HC Deb 28 May 1840 vol 54 cc688-701
Mr. Pigot

rose to move for leave to bring in a bill to remove doubts with respect to the qualification of voters in Ireland for the election of Members to serve in Parliament, and to create a tribunal of appeal. The objects of the bill were; first, to ascertain and settle the law as to tenements to which the Irish Reform Act had annexed the franchise; and next, to assimilate it to a considerable extent to the law of this country. Doubts had arisen very soon after the passing of the Reform Act, which rendered it indispensable that the law should be settled. Differences of opinion had arisen among the originators of the law, and among those whose duty it was to carry that par- ticular provision of the law into effect. Those differences continued to exist. That the construction which some had put upon the act, was against the intention of many of those who had taken a part in framing it, all that had passed in the recent debates abundantly proved—that the intention of the framers of the act had been frustrated, no one who had studied the act or attended to what had transpired in both Houses, could entertain a doubt. Indeed, the phraseology of the act itself suggested the impossibility of reconciling the construction which some had put upon it with the manner in which the act was framed. The act followed almost in terms the act which passed in 1829 for the relief of Roman Catholics. In that statute there were two distinct sections—the first describing what the claimants were to do, and the second describing what the judge was to do in examining the claims that came before him. The value of the property was to be tested by what a responsible tenant would pay over and above what was paid by the tenant. In the schedule to that act, there was the oath which it was incumbent upon the claimant to swear, and after swearing that he was possessed of the property in the manner required in point of possession, and that he was possessed of it in the manner required in point of occupation, there were these distinct words—"That a solvent tenant could afford to pay over and above," &c. Then in another part, there was the form of oath to be taken by the jury who were to try the value of the property, and that form was, that they should well and truly try whether he had value in the property in respect of which he claimed to the amount of 10l. 20l. or 50l. (according to the amount of the franchise), over and above the rent paid by the claimant. The Reform Act pursued in nearly the same terms the two sections of the act of 1829, and going through the very same expressions with respect to proving the claim, instead of directing that the claimant was to establish the value that a good solvent and responsible tenant could afford to pay over and above the rent actually paid, it was directed that the claimant should establish that he had a beneficial interest in the property according to that (the Reform) Act. And what was that beneficial interest? 10l. per annum. The act also retained the terms of the former claimant's oath with the exception of the passage he alluded to. In the act of 1829, the juror's oath was in distinct terms. In the Reform Act it was expunged, and no form was prescribed by which the question was to be tried by the jurors. When the law of franchise was submitted to a purely technical tribunal, it was impossible to tell the result, and that a constituency sending 105 Members to that House, should be left in a complete state of doubt and uncertainty with respect to the law, was a dishonour to the country, The bill ho proposed to introduce, adopted a definition that had passed the House on two occasions. In 1835, it passed in the shape of a bill, which was not sent to the other House, and in 1836 it passed in a bill which was sent to the House of Lords, but which did not pass into a law. Now, by the bill recently introduced for England, a tribunal of appeal was proposed to be created of three barristers out of the fifteen selected by the judges. That was an experiment entirely new, and some doubts existed whether there should be a tribunal of a similar kind for Ireland. The laws of the two countries were almost identical, especially with respect to real property, out of which the franchise arose. He therefore proposed, for the consideration of the House, that two barristers be appointed who should sit in Dublin, and who should have the assistance of one of the three judges of appeal for this country, with a numerical majority controlling the decision of the court below. These were the chief points of the bill, which he trusted would meet with the approbation of the House.

