HC Deb 14 February 1839 vol 45 cc379-432
Lord Mahon

said, that he rose according to his notice to move, that in the trial of controverted elections, the objects of justice, uniformity, and dispatch, would be best attained by a tribunal not consisting of Members of Parliament, and when he considered the weight and authority of those from whom he differed on this question, above all, his right hon. Friend the Member for Tamworth, whose abilities he so highly revered, and whose guidance upon other questions he was proud to follow: when he considered also the long parliamentary experience and constitutional knowledge of another right hon. Friend, the Member for Montgomery, then he felt ready to give way in reverential silence; but when he recollected, on the other hand, how enormous and intolerable were the present abuses, and when he reflected, that the remedies proposed played over the surface, but never reached the root of the disease; when he saw the absolute necessity of some effective remedial measure being at length adopted, and believing also, as he did, that the public feeling out of doors was in accordance with his own upon this question, then he felt not only encouraged to persevere, but inclined to hope, that the measure which he should submit, might receive the sanction of this House. In bringing this question forward he should earnestly endeavour to avoid whatever might tend to provoke political animosities or party feelings. Whatever opinion he might entertain, and he certainly did entertain a strong opinion as to the decision of particular committees, he yet on this occasion should refry in from discussing them, and he thought he should best discharge the duty he had undertaken, if he argued the motion he had to submit on general grounds alone. There was one point on which they were all agreed:—this was no party question. He trusted that was felt by every hon. Member. Each of the two great parties arrayed around him and before him had been reduced, and might be reduced again, to a small minority; each had, therefore, a strong interest to protect itself against being overwhelmed by numbers in controverted election committees; and this must be to each of them of far more importance than any little advantage that might be gained on either side by the continuance of the existing system in this or in the ensuing Session of Parliament. His right hon. Friend (Sir R. Peel) in the luminous speech with which he introduced this question to the House, on the 2d of April, last year, pleaded for this privilege on a ground on which he (Lord Mahon) was sorry to be opposed to him. His right hon. Friend told the House, that this was a privilege wrested, by the Commons from the Crown in the reign of Queen Elizabeth, in the case of an election for the county of Norfolk; and he said that ever since then the Commons had enjoyed that privilege uninterruptedly, and that its high antiquity and venerable origin were a strong ground for continuing it. As to the historical fact he was under the necessity of differing from his right hon. Friend. It was undoubtedly true, that a discussion, which arose in the time of Queen Elizabeth relative to a return from the county of Norfolk led to the establishment of this privilege on the part of the Commons; but it was a mistake to suppose, that the privilege had since that time continued altogether uninterruptedly to be enjoyed by the Commons. On this point he would venture to oppose to the opinion of his right hon. Friend, the statement of another eminent statesman, who had also filled the office of prime minister, and who was the founder of that law, under which the tribunal for trying controverted elections, was at present constituted he need hardly say, that he meant Mr. Grenville. On the 7th of March, 1770, Mr. Grenville observed— That the present mode of trial is not warranted by the ancient usage of Parliament is well known to every Member conversant with our history, for even at so recent a period as the Revolution, triers were particularly appointed to determine on the merit of petitions, and these triers generally consisted of the most illustrious personages of the upper House of Parliament; but gradually to give their decision a greater air of solemnity, the whole House attended, though the triers were usually guided in their opinion by the law lords. He trusted the House would not mistake his intention. He was not arguing for one moment that to refer controverted elections to the decision of the House of Lords, could be otherwise than a most unconstitutional and blameable proceeding. But his argument was, that that watchful jealousy of the Commons' privileges which his right hon. Friend had ascribed to our predecessors did not in reality exist, and that they were not disposed to refuse in some degree a concurrent jurisdiction over controverted elections, even to that place against which the very strongest objections should prevail. He would only further say, upon this part of the subject, that the opinion of Mr. Grenville would be found to be confirmed by several entries in the journals of the House of Lords. He would mention one or two only. On the 8th of May, 1661, "receivers and triers of petitions" were appointed; and on January 10, 1662, he found it was "ordered, that the judges be desired that they will appoint among themselves one of their number to attend the Lords' committee of petitions, on the days of their sitting, for their assistance." This he admitted, did not very fully bear out, but it certainly threw some considerable light on the opinion given by Mr. Grenville on this subject. When after the Revolution whatever might have been the case before it, this House claimed or exercised the right of trying controverted elections; at that period, he need scarcely mention, that election petitions were heard before the House at large, and not before a committee as at present; the whole House received evidence at the bar, and came to a decision without the solemnity of an oath, which decision was made nearly upon the same ground as any other party question. Much as they might think of the abuses of election committees of the present day they were infinitely exceeded by those which prevailed at that period. It might be sufficient to mention, that at the period of the resignation of Sir Robert Walpole, questions of controverted elections were brought forward for regular party discussion. No doubt whatever was raised as to the facts of the case; there was no dispute about the evidence received; no, the only question with each Member was this—"Does this return make for, or against the party, whom I support?" There was a remarkable instance of this in the opinion given by the son of the prime minister of that day, Horace Walpole, in a letter addressed by him to Mr. Horace Mann on the 31st of December, 1741. He wrote thus:— The court will have a majority of forty—a vast number for the outset; for a good majority is like a good sum of money, it soon makes itself bigger. The first great point will be the Westminster petition; another, Mr. Pulteney's election at Heydon. It will be an ugly affair for the court, for Pulteney has asked votes of the courtiers, and said, Sir Ro- bert was indifferent about it. But Sir Robert is warmer than I almost ever saw him, and declared to Churchill, of whom Pulteney claims a promise, that he must take Walpole or Pulteney! Such were the ideas of justice which in those days existed with regard to controverted elections. In fact, what was it that produced shortly afterwards the fall of Sir Robert Walpole? Was it any of those great questions which had agitated the country in the twenty years of his administration—was it the Spanish war, was it the Excise bill, was it the Hanover Treaty? No, Sir— Finem animæ, quæ res humanas miscuit olim, Non gladii, non saxa dabunt! No, Sir, the fall of that great Minister was produced by a decision upon an election petition from Chippenham! That petition was decided on a party vote, and was carried by a majority of only one; and upon that one vote Sir Robert Walpole resigned. Such was the state of things when Mr. Grenville, thirty years after, brought forward his plan of reformation; and now, when they saw, that the law of Mr. Grenville must be further amended—now, when he supposed that there would be scarcely one voice raised to support the continuance of the system as it existed at present—let them at least do justice to the high and pure motives which inspired, and to the long-continued success which attended the efforts of Mr. Grenville. There was a remarkable statement on record of the motives of Mr. Grenville in proposing that act. Mr. Knox, who was Under-secretary of State, had left an interesting account of a conversation which he had with Mr. Grenville at Wootton, only a few months before Mr. Grenville brought in his bill, and less than a year before he died: Mr. Grenville told me, that he found his health and spirits very much declined, that he had given up all thoughts of office and did not wish to take any active part in public business; and indeed, he continued, with a deep sigh, and putting his hand upon his side, I am no longer capable of serving the public. My health and spirits are gone. The only thing I have any intention of doing is, to endeavour to give some check to the abominable prostitution of the House of Commons in elections, by voting for whoever has the support of the Minister, which must end in the ruin of public liberty, if it be not checked. It was with this motive that he proposed his measure in 1770. It was first made temporary, and afterwards made permanent. It subsequently received various changes and modifications in detail, with a statement of which he need not detain the House; but he must say, that he thought the Act of Mr. Grenville for a very long period, imparted substantial justice, and gave nearly universal satisfaction. All those Members who entered the House some fifteen or twenty years ago, with whom he had spoken on the subject, had borne witness to him, that at that period the Act of Mr. Grenville was considered to do entire justice, and that there was scarcely a murmur of discontent against it. Of course, here and there abuses might exist in that as in all human institutions—still, as a rule, that Act gave general if not universal satisfaction. If that were the case, what was the cause why that Act at the present day gave almost universal dissatisfaction? Why was it, that among the various opinions that might that evening be urged by Members of that House, not a single voice would be raised to advocate the continuance of Mr. Grenville's Bill? Why was this? He believed it to arise from the altered composition of the House since the reform of Parliament. Let the House just consider how that change affected election committees. Previous to the Reform Bill, there was a large body of Members returned by boroughs in schedule A., or by small corporations which were now disfranchised. This large body, amounting, perhaps, to 150 Members, not having to make any detailed declarations on the hustings, or to give any decisive pledges to their constituents, and not being liable to any direct popular responsibility, were not in the habit of attaching themselves devotedly to any political parties. The majority of them were considered impartial men. They might have their bias, but still, in general, they were ready to support measures either against the Minister, or against the Opposition, as the merits of those measures appeared in their minds to preponderate. That was undoubtedly the state of things existing in that House previous to the Reform Act. He was not going to enter into any political considerations respecting the change from that state of things; but, with reference to election committees, the result was this; before the Reform Act, in reducing names from the first list of 33, each party would, naturally, strike out the names of the more decided partizans, so that on the reduced list of eleven there were always at least two or three of those persons left, whose general opinions partook very little of a party character—who were men not of strong party attachments, and who, therefore, acted as a moderating power in the committee. It was not possible then as at present to pronounce beforehand with perfect accuracy, that there were six Ministerial members and five Opposition members on such a committee, that on another committee the Opposition had seven, and the Ministerial lists four; and no probable prediction could be hazarded from the unrestrained political bias of the majority. In former days, though it was possible there might be three or four decided Opposition Members, and three strong friends of the Government, yet there were also two or three Members who were not of any decided bias. The result was, that those few Members preserved the balance in the committee, and prevented a reckless and undisguised conflict between two directly opposite opinions. If the House would consider the effect of the presence of those few Members upon the election committees, they would find that whatever might be the result of their position upon other political questions, they undoubtedly did tend to effect a result upon the decisions of an election committee in the manner which Mr. Grenville contemplated when he brought his bill into Parliament. But the same materials no longer existed. He presumed that he should be guilty of no disparagement to that House, if he said, that they had now become nearly all very decided partisans. He believed, that there were not more than five Members of that House who were not connected with any decided political section. He did not think, that it was possible to name more than five. Every Member was now called on to declare his opinions without reserve on a popular hustings, and the pledges which they gave to their constituents debarred them from afterwards displaying that impartiality which existed among the Members of the smaller boroughs till the Reform Bill was enacted. He came now to the practical question, what were the evils which existed under the present system? The resolution of which he had given notice, stated the ends to be attained by Election Committees to be three—justice, uniformity, and despatch. He asserted, that under the present system not one of these objects was effectually attained. He could not argue the first part of the question, in consequence of the resolution which he had formed of avoiding a political discussion. He thought, however, that he might appeal to the general feeling of the House, which, he felt assured, would not allow his case to be damaged in his hands by his anxiety to avoid the occasion of a party discussion. He would take the liberty of quoting the words used by Mr. Grenville when he proposed the act; and he would leave it to the House to decide whether the description did not apply with equal force to the present time. The following words were made use of by Mr. Grenville on the 28th of February, 1770:—"Sir, instead of trusting to the merit of their respective causes, the principal dependence of both parties is their private interest among us, and it is scandalously notorious that we are as earnestly canvassed to attend in favour of the opposite sides as if we were not bound to act by the principles of justice, but by the impulse of our own inclination. Nay, Sir, it is well known that in every contested election many Members of this House who are ultimately to judge in a kind of judicial capacity between the competitors enlist themselves as parties in the contention, and take upon themselves the management of the very business upon which they should determine with the strictest impartiality. Thus we have frequently, I blush while I declare it, seen justice sacrificed to numbers, and oppression exalted on the shoulders of a giddy majority into the sacred seat of legislation." The second object which he sought was uniformity, and, if it were possible, this object had been more lost sight of than the former. The alternations were now such, that he did not hesitate to say, that even a consistency of injustice would be preferable to the system of constant change from justice one day to injustice the other. Let him, without deviating from the rule he had laid, down, and without entering upon party questions, instance the two committees which sat on the returns for the city of Dublin. In the first it was decided that the payment of certain rates and local taxes did confer the right of voting, and the result was, that the hon. and learned Member (Mr. O'Connell) was declared not duly elected. A general election took place, the same hon. and learned Gentleman was again elected, the circumstances were precisely the same, but there was a different committee, that committee came to a directly opposite decision, and the result was, that the hon. and learned Member kept his seat. He was not saying which committee was right, or which