§ Sir R. Peel
rose for the purpose of fulfilling an assurance he had given to the House some weeks before, to move for leave to bring in a bill to amend the existing jurisdiction of Parliament in respect to Controverted Elections. He begged to be understood, as not proceeding upon the present occasion on the assumption that the House had resolved to maintain within its own power the right of trying election petitions, but rather on the assumption that complaints having been made of the present system as being defective and inadequate to the attainment of justice, it had determined to listen to and consider any proposal which should be made having for its object the perfecting of that existing system, by the removal of its alleged defects. He thought the general wish would be, that every experiment to perfect the present system should be tried and proved unsatisfactory before they consented to part with the power which for centuries past they had enjoyed—that of deciding who were to be the Members of that House. He must confess, that in approaching this subject, which he did with much diffidence, he was, for general reasons, very adverse to any such change as that suggested, without its absolute necessity being first fully and entirely established. In the first place he thought such a course objectionable on the general ground, that it was inexpedient to alter what for many years had been the law, and in the next place he felt the difficulty of devising any tribunal to replace the existing one, which, acting without the control of that House, was likely to be a satisfactory substitute for it. He confessed he could not divine the nature of the new tribunal. Should it be a single judge deciding without the intervention of a jury, or should it be a judge acting in concert with a jury? Should the tribunal be independent of that House or not? In his opinion, to make a judge independent, and to give him a summary jurisdiction in cases of elections, without any power of appeal, would be to constitute another estate within the country to exercise powers of the utmost importance. It would be giving to a single individual a most enormous degree of power, and one which in all probability would be attended with highly injurious consequences. He was now supposing the case of an independent judge; but supposing it was decided to give the trial of Controverted Elec- 1082 tions to a judge who should not be independent, on whom or on what body should he be made dependent? If he were to be made dependent on the judgment of the House of Commons, there would arise all the objections which now applied to the existing Committees. It was indeed manifest, that if the Members of the House of Commons were to be declared incompetent to act as a jury for the trial of election petitions, they must be quite as much so to discharge the duties of a court of appeal from the decisions of any tribunal which might be appealed from. But, then, supposing there was to be the intervention of a jury, how would that alter the case? How could they exempt that jury from that very political influence and party views which they alleged rendered Members of the House of Commons incompetent to decide in election petition cases? Would summoning the jury from another and distant part of the kingdom from that in which the election disputes arose meet the difficulty? That might be a very good plan to obviate the influence of local prejudices, but not the influence of strong party feeling. Suppose they were to bring a jury from Devonshire to try a Controverted Election in Kent, was it not just as likely that they would be as imbued with political and party bias as the tribunals which were now complained of? He confessed he should feel the greatest objection to see the House of Commons declaring itself disqualified from exercising that power which every other popular assembly in every free state in the world, following their example, did exercise, and exercised without complaint. To part with power was not in itself free from objection; but for that House to part with power on the simple allegation of unfitness, from either incapacity or the want of impartiality or integrity to discharge the ordinary duties of a tribunal, tended so materially to diminish their moral influence, that in their case it would be doubly objectionable, unless on a clear case of necessity being established, to abandon any of their existing privileges. He did not mean to say, that if it were proved justice could not be done short of such a measure, he should object to it; but until convinced that such was the fact, until convinced that while the power of trying controverted elections remained with the House, it was impossible that the 1083 ends of justice could be accomplished, he maintained it was their bounden duty to stand by their privileges, and while taking every means to establish a proper tribunal within their own control, to declare their determination to hold and maintain that control in the same manner that for years past they had exercised it. The power of the House of Commons, like most others, was founded on popular opinion, and if they were to present themselves to the public with a declaration that they had become unfitted for the exercise of the power which for years past had been exercised by Parliament, it was obvious that public opinion must, more or less, abandon them, and with it take no small portion of the influence they at present enjoyed through its means. It had been argued by the hon. and learned Member for Dublin, and others who had adopted his views, that the complaint of the public being levelled generally against tribunals consisting of Members of Parliament, it was not probable that any tribunal composed of the same materials as the present, although under a different system, could be satisfactory, But he was not prepared, even founding this conclusion upon general reasons, to admit that was a necessary conclusion. He could believe, that the same materials might be combined under a different form and in a different manner, so as to produce very different results. He could conceive some men who had once been partisans in particular questions, afterwards becoming impartial judges, if they were removed from that influence, which had biassed them. He could come to this conclusion from general reasoning, but, happily, he was not driven to general reasoning to refute the hon. and learned Member's argument, for the high and important authority of actual evidence, could be brought to prove the very conclusions which general reasoning so strongly sanctioned. There had been instances where complaints had not been found against the tribunal, but against the system under which justice was administered, and which complaints were afterwards removed when the same parties were chosen as judges under a different system. Let them look to the conduct of the House of Commons on the subject of election petitions previous to the passing of the Grenville Act. Nothing could have been more unjustifiable than their decisions in cases of contro- 1084 verted elections previous to that time; they frequently decided without hearing the evidence, and frequently on private evidence which had been canvassed outside the House; and frequently, and most notoriously, from party feelings and opinions. A change had been made in the constitution of the tribunal, but the materials remained the same. Members of Parliament were still called to decide on election petitions, but in a different form, and all complaints immediately ceased. For several years after the House had formed a different tribunal, complete satisfaction was given. But first, perhaps, the House would permit him to read the character given by the author of this act himself—he meant Mr. Grenville—of the administration of justice on these questions previous to the passing of that measure. When Mr. Grenville's Act was passed, in the year 1770, that gentleman thus stated the objections which existed to the administration of justice on controverted elections by the House of Commons as a body:—How often, for instance, Sir, while the merits of a contested election have been trying within these walls, have the benches been almost empty during the whole examination; but the moment the question approached how have you seen the Members crowd eagerly to their seats, and then confidently pronounce upon a subject on which they have not heard a syllable, but in private from the parties themselves! This is not all, Sir; we have frequently seen trials of strength upon some previous question between the friends of the sitting Member and the friends of the petitioner.At that time they had found the evils of a previous trial of strength and of party power before the cause to be determined really came on.And we have also frequently," Mr. Grenville added "I blush while I declare it, seen justice sacrificed to numbers, and oppression exalted on the shoulders of a giddy majority into the sacred chair of legislation. This is a grievance of an alarming magnitude, and I propose to offer a means of redress on a future day to the consideration of this House.Nothing could be more marked than the complaint thus made against the decisions of the House of Commons previously to the Grenville Act, and in the discussions which followed Mr. Grenville's introduction of the measure. Language equally strong was lavishly applied in condemnation of the then tribunals. The 1085 House of Commons adopted Mr. Grenville's proposition, in the first instance, as an experiment; but after the lapse of about four years so satisfactorily had it worked, that it was proposed to adopt it as a permanent measure. Lord North and Mr. Fox opposed the proposition, but on a division the motion for rendering it a permanent measure was carried by a large majority, one of its principle supporters being Mr. Dunning, no mean authority at that period on matters connected with the law of Parliament. Dr. Johnson, too, who had spoken of the Grenville Act, said that—The claim of a canditate and the right of electors are said scarcely to have been, even in appearance, referred to conscience; but to have been decided by party, by passion, by prejudice, or by frolic, Thus the nation was insulted with a mock election, and the Parliament was filled with spurious representatives; one of the most important claims, that of a right to sit in the supreme council of the kingdom, was debated in jest, and no man could be confident of success from the justice of his cause. A disputed election is now tried with the same scrupulousness and solemnity as any other title.But Dr. Johnson wrote this only about four or five years after the experiment had been made. Let the House, however, descend a little lower, and see what had been the success of the Bill at the end of a period of twenty years: and in the first place it would be proper, in order to make the authority conclusive, to take the time when party feeling ran the highest, and when political bias decided the questions before Parliament. The period he would select was the year 1784, immediately after the great struggle on the India Bill, between Mr. Fox and Mr. Pitt. Mr. Fox at that time presented a petition to the House of Commons, complaining of the return made by the high-bailiff of Westminster, and praying that the validity of that return might be tried by a Committee of the House of Commons, selected under the provisions of the Grenville Act. Upon that occasion Mr. Fox bore testimony to the good working of the Act in the following terms. He said:—That Bill, Sir, originated in a belief, that this House, in the aggregate, was an unfit tribunal to decide upon contested elections. It viewed this House, as every popular assembly should be viewed, as a mass of men capable of political dislike and personal aversion; capable of too much attachment, and too much 1086 animosity; capable of being biassed by weak and by wicked motives; liable to be governed by Ministerial influences, by caprice, and by corruption. Mr. Grenville's Bill viewed this House as endowed with these capacities, and judging it, therefore, incapable of determining upon controverted elections with impartiality, with justice, and with equity, it deprived it of the means of mischief, and formed a judicature as complete and ample, perhaps, as human skill can constitute.Such was the doctrine of Mr. Fox, who at first opposed the Grenville Act, as to its operation twenty years after it had been paseed. [An hon. Member: not twenty, only ten.] Well, it might be only ten, or say, fourteen years afterwards; but, this was the opinion of Mr. Fox when political feeling ran the highest, that he should be tried by an impartial tribunal in an election committee. But, he would revert to more recent times, and would adduce, for the purpose of fortifing his argument, that the same materials might be combined in a different form so as to produce a different result, the changes that had taken place in transacting private business in that House when the materials had remained the same. By the recommendation of the Speaker a great revolution had been effected in the system of Committees on private bills which had produced perfect satisfaction, and was free from complaint. Until recently these Committees were an useless ceremony, and worse than useless, for great injustice was done by the opportunity given for private canvass. The House of Commons, on the recommendation of the present Speaker, who had paid great attention to the subject, adopted a different system with respect to private bills. In pursuance of that system, a general Committee, consisting of forty-two Members, was appointed, to which Committee every petition for a private bill was referred, to examine whether or not the petitioners had complied with the standing orders of the House. They had the highest authority, that of the Speaker himself, as to the beneficial change which had been produced by this regulation. To prove this he would read a part of the examination of the right hon. Gentleman before the Committee on private bills.Sir J. Graham.