Mr. Litton

said, that the tribunal which the hon. and learned Gentleman propose to constitute appeared to be subject to all the objections that existed to the present tribunal of assistant barristers, and he would say, that the settled law of the land would be violated by the measure. The bill was an insult to the administration of justice. The title of the bill was to remove doubts with respect to the qualification of voters in Ireland, for the election of Members to serve in Parliament, and those doubts had been explained by the hon. and learned Gentlemen opposite to mean doubts as to what was the interest in the franchise which entitled men to be registered, and whether or not that interest was what was called a beneficial interest—that was what any man in his own fancy might imagine it to be worth, or whether it was such an interest as a solvent tenant would give 10l. more than the tenant was bound to pay. When he said the bill was an insult to the administration of justice, he heard some hon. Member exclaim "No." He, however, would say, that it was an insult, when the law of the land had been settled, for any hon. and learned Member of that House or for any government to bring in a bill the title of which characterised the law as doubtful. He would reassert, as a lawyer and Member of Parliament, that the law on the subject had been definitively and finally settled by the decision of ten judges to two; that the judge, when trying an appeal on a question of the value of a franchise under the Reform Act, was right in directing the jury to find whether a solvent and responsible tenant could afford to pay for the holding, fairly and without collusion, an additional sum to that which he sought to register for—namely, 10l. He was prepared to say that that was the case. He had the book, and the hon. Member for Dublin had mis-stated the case. The case was determined after two days' argument by counsel. It was true that Mr. Baron Richards and Mr. Justice Perrin chose to act on their own opinions upon the circuit, in opposition to the decision of the majority of the judges, and had rather brought censure on themselves than thrown doubts on the law. He must add that he disapproved of those assistant-barristers who had followed the same course. He did not rest merely on the opinion of the Irish judges; for Lord Chief Justice Bushe had written to Lord Denman, with a view of ascertaining what was the practice in England in respect of the minority of the judges being bound in their subsequent decisions by the opinion of the majority, and Lord Denman had returned a reply, which he would read to the House. [Lord John Russell: Read the letter of Lord Chief Justice Bushe.] The hon. Member read the letter accordingly, which, after stating what was the practice in Ireland with respect to reserved points in cases arising in the Crown courts on the circuit from the decisions of assistant-barristers, inquired whether it was understood in England that a judge would consider himself at liberty to rule on the circuit in opposition to the decision of the majority, and according to his original opinion. The hon. and learned Member then proceeded to read Lord Denman's answer, which was to the effect that each judge held himself bound by the opinion of the majority. Lord Chief Justice Bushe then called a meeting of the judges in Easter Term 1838, and it was resolved, by a majority of ten to two, that the learned judges in the minority were hound to adopt the opinion of the majority. Did hon. Members forget the recent case of Frost, where the same point arose, and where Lord Chief Justice Tindal, Mr. Baron Park, and Mr. Justice Williams certified to Lord Normanby that the decision of the minority was to be bound by the opinion of the majority, and that the point relied upon in the memorial that had been presented, that two of the judges named in the special commission were in the minority, made no difference whatever. Now, the question in the present case was, whether or not, the judges having decided the question, their decision was not the law of the land, and binding upon all inferior tribunals. Under these circumstances, although he would not divide the House against the motion for leave to bring in the bill, he thought it right to raise his humble voice against it, and to give notice that upon the fair and open grounds he had just staled he should feel it to be his duty to give a decided opposition, in all subsequent stages, to any measure containing such provisions as had been stated by his hon. and learned Friend, the Member for Clonmel. He maintained that the franchise in Ireland was at present clearly defined and settled—that no doubt or difficulty existed with respect to it, and that no Gentleman of that House—at all events, no constitutional lawyer, would be justified in bringing in a bill to declare that there was a doubt upon that which was the fixed and settled law of the land.

Sir Denham Norreys

regretted to find that the qualification for voting was still to be left depending on opinion and not on fact. Whichever form of oath the Solicitor-general adopted, still the vexatious proceedings consequent on the proof would be left unremedied. Proof on oath of value would still be given—still to be met by proof on oath of the contrary. Landlords would still be arrayed against their tenantry, and the tenantry against their landlords. Why not, now that the country has been placed under the Poor-law Act, adopt some standard of qualification which should be a fact not capable of contradiction? It would be a boon to the country, which he hoped might originate with his hon. Friend, the Solicitor-General, if some measure were introduced, which should make the amount at which every man was rated, or the valuation of his property under the Poor-law Act, the standard of qualification, instead of the present uncertain and most vexatious system.

