§ On the motion of Mr. C. Buller, the Order of the Day for the House to resolve itself into a committee on the Bribery at Elections Bill was read,
§ Mr. Mackinnon
had given notice that he would move that the bill be committed that day six months. He owed his seat in that House to the local and personal influence he possessed in his neighbourhood, and the only danger he could incur with respect to losing his seat, would be by some stranger coming forward and bribing the constituency, and thereby depriving him of that influence which returned him to that House. He said that, for the purpose of satisfying the House, that he had no interest of a personal nature in the remarks he was about to make. The principles of the bill which he contended against, were those which militated, first against the common statute law of the land, and next, against the privileges of the House. He objected particularly to the 15th clause, which gave a right to the committee to examine Members of Parliament, or other persons on their oaths, as to their own criminalty. The principle of that clause was contrary to the spirit of the law. Was it in accordance with the importance of the subject, to alter the statute law by a side wind — by a clause in a bill to prevent bribery at elections, instead of a measure being boldly brought forward, having such alteration for its professed object? The next principle which he contended against was, that embodied in the clause which provided that a commission should be appointed, consisting of three Peers and four Members of Parliament, to inquire into 672 certain cases of bribery. He wished seriously to call the attention of the House to the importance of that clause which altered the customs of Parliament. The appointment of that commission was vested in the Crown, which was, in fact, placing it in the Minister of the day. He did not say his right hon. Friend would abuse the power, as they all knew his fairness, but, supposing they had a Minister who was determined by any violence to prevent his opponents sitting in that House. Supposing such a Minister found the hon. Member for Montrose, and the hon. Member for Finsbury an annoyance; and supposing he wished to abate the nuisance, he would get up a little bit of bribery in the borough of Montrose, or the borough of Finsbury, and a petition would be presented to the House of Commons, and the House of Commons being unable to investigate the business, a commission would be appointed. The commission might be a year making its report. so that a Member might be kept during that period from his seat. The commission, as he had before observed, was to be composed of three peers, one of whom was to be the chairman, and four Members of that House, all appointed by the Minister of the day. Look for a moment at the absurdity of that arrangement. They denied peer the right of voting for a Member of Parliament, they resisted his interference with their privileges, and yet by a singular inconsistency they wanted now to make a commission, having a peer for its President, which should decide upon their privileges, and become a court of record. Never was anything more monstrous: it was the most complete anomaly he ever heard of. And for what object was the commission to be formed? What real objection had they to the committee as now formed? The real objection was this, that they had no systematic method of obtaining remedies, for the evidence which one committee would receive, another would reject. The consequence of that was, that the reports of committees on the same point frequently differed. They required then some assessor, who would be able to state what evidence ought, and what ought not to be received. Report said — he did not know whether it was true — that the noble Lord made this commission for the express purpose of putting at its head a noble Lord — an Ex-Chancellor — who was very desirous of obtaining such an appoint- 673 ment. Whether that were really the case he could not say, but such had been whispered in certain circles. He maintained that they wanted no commission of that sort. If they wanted a superior tribunal, with an assessor to determine what evidence should be received and what rejected, in Heaven's name let Mr. Speaker appoint seven Members of that House, and get a judge or serjeant-at-law to sit as assessor over them. If any differences in the decisions of committees, had occurred, they had arisen, he was sure not from any corruption or partiality on the part of the committee, but simply from their inability to determine, after the addresses of the counsel on either side, what evidence it was their duty to receive and what to reject. Under these circumstances he maintained, that the commission which was proposed by this bill was not only useless, but wholly contrary to the law as it now stood. He thought that they would be injuring the Constitution if they allowed any one branch of the Legislature to interfere with the other. He had much more apprehension of that House interfering with the privileges of the House of Lords, than of the House of Lords interfering with the privileges of that House; but he was opposed to the commission, because it violated the principle upon which they had always acted, never to allow any Peer to interfere with election matters. He now wished to call the attention of the House to the thirty-fifth clause. The clause was as follows:—And be it further enacted, that where costs, charges, and expenses shall be reported and ordered to be paid by the inhabitants of the division of any county, a copy of the Speaker's certificate, together with a copy of the said report, respectively verified by affidavit, shall be lodged with the clerk of the peace, and also with the treasurer of such county, or the said division thereof, and the amount mentioned in such report and certificate, and ordered as aforesaid to he paid by the said inhabitants, shall be raised by an equal pound rate, in the nature of a county rate, to be made and levied upon the several persons who were registered as voters for the said division of the said county for the year in which the election referred to in the report was had; and such rate, with all convenient speed, shall be made, collected, recovered, levied, received, and paid over to the said treasurer, by such authority, jurisdiction, and other person and persons, according to their several authorities and duties, as are by law empowered, authorised, and required to make, 674 collect, and pay over the county rate; and all the clauses, powers, provisions, authorities, liabilities, power of appeal, and exemptions relating to the said county rates shall severally and respectively, so far as may be, extend and apply to the said rate hereby required to be made and raised for the purpose of paying the said costs, charges, and expenses.Now, he called upon the House to look at the monstrous anomaly of this clause. Assuming, for example, that there were in the borough of Ipswich 1,000 voters, and that of those 450 on each side were honest electors, and the remaining 100 were the very lowest description of 10l. voters, what were they going to do by this clause? They were going to levy a rate on the wealthy part of the community, who would have to pay the whole expense. He could conceive nothing more opposed to the ordinary principles of legislation than such a mode of proceeding. He trusted, however, that those clauses to which he objected might be amended in committee; and if this were done, he could have no objection to the bill. The hon. Member concluded by saying, that he should not bring forward the motion of which he had given notice — that this bill be recommitted this day six months — with the understanding that he should have an opportunity, in the committee, of amending the clauses to which he objected. He felt that by then dividing the House on such a motion he would only embarrass those with whom he usually coincided in opinion.
§ House in committee.
§ Mr. C. Buller
said, it might be convenient to the committee that he should now state that there was one material alteration which he had to propose on the suggestion of his hon. and learned Friend the Member for Worcester (Sir T. Wilde), who had given him charge of the bill; and he entirely approved of the grounds on which that alteration proceeded. There were several clauses at the end of the bill regulating the mode in which costs were to be ascertained and levied, which although he had considered them most desirable provisions with the view of checking bribery, must, nevertheless, be abandoned on grounds entirely of a technical nature. The bill, as it originally stood, threw the expenses of inquiries before the committee and commissioners upon the constituencies whose conduct had rendered such investigations necessary. He thought that was one of 675 the most valuable clauses in the bill; for nothing could be more effectual in raising a general feeling against corrupt practices than charging the cost of such inquiries upon the convicted constituencies. No objection in point of principle, therefore, had induced his hon. Friend to modify the 32nd, or to withdraw the subsequent and subsidiary clauses; but he was bound by the decision of the committee up stairs, who had minutely considered with great trouble and patience the various provisions of the bill. The committee decided that only electors should be rated. The 32nd clause enacted that —The costs, charges, and expenses incurred and occasioned in and about the inquiries respectively prosecuted before the committee, or Commissioners any part or proportion thereof, shall be paid by the rateable inhabitants entitled to vote in the election for Members of Parliament in and for the county, or borough, or place, where the bribery was practised.At first his hon. and learned Friend had been inclined to incorporate this limitation and adopt the whole clause; but practical objections presented themselves, Which it was impossible for him to surmount. First of all, a special machinery would have been necessary for the purpose, which it would have been impossible at this late period of the Session to arrange and carry through the House. No basis existed for such a rating, separating electors from all other classes. In the case of freemen for instance, rating formed no part of their qualification; a great portion of them were not rated. How, then, were they to make rate on the freemen? The freemen, as a class, were not certainly the least corrupt; how monstrous then, it would be to rate all, in any constituency, excepting the most guilty! The same objections applied to the freeholders in Counties of cities. There was another difficulty arising from the fact, that very often the limits of the Parliamentary borough were not coincident with the municipal boundaries, so that new provisions for rating with parochial collectors must be introduced. If this was the case with respect to England there were still greater difficulties in the case of Scotland and Ireland, where no system of parochial rates existed at all. Those technical difficulties rendered it impossible to carry this provision into effect. When, therefore, they came to the 32nd clause he should propose certain alterations, which would 676 render it unnecessary to discuss the clauses thirty-five to forty inclusive, the intention being to abandon these altogether.
§ On the first clause, declaring the payment of head-money to be bribery,
feared that arrangements might be made to pay head-money without infringing this clause. If money were deposited with any third party before the election, that would not come under the definition of head-money. In the case of one of the boroughs recently inquired into it had been found that each candidate paid 5l. to every voter before the election, without binding him as to the way in which he should vote, and yet by this clause such practices would not be reached. He would suggest that after the words payment or gift in the 13th line, " before, at, or," should be introduced before " after any election;" and in line 17, after the words " paid or given," that these words should be inserted —" on account of such voter having promised or agreed to vote, or having a vote, refrained from voting."
§ Sir R. Peel
had also an amendment to suggest which he thought would be most advantageous. The clause made it an offence to pay head-money, or anything of that nature, " in pursuance of any usage or practice which may have obtained." He thought these words should be left out, or the payment of head-money where no such practice prevailed, would not come under the clause.
thought the suggestions of his right hon. and learned Friend (Mr. O'Connell) deserving of serious attention, but he feared that by entering too Much into particulars they would narrow the existing laws with respect to bribery. They might go on adding to their stock of laws against bribery, and yet be only frittering away their effect, doing in short, more harm than good. He contended that whatever was given, before or at an election, for the purpose of influencing a vote was bribery; basket money for instance, which at Nottingham had been given for weeks before an election, varying in amount from 10s to 30s. a week, as a kind of retaining fee, Was to all intents and purposes bribery. They must first see their way clearly and then steer straight. It was well known that head-money arose from the practice of giving a dinner to different classes of voters; and those who could not afford to pay their 677 quota were allowed 10s. or 12s., or whatever that might he.
§ The Solicitor-General
had no doubt that the giving of any sum of money during or before an election, in consideration of a promise or agreement to vote, was clearly bribery now, and therefore it was quite unnecessary for the right hon. and learned Gentleman to introduce the words he had suggested. But a doubt had arisen whether, where head-money was given in pursuance of a practice or custom that had obtained, it could be considered bribery. as they could not infer from general usage any corrupt contract. It was to put an end to all doubt on this point that these words had been introduced.
said, his object had been to prevent payments being made to parties not on contracts alone to vote in a particular way, but leaving them indifferent how they might vote. Contract certainly was necessary to the legal definition of bribery, but in the case he alluded to there was no contract to vote or not to vote.
§ Sir R. Peel
thought it would be better to leave the law, as respected bribery, as it stood at present. He apprehended that any corrupt contract for the purpose of influencing votes was bribery under the existing law; and the specifying of any particular offence might have the danger of narrowing the jurisdiction of election committees. But when they found an evil existing in some boroughs which was not bribery, such as the payment of head- money, basket-money, and so forth, the best way of dealing with it was, to leave the general law as to bribery untouched, and to enact that this practice of paying various sums of money should be bribery. By such a course the jurisdiction of committees as to bribery would not be narrowed.
said, it was proved in the Belfast committee, of which he was a Member, that one party had given a sum of 750l. for car-money, though 5l, would have been sufficient payment for the service. It was certainly desirable to meet such a case as this.
