§ Sir R. Peel
said, that some time since, he expressed an opinion that it would be desirable, before they made any progress with this measure, that there should be a general discussion as to the specific questions which should govern their amendment of the law on this subject. An opinion had been expressed very strongly by some hon. Gentlemen, that no attempt to amend the present system, could be effectual for the purpose, and that the only hope of constituting an impartial tribunal, was to transfer it to some extraneous jurisdiction, to dispossess the House of Commons of all authority in respect to decisions in controverted elections, and to vest the power in some tribunal, having no necessary connexion with the House of Commons. He would avail himself, therefore, of the opportunity which the moving of the order of the day gave him, for the purpose of submitting his general views, not so much in respect to the details of the measure, as to the principles by which, in his opinion, the House should be governed in sanctioning any amendment of the law respecting the trial of controverted elections. As he was desirous of divesting his observations altogether of party colour, he begged leave, at the outset, to state, that the suggestions he should offer were merely his own individual suggestions. He spoke the opinion of no other Member; in point of fact, he had conferred with none. He therefore should suffer no disappointment in the event of his observations being deemed by the House unworthy of adoption. He offered them, merely as his own individual suggestions. He was most desirous of seeing the difficulties of the present system effectually remedied, and he was most desirous, also, that the discussion on this subject should not partake either of the asperity or bias 278 which party discussions were necessarily subject to. As he stated before, the suggestions he meant to offer were entirely his own, and in order that he might not incur the risk of acting under the influence of party bias, he avoided communicating with any one. He presumed he might take for granted that no party in the House was desirous of upholding the present system, and that for the character of the House, as well as for the sake of securing impartiality in their decisions, it was most desirable that they should apply themselves deliberately to the consideration of a remedy. He thought he might assume, that this was the prevailing opinion of the House. In point of fact, the very reading of the present bill a second time, implied that the opinion of the House was in favour of some alteration of the present system. This, therefore, being conceded, the question was, what amendment should be proposed? Should they transfer the jurisdiction from the House to some other extraneous tribunal, or should they, white retaining the jurisdiction to themselves, seek to apply a remedy to the admitted evils? He had expressed an opinion the other day, after the strong opinion declared by some Gentlemen, in which a considerable body of Members appeared to participate, that the time had arrived, when they ought to consider the expediency of a transfer of the jurisdiction; he had expressed a strong opinion that it was desirable that there should be some discussion on the subject. The observations he then made, appeared to meet with considerable concurrence, and he then expressed himself desirous of being understood as by no means pledging himself on the subject, that he intended to apply his mind to the question, and to give it an impartial consideration, but that he reserved the declaration of whatever opinion he might come to, for a future opportunity. He had given this important subject the consideration to which it was entitled, and he must say, that the result was, that he was strongly of opinion that it would not be desirable for the House to part with its jurisdiction. He had entered upon the consideration of this subject perfectly unprejudiced, with rather, if anything, from a sense of the defects of the present system, an inclination to part with the jurisdiction, but more mature consideration induced him to take a different view, and, with the permission of the House, he 279 would proceed to state the grounds upon which he entertained a strong opinion that it would not be for the public advantage, or for the character, or interests, or privileges of that House, to divest themselves of jurisdiction over controverted elections. He entertained this opinion upon two grounds, first, there being a strong constitutional objection to the transfer; and secondly, on the ground of the extreme difficulty of constituting a new tribunal to which the jurisdiction should be transferred, or of determining the rules upon which it should proceed in its decisions. When he looked back to the early history of the circumstances under which the House asserted its claim to this jurisdiction he was bound to say, that he thought that claim was asserted under circumstances which made him most reluctant to part with it. Early in the period, when the great conflict arose between the House of Commons and the Crown with respect to the assertion of their privileges, the House claimed this as one of its most important rights. He was quite ready to admit, that this jurisdiction might be parted with without incurring precisely the same risk that accompanied the transfer at the period at which the transfer took place; the jurisdiction was not now so necessary for the maintenance of the independence of the House of Commons; but while he admitted, that the same risk would not accompany the transfer, he must say, that he had come to the conclusion, that it would be most unwise on the part of the House of Commons to part with it. The first instance in which the right of deciding upon controverted elections, became matter of serious controversy between that House and the Crown was in the reign of Elizabeth. "In that reign a question arose with respect to the return for the county of Norfolk. The fact was, that the Chancellor had issued a second writ for this county on the ground of some irregularity in the first return, and a different person had been elected. Some notice having been taken of this matter in the Commons, the Speaker received orders to signify to them her Majesty's displeasure that the House had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the Lord Chancellor, whom she had appointed to confer with the judges about the returns for the county of Norfolk, and to act therein according to justice and right.' 280 The House, in spite of this peremptory inhibition, proceeded to nominate a Committee to examine into and report the circumstances of these returns, who reported the whole case, with their opinion, that those elected on the first writ should take their seats, declaring further, that they understood the Chancellor and some of the judges to be of the same opinion; but that 'they had not thought it proper to inquire of the Chancellor what he had done, because they thought it prejudicial to the privilege of the House to have the same determined by others than such as were members thereof. And though they thought very reverently of the said Lord Chancellor and judges, and knew them to be competent judges in their places, yet in this case they took them not for judges in Parliament in this House; and thereupon required that the Members, if it were so thought good, might take their oaths, and be allowed of by force of the first writ, as allowed by the censure of this House, and not as allowed of by the said Lord Chancellor and judges. Which was agreed unto by the whole House.' This judicial control over their elections was not lost. A Committee was appointed in the Session of 1589 to examine into sundry abuses of returns, among which is enumerated that some are returned for new places; and several instances of the House deciding on elections occur in subsequent Parliaments." This passage was from Hallam's Constitutional History, who went on to say thatThe establishment of the jurisdiction in the hands of the House of Commons was the consequence of the attempt made by Elizabeth to claim the jurisdiction for the judges of the Court of Chancery. The claim, however, was not abandoned by the succeeding Sovereign, for in the first year of James the First the same attempt was made by the Crown, to set aside the precedent established by the House of Commons in the reign of Elizabeth. The attempt was made upon the accession of James the First. The question arose upon this case between Sir Francis Goodwin and Sir John Fortescue. Sir Francis Goodwin had been elected Knight of the Shire for the county of Buckingham, and was adjudged by the clerk of the Crown not to have been duly elected, because he was an outlaw. This led to a controversy between the Crown and the House of Commons. The House of Commons presented to the Crown the humble answer of the Commons House of Parliament to his Majesty's objections to Sir Francis Goodwin's case. Objection the first, That we assume to ourselves 281 power of examining of the elections and returns of knights and burgesses which belongeth to your Majesty's Chancery and not to us. Our humble petition is, 'That until the 7th of Henry 6th, all Parliament writs were returnable into Parliament, and consequently the returns were then examinable.' That in that year an Act was passed making the writs returnable into the Chancery; but, says the Commons, 'The power of Parliament to examine and determine of elections remaineth, for so the statute hath been always expounded ever since. The clerk of the Crown hath always used to attend all the Parliament time upon the Commons house with the writs and returns; and also the Commons, in the begining of every Parliament, hath ever and used to appoint special Committees for examining controversies concerning elections, and returns of knights and burgesses.' This practice is warranted by reason and precedent. By reason, 'Because the Court in which the service is due ought to be the Court which has the examination of the rights of its Members, and it is warranted by precedent.' The House went on to enumerate various precedents in the reign of Elizabeth, in which the exclusive right to adjudicate upon controverted elections was reserved to the House.The example had been followed in every popular assembly constituted in any state that had adopted the British constitution as its model. He believed, that without exception in all states in which a free Government prevailed, the popular branch of the constitution had claimed those privileges as peculiarly belonging to a popular assembly. They claimed the exclusive right of examining into the qualification and due return of its Members, and nothing but the strongest conviction that justice would not be done could make it expedient, in his opinion, to part with the power which the House of Commons possessed. Although, therefore, upon constitutional grounds he was of opinion that it was of the utmost importance that the House should not part with its exclusive privilege of adjudication upon the rights of its Members, at the same time he must say, that this must be subordinate to considerations of justice. Justice must be administered, and he did not hesitate to say, that, provided they could not have a guarantee for the administration of impartial justice from the present system, a strict adherence to it ought not to prevail. But he feared that the utmost difficulty would be found in constituting a new tribunal, supposing the House to be determined upon the expediency of making the experiment of a transfer. To what tribunal was the jurisdiction 282 to be transferred? He apprehended that they would not be satisfied to transfer it to any inferior authority to that which adjudicated upon the civil rights and liberties of her Majesty's subjects. He should think it would be expected that the judges of the land or some others of equal authority should, in case they parted with the jurisdiction, be the parties who should exercise it. He had the strongest objection to mixing up the judges in matters of mere politics. The judges, in the execution of their duty, must, no doubt, decide upon political matters. Great questions of political libels, sedition, and treason were determined upon by them; but, then, the adjudication of controverted elections partook of party as distinguished from political considerations; and he must confess, considering the universal satisfaction that now prevailed with the administration of civil and criminal justice in this country, and the universal conviction that it was as important as the administration of justice itself, that there should be no suspicion of partiality, he thought that this universal feeling of confidence might be seriously weakened if they made the judges of the land, the persons to adjudicate upon party disputes. But then again, would they intrust this power to a single judge? Supposing they overruled the objection as to the danger of prejudicing the character of the judge, by devolving upon him a duty partaking of a political character, would they in all cases devolve upon a single judge the duty of determining both the law and the fact of controverted elections? If they did so, he thought that this would be a monstrous power to give to a single judge, to decide both the law and the fact in cases of controverted elections. If, on the other hand, they adhered more closely to the general principles of the law, would they have any security that a jury, however constituted, would be more free from political bias than the Members of the House. Or would they sanction in this case a departure from that great principle of our jurisprudence which required an absolute unanimity amongst the jury to convict? In his opinion, if they did not require unanimity in this case, they would be originating a precedent for a very serious encroachment upon the constitution of juries as established in this country. If they required unanimity on the part of the jury, he thought it would be very difficult to select a jury of 283 twelve men who, in matters involving so many dubious points in law, and so many intricate matters of fact, should arrive at an unanimous verdict. There was another point also, which suggested itself to the House, with reference to any contemplated external judicature in controverted elections. Would they require of the judge who was to try these cases, the same strict adherence to law as in purely legal cases in the Courts of Queen's Bench and Common Pleas? If so, in his opinion, there would be many cases which Parliament would investigate and visit, which in the application of the strict letter of the law might escape. It appeared to him, therefore, that if a judge were appointed to try election petitions, either he must be guided by the moral principles and discretion of Parliamentary law, or he must depart from all the rules and principles which had hitherto guided election committees, to the strict legal doctrines which prevailed in the courts of law. Now, either of these alternatives appeared to him to be open to great objection; he thought it equally objectionable that the rules of the courts of law, should be rigidly adhered to in election cases, or that the judges should have to administer a species of law with which they were not familiar, and which was applied by Parliament rather on lax and equitable principles than by well-defined rule, and which differed materially from the strict statute or common law of the country. On this double ground, he thought the Crown would find so much difficulty in appointing a tribunal for this particular purpose, that nothing but an insurmountable case of necessity, amounting to demonstration, should induce the House to forego its present privilege of deciding upon the seats of its Members. At the same time, if it could be proved, that justice could not be done without seeking a new tribunal, that would be such an argument of necessity, as would, of course, overrule all his objections. It was, however, because he did not despair of finding atribunal in this House better qualified, in his opinion, than any other to decide upon these points, and better calculated to give a verdict which should meet the impartial justice of the case, and give general satisfaction to all parties, that he should support the retention of this judicial authority by the House. He was far from abandoning the hope of being able to constitute within this House a better tribunal in 284 these matters than could be constituted anywhere else, and of the perfect impartiality of which, as well as of their competency, there could be no doubt or suspicion. Whatever course they took,—whether they retained their jurisdiction in its present form, or consented to its entire transfer to an extraneous tribunal, or whether they retained it in a modified and altered form, he thought the suggestion of his noble Friend (Lord Stanley) was well worthy of consideration, and that a Committee ought to be appointed with a view to determine by what preparatory law they could put an end to the doubts and differences of opinion which prevailed upon several points of election law, and which led to adverse and conflicting decisions. At the same time, he must say, that the complaints against election committees, arose frequently from the mode of selection, and from having young and inexperienced men to adjudicate upon points of law which were full of doubts and difficulties, and on which great differences of opinion prevailed. He thought, therefore, that a declaratory law, clearing up existing doubts, would be an important preliminary to whatever form of tribunal they might hereafter decide upon adopting. Let the House take, for example, the question of distance, the mode of admeasurement of the seven miles. What could be easier than for the House to decide that? Let them look to the question of trusteeship of chapels, upon which the revising barristers were constantly coming to opposite conclusions. Was it to be wondered at, then, that election committees, having such questions to decide, should be confused by the opposite decisions, and should come to conclusions different from those arrived at by other Committees, and without the slightest ground of partiality? Why, he asked, should not Parliament interfere under such circumstances? Let them take the case of an overseer who had the power, by his own neglect, to disfranchise 100 persons. Surely nothing could be more unjust, than that any public officer should be allowed, through his own neglect, and without any fault of theirs, to disfranchise a large number of voters. So there were many other questions of a similar nature, and of the like importance, which he thought, on a careful review by a well-selected Committee, might be set at rest. He did not, however, overvalue in extent 285 the importance of judicial decisions of this kind; for it would be almost impossible to anticipate and lay down the law, upon the points of difficulty or dispute which might possibly arise. For the House to step in to define what bribery was, for instance, would be almost impossible, so as to foresee and guard against every variety of circumstance under which it might present itself. Therefore, whilst he thought it desirable that the House should declare the law upon some disputed points which had already arisen and become ascertained, he did not expect, having done that, they would have gone very far towards removing all the evils and difficulties of the present system, though he thought they would have done much towards preventing unnecessary litigation and expense, which was, in his opinion, one of the main evils attendant upon every process of trial in this country. They would be doing much in clearing up and setting at rest disputed points, which as long as they remained doubtful induced speculative men to enter upon litigation and engage themselves and others in much unnecessary and fruitless expense. This would operate as a relief equally to Members and to their constituent bodies. He hoped, therefore, that the House, without entertaining the idea of establishing new tribunals in this matter, would appoint a committee upon the subject. This, he considered, would be an essential preliminary in any case, whether with the view to the establishment of a new tribunal or not. As far as the time which he had for the purpose would allow him, he had endeavoured to ascertain what were the practices of assemblies answering to the House of Commons in the different countries of the world where a constitutional form of government existed. The result of these inquiries was, that he found it uniformly, and without exception, to be the case, that these assemblies had adopted the principle acted upon by the British House of Commons, namely, that of deciding for themselves upon the qualifications and seats of their Members. Without tiring the House with a variety of details from all these quarters, he would select, as the two most important instances, the practices of France and of the United States. In France the ultimate decision upon every return was entirely in the chambers, so that they were there very much in the position in which this House was before 1770, when the Grenville Act 286 was introduced. The French Chambers did not devolve upon any committee the business of deciding upon the seat of a Member, but reserved that final right to the whole constituent assembly. The right hon. Baronet read the following statement from a paper of the French practice:—A detailed account is kept in each Electoral College of all the proceedings that take place day by day during the progress of the election. It includes a statement of the fact that all the formalities required by the law have been observed—the claims of voters—the protests against alleged irregularities in the proceedings.These detailed accounts, or proces verbaux, are sent by the Prefect of the Department to the Minister of the Interior, and by him are transmitted to the Chamber of Deputies.Petitions by parties interested, complaining of irregularities at the election, may be addressed directly to the Chamber of Deputies.Each Member sends to the Chamber the proof of his qualification. That is, a certificate of his birth, and certificate of his payment of his amount of taxes required by law to constitute his pecuniary qualification.The verification of the rights of the deputies to their seats is the first duty of the Chamber.The day after the opening of the Session the Chamber is divided by lot into the nine bureaux. There are 459 deputies; each bureau therefore consists of 51 deputies.The proces verbaux of the elections, and every document relating to the elections, are divided among these bureaux, each of which meets in a separate apartment.Every bureau makes a report to the Chamber on the subject of the elections of which it has had charge, and recommends that they shall be declared valid, or annulled, as the case may be.The Chamber divides on each.The general principle observed in France is—Having read these particulars to the House, he must say that he apprehended that the practice of France could not form 287 a rule for their proceedings on the present subject; for if any one would take the trouble to refer to the debates which took place in the House at the time of passing the Grenville Act, he would see that the general adjudication of the House upon contested elections was considered one of the most objectionable features of the old system. He would now beg the attention of the House to a few particulars of the same kind from the United States, which he had from a person of very good authority, in whom he placed the highest reliance:—
- "1. That the whole Chamber of Deputies, and that authority alone, can pronounce definitively on the validity of an election.
