Commons Sitting of 3 April 1843

Preamble
MINUTES. BILLS. Public.—Committed. — Registration of Voters.
Private.—2°. Glasgow Marine Insurance Company; Gorbals Police; Ballochney Railway; Haddenham In-closure; Stratford and Thames Junction Railway; Cliffe cum Lund Inclosure; Walton on the Hill Rectory.
Reported.—Leeds Gas; Great Gransden Inclosure.
3a. and passed: Trentham Roads; Ipswich Docks.

THE TREATY OF WASHINGTON.
Mr. Hume wishedto know whether the rig-lit hon. Baronet would, on consideration fix a day for him to bring forward the motion of which he had given notice respecting the negotiation of the Treaty of Washington.
Sir Robert Peelreplied that he could not give the hon. Member any other assurance than those he had already given on the subject.
Lord John Russellwished to ask two questions of the right hon. Baronet with regard to the motion of the hon. Gentleman and to the treaty which had recently been entered into between this country and the United States. Before doing so, it would be necessary for him to say a few words in explanation, as the hon. Gentleman had given notice of a motion calling upon the House to express its approbation of the treaty. Now the treaty might be taken as divided into three parts—the boundary question—the mutual right of visit on the coast of Africa—and the mutual surrender of criminals. It would be desirable before the House engaged in a discussion on the subject that the construction of the treaty should be understood by the House. It appeared from the accounts recently received from America that a very different construction was put on some parts of this treaty in the United States from what was put on them in this country. The House was aware that the question of the right of mutual visit had led to much correspondence, first between his noble Friend the late Secretary for Foreign Affairs and Mr. Stevenson, and subsequently between Lord Aberdeen and Mr. Everett. This right of visit had been claimed on the part of this country by Lord Palmerston and Lord Aberdeen, and had been denied by Mr. Stevenson and
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Mr. Everett. It had been stated that before Lord Ashburton proceeded to America that Lord Aberdeen sent for him, and told him that any further communication with the United States government on the subject of the right of search would be left to that noble Lord. After the conclusion of the treaty it appeared that the government of the United States would not concede the right of visit, and referred to the eighth article of the treaty of Washington, to which they attached another meaning than the right of visit. On the first night of the session some conversation took place on this subject between his noble Friend, Lord Palmerston, and the right hon. Gentleman, in the course of which the right hon. Gentleman declared that there was no concession on the part of the Government of this country as regarded the right of visit, and that the despatch of Lord Aberdeen to Mr. Everett was the last official paper on the subject, and that in this document the right was distinctly claimed. It appeared that the statement of the right hon. Gentleman had reached America; a discussion had been carried on in the Senate, and the President had felt himself called upon to make some communication as to the treaty, which he interpreted in a different manner from the right hon. Gentleman. It appeared that the President, in answer to the address communicating the papers, among other matters gave the substance of the despatch of Lord Aberdeen. He believed that he did not give the literal despatch, but the substance of it, but in this communication of the President of the United States there was an assumption similar to that which he had made before. He said that they could not call upon the Government of her Majesty to make any distinct explanation of their views as to the right of search, nor was the Government of the United States to be called upon for further explanation, but that the meaning of the whole article of the treaty was a tacit abandonment of the right of visit. He would, however, read the passage in the President's message, to see whether it would bear the construction put upon the article:—
"The principles laid down in Lord Aberdeen's despatches, and the assurances of indemnity therein held out, although the utmost reliance was placed on the good faith of the British Government, were not regarded by the executive as a sufficient security against the abuses which Lord Aberdeen admitted

