The petitioner having made out no case, the Committee decided, that it was unnecessary for the sitting Member to call evidence; and yet, when they came to a division, four of those who had so decided actually voted against the Member keeping his seat. This could surely not have happened if the tribunal had been competent. The other instance was a case of his own. It was there decided, that because the party who had the legal custody of the poll-books was not forthcoming, the seals upon them should not be broken, so as to give them in evidence. He was of course unseated by this decision, although the Bristol Committee, sitting at the time in an adjoining room, under precisely similar circumstances, not only broke the seals of the poll-books but received them in evidence. In that case the party from whom the poll-books were produced was declared to ha seated, but the difference of the two cases was, that his had the misfortune to be a Limerick case and the other a Bristol one. He, however, had no doubt whatever, that both Committees had acted impartially, but still such contrariety of decision showed in the most convincing manner, that some improvement was required in the formation of those tribunals. He was very glad his hon. Friend had done that which he was bound to do—that he had not only pointed out what he had considered the inconvenience of the present system, but was prepared to suggest a remedy for the evils which he had pointed out. With respect to the remedy which his hon. and learned Friend had suggested, all he could say was, that he assented to the principle which his hon. and learned Friend had laid down. He agreed with his hon. and learned Friend, that the House of Commons should retain its own station, power, and independence and not submit to have any of the functions which of right appertained to it transferred to any other tribunal. It was not only proper that they should maintain their own privileges, but it would in his opinion be highly inexpedient in every point of view to refer such matters for decision to a Court of Law. Whatever confidence the country might have in the 907 decisions of the Judges he did not think it would be prudent to allow the Courts of Law to be mixed up with party politics, or subject to the imputation of partiality, to which in such cases they would no doubt be exposed. His hon. Friend's description of a ballot was rather a dramatic one, but if it afforded, as be believed it did, the chances of impartiality, it would be wrong to act on contrary principles, in selecting Committees to which that business was to be referred which the House could not transact. There were two of the remedies proposed by his hon. and learned Friend in which he concurred. He meant, first, with respect to the limitation of the numbers of an Election Committee. They had, already, in fact, adopted that principle, because they had reduced the number from fifteen to eleven. A smaller number than eleven he agreed would be decidedly an advantage, provided it was accompanied by a real protection—that protection which publicity alone could give. It was important to all parties, voters as well as to Members of that House, that the proceedings of Election Committees should be public—should not be conducted with closed doors. But it was said, that if this were done it would preclude all amicable discussion—that it would deter young Members from acting in Committees of this description. Be it so. Why, if it were wrong to have young and inexperienced men on such Committees let them be excluded. This, however, was a mere hypothesis, and not a fact. But, if they were to decide on the rights of others, surely it was not going too far to say, that they should administer justice in the face of the public, rather than in private. So far from wishing to throw any difficulty in the way of his hon. and learned Friend, he rejoiced that he had brought the subject forward. There could be no doubt that it would be a great advantage if such tribunals were composed only of experienced men, in whom the House could place the utmost confidence. He trusted that the Committee which his hon. and learned Friend sought would be granted, and that they would be able to put that House in possession of such information as would enable them properly to legislate upon the subject.
§ Mr. Williams Wynn
concurred in the sentiments which the right hon. Gentleman who had just sat down bad expressed, and must bear his testimony to the ability, industry, and, above all, good temper, with which the subject had been brought before 908 the House. He felt, notwithstanding the arguments which had been adduced, that, considering the circumstances in which recent changes had placed them, a re-consideration of the question of the best means of conducting controverted elections was one of considerable difficulty. Great confusion had taken place in the law of elections since the passing of the Reform Bill. He regretted, though he could not but admit the fact, that of late years Election Committees had lost the confidence which they ought to enjoy—which they had enjoyed by general acknowledgment previous to the passing of the Reform Bill. Formerly, the right of challenge was scarcely ever exercised. The clerk of the House was allowed to strike off the names of the Committee, and the parties were willing to abide by the decision of a tribunal so chosen, being conscious that English Gentlemen would act as justly in such a case as if they had been called upon to discharge the duties of Grand Jurors. When he first had a seat in that House, now thirty-nine years ago, there was no apprehension that those who belonged to one party would take any unfair advantage of the other. The object of the early Committees was, to preserve unbroken the stream of concurring decisions; but of course cases arose in which it became necessary to establish new precedents. With respect to the Limerick case, all he would say was that the decision of that Committee created general surprise; and it was because that decision was considered to be wrong that the Bristol Committee, of which he had been a member, took a contrary course. Indeed, the decision of the Limerick case led to the passing of an Act on the subject, and he it was who recommended to the Bristol Committee to admit the poll-books as evidence, for the express purpose of overturning the authority of a decision universally acknowledged to be bad. He denied that any favour whatever had been shown to the sitting Member in the Bristol case. He did not wish to give any opinion with respect to the cases arising out of the elections for the county which he had the honour to represent. One case turned upon the rejection of the poll-books as evidence; and in the other the Committee refused to receive evidence of treating in conformity with the stream of authority for the last thirty years. He must, however, say that the Committees were placed in a most difficult position—he meant with