- "2. The final decision on every question connected with the validity of an election, the rights of the electors, the regulating of the proceedings, the qualification of the Member, is with the Chamber.
- "3. Everything which precedes the final discussion and decision of the Chamber is merely a preliminary examination intended for the information and instruction of the Chamber. The decisions are presumed to constitute the rule by which future decisions in analogous cases are regulated."The Speaker is elected at the commencement of each Congress, by a majority of members, by ballot.Exercising important political powers, his political opinions are generally in accord with those of the majority. He appoints all the Standing and Select Committees, though by a rule of the House the House may do it if they please. This, however, is rarely done, except in relation to Select Committees under peculiar circumstances, or when it is desirable to the Speaker that it should be done.There is no other security as to fairness or impartiality, in the appointment of Committees by the Speaker than that which a high sense of duty and a just regard for his own character and that of the House may be supposed to inspire.In the construction of the important Committees of the House, where subjects involving political principles, or affecting the existing administration, political considerations must operate, at least so far as to give a majority of the Committee to the dominant party. The Committee of Privileges and Election is, however, freer from the objection of political bias than most others.Objections on this score have been sometimes made, especially under high party excitement, and can be urged against the report of the Committee when it comes into the House. Few decisions of the Committee are reversed, and in a service of more than fourteen years I have not, I think, known more than one or two reversals. The system has generally worked well, and no effort has ever been made within my knowledge to change it.All contested elections are submitted to the Committee of Elections in the first instance, who examine and report their opinion, with the evidence, if desired by either party or the House, or deemed by them necessary.The rules are, that all Committees shall be appointed by the Speaker, unless otherwise directed by the House, in which case they shall be appointed by ballot.It will be the duty of the Committee of Elections to examine and report upon the certificates of election, or other credentials of the Members returned to serve in the House, 288 and to take into consideration all such petitions and other matters touching elections and returns as shall or may be presented o come into question, and have been referred to them by the House.It would be seen from this that the committee of privileges of the United States did not differ very widely from the Election Committees of this House, except that the power of adjudication was, in the United States, in the House. Having entered sufficiently into these circumstances, he would now approach what appeared to him to be the most important question which this subject involved, namely, what practical remedy the House should adopt in respect to the adjudication of contested elections, assuming that it retained its jurisdiction in this matter. He thought it could not be denied that for many years after the Grenville Act was passed it worked practically well; and he (Sir R. Peel) certainly recollected that in his earlier Parliamentary career he had not heard so many objections urged against it as had lately been raised. He would very briefly state what, in his opinion, were the chief defects of the present system. In the first place, all the preparatory proceedings were of a nature to taint the rest. Each party naturally endeavoured to secure as numerous an attendance of the adherents of his party as possible, and the consequence was that the public saw, an unusually large assemblage drawn together for the purpose of striking an Election Committee, and a degree of excitement and zeal prevailing amongst the members of both parties which very ill accorded with all the moral notions of a judicial proceeding. When men assembled together in large numbers, for any purpose calculated to awaken their political feelings, they were much more liable to be betrayed into party decisions than they would be individually if invested alone in their own persons with certain duties, and duly sensible of the responsibility which they incurred. If anything could induce him to give a partial decision it would be the excitement which prevailed in the House itself on the appointment of Election Committees. There was, also, this to guard against—how far the scruples which might induce an over punctilious man to give a decision contrary, perhaps, to his own impression of the case, for fear of incurring the imputation of having acted under the 289 influence of party bias. His opinion was so strong against this preliminary step, and the stamp which it gave to all subsequent proceedings, that, in his opinion, nothing could remedy it. Supposing even the wish to be on all hands to guard against anything like an undue influence of party in the constitution of the committee, yet had it not frequently occurred, with perfect fairness in the mode of the selecting the Committee, that it had been composed of ten members of one party and only one of another? In two or three instances, which he at the present moment remembered that had been the case. Another error to which the present system was subject was in his opinion the predilection of the parties themselves to exclude from the committee those very men whose opinion on such a subject was likely to have most weight. A party to a contested election, having full confidence in the abilities of a very clever counsel whose services he had retained, preferred rather to have it in his hands to address a committee composed of gentlemen who knew little or nothing about the matter, than to submit his case to a Committee of experienced men whose opinions were known to have weight and authority. These were a few of the objections to which the present system was liable; and in coming in the next place to consider what could be done to remedy these defects, he must say, that, after all that had been proposed by others, he had very great hesitation in offering any suggestions on the subject. He was desirous, in the first place, of doing away with the practice of summoning Members for the purpose of having their names drawn upon a committee, and he wished also to exclude, as far as possible, the influence of party, and to do away with the practice of excluding Members whose authority should have most weight in matters of this kind. With these objects in view he should propose, that after a general election the first act of the House should be to determine who were liable to serve upon Election Committees. Some extent of service should be prescribed also which should entitle a Member to exemption from subsequent Committees; for he did not think, for instance, that a man's having served upon a committee on a petition which went off in half an hour on a point of form should entitle him to exemption. Whether or not the Members of Government should be liable to serve was a point which he 290 should leave to themselves. He very much doubted, also, whether he should exclude those Members from participation in Election Committees who happened to be themselves petitioned against. Indeed, he could not see any wise or reasonable principle upon which they could be excluded from this duty, whilst they were permitted to exercise every other right and power as Members of that House. He thought also that this rule held out a great inducement to parties to petition against Members for the mere purpose of preventing them from sitting on election committees. He thought the House should facilitate bona fide petitions as much as possible, but that, at the same time, it should give no encouragement to frivolous petitions, which had no other object than that of crippling the public service of the Member so petitioned against. It was still a matter of doubt with him whether this rule should be abandoned, but, at the same time, he threw out the point as one deserving of consideration. Having once determined who were liable to serve on Election Committees; they came now to the great difficulty of appointing an assessor, or judge, whose authority should guide and have weight with the Committee. He saw a very great objection against calling repeatedly upon the Speaker in matters of this kind. It was certainly of the utmost importance that the Speaker should hold the scales of justice between contending parties; but, at the same time, he thought it extremely desirable, that he should not be continually liable to be called on to settle disputed points between conflicting parties. All he (Sir R. Peel) would call upon the Speaker to do would be one single act, which he was sure he would perform with the most perfect impartiality and integrity, and in a manner to give satisfaction to all parties. What he should call upon the Speaker to do would be, to nominate a Committee, which he should call a general committee for elections, and which he should propose should consist of very few Members, perhaps four or six, or some such limited number. The House and the country, he was sure, would cheerfully repose confidence in the perfect impartiality with which the Speaker would in all cases proceed to nominate the general Committee. Perhaps it might be desirable to require the consent of the House to the Committee when nominated by the 291 Speaker; or it might be deemed better and simpler to leave the matter finally in the hands of the Speaker. This, however, was a point upon which he (Sir R. Peel) was indifferent, though he thought it so easy to constitute a general Committee of this kind with perfect fairness, that the matter might safely be left in the hands of the Speaker. The Committee so appointed would be perfectly impartially constituted; and to this Committee, acting under the obligation of an oath, he would leave the duty of appointing the Select Committees which were to try all election petitions. Suppose, for instance, there were thirty election petitions pending, the general Committee of four or six would have to select thirty Committees to try these petitions, either by selecting thirty election Committees in the first place, and then appropriating them to the several petitions by ballot, or by selecting the Committee individually to try each particular petition. He must say, however, for his own part, that he was so averse to everything having the colour of chance about it, that he should much prefer the latter course of appointing a distinct Committee to try the merits of each particular petition. Suppose, for instance, there was a petition from Dublin. He would leave it to the general Committee to appoint a Committee to try the merits of the petition, with full confidence that they would select a competent and impartial Committee for the purpose. In the next place, he should propose, that the election Committees should be more limited in their numbers. He thought seven would be quite enough to form a Committee, perhaps five might be too few; but he should have no objection to reduce the number to seven or nine. If it was thought that mistakes might still be made, and persons be nominated by the general Committee, to whom some personal objection might reasonably apply, it might be desirable that the general Committee should, in the first place, appoint eleven or thirteen names, giving the parties to the petition a limited right to strike. Suppose, for instance, seven were to be the constituent number of an election committee, it might still be a question whether the general Committee would appoint those seven at once, or whether they should nominate eleven, giving the parties on either side a right to two strikes. In the next place, it was desirable, he thought, to give the Committees the aid 292 of assessors. In order to do this, they might either compose the Committee of six Members, with a legal assessor, who should be their chairman, with the voice and authority of a judge, and equal in every respect to any other Member of of the Committee; or they might constitute the Committee of seven Members, and give them the assistance and aid of an assessor. There were one or two points upon the respective merits or preferable-ness of which he would then give no opinion. One very great difficulty in the appointment of assessors would be this; that the call for their services would not be uniform or permanent. At the first meeting of Parliament after a general election, there would naturally be a comparatively large number of petitions, and the services of several assessors would, of course, be required; whilst, in subsequent years, there might only occur two or three contested elections. If a permanent staff of assessors, therefore, were to be kept up, the public would be burdened with the salaries of officers whose services were only required for one year out of every four or five. Upon this point, therefore, he should be inclined to copy the principle of an Irish act, and provide, that all persons who were willing to act in this capacity, should notify their willingness to the House, and that they should be selected from the list so formed by the general Committee for the particular cases which occurred to require them. At the same time he would have it understood by those parties, that whilst the House was willing to pay them liberally for their services whilst the occasion for them lasted, its connexion with them ceased with the occasion, and that the House was at full liberty to choose where it pleased on all subsequent occasions. With regard to a court of appeal, to ratify or dissent from the decisions of the general body, he thought there were such objections to this tribunal, that it ought to be avoided unless it was found absolutely necessary, or unless the points in dispute were of too grave a nature to be left to the determination of a single judge. These were the general principles on which he supposed a tribunal might be constituted within the walls of Parliament, free from the objections which applied to that which at present existed. He should have no attendance of Members on the ballot. He should exclude the operation of chance. He should have a preliminary Committee, 293 fairly selected from those sitting in the House, who should have the benefit of a legal adviser, who might regulate their decisions, in a manner not only consonant with justice, but in such a way as to insure satisfaction on the part of the House. He should also insure on each Committee the presence of a competent number of Members experienced in the forms of the House, and who should not be disqualified on the ground of ability and experience. He did not conceive it necessary to trouble the House with any further suggestions in addition to those he had already stated, and which were exclusively his own. The bill of the hon. Gentleman contained many of the objections which applied to the present system. It was defective as to the initiatory proceedings, which were left by it under all the influence of party excitement; because there would continue the same motives, the same manifest interest for each party, to attend in as great numbers as possible. And, on the whole, unless he saw some chance of remedying the main defects of the present system, by some course fundamentally different, he could not see any advantage in a change merely providing for subordinate defects. All the main objections to the present system remained in force against that which was now submitted, besides others of minor importance, which peculiarly applied to it. With respect to the appointment of an assessor, he thought it of so much importance that adverse litigant parties should both choose a tribunal for the decision of their disputes, that he would invite them to an agreement on this point, and do all that could reasonably be done to effect that object. And when he knew how often parties coincided in the appointment of an assessor, he could not help thinking that when the services of men of eminence were secured, both by the honour of the station and the ample remuneration which attached to it, there would be no great difficulty in getting adverse parties to agree to an assessor. It was a sound principle of jurisprudence generally acted on, that when litigating parties could do so, they ought to adopt friendly arbitration. These were the suggestions which he thought it right to offer, after having given the subject the best consideration which he could, and which, at any rate, were not founded in any lurking desire to secure advantage to party. "I do feel," said 294 the right hon. Baronet, "that the interest and honour of the House are concerned in the amendment of this system. I do believe, that the interests of justice are involved in its amelioration, and I am satisfied that this House which professes to be governed by principles of honour and integrity, must necessarily entertain the strongest desire that any tribunal appointed to decide controverted elections, shall, as far as possible, partake of that integrity, and honour, and be free from the imputation of partiality."
