§ Mr. Walker
begged to know whether it was intended to revive the committee which sat last year upon the subject of machinery?
§ Mr. Gladstone
could not answer the question. There were many important questions connected with the Board of Trade, with reference to which it was impossible, in so short a time, to come to any positive determination; and that relating to the exportation of machinery was one. It should, however, be fully considered before next Session.
§ Mr. C Buller
rose to call the attention of the House to the petition of Lord G. Paget (presented the 1st of October,) complaining of the decision against the sufficiency of the recognizance in respect of his former petition, on the ground that it was not taken before a magistrate having jurisdiction in Westminster; and praying to be allowed to present another petition, complaining of the election and return for the borough of Carnarvon. If the question were to be decided upon the ground of strict law, he was quite aware that there was at once a decisive answer to the motion which he was about to make. But it was not on that ground he placed it; and he hoped the House would regard it as a question of equity, and give relief to the petitioner, who had been disappointed by the decision of the examiner Upon a point of law for the first time raised. The ground of the failure of the recognizances was, that the magistrates before whom they were entered into was not a magistrate acting in his own county— was not a magistrate of Middlesex. The petitioner had been led into the error by no omission or negligence" of his own. He had acted upon the authority of legal advisers of eminence in the profession, who informed him that the act of Parliament directing affidavits and recognizances to be sworn and taken in these matters, authorized such affidavits to be sworn before one of her Majesty's justices of the peace, and that any and every justice had power to act ministerially in the taking of such affidavits and recognizances, without reference to his local jurisdiction. Relying upon that opinion, the petitioner had acted as he did, believing that he was entering into a valid recognizance. Had he been apprised of the error in time, he could have rectified it, -while it was owing to the 1131 dubious wording of the act that the error had been committed; and although, according to the strict interpretation of the law, a justice of the peace could not Le said to be a justice of the peace, except in his own county, he hoped the House would not on this occasion, and under the circumstances, view the case otherwise than as one of equity. He put it to the House, whether the case of the petitioner was not one of those in which the House would grant indulgence, so that he might not be prejudiced by a technical error. The hon, and learned Member concluded by moving—That Lord George Paget be allowed to present another petition, complaining of the last election and return for the borough of Carnarvon, pursuant to the prayer of the said petition.''
§ The Attorney-General
said, that the utmost strength of the case on behalf of the petitioner was this— that he had made a mistake, and now threw himself upon the consideration of the House, to allow him to stand in the same position as if he had not committed it. it seemed to him, however, very difficult to misunderstand the meaning of the clause in the act in question, which empowered the justice of the peace to take the recognizances, the justice of the peace being understood to mean the justice of the peace of the jurisdiction mentioned in the act. Out of his own jurisdiction the individual could not act as justice of the peace, nor was he held as such. As far, therefore, as the law of the case was concerned, there could not, he conceived, be a doubt that the decision against the petitioner had been a correct one. But an appeal was made to the good feeling of the House to allow the petitioner to retrace his steps. He could not but look with much alarm to such applications, if successful, as they opened the door to continued and indefinite appeals on the same ground from the decisions of the tribunal appointed by the act, founded on a plea to which no limit could be put; so that, in fact, the House would not know where to draw the line and stop. The Sessional orders also stood directly in the way of this application, the fourteen days having elapsed. Whether on that ground alone the House would feel itself competent to entertain the application, was a matter to be decided by the Chair.
§ Mr. J. Jervis
observed, that his hon. and learned Friend had only entered on the law of the case, in order to show that 1132 there was a bonâ fide ground for this application. The hon. and learned Attorney-general feared that they would not know where to stop if they entertained such applications. The boundary appeared to him a very simple one. They would stop where-over they perceived that there were not bonâ fide grounds for granting the indulgence. He contended, that the law was by no means so clearly ascertained as that the petitioner might not reasonably have been misled in the first instance; indeed, he had acted, it appeared, in accordance with very high legal advice. It was a matter open to doubt, whether recognizances so entered into by a magistrate out of his jurisdiction might not be binding. There was the authority of Hawkins for that. Nor had the petitioners had due notice of the objection to his recognizances. The examiner had received the affidavit, and endorsed the petition, and the fourteen days were allowed to elapse before the sitting Member served his notice of objection. He that the petition was thus thrown over by a merely technical objection, and he was thus deprived, by a merely technical form, of his opportunity of contesting the seat, to which he was entitled to assume that he had a right. There were cases on record, where time, under such circumstances, had been given. In the Pontefract case, which occurred in 1837, the surely had been improperly described, and time was given to prepare a fresh petition. In the Dudley case, which also occurred in 1837, the same cause produced the same indulgence; and in the Limerick case, a similar indulgence was granted, because the affidavit had been improperly sworn to. Here were distinct cases where the rules and practice of the House had been departed from, because the petitions were bonâ fide, and not for the purpose of annoyance or vexation; yet in the present case, it was sought strictly to adhere to the technical rule, and thus perhaps to preserve the scat to the sitting Member, when it might turn out that he was not entitled to it. This was one of the first questions arising out of the construction of the new act, and he thought that it was a case in which the House could not do wrong by granting indulgence.