—Have you observed a satisfactory change in the mode in which the business is transacted by the Committee of forty-two on the petition for a bill, as contrasted with the former practice, when the 1087 Members were taken from the adjacent counties?—There cannot be a question that the superiority is immense, and the satisfaction is in proportion. I made no secret that when that Committee was appointed I had my ears open, and should be ready to hear any complaint, but I never have heard the slightest question made as to the propriety of their proceedings, and never a word against the impartiality of their judgment.When the allegations in a petition for a bill were disputed heretofore, was not there a canvass notoriously carried on among the Members for the adjacent counties?—Certainly.Has that canvas, continued under the new system?—I believe it has entirely ceased; I believe it to be as completely successful as any experiment can possibly be.The great change was the introduction of the principle of selection in lieu of the chance which before belonged to the system?—Yes, and one great change was, that the Gentlemen who composed the Committee of forty-two felt that they were in a new situation, that they were to set an example of the course of conduct which was intended to be a precedent, as far as it could be, for the conduct of the House: that was the doctrine laid down at the time the Committee was appointed.Your expectations have been fully answered by the change?—Entirely.Chairman.—Do not you think they have, from the very principle of their appointment, a feeling that they have a trust reposed in them?—I have no doubt of that; I took the liberty of stating it in the strongest terms at the time of their appointment, and they entirely acquiesced in it. I endeavoured to show that no one ought to go upon that Committee who was not prepared to attend and perform the duty, and that no person ought to be upon it, who was not prepared to decide as judge or juryman.Now he would ask the House whether this evidence on the part of the Speaker, as to the beneficial effect of the regulation introduced respecting private bills, did not afford strong ground for believing that by a change in the construction of the materials which existed in the House means might be devised, reposing on the integrity of hon. Members themselves, of avoiding the effect of party feeling, and of producing, with reference to election Committees, the same advantageous results which had been derived from the change which had taken place with reference to the Committees on private bills? It appeared to him that there were three great objections to the present mode of deciding election petitions. In the first place, a practice had grown up tending to do away with many of the advantages which might otherwise attend 1088 the appointment of an election Committee. He meant that the matter was frequently brought before the House in some preliminary debate, upon some trivial point, respecting the recognizances, for instance; and the example was set to the Committee by the House of Commons itself, of deciding the question upon party grounds. This, Mr. Grenville had pointed out as important to avoid, and had said, that it would lead to frequent party discussions between the friends of the petitioner and the friends of the sitting Member. He thought it would be a great advantage if the House would abstain from these previous discussions; and that, from first to last, election petitions were left to the consideration of the Committees to which they were referred. The Committee which had been appointed to consider whether an admendment of the law in this respect could not be made, had traced the subject from the time when the recognizances were entered into on an election petition to the close, where a taxation of costs was made; and in its report they said that they had examined agents and others who possessed information on the subject, and that they thought nothing more easy than to adopt some method which should render it unnecessary for the House to interfere in these preliminary matters. The question of the recognizances was one of the simplest things in the world, the solvency of the party being the only point to be ascertained. At present this duty devolved on one of the clerks of the House of Commons and a Master in Chancery, but it frequently happened that the Master in Chancery had other duties to attend to elsewhere, which he considered paramount to those of the House of Commons, and that he could only allot a certain time, and at a certain hour of the day, when it would perhaps be most inconvenient for the other officers to attend. It might perhaps be immediately before four o'clock, and yet often in the same day there were fourteen or fifteen cases in which recognizances were to be considered, and then the time was insufficient. Would it not be better to appoint one individual who should act under the authority of the Speaker on whom these duties should devolve, who would consult the convenience of all parties, and who would have ample time for the consideration of these questions? The noble Lord opposite (Lord J. Russell) had 1089 suggested the other day, in order to simplify the matter, as the testimony required was not as to character, but as to solvency, that the matter would be simplified by allowing the surety the option of entering into the recognizances, or of depositing the money. The petitioner was now obliged to enter into a recognizance of 1,000l. for himself, and to find two sureties in 500l. each, or four of 250l.; but if any person preferred, instead of finding sureties to this amount, to deposit the sum in the hands of the Speaker, it appeared to him that by this plan every obstruction would be removed, and that the guarantee now requisite for the costs would be just as well secured. But to make it equal to all parties, it was said the principle must be extended further. This plan, might do for those petitioners who were rich, but would not do for such as were poor. He did not, however, see that objection; for rich men could always get sureties easier than poor men. Suppose a poor man found three sureties for 250l. each, and he himself lodged the remaining 250l., he could see no reason why it should not be permitted, as all they desired was, that a certain sum should be forth coming, and every object which Parliament wished to accomplish would be fully secured. It would then be easy to make an inquiry into the sufficiency of a surety without any appeal to the House of Commons. To guard against a defeat of justice they might give to the parties authority to enter into the recognizances within a certain discretionary period, but, at the same time, the more strict they were in their rules and the more determined to enforce them, the more effectually would they succeed in their object, and the better would the business be done. But if they were lax in their requisition, if they received applications and decided without proper evidence on the representations of solicitors and of the parties interested, the more lax would be the conduct of those to whom they delegated authority. The great defect of this part of the system was not incidental to the Grenville Act; but it was the entertaining by the House, of preliminary questions; and he would propose that the House should give up all interference with such questions. Another great objection, as it appeared to him, was the entire confidence evinced by the House in the selection of Committees by chance. It was sometimes said, that on the whole it 1090 turned out well; that if there was one Committee in favour of the Ministry, the next was in favour of the opposition, and thus they neutralized each other, and the balance was even; but, for his part, he could not conceive a greater libel on the administration of justice than such an assertion. It was no satisfaction to the country or to the parties more immediately interested to know, that, upon the whole, the Committees, as regarded their composition, were evenly balanced, and that the wrong done by one, was adjusted by the wrong done by another. Such a system was not creditable to the House, and such statements must tend to lower its decisions in the eyes of the public. It was their bounden duty to do justice in every case, and to form a tribunal so pure and honourable as to inspire the firmest confidence in its decisions, and calculated to do justice to all parties, of whatsoever party in politics they might be. That object could not be attained by a system where chance decided the composition of the tribunal. One of the greatest objections to the present system by which election Committees were appointed, was the right to challenge, which was invidious, and tended to wound the feelings of honourable men. It was a bad commencement of a judicial investigation. Another objection to the challenge was, that by its operation all the professional experience, and all the Parliamentary experience of the House, was excluded from election committees. He did not mean to say, that all professional men, and all those who had a long experience of Parliamentary business, were absolutely and necessarily excluded, but, undoubtedly, the tendency of the system, from whatever cause, was to exclude from Election Committees those who were best qualified to perform the duties which devolved on them. Such certainly was the tendency of the present system. He should like to take the present Session and examine how many professional men, and men of long Parliamentary experience, had been appointed to serve on Election Committees, and to compare their number with that of nonprofessional members who had been chosen for the trial of disputed elections. He thought, that the House would be surprised at the smallness of the number of professional men, and of those who were otherwise the best qualified for the discharge of the duties imposed upon the Members of those tribunals which had 1091 been chose; and he was confident that they would be much struck with the number of Members selected, who had, at the last election, been returned to that House for the first time. The number of Members chosen by the ballot, under the present system, was thirty-three; and it was not unfrequently the case, when the reduced lists were given in, that not less than seven out of the eleven of those who were to try the merits of disputed elections were young Members, who, before the present Session, had never been in Parliament. He had the fullest confidence that those young Members would discharge the duties devolved upon them with equal integrity and honour as the oldest Members of the House; but it certainly was rather hard to impose upon them the performance of a difficult and invidious duty, and, at the same time, deprive them of the assistance and co-operation of professional men, and men of