had hoped, that the right hon. Baronet, instead of offering suggestions, would have proposed that this bill be referred to a Committee, where it might be deliberately considered. He was quite free to admit, that it was impossible to discuss this question in a more suitable tone and temper, or with greater ability than had been displayed. It was impossible not to admire the way in which the subject had been opened, and the total absence of anything like party feeling which had been observed by the right hon. Baronet. The right hon. Gentleman's mode of discussing this question showed that they had arrived at the first stage towards appointing such a tribunal as would ameliorate the system. The right hon. Baronet clung much to retaining the jurisdiction in the House; but yet he was compelled to seek extrinsic aid, and whether that should be through the instrumentality of an assessor to advise, or a judge to determine, they had now, for the first time admitted, even by the advocate for retaining the power of decision in the House, the necessity of some additional aid for the purpose of obtaining justice. Let it then, be recollected, that the principle of extrinsic assistance was admitted, and that other individuals, besides the Members of the House, were called on to aid in this proceeding. For his part, he was of opinion that this bill should be referred to a Select Committee, with instructions to consider the operation of the Grenville Act, and to suggest a remedy for the present evils. That was the plan which he meant to propose; that was the motion with which he meant to conclude the few observations he should address to the House. He thought they should have this question deliberately considered in Committee in all its bearings, particularly when it was once admitted, that something additional was required for the proper trial 295 of election petitions. Whether it was safe and wise to adopt any external aid was the question; for he did not think it was proposed by anybody that the jurisdiction should be taken altogether out of the hands of the House. As for himself, he was sure he had never dreamed of any plan which did not include a superintending Committee, to determine upon what should be the merits tried by other tribunals. As it was once admitted, that some extrinsic aid was necessary, let them see whether the objections to trial by jury with the aid of a judge, were perfectly well founded. The right hon. Baronet had said, that there were two questions of law which entered into the trial of election petitions; one was the Parliamentary, and the other, the statute and common law. The tribunal which was guided in its decisions by the statute and common law, was perfectly competent to the trial of controverted elections: for most of the titles by which they sat there, and the greater part of the franchises of those who sent them, were such as were recognised by the statute law. The construction of the statute law belonged emphatically to the ordinary tribunals of the country; and a more clumsy tribunal than a Committee of that House, not consisting of lawyers, could not be chosen for the adjudication of questions under the statute law. The next objection to any change was the totally undefined nature of the parliamentary law. But if it were undefined at present, it should be made defined; and if it were undefined, was it not clear that the tribunal which was a bad one to decide upon the construction of the statute law must be infinitely worse when called on to decide a law not defined at all? As to the undefined nature of the parliamentary law, that was an additional reason for taking the adjudication of election contests out of the present hands and placing them under the jurisdiction of the judges, who were in the habit of investigating what was often not more completely defined in some of the evolutions of our common law. But then it was said, that the jury might participate in the bias which existed in that House. True; but let it be recollected that this bias might be effectually obviated, because he intended that the original committee of eleven should ultimately report and declare the sitting Members. So that particular questions might be determined on for the 296 decision of trial by jury, which might be of light consequence in relation to the ultimate right, and would take away from the power and strength of the bias to a particular party. Of course he intended, that the jury should act under the guidance of a judge, and should continue to observe the principle of unanimity. Whatever might be the result of his expressing the opinion, he should certainly leave the legal tribunals the same power of setting aside a verdict in these questions as they had in any way whatever. He believed it was understood at the time he made it, though it might not now be recollected, that his proposal was, that a committee of five should be chosen by the Speaker to determine the issues to be tried between the parties; that these should be sent to the Court of Queen's Bench (of which court he made choice), and that they should be tried as near as was consistent with impartiality to the place where the facts arose. For example, he should have the questions on Irish petitions tried in the nearest county to that from which each emanated, and in which the judges thought there might be the most impartial trial. He did not now enter into details, and had referred only to a portion of a plan which he might submit to a committee, but which could not be satisfactorily discussed by the whole House. Having met the two objections stated by the right hon. Baronet, he came now to the statement, that the trial of issues by a jury would require too great an expenditure of money, and too great a number of jury decisions. Now, he asked, what was the state of the law at present with regard to a scrutiny? Look to the former Dublin election petition. The Committee sat ninety-two days; it decided 537 separate cases, and the examination of witnesses lasted eighteen months. Now, he ventured to say, that if a classification were made of those disputed cases, separate costs charged, and a jury appointed to try their merits, they would be reduced to a very small number. At all events, nothing was more vexatious than the length, or oppressive than the expense, that the parties were exposed to at that time. When they talked of improving these tribunals, and of the impropriety, or at least the unwillingness, to take these questions out of the jurisdiction of the House, let him ask, could anything possibly be worse than the present system? Was it possible even to imagine anything 297 worse? He did not mean to express his own opinions in terms of harshness. What they were was tolerably well known; but he appealed to the opinions of others, and asked, could anything be more afflicting than the general opinions of those tribunals? In one of the public prints of that day the conduct of the Hull Committee was descanted upon. The gentlemen comprising it were said to be either dishonest or imbecile. Yes, they were left another alternative—of being both. On the contrary, the conduct of the committees in the Shaftesbury and Belfast cases was dwelt upon by journals of the opposite politics, and certainly the powers of language were tolerably well exhausted as to the manner in which these two tribunals were conducted. He did not say, that these things were well founded: he was satisfied with a neutral expression of opinion, and did not decide either way; but he did say, what a horrible example was held out to the country of the first gentry of England being publicly stigmatized in the strongest language which could be used—of being charged with partiality, and with, of course, violating their oaths! Let it not be forgotten that in a few months these gentlemen sat as magistrates, and condemned felons, pickpockets, and rioters; they also fined and imprisoned without the intervention of a jury. Was it clear that there was no vilification in the judges themselves? Of what weight were their sentence and condemnation, if the public took up the opinions of the public writers published at both sides, and entertained generally or universally, namely, that they totally disregarded the sacred obligation of an oath, and that their decisions, even with the sanctity of an oath, originated in, or were governed by, nothing so much as party violence? This situation of things ought not to remain; they ought not to be liable to that rebuke. They ought one and all to endeavour to get rid of such an abuse, and the more so when they reflected in how few instances the decisions of committees were not in accordance with the opinions of the majority of its members. Take the Election Committees this Session, first and last, and see in how very few instances it had happened that except a man had a majority in the committee of the same opinions with himself he had a decision in his favour. They ought to be in haste to get rid of such an imputation. It was true, that 298 the Grenville Act worked well for awhile? Why? Because a few votes made no substantial difference to parties when it first became a law. A ministry did not then depend on twenty-five votes; and party spirit did not enter into their proceedings, because there was no adequate motive to arrive at wrong decisions, except, indeed, where the right of voting in particular boroughs determined a question of property to the amount of 60,000l. or 70,000l.; and they would find, that in those cases the decisions of Committees were impeached by writers of the day and in speeches in that House, almost as much as they were at present; though in the former instance there was the chance of correction by appeal to a second Committee before the right of voting was finally decided. For a length of time there was not, in any other case, an adequate motive for a wrong decision; but the time had arrived when the actuating motives became powerful and cogent, and they now found, accordingly, that in proportion to the cogency of the motive, the suspicion as to the fairness of these decisions was strengthened, and obloquy and reproach cast on the conduct of Committees. If he had said anything which might be considered harsh as to the particular Committees to which he had referred, he begged to state distinctly, that he did not speak from his own observation, but dwelt upon a historical fact publicly canvassed. It was said, if a Member had six of the same views with himself on his Committee he was safe, whilst he who had but five was sure to be defeated. Now that result—that the merits of the case should be exactly proportioned to the opinions of the majority—could only be brought about in two ways, either by a miracle or by corruption. When the term corruption was applied, of course nobody meant pecuniary. The present tribunal could not then continue. Why? Because they had not the material with which to continue it. They could not in that House find persons who were totally free from party violence; at least there were not as yet any persons who had shown themselves to be so exempt. And what magic was there in the number seven or nine that was not to be found in the present number of eleven? The selection was to be made from the same materials, and the mischief was only to be given another shape. Would there not be the same liability to complaint? Were not 299 men as solemnly sworn now as they could be then? Were they not now placed as much under the obligation of an oath as they could be then? What advantage, therefore, could it be to make a different selection? or if they determined to do so, let them come to the resolution after full deliberation. He admitted, that much might be done in accordance with the suggestion of the right hon. Baronet for defining the rights of election by codification, and making mandatory declarations as far as it could be done by phraseology in a particular way. There were some points which certainly admitted of being reduced to certainty; for instance, whether the registry should be opened or not. There were Gentlemen who were as pure and honourable men as could be found on the face of the earth who had decided this Session, over and over again, that the registry should not be opened, and Gentlemen equally respectable were of opinion that it should be opened. They could codify to a considerable extent, but there was an undiscovered region which lay beyond codification, and in which the question of construction must arise. So that when once party bias prevailed, however they made the law, they must, however reluctantly, include another ingredient in the composition of these tribunals. A great deal might be done by determining of what the franchise should really consist; by making the registry conclusive, and forming a tribunal of appeal. Take the French law. In France, the right to vote was determined by the jury-list. It having been decided that a man had a right to be placed on the list, any person might appeal to the superior courts to have him struck off, or he himself might appeal if he conceived he had a right to the privilege, though not included in the list. No question could, by possibility, arise afterwards. In this country, many improvements might be effected in this respect; and if it were for nothing but to take away the temptation to bad judging and the opportunity for wrong decisions, it was perfectly right and absolutely necessary that the franchise should be strictly defined, and that a proper decision on a voter's right should be conclusive. But even after they had taken every precaution of this description, were not facts in every case the subject matter for the adjudication of such a tribunal as that intended? It was folly to go into the registry without 300 trying the question of the value of the landlord. And what a cruel hardship it was to bring over from Ireland six or seven witnesses to prove, that a ten-pound voter was entitled to the franchise! There was also the case of bribery again; describe it in as accurate terms as they could, it must be left to a construction of law and to trial of fact. Who was the witness that ought to be credited how far his knowledge went, how he comported himself? These were points which none but an impartial jury (if it were possible to be found) could decide. It was impossible, then, so to arrange any law as not to leave a great deal to the discretion and opinion of the Committee itself. He should not further detain the House. Everything which had fallen from the right hon. Baronet ought to be the subject of inquiry, not in a conversation across the table, but in a Committee, where the opinions of each Member might be compared and sustained by him who introduced any proposition to be considered. He should conclude, by moving, that the bill be referred to a Select Committee, with "an instruction to the Committee to inquire into the operation of the laws regulating the trial of Controverted Elections, and to report such alterations and amendments as may be best calculated to correct existing evils."