wrong, but he presumed, that all would agree that they could not both be correct, and he unhesitatingly declared, that, with regard to the character of the House, with regard to the ends of justice, and with regard to public opinion, it would be far better to have decisions which were designedly wrong, than to have them first one way, and then the other. The third object was despatch, combined with the important object of economy. How was that affected? According to the present system, the duty of trying the merits of contested elections must be only subsidiary with Members of that House, their legislative functions, of course, being primary. Now a regularly constituted legal tribunal would make this its chief and paramount duty. The Committees at present met, at the earliest, at ten, and adjourned at four; whereas a legal tribunal could both meet earlier and sit later. Another still more pregnant cause of delay arose from the inexperience of many hon. members in the law. In some cases, for instance, which he had seen reported, it appeared to him that a very large portion of the time of the Committee was taken up by hon. Members asking the learned Counsel questions of law. First, they had to learn the law, and afterwards to dispense it. Bystanders, in fact, would be led to suppose, that what presented itself to their eyes was not a national court of justice, but rather an academy, where certain juvenile Members of Parliament were taking lessons in jurisprudence from some venerable gentlemen in a wig and gown. The system of "striking" tended still more to deteriorate the materials of which these tribunals were composed. The art of striking had, in fact, become a regular science. He (Lord Mahon) did not pretend to be more than an apprentice—he had not as yet been initiated into the deeper mysteries of the craft. One fundamental rule, however, was, that if, in the whole list of thirty-three, there should be found an hon. Member far advanced in years—affected by any bodily infirmity—he should by all means be left on that Committee. There was also a marked preference exhibited for very young Members, more especially for those who were known not to have made the law their study. Had any other instance ever been known to exist in civilized society where bodily infirmity and mental inexperience were considered highly favourable qualifications for the exercise of judicial functions? These, then, as he thought, were the evils of the present system. There seemed to him to be a total want of justice, of uniformity, and of despatch. He had next to consider what were the remedies which they ought to apply?—and here he came to an examination of the bill of his right hon. Friend the Member for Tamworth. He thought that all would agree, that great merit was due to his right hon. Friend for having turned his mind to this important subject amongst the many others which claimed his attention. He must say also, that there were some parts of his right hon. Friend's bill with which he cordially concurred. With regard, for example, to the question of election recognizances, he had not heard one dissentient voice in the House on that part of the scheme. And why was this? Because it went upon the principle which he was anxious to establish throughout, of putting the legislation entirely out of the House. With this part, as he had said, he cordially concurred, and if the House would give him leave to bring in his bill, he did not know whether his right hon. Friend would excuse the plagiarism, but he would gladly take several clauses, verbatim et literatim, relating to election recognizances out of the bill, and insert them in his own. On some other points, he (Lord Mahon) also concurred as he should presently explain, but with respect to the main principle of keeping the jurisdiction in election Committees of the House, and there seeking a remedy for the present evils, he must, with equal frankness and honesty, declare, that he did not agree. He thought that his right hon. Friend would find insuperable obstacles to the execution of his plan. Had the House considered how such a plan would operate upon the lawyers of that House—gentlemen whose profound learning and eminent talents made it an honour and a happiness to have them numbered amongst its Members? The Committee of six—the selecting Committee—suggested by his right hon. Friend, would be bound to appoint the best committees they could find, and could they then venture to omit the most able and useful men—such as his hon. and learned Friend, the Member for Reading (Sergeant Talfourd) on the one side, and his hon. and learned Friend, the Member for Ripon (Mr. Pemberton) on the other? Would not the Members of the selecting committee neglect their duty if they did not take those parties who were most competent? Did he understand that his right hon. friend intended to do this. [Hear, hear, from Sir Robert Peel.) Then let him point out to his right hon. Friend the great inconvenience, and the great difficulty, which they would inflict on the proceedings of the courts of law. Were counsel holding briefs to be summoned from their causes? If so, was the House prepared to incur the risk of debarring men of the highest eminence from becoming members of that House? He would show also how such an arrangement would affect their clients. Suppose he had a cause in which the two eminent gentlemen he had named were engaged as counsel, and they were suddenly withdrawn to an election committee could he at once find other counsel in whom he had equal confidence—of equal ability, or who would have an equal knowledge of the previous proceeding in the cause? He thought, therefore, that there would be a practical hardship of the severest nature, not only with respect to the learned Gentlemen themselves, but also with those whose interests they advocated. Would there not also be great difficulty in the committee of election appointing the secondary Committees? He could conceive that the committee of six could decide easily on the first six members of the other committee. They would choose three members on one side and three on the other, but how were they to decide with respect to the seventh? Who was to name him? Which party was to give way? Or was it to come to this—one party to say they would allow the other in the first Committee to put in the name of the seventh, on condition that they themselves nominated the last man in the next committee? That might produce in the main an equality; but that would not give justice. He was convinced that his right hon. Friend would never be satisfied with a mere alteration of party bias, first on one side and then on the other. Then again what opportunities of serving party interests might not arise in the selection of particular Members at particular periods? To give an instance; he was connected with property in the county of Derby—suppose then a contested election to arise in that county in the middle of a session, and his (Lord Mahon's) presence to be earnestly desired by the candidate on his side for his influence and assistance—would there not be a strong party motive to place him on an election committee, and thus prevent his leaving London for some days. This was only one instance, but such cases of various kinds would be constantly occurring. He did not say, that the party motive would often prevail, but there would be a suspicion excited; and in these matters suspicion inflicted nearly as much injury as positive proof. It would give rise to endless cavils and altercations. These were among some of the objections which he felt upon this bill. Feeling it as his duty, and knowing that his right hon. Friend would be the last person in that House to object to his taking this course; he would not shrink from the free expression of his opinion, and he was hound to state, that many who were, like himself, warm admirers and adherents of his right hon. Friend concurred in thinking that the Bill, however ably drawn and however excellently intended, would not remedy the evils of the present system. So far as he could collect, the opinion on that (the Opposition) side of the House—he did not know what sentiments prevailed on the other—was very general against it. He asked, then, why the bill of his right hon. Friend had failed to give general and universal satisfaction. Was it from any want of time for its preparation in him who never spared time or toil? Was it from any want of ability in one who was so confessedly preeminent. He would tell the House why the plan of his right hon. Friend had not succeeded. It was because he attempted what was impossible—because he attempted to apply the rules which prevailed in the old House to the altered composition of the new—because he had attempted to make a clean out of an unclean thing, because he had endeavoured to find the elements of a court of justice in an assembly of decided partisans. What was the practical grievance of which the Members complained? Why this—that they are party men, and therefore disqualified to be judges. Every Member felt, and he had a right to feel, strongly on party questions, and he was therefore incompetent as a judge on cases closely affecting those party questions. Was he or was he not stating the grievance fairly? If he was, then how were they to remedy the grievance by keeping the jurisdiction in that House? Would the diminution of the numbers from eleven to seven affect the evil complained of? Did they believe that any committee of six would be able to nominate an impartial committee out of a House, which was admitted to consist entirely of partisans? The objection, it is plain, lay not to the number of the machinery, but to the material. This brazen image which they had set up to worship under the name of "Privilege," let them melt it or mould it as they would, would be brazen still—they could never make it gold. Unless they could plunge into the recesses of the human heart, and pluck out its hidden feelings of partiality, or allay its smouldering resentments; unless they did that which no human being had yet effected; unless they could as with a magic wand call forth the living waters of good will, he was convinced that any measure which should continue in that House, jurisdiction in matters of controverted elections; would only be saved from being mischievous by remaining ineffective. But they were called upon to respect this system, because it was considered a great privilege which had been wrested from the Crown in the reign of Elizabeth, and which had continued uninterruptedly to the present time. On this point, however, as he had already stated, he ventured to differ from his right hon. Friend, he believed that he might even go further. In the time of Mr. Grenville, the opposition to his bill was moved on the express ground that by it the old privilege would be set aside, that it would abrogate important rights of the House, and give up all its ancient claims. Mr. Welbore Ellis, who led the opposition to it on the 30th of March 1770, declared that "it was an essential alteration of the constitution of Parliament, and a total abrogation of one of the most important rights and jurisdictions of the House of Commons," and having moved that the bill should be read a third time that day six months, he was supported by 123 Members against 185. So that the privilege in anything like its present form could only date from 1770. But supposing his right hon. Friend were wrong, and that he were right, were there no circumstances which had, since the grant of the privilege, arisen, and which might render a privilege, of great value then, worthless now. Had there been no change in the circumstances of the House since the time of Elizabeth? Was it not indicative of a long interval, and of an immense alteration, that a seat in that House, which was now an object of eager rivalry, was so little esteemed in the time of Elizabeth that several of the smaller boroughs sent petitions to the Queen, complaining of the burden and praying to be disfranchised. Danger then threatened us from the Crown. Did any such danger press now? Was there any possibility—observe, he said possibility, not probability—he would not be satisfied with probability that the same danger from the Crown which existed in the days of Elizabeth, could arise again? Was there any possibility of a recurrence to a time when a monarch could enter that House to seize the persons of five Members, and when the Speaker's predecessor, Mr. Speaker Lenthall, was kneeling on the floor before him. Was it in human possibility that there would be in the present or after times a recurrence to such a state of things? Why then he would put it to his right hon. friend the Member for Montgomery, why should they cling closely to the bulwark when the danger against which that bulwark was erected had utterly passed away? In his view, his right hon. Friend bad turned his face to the east in the morning, to worship the rising sun of liberty, and now, when it had attained its meridian altitude, he was still turning his face eastward, supposing the sun to be yet there! He would yield to no man in respect for ancient institutions. He fully believed, that for the interests of the people themselves, there were few advantages in legislative wisdom equal to these two words, "time immemorial." When his public conduct had hitherto been attacked, it had been generally upon the ground that he had too great a leaning for ancient institutions. When a privilege had real antiquity to plead—when it had now popular respect—when it was free from practical oppression—there was no man who would be more reluctant than himself to part with it. But here all these three conditions were wanting. It was not one of certain antiquity, but rather of doubtful and shifting practice. Neither did it possess popular respect; whenever mention was made of a Parliamentary Committee of Election at popular hustings, it was received with one universal shout of derision. It was not free from practical oppression, but on the contrary, as he had shown, it had inflicted great and grievous wrong. He said, then, that much as he revered any ancient privilege, yet that if he found that either the one or the other stood in the way of equal justice between man and man, sooner than justice should be violated he would say, let privilege crumble into dust. He rejoiced to find that so many persons of reflecting minds out of that House entertained the same opinions as himself. Time was when the people cherished the privilege of that House as a safeguard for their liberty, but they now saw that it might be turned against themselves. Time was, when they raised no other cry but "privilege, privilege!" as they shouted around the coach of Charles 1st.; but the people now felt that this privilege might dwindle into an instrument for working injustice and silencing complaints. On this point he would be judged by themselves in this House. Let honourable Members survey closely any case of privilege which had occurred during the last eight or ten years; let them mark how cautious and timid had been their proceedings, and they would see that in truth the feeling was, that if they drew this hateful weapon they would only cut their own fingers with it and so they had prudently allowed it to slumber in its rusty scabbard. With respect to the law of privilege, Sir E. Coke calls it a law a multis ignorata a paucis cognita;" and Blackstone went on to say of it—"The maxims upon which they proceed, together with the method of proceeding, rest entirely in the breast of the Parliament itself, and are not defined and ascertained by any particular stated laws." Now, he humbly conceived that there could be no worse state of law than one where the maxims were not defined or ascertained, and known to few besides the oppressor and the victim. He had heard it stated, in defence of this privilege, that it was possessed by all foreign legislative assemblies; but he thought that this assertion rested on an unsafe foundation. Every member in France was exposed to a sort of election faction, but every petition was there tried by one of the general committees into which the House is divided; so that the system was even more objectionable than ours. With respect to the United States, it was well known that the elections were decided not only by ballot, but by something that approached universal suffrage; and the consequent disorders were such that it was almost impossible for the defeated candidate to petition with any chance of success. He thought, therefore, when they came to examine the analogies, of other free countries that they would be found warnings to deter, not examples to attract. If it could be shown, that the privilege possessed by that House of deciding a petition relating to controverted elections, carried with it any security to the House against any despotic design, he would at once admit that there was good ground why it should be conti- nued; but, believing