§ Mr. Sheil
said, it was important as soon as possible to provide a remedy for evils which were made manifest by the report of the Southampton committee. It was stated in the report of the committee,That no evidence has been laid before them from which they are enabled to conclude that systematic bribery, in a direct form, and 678 through a regular organization, was carried on; neither have they discovered anything in the nature of a payment of head-money or vote money to each elector. On the other hand, the committee have received ample evidence of the customary promise or payment of money to electors and their connexions, on pretext of employment at the period of the election. It appears that it has been the usage on both sides to appoint numerous messengers to attend the committee during the canvass, besides bill-posters, clerks, and other persons similarly employed. In addition to this, the successful party has appointed, in like manner, a number of persons to act as colourmen and chairmen, on occasion of the chairing of the candidates after the election. The messengers are stated to have been named from time to time during the period of the canvass, which in the last case continued through five or six weeks; and to have been constantly retained at the rate of 5s. or 7s. 6d. per day.The office of messenger was a sinecure, and it must be manifest to every Member that this practice was resorted to in order to escape from the law of bribery, and required the interposition of the Legislature. The committee also reported that the colourmen received from 10s. to 20s. each, and the chairmen from 1l. to 2l.; and they above all drew the attention of the House to the pernicious practice of treating. If they had stopped bribery in a direct form, they had augmented it in the shape of treating. For five weeks all the public-houses were kept open. In 1831, when there was no treating, 480l. formed the expense of the Whig candidates, and the Conservative candidates paid not quite so much. In 1841 the expense of the Whig candidates was 3,000l.; and that of the Conservative candidates upwards of 4,000l. The following was the evidence of Mr. Lankester, a gentleman who spoke the sentiments of all parties, and who attributed the corruption of Southampton to treating: —You think that the evil is of such a nature that a law ought to be enacted to prevent treating before the writ?—Yes; no doubt that would do much to put a stop to it, and then come upon the fair merits of the case and fight it out; whether we are a Liberal or a Conservative town; the respectable inhabitants wish it to be put down. The respectable persons on both sides, you think, wish that this should be put down?—Yes, no doubt of it. And if an act was passed merely to prevent bribery, which had not the effect of stopping treating, do you not think it would be, in a great measure, a nullity?—Yes, if you debauch men's minds, and keep them in a state of intoxication for six weeks, sort unfit them for the exer- 679 cise of the franchise. Is it your opinion that treating thould be prevented for five or six weeks before the election? —Yes. And if that is not done, any other remedy of the Legislature would be useless? — Yes, as far as our town is concerned.He thought there could be no difference of opinion as to the propriety of putting a stop to this evil. Could this be done by the introduction of a bill, or by the addition of clauses to the present bill? If they put a stop to head-money, would they by the words used for that purpose, put a stop to the payments made for chairmen or colourmen? It was said that this was a bill to detect bribery, and not for the purpose of declaring the facts which constituted bribery. Still he thought it important to define, as far as possible, what bribery was, and not to leave the matter to be settled by members of election committees. With respect to treating, though he should not object to necessary refreshment being provided, yet he thought the introduction of a few words, declaring that treating for the purpose of influencing voters, or which should be given on account of their having voted in any particular way, would remove all question as to the period, whether before or after the issue of the writ; and the intent of the treating might be left to the judgment of the election committees. They desired to put a stop to head-money. This was a substitute for dinners which were originally given after elections, and he was sure that most voters would prefer 2l or 3l.in lieu of a dinner. If, then, they abolished head-money they ought also to prevent those convivialities which were a substitute for it, and which had an illicit object in view. They might stop treating by allowing the election committees to judge of the intent, and it was the intent which constituted the offence.
§ Mr.Monckton Milnes
thought it would be desirable to insert some words in the clause, stating the fact that there had existed a doubt on the subject of head-money, which by the present clause was declared to be bribery. This was only fair to the constituencies in which the usage had prevailed. At the same time he believed the right hon. Gentleman (Mr. Sheil) had correctly described head-money as a substitute for those festivals which usually succeeded elections; and in place of this, it had been considered better in some boroughs that a certain sum should 680 be given to the voters to take home to their families.
thought what had fallen from the right hon. Gentleman was deserving of great attention. He coincided in his remarks about treating, and felt certain that almost as much mischief might be done under the disguise of treating, as by positive and direct bribery. There were a great many points to consider. There were attempts at bribery; but it was something more than an attempt at bribery when large sums were paid to colourmen. In the case of Newcastle-under-Line, it was found that money was given to voters, who did not carry the colours, but preceded the colourmen, and were, for the sake of evasion, called " gaffers." There was great uncertainty in the decision of committees on these matters. One committee might hold, that the money given to colourmen and to " gaffers" was direct bribery; and another committee might come to a directly opposite conclusion. Then, if they inserted a declaratory clause in the bill, declaring such acts bribery, they must take care to leave nothing out. The danger of the present clause, therefore, was, that something might be left out; and he would, consequently, suggest to his hon. Friend, who was the sponsor of the bill on the present occasion, to omit the present clause, and confine the object of his bill to the discovery of bribery. It was said, that the clause was of great importance, but intimidation and treating required as effectual a remedy as the offence of head-money; and he was certain that it would not be possible to pass, during the present Session, a bill to meet the evils of which the right hon. Gentleman (Mr. Sheil) had complained.
§ Mr. S. Wortley
said, that there were various payments made at elections, not only for refreshments, but in other ways, which it would be impossible to define in the present clause; and the only way to deal with them was to leave to the tribunal they might establish the power of judging of the intent. But for this purpose they must have a proper tribunal, and if the bill would accomplish the object of establishing such a tribunal, and if they in the first clause removed, as proposed by the right hon. Baronet (Sir R. Peel), a doubt found to exist in the present law, then a discretionary power given to the tribunal to judge of the intent of all payments might be sufficient to meet all cases of 681 bribery. He entirely agreed with the right hon. Gentleman (Mr. Sheil) as to the abuse of treating; and there was no doubt that in many cases, and more especially in that the investigation of which had lately engaged them both, a continual system of treating, begun long before the election, produced as great corruption as direct bribery. But they must be careful not to attempt to put a stop by too strong a hand, to the festive meetings of the candidates and electors after the election or they would fad in their object. It was therefore desirable to recognize a difference between proceedings of this kind, which were intended to operate on the result of an election, and to influence the voters, and those bonâ fide festive meetings, which naturally took place at a time of general exultation and in the moment of victory. The hon. Member for Pontefract had suggested the expediency of introducing words, declaring that a doubt had existed on the subject of head-money, and similar payments; and the same idea had occurred to him, and he thought words, stating that doubts had arisen with respect to the character of certain offences, declared by the present bill to be illegal, might easily be introduced into the preamble of the clause; and still the existing law as to bribery would be left as it was.
§ Mr. Aglionby
said, the hon. Member for Weymouth had shown how difficult it was to introduce into the present clause all the points which those who were desirous of suppressing bribery suggested; but the hon. Member had stated no ground for the withdrawal of the clause, which, if it did not cure all evils, knocked on the head one which was universally admitted to exist. If the amendment proposed by the right hon. Member for Cork were adopted, the clause, he thought, would provide for all the cases suggested by the hon. Member for Weymouth; because then, any payments made before, during or after the election, whether as head-money, or in whatever shape, for the purpose of influencing votes, would be deemed bribery. This would comprehend every species of corrupt payment, whether flag-money, or chairman-money. If the amendment of the right hon. Member for Cork were not adopted, the clause would then apply only to head-money. When they came to the 15th line it was his intention to propose an amendment, the nature of which had been, in some sort, 682 anticipated by the hon. and learned Solicitor-general. Up to the time of the Reform Bill, there were few constituencies so expensive as that of Carlisle; and although large sums were expended on the old freemen, there was no instance before the Reform Bill in which head-money had been recognized or practised: but since the time of the Reform Bill, a remarkable change had taken place. It was, in fact, one of the purest of constituencies; but at the last election, for the first time, head-money had been given. He did not accuse the learned Serjeant, who contested the borough, with being a party to the practice which then commenced, but the fact was as notorious as the sun at noon-day. After the last election, for the first time, payments, which might come under the denomination of head-money, were openly made. Any voter who had plumped for the Conservative candidate received two sovereigns, and he who split his vote, giving one to the Conservatives, received one sovereign. He had heard one of the parties who had received two sovereigns charged with the fact, and he admitted it, observing that others had done the same. These payments would not come within the operation of this clause, as head-money, because they were not made " in pursuance of any usage or practice;" nor was there any previous contract, though the system might have been begun with a view to future elections. Now, he should wish to introduce words which would meet this evil; and this might be effected by making the clause run as follows: — "In pursuance of, or without any usage or practice."
§ Sir R. Peel,
doubted whether it would not be better to leave out the words altogether, and not make the proof of the existence of a usage necessary to establish the offence. He did not think it advisable, because they could not do all the good which the Legislature might ultimately effect on this subject, that therefore they should omit during the present Session to find a remedy for a great practical evil; and when the noble Lord the Member for the City of London, gave notice of this bill, he stated that he thought any attempt to discourage bribery would be ineffectual, if they left the law as to treating in its present shape; and that if during the present Session they could, without unnecessary interference with the 683 fair liberty of the subject, throw impediments in the way of treating, they would effect a great practical good. To interfere with the exercise of innocent hospitality would be carrying the attempt to put down treating too far, and defeat the object; but at the same time he must say that one of the greatest practical abuses was the corrupting the constituencies by means of expensive treating. This system introduced the most immoral habits among the constituency, the effect of which lasted much longer than the period of the election. In the second place, it gave an unfair advantage to the man of wealth, who might choose to spend 10,000l., 12,000l., or 20,000l. for the purpose of corrupting a constituency; and it might deter a man who was perfectly competent to discharge the duties of a Member of Parliament with credit and satisfaction to the country, but who had no money to spend in treating, from standing a contest, for fear of coming into competition with a wealthy opponent. Even if a man had the command of money he might recoil from the consequences of spending it for a period, perhaps, of five weeks before the election, and occasioning continual scenes of drunkenness in the borough which he contested. He, therefore, should not at all object to attempt to discourage such practices, and to prevent treating for the purpose of influencing the election. Let them consider in what an unsatisfactory state the law was at present. By an attempt to, discourage the practices he had alluded to a legislative sanction had been given to them, for the law enacted that treating after a certain day should be illegal. Those who passed that law did not mean to diminish the power of Parliament to deal with corrupt bribery at other times than that of the election; but the meaning was to draw a distinction after a given day. In all towns there might be corrupt bribery previous to the test of the writ; but if it were done after that time Members were liable to lose their seats. But he did not find it laid down by any writer on election law that there might be such treating previous to the test of the writ. One writer said:—Neither the Treating Act nor the statutes against bribery were ever intended to cripple the powers of the common law; for, admitting that corrupt treating is bribery, and therefore an offence before the statute, it is impossible to argue that because the statute declares all 684 treating, however moderate, after the writ, to be illegal, it impliedly sanctions any treating before the writ however extravagant and corrupt.He durst say, that that was the intention of the law; but the practice was corrupt treating before the test of the writ. A candidate shrank from being called a niggardly or shabby fellow, and this practice, whatever might be the intent of the law, of corrupt bribery did prevail. Now, suppose it were possible to abolish that distinction of time and to provide that corrupt treating for the purpose of influencing an election should be illegal as well before the test of the writ as afterwards; he thought it would be an improvement of the law, because they would make such corrupt treating an offence for which a Member would be liable to vacate his seat. If they could not deal satisfactorily with intimidation, but could do so with head-money or corrupt treating, in his opinion they ought not to allow this Session to terminate without taking some caution against that which, above all species of bribery, was the most degrading and corrupting, namely, the payment of sums of money spent in what was called the convivialities of an election, but which resulted in the most brutal scenes, and the immoral effects of which remained long after the election. It was wasting money in the worst possible manner, and gave an undue influence to those who had wealth.
§ Mr. Hardy
said, it was must important to introduce some bill of this kind, in order to prevent the expense of bribery, however it might originate, which now gave to a man of large property the chance of coming into Parliament, which a man of smaller property did not possess. He trusted, therefore, that a regulation with regard to treating might be introduced into this bill, and that this first clause might not be passed over. The great mischief of head-money was the expense; it was not because it was bribery, in order to give one candidate an influence over his fellow-candidate, but because it was paid by each candidate whether he won or lost. It was a sort of regulation which had, as the hon. Member for Weymouth had said, been adopted instead of giving dinners; and, if they entered into the history of head-money, they would find it was originally half a guinea, then a guinea, and then, as at the present 685 time, three guineas. It was so in 1826; and every body paid it. He himself had paid it as a losing Member. He did not give it as an inducement for his election, but because, as his hon. and learned Friend Mr. Daniel Sykes, when he came into the House, said, his election would not have cost him 300l., but there was a certain consuetudo at Hull to pay a certain sum to the electors after the election, and therefore it cost him 2,500l. That was stated in the life of his friend Daniel Sykes, by his hon. Friend, a late Member of that House, Mr. Prime. He therefore hoped the hon. and learned Member for Liskeard would take care that this clause was, at all events, inserted, and that when it came to pass some little alteration would be made in it; for now it was proposed to make it an offence to pay money or any other valuable consideration to any voter at the last preceding election; but he should propose that it should be at " any" preceding election; because they very well knew that at any general election there might be a petition, and one of the Members at that election might be thrown out, and then came another election, and one of the Members at the last election might take advantage of the head-money that was paid before. He thought, therefore, the word "any" had much more importance than the word " last," because it included all possible inducements under any circumstances to give any money to the electors. He hoped, therefore, the right hon. and learned Member for Liskeard would not follow the advice that was given to him to drop this clause, but would let it pass, and, with the little alteration he had suggested, he thought there could not be a better clause to prevent the expense of laying out money, which was not given as a preference for one candidate over another, but which was an expense that a person who might stand as a candidate was unable to pay.