Mr. Lucas

entirely concurred in the observation of his hon. Friend, the Member for Mallow, (Sir D. Norreys). He believed that the mode of testing the qualification by the beneficial interest of the tenant, as proposed by the hon. and learned Gentleman (Mr. Pigot), was a mode which that hon. and learned Gentleman himself would hereafter have the greatest possible reason to regret. In point of fact, it would permanently fix upon the constituency all the evils and mischiefs of which so many complaints were now made. He believed it would not be possible to make any definition of the qualification based upon the words "beneficial interest" capable of enforcing uniformity of decision. To remove this difficulty be begged to suggest that it would be better to take the ordnance valuation, the Poor-law valuation, or even a valuation by surveyors. If the bill were introduced in the shape described by the hon. and learned Member for Clonmel, he ventured to predict that when it came fairly before the House, the good sense and experience of the English Members would prevent it from passing into a law.

Lord John Russell

had asked the hon. and learned Gentleman (Mr. Litton), who spoke immediately after his hon. and learned Friend (Mr. Pigot), to read the questions which had been put by Chief Justice Bushe to Chief Justice Denman, because he wished to know exactly what it was to which Lord Denman had replied. He gathered from the letter read by the hon. and learned Gentleman that Chief Justice Bushe asked Chief Justice Denman two questions—first, what was the course of the judges in England with respect to points reserved in Crown cases and criminal matters upon circuit? and secondly, what was the course in cases of appeal from the assistant-barristers? Now, with regard to the first of these questions, Lord Denman having consulted the judges, gave a very positive answer, which accorded with one lately given by Chief Justice Tindal. But with regard to the question of appeal, he could not conceive that Lord Denman gave any answer whatever to that part of Chief Justice Bushe's letter. Lord Denman left that point of the letter wholly unnoticed. That branch of the law which more immediately concerned the House of Commons never was brought by Lord Denman before the judges in any way whatever. Therefore he conceived that the hon. and learned Gentleman was hardly justified in attributing the weight that he did to the letter of Lord Denman upon the subject. He here must also repeat again his difference of opinion from the hon. and learned Gentleman, who seemed to think that the whole of these questions were to be decided by a majority of the judges in England and Ireland, whose decision was to be binding upon the rest, and that then there should be no appeal. He could not assent to that doctrine without asking the House to rescind several resolutions which it had come to at various times, asserting that it was proper to leave to the House itself the final decision of questions relating to votes given at elections. He apprehended that the intention of Parliament upon the subject was to be gathered from the interpretation placed upon the provisions of the Reform Act by those who concurred in recommending that measure to Parliament. He had already stated that the Duke of Richmond and the Marquess of Lansdowne had both of them distinctly declared in the other House of Parliament, that in altering the act of 1829 they wished to get rid of that provision by which a voter was obliged to swear that a solvent tenant would give him 10l. over and above the sum which he himself paid. But there was another authority. Soon after the Reform Act passed, there was a select committee of that House, who tried, upon their oaths, this question of the franchise. He alluded to the committee which met to try the merits of the petition complaining of the election for Longford county. Before that committee there were members of both sides of the House, but the majority was composed of those who generally sat upon the Opposition benches. They heard some very able arguments upon the question, and the end of their deliberations was, that the vote of Lawrence Farrall was a good vote, thereby placing on the poll the vote of a person whom the judges of Ireland would not allow to be properly qualified. They not only committed this insult, (to adopt the phraseology of the hon. and learned Gentleman) upon the judges of Ireland, but they proceeded to resolve that the property, whether freehold or leasehold, in respect of which a claim was made to vote, should be of the clear annual value of 10l. That was their general resolution upon the subject, entirely omitting the question of what a solvent tenant could pay. He considered that these omissions of the Reform Act, and this decision of the Longford committee, afforded quite sufficient ground for the House to say, that doubts existed upon the subject which it was absolutely essential should be determined one way or the other. He could not see, therefore, why the House was to be less ready to declare what should be the Parliamentary decision upon the subject—the question of the Parliamentary franchise being in the first place one of the utmost importance for the House to consider; and, in the next place, the power of resolving any doubts with respect to the value of any particular vote coining within those rights which the House of Commons had reserved to itself by the constitution of Parliament and the law of the land. With respect to the mode of resolving any doubt that might arise in relation to the right to vote, he apprehended that the only proper way of doing it was to introduce a measure based upon a principle that should be in conformity with what was intended by the Reform Act as the principle upon which the franchise should he determined. He thought that they stood upon good ground when they said that such and such was the original intention of the Reform Act—that many persons who were engaged in framing the measure declared that such and such was the intention of the Reform Act— that different opinions and decisions had since been given—and that, therefore, it was necessary by a new measure to reestablish that which was the original intention of the Legislature. If he could see that Parliament would be disposed, without reference to party, to establish the franchise upon a fair ground—a ground that would not diminish or take away, or in any manner abridge those franchises which it was the intention of the framers of the Reform Act to grant, he should be ready to lend his aid in framing such a measure and carrying it through Parliament. He could not say, however, that he had at present such an expectation upon the subject as would induce him to recommend his hon. and learned Friend to go further than he proposed to do. If, in the course of the discussion, it should appear that any such interpretation would meet with support, then the Government would be bound to bring it forward and to ask the House to adopt it. But he did not think it advisable to raise a question of the kind, unless there was some prospect of agreement upon the subject.