as he did, that it worked unmixed evil; believing that this evil was more the fault of the system than of any individuals; and believing that it had produced great dissatisfaction, and could not fail to give more, he called upon the House to renounce the privilege of deciding upon petitions ensuing out of controverted elections. He called upon them, in the name of justice; he was far from saying, that under the present system, or under that proposed by his right hon. Friend, justice would be always violated. He admitted, that the new committee might sometimes deviate into impartiality. But what he asked the House was, to establish certain and constant justice, instead of occasional and chance-medley justice. He entreated the House to remember, that impartial justice between man and man was the great object of society, and the main boast of civilisation; and he called upon the House not to neglect an opportunity not only of doing justice, but of giving a semblance and a reputation of it in their forms of proceeding. If he wished to characterise in a single sentence the main difference between a half-civilised age and a more polished state of society, he would say, that in the one the Government was always stronger than the law, whilst in the other the law was always stronger than the Government. The latter was now the case in England. Let them look at the proceedings in our courts of law, and comparing them with the same courts two centuries ago, let them see how eminently justice reigned. Why, then, should there be this single exception? Why were they to allow this single black point—this plague-spot of privilege to darken the surrounding expanse of judicial purity. It was impossible that Parliamentary Committees—which he did not hesitate to call the worst courts of justice now remaining in the world, could stand before the advance of enlightenment and knowledge; they could not long survive. They might triumph over him to-night—they might avail themselves of his inferior powers—they might array against him the lights and leaders of that House; but they might depend upon it the time was not far distant when they would be compelled by the popular voice to come round to his opinions when their baneful privileges would be wrested from their reluctant gripe, when what would now appear in the light of a graceful concession, would be wrung from them by overpowering necessity. They were the grounds on which he objected to the present system. He would next state to the House the project he had framed, and the plan he would propose; but he would expressly state, that any vote on his resolution would not involve an approbation of his plan. His resolution declared that the objects of justice, uniformity, and despatch, would be best attained by a tribunal not consisting of Members of Parliament; it stated the present system to be a burden; but those who with him stated this, would not be pledged to his precise plan by voting for his resolutions They might entertain any difference of opinion as to the details of his measure. His plan might be stated in two parts, the nature of the tribunal, and the nominating power by which it should be appointed; and he would begin, by stating what he proposed to be the tribunal. He proposed, that it should consist of three assessors, to hold their offices for life, who should have a certain number of years' standing at the bar as a qualification, and should receive an ample yearly salary. He proposed, that this court of assessors should, in the first place, be the court of revision and appeal from the revising barristers. He had not left himself much time to enlarge on this part of his plan, but it was a part of very great importance, for he thought that the present system under which the revising barristers acted, abounding, as their proceedings did, with contradictory decisions, while the offices, from their very nature, were filled by barristers not always of very long standing and experience, called aloud for some court of appeal or revision; by his plan, he expected to obtain the great benefit of uniformity in these decisions. He wished here to observe, that neither in the plan of his right lion. Friend nor in any other now before the House, was any such tribunal introduced or spoken of. He conceived also, however, that these three assessors might be considered as the legal assistants and advisers of this House, and he thought that it might be advantageous to refer to them the private bills which were brought before the House, which were frequently adopted and carried without due inquiry, although it must be perfectly apparent that many of them, from various circumstances, were of a character which rendered it doubtful whether they should pass. He mentioned this to the House, as an advantage which would be merely col- lateral to the general purposes for which the assessors would be appointed, and might or might not be hereafter grafted upon it, but all additional reason for his plan being adopted. He proposed, next, that this court of three assessors should have jurisdiction to try cases of controverted elections; their decisions as to the seat should be final, and in cases of general corruption appearing to exist in any boroughs, it should be their duty to report the circumstance to the House, exactly as the Committees were now in the habit of doing. Then there arose this objection, which must be strongly felt in any tribunal formed outside of the House, but the circumstance was unavoidable; that there was a glut of business relating to controverted elections at one time and a deficiency at another, as immediately after the termination of a general election there were many cases for consideration, while at a later period of the Session few presented themselves to be decided. Now, he conceived that the duties of this court in attending to the occasional election petitions which would occur in every year, and also as a court of appeal, for the revising barristers, would fully occupy their time, at the same time that they would enable them to give their decisions upon all such cases as should be brought forward. But, then, another provision was necessary to be considered, in order that there should be no want of attention, and of a means of deciding the cases, after a general election; and he proposed that, when a general election had taken place, if the assessors themselves should consider the press of business to require them to procure assistance, they might address an application to the House, and the parties who had had the power of appointing the original assessors (to whose nomination he should presently refer) should also be authorised to appoint two special assessors to each original assessor; and they being joined together, should conjointly have the power of holding three courts; these special assessors to be also nominated from among the number of legal gentlemen of a certain standing, but their appointments to be only special, and thus these three courts might go on conjointly, each presided over by one of the original assessors, and formed by him and the two assistants, referring all points of abstract law to the original officers, however, so as to produce uniformity in the points of law decided. Thus he conceived, that a tribunal would be formed fully adequate to transact the business of the House, while, by the assistance of the special officers, any extraordinary press of business would be prevented at the moment. Then came the question by whom the assessors should be nominated. For his own part, he confessed, that he should have no objection to see them appointed by the judges, for he thought that the objections which had been urged to the judges trying these cases would not apply to the mere nomination of assessors, but as he had found that several persons whose judgments were to be highly respected, had objected to the Judges being called upon to mix themselves up in any manner with the question, he had abstained from including that regulation as a part of his plan. With these preliminary observations, he begged to say what was the nominating power which he proposed. He was fully disposed to take from the Bill of his right hon. Friend near him (Sir Robert Peel), as much as he could conscientiously approve of, and to recommend that a committee of six should have the power of appointing the officers. His right hon. Friend would, he hoped, admit, that if he were committing a plagiarism upon his plan, that he was also candid in avowing his thefts. He proposed, then, that at the outset of every Session, Mr. Speaker should name the committee of six. The words under which this should be provided should be, that a "committee should be chosen fairly and impartially from the whole House, one at least to be a Minister of the Crown, and should be divided by Mr. Speaker into two classes, class A and class B, each class consisting of three persons." Those were the words which might stand in the act. Then his object was, that in class A there should be one Minister of the Crown, and two leading Members on that side of the House, but in class B there should be three Members, selected by the Speaker, who might fairly be said to represent the feelings of the other side. This committee, then, would be equally balanced, and it was to these persons that he proposed that the nomination of the assessors should be given. It would naturally occur to hon. Members, that if this committee should be appointed with that candour, which might be expected from the individual whom he had suggested as the proper person to nominate them, there would not be much fear of their coming to an improper deci- sion in the choice of assessors; because, the weight of party would be equally balanced among them. But as it might happen from that very circumstance that they could seldom agree upon a choice, he would suggest this mode of appointment by the committee. On the first occasion, the Minister of the Crown in class A should propose the name of a person duly qualified as an assessor for the appointment, and if he were agreed to by five out of the six, the choice should be considered to be confirmed—if not, then the Minister of the Crown should propose three other names to be referred to class B, and that class should have the power of selecting one of them. On the next occasion, the Minister of the Crown should again propose the name of an individual as an assessor, and if he were not agreed to by five of the six, then the first person nominated by the Speaker in class B, should propose names to be referred to class A, the members of which should have the power of selecting one as assessor. Then he would wish it to be considered whether, by this management of classes, the influence of parties would not be as far as possible neutralised, and whether the assessor would not, in fact, be in such a position as that he could not consider his appointment as a favour from one party more than the other. He would clearly owe equal favour to each for his selection, since the one had selected him to insert him in a list of three, and the other had preferred him to the other two competitors upon the list, and therefore, he would enter upon his office with an equal share of obligation to each of the parties. He conceived, therefore, that in this manner any influence of party in the appointment would be, as far as possible, balanced, and it was his belief, that among the six gentlemen who were nominated there could not exist any difficulty; but he had further to propose, that the Speaker and also the Committee should also act under the sanction of an oath of fair and upright intention. He was not sure whether he had been able to express himself sufficiently clearly; if not, it was in consequence of his plan being complicated; but if that complication were an objection, he could not only say, that the very question of plans which should have the effect of neutralising party, necessarily implied the necessity of complication. Montesquieu had truly said there was nothing simple but despotism, and those institutions by which liberty and justice were best preserved, were made up of many guards and checks, which nevertheless acted in a most useful and harmonious manner. He had now stated the main points of his scheme, and he would only make this further observation which he considered to be important in connexion with it, that all plans which he had seen proposed to the House were mainly defective in this, that they gave no protection to a very weak minority, whereas the weaker the minority, the more it ought to be protected from oppression. Now he begged to say, that under his scheme the three members being selected from the opposite sides of the House, whatever the numbers of ministerial or opposition parties, each party might expect equal justice, and this was of such importance that it was one of the chief reasons which had induced him to frame his present measure. He must say, too, at the same time, that notwithstanding the very great care with which he had guarded the appointments to this tribunal which he suggested, he had that faith in the legal profession, and trusted in their integrity and honour so highly, that he believed when any members of its body were appointed assessors, by any nominating power whatever, there would be found more scrupulousness and more correctness in the discharge of their duties, than there would be found in any case decided within the walls of this House. He hoped the House would excuse him if he again stated, that the resolution he should move was not one which must bind them to adopt his plan. He had stated his scheme fully, because he thought it fair to give his right hon. Friend the same advantage over him (Lord Mahon) which he had already obtained over his right hon. Friend, of knowing his details, but at the same time his object was to combine those who were determined to put an end if they could to the present state of things, and who thought almost any system of trial out of the House better than almost any within it. On this point he was determined to try the disposition of the House. He could not conclude without once more earnestly appealing to the conscience of every Member who heard him, entreating them to remember that to provide equal justice in election trials involved not merely their interest as politicians but even their honour as gentlemen. He entreated every one to stand firm against the weight and authority of the opposite leaders in that House, unless he was really convinced in truth and conscience that the arguments for retaining the jurisdiction were well founded. If any one, deterred by the inadequate manner in which he had brought this question forward, or swayed by the far superior eloquence which would presently be pointed against him, decided against what he yet felt to be the weight of evidence and argument, he asked would it not be a fitting retribution for such a vote, if he himself, after the next general election, should undergo the tender mercies of those very tribunals which he should have affixed and perpetuated upon his fellowmen? Would it not be a fitting retribution that the same measure which they meted unto others, the same measure should be meted out unto themselves? And then perhaps, when they actually felt the hardships which they now refused to see—beggared perhaps by ruinous expenses—ousted of their just rights—stripped of all redress, and destitute even of the power of complaining—then perhaps they would have to acknowledge as the sharpest aggravation of their sufferings, that their own error, their own vote that evening, produced them, and that like the struck bird who viewed his own feather on the fatal arrow— Keen were his pangs, but keener far to feel His was the pinion that impelled the steel! And what consolation would it then be to them to be told, that while members of that House they might luxuriate in the enjoyment of its "inestimable privileges," or that, in the opinion of his right hon. Friend the member for Tamworth, they had rigidly adhered to the precedent of Queen Elizabeth? He himself was not unacquainted with the hardships of these tribunals. It was scarcely six years since he had to stand a trial before a committee, every one of whom, all the eleven, consisted of his decided political opponents. Did he mention that now in order to impute any unworthy conduct, or to awaken any slumbering resentment? Far from it. If he had any feelings of bitterness upon that subject, he trusted that they had long since passed away. He alluded to it only because having experienced, or thought he experienced, the disadvantages of the present state of things, he felt doubly bound in his conscience to avert, as far as in him lay, those disadvantages from others, and to become, if he could, the humble instrument and harbinger of a better system. In bringing this question forward, he had done, as he conceived, his duty; he trusted the House would new do theirs