long Parliamentary experience. Unjust as such conduct was, yet somehow or other the tendency of the present system was, to produce such results, to exclude experience and professional knowledge, and to place on the tribunals for the trial of controverted elections those who, from want of experience, were much less qualified to decide on difficult and complicated questions of election law. Such were some of the evils resulting from the system of chance. Another point to which he would advert, related to the oaths which at present were imposed on Members of Election Committees. He was perfectly persuaded that there was no Member of that House who would regard lightly the oaths which he had sworn, yet, from the manner in which those oaths were taken, and when Members felt that they were chosen by chance, there might be a disposition to take a different view of questions from that which they would take if they were openly appointed, and the fullest confidence reposed in their integrity and honour. To guard against that danger and to remedy those evils to which he had alluded, he proposed to adopt a diametrically opposite principle from that which was at present acted upon. In the first place, he proposed that all the proceedings in regard to recognizances should be intrusted to the hands of a single officer, and invited the House to part with so much of its jurisdiction as related to recognizances. He had on a former occa- 1092 sion drawn the attention of the House to the present mode of proceeding in regard to recognizances, and a Committee had in consequence been appointed; and when the report of that Committee was laid upon the table of the House, it would be found, and on the most satisfactory evidence, that the recommendations of that report were in perfect accordance with the proposal he had made. He was also of opinion, that the same officer should be intrusted with the taxation of costs. The duties of such an officer would be simple and easily performed, whereas, under the present system, there was much complaint and dissatisfaction; but if the whole proceedings in regard to costs were intrusted to one responsible individual, all ground for those complaints would be removed, and much delay and expense would be saved. Under the present system, as he had stated, the House lost, in a great measure, the professional experience of those hon. Gentlemen who were Members of that House, and who were also members of the legal profession. There was great unwillingness on the part of those hon. and learned Gentlemen to serve on election committees. No doubt they had other duties to discharge, yet still he thought the House had a fair claim upon their services. The fact, however, was, that they were reluctant to serve on election committees, and availed themselves of the right of challenge which the present system allowed, or by pairing off eluded being chosen. Those committees were in consequence generally deprived of those eminent counsel which the House contained. Now, this was not altogether fair and he thought that when those hon. and learned Gentlemen came into Parliament the House and the public had a right, to call upon them to bear an equal share of the burdens. Instead, therefore, of continuing a system that excluded those learned Gentlemen from serving on election tribunals, he thought it was their imperative duty to adopt such a plan as would secure for the trial of controverted elections a fair proportion of the legal knowledge of the House. He would next proceed to that part of his plan by which he hoped to obviate these evils. In the first place, then, he proposed to substitute discretion and confidence in the place of chance. His bill was prepared and printed, and he should not, therefore, go into the whole of its details at that time, as the House would, at no distant period, have 1093 an opportunity of fully discussing every portion of his measure. The bill would be laid upon the table as soon as possible, and he only waited for the report of the Committee to which he had previously alluded to place it before the House. At present he asked for no division, nor for any pledge, and he would not provoke a discussion at that time, but simply give an outline of the plan he proposed for their adoption. He might mention, also, that he had adopted the suggestion of the noble Lord opposite, and that the measure he intended to bring forward was only of a temporary nature, and it would be so framed, that should any well-founded complaint be made against its operation, the consideration of the whole question should again necessarily come before Parliament. The provisions of the bill were simply these:—In the first place, he proposed that the Speaker should be empowered to appoint a certain limited number of Members of the House for the management of all election proceedings, the number so elected to form a general committee on election petitions. A question might arise in regard to this part of his plan—namely, whether they ought to make the power delegated to the Speaker absolute, and the list of Members selected by him not liable to be questioned by the House. If the power of the Speaker in the selection of the Members of the general Committee was not made absolute, then they might require that a list of the Members chosen should be laid on the table of the House; but in that case he proposed that if no objection should be made to the list within a limited time, it should, at the termination of such a period as might be determined on, be held to be valid. Perhaps the latter plan would be the one most approved of, and as he was unwilling that the House should part unnecessarily with any portion of its jurisdiction, he thought it would be most advisable to require that a list of the Members chosen by the Speaker should be laid on the table of the House. He presumed that that committee would be chosen with perfect fairness and impartiality; and upon the general committee so chosen, he proposed that they should devolve the appointment of committees for the trial of all controverted elections. He also proposed—and he spoke now of the general committee—that all the proceedings of that committee should be recorded, and that a short period 1094 should, at regular periods, be communicated to the House, in order that they might have the check of publicity, a check of all others the most valuable as regarded the actions of public men. He ought previously to have stated, that he proposed that at the commencement of every Session the House should be called over for the purpose of ascertaining who were and who were not liable to serve on election committees. He would exclude no one, whatever might be his situation. He did not propose to exclude the Ministers of the Crown, as he thought such a proceeding would be unfair and unjust. If, however, their public duties prevented them from acting without inconvenience to the service of the country, then he proposed that they should be excused. He also proposed that those hon. Members who were advanced beyond sixty years of age should not be required to serve. There were other cases in which temporary causes of disqualification would operate, such as being petitioned against, or having voted at an election. Of course, he did not propose to enforce the services of those whose affairs absolutely required their absence from the House. Such persons, on satisfactory reasons being stated, he proposed to exempt from serving on election committees. When once the general committee had been appointed, he proposed to invest them with the most ample powers to call on Members of the House to serve on the committees for the trial of disputed elections, and he proposed that those committees to be nominated by the general committee should be composed of seven Members. He further proposed, that the election should be made by the general committee at the shortest possible period before the trial of any disputed election was to take place. By such means they would get rid of party excitement, and the Members who were to try the merits of any election would come to the discharge of their duties with less chance of their minds being biassed towards either party. He discountenanced all strikes, but he reserved the right of challenge in certain cases. For instance, if a Member was petitioned against, there would be a right to challenge, and the House would have the power to prevent him from sitting on an election committee. There were also two other specific cases, in regard to which the right of challenge would exist. The first was the case of any hon. Member 1095 having voted at an election. If any hon. Member voted at an election, and was nominated a member of any election committee, then the right of challenge would remain in force. The other case was that of relationship within a certain degree. He proposed, however, entirely to abolish the strike. In the next place, he proposed to give publicity as far as possible to the proceedings of the Committees, and in order to accomplish that object he proposed, that the whole of the proceedings should be taken down in writing, and that the names of the Members, as often as the committee divided, should be placed upon record, so as to show how each individual voted. He proposed, also, that the whole proceedings of the committees should be laid upon the table of the House. He was aware, that those proceedings often extended to an inconvenient length, and that it might be impossible to lay the whole before the public. But there could be no difficulty in stating fully every question on which a vote might be taken, and he thought it essential, that those questions, and the names of the Members of the committee voting in every division, should be laid upon the table of the House. Such was an outline of the plan he proposed for their adoption; and having explained the general objects of the measure, he thought it would be better not to allow himself to be betrayed at that time into a discussion of its details. A more convenient period would offer for that purpose, when hon. Members would be more prepared for entering upon the consideration of the details. There was one point to which he had not yet alluded. An assessor to election committees had been proposed, but he felt so confident, that there were materials for the proper and equitable settlement of disputed elections within the House, that he felt the greatest reluctance to the appointment of an assessor; and the appointment of assessors, therefore, was no part of his plan. He had now stated, the grounds of his objections to the present system, and the remedy he proposed for the evils which existed in the present election tribunals, and whether his plan might or might not receive the sanction of the House was to him a matter of comparative indifference. He was willing to give up his own measure if a better should be brought forward. This was not a party question, and he was sure, that every 1096 Member of the House was equally anxious with himself to remove those evils in their election tribunals which had been so much complained of. If the House would divest itself of its power to the extent he had proposed—if they would put an end to the operation of chance, and trust to discretion and confidence instead—then, indeed, they would invest the members of election committees with a judicial character, and they would find, that they would bring to the discharge of their duties impartiality and integrity. If they adopted such a plan, and succeeded in their designs, they would rescue the House of Commons from the degrading stain which would be cast upon it, if they were to tell to England and to the world, that there was not within its walls materials wherewith to compose a fair, an honest, and impartial tribunal. He believed, that there was abundant materials for such tribunals within those walls, and if they adopted such a plan as he had recommended, they would elevate the character of Members, and increase the confidence of the country in their decisions. If they adopted such a plan, he had no doubt that the Members chosen would divest themselves of party feelings, and when they found that implicit confidence was placed in their integrity and honour, that they would make the discharge of their judicial functions superior to every other consideration. The right hon. Baronet, amidst loud cheers, concluded by moving for leave to bring in a Bill to amend the laws relating to the trial of Controverted Elections.