respect to how far they were bound to con- 909 sider the decision of the Revising Barristers final. He considered the question so doubtful that he urged upon the noble Lord by whom the Reform Bill had been introduced the absolute necessity of passing a Declaratory Act upon the subject, with a view to establish something like uniformity in the election law. He suggested the necessity of creating a tribunal of appeal from the decisions of the Revising Barristers, for the purpose of effecting that object, and the noble Lord said that an Act of the kind should be introduced, but up to the present hour that promise remained unfulfilled. He renewed that suggestion because he thought it was important that Parliament should adopt some means of settling all questions of doubt, by passing a Declaratory Act. In such an Act it should be stated how poll books were to be produced. That was the difficulty which was felt in the Limerick case, because it was said that the petitioner had a right to expect that the poll-books should be produced by the party having the legal custody of them. He did not far his part know any reason why the Court of King's Bench or the Court of Common Pleas should not be allowed to exercise the jurisdiction of a Court of Appeal for the decision of the Revising Barristers. At the same time that he concurred in the necessity of taking this subject into consideration, with a view to devise some remedy for the evils complained of, he felt that it was essential to the maintenance of the dignity and independence of that House that the charge of preserving its privileges should not be left to any foreign tribunal. With respect to leaving controverted elections to the decision of the Judges in the Courts of Law, he felt that it would be most prejudicial that cases of this nature should be decided in those Courts, for where party spirit was excited, and where the decisions would be liable to the imputation of party feelings he considered that nothing could be more calculated to prejudice the administration of justice. He objected to the proposal of having a standing Chairman, lest the election of such a Chairman would be made the subject of party contention. In time of stormy politics such a Chairman would be sure to be elected by the party that could command the majority. He would appear in such circumstances to be in some degree in connection with that patty, and, however fair and just his decisions might be, he would be still liable to suspicion. Where there would not be the fullest reliance on the perfect impartial- 910 ity of the tribunal it was impossible that its decisions could carry confidence with it. With respect to the reduction of the numbers he did not object to that part of the proposition. He himself, on a former occasion, had brought forward a motion to reduce the number from fifteen to eleven, and in doing so he acted under the conviction that by lessening the number they increased the responsibility. He must, in conclusion, acknowledge the fair and impartial spirit in which the hon. Gentleman had brought, forward the motion, and should the hon. Gentleman place him upon his Committee, he would be most ready to consider the subject in the same spirit in which the hon. Gentleman had brought it under the notice of the House.
§ Mr. Rigby Wason
said, that from his own experience he could bear testimony that the hon. Gentleman had not exaggerated in the statement he had made. With regard to the remedy proposed, he thought it impossible that any tribunal should be able to deal with a question of law which did not possess some knowledge of what the law was on which it was called upon to decide. He thought that, before entering into any question as to what kind of tribunal they should establish, their first duty was to inquire into the state of the law with reference to this subject, and to simplify and improve that.
§ Mr. Bernal
had heard the observations and arguments of the hon. Member for Liskeard with the greatest pleasure, and he thought while the hon. and learned Member hail done himself honour, he had also done the House great service, by the introduction of the present motion. He was also exceedingly happy to hear that the motion received the approbation of the hon. Member for Montgomeryshire, because anything that fell from that hon. Member, the more particularly on this subject, was entitled to great weight. He did not wish to throw any impediment in the way of the Committee, but he feared it was almost impossible to find an adequate remedy for the existing evils unless by a revision of the whole of the election laws. Committees of the House of Commons did not consider themselves to be under the necessity or obligation of being bound by the same rules with respect to evidence as those which regulated the decisions of the Courts of Law. The Judges who presided in those Courts considered themselves bound to follow a regular continuous chain of evidence, That was not the rule which had 911 applied, in his experience, to the practice of Committees of that House. It was no uncommon thing for all the Members to be at sea with regard to the course to be adopted in the case before them. It might happen that those sitting knew nothing of the principles of evidence or the rules which should guide them. They might listen with attention to the propositions and the arguments addressed to them by one Counsel, or, on the other hand, they might disregard him. One Counsel would maintain that agency had been proved against a party, the other, would rebut it, and the Committee did not know on what to fix their attention. One Counsel might adduce in support of his position the cases of Carlow and Northampton, the other that of Nottingham or Ilchester, and the Members would be completely ignorant by which of them they should be guided. A disgraceful termination was frequent, for three different Committees might be sitting at the same time, and that in the Committee-room No. 1, might decide in one way, while that in No. 2, might come to a different, and that in No. is to an entirely opposite, conclusion. What remedy were they to find for this disgraceful course of action? Was it not possible to appoint some responsible person to guide the labours of a Committee, and thereby to impart some consistency to its decisions? When he came into Parliament no situation was so anomalous as that of a nominee, who was appointed to assist the deliberations of the Committee, who took an oath to act impartially as a Juryman, and went into it with the determination to act as a partisan. The basis of the evil, however, was party feeling—party was the bone of the proceedings of Election Committees—every man, he spoke not of what his politics might be, on these subjects was guided by party considerations. He (Mr. Bernal) saw very little chance of remedying the evil; but it was absolutely incumbent on the House to take the best means in its power for the purpose, if possible, of preventing them.