Mr. Wrightson

rose to oppose the motion of the noble Viscount. He did not mean to follow the noble Lord through the whole of the statements which he had made, but he thought, that the House should pause before they parted with the power which they possessed, and which they had so long exercised. He thought, that if the proposition which had been made were acceded to, the great moral weight which this House ought to possess with the country would cease to be maintained, for they would admit, that they who were sent there to watch over the laws, and to frame new ones, were utterly unable on their oaths, from factious and party feelings, to support their dignity, and to maintain themselves free from partiality and injustice. To accede to this motion would be to cast an indelible stigma upon their name, and he sincerly trusted, that the House would not lend its countenance to such a proceeding. The motion was doubly unnecessary after that which had been brought forward by the right hon. Baronet opposite in the last Session. He agreed with the right hon. Baronet in the belief, that errors existed in the present system which it would be difficult to remove, for the right hon. Baronet had pointed out intrinsic errors of great importance; but he entirely differed from the noble Viscount in the idea, that the plan which be had proposed was at all calculated to remedy those evils, weighty and burdensome as they were. It was undoubtedly incumbent on the House to grapple with the errors which were committed, and to endeavour to get rid of them; but there was a possibility of that being done without the removal of the jurisdiction from within those walls. The right hon. Baronet had shown how it might be done by reposing confidence in Members of that House, by selecting them in a proper manner to try the election petitions; and every one must know the difference between the feelings entertained when people were treated with confidence or otherwise. The election laws doubtless wanted consideration, in order that a series of sound precedents might be established; but still cases would occur where unhappily election committees must be appointed, and where decisions would be come to upon which evil precedents would be formed. Upon this point he could not but revert to the proposal of the hon. Member for Liskeard for the appoint- ment of assessors, which would go far to compete with the plan of the right hon. Baronet. He would not give these assessors a vote on the committees; but he would throw out a suggestion, that committees might be permitted to reserve points of law to be disposed of before the then assessors, and when they had come to a decision, which the Committee might adopt or not, it should be placed on the records of the House; and if it should appear that any abuse of this system should arise by the absolute refusal to receive such decisions, he should propose that they might be received at the desire of one-third at least of the Committee. By this means he thought that uniformity of the decisions would, in a great measure, be produced; and the same effects might also be secured by allowing any points raised to be fairly and openly discussed, which would prevent any false decision from being taken as a mischievous precedent. He hoped that the House would handle the question firmly, and that it would join heart and hand in endeavouring to remedy those evils which it was admitted existed. He put it to hon. Members, whether it would not be much more to the credit of the House to work the reform within themselves than to go elsewhere; and whether it would not be better to come to some resolution by which an amended tribunal should be formed within the walls of the House, than that they should be obliged to deny themselves even the virtue of deciding in cases in which they were themselves concerned, confident as he was that integrity and honour were all that were required to render the tribunal complete.

Mr. Pemberton

would not detain the House for more than a few minutes. The question before them was, whether the defects arose from the way in which the committees were formed, or whether in their very nature they were not imperfect. In cases of election committees, every question, in every branch of law, no matter how abstruse, came under the consideration of its Members. He need but refer to a recent case, in which an hon. Gentleman was unseated by a decision involving a nice point of conveyancing. He did not know whether there were any lawyers on that Committee; he believed not; but he would ask how it was possible that a tribunal made up of men who never devoted their time to matters of law could arrive at a correct decision upon such subjects? They might be right by accident, but it was impossible they could understand the nature of the questions which came before them. The fact was, the House had not the means of doing justice, and therefore could not administer it. What were the qualities required in any tribunal; strict justice, rigid impartiality, great knowledge, and undisputed authority. Could such requisites be expected in a tribunal composed of Members of that House? A Member of that House might be a lawyer, but he must of necessity be a partisan; it was the very condition on which he entered the House and acquired the privilege of voting. Thus the condition of his election formed the strongest ground of disqualification as a judge. What were the consequences of such a state of things? Why, that the trials of election petitions were often protracted to a great length, and attended with enormous expense to the parties—an expense greatly exaggerated by the ingenious delays of counsel. It was notorious that positions were often advanced by counsel before the Election Committees which no man could, in the presence of a lawyer, sustain for a moment. How was it possible that these Committees, having no knowledge of the subject they were called on to try, no authority over the pasties before them or the counsel conducting the case, could come to a just decision? How was it possible that trials should result otherwise than it was notorious they had done last Session? The same thing happened in Lunatic Commissions. These commissioners were presided over by lawyers of inferior standing in their profession, men of no weight—in fact these tribunals were a disgrace to the country. What was the consequence? The opinions of such lawyers went for nothing, they were overruled by the superior talents and weight of the counsel pleading before them, and the proceedings were protracted to any length at the pleasure of the parties. This did not result from any partiality or corruption on the part of the parties called on to decide, but merely from want of knowledge of the subject brought before them. This defect seemed to him inherent in tribunals such as the election committees of the House of Commons—a defect which led not only to gross injustice, but often to enormous expense. The question, then, was, whether they could get rid of so monstrous an evil, not by altering the judges, but by altering the mode by which the tribunal was constituted. He thought it was utterly impossible. Two plans had been proposed to the House last Session, one by the hon. Member for Liskeard, the other by the right hon. Baronet, the Member for Tamworth. The right hon. Baronet proposed to select a permanent tribunal, composed of Members of that House, including the lawyers. Now, though he did not wish to claim any exemption for the members of his profession, he very much doubted whether such a selection, including the lawyers, would achieve the desired object. He entirely agreed, that either plan would be an improvement on the present system. Of the two, he should prefer that of his right hon. Friend. But what assurance had they, in the first place, that when they had appointed the lawyers—who must necessarily belong to one party or the other—that their legal knowledge would have any weight with the opposite party, or that the Committee itself would be guided by their opinion? If they appointed an assessor with merely a right to give his opinion, the Committee might dissent; and if they appointed legal Members of that House, did they expect to find, in any Parliament, half-a-dozen lawyers of whose impartiality and legal knowledge the House and the country would have such an opinion as to make their decisions satisfactory to all? Further, he would say, that nine out of ten of the lawyers practising in the courts in which he had the honour to practise—the Court of Chancery, for instance—were ignorant of the questions brought before Election Committees. But suppose they could get five or six lawyers in the House competent and satisfactory, were they to be placed on all Committees? By the plan of the right hon. Baronet, any Member sitting on one Committee might claim an exemption from the rest; but even if that were not the case, they could not serve on all. It was supposed, that lawyers, on a Committee, would have such weight as to guide the decisions of that Committee; but he remembered a case in which Sir W. Grant and Sir F. Pollock divided on different sides. He did not wish to give the slightest offence to hon. Gentlemen on the opposite side, but it would be in the recollection of the House, that there had been a decision of a Committee, including emi- nent lawyers, on a Scotch election which was far from giving satisfaction to the country. There was another decision of a Committee—one, too, the impartiality of which could not be impeached, because by it a Tory Committee displaced a Tory candidate, and because the Committee was presided over by an individual preeminent for talent; but still that decision was generally disapproved of. He could not forbear, with these facts before him, expressing his opinion, that neither the appointment of an assessor or the selection of professional Members, would gain the confidence of the public or afford a hope of justice to the parties. Now, all these objections would be remedied by the resolution proposed by his noble Friend. He valued that plan for its great collateral advantage of affording a check on the decisions of the revising barristers, and for its more important result of doing away with the present Election Committees. He believed, that the appointment of a tribunal of the sort proposed by his noble Friend, by which election petitions and private bills would be investigated, would put an end to all the complaints of partiality now loud on both those matters; and that, so far from its wanting full employment, as some Members apprehended, he thought the only question was, whether the tribunal would be sufficient for the discharge of the duty that would devolve on it. There was, in fact, no question about privilege; the question was, whether they were to have a tribunal worthy to decide, or one wholly deficient in the requisite knowledge. It had been suggested, that they would find as much difficulty in getting impartial judges out of the House as in it—that the lawyers out of the House were as bad as the professional Members of the House; but he believed in the first place that persons in that House, moving in an atmosphere of political excitement, thought that persons out of the House were much more inflamed in their political feelings than they really were; and, moreover, he had not the slightest doubt that there were plenty of eminent lawyers out of the House who cared very little in what hands the Government of the country was placed, and that there would be no difficulty in getting a tribunal capable of giving impartial judgments, and totally free from all political bias. But take the opinion of a lawyer of that House, and he would as soon have his right hon. and learned Friend opposite to decide as his hon. and learned Friend beside him. It was a very different case when a lawyer was called on out of that House to decide on a point of law, and when he was sitting in it on a confessedly partial tribunal. In his opinion the appointment of impartial committees was a question involving the dignity of that House. What was the plan now proposed for that purpose by his noble Friend? Did it interfere with any privilege now exercised? Did they now exercise the authority so much prized in their own person? No, they exercised it by deputy; and that was the very point his noble Friend was now taunted on as interfering with the privileges of the House—an objection existing in the tribunal as at present constituted. His noble Friend did not propose to do anything more than they did at present; they delegated their authority now, and they were simply asked to change the mode of this delegation. His noble Friend proposed to them to appoint certain persons to inquire on their behalf on the merits of a question on which they themselves were afterwards to decide; and the only question was, not whether they were to delegate their authority, but whether they should delegate it to a competent or incompetent tribunal. He confessed when he remembered the scene which had occurred last Session, to which the exercise of this privilege had led—when he remembered those painful scenes, not only painful with respect to hon. Members of that House, but to persons who appeared at their bar—when he looked back at those scenes, he must confess that it appeared to him that they would consult the character, the respectability of that House, and their own comfort, by delegating their authority to persons who would never permit such scenes as those to which he alluded. Every one remembered the indignation with which those scenes were viewed by the public. There remained only one objection to the plan of his noble Friend; it was, that, if they parted with their jurisdiction on election petitions, they would never again recover it. Now, if there was one thing more than another in which there was an absence of danger, it was this. There was no danger of the other portions of the Legislature attempting to prevent them deciding on their affairs—there was no danger of the authority of that House being interfered with by the Crown or the other House. It was impossible to look abroad on the present political aspect of this country, and of Europe, without seeing that, whatever might be the danger to be apprehended for the liberties of the country, or the powers of that House, that danger would not come from the monarchial or the aristocratic portion of the Legislative. It was impossible not to see that the tide of public opinion was now setting strongly in favour of popular democratic Government, and the danger was, not from the encroachments of the aristocracy or the Throne, but that that tide might become so potent as to overwhelm in its progress every vestige of the Constitution. He could not see that the slightest danger was to be apprehended from the plan his noble Friend had introduced, and for this reason—believing that they never could constitute an impartial tribunal out of partial persons—that they never could introduce into that tribunal, as at present constituted, the degree of knowledge and impartiality necessary—believing that these advantages might be secured, he would support the resolution of his noble Friend. He believed that the House would best consult its real dignity by increasing its utility, by showing that they did not set up their privileges in opposition to justice, but were willing to rest their claims on public approbation in adopting every mode by which the public interest in election matters would be best consulted.