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might arise in even the most cautious and moderate exercise of their new maritime police; and therefore, in my message at the opening of the last session, I set forth the views entertained by the executive on this subject, and substantially affirmed both our inclination and ability to enforce our own laws, protest our flag from abuse, and acquit ourselves of all our duties and obligations on the high seas. In view of these assertions, the treaty of Washington was negotiated, and upon consultation with the British negotiator as to the quantum of force necessary to be employed in order to attain these objects, the result to which the mast deliberate estimate led was embodied in the eighth article of the treaty. Such were my views at the time of negotiating that treaty, and such, in ray opinion, is its plain and fair interpretation. I regarded the eighth article a; removing all possible pretext, on the ground of mere necessity, to visit and detain our ships upon the African coast because of any alleged abuse of our flag by slave traders of other nations. We had taken upon ourselves the burthen of preventing any such abuse, by stipulating to furnish an armed force regarded by both the high contracting parties as sufficient to accomplish that object."
He would not read that part of the message which referred to the naval force of the United States, but would proceed to the concluding paragraph, which ran thus —
"The purpose of this Government is faith-fully to fulfil the treaty on its part, and it will not permit itself to doubt that Great Britain will comply with on hers. In this way, peace will best be Preserved, and the most amicable relations maintained between the two countries."
It appeared, then, according to the various statements which they had hitherto had laid before them, that there was the greatest difference of interpretation between the two Governments as to the eighth article—a very essential one. What he wanted, therefore, to ask the right hon. Baronet, in the first place, was, whether he was willing to communicate to the House that despatch of Lord Aberdeen which had lately been under the consideration of the government of the United States, and also any official despatch from Mr.Fox, containing the two messages of the President to Congress, subsequently to the Treaty of Washington; and in the second place, he wished to ask the right hon. Baronet whether he had any objection to communicate to the House any instructions given to Lord Ashburton, or any correspondence which might have taken are between Lord Ashburton and Mr. Webster while the noble Lord was in
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America, with reference to this part of the treaty? Correspondence had been laid on the Table of the House with reference, he believed, to all the other main pints of the negotiations between the two governments; but there was an entire blank with reference to this article. He could not but suppose, even though no other instructions to that effect had been given, that there was in existence some despatch in which Lord Ashburton gave the Government some information as to the conversations he must necessarily have had with the Secretary of the United States, and as to the interpretation which was put by that functionary upon the articles to which they mutually agreed. He had asked these questions that evening, without the usual notice, because he considered, that as the hon. Member for Montrose's motion on the subject stood for an early day, it was important that before that motion came under discussion, the House should know what was the construction of the article to which her Majesty's Government adhered.
Sir R. Peelsaid, that the despatches from Mr. Fox had only reached London that morning, and he had not received them till a very advanced period of the day, having been attending her Majesty in council, and very possibly, therefore, his answer might not be so complete as it otherwise might have been had he had more time to read the despatches, but, as it was, he thought he should be able to give an answer sufficient in substance to serve the purpose for which the noble Lord had put his question. He found, in the despatches from Mr. Fox, the last message of the President of the United States, delivered at the latter end pf the month of February, 1843, to which the noble Lord had referred. There was also appended to that despatch a communication from Mr. Webster to the President of the United States, reciting, and faithfully reciting, the purport of the communication addressed by Lord Aberdeen to Mr. Fox, to be read to Mr. Webster, and which was written after the first message—the annual message—of the President of the United States. Of course he should have no difficulty whatever in laying upon the Table of the House extracts from the official despatch of Mr. Fox, containing the last message of the President, to which the noble Lord had referred, and also that communication of Mr. Webster which gave the substance