§ Mr. C. Buller
was anxious to state his reasons for considering the Bill which he had introduced as a proper remedy for the evils which they all lamented. He should first deal with the amendment of the hon. and learned Member for Dublin. It seemed to him to be a most extraordinary amendment as a mere matter of form, for the hon. and learned Gentleman wished the Bill to be referred to a Select Committee, not to examine it and report on its details, but to do over again the work of the Committee from which the Bill had emanated, and to strike out a new plan. The House, he was sure, would not consent to such a mockery of their own proceedings. The plan of the hon. and learned Gentleman was very simple, and at the same time very extensive, and he was glad the House was afforded by it an opportunity of deciding on the question of transferring the jurisdiction of that House to the ordinary tribunals of Westminster Hall. He was exceedingly glad that the right hon. Baronet (Sir R. Peel) had come to his assistance; and though he was rather afraid, from some observations 301 which the right hon. Gentleman had made, that he was about to take a contrary course, he was glad that on mature consideration, and in accordance with the Conservative principles which he professed, he had determined to resist a proposal which involved a most rash and dangerous innovation. He might thank any one for this, but particularly the right hon. Baronet, for the part which, with his station, interest, and character, he had taken on himself in commencing the debate, and giving to it a tone of calm deliberation and perfect freedom from party favour which he hoped would be adopted by every body as successfully as he should do his utmost to imitate it. The only thing he had to complain of with regard to the plan of the hon. and learned Member for Dublin was, that he had not gone into such details as would prove its practicability. The hon. and learned Gentleman inveighed against that House; he argued that the functions of Committees should be transferred, and that trials should take place by judge and jury of the disputed questions which came before the Committees of that House. He told them, that the judges were to get an impartial jury in some county near the place where the facts arose, but where this happy county was, to which they were to transfer their jurisdiction was one of those important details which he had kept out of their consideration at present, and which he supposed he meant to reserve for the Committee up stairs. There were only two plans submitted to the House which contained any semblance of plausibility. One was the appointment of a judge by the House, to whom all cases should be referred. It was argued in favour of this proposal, that there was no danger in giving such a jurisdiction, because the judge being nominated by the House, would take care not to interfere with its privileges and independence. But the objection which he had to this plan was, that such a person would be the nominee of the majority when he was appointed, and then his decisions would not be satisfactory to the party in the minority. Or if they were, suppose the appointment to last without such a majority existing in the House, it would be impossible that the majority which then prevailed, could consent to have their privileges sacrificed at the dictates of one whom they considered the nominee of a former majority, and who represented the interests of the present minority. It was very important that judicial establishments should con- 302 form to the general principle established for the adjudication of disputes, and in this country no one could doubt the general partiality for trial by jury. But then, they could not know precisely what machinery was to be supplied for distinguishing in these new tribunals between law and fact. Would they adopt the artificial and laboured system of pleading used in the courts. Was there any reason to believe, that in respect to Parliamentary cases the ordinary tribunals of the country could get rid of party bias? Again, had they any reason to hope they could find a set of country gentlemen who should be either above party bias or the suspicion of it? He confessed he was somewhat surprised to hear the hon. and learned Member for Dublin, who certainly all his life had not spoken in the highest terms of the ordinary tribunals of justice, propose that the trial of controverted elections should be added to their other duties. He had some experience of the proceedings before the courts of law, and he never yet knew of any case at all touching upon political matters in which both judge and jury had not their decision attributed to party motives and bias. At the assizes nothing was more common than to hear the counsel and solicitors in such cases asking each other what were the politics and opinions of the judge and jury, clearly proving that it was at least as much to these as to the pure merits of the case they looked for the verdict. He would be the last to deny to the judges of Westminster Hall the possession of a high character, but still he must say, that whenever in their official duties they came in contact with politics, their good character, more or less, became tarnished. How far, he asked, did the opinions of the judges as to the law of libel and high treason agree with those of the public? The opinion was rife throughout the country that the Tory judges stretched their authority in such matters to the disadvantage of the people. But in respect to the particular point under consideration, the House was not without some practical experience of the disadvantages arising from letting the judges interfere in election matters. In Ireland at the present moment the judges did so interfere, the Act giving a power of appeal from the decision of the revising barristers to the judge of assize. Now he had heard it stated in that House—he believed it was by the hon. and learned Member for Dublin—that there were ten Tory and two Liberal judges in Ireland, and that invariably, in all poli- 303 tical matters, the decision of these judges bore the impress of their party feelings. The question of value was a very important one in registration matters. It was the interest of the Liberal or popular party to have it rated very low; while with the Tory party it was, on the contrary, a desirable point to have it set at a high rate. It all but invariably happened, that when this question was mooted in Ireland the ten Tory judges decided with the Tory party, and the two Liberal with the Liberal party. But even supposing the decision of the judges to be correct, so high did party feeling run in the country, that in every case it was to be apprehended, the unsuccessful party might impugn, and as the purity of the judges in the eyes of the world ought to be the peculiar object of the Parliament, he should fear the experiment of giving them authority over party questions. He should now wish to make one or two remarks upon the plan suggested by the right hon. Baronet; although his doing so without having had time to consider his somewhat complicated suggestions might appear presumptuous. The right hon. Baronet had stated some great defects in the construction of election committees. The first referred to the mode in which the Members who had to sit on election committees were collected together—he meant the process which, in Parliamentary phraseology, was termed "whipping a committee." He quite admitted, this was an evil well deserving general attention, and though he might be liable to the charge of doing nothing specifically in his bill to remove it, he thought it was not likely to come into play as obnoxiously under his plan as it did at present. The matter had not escaped the attention of the Committee from which his bill emanated, and the plan they suggested in this respect was the following one:—They proposed, that the selection of the Members to serve on a Committee, should not be made to depend on their attendance in the House on the day of its nomination, but that a Member might be named in his absence, and that once named, he should be obliged to serve. Not, however, to keep Members unnecessarily in town, it was proposed to divide the House into panels of sixty each, and the Committee should, in turn, be selected from one or more, of those panels. He had not shrunk from proposing to include this plan in his present bill, from any aversion to it, but simply from the inability he found, to get all parties to agree to the 304 various propositions into which the measure of necessity divided itself. One objected to one part of the Bill while assenting to others, while another made that very obnoxious point, a sine quâ non; and thus, in his inability to meet the wishes of all parties, he found himself compelled to limit the measure much more than he deemed expedient, or originally contemplated. Secondly, in his list of the defects of the present system, the right hon. Baronet placed the selection by chance. This was the only point of principle on which he found it impossible to agree with the right hon. Baronet, and simply for the reason that it was incidental, not only to the jury system, but every other system by which it was attempted to counterbalance the evil of permanent judges. If they should determine upon adopting for Parliamentary cases, anything like the jury system, or indeed if they did otherwise than leave the power of absolute decision to the judges, they must, of necessity, retain the system of selecting by chance. The right hon. Baronet further objected to anything like striking. This also, he feared, could with difficulty be got rid of. He willingly admitted, that the present plan of striking was the very worst that could possibly be devised. The chief evil, however, he proposed to obviate by providing, that the party striking out a name, should not know the name that followed, so that each party would be forced to object only to those to whom there was some real substantial objection. He now came to the point of assessors. Upon this head, there was one great point of difference between the right hon. Baronet and himself. They both agreed, that there should be assessors to guide the inquiry, but they differed as to the manner in which they should be selected, and more important still in regard to their permanence. The right hon. Baronet said, that accordingly as an assessor was required, some gentleman should be selected from the bar for the purpose. By the adoption of such a plan, no fixity would be given to the law; and, on this ground, if on no other, he objected to it. What he proposed was, to establish a tribunal of three assessors, to consist of gentlemen whose names, characters, and opinions, were known to, and appreciated by, the public. This tribunal he proposed, should be permanent, the great value of the judicial system being, in his opinion, the permanence of the judges by whom it was put into operation. This principle would be 305 lost by the adoption of the right hon. Baronet's plan. According to it, assessors were to be named by a general committee, accordingly as they were required. Now, suppose an arbitrator thus casually selected, were to give a wrong decision, would it not be said by the great body of the public, not that he had given a false or captious decision, but a too honest decision. Again, what security would they have that they could at all times procure the attendance of a competent person to act as an assessor? Every one seemed to agree, that some legal knowledge was very necessary for every legal tribunal. But could they, if they adopted the plan of the right hon. Baronet, at all times depend upon the services of barristers of sufficient eminence and attainments? But it was urged as an objection to his proposition for a permanent tribunal, that as these assessors would only be required for one Session out of seven, the country would be paying them during six Sessions for doing nothing. To this he answered, that he would prefer paying seven times for permanency than have such important matters intrusted to judges hired by the job. But he confessed he thought the exertions of Parliament might be directed to much more important matters than the selection of the judges. He thought they should, in the first instance, address themselves to the simplifying of the law of Parliament. If they did this, they would clear the road of many of the difficulties which stood in the way. He did not go so far as to say, that simplifying the law of Parliament would enable them to do away with the necessity of having a good and competent tribunal to decide upon election matters; but still, if properly done, many of the difficulties of the matter would be removed. Again, if the vote by ballot were enacted, full nine-tenths of the election committees would be done away with. This was an argument which had often struck him as in favour of that measure. If they had vote by ballot, election committees would be confined to cases of qualification, riot, or undue influence on the part of a returning-officer. But to return to the difficulties likely to be experienced in the appointment of the assessors. If the House were to take these assessors from the bar, they would either not get competent persons, or have to pay for their services very enormous salaries. His opinion was, that they should not go out of the House at all for these assessors, but from their own Members ap- 306 point permanent chairmen of committees. There was one other point to which he desired to address an observation, and that was the reduction in the members of the committee. The right hon. Baronet (Sir Robert Peel) seemed to think seven was the proper number. His (Mr. Buller's) impression was, that they should have just sufficient Members on these committees to keep in check the decisions of the permanent assessors. He was not at all disposed to concur with those who imputed to Members of that House either a wilful disregard of oaths, or a wilful determination to upset justice; but he believed, that election committees were very often misled by their ignorance, of what in reality constituted Parliamentary law. His opinion was, that they could get no where better materials for an honest and impartial jury than within the walls of that House; all that was required, was to instruct the Members in the law, and to make them responsible to public opinion. The first of these requisites would be obtained through the medium of the permanent assessors, and for gaining the second he should propose giving to the proceedings every possible publicity. He had, in conclusion, but to thank the House for having so long listened to him. Whatever plan they might choose to adopt, whatever act it might please them eventually to pass, whether they should decide to throw out his bill, or refer it to a Select Committee, he begged to assure the House he should feel perfectly content with their decision. He naturally should prefer to see his own measure adopted; but, under any circumstances, it would be a source of the greatest satisfaction to him to be able to reflect hereafter that the House of Commons, in consequence of his having proposed the present measure, had adopted a law to remedy evils which, in his opinion, it concerned both their public and private honour to remove as speedily as possible.
§ Mr. Gibson
observed, that the existing evil was admitted by the House and complained of by the country. But what were the alleged grievances complained of out of doors? First, the general incompetence of the tribunal. It was asserted, that hon. Members were placed on Election Committees who were destitute of the knowledge and ability to decide on the question before them. The second alleged grievance was, that party feeling prevailed over justice in the decisions of the Election 307 Committees. The third alleged grievance was the uncertainty of the law upon the subject. How did the hon. and learned Gentleman propose to meet the first objection, and to render the tribunal more competent? Simply by furnishing the Committee with the assistance of a barrister of seven years' standing; leaving the Committee, however, the power of deciding contrary to his suggestions. Would that be a sufficient aid to Members of the Committee to enter into nice disquisitions into the matters brought before them? If not, the Committee would be still incompetent. He was inclined to think that in many cases hon. Members would be fortified in their own opinions by the adverse opinions of the assessor, and would determine in contradiction to him. Then, as to the second objection, namely, that party feeling governed the decisions of Election Committees, how did the hon. and learned. Gentleman propose to remedy that? By reducing the number of the Members of the Committee. Now, he did not believe that the integrity of a Committee would bear an inverse ratio to the number of Members of which it was composed. It had been said by some hon. Members, that satisfaction would never be given to the public on this subject until the matters in question were referred to the decision of some tribunal not composed of Members of that House. They might be said to be at present removed from the jurisdiction of the House. When they were referred to the consideration of a Select Committee, from whose decision there was no appeal, that Committee became independent of the House, and the jurisdiction on the subject was entirely removed from the House itself. Mr. Fox opposed the Grenville Act on its introduction; on the ground "that to adopt it would be to abandon all the powers and privileges of the House with respect to the election of their Members." To him it appeared that the proposed creation of a tribunal for the purpose of three judges, acting under the direction of the Speaker, would by no means be advisable. At the same time, when the finality of the decision of the existing judicature on the subject was considered, when it was recollected that a motion for a new trial might set aside the verdict of a jury or a writ of error the dictum of a judge, when it was remembered that from the decisions of all the courts there was an appeal to the 308 House of Lords; and when it was considered that, from the determination of an Election Committee, there was no appeal whatever, this finality rendered it a bounden duty on the house to endeavour to imbue that tribunal with the spirit of wisdom and justice, so that its decisions might be received by the country with deference and satisfaction.
§ Sir William Follett
was of opinion that the question was one of great difficulty, and that it would be impracticable to decide it satisfactorily until more time was given for its consideration. He was not aware, until recently, of the nature of some of the propositions made upon the subject; and he was, therefore, not at present competent to give an opinion upon them. He hoped, therefore, the plan which his noble Friend, the Member for North Lancashire would, he trusted, propose might be adopted; namely, that of referring the whole of the law on the subject to the consideration of a Select Committee, with a view to the framing of a declaratory law respecting it. In fact, he considered the House in rather an embarrassing situation on this point. Several propositions had been made to the House. In the first place, his hon. and learned Friend, the Member for Liskeard, wished that his bill might go on, still thinking that it might be so improved as to be made available to the purpose for which it was intended; a point on which he (Sir W. Follett) differed from him. Then there was the proposition of the hon. and learned Member for Dublin, which was, to refer the consideration of his hon. and learned Friend's bill to a Select Committee, for the purpose of proposing in that Committee a plan of his own, by which certain issues in cases of controverted elections should be directed to be tried by the ordinary legal tribunals. Finally, there was the plan of his noble Friend, the Member for Lancashire, which he hoped his noble Friend would bring forward, and for which he should certainly vote. He would proceed to make a few observations upon these several plans, and especially on the first two. He differed in opinion from his hon. and learned Friend, the Member for Liskeard; but he thought his hon. and learned Friend was entitled to great credit for his efforts to amend the existing state of things in this respect. The subject was one, however, which required very deliberate consideration, and he was sure 309 that no hon. Member would pronounce an opinion in favour of any proposed alteration until he was perfectly satisfied that it was one which ought to be made. The hon. and learned Member for Dublin had observed, that even if the existing tribunals for the determination of contested elections were not so bad as he really believed them to be, yet that the universal dissatisfaction which those tribunals gave, and the general impression that justice was not done by them, were sufficient reasons for making an alteration in the system. Now, whether or not, it was practicable for the House of Commons to keep the jurisdiction with respect to their own matters appeared to him to be a matter of considerable importance. At the same time, he confessed, that he did not feel the objection in a constitutional point of view to removing the trial of contested elections from the House of Commons which was entertained by his right hon. Friend, the Member for Tamworth. He readily admitted, that his right hon. Friend had stated in a most forcible manner his opinions on that point; but he owned that he could not quite agree with him. He could perfectly understand the precedents to which his right hon. Friend had adverted; and was quite aware of the disposition which that House had evinced to resist the encroachments of the Crown, and to resist any attempt to authorise the Lord Chancellor, or the Court of Chancery, to decide upon the contested returns of Members. In such cases, he could suppose the House saying, "The Crown has no right to interfere with our undoubted privileges, or to deprive us of the power of deciding on matters having reference exclusively to our own body," and he could suppose the House resisting all interference on the part of the Crown, and persisting in retaining inviolate all the rights and privileges they enjoyed, and resisting, on constitutional grounds, every effort at encroachment on the part of the Crown. He could understand all that, and he thought the House and the country were deeply indebted to their ancestors for defending against the Crown the constitutional privileges of Parliament, and preserving from the danger with which they were threatened the rights and authority of the House of Commons; but no one could say that any danger to the constitutional rights of Parliament now existed, or that there was any fear of 310 encroachment on the part of the Crown. No such danger now existed, and the only question now to be decided was, what was the best tribunal for the trial of controverted elections? Even in the early times to which his right hon. Friend had alluded, and when the House was struggling for its liberties against the power of the Crown, the House of Commons soon found, that it was incompetent to act as a court of justice for the trial of disputed elections. Those trials exhibited mere party struggles, and were decided by a party majority. All the evils now complained of, existed at the period to which his right hon. Friend had alluded, and the House soon found it necessary, for its own character and honour to part, to a certain extent, with its jurisdiction, which was deputed to Committees selected from the whole body. He, however, wanted to know to what extent those favourable to the appointment of another tribunal wanted to confine the power of that tribunal, for if he had understood what had fallen on a former occasion from the right hon. Gentleman, the Chancellor of the Exchequer, that right hon. Gentleman had expressed his approbation of a measure, taking from the House all questions arising out of controverted elections, and making the decision of the barristers appointed, final and conclusive, even in regard to the elective franchise. Was not that abandoning one of the most important privileges of Parliament? and yet they now shrunk from allowing disputed elections to be decided out of that House. He could agree with those who saw great difficulty in getting a proper tribunal, but he could not agree to the proposal, and he never