§ The Solicitor-General
hoped the House would not countenance this application, as it went materially to interfere with the whole object which his right hon. Friend, the Member for Tarn worth had had in view, in introducing his measure on the subject 1133 of the trial of election petitions. One main object of that measure was, to prevent the constant recurrence of discussions in that House on the merits of questions connected with election petitions, and it was most especially desired to remove the discussion and decision on such subjects from the House itself, in order to relieve it from the imputation of being guided by party motives. The cases which his hon. and learned Friend had adduced in support of his view, were precisely the class of cases which showed the House the inconvenience of interfering at all. One case was made the pretext for the introduction of another, until it was considered necessary to pass a measure that would prevent such cases coming before the House under any circumstances. The hon. and learned Gentleman said none but bonâ fide cases ought to escape from the rule; but who was to decide whether they were bonâ fide cases or not? Would not that be re-opening the whole evil which it had been the desire of his right hon. Friend to put a stop to? That being the view which he took of the case, he would not enter into the facts; but he could not help remarking, that it was extraordinary it should have been thought necessary to have recourse to any legal opinion, or that the recognizances should have been entered into at Cardigan, when there were so many justices of the peace in Westminster, and when they could have been entered into before the examiner himself. He hoped the House would not entertain the application, should the hon. and learned Gentleman press it.
§ Mr. J. Jervis
, in explanation, observed, that the petitioner's agent had taken counsel's opinion on the subject.
§ Sir R Peel
said, it seems to me somewhat remarkable, that the learned counsel, whose opinion was taken, did not refer to the form of the recognizances. If he had looked to the form of the recognizances, there arc some words in them, which ought to have excited some suspicion in his mind that no other justice of the peace could take the recognizances, except a justice acting within his own jurisdiction. The words in the Act of Parliament are, "Any justice of the peace in the county of (blank)." It appears to me, that the Act of Parliament distinctly directs, that the justice of peace before whom the recognizances are entered into, should be a justice of the peace acting within his own jurisdiction, and not merely a justice of the 1134 peace in a certain locality. I have not the least hesitation in saying, that if the House admits the prayer of the present petition, they will go far to do away with any benefit which might be expected from the passing of the Act of Parliament. The House, with its eves perfectly open, and fully sensible of the evils that would accrue from allowing party feelings to operate in the decision of election cases, passed that bill. That Act of Parliament appointed two tribunals; one for the trial of election petitions, namely, the select committee; the other, the examiner of recognizances, who was to decide on the validity of election recognizances. Observe the words which the act makes use of, in declaring, that the decision of the election committee shall be final and conclusive:—The committee shall decide and report their decision to the House, which decision shall be final and conclusive between the parties to all intents and purposes.And, in the other case:—The decision of the examiner of recognizances shall be final and conclusive against all parties.If, then, you consent to interfere with the decision of the examiner of recognizances, why not interfere with the decision of the committee. The terms applied to the one are not stronger than those applied to the other, and there is no reason if the House sets aside the decision of the examiner of recognizances, why parties should not come forward and say, "the decision of the committee was wrong, and set aside that also." If the House interfere to ascertain whether the parties acted with bonâ fides, there will be no end to litigation of this kind. Is it not better even to submit to some cases of hardship, even supposing them to arise, than to interfere with the decision of the courts where that decision was intended to be final and conclusive. I hope the House will not interfere to inquire whether the party acted with bonâ fides or mala fides; for even if the decision of the examiner were wrong, I would say, that it would be better to abide by it. I think it is better that you should allow, that that decision should be final than to '0 again into the matter, on the ground, that there was evidence, that the petitioner had given a large fee for advice from counsel, and that he had a right to expect good advice. Now, if you are to make it a ground, that the petition should be received, because the 1135 petitioner paid a large fee, and expected good advice, I must at once admit, with all respect for the legal profession, that I fear cases of appeal will be very numerous.