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of the communication made by Lord Aberdeen to Mr. Fox, commenting on the annual message. He would take care that the substance of those communications should be laid on the Table of the House at the earliest possible period. The noble Lord had further inquired with respect to the instructions given by Lord Aberdeen to Lord Ashburton upon the subject of what was called the right of visit, as distinguished from the right of search, namely, the right of any maritime nation, where there is bona fide suspicion of piracy, to visit a vessel for the purpose of determining whether or not the flag she carries is the one she has a right to exhibit. He proposed to lay on the Table of the House the despatch from Lord Aberdeen to Mr. Everett, which had not been officially communicated to the House, written December 20, 1841, which contained the principles by which her Majesty's Government were guided on that subject. From those principles her Majesty's Government had never departed. They had given no instructions to Lord Ashburton sanctioning him in any departure from the principles contained in that despatch of December 20, 1841, after Mr. Stevenson had left England. No instructions at all on the subject had been given to Lord Ashburton, the Government considering that despatch to contain, in the clearest and most conclusive manner, their views on the subject, and the principles to which they meant to adhere. He had stated in the early part of the Session that that despatch bad remained without answer, and, as he was told, he had said also without an acknowledgment. If he had said that it had remained without acknowledgment, he was wrong. There had been an acknowledgment on the receipt of the despatch by Mr. Everett, and the promise of an answer at a future period. He would lay on the Table of the House the communication received from Mr. Everett, in reply to the despatch of Lord Aberdeen. He was not aware whether there were any other documents which it was desired that he should produce; if there were, and they could be produced without prejudice to the public service, he should have no objection to their production. As he had said before, Lord Ashburton had no authority whatever to treat on the subject of the right of visit, the Government considering the despatch to which he had referred as definitively settling that question. The
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noble Lord opposite had referred to the message of the President of the United States. He thought it would have been better to have abstained altogether from any comments upon that message until the subject came regularly before the House; but, as he thought it possible that the extracts which the noble Lord had read might produce an unfavourable impression, he would beg leave to read two other passages from the same document, which he conceived might have the effect of counteracting any such unfavourable impression. In the earlier part of his message, the President said:—
"To seize and detain a ship upon suspicion of piracy, with probable cause and in good faith, affords no just grounds either for complaint on the part of the nation whose flag she bears, or claim of indemnity on the part of the owner. The universal law sanctions, and the common good requires, the existence of such a rule. The right, under such circumstances, not only to visit and detain, but to search a ship, is a perfect right, and involves neither responsibility nor indemnity. But, with this single exception, no nation has, in time of peace, any authority to detain the ships of another upon the high seas, on any pretext whatever, beyond the territorial jurisdiction. And such, I am happy to find, is substantially the doctrine of Great Britain herself, in her most recent official declarations, and even those now communicated to this House. These declarations may well lead us to doubt whether the apparent difficulty between the two Governments is not rather one of definition than of principle. Not only is the right of search, properly so called, disclaimed by Great Britain, but even that of a mere visit and inquiry is asserted with qualifications inconsistent with the idea of a perfect right."
He would not make any comment upon this passage, further than that he thought it was calculated to allay any apprehensions which might else have arisen from the extracts which the noble Lord had read. In addition to what he had now said, he begged to state that the bill for the adjudication of the Oregon territory, which had passed the Senate, and the passing of which was alluded to as a matter of great importance in the late debate, had not passed the legislature. A motion discountenancing the passing of the bill had been introduced, and the House separated on that motion. He might also state that another bill had been passed, enabling the executive government of the United States to give full effect to the treaty of Washington. He had no objection that the

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documents moved for should be laid on the Table of the House.

MAIL-COACHCONTRACT. (IRELAND.)
Mr. Rossbegged to ask the noble Lord the Secretary for Ireland whether it were true that a new contract had been taken for the supply of mail coaches in Ireland, to the exclusion of Mr. Purcell, the gentleman who had fulfilled this contract for the last ten years?
Lord Eliotsaid, that such was the case. The contract being about to expire, the Post-office authorities had given notice in the usual terms that they were ready to receive tenders from persons desirous of taking the contract for the next year. Three tenders were sent in; one by Mr. Purcell, the present contractor, proposing to contract again on the existing terms; one from Messrs. Wright and Williams, of London, who proposed to contract on lower terms than Mr. Purcell; and a third from Mr. Croal, of Glasgow, who proposed terms considerably lower than Mr. Purcell's, and by which in fact, a very large sum per annum would be saved to the public; in fact, no less than 2,000 l. a-year, or nearly 10,000 l. upon the whole duration of the contract, without any deterioration of the service. When Mr. Purcell was told that these parties had undertaken the contract on terms lower than his own,, he then proposed to execute the contract on the lowest terms offered, but the Government thought it would not be justice to the other party, who had in the first instance proposed the lowest contract, to take the contract away from him and give it to Mr. Purcell. The Postmaster-general, he thought had taken the only course which in fairness he could take, namely, to give the contract to the person who in the first instance had put in the lowest tender, according to the terms of the Government proposal, and that gentleman was Mr. Croal.
Mr. Rosssaid Mr. Purcell put in his tender exactly in conformity to the advertisement, whereas Mr. Croal and Messrs. Wright and Williams, of London, though they put in tenders, both lower in price than Mr. Purcell, accompanied their tenders with a condition that the Postmaster-general was to allow an extended time for the supply of the necessary number of new coaches, and that they should be permitted to work old coaches for some months, until the new ones could be fur-
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nished; a condition which Mr. Purcell did not make. Mr. Purcell conceived that any tender accompanied by conditions could not and should not have been received or entertained; and that the only legal and proper tender offered was his own. After his tender was received, Mr. Croal still adhered to the condition which accompanied it. Mr. Purcell considered he was entitled to the same permission to amend his proposals, which certainly would have been different had he been aware that the Post-office did not intend to adhere to its own printed conditions.
Captain Bernalasked why, in the present instance, the usual notice for tenders had not been given. The contract expired on the 28th May next, but no notice was issued by the Postmaster-general until the 22d February, though six months notice was the proper notice to give in these cases.
Lord Eliotsaid, he would ask the Postmaster-general this question, if it were desired, but as he was not connected with that department he could not himself answer it.