§ The Solicitor-General
said, that the observations which had just been made showed, in his opinion, the distinct necessity that existed for this clause. The hon. Member for Bradford said, that head- money was not thought to be bribery, That rendered this clause necessary. But it was far better, when introducing this clause into the bill for the purpose of stating that certain evil practices bad prevailed, and that various doubts had been entertained whether they came within the 686 existing law of bribery, and then to go on to state that such practices should he considered bribery, to recite in the preamble that such doubts had prevailed, so that it might not be considered that the Legislature, in passing this law, intended to give anything like a definition of bribery, because if they did and anything were excluded from the clause they might be considered as giving sanction to that kind of bribery. It was better also that the clause should stand in some other part of the bill, and that the hon. and learned Member fur Liskeard should withdraw it and introduce it with a preamble as to the doubts and practices that prevailed at the end of the bill. He did not think it wise to introduce into the bill anything as to the payment of head-money or flag-money. That a payment of money to influence a party to give his vote at an election, if the vote were given upon that payment, was bribery, there could be no question; but if they stated a particular sort of bribery, what was the consequence? The next time they went before an election committee the counsel would say — " You have defined what is bribery, and this particular case does not come within it,' As to the suggestion made by the right hon. Gentleman opposite, he entirely agreed with him in the advantage, if there were any mode of making stringent the law of bribery. The hon. Gentleman said, that under the act of Parliament the payment of money after the test of the writ must be in order to be elected, and therefore he suggested, that payment either before or after the test of the writ should be considered treating but the construction put on the act of Parliament, notwithstanding the words of the act, was not that the object of the giving had been considered essential, and they had known instances of Members giving refreshments to persons coming in from the country, and yet that was considered sufficient to come within the letter of the law, and Members had been unseated for it. It was, therefore, most difficult, whilst putting down bribery, not to put an end to mere hospitality. But it might be a considerable improvement in the present clause not to introduce the distinction of time before the test or after the test of the of writ. It was said that by one of the acts, if the bribery were before the test of the writ, it was legal; he thought it would be better to remove that distinction 687 as to time. At the same time, it should not be stated that simply giving was treating, but the object and intent with which it was given should be stated; and it might be considered, between this time and the bringing up of the report, whether it would not be a considerable improvement to have a clause for head-money distinct from bribery, and another distinct clause for treating.
must say, that there was a great deal of force in the observations made by the hon. Gentleman to the clause, and he agreed with the hon. and learned Gentleman opposite, that whilst they were enacting a clause against head-money, they were liable to the charge of sanctioning other modes of bribery, which were not included in that charge. It was said that they were commencing a bill for the better discovery of bribery with defining and prohibiting one species of bribery; and that that looked as if that was all they had to do as against bribery. Now, he thought that would be obviated by the course proposed by the learned Solicitor-general, viz., that in the first place, the clause should be withdrawn from its present prominent position in the bill; and that, secondly, there should be a preamble to that and the clause referring to head-money, and to the doubts that prevailed on the subject, and the necessity of clearing up those doubts. The bill would then appear to be bill for the better discovery of bribery, with a clause at the end as to a particular kind of bribery in the shape of head-money. He was, therefore, happy to accept the suggestion of the hon. and learned Member to withdraw this clause, and to introduce it hereafter with a preamble, stating the reason for the clause when the report was brought up. Clause of would then stand the first clause of the bill.
§ Mr. Escott
felt very strongly the importance of this clause. It appeared to him the best part of the bill, and the only one calculated at all to put a stop to bribery and corruption.
§ Clause negatived.
On the next clause,
Committee authorised to ascertain the cause of the abandonment of charges bribery, and to report,
begged particularly to invite the attention of the law officers of the Crown to a point which suggested to his 688 own mind something of doubt. The clause concluded thus:—And for more effectual discovery of the truth of the matters so to be inquired into, full power and authority is hereby given to such committee to examine the sitting Member or Members, or candidate or candidates at the said election, and their several and respective agents, and all other persons whomsoever, touching and concerning such matters.Now, was it intended under this provision to give a compulsory power of examining attornies or other agents, as to matters confided to them by clients?
said, it appeared to him that the due construction of the clause was this —it gave full power to examine sitting Members, over whom otherwise there would be no such power; or candidates, over whom otherwise also there would be no such power; and also, " several and respective agents,"—" all other parties" being, he need not say, super-flous. But it appeared to him, that these words left the rules of evidence just where they at present stood; and but for a subsequent enactment (which he would not anticipate), the rules of evidence ordinarily applied to examinations, would apply to the examinations of sitting Members or candidates; as, for instance, a professional man would not be called upon to disclose any secret.
said, what he meant to ask was, whether the rule of law, protecting professional agents from examination as to matters intrusted to them confidentially, would be altered. A case had occurred in which, on an election petition, the House had attempted to make a professional man disclose matters with which he had been confidentially intrusted; and for refusal the party had been committed. He only wished to have a clear understanding on the subject.
§ Sir R. Inglis
doubted not whatever might be the inclination of the noble Lord who had brought in this bill, or the learned Gentleman who was conducting it, that the effect of the clause as it stood was to withdraw the protection now given to professional men. Under this clause certainly, professional agents might be compelled to disclose matters confidentially intrusted to them. Words could not be more strongly applied than were those which concluded the clause. The effect, palpably, would be that in the case of any borough, the sitting members, the candi- 689 dates, and the agents, might be put into the box and compelled to disclose all they knew. Now, he saw no reason why in these investigations the old and ordinary principles of law should be abandoned; though it really did seem to him, that the proceedings of the last few weeks indicated a feeling on the part of too many in the House that bribery was the concentrated essence of all crime, and that next, to that offence, the compromising an inquiry into it was the greatest of all iniquities. If the rules of the law of evidence were to be altered, let it be so as to other matters than those concerning bribery at elections. He objected, then, to the latter part of the clause, because he saw not why as to briber the established principles of law should be disregarded.
wondered that the hon. Baronet should treat bribery with levity. The offence was undoubtedly one of the greatest that could be commited— it was equivalent to usurping power over the lives and liberties of the subjects of the realm, and was assuredly a most atrocious crime. Now, he had not understood the Attorney general to lay down the law as to how far the privilege of agency extended. The hon. and learned Gentleman had certainly said this, that the clause altered not the law thereupon; but the privilege, let it be recollected, was the privilege not of the agent, but of the principal; and if you examined the principal, surely you would examine the agent. Privilege of attorney had been very much limited, and was restrained to communications relative to a suit; so that communications made extraneously thereto, and touching the election itself, could not in his opinion come within the privilege. Nothing could be more useful for the suppression of bribery than the compelling of parties to disclose their transactions: indemnify them if you would, but give the power of examining them — that would be the best means of prevention.
did not apprehend that, according to the law, you had the right to examine the agent wherever you might examine the principal. If a principal in a court of law could not be got at, his attorney could not be examined as to confidential communications and so in Chancery. The privilege, too, let it be observed, was neither the privilege of the principal nor of the agent: but it was a 690 great necessity that there should be free and unreserved communication between principal and agent, in order that affairs might be conducted with facility and fidelity. A violation of this confidence, then, would be a serious blow to the general relation between attorney and client, and as such a public injury.
§ Mr. Sheil
would draw a distinction between the agent who conducted the election petiton (and whom, of course, it would not be just to examine), and the agent who had acted at the election itself, and had been employed in bribery or corruption. He called that not confidential communication, but criminal intercourse; and thought it would be monstrous if such parties could not be examined, more particularly as it was well known that in Chancery executors and trustees were daily examined as to matters confidentially intrusted to them.
§ Sir R. Inglis
wished to set himself right as to what he had said upon bribery: he had spoken of it in no tone of levity; on the contrary, the other night he had used a remarkably strong term — he had called it a " sin." But, he repeated, that he professed not such a degree of political purity as to be disposed to deal with bribery as though it were the concentrated essence of all iniquity; and he said again, that from the legislation of the last few weeks an impression had certainly been created that the feeling of the House was, that so long as bribery was exposed, all other things were of perfect indifference, however important in point of law and justice. Bad as bribery was, there were other election abuses quite as detestable, and for which, perhaps, the learned Member for Cork and his Colleagues from Ireland would do well to frame their pure legislation — he meant bloodshed and intimidation.
§ Mr. C. Buller
desired to have it understood that this clause had nothing to do with bribery, but compromises. The power it gave of examining sitting Members, candidates, or agents, was absolutely necessary, if compromises were to be discovered at all. The object of the clause was to get these parties before the committee; it did not express what they were to say; of course, he meant not to imply that they would not be called on to answer, but what he said was, that calling them before the committee would be of no avail if the mere fact of being a party to the matter 691 inquired into were to obstruct the examination. It was well known, that in nearly all cases the compromises were conducted by agents; the Members declared they knew nothing of the matter, everything being left to the agents. So that, if the inquiry were to be carried out at all, the agents must be examined; nor would any professional privilege screen them, seeing that in respect to these compromises they were principals.
§ The Solicitor-General
said, if he thought the effect of this clause would be to change the law as to confidential agents, he would not support it; for he was not at all disposed to alter the law of evidence on the subject; but he did not understand that the clause as it was now worded would have that effect. The effect of the clause had nothing to do with bribery. Suppose a petition presented alleging the fact of a compromise: the committee were to have the power of examining into it, and (for that end) of examining principals and gents. Now, as to privilege of agents, it bad been said, that it would not extend to the agents who conducted elections, but only to agents for petitions. The fact was, however, that the privilege did not extend to any save purely professional agency. An attorney or agent might be examined as to acts he himself had done; for that involved not the betrayal of confidence, which would be involved in the disclosure of confidential communications. In acceding to this clause, however, he begged to guard against the supposition that he was prepared to support other clauses in the bill, or to assent to the principle that parties most conversant with matters ought to communicate them, however criminatory.
regretted that neither the noble Lord (Lord J. Russell) nor the late Solicitor-general, whose names were to the bill, were present. There occurred to his mind this difficulty:—That after a charge had been withdrawn, the committee might yet go en investigating not merely an alleged compromise, but a charge of bribery — the expenses of the committee going on all the time at the parties' cost. Now, if this must be done, at least let the law be altered as to the burden of paying, and let the public take up the prosecution; that was not the case at present, and while the contrary remained the fact, and the petition, of parties were viewed in the light Of private suits, it did seem hard 692 to throw on the parties the expense of a protracted investigation conducted against their will. As to the examination of agents, the clause was nugatory unless it withdrew some protection now given by law; and if this were so, the principles of law, as regarded the rules of evidence, were about to be altered in a manner to which he could not assent.
§ Mr. Escott
strongly objected to dealing with bribery as though it were so enormous an offence that the suppression of it would justify the most enormous violation of liberty, justice, and law. It was contrary to all principle, all precedent, all law, and all justice, to trust the rules of evidence according to the case you had to deal with. The rules of law should not be disturbed and warped in order to meet this or that particular offence. Were the case that of murder, law, and justice would not so monstrously be violated. From what the Solicitor-general had said about the clause not referring to bribery, it would seem that if the hon. and learned Gentleman had thought differently on that point, he would not have supported the clause. But what were the word, of the clause? —The committee shall be authorised to state in their report any special matter relating to the said charges of bribery.They would not be of such consequence if it were at all anticipated that committees under the clause would act as one committee recently had, and state in their reports matter not at all substantiated by the evidence; but as there was no reason to expect that future committees would act in this strange and illegal manner, the question of evidence became of importance; and he was at a loss to know why all the old principles of law were on this subject alone to be utterly set at nought.