Sir R. Peel

wished, that his noble Friend had read the whole of Mr Grenville's speech. He did not himself pretend to remember it very accurately, indeed, it was but imperfectly reported; but as far as he could venture to speak of it from memory, he thought, that Mr. Grenville, in a few sentences after the paragraph relating to triers, said, that from a very remote period, and certainly from an early period in the reign of King James, the House of Commons had determined to exercise that privilege for itself. Very eminent writers on the constitution had declared, that the power of determining who were Members of Parliament was a privilege of the House of Commons, and that it was a very important privilege; and all popular assemblies had confirmed this notion of its great importance by the singular fact that all of them, without exception, had determined, that the right of jurisdiction in all controverted elections should be seated, as a matter of course, in the assembly itself. When Mr. Hume spoke of the attempts made by Queen Elizabeth, and afterwards renewed by King James, to claim for the Crown the power to issue writs, and to decide on the right to hold the seat—after mentioning the successful efforts of the Commons in resistance to such a claim, he said,— A power like this, so essential to the exercise of all their other powers, themselves so essential to public liberty, cannot fairly be deemed au encroachment on the part of the Commons, but must be regarded as an inherent privilege, happily rescued from the ambiguity which the neglect of some former Parliaments had thrown upon it. That was the opinion of Mr. Hume upon the importance of this privilege. He, therefore, thought, that his noble Friend was not quite correct in asserting, that the House of Lords, or even, that a committee of the House of Lords, had ever had a right to decide on the petitions affecting election returns. Again, in the year 1624, the House of Commons, by a resolution entered on its journals, declared that it was its natural and undoubted right to examine the validity of all elections and returns. At the period of the Revolution a similar declaration was made, and by the act of the 7th and 8th of William 3rd., the last determination of the House of Commons as to its right to examine into the validity of elections was made public. But his noble Friend had hit upon some resolution contained in the journals for the year 1661, a period, by the bye, when the House of Commons, and popular rights were not in high favour with the country, in which he found some precedent for the right to seats in the House of Commons being tried by the House of Lords. His noble Friend had said, that "there were triers of petitions appointed by the Lords." But the appointment of triers by that assembly did not show that the House of Lords had taken upon itself the power of determining the right to seats in the House of Commons. It was easy for his hon. and learned Friend near him to say, that their privileges might in these days be relinquished without danger, and that there was more peril to them at present from the democracy than from the monarchy or the aristocracy. In that way, however, all their privileges might be argued away and gradually abandoned. His hon. and learned Friend appeared to consider that he had successfully demonstrated that there would be no difficulty in the constitution of this new tribunal. That was the very point on which he placed, and on which he wished the House to place, the greatest stress. He said, "Don't come to any abstract resolution until you have solved all the practical difficulties of the subject. Let us see your bill, and let us argue it clause by clause. We are to have three lawyers appointed as judges, who are to hold their situations for the term of their natural lives; who are to be independent of us; who are to decide on the right of voting; who are to decide on the right of seats in Parliament; and who are to have some power of controlling legislation on private bills. I am not certain that these three lawyers, who will be very important Gentlemen in the House, from being irremovable, and from having a right to decide upon our seats, will not soon become very important authorities in the country." And what was the satisfaction which his hon. and learned Friend gave him for the success of this new tribunal! Let the House hear: "the present tribunal for election petitions," said his hon. and learned Friend, "is the very worst in the world. The one which approximates the most closely to it is that for trying lunatic commissions. And why is it so unsatisfactory? Because the judges in it are lawyers, the worst judges in the world after our election committees. And why are they so? Because they are men not eminent in their profession, and because the counsel who plead before them are their superiors in public repute and estimation." And yet his hon. and learned Friend, after language like that wished to have a lunatic commission for the House of Commons. He was to have three lawyers appointed as judges, who were to hold their situations for life, and who were, of course, to be in the receipt of large salaries. Would his hon. and learned Friend venture to affirm that these three lawyers would be able to perform the duties of their station at that period when it was most important that they should perform them—namely, immediately after a general election? If those three lawyers should be sitting, as they might be, for three months on one case of controverted election, all the rest of the election petitions must of necessity fall into arrear. But his noble Friend had a suggestion to meet that inconvenience. Each of these three independent and irremovable judges was to be at liberty to choose two journeymen judges. They were to be employed occasionally, and these two inferior judges were to sit along with their superior, in this newfangled tribunal. What security have you that you will get eminent men for this temporary duty? Evidently what took place on the Lunatic Commissions, would take place before this tribunal. The counsel practising before it would be superior to two-thirds at least of the judges; and thus the authority of the judges would be inferior to that of the counsel with the country. The same consequences would follow then, as followed now—their adjudications would not give satisfaction. It might happen, that they were contradictory, and then the same objections would be urged against them, as were now urged against those of the Committees of the House of Commons. One word more as to these three judges, who were to hold their situations for life. The time must sooner or later come when they would begin to suffer under the infirmities of age. They would, however, be fastened upon the House, and there would be no possibility of removing them. There would be a feeling, that they were honourable men—that they were men of intellect; and yet there would be a conviction, that their powers were failing. Who, then, would have to determine whether they ought or ought not to retire? Was their retirement to be decided by a majority of the House of Commons? He took it for granted that the House would not allow the Crown to dismiss a judge of its appointment. What authority, then, must give a failing judge the hint to retire? If it were to be a majority of the House of Commons, they would open the whole question of political interference. The judge might possess integrity, impartiality, independence, learning, competency; but when his powers began to decay, the painful question would arise as to who should suggest to him the propriety of retirement? He wished to see all these matters regulated in a bill. The noble Lord had referred to his six Members of Parliament to be selected from the House of Commons for a certain purpose. He said they were to have the selection of the judges but they were to have no power to superintend their decisions or to remove them when they became incompetent from age. He could not help thinking, that if his noble Friend were obliged to resort to a combination of parties in the House of Commons for the alternate selection of his judges or triers, it behoved the House to consider whether it did not contain materials for the constitution of a safe and honourable tribunal. His noble Friend had referred to the description of the House of Commons before the passing of the Grenville Act. But he (Sir R. Peel) might refer to the description of the House for forty years after it; he might refer to the universal satisfaction which it gave during that time; and thus he might show, that those materials which under one constitution had worked nothing but injustice, had under another constitution, met all these questions of law and worked universal content. He believed the reason why the present tribunal was unsatisfactory plainly arose from the mode in which the House now constituted them; they infused party feeling into the origin of the proceedings; and continued that noxious element to the end. The summoning Members to the ballot, the custom of striking, the whole selection of the committees, the exclusion of lawyers, and of the good sense of the House, had a tendency to make the test utterly unsatisfactory. The impeachment lay not upon the honour and integrity of the House, but the unsatisfactory mode in which the tribunals were constituted. His noble Friend said, "Will you commit the enormity of making a lawyer serve upon these Committees?" Most certainly he would; and he would say to every lawyer, "If you choose to be a Member of the House of Commons, the first demand upon you, is to perform the duties of a judge upon an Election Committee." He would not hind a lawyer more than any other man; he did not want to take any unfair advantage of his professional talents and knowledge, or to lessen the fair gains he might expect to derive from his legal pursuits; he would not force him to be a Member of the House of Commons; but if that lawyer deliberately presented himself as a candidate for the suffrages of a constituency, and were chosen to represent them in the House of Commons, he should not allege the loss of his professional emoluments as a bar to his serving on a Committee. But the lawyer might say, "My clients will suffer." Why, if they had fair notice, that the lawyer was subject to take his turn to serve upon an Election Committee like other Members, and that persons more competent than the generality of Members, were not to be excluded on preferring a plea of business in another place, and if they then chose to employ him, they did so at their own risk, and could not in justice complain. Yet surely to oblige one lawyer to decide on probably only one case during a whole Parliament could not be so great a demand on his time and trouble as to subject him to much inconvenience, or to entail on his clients the loss of his professional assistance. But it was clear, that if the lawyer of high professional attainments so far preferred party attachments, or the large arena of public life, to the dulness of professional labour, that he sought to enter the House of Commons, that House had exactly the same claim on him to contribute the amount of his professional knowledge and experience in the performance of a public duty as it had on any other Member, however inferior his attainments. He did not consider it necessary on the present occasion to enter at any length into the case, or discuss its details minutely: There was not time to examine the features of his own plan; he had brought in a bill, as his noble Friend well knew, last Session, and if his noble Friend thought, that that bill would serve his purpose in any degree, or be of any use to him, he would be most willing to relinquish it to him, especially after the spirit his noble Friend had shown to-night, and the ability with which he had argued the question. Neither he nor his noble Friend could be influenced by any party feeling on this subject. His notions regarding it were once not far different from those of his noble Friend; but, whatever they might have been, they now widely disagreed. What he had said on the question of privilege he would say now—that whatever his opinions might have been as to the original construction of the body that was to decide on disputed points, he would not allow them to influence him on a question of this kind; but he would ask the House if they would be pursuing a wise and cautious course in the opinion of the world by allowing it to go forth to the public that they were unfit for the satisfactory performance of their duties? He should not explain the provisions of his own measure, nor enter further into the plan of his noble Friend. He had only made use of it for the purpose of inculcating on the House the necessity of seeing the whole bill, and examining the various modes proposed of solving the practical difficulties that presented themselves, before consenting by an abstract resolution, to deprive itself of a power it had so long enjoyed. If they parted with this privilege, so long possessed and exercised, fought for by the House in former times, and defended by the most eminent writers as a safeguard of the public liberties, let them depend on it they ought to place their motives on record—they ought to state in the bill sent up to the House of Lords the reasons why the present House of Commons thought fit to relinquish a jurisdiction asserted by their predecessors. If they felt absolutely convinced that the interests of justice required it, if to that frightful alternative they must come, at least let them not rush to it precipitately or lightly; let them solemnly declare in the preamble of the bill the grounds on which the House of Commons solicited the intervention of the Lords. They were to leave the House of Peers in possession of the privilege of determining their own Members, but they were to approach that House and ask them to assist the Commons in depriving themselves of a power which, by their own confession, they were incapable of wielding. On a former occasion, by way of manifesting his desire to co-operate with his noble Friend on this question, he had submitted to him a draught of what he thought was a proper preamble for the bill in contemplation; and he now begged leave to recommend the following sketch to his noble Friend, as incorporating the views of the movers of this proposition:—"Whereas this House hath in former times considered the power of deciding in all matters relating to the election of its members as a privilege essential to the maintenance of its independence, and hath uniformly resisted all attempts at encroachment on its right of jurisdiction; but whereas it hath become notorious that the House of Commons bath, particularly since the passing of the Reform Act, grossly abused this privilege, that it is no longer worthy to be intrusted with it"—[Laughter]. Can you shrink from this? Can you avoid the degrading confession? "and whereas the House doth accordingly penitently acknowledge its unfitness and uncleanness, and, despairing of the possibility of purification, doth consent, from a deep sense of its unworthiness, to relinquish this honourable privilege, and place it in some tribunal more honourable, more impartial, and more worthy of the public confidence; be it therefore enacted," &c. Could they deny that that language was not too strong? Let them go with this humiliating acknowledgment in their mouths, if after mature reflection they felt persuaded that no modification of the present tribunal would answer the purpose of justice. That ought to be the paramount consideration; but again he said, before you put on record the resolution which was to lead to these consequences, you must require the bill to be produced which is to constitute the new tribunal, and compare it with other measures which propose to reserve to the House of Commons its present jurisdiction under an amended system. He agreed with his noble Friend that the power of the House over the country did not depend on privilege, but on the force of public opinion, and it was therefore that he implored them to consider the means of amending the plan now in use, which he thought defective, and calculated to weaken their hold on public confidence. He submitted it as a matter of anxious apprehension whether the House of Commons would not inflict on its consequence a fatal blow, if it should be compelled to proclaim to the world that while the House of Lords retained the privilege of deciding on the right of its members to sit within its precincts, the Commons of England were so hopelessly corrupt, so infected with the spirit of party, that all attempts at improvement were useless—that as men of honour, as men of common sense, and common intelligence, they must declare themselves unfit to do in this Parliament the duty which all former Parliaments had performed. Would they do this? Would they in the condition of suppliants apply to the united wisdom of Parliament to relieve them from duties of which they were incapable, relinquish a jurisdiction to which their ancestors attached great importance, and transfer it to other hands on account of their own unworthiness and incurable imperfections? Entertaining the opinions that he did on the subject of Reform, while he remained a Member of that House, he should consider that he adhered most closely to the true principles of that Conservative policy he embraced, by stand- ing as long as he could in the ancient ways of the constitution, and maintaining the respective powers of the state in the due possession of their authority and privileges.