REGISTRATION OF VOTERS.
On the Order of the Day for going into committee on the Registration of Voters Bill being read,
Lord John Russellsaid, that before the bill was recommitted, he wished to say a few words as to a most important alteration which had been made in it while it was passing through the House pro forma, after having gone through a committee. According to the bill as it was originally framed, a certain tribunal was appointed for deciding upon points at law which might arise; but there remained a power which was confined to the House by the Reform Bill, and which formed one of the most valuable privileges of the representatives of the people—that of possessing the right of final judgment as to the exercise of the elective franchise. This was a power which the House had always asserted and maintained, but which it was now proposed to abandon. The change of which he complained was this, that all questions as to matters of law which might arise were to be decided by the Court of Common Pleas, the decision of which court was to be final to all intents and purposes, overruling the decisions of the House of Commons. Now this was a complete surrender by the House of a right which for centuries it had asserted and maintained—-a right which

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was one of the chief foundations of the liberty of the subject. It might be wise, perhaps, in the opinion of some hon. Gentlemen to make this alteration—it might be the pleasure of the House that the alteration should remain; but, at all events, it seemed to him that a committee, pro farmâ, was not the place or manner in which so important an alteration should have been made. Had there been such a provision as this in the original bill, he should certainly have felt it his duty to have voted against the second reading of the measure in the first instance, strongly impressed as he was with the absolute necessity of their retaining this valuable right, which they had so long maintained. He considered it a most dangerous precedent that such important alterations should be made in a measure in a committee, pro formâ, after the bill had been duly considered by the House in committee. It was to be borne in mind that courts of law were generally guided by very technical rules in their decisions, and that the effect of these rules generally was to narrow the franchise. In the case of questions affecting corporations, which were submitted to courts of law, it was always found that where the terms "commonalty" and "community" were made use of before them, the courts always construed the term in the limited sense of some twelve particular persons, and in the same way would the courts of law, if they had the final decision in points of law relating to elections, narrow the elective rights and franchises of the people. What he should apprehend was, that if they gave this right to the courts of law, without the power of final revision, they would find in the course of time that the 10 l. householders' rights, the rights of the freeholders, and other franchises, would be narrowed by the technical rules of interpretation which would be acted upon by the courts. It had always been the maxim of that House that in questions of doubt the decision should be given in favour of the franchise, but the alteration which had been made would entirely overrule this maxim. He begged, therefore, to ask the hon. Gentleman whether it was his intention to adhere to the new clauses, especially clause G, which, uncalled for, and unwarranted by anything in the preamble of the bill, would operate as an entire reversal of the Reform Act, a complete repeal of that act as far as this matter was concerned.
Sir James Grahamhad, on the former
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occasion, deeply regretted the absence of the noble Lord, because, notwithstanding any differences that might exist between himself and the noble Lord as to general matters of policy, in questions touching the rights of electors, the regulation of the franchise, and all the proceedings connected with the privileges of that House, he considered the opinion of the noble Lord to be of the highest importance. The noble Lord, however, was quite wrong, when he said, that this change was made in a committee, pro formâ: it was made during the progress of the bill, in a committee regularly considering its clauses. The House would do him the justice to remember, that in the first instance he had been prepared to take the bill as it originally stood; it was from the other side of the House, that the suggestion proceeded, which he, upon consideration, saw reason to adopt, that instead of a tribunal composed of three barristers, as was proposed in the first instance, the points of law should be referred to one of the courts at Westminster. The House would bear in mind, he also thought, that on both sides of the House, after discussion, the general opinion was in favour of making this alteration; and he (Sir J. Graham) had yielded to what he considered to be the wish of the great body of the House. On the present occasion, instead of going through the clauses on the report, he had moved, that the bill should be re-committed, so that the House might now, if they thought proper, go through the clauses seriatim, exactly as though the bill had never been committed. The clauses to which the noble Lord referred, and more especially the clause G, which rendered the decision of the court of law, on matters of law brought before it, conclusive, he himself (Sir J. Graham) should be disposed to retain; but it would be open to the noble Lord, or any other hon. Member, to move the rejection or modification of those clauses. He must say, however, he was somewhat surprised to hear the noble Lord objecting to the principle of this clause; because, when he was considering the matter before, he had in his mind what occurred as to the Irish Registration Bill, when this very principle came under discussion, and when, if his memory did not altogether fail him, the noble Lord, with reference to Irish registration, did propose that the register should be final, and that appeals as to the right of voting, should be referred to the