Mr. Shaw

could not help protesting against some of the doctrines which had been put forth by the noble Lord who had just sat down. The noble Lord had spoken as if the intentions which the framers of a law had expressed before it passed were to be regarded in the construction put upon it by courts of justice; and the noble Lord seemed also to think that judicial tribunals were not to be bound by the decision of a majority of the judges. Such propositions surprised him, coming as they did from one so well versed in the constitution of this country as the noble Lord, and if they could be maintained, there would be no security whatever for uniformity or certainty of decision. He agreed with the hon. Member for Coleraine, that no doubt existed upon the question now before the House; he would not weaken the case by referring to Lord Denman's letter, but would rest his opinion upon the decision of the majority of the judges of Ireland. He had had some experience as a judge in an inferior court, and he would almost as soon decide in the teeth of an Act of Parliament as in opposition to a case decided in one of the superior courts of law. He could not agree with what the noble Lord had represented to be the intention of the Legislature with respect to the "beneficial interest" required by the Reform Act; but, however that might be, he contended that, Parliament having once passed a bill, and committed it to the legal tribunals of the country, it was not competent for them afterwards to say that the construction which had been put on it was inconsistent with the original intention of its framers. If the intention was not carried out, they might introduce another bill to alter it: but the construction put on it was certainly for the time being the law of the land. He had the greatest possible objection to this bill, as well as to the time and manner in which it had been introduced. Nothing could be more unfair, and, under all the circumstances of the case, more uncandid, than the mode in which two questions, wholly distinct and separate, had been connected together by the hon. and learned Gentleman. What was the leading objection taken the other night both by the noble Secretary for the Colonies, and the hon. and learned Solicitor-general for Ireland, to the bill of his noble Friend? It was, that his noble Friend had not introduced into his bill any definition of the beneficial interest. But the hon. and learned Gentleman, in introducing his own measure on the subject of registration, also omitted all reference to that subject; and engrafted what was strictly a registration regulation upon his franchise bill. Nothing could be more inconvenient. Again, the noble Lord put appeal into his registration bill, while the hon. and learned Gentleman kept appeal out of his registration, and put it into his franchise bill. This convinced him the more of what there could not be the shadow of a doubt, that neither of these bills were brought forward for their own sake, but simply with a view to impede the progress of the measure which had been introduced upon the same subject by his noble Friend, the Member for North Lancashire. The noble Lord might, perhaps, suspect that the franchise bill was not very likely to pass. Why, then, had the appeal, which was admitted to be necessary, been coupled with another measure to ensure its rejection? The appeal then would be left as at present, one-sided and unjust, an appeal against registration, but none against improper admissions on the register. To the proposition itself he had the greatest objection, because the assistant barristers were dependent on a vote of that House. In his opinion, the barristers should decide in the first instance, but an appeal to the judges was necessary, in order to give uniformity and fixity to the franchise.