Mr. Bernal

had little to say on the present occasion, but felt, that he should be wanting in duty to himself if he did not express his opinion on the subject before the House. He considered that his noble Friend deserved great credit for the manner in which he had brought the subject forward, and expressed his opinion on it, and he did not think that the ridicule that fell from the right hon. Gentleman who spoke last was any argument against the main part of his noble Friend's speech. He could not forget, that if they changed the mode of constituting the present tribunal, they would not change the component parts of it, nor the elements of which it was formed. He would ask, whether an oath was still deemed necessary? Did the right hon. Baronet propose to get rid of the oath to be taken by the members of the tribunal? Was it still to be said that in the minds of six hundred and fifty-eight gentlemen an oath was not regarded as something binding? Would the reduction of the number of the Members of the tribunal secure more regard to this sanction? Would they, by reducing the number, increase the feeling of the obligation of the oath in the minds of those who took it? If they did not get rid of the difficulty about the oath, it would be of minor importance whether or not they reduced the number of the members of the tribunal. He did not agree with the opinion expressed on the other side of the House, that all the difficulties on this subject had arisen since the passing of the Reform Act. He denied that this was the case, for he had been long enough in that House—now nearly eighteen years—to recollect many similar complaints of a similar kind to those now made, and where the same doubts were stated and the same objections urged against the constitution of the tribunal. He recollected that soon after he came into Parliament he acted as nominee on an election committee, and on that occasion, in consequence of a decision which the committee came to with regard to frivolous costs, the late Mr. Tierney thought it to be his duty to get up in his place in Parliament and call the attention of the House to the subject. So striking were the anomalies of the subject at that time, that Mr. Tierney departed from his usual cautious course, and stated, that the constitution of the tribunal did not give satisfaction. This was not a singular case in which complaints were made, as he recollected many instances of a similar kind. Indeed, as long as the present constitution of the tribunal continued, he feared one pity would ever complain until the end of the chapter. But it would ever be the case where the majority of the members of the tribunal were thought to have a strong political bias. The House was not then called upon to decide upon either the plan of the noble Lord or that of the right hon. Gentleman; but it was, in the first place, called upon to state that it was its deliberate opinion that the system acted upon did not work well at present; and, secondly, that it would not work well as long as the present tribunal was continued. There was one of the evils of the present system, however, which had not been sufficiently considered, and which led him to the conclusion that they had begun at the wrong end. What he meant was, that they must reform the statute book on this subject. So long; as they had vacillating and contradictory statutes on this subject, they would have uncertain decisions from the tribunal which had to try the cases. The statute book, with reference to treating, bribery, and other matters that were referred to election committees, were most contradictory, and were often little more than traps to catch the unwary. He had no hesitation in saying, that the statute book in matters of this kind was in a disgraceful state; and no tribunal having to determine on contested elections would possess the confidence of the country until some changes were made in the statute book. He would challenge any lawyer, in that House or out of it, to give a satisfactory decision as to what was or was not treating. If they referred cases of this kind to the first lawyers, they would have contradictory decisions on the present state of the law; he therefore maintained that they were beginning at the wrong end. He should be much gratified if he saw an attempt of all parties, without distinction, to remove this blot from the Legislature. He knew that it would be a most laborious task, but he trusted that either a committee would take up the subject, or that a commission of the most eminent legal authorities would be ap- pointed to diligently examine all the laws on the statute book on this subject, and from them to draw up one clear and definite law on the subject of treating, bribery, and other similar matters, instead of having nearly 500 scattered through the statute book. He contended that a committee should at once be appointed with a view of at once devising a mode for remedying these manifold evils, and if this were done he thought that it would wipe away many of those stains that appertained to the present system. He regretted that the right hon. Baronet had not proposed something to this effect. [Sir R. Peel did so last year.] He was not aware of this; but regretted that the right hon. Gentleman had not persisted in his suggestion. [Sir R Peel: It was a question for the Government.] He did not agree in that opinion. The Government had many great questions to occupy its attention, and he did not allude more to the present than to former administrations, but equally to all governments, whether in the present year or in 1829; and this was a question which it was peculiarly the duty of the House to take up. It was not a question to be taken up by any particular party, but by the House in general. There could be no doubt that there was a taint on their present proceedings, as regarded this tribunal, and as long as this taint continued, and the course which he had just suggested was not followed, he had no other resource than to grasp at the motion of his noble Friend. He thought that it was comparatively immaterial, whether the tribunal consisted of eleven or of only six Members, as long as there was a want of confidence in the tribunal. The right hon. Gentleman asked, whether the House would agree to a resolution which was condemnatory of its own character. He would ask, whether this opinion had not already been pronounced, if not by the House, at least by the country. Had the right hon. Baronet forgotten, that at the commencement of the last Session, in almost every newspaper, there were comments usque ad nauseam on the proceedings of the Election Committees, and complaints of all parties of the decisions they came to? Did the Members of the Committee take the oath under the plea that they were ignorant men, and not being either equity lawyers nor common lawyers, that whatever decision they came to, they did not incur any penalty in the eyes of God or man? Would the right hon. Gentleman show to him, why the oath to be taken by the Members of the tribunal should be more binding on the consciences of six men, than on those of eleven men? If the moral obligation of an oath was not found binding on the consciences of eleven Gentlemen, he could not thank that it would produce any great moral effect if they struck the number of Gentlemen down to six. With reference to the lawyers, it often happened that a Committee bad the benefit of having a member of the legal profession on it; but it did not appear that this made any great difference in its decisions. He agreed with the right hon. Gentleman, that the House was entitled to the services of lawyers, Members of that House, in these Committees, and he did not see why they, any more than other Members, should be excused from serving. In the observations that he had made, he had not alluded more to one side of the House than to the other. He saw no other remedy to get out of the dilemma in which they were, than to have a careful digest of the statutes on this subject; but until this was done, and properly done, he thought that the most advisable course to pursue was to adopt the plan of his noble Friend.

Mr. Williams Wynn

agreed most entirely with the hon. Gentleman opposite, when he stated that they were beginning at the wrong end. He did believe, that it was the first duty of the House of Commons, if it wished to improve the present manner of deciding questions arising out of contested elections, to look through the law of elections as it stood on the statute book, and at once to decide the disputed points. He wished, more than any thing, that out of their discussions that evening some plan should originate. During the period that the Reform Bill was in agitation, he had proposed to the then Chancellor of the Exchequer, Lord Althorp, to separate those parts of the measure which related to the formation of new constitutions of the elective bodies from those which related to registration of votes, and to bring in the latter, as a separate measure, at a later period; because that was a part of the plan which could not properly be investigated by the House in the existing state of parties, but which might have been advantageously referred to a committee up stairs; and he had always regretted that this course had not been fol- lowed, because there were many points regarding the registration, on which great confusion and difference of opinion existed at present, which might have been rendered more clear, if not settled at once, by means of investigation before a committee. He recollected, too, at that time, urging upon his noble Friend, Lord Althorp, the policy and justice of bringing in a declaratory bill, for the purpose of deciding some of those points on which parties were wont to differ as the voters of trustees; where the distance of seven miles was to be measured from; whether the decisions of the revising barrister were to be final or not final; all which were points that it appeared to him essential should be settled by the decision of the Legislature. With respect to the proposal to constitute a tribunal of appeal, in order to a final decision of disputed points, which would in itself, it was said, prevent the necessity of further legislative alterations, he must say, he thought the best course for the House to adopt was to appoint a select committee to consider fully the disputed parts of the election law. As to the question of bribery, he did not think it would be possible to effect any very extensive change; because, in questions of this kind, the law and the facts were usually so much mixed up together, that it was most difficult to frame any general measure for the remedy of the evils, great as they unquestionably were, of the law as it at present stood. At the period of the Reform Bill he was sanguine enough to hope that, by the establishment of numerous polling places, an end would be put to the system of refreshments to voters, and also to charges for conveyance; and if he had sat on an election committee soon after the passing of that bill, and the question of entertainments had come before him, he should have decided that refreshment of every kind whatever, was treating. This he stated, and stated freely. He had known persons who had maintained, that a candidate who lived in his own county, unless he locked his doors, and prevented his voters from coming in and taking a glass of beer, or eating a bit of beef, was guilty of treating; and the committee ought to look upon this as treating. But with respect to the resolution of the noble Lord, he felt that a resolution embodying and pledging the House to an abstract proposition, was the most unfit measure that could possibly be selected to effect the noble Lord's views; it was most unfit to say, that the House is dissatisfied and disgusted with the present system, without saying what they were to do to amend it. If the noble Lord would bring forward the measure he had in view, he, for one, would give it the fullest consideration, but, to be called upon to affirm a principle of this sort, was what he was not prepared for. With respect to what bad fallen from the noble Lord in reference to the triers of petitions appointed by the House of Lords, he was obliged to differ from the view of the question adopted by the noble Lord. True it was, that the House of Lords had, in very early times, and did yet, appoint triers of petitions, but not, that he was aware of, for the purposes supposed by the noble Lord. These triers of petitions were appointed so long ago as the reign of Henry 4th, when (it being the custom, as appeared, to name some of the judges) we found the name of Sir John Gascoigne, Chief Justice of England, at the head of the list. These triers were appointed just as they now were, and for similar objects. Next in the journals came the list of receivers of petitions; there were also the triers of petitions for Brittany, and the triers of petions for Gascony. The right hon. Gentleman, read various entries, in Norman-French, from the Lords' journals, with a view of showing, that these officers had never had any relation to the elections of Members of the House of Commons; in his opinion the quotation of the noble Lord from the speech of Mr. Grenville in reference to this subject, ought to have the less weight with the House, because it was most unfair to look to the published debates of that period as conveying the least idea of what really passed in Parliament. The debates were especially defective from the middle of George 2nd's reign, down to 1774; privilege was insisted on at that time, and it was, in consequence, quite impossible to tell whether what passed was correctly reported or not, more especially as the debates were not published till long after the interest in them was quite gone; but when the noble Lord stated, that the cognizance of questions of elections was founded upon, comparatively, recent resolutions of that House, he thought the noble Lord must have overlooked that part of the speech of Mr. Grenville, of the 7th March, 1770, where (as was reported), he said— In this House committees were constantly chosen to examine into elections; and in 1672, the Chancellor, having claimed the right of deciding contested elections, the Commons ordered a committee of 200 for that purpose, and resolved, that all who attended this committee should have voices. The establishment of committees has continued ever since; but during the time that the late Mr. Onslow presided in that Chair, the admirable order with which he conducted business, as well as some irregularities which took place in the committees induced such as wished for a candid trial, to be heard at the bar of the House With respect to the question which had been put by the hon. Member for Rochester in asking whether the House had any more reason to trust to the oaths of a committee of six, than of a committee of eleven, he was disposed to go further, and ask, why, if an oath was really found to have no effect on the conduct of Members of that House, they were to suppose, that an oath would be more binding upon a jury, or any other set of men? The hon. Gentleman (Mr. Pemberton) had said, that lawyers felt, to a great degree, unbiassed, either one way or the other, when placed upon these committees. Now, it was long since he left the profession, but he must say, that as far as his means of judging extended, he thought, that a lawyer was as liable to have a bias on his mind as any other Member of that House. He felt much aversion to the proposal of the three judges. These triumvirs, if appointed as it was proposed they should be, would, in fact, be made the fourth estate of the realm, and by no means the least powerful estate of it. Then they were to hold their offices for life. Now, it deserved to be considered that it was possible these judges might fail of giving satisfaction to the House and the public, and that long after they might have wholly lost their credit and character for impartiality it would be impossible to lay a finger on cases of partiality so full and clear as to enable the House to address for their removal. But on the question of impartiality, he must say he thought, that if parties were less nearly divided, there would be a much greater tendency than at present to impartiality in the decisions of their election committees. He certainly thought, that the present tribunal for the trial of controverted elections had ceased to give that satisfaction which was desirable. He, for one, was far from being disposed, however, to give his assent to the bill of the noble Lord which proposed to amend the present tribunal. He should wish the noble Lord to move his bill, and let the House see what it was. He wished extremely, that Government would adopt some measure for the appointment of a tribunal of appeal in decisions, so as to make the decisions arrived at final. Many other measures he thought might be suggested of a secondary nature for the purpose of obtaining agreement amongst the Members, which would not, by the arrangement suggested, be insured, as each person would support his own opinion.