would consent to it, that controverted elections should be sent to trial like ordinary disputes. It was not so far as the judges were concerned, that he objected to such a proposal, for he was convinced that they could be trusted, and, that in every case they would act honourably and honestly; but he objected to such a plan, because he did not believe they could get an impartial jury. Those persons who might be selected to fill the jury box, were just as likely to be influenced by party feelings and party prejudices, as the Members of the House of Commons; and in times of great political excitement, most persons liable to serve on juries had party feelings and views, and on questions involving party politics, could as little be trusted, as Committees of their own body. 311 He therefore thought, that by sending disputed elections before juries appointed in the usual way, they could not get quit of the evils existing under the present system, and that such a plan could be no remedy for the grievances complained of. The difficulty of trial by jury, might, however, be got over; but he objected in the most decided terms to mixing up the judges of the land with party and political questions. He did most sincerely believe, that there existed throughout the country a universal feeling of confidence in the truth and justice of the decisions given from the bench, and he was persuaded, that the judges, while in the seat of justice, would act consistently with their high character, and would not allow their judgments to be warped by anything like party bias. He believed such feelings were universal; but if the judges were constantly brought into collision with party questions and party politics, he did not think, that the confidence of the country would long be continued, and he was sure that no persons would deprecate more any measure investing the judges with the power of trying controverted elections than the judges themselves. He therefore strongly objected to the proposal of the hon. and learned Member opposite. He objected to it because he did not think the proposed system better than that which now existed. He objected to it because he thought it was impracticable, or, if it was practicable, because, in his opinion, it would be a greater evil than that which it was intended to cure. Nor had he heard any other proposal yet made for the trial of controverted elections, out of the House, which was not, in his opinion, liable to the same objections. If disputed elections were sent to a jury, the jury was as liable to be influenced by party feelings as Members of that House; if they were to be sent before judges specially appointed, then the difficulty arose, who was to appoint the judges—in whom were they to rest their appointment? He did not know where they were to place the power of appointing the judges—whom they could appoint for that purpose above all suspicion of party feelings. He therefore did not feel the constitutional objection which had been urged by his right hon. Friend, the Member for Tamworth, against the removal from the House of the power to try disputed elections, for the House had never acted judicially without losing in character; but 312 he objected to the plans which had been proposed, because he could not find, out of the House, a more impartial tribunal, or one less likely to be actuated by party feelings. Let them, however, look at the plans which had been proposed, and let them see which of those plans was most likely to remedy the evils complained of. But in the first place, and in order fully to understand the merits of the different proposals, let them examine what the causes were which made the present tribunal so defective. He had already stated, that he was convinced the defects in the present system did not arise from corruption on the part of Members of election committees, or from a wilful determination to decide for party purposes, against the law, or against the facts detailed in the evidence taken before them. He was persuaded that no such unworthy motives actuated the Members of any Committee. But they appointed certain persons chosen by ballot, and without any regard to fitness, for the trial of certain difficult questions of law, which, in a great many cases, those persons were unable to comprehend. He hoped he might be allowed to say so much without offending any Gentleman who had been a Member of an Election Committee, because many questions to be decided by Election Committees, were of so difficult a nature that they required the most practical lawyers to understand them. Very nice questions of law had to be decided, arising out of controverted elections, and it was impossible, that a large portion of the Members of that House could fully comprehend them. The Members of Committees, puzzled with those points, and not knowing which party was right or which was wrong, gave their votes in favour of their own party, but not from motives of corruption, or from any wilful determination to act in opposition to the law and to the facts of the case. Such was his firm persuasion. Let them, then, see whether it was in their power to obviate this difficulty, and to provide a remedy for the evils in the existing system. And in the first place, he would beg to call the attention of the House to the fact, that the great outcry against the present system had arisen since the passing of the Reform Bill. He hoped the noble Lord opposite, (J. Russell) would pardon him for saying so, for it was undoubtedly true, that before the passing of that act, few complaints had been made against the existing 313 tribunals, whereas, since the passing of that measure, the complaints had become general. The reason was this, although the constitution of the Committees was the same as formerly, they threw upon the new and inexperienced Members, difficulties which were too great to be surmounted even by the judges of the land; they threw on the Members of those Committees, the difficult task of expounding three different Acts of Parliament, all passed for the same object—the extension of the franchise, yet each materially different from the other two. This difficulty would be rendered more clear if they would refer to what had taken place in the Court of Queen's Bench since the Municipal Corporations Bill had become the law of the land. In the Queen's Bench a very considerable part of every Session had been occupied in the trial of questions arising out of disputed clauses of the Municipal Corporations Bill: and although the decision of one judge generally regulated the decision of every other judge, when a similar issue was to be tried, yet so great had been the difficulties in the way of construing the different clauses of that act, that Parliament had been obliged to pass several declaratory bills to remove the difficulties in the way of the judges; or, in regard to the Reform Bill, take the question as to the power of Election Committees to open the registry, which had been alluded to by the hon. and learned Member for Dublin. A Committee in determining the question, had three acts before them, all passed for the same object, the one being for the purpose of ex-extending the constituency in England, another for extending the constituency of Ireland, and the third for increasing the constituency of Scotland. In construing these acts a person would naturally suppose that all being for the same object, the same meaning was to be attached to the similar clauses in each. But all the three bills were different. Each established a registry, and in England that registry could be opened; it might also, be opened under the Act for Scotland; but as regarded Irish elections, the opening of the registry was a point disputed. These doubts perplexed Committees, and rendered it difficult to determine what was the proper construction of each act. And what was the consequence? A petition was presented to the House, complaining of an unfair return; the Members were 314 summoned, a ballot took place; and when the Committee was appointed, and when it came to try the merits of the election, the first question which the Members had to encounter was, whether they had under the Reform Act, the necessary jurisdiction to enable them to decide the points at issue between the parties; and while they decided that they had not the power of opening the registry, another Committee in the adjoining room, came to an exactly opposite determination by deciding that they had the power of opening the registry. But that was not the fault of either Committee, for if there was any doubt at all as to the power of the Committee to open the registry—and after what had taken place, it was impossible to suppose that doubts would not arise—he could not see how such contradictory decisions should not be given. When, however, such contradictory decisions were given—when the strongest doubts existed as to the power of a Committee to open the registry, surely it was the duty of Parliament, by a declaratory bill, to define the powers vested in Election Committees, and to explain what the issues were they were at liberty to try. The same observations were equally applicable to other clauses of the Reform Bill, and equally contradictory decisions had been given on various other points which had come before Election Committees. If, then, a Committee were appointed, all those difficulties might be got over, and a declaratory bill might be passed, removing all doubts as to the meaning of the disputed clauses, and explaining satisfactorily the powers with which Committees were invested. In the course of a few years, all questions relating to the right of voting under the Reform Bill, would have been tried and settled in such a way, that disputes would rarely occur, and it was, therefore, highly important, that a declaratory act should be passed, defining the powers of Committees, and explaining disputed clauses. They would then remove, if such an act were passed, great part of the difficulties which now existed; but he would not say, that any declaratory act could entirely remove the evils which existed in the system. Such a supposition would be idle; but the proposal he had made would remove the difficulties which they at present felt, and tend to remove the present causes of complaint. He was persuaded that much might be done by the 315 adoption of such a course, and therefore if his noble Friend, the Member for North Lancashire moved for the appointment of a Committee with a view to the passing of a declaratory Bill he should feel it his duty to vote for the motion of the noble Lord, as he considered much good might result from the adoption of such a step. He would now state why, in his opinion, the Bill of the hon. and learned Member for Liskeard was useless for the object which the hon. and learned Gentleman had in view. The objections to the present system were the incompetency of the tribunals, and the party feeling which was supposed to operate in Election Committees. These were the two evils which were generally complained of. Had, then, the Bill of the hon. and learned Gentleman succeeded in removing them? Let the House look at the provisions of that Bill. In the first place, the hon. and learned Gentleman proposed to reduce the number of Members on Election Committees from eleven to five. In the second place, instead of the strike which was allowed under the present system they were to have a challenge in the House; and, in the third place, to obviate the want of legal knowledge in the Committee, the hon. and learned Gentleman proposed the appointment of assessors. With respect to the hon. and learned Gentleman's first proposal, he thought the reduction of the numbers was more a matter of opinion than of real importance, although he confessed he could see no good that could possibly result from reducing the numbers from eleven to five. To the other two parts of the hon. and learned Gentleman's proposal he was however decidedly opposed, because, instead of removing the evils complained of, the Bill would, in his opinion, aggravate them if the plan of the hon. and learned Gentleman were carried into execution. First, then, as to the strike. The hon. and learned Gentleman proposed, that the ballot should take place as at present, and that, instead of having eleven Members as now, they should only have five. Now the hon. and learned Gentleman said, that the strike gave a party character to the transaction and to the Committee, but did his Bill obviate that objection? No; the same evil remained exactly the same as ever. The plan of the hon. and learned Gentleman did not obviate the difficulties which existed with regard to the present 316 system; for if his Bill were passed, was it not probable that the assessors appointed by that Bill would be influenced by party feelings. But then, as to the strike, it was proposed, that instead of parties retiring to another room as at present, they should have the strike in the House in the midst of party excitement, and in front of the contending parties. Could such a proposal be carried into effect without adding to the party character of the whole transaction? Who was to challenge the appointment of any Member? Did the hon. and learned Gentleman suppose that in a crowded House, called together by the usual summons, and acting under the same feelings of excitement as at present, they would not hear such exclamations as, "Challenge this man or that—he is opposed to the party—don't therefore trust him?" Such language might not in the confusion be distinctly heard, but did the hon. and learned Gentleman suppose it would not be heard in whispers? And to what would such a state of things lead? Would not such a proceeding assuredly have much of an irritating character? Would not much of party feeling be displayed, and, therefore, instead of removing the evil which was now complained of, would they not add much to its intensity; and what was worse, they could not adopt such a course without giving rise to personal and offensive observations. If the hon. and learned Gentleman had referred to what took place in courts of law, he never could have proposed the adoption of such a scheme. There was a right to challenge a common jury in ordinary trials in those courts, but did ever any person hear of a juror being openly challenged in a court of law? There was a right so to challenge him, certainly, but it was a right never exercised, as it would be highly offensive both to him and to his companions. The practice was to give a list of the jurors to the officers of the court, the parties in the suit having put crosses before the names of the persons to whom they objected; and those persons the officer of the court abstained from calling. As to special juries, the usage in striking them was precisely the same as that which was resorted to with Election Committees in the House of Commons. Eight and forty names were put into a glass, and the superfluous number struck off in private. Suppose this was deferred until the special juryman came to the box, and he were 317 then openly challenged in the court, would not that be personally offensive both to him and to his companions? He would rather have no strike at all than the kind of strike recommended by his hon. and learned Friend. It was said, that the proposition of the Committee might work well. He agreed with the hon. Member for Liskeard that it might; but the only valuable part of that report was, that very part which was omitted in this Bill. He would now come to the question of the assessors. His hon. Friend proposed the appointment of three assessors, who were to have 2,500l. a-year each. These assessors were to have the power of appointing deputy-assessors, to act from time to time. By this he conceived that his hon. Friend was attacking the principle of his own Bill; because these deputy-assessors were only to act from time to time, and then they were to be heard of no more. How were these assessors to be appointed? Originally they were to be appointed by the Speaker, who was to lay their names on the table, and if the House disapproved of the appointments they were not to take place; and this was to go on without limit. That was the original mode, and that was the mode still, as regarded filling up vacancies, but not as regarded the first appointments. How, he would ask, could any appointment of an officer, who was to decide upon party questions, be more objectionable? He agreed with the observation made by his right hon. Friend (Sir Robert Peel) that it was not prudent to mix the Speaker up with any party question in that House. But these appointments would not be the appointments of the Speaker, but of the House of Commons, because the House might continue to dissent from the nominations of the Speaker until they had obtained appointments agreeable to their own desires. It was, in truth, vesting in a majority of the House, in case of any vacancy, the appointment of the assessors, who would have the control over election Committees. And this was the proposition of an hon. Gentleman who had declared that he did not consider the Members of that House could be trusted as judges on election Committees! Surely, if he could not trust hon. Members of the House to act on Committees on their oaths and on their honour, as judges, how could he trust a majority of that House to appoint, by their votes, the judges who were to preside over 318 those Committees? Hon, Gentlemen talked about the party nature of the existing tribunals; he would ask whether, by the proposed plan, they would not still have party contests and struggles in the House upon every occasion of making these appointments? The judges would necessarily be appointed by that party who had the majority in the House. He objected, therefore, to the proposed mode of appointing the assessors for the filling up of vacancies. But then consider the power of these judges. Because, after the establishment of all this machinery, and the payment of 2,500l. a-year each to the assessors, accompanied with other expenses, there ought to be something like an efficient tribunal. But these judges would have no legal power whatever. His hon. Friend had said, appoint the assessors first, and then define their powers. Well, what were to be their power? By a clause in the Bill they were to have precisely the same powers as a chairman of a Select Committee, except that they should not vote. Now, he would ask what powers the chairman of a Select Committee had at present? He knew something of those Committees, but he had never heard that the chairman possessed any power except the power of voting. He believed, that a chairman of a Select Committee had no power at all, not so much even as to order the door to be shut, without a vote of the majority to back him. The Committee had powers, but the chairman none. He was the mere organ of the majority. All the power he had was that of voting, certainly a very material power, and one of great importance in cases where the parties were equal, but that power his hon. Friend meant not to confer on the assessors. The power then which the assessors were to have was that of the chairman, except the power of voting, that was to say, none at all. Then, what did his hon. Friend propose should be the practice of the Committee as far as regarded the assessor? He required the assessor every time the Committee had come to a decision to state his own opinion upon the question; and then after the decision was come to, he required the assessor to state openly whether he assented to or dissented from that decision. How would this work? Suppose the Members of the Committee (as they might be) were equal, the assessor would have no power to decide the question at all, or to direct the Committee even upon 319 points of evidence. All the power he would have would be to act, as it were, in terrorem, or rather in verecundiam, by expressing his assent or dissent, and thus shame the Committee into a decision in accordance with his own opinion [Mr. C. Buller: Hear.] His hon. Friend cheered; did he suppose that a chairman, placed at the head of a Committee without any authority whatever, could influence or terrify the Members of that Committee, and compel them to decide (contrary to their own convictions) according to his opinion, and that, too, not an opinion on a matter of law, but of fact? He would tell his hon. Friend what would be the effect of this plan. It would not strike out the brains of the Committee; but it would influence everybody, if possible, to strike the brains out of the chairman; because, if hon. Members chose to have an opinion of their own, and to exercise their own judgment, they would act against the opinion of the assessor; but if they were not disposed to exercise any judgment of their own, why, then, any party who thought the particular assessor was friendly to his own view of the subject, would take care so to constitute the Committee that they should act under the control of the assessor. But what sort of influence would any such an assessor have, if there were any person of authority on the Committee? Suppose the Attorney-General or Solicitor-General were on the Committee, what sort of control, by authority or by the influence of shame, would the assessor have over either of them? The opinion of both those learned Gentlemen would have equal weight with the assessor himself. The influence to be exercised by the assessor would vary on every Committee. A Committee of strong nerves would disregard what was said by the assessor—a Committee of weak nerves would decide according to his opinion; and then they would have the same uncertainty prevail in the decisions of election petitions as that which now existed. These, however, were the whole of the substantial alterations which were proposed to be made in the formation of election Committees. He, therefore, would repeat his conviction, that these alterations would in no way tend to remove the evils of the existing system, but would very materially tend to aggravate them. When he first heard it proposed that there should be assessors, it struck him that they should 320 be persons of competent knowledge on questions of practice, of evidence, and of law; that they should have the power to lay down the rules of practice and of evidence, and to sum up the facts to the Members of the Committee, who would act in the nature of a jury, and to state what his view of the law was. He could not help thinking that if the House could devise any plan, free from objection in other respects, that should give such powers to the assessors, it would be a considerable improvement of the present system. But the assessors certainly should have the power of deciding points of evidence and points of practice, and be required to sum up to the Committee, and state their views of the law publicly and in the face of the profession. Still he could not help regarding the mode of appointing these assessors as a question of some difficulty. He was not at present prepared to say, whether it would not be better to have them appointed from time to time than have them appointed permanently. He would not, however, give a decisive opinion on that point at present. If the hon. Member for Liskeard proposed to go on with his Bill that night, he should not object to its going into Committee; but entertaining still a strong feeling in his own mind, that no very great advantage could result from it in its present shape, and having no hope that it would remove the evils complained of, he should consent to its going into Committee only with the prospect of seeing it considerably altered and amended. If the hon. and learned Member for Dublin persisted in his amendment, he should oppose it, because he considered it wholly unnecessary to refer this Bill to a Committee, after all the proceedings which the House had taken on this subject; and if the hon. and learned Member proposed to send cases arising out of controverted elections to the ordinary tribunals of the country, he should have a stronger objection to that course. He apologised for the length of time he had trespassed on the House, but the interest which he took in the subject must be his excuse. It was one of considerable importance, and it had always struck him, that it was one in which the honour and character of that House were more deeply concerned than in any other, and he was satisfied that nothing had tended more to lower that House, and the Members of that House, in the res- 321 pect of the public, than the present system of disposing of election petitions.