§ The Solicitor-General
thought his hon. Friend could not have read the clause accurately, seeing the manner in which he treated it. The clause was not a clause for appointing a committee to try an election petition; but it authorised such a committee, when any election petition was abandoned, to ascertain the cause of the abandonment.If, after a committee shall have been nominated for the trial of an election petition, in which bribery shall be charged to have been committed, the petition shall be withdrawn, or the charges of bribery therein contained, or any other charge of bribery which shall have been made or stated before such committee, 693 whether in support of any petition complaining of the return, or by way of recrimination, or in answer to any petition, shall be withdrawn, abandoned, or not bona fide prosecuted before the said committee, it shall and may be lawful for such committee in its discretion to examine into and ascertain the circumstances under which such withdrawal, abandonment, or for bearance to prosecute such charges as aforesaid shall have taken place, and whether the same has been matter of compromise, arrangement, or understanding, covert or otherwise, in order to avoid the discovery of bribery at the said election; and the said committee shall be authorised, if it shall think fit, to state in their report upon the election petition any special matter relating to the said charges of bribery, and the cause and reason of the abandonment or forbearance to prosecute the same and for the more effectual discovery of the truth of the matters so to be inquired into, full power and authority is hereby given to such committee to examine the sitting Member or Members, or candidate or candidates at the said election, and their several and respective agents, and all other persons whomsoever, touching and concerning such matters.Well, that was giving a power only to inquire into the cause of the abandonment of the petition —nothing more; but in the following clause it was enacted—That if any committee nominated to try an election petition shall report that there are grounds for believing that extensive or general bribery was practised at the election to which such report shall refer, and shall recommend that further inquiry and investigation should be made regarding such bribery, in that case the Speaker shall nominate an agent to prosecute the investigation into the matter of the said bribery; and the said committee shall, within fourteen days from the time of their having made their report on the election petition, reassemble, and shall inquire and ascertain whether bribery was or was not practised at the said election, and to what extent, and shall specially report to the House all such matters relating to the said bribery, and the parties implicated or concerned therein, as to the said committee shall seem expedient.So that the committee were to meet again to inquire into any alleged cases of bribery, if they specially reported such cases, and recommended inquiry into them. The hon. Member for Sussex, to be consistent, ought to propose that the whole clause should be omitted. The part which the hon. Member proposed to leave out was absolutely necessary, and without it the clause would be inoperative; because the object being to inquire into the cause of the abandonment of the petition, the persons mentioned were the 694 persons who alone could give the required information. He should, therefore, vote against the proposition of the hon. Gentleman.
§ Mr. Aglionby
was afraid that by these attempts at literal definitions the bill would be altogether shelved, or frittered away until it became valueless. The committee were just now at the same point they were at more than an hour ago; the discussion was quite tedious. He thought the Solicitor-general was mistaken in his view of the effect of the two clauses he had cited. What he wanted to have was full power for the committee to search out the truth; and he was determined to do all he could to secure that power for them, for his object was by all means to put down bribery, and that power he conceived to be one great instrument by which such a result was to brought about, because by the exercise of that power' it was that bribery would be discovered. Unless it were discovered, it could not be put down. The committee should be authorized to examine the agents and every party concerned in an election; and he was determined to admit no words into the clause which would prevent professional men from making disclosures such as were allowed in courts of common law. If the candidates were liable to be examined, the agents should riot he allowed to escape. It might be said, " You may examine a common agent who is not a professional man." What would be the effect of that? Low attorneys would be employed to do the dirty work, and then the very information that was most wanted would be withheld, and the questions of the committee would be evaded, on the ground of confidential communications with a legal adviser. The evil had grown to an enormous extent, and it cried aloud, both within the walk of that House, as well as beyond them, for extraordinary measures to be taken to put it down. He would have no privileged persons in these matters. He would rather raise than lower the character of professional men. But he would ask whose privilege it was, — that of the professional man or of his client? He thought it rather the privilege of the public, because they were interested in not having every communication made known upon every trial that took place; therefore, unless they expressly declared in the bill that no attorney or professional agent should be allowed to shelter himself under 695 the plea of confidential communications, such a person might go about and tempt the honesty, and sully the purity of his neighbours with impunity. He thought, perhaps, that the words of the clause as they now stood, would be sufficient to secure his object, and therefore he should support it.
§ Mr. Darby
said, that as far as the committee up stairs was concerned, it was most distinctly understood that the law was not to be altered. He was decidedly against the hon. and learned Member for Cocker-mouth. His hon. and learned Friend the Solicitor-general seemed to ask him how the committee could get into the question of bribery. Why, were they not to report, and, having examined the candidate and the agent, what could prevent them from stating in their report what they heard from the witnesses respecting bribery? He knew that he was going against a high authority when he differed from his hon. and learned Friend; but how did the case stand? The committee would first inquire into the cause and reason of the abandonment of the petition, and for the more effectual discovery of the truth of the matter relating to the case, they might examine sitting members, candidates, and agents, and make a special report respecting charges of bribery; and what was to prevent them from getting upon the subject of bribery? They would ask a candidate why he compromised? If told that bribery prevailed, and a compromise was the more prudent course, the committee would naturally inquire how many voters were bribed, and who bribed, and thus the whole question of bribery would be gone into under this clause. The committee were to report specially, and then, under the third clause, the committee having stated the grounds of their belief that bribery existed, a second committee was to be appointed to inquire into that bribery.
§ Mr. C. Buller
said, the 26th clause would obviate the objection of the hon. and learned Member. He did not wish to carry anything by a side wind. Objection was made to that part of the clause under discussion, which gave power to examine the candidates and their agents; and he agreed with the hon. and learned Member that there were words in the clause which conferred that power in regard to charges of bribery. He would shape this clause so simply as to meet the particular purpose in view, namely, that it should have refe- 696 rence to matters of compromise only; leaving the other matter to be dealt with directly by clause 26. He was, therefore, quite ready to strike out all the words that related to charges of bribery? but he must insist upon the committee having power to examine candidates and their agents, because he thought it absolutely necessary; without it the bill would be worth nothing. He would therefore suggest that the words " charges of bribery" be struck out, and that the last word " matters" be put into the singular number.
observed, that the bill ought to be simplified as much as possible. During the present Session they had seen how many references had been made to the Speaker, owing to the indeterminate and indefinite position in which matters were placed before committees up stairs. This was acknowledged by all to be an important bill; yet they were discussing it at a late period of the Session, and with a very thin House. The hon. and learned Member for Cockermouth had very properly said that after more than an hour's discussion they were just where they were. It was time they knew what their intentions were. He believed that a large number of Members did not know that the privileges of attornies and professional men were to be infringed by this bill.
wished to have the principle of the bill discussed. The question was, whether they would put down a new offence by new modes of proof? His hon. and learned Friend had not touched that point; he had merely stated that he would continue those new modes of proof in cases of compromise. Why, if there was any meaning in the word "compromise," it was used to signify a plan for concealing bribery and corruption. Then how could his hon. and learned Friend confine these new rules to cases of compromise simply? Suppose they were going to inquire into all the circumstances of a compromise between A and B; the first question put to A was, " Why did you make a compromise?" The answer—" Why, there was so much bribery practised that we were both afraid, and in order to avoid exposure we compromised." Was it not impossible to avoid getting into the question of bribery?
would be ready to discuss that question when the committee arrived at the 26th clause. Suppose A to answer 697 as described by the hon. Gentleman, pass on to the 26th clause, and there you found power given to inquire into bribery. Whether the committee would adopt the 26th clause or not, remained to be seen.
§ Mr. Henley
thought, there would be some inconsistency, supposing the committee to have made their first report, and the Members to have been seated, if within fourteen days afterwards they were to re-assemble and take information to prove bribery against them. He objected to the principle of this bill, because it went to authorize means which were not resorted to in cases of high treason, murder, or felony. Let them not endeavour to do this by a side wind. Let them not set aside all the rules of evidence and justice, to effect that which would do no good, or at least none at all equal to the evils it would produce. They were about to place the committee in a position to make them vote black one day and white another. Nay, they would do more to destroy confidence in that House than anything else they had done. He would rather have the clause struck out altogether.
§ Mr. Sheil
said, that a distinction ought to be made between what was done by the agent, and what was done by the client. Hon. Gentlemen opposite would not object to the acts of the agent being discovered. The observations of the hon. Gentleman who spoke last seemed to intimate that he conceived the agent should not be asked what he did. Now, it was one thing to ask the agent what he did, and another what directions he had received from his client. They had a right to ask what he did; but he might be stopped if he were to ask, " Did your client direct you to do that?" because that would be trenching on a privileged communication.[The Solicitor-General: Not a mere common direction.] A mere common direction, then, would not be a privileged communication. In the case of the inquiry into the Bridport election privilege was claimed by one of the witnesses, and there it was an obstruction to the development of the truth. Not only should the parties be subjected to examination, but the agent should be asked all that he did. He would not go so far, however, as to ask an agent what his client had directed.
§ The Solicitor-General
said, hon. Members seemed almost to have forgotten the 698 real subject under consideration, and he could assure his hon. Friends who were opposed to the examination of the sitting Member, the candidate, or the agent, that they were not furthering their object by discussing it on that, clause. It was not intended to do away with the privilege of attornies by that clause, still he was most anxious to make it as clear as possible. The object of the clause was to inquire into and find out compromises of all kinds which were in any way connected with election proceedings. Such was the object of clauses 2, 3, and 4. It was clauses 26 and 27 which gave the power to examine generally, and when they were under consideration the discussion in which they had been engaged would be profitable. He was of opinion that the words " arrangement or understanding" ought to be put in place of "matters," at the end of the clause, in order to show clearly, that they had no intention to alter the law of evidence.
moved, that after the words "committee to examine," the words " as witnesses subject to the ordinary rules of evidence" be inserted. The clause would then read, " committee to examine as witnesses, subject to the ordinary rules of evidence, the sitting Member or Members, or candidate or candidates, &c."
§ Mr. C. Buller
had adopted the amendments which had been proposed merely because he did not wish to anticipate the discussion on the 26th clause. If the House adopted that clause, some of them must be omitted. He would suggest that if he agreed to adopt the proposed words now, they should be expunged on the bringing up of the report, provided the House agreed to the 26th clause.
was anxious for the adoption of the words, in consequence of the opinion given by the hon. Member for Cockermouth, that under the clause as it stood attornies would be compelled to give evidence even of privileged communications. He frankly acknowledged that he would offer the most strenuous opposition in his power to the 26th clause. If the hon. and learned Gentleman could induce the House to sanction that clause, he would have no difficulty in inducing them to strike out the words he now pro- 699 posed upon the bringing up of the report.
submitted to the learned Attorney-General, that the effect of his amendment would be to destroy all the remaining words of the clause. If the amendment had only been "that they shall be examined as witnesses," he would have had no objection. The sitting Member might be a party in the case. [" No, no."] Yes; for he might be liable to the costs for a frivolous defence of his seat. Some hon. Members seemed to stand in a sort of awe of that rule of the English law, that a man should not criminate himself. Now, that was a rule which had not been adopted into any other code of laws in the world. He would not compel any one to give evidence under the pain of torture, but he thought they should by all fair means discover the truth. The truth would dot criminate an honest man, and for the criminal he had no sympathy. All the witnesses were to be indemnified. No indictment could lie against them; the very foundation of the rule, then, was taken away. The rule was laid down to save the party giving evidence from any penalty for offences disclosed by himself; he was to be indemnified under this bill. They had got rid of the cause for the rule, they ought also to get rid of the effect. The bon. Baronet opposite (Sir R. Inglis) seemed to insinuate that he would not be willing to do away with intimidation. He Considered intimidation as gross a breach of morality as bribery. If the hon. Baronet would introduce a measure to put the practice of intimidation down, he Should have his earnestly and anxious support. One means of doing so was by the ballot, which he earnestly advocated. however, as he had made that sincere promise, if the hon. Baronet did not introduce any measure for putting down the practice of intimidation he must no more insinuate that he favoured it. He would suggest the omission from the amendment of the words " subject to the ordinary rules of evidence."
wished to explain what he conceived would be the effect of the insertion of these words. They would preclude the committees from receiving hearsay evidence, from requiring parties to make statements which might criminate themselves, and from putting to the witnesses such questions as according tit the ordinary rules of evidence they were 700 not bound to answer. He could not Consent to the proposal of the hon. Member for Cork for striking out these words.