Sir R. Inglis

concurred in the principle of the proposed bill. He thought, that the existing system was bad, and ought to be amended. He submitted to his right hon. Friend, that his own preamble might be applied to his own bill. It was not necessary for them to state, that they were essentially corrupt; but it would be necessary for them to state, for the purposes of the bill of the noble Lord, that they had always acted corruptly, or at least in a majority of cases; unless that were the case, there would be no necessity for his bill. Unless the House was prepared to make some alterations, whether they had the bill of his right hon. Friend or of his noble Friend, it mattered little. He was glad that his hon. Friend, the Chairman of the Ways and Means (Mr. Bernal), had thrown out a suggestion in this Session, to which he had begged to call the attention of the House in the last. He was not afraid of any decision that the judges appointed might come to. He believed they might trust to their jurisdiction their lives, their honour, and their property—that property on which depended their political influence. If they could trust the decision of the judges of England in the case of that property, why not trust to them in the decision of cases connected with the exercise of the power which that property gave them. There were several considerations which particularly recommended such a tribunal more than any other. He was certain that some change must take place. Even his right hon. Friend, the Member for Montgomeryshire, was satisfied that there must be some change. There were also other considerations, which had weight in relation to the appointment of the judges as the legal tribunal for the trial of controverted elections. They possessed a knowledge of the law, which could never be supposed to be found in any inferior members of the profession. He would ask, if it could be gravely stated, that the election tribunals, as now existing, were distinguished for their knowledge of the law relating to Parliamentary elections. He said they were distinguished, not for knowledge of that law, but for ignorance of it. He said, that a tribunal so constituted of the judges, would possess that general knowledge of the law which would properly guide them. He would suggest, to have this provision embodied in the bill. He threw it out as a consideration which, in his opinion, was not unworthy of notice, that eight additional judges should be appointed; that the judges should take circuits, which would lessen the existing expenses of the investigation. The investigations should take place on the spot, which would save all the expense of bringing witnesses to London. He believed, in an election case last Session, 200 witnesses were brought up and kept in London for many weeks. He would not refer to any details; they might probably excite animosity: but he might mention this as an historical fact, 'that 200 witnesses were kept last Session for several months in London. Would not all that expense be saved by a circuit of judges? They would get justice from the character of the judges; they would get uniformity of decision also; and they would get despatch and save expense. Without pledging himself to anything else, except the abstract proposition then suggested by his noble Friend, he would state, that there were behind the resolution plans, that the House might hereafter sanction. Upon that ground, he trusted, that his noble Friend would not withdraw his resolution, but give the House the opportunity of deciding upon it. He trusted, that a majority of the House would give his noble Friend an opportunity of bringing forward his resolution.

Lord John Russell

thought the course which had been taken by the hon. Gentleman opposite rather a singular one. The hon. Gentleman did not say to the noble Lord who brought forward the proposition, "This is a proposition which I am ready to support and to recommend to the House: I do not say there may not be better plans, but let us hasten to shake all confidence in the present tribunal; let us tell the country that no justice is to be got from an election committee; and let us not care about leaving it in doubt when or how we are to get a better system." Until something better was tried of the existing materials, he did not believe that that was a course which the House ought to adopt. But still farther to shake the constitution of the country, his hon. Friend proposes that the power of judging elections should be given to the judges, and that six or eight should be added to the number of these judges. Now he had the highest respect for the judges and for their decisions on the cases at present brought before them; but if there were any increase of their number, and if they should be continually expected to try political cases, if they should try the case of the hon. Member for Dublin, or the hon. Member for Westminster, or any other political case respecting which a great deal of excitement existed, then he would ask whether it was likely that the general reverence, the universal respect, now paid to the judges could any longer be experienced? He now came to consider the proposition made by the noble Lord, and he must say he could not go with him either in the tribunal he would establish, or in the remedy he would propose. It was not necessary, after the speeches of the right hon. Gentleman, the Member for Tamworth, and the right hon. Gentleman, the Member for Montgomery, that he should go into the history of these tribunals. He thought they had fully established a contradiction to what the noble Lord had quoted (probably a mutilated and ill-repotted extract from Mr. Grenville's speech), that from the time of Elizabeth and James 1st, down to the present time, when the noble Lord made his proposition, these powers had been regarded by the House of Commons as indispensable to their privileges and interest in them. In the well-known discussion on the great case of Abbott v. White, in which the most considerable persons of the time took a part, the Lord Chancellor Cowper, Lord Chancellor King, Sir Joseph Jekyl, and many others who had seats on the judicial bench—in that great discussion the right of this House to try questions of elections was fully decided, and what was the resolution come to? "That according to the known law and usages of Parliament, it was the sole right and province of the Commons House of Parliament, excepting in cases otherwise provided for by Act of Parliament, to examine and determine on all cases relating to the election of their own Members." That privilege they claim as one, which should, on no account, be taken from the House of Commons. When parties were very much divided in this House, as in the case of Sir Robert Walpole, to which the noble Lord alluded, then, no doubt, from the heat of party, it was found that the House was not a fair tribunal to try those questions. Afterwards Mr. Grenville proposed his scheme, by which the tribunal was still kept in the House of Commons, but which improved its judgments by entrusting election questions to a select body of the House of Commons, instead of to the whole House. The noble Lord admitted, that for a considerable time that plan worked well. But he (Lord John Russell) must say, that the cause given for this appeared to him a very fanciful one. The noble Lord had said, that as there were a certain number of Members for close boroughs who were not party men, and that being on election committees they contributed to the impartiality of the decisions. Now, if there were any regular party men on one or the other side of the House, they were generally these very Members. There were, indeed, in those days, a number of persons who did not take so violent a part as was commonly taken at the present, but those persons were invariably county Members. He could allude to different names, but it was not necessary to go into that now, of persons generally siding with and favouring one party more than another, but who often gave their decision in a particular case against their own party; but these were not Members for close boroughs, but representing large and open places, such as Nottinghamshire and various other large constituencies. He did not, therefore, see any great loss in the close boroughs. But we were now come to a state of political affairs in which parties were so nearly divided, that one voice more or less was of very great importance to different political parties. It was very different when one party was 400, and the other but 120. Those who numbered 400, could very well afford to lose one or two, and it mattered little if a division raised the minority to 121 or 122, and therefore there was not that heat and passion which the present state of things produced. But it remained to be proved, that the near decision of parties and the considerable degree of dissatisfaction which existed with the decisions of the House were permanent and incurable disorders, which should make them agree with the noble Lord in re- moving the decisions entirely from that House. The various evils which existed before the Grenville Act found a cure in it for a long period, without going out of that House. He was not sure that the right hon. Gentleman, the Member for Tamworth, might not propose some plan which, after receiving due consideration from that House and all parties, might again for forty or fifty years conciliate respect for the decisions of a tribunal composed of Members of that House. If that were the case, and there was reason to hope it, let them not agree to the resolution of the noble Lord. Let the noble Lord, if he wished, show them how a tribunal might be formed from the Members of that House better than that proposed by the right hon. Gentleman, but let them not condemn every tribunal of the House of Commons until they had an opportunity of examining the right hon. Baronet's plan, and of seeing whether it could be made the foundation of an improved judicature in respect to elections. With respect to the noble Lord's plan, he confessed that like others he was not satisfied with it. In that respect he agreed with his hon. Friend, the Member for Oxford, who, though he approved of the resolution, was not satisfied with the plan—that plan, no doubt, was very ingenious—the Speaker was to take an oath. He did not know how his hon. Friend, the Member for Rochester, would reconcile that part with his feelings about oaths; but the Speaker was to take an oath, and was then competent to name six Members of a Committee. One could imagine that he might very well name six trustworthy and excellent Members of the House of Commons. But considering the division and changes of party in that House, he did think that the Speaker, with the utmost endeavours to act impartially, and to give satisfaction, might find difficulties beyond his power to surmount. But the three Members of class A were to select three names, of which the class B was to take one. The class B was to name three of which class A was to take one. And, then, they had two judges. But he doubted very much whether there would be any power in the whole country competent to settle the remaining point. He had not heard the noble Lord himself meet the difficulty—and it was the whole problem—how the third was to be chosen. They had one judge, indeed, from class A, and one from class B, but there was the third, and on that third, in his opinion, depended the political complexion of the whole tribunal. On that he did not hear a satisfactory explanation from the noble Lord. It might be explained now. But he must say, for his own part, that he did not believe a tribunal so constituted would be very free from political bias. But all eyes would be turned on that tribunal, and we should hear one party or the other very soon proclaiming it an unjust, unfair, and even a corrupt tribunal. Let them consider the additional evils which would be thus incurred. There might be an election Committee at present on a particular case, and persons might complain during its sittings of the unfairness of its decisions; but the Members would soon return to their position in the House, and be regarded as equal with the other Members in the honour and integrity of their conduct. Their decision in Committee might be blamed, but their general integrity would remain unimpeached. But with regard to a permanent tribunal, it would be a constant mark for all objections to be aimed at. And if once it acquired the name of partial and unfair, its whole decisions would be vitiated. Every case referred to them would be said beforehand to be about to be unfairly and partially decided. These were his reasons for not being satisfied with the plan of the noble Lord and his hon. Friend, the Member for the University of Oxford, and above all for refusing to agree to the resolutions proposing a sweeping condemnation of the character of the House before any feasible plan for creating a tribunal within the House were examined. He would refer, before he sat down, to one or two other propositions alluded to by the right hon. Gentleman opposite. There was a proposition made by his noble Friend, the Member for Lancashire, last year, that a Committee, consisting, he believed, generally of legal Members of the House, should consider the disputed points, and agree upon them; but it seemed to him not very likely that such Members, considering their professional engagements, would be able to attend the Committees. [Lord Stanley: the Committees were not to consist of legal Members.] If such Members did not at all or but little attend, the decisions would then be decisions of a very small number, and would not carry the weight they ought to have. It should likewise be considered that this matter could not be exclusively determined by that House; and there might be difficulties in obtaining the assent of the other House of Parliament to a Bill for deciding this point. There was one proposition, however, which had been alluded to, and to which he had always been very favourable—that was, the proposition for having a court of appeal from the decisions of the revising barristers. He did not know why there should not be a court of appeal, constituted by act of parliament, from the revising barristers. Such a court deciding in cases which in fact would not regulate any election—three or four doubtful votes in a constituency of three or four thousand—would be able, without very great disputes or suspicion, to settle the law, and lay down rules of such authority, that they would have very great weight in subsequent decisions of election committees of the House of Commons. He certainly was still of opinion—first, that improvement might be made with respect to the decisions of revising barristers, which at present were exceedingly varying; and secondly, that decisions laid down by such a court as he had mentioned, might be beneficially referred to when questions of a similar nature were discussed, but the ultimate tribunal he would always wish to be a committee of that House. If the House wish to entertain or favour that proposition, he should be very glad to assist in bringing it regularly under its consideration. He did not say that he was entirely adverse to the proposition of his hon. Friend. But when he was asked to take a part in it, he certainly could not be very sanguine in his hopes of success, He thought that several propositions might be made which would have the effect of rendering the law more clear and simple. He thought that the decisions of revising barristers might be improved, that great improvement might be made by an appeal, such as the right hon. Baronet proposed to introduce. It was a subject to which they might most usefully give their time and attention; and certainly he hoped they would employ themselves in the endeavour, before they utterly despaired of the amendment of election tribunals, or consented to a final resolution similar to that of the noble Lord.