Mr. M. J. O'Connell

doubted whether the hon. Member for Coleraine had read the evidence given before the fictitious votes' committee; for questions were there put by Mr. Sergeant Curry, which showed how easy the net value, after payment of the tenant's expenses, could be ascertained. For himself, he should be glad if the suggestion of the hon. Member for Mallow were adopted, and some certain test of value established.

Mr. Wakley

hoped the noble Lord would reconsider the question, with a view to adopt the recommendation of the hon. Member for Mallow, and that they would no longer hear it said, that Members obtained seats in that House by fraud or perjury. Was it consistent with the high bearing of the noble Lord, that he should come forward and say that he did not propose what was right, because it might not be adopted elsewhere? Let the right measure be brought forward, and then let those who raised the objection to such a proposition bear all the odium. He trusted that leave would be given to bring in the bill that night, but that it would not be introduced till clauses had been framed to meet the suggestion that had been made. If the franchise were to depend upon pro- perty of a certain value, it was right that the value should be clearly ascertained; it ought to be an admitted fact, and not founded upon the fanciful view of any party claiming the right, and as they now had a valuation in Ireland, made by parties who could have no object in giving a fraudulent or fictitious value, this was the time to adopt a definite valuation for the franchise. There seemed to be no objection to the proposal in any part of the House; they all seemed to agree, that if there was to be a property qualification it should be something that was seen, not only such a value as a person having the property might fix, but such as any indifferent person would acknowledge, and if that were the general feeling, surely the hon. Gentleman would adopt the proposal. The hon. Member for Coleraine had said, that when he looked at the title of the bill, he considered it an insult to the judges in Ireland, and from the serious tone in which the hon. Member had argued, he really seemed to consider that it was an insult to those learned persons; of course no one could prevent the hon. Member from putting his own construction on the language, but anything further from insult he could not conceive. The hon. and learned Gentleman said, also, that he believed there were no doubts about the qualification; and, at the same time, he told them that two judges pertinaciously adhered to their own opinions; that they would not be governed by the other ten, and that these two again and again decided contrary to the opinions of the others. Why, if this were so, it was clear that although no others entertained a doubt, at least these two judges had doubts, and the hon. and learned Gentleman knew perfectly well that those two judges had a perfect right so to act. The allusion which had been made to Lord Denman upon this point reminded him of what had lately passed in that Assembly. The House had decided judicially upon their own privileges, that same decision had been confirmed again and again, the question had been most ably argued, and the Members of the House had constantly decided judicially what was the law in the same terms. What did the minority of the judges sitting in that House do?—did they acquiesce in the decision of the majority? [Laughter.] The hon. Gentleman laughed, because he, being a lawyer, held that the House did not know how to decide what was the law, and like other paid barristers, who were paid for distorting the law, and turning truth into falsehood, and falsehood into truth, denied that hon. Members, whose duty it was to make the law, after making the law were capable of expounding it. After the Members, as judges, had decided again and again what was the law, did Lord Denman yield obedience to the decision? No. He still entertained doubts; and, therefore, he could not admit that Lord Denman was a good authority upon the question submitted to him, because he himself did not acquiesce in what had been judicially decided by a majority of the House. The learned Gentleman said, also, that the point of value had been argued by counsel for two days before the judges, and the hon. and learned Member laid great stress upon the two days; but he was astonished that the judges, after two days' argument by counsel, should understand anything about the question. It was known that the judges differed in opinion, that the decisions come to by the majority were not always continued without change; those on the bench at the time of one decision might give way to others who might think with the present minority; and that the decisions were not unfrequently reversed. If, therefore, there was doubt, it was the duty and the business of the Ministers of the Crown to come down to Parliament and introduce a bill by which the law should be made clear; if there was a doubt it ought to be explained, and the law made so plain that a child that could run might read it. That was the object of the hon. and learned Gentleman, and he thanked him for proposing this bill. But, then, the right hon. and learned Member for the University of Dublin objected to the bill, because it was brought forward at an improper time. Let him just apply the doctrine of the learned Gentleman to his own case in a matter of physic. The learned Gentleman would say, "I have had a variety of doctors in whom I have had the greatest confidence. I find that I have been treated improperly by them;" but on being told that he could be cured easily by another remedy lie would say, "Aye, that may be—but, dear me, no; I cannot permit myself to be cured; the remedy does not come in proper time — I would rather continue to suffer the pains I endure—I would rather have the pains in the head and the stomach, than receive a remedy that comes at an improper time." He was glad that the Government had taken up the subject, and he hoped that they would adopt the recommendations that had been made, for he thought that the franchise ought to be clear and defined.