§ Amendment proposed by the Attorney. general agreed to.
§ On the question " that the clause stand part of the bill,
§ Mr. Aglionby
said, it was his determination, when they came to the 26th clause, to divide the House on that clause. It appeared to him, that there was a very general disposition, on the part of hon. Gentlemen opposite, to object to the provisions of this bill; and he thought that the hon. Gentleman who had charge of the bill manifested a very conciliatory disposition, and had agreed to alterations which materially impaired the efficiency of the measure. He felt so much dissatisfied with the manner in which this bill had been conducted, that his interest in the measure had considerably abated; and it was his sincere hope that, when the noble Lord, the Member for the city of London, who was now at a distance, heard of the discussions which had taken place to-night, and ascertained the nature of the alterations which had been made, the noble Lord would determine to cut the Gordian knot next Session, by bringing forward measures for the extension of the suffrage and for the establishment of vote by ballot. He believed it was only by the adoption of such measures that the bribery and intimidation which prevailed so extensively could be effectually suppressed. ' He thought it was evident that, when this bill had passed through the committee, it would be utterly inefficient to accomplish the purposes for which it was designed.
§ Mr. C. Buller
said, after the observations of the hon. Gentleman who had just sat down, he must beg leave to address a few words to the House. The only alteration in the bill to which he had given his consent, was one suggested by the Attorney-general; and his reason for agreeing to that alteration was, that he did not wish to anticipate the discussion which would arise upon the 26th clause. He conceived it was not advisable to take the discussion on the principle involved in that clause incidentally, but that the best course was to take it on the clause itself. He did not plead guilty to the charge of having made any improper concession, or of having abandoned any important principle of the bill. He begged to tell the hon. Member for Cockermouth that, in the 26th clause, 701 he had a rock on which he would take as firm a stand as the hon. Gentleman himself.
§ Sir R. Inglis
said, that, on no former occasion, had so little party spirit been displayed in the discussion of questions connected with this branch of legislation, as during the present debate. He believed, indeed, that one of the most formidable opponents of the measure was to be found on the opposite side of the House. He entertained strong objections to this clause, which raised the question, whether compromise was or was not a crime? He would submit to the hon. Gentleman who had charge of the bill, and to her Majesty's Government, whether they were advantageously employing the public time in continuing the discussion on this bill, unless there was a reasonable prospect of its speedily becoming law? He presumed it was not intended that Parliament should continue its sitting until this bill had passed through the Legislature. They had now been engaged for three hours and a half in discussing, practically, the first clause. The bill contained forty-four clauses, and although it was intended to abandon some of them, the remaining clauses would, doubtless, lead to considerable discussion. He hoped the hon. Gentleman and the Government would consider whether there was a reasonable prospect of determining this question during the present Session; for if there was not such a prospect, it was useless to waste the time of the House in discussions which could lead to no beneficial result.
§ sir R. Peel
did not think this clause proceeded on the assumption that compromise was a crime. Its object was to provide against the case of compromises, which might impede those inquiries which it was sometimes most important to institute, in order to ascertain whether or not bribery had existed. It was not necessary to show that compromise was a crime; but if, by compromise, impediments were thrown in the way of inquiries into charges of bribery, a sufficient reason was, be thought, afforded for endeavouring to prevent such obstruction of inquiry. No one could entertain a stronger sense of the value of the time of the House than he did; and, if he felt satisfied that no legislative remedy could be adopted to meet these cases during the present Session, he would be the last to encourage discussions which only consumed the public time. 702 He thought the provision of this bill which enacted that, if a compromise was entered into, an inquiry should be instituted, would have a most salutary effect on the elections which would take place during the recess; for the candidates and the people would be aware that, in the case either of bribery or of compromise, strict inquiry would be certain. The bill contemplated the disfranchisement, to a certain extent, of boroughs in which extensive bribery had prevailed. He thought that this was a proper course to pursue, and he was prepared to state his reasons for supporting the proposal, when the clauses respecting it came under discussion. He thought the adoption of a measure which insured strict inquiry into charges of bribery and compromise would effect great practical good; and he hoped the House would proceed, as speedily as possible, with the consideration of this bill.
§ Clause agreed to.
§ On clause 5 being read,
§ Mr. Darby
said, he had very strong objections to this clause. By this clause, they allowed any individual in a borough, after the heat of a contested election, to present a petition against the return, and the only security taken was two recognizances; and such petition was not only to be prosecuted at the public expense, but the witnesses also were to be indemnified. All the rules of evidence were to be overset. He thought such a measure very exceptionable. He must say, that the machinery of this bill, instead of elicting truth, would get together a great mass of false evidence. He thought it most objectionable that any individual of any borough should be able to present these petitions at any time. He could not but believe that every sort of bad feeling would be called into action to induce men to present such petitions, and that men would be induced to present them from feelings of revenge. He thought that to pass such a clause would be a most dangerous course. If the clause were put to the committee, he had such strong objections to it, he should feel it his duty to divide the committee against it.
§ Mr. C. Buller
could not agree with the hon. and learned Member. He thought that on a proper petition from a borough the House should undertake the inquiry at the public expense. It seemed to him that all the learned Gentleman's objections to the clause were because of the facility 703 given by it to presenting petitions. The hon. and learned Gentleman objected that this clause gave the power to a candidate, Or to any one elector of a borough, to present a petition to be carried on at the public expense. He must say that it appeared to him that this bill had effectually guarded, in every possible way, against the evil of frivolous petitions. All election petitions were liable to the same charge. Any individual Member of a borough might present one, and how did they now guard against the presentation of frivolous petitions? By requiring the individual presenting a petition to enter into recognizances to prosecute it, and by saddling him with the expenses if he did not succeed in his petition. The same course was taken by this bill. The individual presenting a petition was obliged to enter into recognizances to prosecute it, and the bill gave the committee power of saddling him with the expenses of the petition if it were a frivolous one; but if the individual did this not for any private advantage, but for the sake of the public, in order to prove an extensive system of bribery, then the expense must be borne by the public and not by him. Under the present clause no one who presented a petition could gain a seat by it; the only effect of the petition would be the exposure of an abuse for the public good. If any person presented a petition from private motives, or presented a frivolous petition, be could still be saddled with the expense of it. He thought it rather too hard, where a party presented a petition with no private object but only for the public good, that he should be at the cost of that petition. He could not conceive a more just principle than that on which this bill went. He thought the hon. and learned Member had made out no case of abuse against this clause.
§ Mr. Darby
said, the recognizance to be entered into by a party petitioning was no security at all. It was not of equal security as if he were liable to pay the costs, if he once proceeded in it. It was easy to get up a case of bribery. A witness before one of the election committees had said, " Only let me go to a borough, and I will get evidence to prove anything." He remembered that the hon. Member for Newark had stated that he believed from his experience that the greater part of these cases were tried on false evidence. He did not feel the necessity for this 704 bill, nor for carrying out measures that were only dangerous. He believed they had already done that which would put an end to bribery altogether, and he therefore should oppose the clause.
§ Mr. Hardy
thought there was good reason to object to the clause altogether, if they looked at clause 13. The 13th clause rendered it improbable, if not impossible, to expect that any investigation could take place under the provisions of this bill. By this clause they said, that if a petition were presented after the time of receiving election petitions, if presented within three calendar months after any act of bribery charged therein, an inquiry should be entered into. Then came the 13th clause, that notwithstanding what might happen in consequence of any investigation of this kind, no seat of any Member should be affected by such inquiry. He would ask any hon. Member if he ever knew of any election petition being presented against the return of any Member, but with the view of obtaining his seat? If the parties could not have a chance of having the seat for themselves or for their friends, how could they expect that any petition would be presented, or that men would be so public-spirited as to present petitions asserting acts of bribery, and follow them up for the public good? They took away the temptation of parties to inquire into all these matters, and, therefore, they were enacting that which would be totally fruitless as to any result; because no one would volunteer such an inquiry, except for the purpose of acquiring a seat for himself or his friend.
§ Mr. Henley
thought there was a vast difference between vexatious and frivolous, and " reasonable and probable ground for the allegations." He thought there was a very wide margin between the two cases; and he thought the clause would be open to question out of doors. He had also another objection to this clause — that they would be setting up two separate tribunals; one, an election committee, might have tried petition on the evidence before them, and might have come to a decision that the Member petitioned against was rightly seated, and that no bribery had been committed. Almost at the same time, another petition might be presented, to be tried by a separate tribunal, and with different evidence, and a different report might be come to; and then in what position would they stand? 705 They would have Members sitting there untouched, at the time when it should be reported to the House, that bribery had been established against them, and that they improperly held their seats. He thought, if a complaint were made at all, it should be made in the usual limited time. On these grounds he should oppose the clause.
§ Mr. Escott
said, this clause would lead to an unlimited expenditure of public money. An individual influenced by any animosity had only to present a petition to have it tried at the public expense. It was true, that individual was to enter into recognizances, but was there any borough in England without dissatisfied parties with money enough in their pockets to pay for the gratification of their feelings, and who would encourage petitions of this kind? He trusted, that such hon. Members (if any should be found) as voted for this clause would one day or other suffer under its provisions, and he was convinced that if the clause were to pass, there would be no end to the malicious prosecution of petitions, merely for the purpose of gratifying private and party spite.
§ The committee divided on the question that the clause (5th) stand part of the bill:—Ayes 62; Noes 15: Majority 47.
|List of the AYES|
|Aglionby, H. A.||Hardinge, rt. hn. Sir H.|
|Aldam, W.||Hawes, B.|
|Baird, W.||Hindley, C.|
|Baldwin, B.||Hodgson, R.|
|Blackburn, J. I.||Howard, P. H.|
|Boldero, H. G.||Hume, J.|
|Brotherton, J.||Jermyn, Earl|
|Bruce, Lord E.||Lincoln, Earl of|
|Buller, Sir J. Y.||Litton, E.|
|Callaghan, D.||Morgan, O.|
|Chetwode, Sir J.||Napier, Sir C.|
|Clerk, Sir G.||Nicholl, rt. hon. J.|
|Cochrane, A.||O'Brien, J.|
|Colebrooke, Sir T. E.||O'Connell, D.|
|Colquhoun, J. C.||Pakington, J. S.|
|Crawford, W. S.||Palmerston, Visct.|
|Cripps, W.||Parker, J.|
|Douglas, Sir H.||Peel, rt. hon. Sir R.|
|Douglas, Sir C. E.||Pollock, Sir F.|
|Duncan, G.||Praed, W. T.|
|Duncombe, hon. A.||Pulsford, R.|
|Dundas, Adm.||Rushbrooke, Col.|
|Eliot, Lord||Smith, rt. hon. R. V.|
|Flower, Sir J.||Somerset, Lord G.|
|Gaskell, J. Milnes.||Stanley, Lord|
|Gladstone, rt. hn. W.E.||Sutton, hon. H. M.|
|Graham, rt. hon. Sir J.||Thompson, Ald.|
|Hamilton, W. J.||Trench, Sir F. W.|
|Harcourt, G. G.||Troubridge, Sir E. T.|
|Villiers, hon. C.|
|Wawn, J. T.||TELLERS.|
|Williams, W.||Buller, C.|
|Wrightson, W. B.||Fremantle, Sir T.|
|List of the NOES.|
|Arkwright, G.||Lygon, hon. Gen.|
|Astell, W.||Mackinnon, W. A.|
|Broadley, H.||Munday, E. M.|
|Escott, B.||Northland, Visct.|
|Forbes, W.||Polhill, F.|
|Fuller, A. E.||Taylor, J. A.|
|Henley, J. W.||TELLERS.|
|Hussey, T.||Darby, G.|
|Lowther, J. H.||Hardy, J.|
§ Clause 6, regulating the proceedings in case an election petition was withdrawn before a committee was appointed for trying the same, was agreed to without a division.