Mr. Kelly

said, this was a subject in which he had always taken the greatest interest, and on which he had bestowed no little time and attention. The question was undoubtedly of the very highest importance. It was at all times of importance that any institutions connected with the administration of justice should be so constituted as to insure the confidence of the country; and it was now undeniably clear that the election committees of this House had lost the confidence of the people. The election committees of this House had not only lost the confidence of the people, but they had even brought discredit and suspicion, and reproach upon this House itself; and this was a truth which could no longer be disputed. When it was considered that this was proclaimed loudly by the public voice, the only remaining question to be determined was, how that great and grievous evil could be best remedied? Many objections had been made to what was somewhat vaguely if not erroneously, called a transfer of the jurisdiction of this House. Before it was assumed that this House was about to part with any of its privileges, or any of its jurisdictions, he would ask the preliminary question, whether this House had not already parted with all the jurisdiction it ever possessed over the trial of controverted elections? It was scarcely necessary to enter into the history of the establishment of the privileges of the House; but whatever might belong to those privileges, they could not claim the merit of such remote antiquity as others which were possessed by the House. It was well known that for no less than two or three centuries preceding the reign of Elizabeth, the right to amend false returns, and determine all questions in the nature of controverted elections, was vested in the Crown. It was exercised by the Crown either by the Privy Council, the House of Lords, or the Judges, or sometimes by the mere exercise of the power of giving directions to the Sheriff at once to amend the return. Hapily for the Constitution of the country—happily indeed for the liberties of the people, the House of Commons as early as the reign of Queen Mary, attempted to secure to itself the jurisdiction of all returns to Parliament, and in the struggle which terminated in favour of the House of Commons as late as the reign of James 1st the jurisdiction became generally settled and recognised in this House, and in this House, no doubt, it continued unimpaired until the year 1770, when the Grenville Act passed. He might be allowed, perhaps, to vindicate his noble Friend from the imputation of having fallen into an historical error when it was supposed the House still permitted the question of controverted elections, to go to the House of Lords. He believed that that had arisen from a typographical error in the report of the debate of 1770, because no doubt when his learned Friend referred to historical documents he would find that the very latest of them when the question was raised as to the exclusive right of this House to determine all returns, was the reign of James 1st in the case of Sir Thomas Godwin who was returned for Buckingham. A dispute arose concerning his return. A claim was made by the Crown, first, by the Lord Chancellor—afterwards by the Judges—ultimately by the House of Lords, to settle the question of disputed returns. The House of Commons fortunately persisted in claiming to itself the right of determining all questions of that nature, and finally prevailed—the pretensions of the Crown were withdrawn, and from that time till 1770 no question was raised as to the exclusive rights of the House. They all knew, as early as the year referred to by the right hon. Member for Tamworth, the 8th of William the 3rd, the exclusive power of the House was recognized by the Legislature. But this was no longer a question. The House having assumed and long exercised this power, it was found for several years before the Grenville Act passed, that this House was altogether incompetent to discharge the duties it had assumed consistently with the administration of justice in the kingdom. It was found, that although then, as now, there were many eminent lawyers in the House, that then, as now, this House was an Assembly of the first Gentlemen in the kingdom—still, it was not possible to administer justice to the satisfaction of the people—it was found, that although counsel were engaged, and witnesses were examined at the bar, the whole took place before empty benches, and it was only when the division took place that Members rushed to their places to vote. In consequence of that state of things the Grenville Act was passed, and he would seriously beg to ask the House, before they raised such strong objections to whatever called for the transfer of their own jurisdiction, had they not by that Act of Parliament parted with all their jurisdiction? The motion did not seek to deprive the House of the power of compelling the attendance of witnesses, or of compelling the production of documents, and of punishing delinquency. At present the House had no power of controlling or qualifying the decision of committees from the moment of their appointment—they had no power over them whatever. It appeared to him, therefore, in vain to talk of the jurisdiction of that House when that jurisdiction was already transferred to the committees to whom the election petitions were referred. The important question was this—was an election committee competent to the due administration of justice upon the oaths of those sworn to administer? It was not; and whatever might be the bill of his right hon. Friend, and however superior it might be to any other not yet suggested, even that bill would fail to constitute a tribunal from that House competent to administer the law. In order to determine the question whether an election committee was competent to administer other justice, they must first consider, what were the duties that committee had to discharge. It had to decide upon the most difficult and complicated questions of law. The right hon. Baronet who, with his transcendent abilities, was capable of turning anything into ridicule, had endeavoured by a supposed preamble, to show that, by adopting the motion of his noble Friend, the House would be inflicting something like an insult upon itself. He begged leave to say, with all respect to the House, that it was no more an insult to the House not being a legal tribunal, to say that it was incompetent for the decision of complicated and difficult points of law, than to say it was incompetent to conduct an army, to navigate a ship of war, or to amputate a limb. Another difficuly arose from a total absence of any uniform decisions—there were no authorities of previous committees binding on tribunals of the same nature; that was an evil that called aloud for a remedy; and the consequences were such that no man who considered this question could fail to look at it with deep regret. He would take the great and important question of the opening of the registration on Irish petitions. If that had once been decided, there would have been a government principle for every tribunal, afterwards. If that question had been satisfactorily determined, at the first moment it was raised before an election committee, that would have prevented an expense almost incalculable—would have prevented a great number of petitions from Ireland—would have prevented argument after argument, day after day, on various committees, and would have prevented that which was far more discreditable—a series of conflicting decisions, so that at the present moment no counsel could safely advise what the decision of a committee was likely to be. He hoped the House would look to past experience, before they rejected the plan of his noble Friend. He sincerely regretted, that the experience of the last few years, with respect to committees had been such as to create the greatest dissatisfaction, amounting, in fact, to absolute condemnation by the public of those tribunals; and he trusted, that some mode would be adopted by which the confidence of the people would be restored.

Lord Mahon

replied—As to the historical controversy which had arisen between him and his right hon. Friends, (Sir R. Peel and Mr. Wynn) he begged to remind the House that he had never denied, that the privilege of trying controverted elections had been vested in this House, in the reigns of Elizabeth and James the first. His argument was, that their predecessors had not always shown the watchfulness and jealousy for which his right hon. Friend had formerly praised them, and that the privilege had not continued uninterrupted from those times to the present. He believed, on the authority of Mr. Grenville, that at the Restoration amidst the loose ideas of constitutional rights which then prevailed, the Commons had allowed the Lords to take some share in the jurisdiction of election petitions. It is further stated by Mr. Grenville, in his speech of March 7th, 1770, that in 1672 the Lord Chancellor had openly claimed the right of determining controverted elections, upon which the House of Commons were moved to reassert their ancient privilege. His argument was merely against the unbroken succession claimed for the present jurisdiction by its supporters as one ground for retaining it. His right hon. Friend, the Member for Montgomery, had advised him to withdraw his resolution and bring in his bill. But he thought it would be only a waste of the time and attention of the House to bring in a bill if its main principle were not previously assented to by the majority of the House. Did his right hon. Friend mean to say, that any perfection of detail could reconcile him to his (Lord Mahon's) principle of jurisdiction? No, his right hon. Friend would say—and have a perfect right to say—"I can find no fault with your clauses—your plan may be well contrived, but I think the jurisdiction should remain with the House, and I will not consent to part with it." He (Lord Mahon) should therefore persist in taking a divison upon the principle embodied in his resolution.

The House divided: Ayes 63; Noes 177: Majority 114.

List of the AYES.
Acheson, Viscount Knatchbull, right hon. Sir E.
Aglionby, H. A.
Aglionby, Major Knight, H. G.
Archdall, Mervyn Lushington, C.
Barron, H. W. Moreton, hon. A. H.
Bateson, Sir R. Murray, A.
Bernal, R. O'Brien, W. S.
Blackstone, W. S. Palmer, R.
Blewitt, R. J. Pechell, Capt.
Bradshaw, J. Pemberton, T.
Brownrigg, S. Pigot, R.
Chapman, Sir M. L. C. Plumptre, J. P.
Christopher, R. A. Powerscourt, Visc.
Cresswell, Cresswell Redington, T. N.
Dennistoun, J. Richards, R.
Dundas, C. W. D. Rushout, G.
Dungannon, Viscount Shaw, rt. hon. F.
Eaton, R. J. Sinclair, Sir G.
Egerton, W. T. Smith, R. V.
Fector, J. M. Stanley, E.
Fitzroy, hon. H. Stormont, Viscount
Forester, hon. G. Style, Sir C.
Freshfield, J. W. Talfourd, Mr. Serg.
Gibson, T. M. Turner, E.
Glynne, Sir S. R. Vere, Sir C. B.
Gordon, hon. Capt. Vigors, N. A.
Grattan, James Walsh, Sir J.
Hall, Sir B. Ward, H. G.
Hawes, B. Wood, Sir M.
Hutt, W. Yates, J. A.
Jervis, John
Jones, J. TELLERS.
Kelly, Fitzroy Mahon, Viscount
Kinnaird, hon. A. F. Inglis, Sir R. H.
List of the NOES.
Abercromby, hon. G. R. Baker, E.
Acland Sir T. D. Baring, F. T.
Acland, T. D. Barnard, E. G.
Adare, Viscount Berkeley, hon. H.
Anson, Colonel Bewes, T.
Archbold, R. Blair, J.
Baillie, Colonel Blake, W. J.
Baines, E. Blakemore, R.
Blennerhassett, A. Howard, P. H.
Bodkin, J. J. Howard, Sir R.
Bolling, W. Howick, Viscount
Bridgeman, H. Hughes, W. B.
Briscoe, J. I. Hume, J.
Broadley, H. Humphrey, J.
Broadwood, H. Hutton, R.
Brocklehurst, J. Irton, S.
Brotherton, J. James, Sir W. C.
Bruges, W. H. L. Jenkins, R.
Buller, Charles Kemble, H.
Buller, Sir J. Y. Langdale, hon. C.
Burr, Higford Lascelles, hon. W. S.
Burrell, Sir C. Lefevre, C. S.
Busfeild, W. Lefroy, rt. hon. T.
Byng, rt. hon. G. S. Liddell, hon. H. T.
Cayley, E. S. Lockhart, A. M.
Chalmers, P. Mackenzie, T.
Childers, J. W. Mackenzie, W. F.
Clerk, Sir G. Mackinnon, W. A.
Clive, hon. R. H. Macleod, R.
Collier, J. Maher, J.
Conolly, E. Marshall, W.
Courtenay, P. Master, T. W. C.
Cowper, hon. W. F. Miles, P. W. S.
Craig, W. G. Milnes, R. M.
Darby, George Mordaunt, Sir J.
De Horsey, S. H. Morpeth, Viscount
Dottin, A. R. Morris, D.
Douro, Marquess of Murray, rt. hon. J. A.
Dowdeswell, W. Noel, W. M.
Duff, James Norreys, Sir D. J.
Duke, Sir J. O'Brien, C.
Dunbar, G. O'Callaghan, hon. C.
Dundas, F. O'Connell, M. J.
Elliot, hon. J. E. O'Connell, M.
Ellice, E. O'Conor, Don
Evans, G. O'Neill, hon. J. B. R.
Evans, W. Ossulston, Lord
Farnham, E. B. Paget, F.
Feilden, W. Pakington, J. S.
Ferguson, Sir R. A. Palmer, G.
Finch, F. Parker, John
Fort, J. Parker, M.
Gladstone, W. E. Parker, R. T.
Gordon, R. Parrott, J.
Gore, O. J. R. Peel, rt. hon. Sir R.
Gore, Ormsby W. Perceval, Col.
Goulburn, rt. hon. H. Philips, M.
Graham, rt. hon. Sir J. Ponsonby, C. F. A. C.
Grant, hon. Colonel Pringle, A.
Grant, F. W. Protheroe, E.
Grattan, H. Pryme, G.
Grimsditch, T. Rich, H.
Hardinge, rt. hon. Sir H. Rickford, W.
Hastie, Arch. Rolfe, Sir R. M.
Hawkes, T. Rolleston, L.
Hawkins, J. H. Round, C. G.
Hayes, Sir E. Rundle, J.
Hayter, W. G. Russell, Lord J.
Heathcoat, John Salwey, Colonel
Hinde, J. H. Sanford, E. A.
Hindley, C. Scholefield, J.
Hodgson, R. Sheppard, T.
Hope, hon. Chas. Sibthorp, Colonel
Hope, G. W. Slaney, R. A.
Houstoun, G. Smyth, Sir G. H.
Stanley, E. J. Verner, Col.
Stanley, Lord Waddington, H. S.
Stansfield, W. R. C. Wall, C. B.
Steuart, R. Warburton, H.
Stewart, J. Whitmore, T. C.
Stock, Dr. Williams, W.
Strickland, Sir G. Winnington, T. E.
Strutt, E. Wood, C.
Stuart, V. Wood, G. W.
Tancred, H. W. Wood, T.
Teignmouth, Lord Wynn, rt. hn. C. W.
Thornley, T. Young, J.
Thornhill, G. TELLERS.
Townley, R. G. Fremantle, Sir T.
Troubridge, Sir E. T. Maule, hon. F.

Sir Robert Peel moved for leave to bring in a bill to amend the jurisdiction for the trial of controverted elections. He believe he would best discharge his duty by merely moving the introduction of the bill on the present occasion, and the discussion might be taken in a subsequent stage of the measure. With respect to the question put by the hon. Member for Rochester (Mr. Bernal), as to how far an oath which was not binding on eleven would be binding on six, he would say, that he proposed that the Committee should assemble under altogether a different influence, and therefore the arguments of the hon. Gentleman did not apply.

Leave given.