said, that there was only a single point on which he felt a disposition to differ from his hon. and learned Friend, and that point was as to the willingness which he had expressed to enter into a further consideration of the Bill of the hon. Gentleman (Mr. C. Buller), for he confessed, that he was in utter hopelessness of bringing that measure to the issue which the House desired to arrive at. Although the subject had been thoroughly exhausted, sifted, and probed to the very bottom by his hon. and learned Friend; yet, called upon as he had been by several Members of the House, he was desirous to take an early opportunity to express his opinion upon it; at the same time, from the peculiar circumstances in which the debate stood, he hardly knew whether he ought to enter upon the discussion at all. For upon the question of reading the order of the day his right hon. Friend (Sir R. Peel) took the opportunity of entering a little into the general question of preserving the jurisdiction of the House, or of transferring to the ordinary tribunals of the country that power which the House at present exercised over the controverted elections in election Committees; whereupon the hon. and learned Member for Dublin, following the right hon. Baronet, and commenting at some length upon the plan which the right hon. Baronet had incidentally thrown out, intimated his intention of moving, as an amendment upon the motion of the hon. Member for Liskeard (Mr. C. Buller), that the Bill before the House should be sent to a select Committee, not for the purpose, however, of improving the Bill, but of entering upon the consideration of an entirely new proposition. From that moment he had waited in vain to know what course either the hon. Member for Liskeard intended to take, or what plan the hon. and learned Member for Dublin intended to propose. This was the condition in which the House was placed by the conduct of that hon. and learned Member, who had since left the House. They were, therefore, debarred from going into a consideration of the Bill of the hon. Member for Liskeard, or indeed of any other measure; for they were discussing the whole question in the absence of the hon. and learned Member who had moved the Amendment. This he believed was 322 a case unheard of in the history of Parliamentary discussion. He had been waiting in order that the House might meet the question which, by implication, the hon. and learned Member for Dublin had raised: namely, "Would the House part with their jurisdiction, or would they keep it and endeavour to amend it in the best possible manner in their power?" He would not argue the question, because he believed every Gentleman must feel most strongly, if not upon constitutional grounds, at least upon practical grounds, the expediency and sound wisdom of deciding against transferring the jurisdiction of the House to another tribunal; at least not without having previously exhausted every possible means of rendering the present tribunal efficient for the purposes intended to be effected by it. He supposed, however, that the hon. and learned Member would not attempt to press the Amendment of which he had given notice; and in the absence of that hon. and learned Gentleman he hoped they might proceed upon the supposition that it was the desire of the House to search out every possible mode of retaining the jurisdiction in its own hands, and, so retaining it, of purifying the tribunal from those errors which were admitted to exist in it. It was some satisfaction to him—although he was unsuccessful in persuading the hon. Member for Liskeard to postpone his Bill—that the House came to the consideration of this question under infinitely more favourable circumstances than when it was first introduced. They now approached it when their decision could have no immediate bearing on pending interests, while they were at the same time about to decide upon the question with the great addition to the stock of their experience which had resulted from watching the operation of the election Committees which had recently been sitting. The evils of the existing system were admitted on every side. No one would attempt to disguise the object for which hon. Gentlemen came down to the House to attend the ballot for an election Committee; and that it was in the hope that by a full attendance they might obtain a party advantage. No one denied this; but the House would observe what, according to the doctrine of chances upon which all their proceedings took place, an immense importance it was to one party or the other to have a very trifling majority in attendance at the time 323 of the ballot. Suppose there were 170 on one side and 160 on the other; according to the doctrine of chances, this proportion made it almost a matter of certainty that the party having the majority of 170 in attendance would obtain a majority of six out of eleven on the Committee. He was not defending this system. All admitted the evil of it; he was only showing what a small majority of Members of one party at the Ballot it required to give that party an advantage. Why was it a great advantage? Because it was admitted that party bias would influence the opinions of Gentlemen in Committees, notwithstanding their best determination to keep clear of it, and notwithstanding their high feelings of honour as Gentlemen. According to the present system and the present law, questions must and would arise in the course of discussion in Committees having an immediate bearing upon the result of the election, and upon the decision of which party bias always had, and would have, an influence. He would remind the House of the manner in which this system had worked with reference to the Committees of the present Session. There had been twenty-six Committees up to the present time. How many of those Committees had reported against that party who shared in the opinions of the majority of the Committees? Out of the twenty-six Committees, twenty had decided in favour of the party who shared in the political opinions of the majority of the Committees. He would not say, whether these decisions had been on this side or on that side. He had abstained from mentioning the proportion in which the majorities of the Committees were on the one side or the other. But the result had been practically, that twenty out of twenty-six had decided in favour of the candidates who entertained the same political opinions as the majority on those Committees. A great proportion of these were Committees upon Irish elections; and there were but two of those Committees that had not decided in favour of the Member sharing in the political opinions of the majority. What inference did he draw from this? Did he draw the inference that Gentlemen would pay less attention to, or act less fairly on, Irish Election Committees? He drew no such inference. Hon. Members were the same on Irish as on English Committees; the 324 tribunal, therefore, was the same. But the conclusion which he drew was not so much that the tribunal was bad, as that the law was bad. His object was not to show what was the result where political bias was strongest and partiality greatest, but where imperfections and uncertainties in the law most extensively existed. With respect to Irish elections, the law was less defined upon disputed questions; and where the law was less certain, cases might fairly be argued on one side or the other, which could not arise where the law was well ascertained, and where there were conflicting decisions. It was in human nature, that an incompetent tribunal would give decisions in favour of that party to which the majority were politically attached. He, some time ago, stated to the House, that, in his judgment, it was not so much the tribunal as the law on this subject that was defective. He was happy to find, that that opinion had gained ground with Gentlemen who had turned their attention to the subject; and that it was the opinion of Gentlemen on both sides of the House, that the first step which the House ought to take was to appoint a Committee to examine into the practical defects of the existing law; the uncertainty of that law, occasioned by the conflicting decisions come to by the Committees, and the possibility of the House passing a declaratory act upon the subject. The hon. Member for Liskeard said, that he would not object to that course, but that he should object to its being made an amendment to his motion. That was an argument, the force of which he could not perceive. What he should propose was, that if a Committee were appointed, that it should altogether supersede the further consideration of the hon. Gentleman's measure. With regard to the provisions of that measure, he entirely concurred in the objections stated to them by his hon. and learned Friend (Sir W. Follett). He thought it would be extremely difficult to find Gentlemen of high standing at the bar who would, for the purpose of holding the office of assessor, abandon their profession; passing three or four years of their time in idleness, and devoting a portion of their fifth year to the overwhelming business of Election Committees; and, after all, not holding their situations permanently, but being removable at the pleasure of the Crown, or of a majority of the House of Com- 325 mons; and having the appearance of possessing great power, but really exercising little or no power over the decisions of the Committee. He did not think they would get Gentlemen of any standing to accept the office. According to the present system the chairman had the casting vote, which he might not be required to give in many cases, the number of Members on a Committee being eleven. But that number might, by circumstances, be sometimes reduced to ten, and then the chairman would exercise his right of giving a casting vote. But according to the proposition of the hon. Gentleman (Mr. C. Buller) the Committees would consist of only five Members, and which number might be reduced to four; but there would be no casting vote. Suppose a Committee to be reduced to four Members, and suppose that a resolution were proposed that A. B. had not been duly elected, and on a division there were two and two, the resolution could not pass. Then suppose that a resolution were proposed that C. D. was duly elected and ought to have been returned in the place of A. B., and the same four Gentlemen divide the same way—two against two—that resolution could not pass. By the terms of this bill the assessor, not having a casting vote, could neither declare that one Member had been elected, nor that the other had not. If he might be permitted, then (passing the bill of the hon. Gentleman by), to offer a suggestion as to the course which ought to be pursued, it would be the appointment of a Committee which should consider what decisions had been come to by the Committees of the House of Commons upon points of law respecting controverted elections, and inquire how far, by a declaratory enactment, it was possible to simplify such decisions for the future, and what further amendments might be made in the constitution of the tribunal for trying election petitions for securing a uniformity in the practice and law upon the subject of disputed elections. In his opinion, a considerable number of contradictory cases might be disposed of by a declaratory enactment in the first instance. For example, with regard to the opening and closing of the registry; with regard, again, to the question of qualification in Irish election cases. He would venture to say that much of the difficulty and embarrassment in which a Committee was now 326 placed with respect to Irish qualifications arose from the defective arrangement of the law, and from their not having a test of value in the first instance for the qualification of an elector in Ireland, as they had in England. He hoped that the law would, in this respect, be very speedily made uniform. Many other questions might possibly deserve consideration previous to the House taking any ulterior steps. But it was his strong conviction that a Committee which would inquire fully into the election law, which would bring to bear upon the question a large experience and extensive knowledge of the existing system, with a determination to deal with it in a spirit of candour and of fairness, and with an entire absence of all political bias, might, by a full examination of its working, lay down rules for the regulation of Committees in all future cases of controverted elections. He thought the Committee of 1836 had committed an error, by coming to resolutions without a full investigation of the subject. They said that, knowing the existing tribunal to be defective, they would, without inquiry, take upon themselves to find a remedy. He would mention one or two cases in which party bias would necessarily guide men when they were called upon to decide a question, with a knowledge of the manner in which that decision would bear upon the interests of certain parties. Take the case of bribery; and then take the strict rules of evidence. There was not a more common question discussed by Election Committees than this;—whether they should first of all have a proof of the bribery, or in the first instance a proof of agency; and then call upon the party to substantiate the charge of bribery by fixing it on the agent. This was manifestly a case in which Members knowing how the decision one way or the other would influence the interests of the parties might feel a bias in deciding either, that agency should be first proved, or that bribery should. Again, with regard to the rules of evidence. Some stress had been laid to-night upon the question of a Member of Parliament being bound or not by the strict rules of evidence. Now, could any man conceive a case more likely to give scope to the operation of political bias in the decision of an Election Committee than this; that they were to decide on each case as it arose, whether the party should or should not adhere to the tech- 327 nical rules of evidence? Why, in one case, the technical forms of law and rules of evidence might be against the friend in whose case a Member was interested: but that Member might yet conceive, that the substantial justice of the case required that the strict rules of evidence should not be departed from. Still the practice admitted, that they might be departed from; nothing, therefore, could be more plausible than for him to insist that the strict rules of evidence might be departed from. On the other hand, it was perfectly open on the other side to argue, that in all cases they ought to adhere to the strict rules of evidence. This was a question very fit for discussion in a Parliamentary Committee—ought Election Committees to abide by the strict rules of evidence, or might it have the power to set aside all those rules for the purpose of admitting secondary evidence? It was at all events, a point which ought not to be left to an Election Committee to decide upon in each particular case. He was inclined to think, that, under certain qualifications, a legal assessor might be a very useful appendage to an Election Committee; but then he would have the duties of the Committee and of the assessor strictly defined. He wished to make the law certain. He would, therefore, confer on the Members of the Committee the power of deciding matters of fact, for which they were competent, and he would take from them the decisions of matters of law, for which they were not competent; and on the assessor, he would impose the duty of laying down the law of the case, of applying the strict rules of evidence, and of determining the course of proceeding to be adopted. In his opinion, the great partiality of Committees arose not so much on the points of law, in which they were not well versed, as upon the practical points having a direct bearing upon the case; these he would leave entirely to the discretion of the assessor, however appointed; and though he would not allow the assessor to charge the Committee like a jury as to both the fact and the law, he would oblige him to lay down the law and to sum up the facts, leaving the decision in the hands of the Committee. He thought that there would be no difficulty in finding competent persons to discharge the duty of assessors: he believed that there were at least a dozen Gentlemen at the bar perfectly competent 328 to discharge the duty who would accept the appointment, and before whom counsel would not press many of the points which they now urged, presuming on the Committee's ignorance of the law, and a sufficient number of Gentlemen might be appointed either by the Members of the Committee or with the consent of the parties whose decisions would give general satisfaction. These Gentlemen ought to be handsomely rewarded for their labours; they need not retire from the general exercise of their profession, and he doubted whether they should even be compelled to give up their practice before other Committees. He held it to be a great objection to the proposal of the hon. and learned Member for Liskeard, that he intended to withdraw the assessors from the active prosecution of their profession, but his suggestion would not be liable to that objection. Additional security might be given, because it would not be difficult on the requisition of either party, when the law or practice should have been ruled by the assessor, that his decision should be reported to the House, together with the report of the Committee. Having laid down the law in the individual case, a precedent might be established which might be confirmed or set aside by the declaration of the House of Commons. Another great objection to the bill of the hon. and learned Member was, that the decisions in one Committee would form no precedents for the future; and not only had he provided this difficulty, but he had also most ingeniously introduced a source for two conflicting authorities, which might be cited on both sides of the question by the next Committee; for whereas the decision of the Members of the Committee might be opposed to the opinion of the assessor, and in the succeeding Committee the counsel on one side would rely on the opinion of the assessor as a good legal opinion, whilst on the other side the learned counsel would argue that it was a mere dictum of the assessor which was unauthorised by the Act, that he had a great respect for the knowledge, the talent, and the ability of his learned friend, but the opinion was hastily come to, it had been set aside by the vote and the decision of the Committee, which decision had been confirmed by the House. The evil under the hon. and learned Gentleman's bill therefore was, that the decisions of Committees would be no precedent; but if 329 they imposed on the assessor the duty of laying down the law and the rules of evidence, and if the Committee reported to the House in each case that Mr. So-and-So had laid down such and such law before the Committee, and if the House did not interpose to declare it to be otherwise, the decision would have great weight with any other Committee on the same question. He did not, however, propose this as a plan; he only mentioned it as being worthy of the consideration of a Committee, and he thought also, that many of the practical evils to which Election Committees were subject, would find an imperfect remedy, if remedy it might be called, in the proposal of the hon. and learned Member for Liskeard, but that much might be done by declaratory resolutions upon some points of the law. He (Lord Stanley) was aware, that after the length at which the subject had been debated, he should weary the House by a further statement, and he would not have risen had he not been pointedly called upon to state his views. If the House should be of opinion, that the motion of the hon. and learned Member for Liskeard was sufficient to meet the difficulties of the case, he (Lord Stanley) would not interpose by proposing a Committee; but if, as his own firm conviction was, the House should think, that the proposal was quite insufficient, that it contained no one remedy for the crying evils of the present system, and that whilst it exaggerated some of those evils it disposed of none; then, when the amendment of the hon. and learned Member for Dublin should have been disposed of he (Lord Stanley) would move the further postponement of the consideration of the report on the present bill for six months, and after that motion should be agreed to, he would move that "a Select Committee should be appointed to investigate the cases of conflicting and questionable decisions before Committees of that House for the trial of Controverted Elections on points of law, or practice before such Committees, with the view of deciding how far declaratory enactments might simplify the law and render the decisions of such Committees more uniform and authoritative."