§ On clause 7, providing that the petitioners be required to enter into recognizances, being put,
§ The Attorney-general moved to increase the amount of the recognizances from 100l. each for two persons to 250l., and from 200l. for one person to 500l
§ Sir R. Peel,
although he had been a Member of the select committee, had not been able to be present when this particular question was under discussion. He had a perfect right now to consider the proposal made in the bill as to the amount of the recognizances to be entered into by petitioners. Upon principle he must say, that while Parliament facilitated inquiries and investigations into charges and allegations of bribery and corrupt practices, it ought to take care to provide against annoyances through vexatious proceedings. At present, unless the return of a Member was questioned within fourteen days, that Gentleman felt secure against any future annoyance, but under this bill he might be liable, during the whole of the Parliament, to an investigation which, though it would not affect his return, might affect his character and conduct three or four years before, and therefore he thought, that due security ought to be taken, that whilst the door was not shut against investigation, still that hon. Members returned to serve in Parliament should not be liable to vexatious proceedings against them. At present the amount of recognisance was one person in the sum of 1,000l., or two persons in 500l. each, and it must be remembered that the committee had now to deal with the case of a mere speculative attorney, who, to affect the character 707 of a Member, might easily get up recognizances to the amount of 100l.or 200l., especially if he had reason to believe that the inquiry into the charges alleged might eventually be taken at the public expense. Again, care ought to be taken lest the best men in the country might be deterred from coming forward for a seat in Parliament on account of keeping over their heads a vague and indefinite inquiry. He therefore recommended that the amount of the recognizances should be increased in this bill to half of the amount at present required, as proposed by his hon. and learned Friend the Attorney-general.
§ Mr. C. Buller
expressed his entire concurrence in all that had been said by the right hon. Baronet opposite, and should make no objection to the alteration proposed in the clause.
§ Amendment agreed to; clause ordered to stand part of the bill.
§ On clause 14, which provided, if extensive bribery be reported by an election committee, the House of Commons should address the Crown to issue a commission of inquiry, being put,
said, this was the proper time to take the opinion of the committee upon the constitution of' the commission to be appointed. He objected to the proposal that three of the commissioners should be Members of the other House of parliament.
said, that all that he desired was, that the opinion of the House might be taken on the kind of commission described in the bill, which he regarded as quite unconstitutional.
§ Mr. Escott
had always understood that the House of Commons was quite competent to conduct an inquiry of this sort, without an address to the Crown for the appointment of a commission. Persons of so great weight on both sides of the House had discussed and determined upon this part of the bill, that he felt a hesitation in stating his opinion on the subject; but he must say, that he had not heard one word in favour of this commission. At this period of the Session, the fact was, it was impossible to discuss as it ought to be discussed so important a question as this. Hence, if he heard no satisfactory reasons why he should support the clause, 708 his vote should be given to the right hon. and learned Member for Cork, for he considered this commission quite unconstitutional.
§ Mr. Aglionby
, having attended the committee upstairs, which sat on this bill, and as the commission had been objected to by many Members, and himself among the rest, thought it right to state the grounds on which it had been introduced into the measure. It was singular that not a Member of the committee was in the House but himself, and he was thus left to state— which he wished to be understood as doing without adopting— the arguments that had been urged in favour of a mixed commission. It had been said, then, that if you found it necessary to disfranchise a borough, city, or county, you could not do so except by a bill to which you must procure the sanction of the House of Lords; the course of proceeding being, that after a full inquiry before a committee of the House of Commons, the bill, having passed the House, was sent up to the Lords, where a committee was again appointed, who again went through all the evidence and examined all the witnesses. Then their Lordships discussed the bill in their House, and having agreed to it, sent it down to this. Now, it was said the effect of the clause constituting this commission would be, that all these proceedings, by way of inquiry and examination, would be done once for all, and that if a committee of the' other House sat jointly with a committee of this, the other House would have no objection to agree to the bill on the evidence so taken. He confessed he was considerably struck with the force of the argument that a great loss of time and a vast expense arising out of the attendance of witnesses would be entirely saved by the contemplated plan, and that it by no means gave the Lords the power of interfering to recommend disfranchisement, as the initiative in that respect would still remain and reside in the House of Commons. In fact, he felt that there was so much weight in the argument, that he should not have interfered to oppose the appointment of this commission, as far as regarded the question of disfranchisement. He thought the appointment of a commission for the purpose of disfranchisement might be good; but he could not agree to their having the power to recommend a suspension of the writ for a twelve- 709 month, as was given by a subsequent clause of the bill. He was loth to extend the power of the House of Lords in the latter respect. That recommendation ought not to come from any mixed commission.
§ Mr. Mackinnon
said, that the upshot of the arguments stated by the hon. and learned Gentleman (Mr. Aglionby) was, that the House of Commons were to give up their privileges for the purpose of saving the House of Lords the trouble of examining witnesses in support of a disfranchisement bill, because they would take for granted that the examination and inquiry would be properly conducted by this mixed commission. He begged to ask the hon. and learned Member, would he give up the right of the House of Commons to be judge of its own privileges, merely to save the time of the House of Lords? [Mr. Aglionby: Certainly not.] He did not agree in the propriety of hurrying such inquiries. He said, that if matters came to a question of disfranchisement, the more time they took, and the more maturely considered and sifted such a subject, by going fully into the evidence, the better. Therefore, for the very reason that this commisssion would have the effect of bringing the inquiry to a quick determination, was he opposed to it. He wished that the Lords should be left to their separate inquiry, and he should oppose the clause.
§ Mr. Roebuck
begged to state some objections which he had to passing this bill at the present time. The whole matter of election law would come into inquiry next Session; but apart from the matter of election law stood the administration of that law— the form and substance of that which should put that law in execution. There were two separate questions into which the subject resolved itself: —one was the question whether the right to the seat belonged to one party or the other; the second was, whether certain transactions, as, for instance, bribery under this bill, had taken place in the borough, city or county which sent the Members. Now this mode of dealing with the latter question appeared to him to be operose in the extreme; because, if they got what he would call a perfect system of judicature for the investigation of the first inquiry, that would be a perfectly sufficient machinery, in his opinion, to conduct the second. He thought the method pointed 710 out by the bill an operose proceeding. They were about next year to consider if they could find a good election judicature; but in this bill they were called upon to determine on a separate system of judicature for the investigation of bribery under the bill; so that, having determined by one system of investigation, to be settled hereafter, as to who should be the sitting Member, they would next have to put in motion the large machinery given by this bill before they could get at the question of bribery. For such an object, he asked the House and the country, whether it were wise to establish this remarkable system? Suppose that next Session the House was to find that it would be proper (as he thought that they would) to delegate their powers to certain parties who should be qualified to discharge the functions committed to them, and who should be beyond the reach of party spirit and party feeling, would it not be much wiser to trust to the judge or the tribunal so constituted the duty of inquiringi nto the second matter of inquiry? Was it not much better to determine beforehand on a permanent judicature, which would not have the character of a party polemical tribunal, as would be the case if this bill became law, than to leave it to the Crown, that was the Minister, to determine upon the parties who should constitute the tribunal in each case? Such a tribunal could not be beyond — it could be above — party spirit. He, therefore, entreated the House not to agree to pass this bill in this form at present. Why should they hurry — why should they run to a conclusion? What injury could arise from delaying till next Session? Not more than two or three elections in all probability could occur in the interval. If they delayed, her Majesty's Government would have time to give its mind to the question. Between this and next year the Government would be able to devise some means how to attain a judicature which should be impassive and not liable to political influence. He believed, that the House of Commons was quite unfit for this sort of inquiry, and he did not think that their incompetency would be corrected by taking to their aid a portion of the House of Lords. The Lords had political feelings as well as Members of the House of Commons. The House of Commons was or ought to be the people's House, but it could trot be so, at least as to its constitu- 711 tion, if the decision in its constitution was to be taken by means of the intervention of the House of Lords. He entreated the House, therefore, to delay this measure for the two or three months of the recess. He thought that if they could find a tribunal composed of persons qualified for the due discharge of these functions to which to delegate their powers, it would settle and render stable the election law of Parliament, by an uniform course of decisions; it would be attended and watched by a competent bar; it would not be induced to swerve from its course by party considerations or for party purposes; it would be impassive; it would be judicial; it would be legal. The tribunal described in this bill never could be any of the three.
§ Sir R. H. Inglis
said, it was his good fortune to concur with the hon. and learned Member (Mr. Roebuck) in every word that he had uttered, and the more so as part of what the hon and learned Member had suggested he bad on a former occasion taken the liberty of impressing on the House —he meant the proposition of a tribunal with separate functions. If, however, the clause was to be part of the machinery of the bill, he should greatly prefer that it should be made imperative that the commission should be directed to three of the judges of the superior courts of Westminster in the first instance, so that some of those venerable persons should always form a part of the judicature to be established. It was true that the House had partially surrendered its jurisdiction over these matters by passing the Grenville Act, but it did not follow that they ought to go further, and agree to the gratuitous surrender of privileges, which the bill now under discussion proposed. He concurred in the wish of the hon. and learned Gentleman the Member for Bath, that the subject should be postponed till next Session; but, should that wish not be acceded to by the House, he would then feel it his duty, on their coming to the next clause, to move, as he had done in the committee above stairs, that the commission should include three judges of the superior courts of law (or any other number that might be thought fit) together with the members of the commission specified in the clause.
§ Sir R. Peel
thought it was rather unfortunate that they should be discussing what was, in fact, a new subject-matter 712 in the absence of the noble Lord who had introduced the bill, of the late Solicitor-general, and of the chairman of the committee upstairs. With regard to the subject before the House, he still retained his opinion, that if the clauses already agreed to were passed into law, a great improvement would be effected, and he denied that the appointment of the commission, as proposed by the bill, would involve any surrender of the privileges of that House. The object for which the commission was to be appointed appeared to have been mistaken. If it were proposed to give to that commission the right to interfere in the peculiar jurisdiction of the' House of Commons—to give to it the right of suspending a writ or of determining the tenure of a seat in that House—then he should be prepared to object to such an infringement of the privileges of the House as strongly as any man; but the jurisdiction proposed to be given to the commission did not relate to the special privileges of the House of Commons at all, it related to a matter purely of legislation—one in which that House was not able to proceed a single step without the concurrence of the House of Lords. The House of Commons had the right to determine whether a particular writ should issue, or whether a particular seat should be held or vacated by any individual; but as to pronouncing on the disfranchisement of a borough, it had no more right to do so than it had to pass an act of Parliament proposing a new tax without the consent of the Lords. In calling on the House of Lords, therefore, to assist that House, not in determining whether a borough should be disfranchised, but to institute a preliminary inquiry, for the purpose of simplifying the proceedings which were necessary before pronouncing upon the disfranchisement or non-disfranchisement of a borough, they were not, he apprehended, in any way surrendering the rights of the House of Commons. The question was solely which was the best mode of conducting the inquiry that was necessary before a borough could be disfranchised; and if it were proposed to give to the report of the commission an absolute power of disfranchisement he would be the first to object to it. The sole object of the appointment of the commission was, that they should collect such a body of evidence as might induce the House of Commons, without any fur- 713 ther inquiry, to consider whether they would or would not disfranchise a particular borough; and some such proceeding was rendered necessary by the complicated nature of the proceedings of both Houses with regard to cases of disfranchisement. An inquiry of that kind in the House of Commons generally lasted through the greater part of a Session, so that the bill did not get up to the Lords till June. The Lords then were accustomed to disregard the evidence taken before the committee of the House of Commons, as not having been taken on oath, and declined to proceed with the bill unless they themselves heard evidence also. This drove the bill on to the next Session, and when that time came, the heat of party excitement having, in the mean time, passed away, it was found that evidence so much less strong was given before the Lords than had been given before the Commons, that the Lords determined that there existed no grounds for the disfranchisement. It was to put an end to so complicated and unsatisfactory a system that the present proposition was made, and he certainly thought that it would be better to intrust the preliminary inquiry to he entered upon by a commission composed of Members of both Houses jointly, than to leave it, as now, to a majority of the House of Commons. With regard to the suggestion of his hon. Friend the Member for the University of Oxford, that the judges should be included in the commission, he must say, that unless the report of the judges were to be considered as final he did not see what would be the use of such an arrangement. Suppose the judges found that out of a constituency of 500 100 had been bribed, and that therefore the borough ought in their opinion to be disfranchised, was it not very likely that the House of Commons, in such a case, would desire to institute a new inquiry? The House of Commons might say, that in a matter involving a legislative proceeding, they were not satisfied with the report of the judges. With regard to the power of appointing the commission, although if the question came to a division he certainly should be in favour of giving the power of appointment to the Crown, yet he thought it much better that they should take the division, if they divided, upon the abstract question of whether there should be such a commission or not, and to leave out, for the present, the question 714 whether or not it should be appointed by the Crown.
put it to his hon. and learned Friend whether he would proceed with the other clauses at this advanced period of the Session, when he could not entertain any reasonable hope of their being carried. He entirely agreed with the right hon. Baronet opposite, that the appointment of this mixed commission would produce great advantage, but the right hon. Baronet had also thrown out that the House would not be bound by its report. Now, if that were the case, of what possible use, for the purpose of facilitation or acceleration, would be the appointment of such a commission — of a tribunal so singular and novel? On the contrary, if the object was to get rid of a troublesome and complicated inquiry, he thought there ought to be some provision binding that and the other House of Parliament to be guided by the report of the commission. But, as the whole subject involved a serious constitutional question, he did hope his hon. and learned Friend would postpone the rest of the bill until next Session. At the same time he hoped that next Session the right hon Baronet would himself be prepared with some large and efficient measure to meet the difficulties to which the present bill was addressed; and also those difficulties connected with treating, and those other enormities of which they had lately heard so much, by which the constituencies of this country were now so corrupted and disgraced.