§ Sir Frederick Pollock
entirely concurred in the opinion of the hon. Gentleman who had brought forward this Motion as to the necessity of seriously considering this subject. He would ask any Gentleman who had ever attended election Committee whether their present mode of proceeding was satisfactory either to the House or to the public. When they were evincing the fullest anxiety out of doors, that justice should be administered in the most satis- 912 factory manner, it became them to look at home. He did not mean to go into any discussion upon the subject, but he anticipated very little contradiction when he stated that the evils of the present system were universally felt and acknowledged. Before he had had the honour of a seat in the House of Commons it was his misfortune, he might almost say, to practise before many election Committees, and of all the tribunals that he had ever known, a Committee of that description was the very last that he felt any disposition to attend. He hoped that in thus speaking boldly and frankly his opinion on this subject, he could not be supposed to intend any offence to any Gentleman at either side of the House. He was happy to see that the evil was felt in the House, because it was a matter of such general complaint out of it, and he hoped some system would be devised that would entitle the decisions of such tribunals to respect.
§ Mr. Roebuck
said, that the complaint urged against the present system was the want of knowledge on the part of the Members of Committees, and the existence of party feeling, but he thought the remedy proposed by the hon. Gentleman who introduced the Motion would combine both these evils. He objected to a permanent Chairman, for though, from long experience in his office, he would acquire a knowledge of law that would give authority and consistency to his decisions, yet he would not be surrounded by sufficient responsibility, for he would share his responsibility with the other Members of the Committee. The decisions of the Committee would, in a great degree, be governed by the opinions of the Chairman but though his influence would, of course, thus be considerable, he would merely possess the same degree of responsibility as any other Member of the Committee. The remedy which he would suggest might not, at first view, be acceptable to the feeling of the House, but he was convinced that the more it was considered, the more it would be approved. His proposal was, that they should select a Judge, one of the twelve Judges, if they approved of it, whose whole duty should be to decide cases of this description, and who should have nothing whatever to do with any other Court. The high situation which he held—the publicity with which he discharged his functions—his knowledge of the law, and his perfect responsibility— would give to the decisions of such a functionary the strongest claims to public confidence, That justice was fairly adminis- 913 tered was not sufficient unless the people were convinced that it was so, and he thought that a Judge, selected in the manner that he had described; and acting under the fullest responsibility, would be the most likely to do justice to all parties.
§ Mr. Ewart
was of opinion, that a legislative judicature was the worst species of judicial tribunal they could have. He suggested the establishment of a legal tribunal, isolated from the House of Commons, to be appointed by the House, and though not an integral portion of it, connected with it. Such a tribunal would be the most likely to give satisfaction.
§ Colonel Jones Parry
thought the House exceedingly indebted to the hon. and learned Gentleman for bringing this subject under its notice. To illustrate the evils of the present system, he might mention a case in which a friend of his was told by another party concerned, "You need not defend this petition, for myself and another man equally wealthy are paying the expenses." There were sporting petitions, and such things as knocking the brains out of the Committee,
§ Mr. Aglionby
called the attention of the House to the delay which now took place between the return and the ballot for the Committee. He thought the matter should be more speedily settled. He wished to know whether the Committee to be appointed was to take into consideration this part of the law. There were two points which he thought especially deserving of its attention. The first was the present mode of taking the recognizances. The parties were not allowed to lodge money in the hands of the officer, but were called on to give in the names of sureties. Now he himself, when serving on a Committee had been compelled to vote against his own conviction upon a mere technical objection raised by Counsel, though the merits of the case were quite on the other side. Then, with respect to presenting petitions, any person might present a vexatious petition against the return of a Member without the least responsibility to prosecute it afterwards. He had known that to be done for years, in order to prevent Members from being eligible to sit on Committees within the number of days prescribed by law. He wished that the Committee should direct their attention to this part of the subject, and would propose, if the House thought it necessary, in order to include the points to which he had referred., that after "the law of controverted elections" should be inserted the words 914 "and the law of other matters relating thereto between the return and the balloting-day." If the House, however, thought the motion sufficiently comprehensive, he would not press his amendment.
§ Mr. Potter
supported the motion. In 1831 he had petitioned against the return for Wigan, and relying on the argument and statement of his counsel, believed he was sure of success. But while he was carrying on the contest with the greatest confidence, he received a letter from a friend at Wigan condoling with him on his defeat. In fact, the decision of the Committee, which had astonished the lawyers, was not given till after he received the letter, On inquiry he found that a Member of the House had written to his friend at Wigan, immediately on the Committee being struck, to inform him that six Tories were placed on it, and there was not a shadow of a chance of success; and that Member who could read the decisions of Committees by the individuals composing them, was quite right in his views.
§ Original motion agreed to, and Committee appointed.