§ Mr. Sheil
must say, that it appeared that the plan of the right hon. Baronet, the Member for Tamworth, had been lost sight of; and after the beneficial reforms in the administration of justice which that 330 right hon. Baronet had introduced, he thought that any plan suggested by him merited the best consideration of the House. It would avoid all chance, and it would do away, firstly, with all strife; and, secondly, with the temptation which now existed to present petitions against the return of hon. Members to prevent their being on an election ballot. The only fault which he found with the plan as he understood it, was, that he did not learn, if there should be conflicting decisions, what process was to be adopted for reconciling them: but this was only a matter of detail. He thought that the plan was good; because, in the first instance, there would be a Committee elected composed of persons of high station in the House, whose characters would be at stake, and he supposed that the Committees chosen by them would partake of the high character which attached to those Gentlemen. Then, with respect to the assessors, it did not appear to him to be of any great consequence whether they were to be permanent or not; but all parties agreed, that there should be some assessor, and it struck him that the Speaker might be very safely and legitimately intrusted with the nomination. He (Mr. Sheil) thought that the right hon. Baronet's plan was the most practical and the most feasible which he had heard; imperfections there undoubtedly were, but all imperfection it was impossible to avoid. Now that excitement was strong, it was asked why there was more litigation than there had been; and it was said, that it was one of the consequences of the Reform Bill. It was not, however, the fault of the Reform Bill: it was the necessary consequence of three different measures of reform having been passed without the ample consideration of the details of their machinery. But parties also were more equally balanced now than they were fifty years ago, and there was consequently now more eagerness to go before the tribunal than there was previously. With respect, however, to the imperfections of the law what were they to do? The noble Lord proposed the passing of a declaratory act, but there were many questions with respect to Ireland on which there was little probability that they could agree. First there was the opening of the registry, next there were the municipal rates. Did the noble Lord remember, if not, he did perfectly well, that during the progress 331 of the Irish Reform Bill, he asked the then Attorney-General, Mr. Crampton, what municipal rates meant, and the reply was, that the subject was so clear that he would not offend the good sense of the House of Commons to give a definition. Again, the Government had, in the English bill, introduced a clause giving to the Committee the power of scrutiny, but they had given no such power in any clause of the Irish Act. He (Mr. Sheil) had asked for its introduction, but had not been successful. Then it had been ruled that a man of 5,000l. a-year arising out of an estate held on a lease for lives renewable for ever had not a sufficient qualification to entitle him to sit, and he had a friend who to obtain a qualification was obliged to swop one estate for another. Now, how were they to get a declaratory law upon these points passed? Or rather how were they to get it through another place? He would like the right hon. Member for Tamworth, who had made such excellent suggestions as to what ought to be done, to suggest also how they were to get any such bill through the other House. We (continued the hon. and learned Gentleman) contend that the registry is closed, you, that it ought to be opened; surely you will not propose to close it, and if you propose to open it, we will not consent. At least I suppose that the Government will not consent that it shall be opened: at any rate I will oppose it, and I am satisfied that no such thing will be done. Why should it be done? But I am afraid, Sir, that I am getting into party questions. Let me go back to the point immediately before us. Suppose that the House shall come to the decision by a majority of some twenty that a declaratory law shall be passed, and that the registry shall be closed, the Lords would reject the bill, and we shall be as much at sea as ever; and I am satisfied that no plan will pass, whether it be proposed by the hon. and learned Member for Liskeard, the hon. and learned Member for Dublin, the noble Lord opposite, or the learned Gentleman, the Member for Exeter; and I am equally satisfied that the difficulties of the Committees are nothing but difficulties arising out of the state of the law.
§ Sir Robert Peel
wished to be allowed to say one word, not strictly by way of explanation. It was entirely his own suggestion, which he mentioned to the House, but in the House of Lords he had under- 332 stood that the same thing was about to be adopted on Committees on private bills, which had the same defects as those of which this House complained, being open Committees, party canvassing took place, and there the same remedy was proposed. Hearing that such a proposal was under consideration, he had written to the Earl of Shaftesbury to know whether what he had heard was true, and his Lordship had replied by sending the regulations which it was proposed to make in additional Orders. Some of these were, that no opposed private bill should be referred to an open Committee; that every private bill, not being an estate bill, should be referred to a Select Committee of five Peers, who should choose their own chairman; that every one of these five peers should attend the whole progress of the bill; that no Peer who was not one of the five should take any part in the Committee; and then what was most important, that the Chairman of Committees, and four other Peers to be named by the House, should constitute a Committee to select the names of five Peers to form the Committee for the consideration of such private bill, and though he did not refer to the Peers' plan as an argument in favour of his own plan, yet it strengthened his conviction of its utility.
§ Mr. Warburton
said, that there were three things to be considered: first, the certainty of the law to be administered; secondly, the constitution of the Court of Primary Judicature; and thirdly, the Court of appeal. All these points were now subject to great defects but in the Courts of Primary Judicature the most contrary decisions were given, which he believed caused the greater part of the difficulty. Then as to the certainty of the law to be administered, he thought that the noble Lord was right in the means which he took to obtain the desired end; but if the law were to be made certain, what became of the finality of the Reform Bill? There was hardly a clause in that act on which it would not be necessary to pass a declaratory law. In the Registration Bill, which had been introduced in former sessions, the object was, to determine points which were doubtful in the Reform Bill, but this was successfully objected to. If they wanted the law to be certain they must introduce the necessary changes in the Reform Act, and declare what was to be the law on these doubtful points. He had no ob- 333 jection to the proposal of the noble Lord (Lord Stanley) to declare the state of the law, but he (Mr. Warburton) assured the House that this would be comparatively useless unless they also improved the Courts of Primary Judicature, the Courts of the Revising Barristers, which was the essential point to be remedied.
§ Lord John Russell
had anticipated, before he came down to the House, from discussions which had taken place elsewhere, and from hints which had been thrown out, that a powerful attempt would have been made to remove the jurisdiction from the House of Commons. It had given him, therefore, great pleasure to find, that the House had not made up its mind to take such a course. He rejoiced at it both because he considered there were very good reasons for retaining the jurisdiction, and because he thought that if the power of deciding was given to the judges, so far from causing these political questions to be decided by a judicial power, the effect would be eventually to make that power a political and a party power. He did not propose now fully to state his views upon the questions before the House, and although the right hon. Baronet opposite had commenced the debate by stating very clearly the plan which he proposed, which possessed considerable novelty, and was of considerable detail, and although it was stated as clearly as possible, yet that detail and that novelty would preclude him from giving his definite opinion upon it at present. All he would say was, that he was clearly of opinion that the plan was eminently deserving of consideration, and he hoped the House would deal with it in a regular shape when the proper time should arrive. For that purpose it would, perhaps, not be expedient to go into Committee on the present Bill to-night, or immediately, but it should be left for the right hon. Baronet to consider whether his plan were compatible with the principle of the Bill now before the House, and, if so, whether he might not incorporate it with the Bill in Committee, or whether, if he should find such a course impracticable, he would deem it advisable to introduce a separate measure containing provisions for carrying his proposition into execution. He could not, however, avoid saying, that the House, having had an opportunity of hearing the proposition of the right hon. Baronet, had derived the greatest satisfaction from it; and he thought that they should be allowed fully and maturely to consider the plan and 334 to examine its various merits, and, at the same time, to consider whether any, and if so, what objections might be taken to it. With respect to the question itself, as to the manner in which the evils, of which every Member of that House complained, were to be remedied, without giving a positive opinion on any of the points so much argued to-night, he would say, that the main question was, whether, in the constitution of the Committees, the House would govern them so as to enable them to see their duties, and also whether they would make arrangements to protect them in the due exercise of it; because hon. Members were now rendered liable to an unfair degree of obloquy being cast on them, in consequence of the course at present adopted. Every hon. Gentleman was in some degree rendered open to a feeling being excited against him, whether in consequence of the party whose views he espoused, or of any other circumstance which might be supposed to bias his opinion. Such feelings might be engendered in every way. If an hon. Member was selected to serve on a Committee, and the decision of that Committee was favourable to the opinions of what was supposed to be his party, it was at once said, that that decision was not impartial, and that it was the bounden duty of hon. Members to decide with impartiality; then, besides, if an hon. Member did not attend the House when he was summoned, and when ballots were expected to come on, it was said that he neglected his public duties, although his reason for staying away was, that being attached to a party he would not attend, because his absence would save him from all reproach on the ground of partiality. Now, he was of opinion that this arose much from the uncertain manner in which questions came before the Committees; and any plan, therefore, which should be adopted to remedy this, would enable hon. Members to say, that they had done their duty, and they would, therefore, escape all obloquy on the subject. Now, in order to attain this object, two questions which arose must be decided—namely, in what manner the Committees must be constituted, and in what manner the Committees would be enabled to have a better knowledge of the law which they might be called upon to administer. With regard to the constitution of the Committees, there was great force in the objection made to the plan of the hon. Member for Liskeard, as to striking off the names of Members in the House, 335 because that was likely to lead to party excitement and feelings which even now existed; and, therefore, without giving an opinion on the plan of the right hon. Baronet, he could say, that it was desirable that some such suggestion should be considered, in order that the voluntary attendance of hon. Gentlemen might be obtained for the purpose of serving on Committees, without the necessity of their being summoned by their respective parties. But the other question was of still greater importance—namely, in what manner the House could enable the Committees to have a better knowledge of the law which they were called upon to administer. The noble Lord opposite (Lord Stanley) suggested the propriety of passing a Bill declaratory of the real state of the law on many of the points in dispute. Now, he agreed that it would be very desirable to adopt this course; but, at the same time, he thought, that, whether the Committee which the noble Lord suggested should be appointed or not, there would be many points on which the two parties in the House would agree, but where, although the majority in this House should be in favour of any particular course, the majority in the other House would be likely to be of an opposite opinion. There was one point which had been referred to by the right hon. Baronet this evening—the question of trustees—but this question, and many others on which decisions had been given, would affect parties by diminishing or increasing the popular party in this country, and, therefore, if in this House it was proposed to diminish or restrict any right which parties enjoyed, in many cases by the decisions of revising barristers, he was sure that this House would be ready to oppose it, and if any Bill were sent to the House of Lords, by which many points were decided, the effect of which would be the increasing of what might be termed democratic power, although many doubts might be dispelled by it, it would not receive the sanction of that House, and, therefore, many would prefer that the law should continue to exist in doubt. For that reason he thought the proposed plan would not enable the House to make any very great progress in solving doubts on the state of the law of the country generally. But there was another subject which had been alluded to—the assessors—and the question was, whether they should be appointed, as proposed by the hon. Member for Liskeard, permanently, or whether the suggestion made by the right hon. Baronet opposite, 336 that they should be appointed merely temporarily, should be adopted. Now, whichever course was taken, the introduction of assessors would be a very material improvement in the law. There must be many questions before Committees on which the counsel, being well acquainted with the law and the various decisions which had taken place, might lead the Committee, who were inexperienced in such matters, and unaware, therefore, that the same questions had been mooted and settled before. But without giving any decided opinion on the quality of the assessors, he was disposed not to give the preference to merely temporary and occasional assessors; and the grand object that should be attained would be to have a regular tribunal which could decide many disputed points which should come before them at times when the seats of hon. Members should not be affected. Now, the Bill of the hon. Member for Liskeard did not go to that extent. Three persons of some consequence and credit in law, giving decisions on rights to vote, when no elections were immediately going on, produced very general satisfaction with regard to their decisions, and when the Election Committees came to consider these points, their decisions, too, would carry great weight. He saw that there was very great difficulty as to their appointment, but if that difficulty could be disposed of, an arrangement might be made which was the most important as regarded Election Committees. There were many cases of law which the Committees had already decided, and he alluded particularly to cases of qualification. He would not say whether those decisions were right or wrong; but he was fully sure, that not one of those hon. Members who had been unseated on the insufficiency of their qualifications should have lost their seats, for he thought it a mode of excluding Members who had been elected as the Representatives of the people by which the people must suffer, and he hoped before long that the time would come when no such questions would be raised before Election Committees, and when persons, having been once seated, would have no difficulty on the ground of their qualifications. Now, with regard to the proposition of the noble Lord (Lord Stanley), for the reference of the whole matter to a Committee, the noble Lord proposed that the Bill should be set aside, and the Committee should sit in order to consider the objections on the law. He could see one ground on which the objections should not be inquired 337 into at present. The Election Committees were now sitting, and it would be a gross interference with them and their decisions to do so. Some time ago, when an alteration of the tribunal was proposed, an objection of the same kind, though he had not seen the force of the argument so applied, but he now thought that it would be very objectionable that a Committee should sit to decide upon cases which had only come on the week before, with a view to the reversal of the judgments which had been given. It might be proper at another time, but the reversal of the decisions so soon after they were given, was a course which, he thought, could not be approved of. He would observe, however, that this was not a desirable mode of setting aside the Bill; for, after the Bill had been considered, and after the plan of the right hon. Baronet had also been looked into, which was not different in principle from that proposed, and the noble Lord, the Member for Lancashire, had also made his proposition, it would be very inexpedient to set aside the Bill altogether. The question was, in what manner the law should be amended. If the House could improve the tribunal it would be extremely desirable, and if afterwards they could simplify the law and make it more easy to administer, and more clear to understand, it would be also extremely desirable; but the two matters were independent of one another, and he did not see why the House should be prevented from improving the Committees before they should declare the law. He would not consent to give up the present Bill; at the same time, he should like to see the propositions of the right hon. Gentleman printed, that he might be able to consider them.