did not mean to oppose the introduction of the bill of the right hon. Baronet, although he much doubted whether its provisions would reach the existing evils. The right hon. Baronet had described the conduct of election committees previous to the passing of the Grenville Act; but he would ask, whether every part of that description was not equally applicable to the existing state of things? Nothing could be more unsatisfactory than the decisions of election committees at the present day. The right hon. Baronet proposed to form his tribunal for the trial of election disputes out of the same materials as formerly, but he could not consent to the proposition, that a mere change in the mode of election committees would lead to all the beneficial results which the right hon. Baronet anticipated, or that such a change would prove a 1097 remedy for the evils of the present system. Since the passing of the Grenville Act, the decisions of committees had proved as unsatisfactory as they were before that measure became law. If he took up a record of those decisions, he would find more than 150 of them contradictory of each other, and he feared, that another change in the mode of appointing election committees, if they were still to be formed of the same materials, would not give a much more satisfactory result. The same party feelings would still continue to operate, and with parties so equally balanced as they were in that House, it was impossible to suppose, that party feelings would not continue to operate strongly. Formerly, there was a difficulty in obtaining the attendance of Members in such numbers as to enable them to proceed to a ballot, but that was not the case now. They now came down in crowds, and he must do hon. Members opposite the justice to say, that he never saw them attend the House in such numbers before. The right hon. Baronet proposed, that the Speaker should have the power of nominating a general committee; but the Speaker would necessarily be attached to one party or the other; and he had seen a Speaker in that House in whom he would not have reposed confidence in the selection of that committee. "Why," said the hon. and learned Gentleman, "I would not, nor would you, if he had not been of your party." He was old enough, also, to have seen evils arising from the affectation of too much impartiality; so that if they had one class of Speakers, the general election committee-list would be formed upon party principles; and in the other case, from an affectation of too much impartiality in the chair, there would result an evil of not less magnitude. But suppose they were disposed to give us a fair committee of six, having three and three of each party, that would be something like the kind of check which existed between the two Houses of Parliament. They would go on opposing and controlling each other, until nothing at all would be done. But it might happen, that each trio, though of different politics, might be against the smallest party in the House—the Radicals. Even if there were seven, it would be vain to expect, that men would not evince some particular feeling of their own. As long, then, as they had these adverse interests pressing 1098 upon them, they ought not to have an interest in the choice of the tribunal to decide the questions at issue. It would be infinitely better for them to send the cases to a jury, for though a jury might be composed of men of different parties, and would rarely consist of persons all of one political creed, they would be responsible to public opinion, and would be necessarily inclined to do justice and secure public approbation, rather than degrade themselves by consulting the gratification of their own party feelings only. And what an advantage would it be, to diminish the multiplicity of questions which came before the House, to simplify the franchise, to make the register final, and to do as much as possible to settle the cases before the legal tribunals, prior to their becoming mere struggles of partisanship. What could be more frightful than the opening of the register in Ireland, and what could be more easy than to close it? Above all, they should give vote by ballot. At present they were beginning at the wrong end. Let them have a superintending committee of five, if they pleased, to superintend the legal trial, and to report. He would select those five in such a way as to remove all cause for distrust. He should consider it wrong to give them any authority beyond that of mere reporters; he would give them no vote, but power merely to report a selection of the issues tried, aided by counsel, and, if necessary, a competent and highly-paid assessor. Therefore they would not affect the ultimate decision except in the selection of the issues; they would only have the jurisdiction of reporting any violation of the privileges of the House. It was impossible that the present system could continue; enough had been said that night to show that it could not, and he was sure it ought not. They ought to clear themselves from all suspicion and mistrust, and set themselves right with the public. He did not believe, that the plan proposed by the right hon. Baronet would be adequate to that object, but he must say, that the House was much indebted to the right hon. Gentleman for the time and attention he had bestowed on the subject, and the moderate tone in which he had submitted it to the consideration of the House.
§ The Attorney-General
was, himself favourable to the proposition of the right hon. Baronet, especially as he was of opinion that the jurisdiction, with respect 1099 to election committees, ought to be retained within the walls of that House. He would have the greatest objection, to fix the labours of election committees, on the judges of the land, although he had the greatest confidence in their integrity and impartiality. Why should not that House retain its jurisdiction as well as the other House, which, in matters of appeals from the courts of law, proved itself quite efficient? The questions of this sort which came before the House of Lords were, as they must all admit, considered in the most pure and impartial manner. The House of Lords, in their decisions consulted both the law and the justice of the cases that came before them, and should they—should the House of Commons—show that they were incapable of following the example, which the other branch of the Legislature had set them; They would be showing this, if they parted from the jurisdiction, which they now possessed, in the trial of controverted elections, and therefore he could not approve of any proposition, which would lead to such an inference. Well, but what course ought they to pursue? He would admit, to his hon. and learned Friend the Member for Dublin, that the present system had fallen into great abuse, and that it was necessary, that some alteration should be made in it. There could be no denying, that the present system brought discredit on that House, and that public opinion was strongly adverse to it; but the question they had to determine was, how the evil could be most effectually remedied. His hon. Friend the Member for Liskeard, (Mr. C Buller) had brought in a bill for the improvement of the law relating to controverted elections, but, in his opinion, the plan of his hon Friend would be found in practice to be wholly ineffectual. That plan would leave more to chance than even the present system. The bill of his hon. Friend proposed the calling in of assessors, but he should like to know, where they were to get assessors, whose opinions would command the respect of committees; He did not believe such persons could be found. For himself, he must say, that he approved of the proposal of the right hon. Baronet, and for this reason more especially, that he believed if any person, should hereafter, be found to act in a manner, that could not be defended, he would not only lose his reputation, but 1100 his seat in that House. The right hon. Baronet, had said, that the professional men who were Members of that House, escaped from serving on election committees. It was quite true that he had, paired off with his hon. and learned Friend, the Member for Huntingdon; but all he could say, was, that, if this experiment were tried, he would, at any pecuniary sacrifice to himself, be ready to attend on the new committees, and, as far as he was able, to perform the duty that might devolve upon him. He was persuaded that if the right hon. Baronet's plan were adopted, all party politics would be foregone, and that nothing would be thought of, but doing justice between the parties, without considering to which side of the House they belonged. The reasons which he had given would induce him to support the principle of the measure of the right hon. Gentleman, but in saying this he wished it to be understood that he in nowise pledged himself to its details. The experiment was one which he thought ought to be made, but, at the same time, he could not help suggesting that after all, the best way would be, at once to repeal the Grenville Act. He certainly felt surprised how such an Act could ever have passed the Legislature. According to that Act, if there were not a sufficient number of persons present for the purpose of a ballot, what was the consequence? Why, that they were prevented from proceeding with the public business, however pressing and important it might be. Under such circumstances, they were no more, than a mere statutable tribunal; but if, they were to repeal the Grenville Act altogether, and restore to the House the authority, that constitutionally belonged to it, the best results would ensue, and they might then go on, making one experiment after another, until they arrived at some plan, that would give general satisfaction. There were two things which were more particularly wanted. They wanted the power of administering oaths, and of awarding costs, and if they possessed these powers they would, as far as he could see, require nothing more. The course which he thought it most advisable for them to pursue, was to repeal the Grenville Act, and then let the right hon. Gentleman, propose his resolutions for a single session, and if they succeeded all well and good—they could be renewed; but if they did not, then they would be at 1101 liberty to try some new experiment, and so on until something like perfection was attained. Before he sat down he must say, that the House and the country ought to feel deeply indebted to the right hon. Baronet for the attention which he had bestowed upon the subject, and the able manner in which his plan had been framed.
§ Viscount Mahon
said, that although the plan which he meant to propose, differed from both the plan of his right hon. Friend and, that of the hon. and learned Member for Dublin, still he must concur in the remarks which had fallen from the hon. and learned Attorney-General. He agreed that all parties, whether in or out of that House, must feel deeply obliged to the right hon. Baronet, for the pains which he had bestowed on this subject, and the total absence of anything like party feeling, which he evinced in bringing his proposition forward. This testimony from him (Viscount Mahon) was evidence of the latter fact.
§ Mr. Fitzroy Kelly
said, that as the right hon. Baronet had deprecated discussion, it was not his intention to detain the House, more than a very few moments. The free and unalterable voice of public opinion called aloud for the total abolition of the present system of trying controverted election cases, and he trusted the day was not far distant when that House would sacrifice some portion of its power to its sense of justice, by concurring in a change which was so universally desired. If the House would not go the whole length the country required, it would be impossible to deny, that the bill proposed by the right hon. Baronet was calculated to improve the present system; but while he admitted this, he could not help expressing the concern and disappointment which he felt, that in the able and luminous address of the right hon. Gentleman he did not notice one alteration that seemed to be of indispensable advantage to the just constitution of any tribunal they might devise for the trial of controverted elections, and that was, the appointment of an assessor, or judge, not to deal with the merits, but merely to expound and explain the law whenever points of difficulty arose which involved professional knowledge. He felt assured from the long experience which he had had in courts of justice, that without such an officer any tribunal they might form would be imperfect, and, for his own part, he thought the persons 1102 selected to preside over election committees should be the most eminent persons the legal profession could afford. He regretted to find, that his hon. and learned Friend (the Attorney-General) was of a different opinion, notwithstanding he must know that generally speaking the Members of committees were ignorant of law, and that they were not unfrequently called on to decide questions of the utmost importance, and involving a degree of legal nicety and complexity with which even the most enlightened and learned of the judges would have some difficulty in dealing. Could, he asked, such a matter be safely and consistently referred to gentlemen who were, he might almost say, ignorant of the first principles of law? This, however, was not the proper time for entering into the discussion; but he threw out the suggestion in the hope that it would be considered when the noble Lord the Member for Hertford brought forward his motion as to the propriety of that House retaining the jurisdiction which at present belonged to it.