§ Mr. C. Buller
felt obliged to follow the unpalateable advice of his hon. Friend, the Member for Lambeth, and was willing to withdraw the motion. He hoped, however, that what had occurred would cause petitioners to attend more carefully to the words of the act
§ Mr. T. Duncombe
wished to say a few words before the motion was withdrawn. He believed, that in the most corrupt times, in the most corrupt state of the representation, there never was more bribery, corruption, or intimidation than at the last election. He believed, that most of the Members of the present House owed their seats to such means. He did not mean to blame one side of the House more than another; for he believed the hands upon that side were not a whit cleaner than those on the other side. He wished to ask the right hon. Baronet (Sir R. Peel) whether it were his intention to propose a remedy in the course of the next Session, to put an end to bribery and intimidation?
§ Sir R. Peel
— I have no personal experience of the extent of the evils of which the hon. Member complains, as I happen to represent a remarkably pure constituency, and I do not believe that there is any person in the town which I represent accessible to the influence of bribery. At the same time I am afraid that the general impression is well founded, that of late years the practice of bribery at elections has rather increased than diminished. I am sure that nobody more sincerely laments the prevalence of such practices than I do. I also regret the prevalence of treating, and I volunteered last year to give my cordial co-operation to the noble Lord when he introduced a bill for the purpose of putting an end to bribery, and putting an end, as far as was practicable, to the practice of treating. I am sure the hon. Member opposite is himself aware of the difficulty of dealing with a matter of this kind, and of the extreme danger in 1136 any stringent enactment of interfering with the liberty of the subject, so far as that the remedy might not be worse than the evil which it was to remove. At the same time I have no hesitation to say that I will give my cordial assent to any measure that shall appear to me calculated to put an end to all undue treating. I think it very probable that the noble Lord the Member for London, may call the attention of the House to this subject next Session. It is a subject of great difficulty; and I hope that the hon. Member will not at present require from me any pledge that I will bring in a bill on the subject. At the same time I will give the subject every consideration, and I cordially concur with the hon. Member in the desire that these practices should be extinguished, so far as laws can extinguish them.
§ Sir R. Peel
— I will tell the hon. Member at once that my confidence in the particular remedy he has suggested has been much abated by recent experience. The hon. Member for Finsbury has said, that at the last election bribery and corruption prevailed to a greater extent than was ever before known. I think there cannot be a question that the Reform Bill made a great increase in the constituencies. One of the benefits expected from the Reform Bill was that it would diminish bribery; but yet we hear it avowed that since the extension of the constituencies, bribery and corruption have prevailed to a greater extent than before. When I hear this I am compelled to doubt whether a further increase of the constituencies would be an. effectual remedy for bribery and corruption.
§ Sir R. Peel
— Some of the worst cases which I heard of took place in the large towns. In some places the extent of bribery and corruption was enormous. It would be invidious to name particular places, but I believe that the metropolitan towns of certain counties might be named. If certain election petitions which have been presented should be persevered in, and which I hope will be the case, it will show that some of the worst cases of bribery 1137 have occurred in large towns. Nothing would give me more satisfaction than to see the cases of some of those large towns taken up by the House, and that signal examples should be made of those places by disfranchising their constituencies, whether they were small or large towns, in which those corrupt practices occurred.
§ Dr. Bowring
begged to ask the right hon. Baronet if he did not think that the introduction of the vote by ballot would do away with the system of bribery?
§ Sir R. Peel
— I will not at present enter into that question; but my great objection to the vote by ballot is that it tends to increase, rather than diminish, bribery and corruption.
§ Mr. H. R. Yorke
said, that the right hon. Baronet had been pleased to say, that bribery was as extensive, and more so, since the Reform Bill than before; but he would not suggest to the right hon. Baronet the inference, that a reform of the Reform Bill was necessary, and that a new system would be better calculated to win the respect of the country than the present, which was allowed to be productive of so much corruption.
§ Sir R. Peel
I should deprecate the logical interference to be drawn from the suggestion of the hon. Gentleman, which would be a repeal of the Reform Bill.
§ Motion withdrawn.