§ Mr. T. Duncombe
hoped his hon. and learned Friend would not hastily consent to defer this clause. At the same time he must admit, that they were discussing the bill under great disadvantages, for of all those on his side of the House who were on the committee (including the noble Lord the Member for London, and the right lion. Baronet the Member for Devonport), the only Members now present were the hon. Member for Cocker-mouth and himself. The whole onus of the bill, indeed, seemed to rest upon the right hon. Baronet opposite, and he was really fighting the battle so well that he would suggest to his hon. and learned Friend to throw it over to him altogether. He did not think that the privileges of that House were at all affected by this clause, which was for the purpose of doing away with the necessity of that 715 second investigation which the House of Lords were accustomed to go into before they would agree to a disfranchisement bill.
§ Mr. Escott
inquired what was the use of the appointment of such a commission as this when the House of Lords or the House of Commons would never sit judicially upon their report, but must have the witnesses before them? The commission could not legally disfranchise a borough; then of what use was it? It must be ineffective altogether. While it was unconstitutional in its character, it could do no good whatever.
§ Sir R. Peel
said, if the hon. Member maintained that that House could not disfranchise without hearing evidence at the Bar, how was it that he had been a party to the Sudbury Disfranchisement Bill, where there had been no evidence at the Bar?
§ Mr. P. Howard
was of opinion that a measure of such importance ought not to be persisted in at a time when not above a fifth of the Members were in town. If the clauses were pressed he should be obliged to vote against them.
§ Mr. C. Buller
supposed he must say something, though really he had very little to say; for whilst he felt a great interest in the general principle of this bill, this was a part of it to which he must confess that he had not given much consideration. His own wish on the present occasion was to defer himself to the general opinion of the House, and throughout this conversation he had been anxiously listening for opinions, with a view to form a judgment of how far the bill would be prejudiced by either omitting or retaining the particular part of it they were now considering. Certainly he should prefer to have a distinct expression of the opinion of the House before he consented to withdraw these clauses; but, at the same time, if they would in any way prejudice the fate of the measure, he should be sorry to persist. If the opinion of the House were taken, and proved to be against them, the clauses would of course be expunged; but even if there was only a small majority in their favour, he did not think the friends of the bill would wish him to press them forward.
Mr. V. Smith
would vote for the commission, but would not support the clauses under which it was proposed to be constituted. He thought that part of the proposition whimsical and strange.
§ Sir R. Peel
agreed that the selection of three Peers and four Commoners appeared to have been somewhat whimsically made. With respect to what had fallen from the hon. Member for Liskeard, he certainly thought that there seemed to be so much difference of opinion on these clauses that to persist in them might be to endanger the passing of the bill, whilst it would probably be secure of passing if they addressed themselves to the first thirteen clauses only. Although, therefore, he should certainly support the clauses if they went to a division, he thought that on the whole it might be well to withdraw them.
§ Mr. C. Buller
thanked the right hon. Baronet for the advice he had given, without which he should perhaps scarcely have had courage enough to have taken on himself the responsibility of withdrawing these clauses. On the whole, he was disposed to concur in the soundness of the advice, and putting aside altogether the consideration of their principle, it certainly seemed to him that he should do well to act on it. He would, therefore, ask leave to withdraw the clauses from 14 to 25 inclusive.
§ Clauses negatived.
§ On the question that clause 26 (parties to be examined though answers may tend to criminate themselves) the references to the commission were struck out, stand part of the bill,
suggested that as this clause affected the existing law of evidence it would be advisable to postpone its consideration until the hon. Member for Worcester could be present.
§ Mr. C. Buller
had no reason whatever to believe that the hon. and learned Gentleman the Member for Worcester had any doubts or misgivings as to the subject of the clause. In his opinion this ought not to be looked upon as a question merely affecting two parties who were contesting their right to seats in that House; the paramount interest of the public was, that the seats should be filled by those who had been properly elected by the people. He felt satisfied they would do little to facilitate investigations into acts of bribery if they allowed themselves to be thwarted by the refusal to give evidence by those who could mainly supply it, screening themselves under the pretence that they were interested. The unduly elected Member, his agent, and the corrupt voter, were all interested parties, 717 and if the committee were deprived of their evidence, how was it possible to come to a proper decision of such questions? In conducting such public inquiries they must not regard the comparatively unimportant interests of individuals, nor even the practice at common law, which was never meant to protect such cases as these. He really considered this the most valuable clause in the bill, and he certainly could not consent to its abandonment.
§ Mr. Darby
regretted the absence of the noble Lord, the Member for the City of London (Lord J. Russell), the hon. Member for Halifax (Mr. C. Wood), and the hon. and learned Member for Worcester' (Sir T. Wilde), who were all Members of the committee, because now that they had struck out the clauses appointing the commission, it was proposed that parties should be compelled to give evidence criminatory of themselves, without being allowed to appear by their agents, before the reassembled committee —a privilege to which they would have been entitled under the commission. A most serious question was involved in this clause — namely, that they should get rid of all the principles of evidence upon which every court in this country had hitherto acted, and without any sufficient reason, for none could be found to compel parties to give evidence criminating themselves, without allowing them to appear before the committee by their agents. He certainly would divide the committee against this clause; and if he were defeated in his opposition to it, he should then move that the twenty-third clause, allowing parties to appear by their agents, should be restored. If it was just to give parties the means of defence before the commission, why not before the committee, on whose report the question of disfranchisement would be brought before the House?
was decidedly opposed to the clause, which broke in on the general rules of evidence in the administration of justice in every court in the kingdom. Beyond all doubt it called upon every person compulsorily to give evidence tending to criminate himself, while it held out to him a prospective indemnity. He begged distinctly to state, that he had a most serious objection to a prospective indemnity. If the House found itself entangled in an inquiry it was compelled to institute with regard to acts already committed, he could understand why an in- 718 demnity should be held out to witnesses; but he could not be a party to the encouragement of prospective crime in order that it might afterwards be divulged. Irrespective of that objection, he never could sanction the principle of the present clause, which broke in on some of the great maxims of our law of evidence. It clearly, beyond all doubt, made persons liable by compulsion of being sent to prison if they refused to answer questions tending to criminate themselves; and he believed it also infringed upon the secrecy and confidence of professional men. Why should a different rule be applied in the investigation of these cases as contrasted with trials for treason or murder? It had been said in the course of the evening, that no tenderness should he shown to those who were guilty of bribery, and that in these investigations the public had a higher interest in screwing out reluctant testimony than in the protection of the witness who gave his evidence. He denied that. The reason why they did not compel persons to answer questions tending to criminate themselves was not merely because they would not be guilty of tyranny in compelling them to do so, but because the source from which their testimony came was such as they could not rely on for judicial purposes. There were some rules of evidence which he admitted it would be quite right and proper to get rid of, but this was one which he was decidedly of opinion ought not to be dispensed with. He was aware that there were many persons of modern times, and amongst them the eminent philosopher Bentham, who were of opinion that you should ask any personal question, no matter whether he had an interest in the matter or not; nay, more, that you ought to listen to the hear-say evidence of private life. His experience, he confessed, did not go along with that doctrine. The object of all our rules of evidence was to get upon the whole that species of testimony upon which you could safely rely, and to exclude that upon which you could not safely rely, as not being from a legitimate source, and therefore insufficient to furnish grounds upon which you could confidently come to a decision. He doubted whether his hon. and learned Friend, the Member for Liskeard, was correct in representing, as he understood him to do, that his hon. and learned Friend, the Member for Worcester, approved of this clause as it now stood. 719 He knew that his hon. and learned Friend the Member for Worcester entertained a strong opinion against breaking in upon the rules of evidence in other cases, and the bill that had been brought in by the Lord Chief Justice in the other House, and which had been confided to him (the Attorney-general) in that House, was being held over in order that his hon. and learned Friend might have an opportunity of opposing it, because, as he conceived, it overlooked that great security which the law required for those who were called upon to elucidate the truth. He opposed the clause because it appeared to him to suggest a course inconsistent with justice, and founded on the tyrant's plea, which would introduce a new rule for a special purpose, which would break in upon the laws of evidence for the purpose of carrying out some specific object.
did not think the laws of evidence so very perfect as the hon. and learned Attorney-general seemed to represent. If a man were worth 1,000,000l., and happened to have an interest in the case to the value of 1s. however honourable and trustworthy he might be, he was absolutely excluded from giving evidence. That was not consistent with common sense; neither did the law recognize the question of whether it were probable that men not excused by some legal or technical reason would tell the truth. This clause gave power to compel all persons to be examined before the committee, and was on that account opposed by the hon. and learned Attorney-general, and yet that hon. and learned Gentleman allowed a precisely similar clause to pass the House during last Session. The bill of the noble Lord the Member for London, which opened this question of bribery, contained at present only one clause, which clause compelled the committee to go into evidence of bribery without proof of agency; but as it passed that House it contained another clause, similar in principle to the one under consideration, and which, but for the opposition of a noble Lord in the other House, would now be the law of the land. The Attorney-general said, that the great question was, whether they should encourage or discourage crime, at the same time expressing it as his opinion that they would encourage crime by compelling the discovery of it. He conceived that men would be much leas likely to commit the crime of bribery 720 when they knew that by the process proposed the discovery of it could be compelled — when they knew that every person concerned in it could be called upon to give evidence, and could be indemnified on doing so. On the other hand, what greater protection could be given to bribery than the absence of any power to compel those who alone, perhaps, were cognizant of it to give evidence? The way to prevent crime was to allow the disclosure of it; the way to excite to crime was to prevent its disclosure. The Crown was enabled to get at the truth in cases of high treason by granting a pardon — why not act upon the same principle in this case? He must observe, however, that to " crimiuate" oneself did not necessarily involve any moral turpitude; it only rendered the party liable to a legal punishment. The indemnity in this case following the evidence put an end to the rule. It was no longer a rule of evidence, and therefore no rule of evidence was violated in compelling a witness to criminate himself, he being indemnified. Similar clauses had been introduced into various bills, and without such a clause this bill would, in his opinion, be wholly worthless.
§ Mr. Parker
supported the clause, as he considered that all the proceedings of the committee would be quite nugatory without it. If professional men, for instance, who were generally those who either bribed or regulated how and by whom the bribery was to be effected, could not be examined, he did not think that the committee could ever arrive at a satisfactory conclusion.