§ Mr. Bernal
agreed, that the right hon. Baronet the Member for Tamworth deserved the thanks not only of that House but the country, for his endeavours to provide a cure for the radical defects and evils of the present system of conducting the business of election committees. He was surprised at the arguments which had been used in favour of the appointment of assessors, and the reference, in support of that proposition, which had been made to the manner in which the judicial functions of the House of Lords were performed. It was proposed that one learned counsel should preside at each of the new committees; but it seemed to have been wholly forgotten in drawing the analogy that the House of Lords were not assisted by one learned counsel but by the twelve judges. That fact he thought made all the difference, and was conclusive against the argument. No measure could be produced, he admitted, against which objection could not be made; but the question was, would the plan of the right hon. Baronet remedy the effects and get rid of the evils complained of? At best all that could be done was to speculate on contingencies and clauses, but his fear was, that the measure proposed by the right hon. Gentleman would not answer the purposes intended to be effected by it. He believed the evils to be of such a nature that there was no escaping from them, for they 1103 should recollect when they complained of the partiality of the present tribunals, that there never was a time in the history of Parliament when parties were so equally balanced as at the present moment. He remembered well enough how the nominee system worked, and he could give them some curious details if it were necessary on that subject. After all, he believed the evils to exist in the state of the law rather than of the tribunals before which the merits of election petitions were tried. The law was so framed that nothing was more easy than to find loop-holes to creep out at and enable committees to decide differently without imputation of any kind resting on them. If they wished to do anything effectual for checking bribery and corruption, he was persuaded that they must reform the statute-book and make their enactments so stringent and intelligible that they could neither be evaded nor misunderstood. The registry, too, must be made final, for otherwise no advantage would be gained, take what step they might to correct abuse. He repeated his unfortunate conviction that they would never be able to satisfy either that House or the public so long as they suffered the decision in cases of controverted elections to remain in the hands of those who must fairly be regarded as interested parties.
§ Colonel Davies
regretted, that the right hon. Baronet had not been able to bring forward a more satisfactory measure. He could not give it his approval. With respect to the general Committee of seven which the right hon. Baronet proposed, by whom were they to be appointed? Why, by the Speaker. Now, could it be denied that the Speaker was liable to be influenced by party bias like all other men, and that his exercise of his power might be open to the imputation of partisanship? As to placing the whole matter in the hands of the judges, that would in his opinion be an equally fatal course to pursue, but, as he had no wish to go into the discussions he would reserve what he had got to say for some future occasion.
§ Mr. Shaw Lefevre
expressed his full and entire concurrence in the principle of the measure proposed by the right hon. Baronet the Member for Tamworth. That principle has worked well in reference to the sub-committees on standing orders, and he was disposed to continue to intrust to gentlemen of honour and integrity the 1104 adjudication upon election petitions, for he could not agree with the hon. and learned Member for Dublin, that because the materials of the committees were to be the same, the results of their decisions would continue to be dissatisfactory to the country. But it should not be forgotten that at present the Members drawn on the ballot, who, from their experience and knowledge of the law were best qualified to act, were invariably struck off, and none but the younger and most inexperienced Members were left on the reduced list. His opinion was, that if this plan was followed up, and confidence was continued to be reposed in the committees appointed under the new system, it must succeed.
§ The Chancellor of the Exchequer
said, that the right hon. Gentleman had one consolation in having introduced this bill, that whilst most persons admitted the difficulty of the subject, there was no difference of opinion upon the material point, namely, that his plan was a very great and essential improvement on the existing state of the law. The various faults which had been found with the plan proposed by the right hon. Gentleman, were not as comparing it with the present state of the law, but with other plans founded upon other principles, and which had only been suggested in abstract terms, giving them, therefore, a great comparative advantage over a plan of which not only the principle but the details were before them. He, however, thought that the plan of the right hon. Gentleman was not only good as compared with the existing system, but was good as taken upon its own distinctive merits. There were some points, notwithstanding, on which he should wish to reserve his opinion. One of them was as to the appointment of an assessor or judge. Not referring to present times, but referring to the past history of this country, he thought the preservation of the principle which recognized the exclusive jurisdiction of the House of Commons over the elections of its own members, was essential to the preservation of the liberties of the people of England. He could not understand the principle which would transfer to any body of men independent of that House the power of deciding upon the elections of Members of Parliament. The jurisdiction which the House now exercised, could not, in his opinion, be so transferred without endangering the highest constitutional principles of this country, and hazarding the rooting up of the elective and represent- 1105 ative system itself. He should look upon any proposition, therefore, of that description with the greatest possible fear and alarm. At the same time, there was a wide difference between such a measure, and the appointment of an assessor. He believed, that the plan of the right hon. Gentleman would get out of the same materials a much better and higher tribunal; but were they quite sure, that the general committee would be at all times able to secure in every one of the sub-committees which it was proposed the general committee should appoint at least one man, who would act with a zeal at once impartial and enlightened, and who would aid the committee in their deliberations, not on the merits of the case, but upon those technical questions upon which every gentleman now felt a miserable deficiency existing in the present tribunals? One word with respect to the argument of his hon. Friend, who seemed to think there was an inconsistency in the right hon. Gentleman's argument, in reference to the obligation of an oath. The right hon. Gentleman said, that when a committee was appointed as the present were, the obligation of an oath was not so strong as it ought to be; therefore, asked his hon. Friend, if the proposed tribunal was to be composed of the same materials, how would the obligation of an oath become at all strengthened? Now, the answer he would give to his hon. Friend was this: the mode of constituting the committee, made all the difference between the obligation of thee oath itself, notwithstanding the materials of that committee should be the same. One word as to an assessor. He looked upon him to be the successor of the nominee who was appointed under the Grenville Act. Until a very late period, the decisions of election committees were regarded with more respect, both by the House and the public than at present. What circumstance had tended to produce the change? He could not help thinking, that a greater mistake was never made, than the alteration of the law which excluded nominees from these committees. The nominees were men on whose capacities, intelligence, worth, and character, the parties concerned, could rely. By doing away with nominees, questions were left to the determination of eleven generally, of the most inexperienced persons in the House, deliberating in the absence of the public, and exposed to the arguments of able counsel, without any person whose especial duty it was, to make them well informed with re- 1106 spect both to the facts and the law of the case before them. The object which all desired to effect was, to get in some way or other within the committee, a person of intelligence, legal information, and judicial power. He would not give to such a man anything like political power in the committee; but they must, whatever tribunal was appointed, either revert to the system of nominees, or else provide a better substitute in the character of an assessor, to be charged with this important duty. He could not sit down without expressing his sense of the obligation which the House and the country must feel towards the right hon. Gentleman for the pains which he had taken upon this subject; and his hope was, that gentlemen, in discussing this bill in its future progress, would apply their minds singly and collectively to the improvement of its details—taking its principle as the basis of any measure they might ultimately adopt, in order to make it as satisfactory as possible to the public, and as creditable to the right hon. Gentleman as his great application to the question deserved. It was his opinion, that if the House reserved the authority which Parliament now possessed over election petitions, public respect would accompany them much more than if they were to pass sentence of incompetency upon themselves, and were to state, that whereas up to the present period, the House of Commons had been the safe depositary of the rights and privileges of the people upon this subject; but that now, in the year 1838, they for the first time, were ready to pass a species of self-denying ordinance, and dispossess themselves of the power they had hitherto exercised, and were willing to transfer it to another tribunal. He hoped the House would never come to this determination; for sure he was that there was no tribunal by which this jurisdiction could be exercised with equal safety to the liberties of the country, as the House of Commons itself.