§ Sir R. Inglis
agreed with the hon. and learned Member for Dublin in the plan which he suggested, and which would take from the House the power of judging upon matters of this description, for he thought that course the most desirable which could be adopted. It was needless now to state in detail the evils which existed in the present system, but there was no one Member of the House who did not feel them deeply, and with the deepest sense of shame; and he believed, that the desire to remedy the existing objections was founded on feelings which were universal. An objection had been stated by the noble Lord opposite, that the power of the judges, if the jurisdiction in such matters should be given to them, would become political; but, he would ask, was there one Member of that House who 338 would not be willing and ready to leave his case in the hands of any one of the judges on the bench? He might fairly say, that there was not one who would offer any objection; and he was sure that he had never heard of the slightest suspicion being breathed upon the name of a judge after he had once been elevated to the bench. He considered the great evil of the present system to be want of publicity. No doubt the badness of the law was an evil, and a very material one, but the want of publicity was also an evil which ought forthwith to be removed, and he would have the proceedings made public from beginning to end. It was said, that the other House of Parliament had the exclusive decision of cases in reference to the right of Members of their House to sit, and that if that House should allow the power to be taken from them, they would be stultifying the House of Lords and themselves. Without entering into a comparison of the two cases, he would ask any hon. Member, whether, within the last six months, the decisions of the Election Committees had been at all satisfactory? The noble Lord (Lord Stanley) had shown two cases in which the decisions had been exceedingly unsatisfactory, and, indeed, erroneous. He felt that the Bill of the hon. Member for Liskeard concentrated and preserved the evils of the existing system, and he should certainly oppose it. He could not conceive the necessity of any Committee on the Bill, because it would be a mere mockery on their proceedings to go into it.
§ Mr. Williams Wynn
was understood to express himself favourable to the tribunal that had been suggested by the right hon. Baronet. The main cause of the discredit at present attached to the proceedings of election Committees was the uncertainty of the law. He thought, however, that there were some very important points which were not provided for by the Bill of the hon. Member for Liskeard. He did not view it as a question of party. The point to consider was, what tribunal it would be best to establish. If they could agree on a proper tribunal competent to adjudicate and to determine questions of law, he would have no objection to make the decision of a tribunal of whose competency he was satisfied, to a great extent, final, with respect to registration. He certainly would not wish to give the assessor the authority of a judge. Parliament had always been excessively jealous of its privileges in matters of this kind, and even 339 when the judges were called in by the House of Lords, they were not asked what was the law, but what was the usual practice of the courts of law. With respect to another provision of the Bill, he did not think that publicity in the discussions of the Committee would be of any advantage, although, at the same time, he did not see, that it could be productive of any great inconvenience; but similar tribunals, judges and juries, deliberated with closed doors, and he thought an exception should not be made in the case of Parliamentary Committees.
§ Mr. P. Howard
said, that great credit was due to the hon. Member for Liskeard for bringing a subject so vitally affecting the honour and credit of the Commons calmly and distinctly before the House. He thought, however, that the measure, which had been traced out by the right hon. Baronet, the Member for Tamworth, most effectually met the difficulties of the case. It obviated all the inconvenience, and, he might add, all the scandal of a canvass for attendance of Members by contending parties. The selection of a chairman, which often gave rise to party feeling, was rendered unnecessary by the appointment of an assessor, who was to preside over the deliberations of the Committee. He was, however, not of opinion that that functionary should not be invested with the privilege of voting; at any rate, it should be reserved to him in those cases only when the votes were even, for it was important that he (the assessor) should be regarded in the light of an impartial arbiter. The Bill of his hon. Friend, the Member for Liskeard, had emanated from the report of a Select Committee, and contained, no doubt, many good suggestions; but, however useful the investigation of a Committee might be in preparing evidence and laying down principles, in securing as near an approach as possible to general assent, the framing of a bill was generally best confined to a single head. The Bill of the Member for Liskeard, with eighty-nine clauses, was so lengthy and complicated, that he was desirous that the right hon. Baronet should introduce his Bill, and it would then rest with the House to adopt that which, on consideration, appeared to be most simple and effective.
§ Mr. Praed
entertained a very strong opinion on this subject. He thought that a great difficulty must stand in the way of any 340 transfer of the jurisdiction of that House to another tribunal, but much more strongly was he impressed with the opinion that the present system required alteration of some sort. He thought, however, that in every suggestion that he had heard, the errors and defects of the present system were preserved. This was no newly-formed opinion with him, as in a conversation he had held with the hon. Member for Liskeard some time since, he had expressed it. He believed, that the evil complained of was not one of a very old date, as in the unreformed House of Commons, whatever its other faults might have been, there was seldom any objection on the score of partiality in the decision of election petitions, as Members were then so much less than now influenced by party bias, that they generally gave an unprejudiced decision—so far all must admit the new system was worse than the old. At present he would say, it was hardly possible to get—he would not say one hundred, but eleven men, uninfluenced by party to try the merits of an election petition. In making this assertion, he did not mean to make any more serious accusation against the Members of that House than to say, that the bias was sufficient if existing in any county, with respect to any matter for trial, as to induce a judge to change the venue to another. The judge, in doing so, would not imply a charge of perjury against any twelve men in the county, but merely of such strong prejudices as would render their oaths not sufficient security—not for their honesty, but their judgment. With the observations of the hon. Member for Bridport he could not concur. He knew, that the decisions of the revising barristers were becoming more satisfactory every day, as the more they came in contact with the judges, greater care and experience enabled them to make those decisions more perfect.
§ Mr. G. Knight
said, that he had been confirmed by the debate of that night in the opinion which he had previously entertained—that there would be no certainty, and indeed no safety, in the decision of controverted elections, until they were sent for trial to some tribunal out of the House.
§ Mr. O. Gore
expressed his concurrence in the opinions which had been expressed by his right hon. Friend, the Member for the University of Oxford. The House 341 stood low in the estimation of the country in consequence of the strange decisions which it had made on controverted elections, and he therefore thought it might be better if the House gave up the jurisdiction which it had exercised over them ever since the celebrated case of Sir F. Goodwin. The judges at the time of that case were not independent, but the mere tools and creatures of the Crown, appointed at, and removable by, its pleasure. Now they were men of independent habits and unimpeachable character, and held their offices quamdiu se bene gesserint for life. Though he agreed with the right hon. Member for Tamworth, as to the appointment of the judge and the jury to whom he would refer these trials, he could not agree with him in his suggestion as to the assessor. As this appeared to be an evening when every suggestion was thankfully received, he would tell the House what he proposed to them for adoption. He proposed that there should be an additional judge appointed to each of the three Courts of Common Law in Westminster-hall, and that the senior of the puisne judges in each Court should be the Parliamentary judge to preside over the trial of controverted elections. There would then be no opportunity of appointing a judge for a particular occasion. These three judges should also form a court of appeal from the registration courts, and thus we should get rid of those conflicting decisions, which created so much doubt and difficulty as to the law and practice of Parliament.
§ The House divided on Mr. O'Connell's amendment:—Ayes 57; Noes 80: Majority 23.
|List of the AYES.|
|Archbold, R.||Hope, G. W.|
|Blake, M. J.||Howard, F. J.|
|Cayley, E. S.||Hume, J.|
|Cole, hon. A. H.||Hutton, R.|
|Courtenay, P.||Inglis, Sir R. H.|
|Darlington, Earl of||James, W.|
|Duke, Sir J.||Knight, H. G.|
|Dundas, hon. T.||Langdale, hon. C.|
|Dungannon, Viscount||Maher, J.|
|Evans, G.||O'Brien, C.|
|Fector, J. M.||O'Callaghan, hon. C.|
|Gibson, T.||O'Connell, M. J.|
|Gillon, W. D.||O'Connell, M.|
|Gordon, hon. Captain||Palmer, R.|
|Gore, O. W.||Philips, M.|
|Hall, B.||Pigot, R.|
|Hindley, C.||Pinney, W.|
|Hodges, T. L.||Plumptre, J. P.|
|Praed, W. M.||Style, Sir C.|
|Protheroe, E.||Talbot, C. R. M.|
|Redington, T. N.||Tollemache, F. J.|
|Roche, E. B.||Vigors, N. A.|
|Roche, W.||Wallace, R.|
|Round, C. G.||Wilbraham, G.|
|Salwey, Colonel||Williams, W.|
|Seymour, Lord||Worsley, Lord|
|Sinclair, Sir G.||TELLERS.|
|Somerville, Sir W. M.||O'Connell D.|
|Strangways, hon J.||Grote, G.|
|List of the NOES.|
|Acland, Sir T. D.||Law, hon. C. E.|
|Adam, Admiral||Lemon, Sir C.|
|Arbuthnot, hon. H.||Maule, hon. F.|
|Baines, E.||Melgund, Viscount|
|Bernal, R.||Morpeth, Viscount|
|Blackburne, I.||Morris, D.|
|Blake, W. J.||Murray, right hon. J. A.|
|Boldero, H. G.|
|Bramston, T. W.||Neeld, J.|
|Brocklehurst, J.||O'Brien, W. S.|
|Brotherton, J.||O'Ferrall, R. M.|
|Bulwer, E. L.||Palmerston, Viscount|
|Canning, right hon. Sir S.||Parker, J.|
|Parker, R. T.|
|Craig, W. G.||Peel, right hon. Sir R.|
|Curry, W.||Pendarves, E. W. W.|
|Dalmeny, Lord||Powerscourt, Viscount|
|Ebrington, Viscount||Price, Sir R.|
|Egerton, Sir P.||Pringle, A.|
|Elliot, hon. J. E.||Rice, E. R.|
|Ellis, J.||Rice, right hon. T. S.|
|Estcourt, T.||Rich, H.|
|Evans, W.||Rolfe, Sir R. M.|
|Filmer, Sir E.||Russell, Lord J.|
|Finch, F.||Shaw, right hon. F.|
|Fitzalan, Lord||Sibthorp, Colonel|
|Follett, Sir W.||Stanley, E. J.|
|Gaskell, J. Milnes||Stanley, Lord|
|Gordon, R.||Strutt, E.|
|Greene, R.||Sugden, right hon. Sir E.|
|Grey, Sir C. E.|
|Grey, Sir G.||Tancred, H. W.|
|Grimsditch, T.||Thomson, right hon. C. P.|
|Hawkins, J. H.||Thornley, T.|
|Herbert, hon. S.||Vivian, J. H.|
|Hobhouse, right hon. Sir J.||Warburton, H.|
|Williams, W. A.|
|Hodgson, R.||Wood, G. W.|
|Hollond, R.||Wynn, right hon. C. W.|
|Howard, P. H.|
|Howick, Viscount||Yates, J. A.|
|Kinnaird, hon. A. F.||TELLERS.|
|Labouchere, right hon. H.||Baring, F. T.|
§ On the original question being again put—
§ Mr. C. Buller
stated, that it was now impossible to take the sense of the House upon the important suggestions of the right hon. Baronet. He was still of opinion that the difference between the 343 two plans was not so great as it at first appeared, and that there were many parts of the right hon. Baronet's plan which might be adopted in perfect consistency with his (Mr. Buller's) plan. He therefore thought that the right hon. Baronet's plan should be placed in some way before the House, and he would submit to the right hon. Baronet whether it would not be possible for him to bring it forward either in the shape of amendments upon his (Mr. Buller's) Bill, or as a distinct measure. He was sure the House expected, and from what the right hon. Baronet had himself said, he had no doubt he was ready to pursue one or other of these courses, and in order to give the right hon. Baronet an opportunity of making up his mind on the subject, and putting his plan into a proper shape, he would propose that the Bill be re-committed on the 11th of May.
§ Sir R. Peel
said, that the suggestion of the hon. Gentleman was entirely satisfactory. As he (Sir R. Peel) had already stated, he offered his plan merely by way of suggestion, and with the strongest desire to keep from it the air of a political proposition. As many hon. Gentlemen seemed to wish that he should bring it forward in some shape, he would say, that he thought it infinitely better, if he were to do so, that it should be by a distinct measure rather than by any endeavour to accommodate to it a measure of a different character. He was quite prepared with the details of the measure, although upon mere matters of detail he would not commit himself, but as the hon. Gentleman had named a distant day for the Committee, he (Sir R. Peel) would, in the meantime, again direct his attention to those details, with a view to put them in a proper form. They could then be referred to a Select Committee, or considered by a Committee of the whole House, as might be deemed most advisable.
§ Bill to be committed on the 11th of May.