§ Mr. Roebuck
said, that though this question, of a man criminating himself, as appeared to be contained in the present clause, had for a long time been a vexed question, still, from his own experience, he did not consider it safe or expedient to subject persons to any form of mental torture, and he had been opposed to such a principle; but, taking the clause in connexion with that which followed it, it would be seen that the party compelled to give evidence would not be liable to any punishment to which such evidence would, under other circumstances, subject him. If the party under examination told the truth, he would have the benefit of having done so without any damage to himself; and when the indemnity clause passed, there would be no hardship in compelling evidence, as the witness could no longer be said to criminate himself in giving his 721 evidence. There was one peculiarity in the law as it at present existed, namely, that a professional man could claim immunity, whilst a mere agent was exempt from the privilege which an agent, if an attorney could claim. This was an anomaly which was opposed by Lord Tenterden, and to which he also objected.
§ Viscount Palmerston
supported the clause. If there were but two parties to an alleged case of bribery, it might be presumed that they would run the risk, in consequence of no punishment being attached; but where a great number of persons were engaged in an act of bribery, it could not be supposed that if one gave evidence the whole could escape with impunity. The clause, then, viewing it in this light, could not be said to hold out encouragement to bribery. As to the objection made to the source from which the information was derived, it was analogous to our whole system of evidence, which frequently availed itself of the testimony of an accomplice; and if that were so in other cases, why should it not be so in this? As the object of the bill was not to effect the punishment of individuals, but to promote the public interest, it was not inconsistent with the object in view, nor with analogy, to take evidence from a source which in some degree might be supposed to be polluted.
§ The Solicitor-General
conceived, that as a new principle of evidence was about to be introduced by the clause, it required the serious consideration of the House. With respect to what his hon. and learned Friend the Member for Bath had said of the efficacy of the ballot for the prevention of bribery, he could not but think that his hon. Friend, if he had seen the working of the ballot in other countries, would have acknowledged that it was not well calculated to aid in the attainment of truth. He believed that our own system was far better; and now what was the House asked to do? All admitted that bribery was a great crime, but certainly it was not greater than many others known to the criminal law of this country. It was proposed to compel persons to answer any questions which might tend to criminate themselves of bribery, and at the same time to give a prospective indemnity. That was a proceeding 722 entirely new in this country, and he asked the House to consider its effect. The right hon. and learned Member for Cork observed that in cases of high treason the Crown could always procure the evidence of any witness by granting him a pardon; but he must be well aware that the prerogative of the Crown did not extend to pardon future offences. No such power was known to the Crown, although it had the power to pardon offences when committed; but this clause would, in fact, grant a prospective pardon. It said that a man might go down to any borough, and bribe as much as he pleased; but, if examined before the committee, that he should be indemnified from the consequences of the crime. If such a principle were introduced in respect of this crime, he did not see why, acting on this precedent, it might not be introduced into the case of other crimes, and why any other offender might not be told that if he gave evidence against his accomplices he would be indemnified from the penalty attached to his offence. He was not at all sure that such a provision as that contained in the clause would not have the effect of encouraging the very crime sought to be put down. Such encouragement might be held out if parties knew that they would be freed from all the penal consequences attaching to bribery by merely presenting a petition, and coming forward to make a disclosure of the circumstances before a committee. There was nothing in the law analogous to such a principle as this, by which it would be established that any man might go and bribe to any extent and afterwards he entirely indemnified by giving information. He thought it would be much better that they should entirely repeal all laws against bribery, and deal with it, when it was committed, as an offence cognizable by the House of Commons alone; but if they treated it as a crime, rendering the party liable to indictment, then it would be entirely contrary to what justice required to tell a party beforehand that he might commit the crime, and yet escape all its consequences. He thought the mischief flowing from this principle would outweigh any advantages it might have. Another objection was that the clause would compel the revelation of confidential communications to attornies. On these grounds be must object to the principle of this clause. He believed that the bill passed last Ses- 723 sion, which had shown that it was impossible to commit bribery without having the case investigated by a committee of the House of Commons, would go further than anything else to put a stop to the practice. In every case in which a petition had been presented during the present Session, and proceeded with, it had been successful in unseating the person against whom it was directed.
said, it was an entire mistake to suppose that this clause at all affected or made any regulations on the subject of confidential communications to attornies. He did not think it could, by any construction, in the slightest degree touch what were called professional privileges. It was solely applicable to the cases of parties refusing to answer on the ground that the question might criminate themselves, and would never force an attorney to give an answer which would involve a breach of confidential communications with his client. He regretted that it did not go so far as the Sollicitor-general supposed, and wished that it did enable questions to be put to professional agents regarding transactions into which inquiry was being made; but he was aware that the time for that proposition was past. He hoped the committee would adopt the clause.
said, if this clause was not allowed to pass they might as well throw the bill overboard. If the law remained as it was at present, a candidate had only to have two agents, one for all legal purposes of the election, the other for illegal; and it would be impossible to bring the proof of bribery home, for the agent would have nothing to do but merely, when the question was asked if he were the agent, to reply that it would criminate himself to answer. In bribery there were none of those collateral circumstances which in other cases indicated guilt, but it was of a nature to which necessarily only two persons were privy—the payer and the payee; so that unless these parties could be examined, the inquiry would be futile. With regard to indemnity, it was only to be given where it appeared to the committee or commission that the party had made a full and faithful disclosure. The truth could easily be discovered in this, as in other cases, by separate examinations of the parties. The rules of evidence had already been relaxed to a great extent in several cases, as in that of interested par- 724 ties, where the exclusion of testimony had formerly been founded on the notion of a temptation to perjury. His firm belief was, that unless this clause stood, the measure would be useless.
§ Mr. Sheil
thought the whole difficulty might be got over by simply providing that no answers given before the committee or commission should be given in evidence against any parties examined. Surely that would meet every difficulty? [" No, no."] Why, where was the objection? Was not the sole reason of protecting parties from self-crimination the danger of prosecution? And if that danger were effectually removed, where could be the injury in extorting the disclosure of everything? How would the party be damnified, directly or indirectly? Undoubtedly it might happen that other inquiries might arise out of the evidence thus elicited; but what objection was there to that, seeing that it really was the practice in the case of answers to bills filed in Chancery against trustees, for instance? The clause had been agreed to by the House last Session, and was essential to the efficiency of the bill.
§ The committee divided on the question, that the clause stand part of the bill:— Ayes 39; Noes 80: Majority 41.
|List of the AYES.|
|Aglionby, H. A.||O'Connell, D.|
|Adam, W.||O' Conner Don|
|Bowring, Dr.||Palmerston, Visct.|
|Brotherton. J.||Parker, J.|
|Callaghan, D.||Pechell Capt.|
|Cobden, R.||Plumridge, Capt.|
|Colebrooke, Sir T. E.||Protheroe, E.|
|Crawford, W. S.||Pulsford, R|
|Duncan, G.||Roebuck, J. A.|
|Duncombe, T.||Sheil, rt. hon. R. L.|
|Dundas, Adm.||Thornely, T.|
|Ebrington, Visct.||Tufnell, H.|
|Gibson, T. M.||Turner, E.|
|Hawes, B.||Vane, Lord H.|
|Hindley, c.||Wawn, J. T.|
|Hollond, R.||Williams, W.|
|Hume, J.||Wood, B.|
|Hutt, W.||Wood, G. W.|
|Mitchell, T. A.||TELLERS.|
|Morris, D.||Buller, C.|
|Napier, Sir C.||Hardy, J.|
|List of the NOES.|
|Allix, J.P.||Baring, H. B.|
|Antrobus, E.||Bateson, R.|
|Ashley, Lord||Blackburne, J. I.|
|Astell, W.||Blackstone, W. S.|
|Baird, W.||Boldero, H. G.|
|Baring, hon. W. B.||Bramston, T. W.|
|Broadley, H.||Jones, Capt.|
|Bruce, Lord E.||Lascelles, hon. W. S.|
|Buller, Sir J. Y.||Leicester, Earl of|
|Campbell, A.||Lincoln, Earl of|
|Clerk, Sir G.||Litton, E.|
|Cockburn, rt. hn. SirG.||Lowther, J. H.|
|Colquhoun, J. C.||Masterman, J.|
|Corry, rt. hon. H.||Meynell, Capt.|
|Cripps, W.||Morgan, O.|
|Damer, hon. Col.||Mundy, E. M.|
|Douglas, Sir C. E.||Neville, R.|
|Duncombe, hon. A.||Newry, Visct.|
|Eaton, R. J.||Nicholl, rt. hon. J.|
|Eliot, Lord||Packe, C. W.|
|Escott, B.||Peel, rt. hon. Sir R.|
|Flower, Sir J.||Polhill, F.|
|Follett, Sir W. W.||Pollock, Sir F.|
|Forbes, W.||Praed, W,|
|Freemantle, Sir T.||Pringle, A.|
|Fuller, A. E.||Rushbrooke, Col.|
|Gaskell, J. Milnes||Sandon, Visct.|
|Gladstone, rt. hn. W. E.||Scarlett. hon. R, C.|
|Gore, W. R. O.||Sibthorp, Col.|
|Goulburn, rt. hn. H.||Somerset, Lord G.|
|Graham, rt. hon. Sir J.||Stanley, Lord|
|Grogan, E.||Stuart, H.|
|Hamilton, W. J||Sutton, hon. H. M.|
|Hardinge, rt. hn. SirH.||Taylor, J. A.|
|Hawkes, T.||Trench, Sir F. W.|
|Herbert, hon. S.||Vivian, J. E.|
|Hodgson, R.||Wortley, hon. J. S.|
|Hornby, J.||Young, J.|
|Howard, P. H.|
|Inglis, Sir R. H.||Darby, G.|
|Jermyn, Earl||Henley, J.|
§ On the 27th clause being put,
§ The Solicitor General
said, as the 26th clause had been rejected, the 27th clause, granting indemnity to witnesses would be withdrawn as a matter of course.
§ Mr. Aglionby
said, that though the committee had rejected the clause obliging persons to criminate themselves he saw no reason why they should not allow persons to criminate themselves if they thought fit, and in that case the present clause ought to be retained.
§ Sir R. Peel
said, that the vote he had given on the 26th clause was in accordance with the intimation he had made to the noble Lord the Member for the city of London. He had acquainted the noble Lord that he had great doubts as to the policy of compelling parties to criminate themselves, and as to the policy of giving a prospective indemnity to witnesses. Any one who had read an article in a late quarterly publication would derive great information from it with respect to the difference of the law in France and in England as to the obligation of parties to criminate themselves. Though truth 726 might occasionally be elicited by the practice in the former country, yet it was at the expense of great principles, and when parties were compelled to criminate themselves it became a question whether a great temptation was not held out to perjury. The article he alluded to related to the case of Madame Laffarge. He did not know what was the impression of the committee in rejecting the 26th clause, but it was his impression that he was deciding on both clauses, the 26th and 27th. If the hon. Member thought otherwise, it was undoubtedly competent to him to take the sense of the House on the 27th clause. By this clause a witness, if he told the truth had an absolute right to receive an indemnity from the committee, though that witness might have been summoned not by the committee but by another party. This appeared to him a dangerous provision, and he saw no reason why it should be retained after the rejection of the 26th clause. He had told the noble Lord that he could not support him upon these two clauses, and he did not think their omission would diminish the advantage of the bill.
§ Mr. C. Buller
After what had fallen from the right hon. Baronet, could not press the 27th clause, which he considered as subsidiary to the 26th. He thought the omission of those clauses prevented the means of getting at bribery, but he hoped the vauluable clauses which had already been carried, would have a great effect in checking that corrupt practice. He further promised that this would not be the last discussion of the matter; for, if the present bill were not found efficient, another Session would not pass over without a further measure being introduced. He, therefore, proposed to withdraw the 27th clause.
§ Mr. S. Crawford
could not consent to withdraw this clause, as its omission would upset the importance of the bill. He should divide the committee for the purpose of recording his own opinion, as without this clause he considered the bill would be delusive.
§ The committee divided on the question that the clause stand part of the bill:—Ayes 28; Noes 70; Majority 42.
§ [The principle involved in this division being the same as in the preceding one, we do not repeat the names.]
§ Remainder of the bill gone through.
§ House resumed.727
§ Bill reported. Report to be further considered.