Mr. V. Smith
fully agreed with the general determination expressed by the House, not to enter upon a discussion of the merits of this measure at present; but he trusted he might be permitted to refer to the question as to whether these tribunals should be constituted of Members of the House, or composed of other persons. He thought it would be perfectly possible to allow all petitions on election matters to be presented to the House, and then to refer them to a committee of lawyers to be appointed by the House, and by those means they would preserve the 1107 jurisdiction of the House, and at the same time get rid of the evils which were attendant upon the present system. He would take the liberty of observing, that, as it seemed to him, his hon. Friend, the Member for Hampshire, and the right hon. Baronet opposite, had been mistaken in supposing an analogy to exist between committees on private business and election committees. The evils that prevailed in committees of these different descriptions were of a totally different nature. In committees on private bills they had to guard against the interference of local and personal interests, but that was an object which was easily attained by selecting Members to form those committees, who were not personally or locally interested in the matter. It was no such difficult thing to find Gentlemen quite unconnected with a railroad or a canal bill; but where were they to find in that House persons without political interests to serve? Members of that House were ex necessitate politicians. His own very strong, impression was, that some such tribunal as he had alluded to must be constituted in order that justice might be done; and he owned he was not deterred from entertaining that impression by the constitutional argument employed by his right hon. Friend, the Chancellor of the Exchequer, because he thought that it did not apply. He had said, that he would not discuss the merits of the right hon. Gentleman's measure, and he, therefore, merely rose for the purpose of asking the right hon. Baronet a question with respect to the possibility of bringing on his measure at a time which would allow the House to legislate on this important subject this Session, for he thought that the right hon. Gentleman would agree with him in thinking that it was highly important that the House should legislate this Session upon the subject, inasmuch as the Session after a general election was a more likely time than any other at which this question would be taken up in such a shape as it ought to be. He, therefore, took the liberty of asking the right hon. Gentleman whether he could promise the House to fix a convenient day on which the second reading of his bill might take place.
§ Sir R. Peel
had devoted as much time as possible to the preparation of the measure which he now sought to introduce, and he held in his hand the result of his labours in the shape of a bill already 1108 printed. The delay which had taken place in its presentation was attributable to the inquiries which it had been found necessary to institute with respect to the subject of recognizances and costs. The Committee, however, were nearly ready to make their report, and, therefore, as far as he was himself concerned, he should be ready to bring in his bill in the course of a very few days, and he would select an early period for the second reading. Of course, he should be glad to fix such a day for the second reading of the bill as would meet the convenience both of its supporters and its opponents, and he should wish very much indeed that the sense of the House should be taken on the question of continuing the jurisdiction over election matters to the House, or of giving it to some other tribunal.
said, that there was one conclusion at which he had arrived upon the discussion of this question, and that was, that he never would consent to divest that House of its jurisdiction over election petitions. He verily believed, that it would be impossible to constitute a tribunal which would do justice, and which, at the same time, would not be liable to be controlled by some unforeseen circumstances, when it had once been established by Act of Parliament. But, said his hon. Friend, the Member for Northampton, "I will have a tribunal not consisting of the Members of the House of Commons, but, notwithstanding, appointed by the House." Why, he would contend, that the independence of such a tribunal would be gone the moment it was constituted. If it were appointed by the House, it would be the tool of the majority, and what kind of satisfaction would its decisions, in such a case be likely to afford to the minority. But let them take the other alternative, and suppose a tribunal above the control of the House, parties being, as at this moment, nearly divided. What would follow? Out of the three or five members of the tribunal there might be one—he would not say corrupt individual, though that might possibly happen, but there might be some—misguided person who might take an erroneous view of the law. Suppose, then, a series of decisions took place which altered the majority in that House, and he would say, that, in such a case, he cared not whether the majority was Tory, or Liberal, or Whig, the majority would be unduly altered. He was 1109 prepared to accede to a great many of the arguments used by the right hon. Gentleman. He thought with him that the responsibility of an oath would be greatly increased by the manner in which the right hon. Baronet proposed that it should be received. He admitted, also, that in matters of fact, such a tribunal, if of perfect independence and entire integrity, would be, making all allowances for the infirmity of human nature, as perfect a tribunal as could be constituted. But matters of election law, as all professional men knew, were attended with the greatest difficulty. In the very last committee on which he sat, was an hon. Gentleman who had been a Member of the House many years, and a more honourable man could not be found. A point arose for the decision of the committee, and he was told that the law was clearly one way. "I do not think the law ought to be so," said he, and he gave his vote accordingly. Now, did that hon. Member mean corruption? No, he did not; at the same time, it was the duty of an election committee to decide what the law was, and not what it ought to be. Another evil frequently occurred. Professional men were often consulted by Members of election committees on cases which came before them. Of course the circumstances were stated generally, but the mischief was the same. Three weeks ago a Member came and said to him, "What do you think is the law in such a case?" Now, the question which was then put to him was about as difficult as any which had been submitted to him in the course of his professional life, and one which he could not pretend to answer without looking into all the authorities, and giving the matter the most mature deliberation. And, what did the House do at present? They asked country gentlemen, for the most part ignorant of the law, to decide off-hand questions which, if submitted to the most competent members of the legal profession, would oblige them to say "give me time to look into the case," and which a judge, supposing him to be sitting in banco, and not at nisi prius, would take time to consider. Therefore he agreed with the hon. and learned Member for Ipswich, in thinking that, in the present complicated and difficult state of the election law, if they meant to have the law observed and justice done, they must have persons acquainted with the great principles of law and the leading rules of evidence to point out to the 1110 committee what was the proper course for them to take. Now the manner in which he would carry this into effect would be thus: he would give these persons no vote, but he would oblige them to declare their opinion openly before the public, and he would have the lists of divisions in the committee published. He would have their statement of the law put in such a shape that the House might easily judge what was the question to be decided, and then, if the decision of the committee were contrary to the common sense of the question, the public would view their proceedings with suspicion. In another respect he agreed with the Attorney-general, when he expressed a wish that the House should retain the control over election matters, in order that it might be able, not indeed to make many alterations, but to remedy from time to time defects in the existing law. He could not help regretting that the proposition of the noble Lord, the Member for North Lancashire, for the settlement of disputed questions on the law of elections, had been so hastily withdrawn. He doubted, indeed, whether a committee of that House could prepare a complete digest of that system. Such a subject must be dealt with by professional men, and much time would elapse before they could produce any thing like a well digested plan. But, although he did not think that a committee of the House of Commons would be the best calculated for the consideration of such a subject, he thought that the Government, with the powers which were consigned to them, might bring the question before Parliament; and although, perhaps, they might not be able to present a complete digest of the system of election law, yet they might get rid of some of those disputed points which day after day consumed the time of election committees, and were discussed by them usque ad nauseam. Thirty years ago he was unfortunate enough, as a just punishment for all his sins, past, present, and to come, to be put on his trial for fourteen days before an election committee. He examined the decisions to which that committee came as a lawyer, and the result was, that, out of twenty decisions, there were eleven on one side and nine on the other. He considered that the proposition of the noble Lord, the Member for North Lancashire, would, if it had been carried into effect, have gone a great way to remove evils of this nature.