Mr. Pigot

remarked that the hon. and learned Member had asserted, with great confidence, that there was no doubt about the law, but the very case to which he had referred afforded the most remarkable illustration of the doubt and difficulties of the law that it was possible to conceive. It occurred thus: a person appealed against a decision to the Chief Justice. The Chief Justice refused to put the oath which the Reform Act permitted to be put to the jury on the appeal, but directed the jury to act as if the oath had been put. Subsequently another judge in another case put the oath. The matter came subsequently before the Court of Queen's Bench. The Chief Justice was pressed with his own opinion on one side, and the practice of his fellows on the other; what was the decision that was come to? not the decision of ten to two, as to the solvent tenant? It was no such question. The question was whether the oath ought to be put. The four judges of the Court of Queen's Bench were unanimous, and one of the judges of the Court of Exchequer agreed with them, and the consequence was, that there was a division of five to seven to settle that one question; but on the next—whether the Chief Justice was right in directing the jury to act as if the oath had been put— three of the very judges who had given their opinion that the oath ought not to have been put on the second question, joined in deciding that the jury ought to act as if the oath had been put. Could he possibly point out a greater instance of the doubt and difficulty of the law? If three of the judges, who had declared with the minority on the one point, and with the majority on the other, surely two judges, of as high character as any on the bench, might be allowed to maintain their own opinions of what was the law. Reference had been made to the practice of reserving points of law in Crown cases in England; far be it from him 1o dispute a practice which time had sanctioned in England; but he would appeal to the learned Gentleman to state any authority for a similar reference to the judges in Ireland upon questions of the franchise. The Reform Act made a single judge the party by whom the appeal was to be decided, and he would be glad if the learned Gentleman would tell him where the Reform Act gave any authority for a reference to the twelve judges. He did not say that there was anything that did not warrant, by way of analogy, one judge, for his own satisfaction, taking the opinion of the others; but there was nothing in the act to sanction it, or to oblige the minority to submit to the decision; yet the hon. and learned Member for Coleraine had animadverted in strong terms on the conduct of those judges who did not think it right —any more than did Chief Justice Holt in the case of Ashby v. White — to conform to a majority of the judges sitting in a tribunal formed as a matter of convenience to the judges themselves, and for which there was no obligation either by the statute or at common law. Equally unjust and unseemly in the extreme were the learned Gentleman's expressions against the assistant barristers in Ireland. Against that attack, he would not condescend to defend them; their unimpeachable characters were their best shield, but it would have been rather better if the learned Gentleman, from his position in the profession and in that House, had abstained from making reflections upon those Gentlemen, which were entirely undeserved.

Leave given.