§ Viscount Howick
entirely concurred with his hon. and learned Friend who had just resumed his seat, and also with the right hon. Baronet, as to the extreme impolicy of any transfer of jurisdiction upon this matter to any other tribunal, and he confessed that the hint just thrown out by his hon. Friend (Mr. V. Smith) seemed to him calculated to make any such proposition more objectionable than he had at first supposed; because if he understood his hon. Friend correctly, what he proposed was, that some tribunal, consisting of lawyers, should be appointed to investigate and report to the House, leaving it to the House to determine in the last resort whether the judgment given by that legal tribunal should be binding or not. This seemed to be a revival of all the evils that existed previous to the passing of the Grenville Act. If the House should have the nominating of this legal tribunal, it would give rise to all the struggle attending the nomination of the present committees; and, again, when that tribunal should have formed their opinion, they would have a similar struggle upon the question whether the judgment of that tribunal should be binding upon the parties. That he thought would be a more objectionable plan than even the proposition for removing altogether the jurisdiction from the House. But his object in rising at the present moment was strongly to urge upon the right hon. Baronet the importance of considering more fully the inconvenience which would result from omitting that part of the measure recommended by the committee which sat two years ago with respect to the appointment of an assessor. In addition to what his hon. and learned Friend had just stated in favour of that appointment, he would call the attention of the right hon. Baronet to the great advantage which might be derived from these assessors as a court of appeal from the revising barristers. He thought the suggestion to this effect contained in the measure of the hon. Member for Liskeard was one of the most valuable and important parts of it. He believed that if they were to have three really good and competent assessors to preside over the meetings of the election committees, and these three assessors were to constitute together a court of appeal in matters of law from the decisions of the revising barristers, they would have the means in a very few years of removing a great number of those questions which led to the presentation of election petitions at all; and 1112 would cut off that source of those proceedings which, in whatever manner determined or tried, never could be free from the greatest inconvenience. It would further enable them to determine what he thought would be one of the greatest possible improvements in the existing state of the law—namely, that a vote once put upon the register should no longer be contested. He quite understood the objections which many hon. Members felt to such a provision in the present state of the law—that of making the decision of the revising barrister, a person frequently not of much legal experience, final and irreversible. He would also suggest to the right hon. Baronet, that he might obviate that which had hitherto practically been a great difficulty in the way of the appointment of these assessors—namely, as to the mode of their appointment. It was known that in the bill which was formerly proposed a great difficulty was felt upon this subject. He believed, that the proposition to leave the appointment to the Speaker was not approved of by that right hon. Gentleman; and when they came to inquire what gentleman would take the appointment, it was found that no lawyers in great practice and of the station and eminence requisite for such a situation would consent to put themselves in the invidious position of having allowed their names to be placed in the bill without the certainty of the bill passing, or the appointment taking place; because that would have been undervaluing their own practice, and holding out to solicitors and other parties that they had no permanent views as professional barristers, which, in the event of the bill not passing, might almost lead to their ruin. But it seemed to him that the general committee which the right hon. Baronet proposed to create might most suitably and properly be intrusted with the duty of filling up these appointments. There was another point to which he begged to call the attention of the right hon. Gentleman; he concurred with the right hon. Gentleman that one great fault of the bill of the hon. and learned Member for Liskeard was, that it proposed to continue the system of balloting in the House; thereby offering a constant temptation to party excitement. The right hon. Baronet had not at all over-stated the objection to that part of the hon. and learned Gentleman's bill. But, on the other hand, he would ask the right hon. Gentleman whether he did not apprehend that very great difficulty would arise from imposing upon the 1113 general committee the duty of actually naming the individuals who were to constitute the election tribunals? The moment they should get rid of the present strong party-desire to obtain a majority on the committee, that moment a reluctance to perform what then would become a very laborious and disagreeable duty would necessarily recur. All sorts of excuses would be brought by hon. Members before the general committee, and in dealing with those excuses there would necessarily arise great difficulty; and whatever decisions the committee might make, there would unquestionably be created no little grumbling and dissatisfaction. He would, therefore, ask the right hon. Baronet to consider whether he could not obviate the objection which was entertained to the bill of the hon. and learned Member for Liskeard, on the ground of the party excitement created by assembling the House for a ballot; and, at the same time, obviate the difficulty to which he had just alluded, by adhering to ballot as the mode of choosing the Members of the committees, but having the ballot conducted by the general committee and not requiring the presence of the Members to be selected. This would make it necessary to recur to the recommendation of the committee which sat two years ago, that the House should be divided into panels from which election committees should be taken alternately. Otherwise, be feared that if the general committee should name Members to serve on a particular committee, long before the time for entering upon the inquiry the persons thus nominated would soon be liable to the system of canvassing, which it was so difficult to guard against, which was painful to the Members, and was highly objectionable in practice; whereas if the Members were named only a short time before they were required to attend, Members would be subject to great inconvenience from being suddenly called upon, and it would require the almost constant presence of Members in town. These difficulties would be removed by dividing the House into panels, and then by selecting the names, not, he would say, by open ballot in the House, but by the general committee which the right hon. Baronet proposed to appoint—let the House even be divided into a greater number of panels than the committee to whose report he had referred had recommended—let the general committee, in making this division, take care that each panel should contain a fair proportion of Members from each side of 1114 the House, of experienced and inexperienced, of legal and unlearned Members, and then let the Members in each panel be informed the time when they must hold themselves in readiness for attendance. He would not revive the system of ballot, but the whole names in the panel might be put into glasses, and the general committee might, in private, conduct a ballot and choose the names for each committee, drawing also a supplemental list, which he would propose to keep sealed up till required for use, and to open only in the event of some reasonable objection being shown by the parties to exist to any of the names on the original list, or in case some of the Members so drawn should have any valid excuse to offer from serving on the committee. In this manner, the general committee would be relieved from the odium of imposing a very onerous and disagreeable duty on particular individuals, who, however fairly they might be chosen, would, no doubt, be very apt to complain of having been singled out to undertake it, while if each Member of the House stood his equal chance of being required to give this service, there would be no room for such complaint. He had thought it desirable to suggest for the right hon. Gentleman's consideration the difficulties in the practical working of his bill which had suggested themselves to his mind, and at the same time to point out what to him appeared the simple means of remedying the probable ill effects of one part of the proposed plan.
Mr. S. O'Brien
said, that he had a plan to propose, which, in his humble judgment, would be more effectual in procuring the object all had in view than that proposed by the right hon. Baronet. If he had heard any thing in the scheme proposed by the right hon. Baronet likely to simplify the mode of deciding election petitions he would not now have intruded on the House any plan of his own; but he was convinced that that plan would not remove the present evils, while it would run the risk of creating others now unknown. Therefore, with all deference to the superior judgment of the right hon. Baronet, he must persist in submitting the plan which, in his judgment, was best calculated to promote that object. He felt, that such conduct, on his part, was very presumptuous—but, on the other hand, he thought that all hon. Members would concur with him in acknowledging that public opinion pronounced against the impartiality of their decisions. The 1115 question, then, was, what scheme could be devised to set the House right with the public; and he thought it was the duty of every Member, however humble might be his claim on the attention of the House, to put forward such suggestions as might occur to him in promoting the general object. He would not now enter into details, but he thought he would be able to show, that the plan he would have the honour of submitting would possess the principal requisite to secure impartiality and competency in the judges of election petitions. His proposition would go to expunge all the clauses which left any discretion in the body of the House, and to confine the decision in each case to three barristers. He believed, that this was the only method of securing the impartiality of the judges, the competency of the tribunal, uniformity in the decisions, and a cheaper and more expeditious process of trial than would now be attained. He thought that these were the requisites for which, in forming a new tribunal, they ought to look, and his plan would not be liable to the objection of taking the power out of the hands of the House, because the tribunal which he suggested would emanate from and be responsible to the House itself.
§ Mr. Goulburn
said, that all must wish to mature a sound plan without reference to party feeling. He concurred for the most part in the general feeling of the House, that in the measure of his right hon. Friend behind him there was much that recommended itself to the attention of the House. He would not enter into any lengthened discussion in that stage, but would content himself with briefly referring to some recommendations which had emanated from hon. Gentlemen opposite. As to the appointment of assessors, hon. Gentlemen had argued rather with reference to the tribunal which at present existed than in reference to that which would exist under the Bill of his right hon. Friend. At present the rule of striking cut the names of the most intelligent Members, and leaving on the committee only those who were least informed on the matters to come under their consideration, and professedly calling upon the Members thus selected to decide legal points of which they were ignorant, rendered it necessary that an officer should be appointed to each committee possessed of some legal knowledge; but if, instead of having on these committees men little 1116 conversant with the law, they had the assistance of the best informed and most distinguished Members of the legal profession, belonging to the House, he could not conceive what good effect would be produced upon such a committee from the appointment of an assessor. However high in his profession such assessor might be, and however respectable his authority, it might happen, that he would not have the same legal erudition as some of the Members over whom he was to preside; and if a difference should then occur between them, if the assessor should give an opinion one way, and these more erudite lawyers should decide otherwise, what would become of the legal character of the assessor? When he next went into a committee his legal knowledge would be doubted, and his services would thus be rendered less efficient, and it would be difficult to give him that authority over the committee with which it appeared so desirable to invest any legal advisers. On one point, however, advanced by the noble Lord (Viscount Howick) he concurred. He thought that difficulty might arise in securing the attendance of Members who might be nominated on committees of this sort, and that some means might be taken to prevent the imposition on themselves of this onerous duty; but he thought at the same time that the remedy proposed by the noble Lord would make matters worse. If the House were divided into panels, and the committee were then selected from the panels by ballot, what security would the House have that the least learned Member in the panel would not be chosen? There would not be the same evil of partisanship as at present existed, but there would be at least as great an evil as was experienced with respect to the character of the persons forming the tribunals, and from the want of information on their part, whereas by his right hon. Friend's proposition there would be so much impartiality and discretion in the tribunal as to secure a fair decision.
§ Mr. Hume
wished to direct the attention of the right hon. Gentleman to the immediate and effectual mode of lessening the difficulties which came before committees, by introducing some measure to reconcile the contradictory decisions of the revising barristers. He would venture to say, that out of every twenty-seven decisions upon different points at least twenty-five were contradictory. He was personally con- 1117 versant with several. The proprietors of the shares in the New River Company were put on the list in one county one year, and taken off in the same county the next, whilst in the neighbouring county their claims were rejected in one year and admitted in the following: indeed, he had seen two barristers sitting for the same courts, differing upon the same point, one being for the admission of one class of votes and the other being against them. Nothing was so disgraceful to the representative system as the state of the registration, and if the right hon. Baronet would give half the consideration to the proposal which had been made for the amendment of the registration and the appointment of a court of appeal which he had devoted to the constitution of election committees he would accomplish much good. He did not say that the bill which in a former Session had passed that House to amend the registration was complete in all its parts, but if it had been adopted the experience of one or two years would have enabled the legislature to apply a perfect remedy: it would have procured uniformity in the decisions, and would have removed those hard contests which now took place in the registration courts, where parties were keenly opposed, and which were so disagreeable to all. It now too frequently depended on the manner in which the evidence was got up in different years whether the same party was put on or struck off the register for the same qualification; and yet, notwithstanding these great evils, a great deal of the public money was expended, and much more than would be necessary under an efficient system. He would not enter into a discussion of the details of the bill then before the House, but he sincerely hoped that the right hon. Baronet would direct his attention to an amendment of the system of registration, and he would then leave so few points for the decision of election committees as materially to lessen the difficulties under which they now laboured.
§ Sir Robert Peel
in reply remarked that the question of registration was perfectly distinct from that before the House. He admitted that nothing was more important than a simplification of the election law, and though the subjects were distinct, he would not say that it was impossible to amend the system of registration, and at the same time to lessen the duties of the tribunals he proposed to appoint. But if there were great difficulties in the way 1118 of improving the system of registration, that was no reason why they should not improve the tribunal for the trial of controverted elections. It was a great misfortune that the law was not simplified; this point, however, he considered; and there were many points in the settlement of which no political difficulty would arise, whilst for others, such as the right of trustees to vote, and the opening of the registry, there might be great trouble; but if they failed on these points, they might go as far as they could in simplifying the law in such cases as how the distance of seven miles should be measured, and how many others. He wished, also, that they could establish some efficient court of appeal from the courts of the revising barristers, and thus provide a settlement for many of these disputed points of law. It had been suggested, that this might be done by referring the points to three of the judges; but he was unwilling to mix up the judges with such matters; he knew that the judges in Scotland were so rejoiced when the consideration of the free-hold rights—by which much trouble was occasioned to them—was removed from them, that he deprecated giving to a judge any interference in political matters. Hon. Gentlemen had said, that the settlement of the question of the proper constitution of election committees was a difficult task, and he could assure them that it was not without a due sense of this difficulty that he had made his proposal; but he thought, that by avoiding every thing like party spirit the difficulty would be lessened; and he entertained a strong conviction, that unless the measure which he had proposed should meet with the general assent of the House there was not much hope of a settlement. His plan was to establish a tribunal on which more reliance could be placed, and which was more trust-worthy than the present Committees. With respect to the objection against vesting the power in the hands of the Speaker, whose main object must always be to conciliate the good will of the House, he thought that the Speaker would look to far higher objects than consulting the interests of party, and that it was more unlikely, because no advantage which he would gain for his party would counterbalance his desire to maintain his character for impartiality, on which his influence in the chair greatly depended. Whoever entertained a dread on this account, showed great ignorance of the 1119 general laws of human nature. He proposed, that the number of Members on the general committee should not exceed four or six; he thought four would be the best number if the House were pretty equally divided into two great parties, but as it might be desirable to provide for other parties, he had no objection to extend the number to six. The noble Lord (Howick) had referred to the invidious duty which would devolve upon this general committee of compelling the attendance of Members on the Election Committees, but this difficulty would principally apply to the first Session following a general election; because afterwards Members would easily know when a petition was to be heard. But when the noble Lord stated the hardship which would be imposed on Members by a necessity for their attendance, he rather undervalued the obligation which Members contracted towards the public. Members of Parliament had particular duties towards the public which they ought to discharge, and reserving to the House the right to grant leave of absence for cause shown, he thought it was but fair and right to expect that those who sought the honour of becoming one of the Representatives of the people in Parliament would be in attendance to perform their duties. It might be possible to divide the House into panels, and then to fix each panel for a particular week; but he greatly objected to the selection of the Members of the committee partly by chance and partly by open choice; he deprecated mixing up the two means of naming the tribunal, and if they used the ballot they would still run the same risk as they did at present, that the Members of the committee would not have proper Parliamentary knowledge and experience. It might happen, that the first seven names drawn on the ballot should be those of Members holding strong opinions upon the points to come before them, or of Members entering Parliament for the first time, or of those who of all the names in the panel were notoriously the most incompetent; he thought, therefore, that the system of selection should be complete throughout, and that nothing should be left to chance. With respect to the appointment of assessors, it might quite consistently with his plan be engrafted upon it. But there was great difficulty in appointing assessors. If they were to be efficient and skilful, their 1120 remuneration must be sufficient, their appointment must be permanent, and they must be limited in number. Now, suppose they had three assessors; unless the House provided for them some other business to perform they would be overloaded with business in one Session, whilst they would have comparatively little to do in another. But would three, or any limited number be able in some Sessions to afford sufficient aid? It was desirable to dispose of all election petitions as soon after the meeting of Parliament as could be done with a due regard to justice. Now, he did not see any difficulty in six or seven committees sitting at one time, or any other number which could insure the attendance of able counsel. Suppose they had three assessors and six committees, they could only provide assessors for three, and they must either postpone the petitions till the assessors were disengaged, or take the only alternative of appointing others—deputy assessors, not holding a permanent or independent appointment; and would they, acting pro hac vice, give the same satisfaction as those holding the permanent appointments? Then, with respect to the permanent appointments, the time would come when it could not be said that these officers were unfit for work, but when they would be less capable of exertion; they must, therefore, make some provision for their retirement, and nothing was so inconvenient for the House to be saddled with as permanent appointments, without making a provision for the retirement of the officers, even before the intellect was impaired by age or infirmity. It might thus he found, that even three or five assessors, whom it would not be desirable to retain, and yet towards whom so strong a feeling of personal respect would be entertained, that no one would like to say, "The time is come for suggesting to the archbishop that his sermons did not give satisfaction." For himself, he expected that with the new tribunal an entirely new feeling would arise; that the amended Committee would approach the inquiry with feelings totally different from those entertained at present. As he proposed that the eminent legal Gentlemen in the House should attend these committees, if the hon. and learned Gentleman, the Attorney-General, should be on one committee, and his learned Friend, the Member for Exeter, were on another, and an assessor were appointed 1121 who should manifest any inferiority of character or professional talent, yet he would be a permanent officer, whilst his inferiority being known, his authority would be lessened. If the present system were to continue of appointing on Committees young men who entered Parliament for the first time, he saw no remedy but in appointing assessors; if, however, one of the highest law authorities were on each side of the same Committee, he believed, that no lawyer sitting on a Committee, and in face of the public, would give anything but pure law and administer anything but justice. He hoped, therefore, that hon. Gentlemen would well consider the difficulties in the way of appointing either merely temporary assessors or a permanent tribunal formed of a small number of lawyers. If, indeed, they could find employment for these assessors in determining appeals from the decisions of the revising barristers, their attention to the subject would be sufficiently continued to ensure their knowledge of the law. But they would be entirely useless unless they were permanently appointed, or at least "quamdiu se bene gesserint," and unless a retiring allowance were provided. He wished the hon. and learned Gentleman, the Member for Dublin, who had objected to this measure, would introduce his own and have it printed. He could not believe, that any man could effect any real improvement unless he should specify the mode in which he proposed to secure the object which he professed to have in view; but above all things he desired to see the plan of the hon. and learned Member, which he understood consisted of the appointment of judges, acting with juries, and in whose decisions there was to be unanimity. It was a plan which to him scarcely seemed feasible; but, of course, until its terms were proposed to the House he could give no decided opinion upon it. There was one ingredient, however, which seemed to present fair grounds for objection. A case was to be submitted by a committee of five for decision. Now, although it might be very possible that a case might be agreed upon, yet the House must be aware that the mode in which the question was put would be very material in considering the decision which might be come to, and might, in some cases, tend very considerably to induce them to give judgments very different from those which would be produced by other state- 1122 ments which might be agreed upon. He sincerely hoped, therefore, that when the hon. and learned Member should bring forward the system which he advocated, he would bring it forward, not in the form of an application for a Select Committee to inquire into the propriety of the House parting with its jurisdiction, but in such a manner as that the principle to be acted upon, as well as the practical plan, would be laid before the House. If this course were not pursued, he had no hesitation in saying, that the House would make no progress whatever in the matter; and he, therefore, most strenuously urged the hon. and learned Member to bring the whole subject under the consideration of the House, with a view to its being fairly considered as a whole at once. For his own part, he could not see what benefit could be derived from the appointment of a Select Committee, for he could never consent to its being left to a Select Committee to decide a question of so grave importance, as whether the House should part with its jurisdiction or not. He had always been most anxious and ready to defend the privileges of that House; and although it might be said, that he had a reason for supporting these privileges, as well as the prerogative of the Crown, yet he had no other reason for so doing than that which in common every other Member of the House had—a desire to uphold and to support to the utmost of his power the true interests of his country. It was for the House to consider both equally, and to consider well the moral influence which would be produced on the public opinion by the proceedings of the House of Commons, if, after having established their power as against the Crown itself in times of arbitrary interference, and as against the House of Lords when attempts at encroachments on their privileges were made, they should consent to give up their power to some tribunal to be appointed by the Crown; (for who else would appoint the officers who composed it, independently of themselves?) And who would have the power of deciding the questions of whether Members of Parliament should retain their seat or not?
§ Leave given.