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judge of assize on circuit. It was somewhat extraordinary) that the noble Lord, so jealous of entrusting decisions here to one of the superior courts of Law at Westminster, should have been so ready to commit that large power in Ireland to a single judge at assize on circuit. He (Sir James Graham) did not go so far; he gave it to one of the superior courts at Westminster; but the principle was the same which had received the sanction of the noble Lord as to Ireland. He did not think it necessary, at that stage of the proceedings, to go" further into the matter. He hoped the House would go into committee on the bill, notwithstanding the preliminary objection of the noble Lord; they could then consider the clauses seriatim, including those which introduced the new tribunal; and the noble Lord, or any other Gentleman, might then bring forward any objections, whether to the details or the principle. As for himself, as at present advised, he did not see anything dangerous or unconstitutional in the proposition that appeals, as to matters of law —for the appeals were to be strictly confined to matters of law, and not to include matters of fact or evidence—should be referred to one of the superior courts at Westminster, or that when the opinion of such court was pronounced, the decision should be final.
Sir George Grey, having been present in the committee refered to, begged to say a few words. There certainly had been stated a strong objection on his side of the House to the appellate court proposed in the original bill, of three barristers of a certain standing. It was considered that the barristers, perhaps, might not carry much weight in their decisions; certainly not so much as that which would be attached to the decisions of judges; and it was proposed that all appeals as to matters of law should be referred to judges of assize. This was also objected to; and it was then proposed, also by an hon. Gentleman on his own side of the House that the appeals should be made to one of the courts at Westminster to which the right hon. Baronet was inclined to assent, and which appeared, upon discussion, to be the general opinion of the House. As to the making the decisions of this court final and conclusive as to committees of this House, however, that had been objected to; and he certainly considered that this very important part of the ques-
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tion had, by general consent, been left open for future consideration.
House in committee on the bill.
On clause 28,
Mr. Humewished to know whether the whole number of 85 barristers must be appointed, or whether the judge would use his discretion and appoint a smaller number.
Sir James Grahamsaid, the words were "not a greater number than 85," so that the judges might appoint a smaller number if they thought necessary, but he had no hope that such would be the case, for at present the number was 160, and the bill reduced it one-half.
Mr. B. Dennisonwished to know whether the judge would appoint one barrister only to revise one district or riding?
Sir James Grahamsaid the judges would appoint the barristers to districts or ridings as they saw proper.
Mr. B. Dennisonwas interested in the question, because it was not possible for one barrister to go through the revision of the West Riding of Yorkshire. He however, did not ask for three barristers, but only two, who might be employed for thirty-four days. It was not possible to complete the revision in twenty-five days. At the same time if they had more than one barrister in a district, there might be in that district conflicting decisions. He wished for two barristers, and that the judge, if an exception could be made, should be forced to divide the West Riding and that each of them should be employed thirty-four days, though the 200 l. for each would, perhaps, then be an inadequate consideration.
Sir James Grahamsaid, that by the 29th clause, the judge had power to divide the districts; but that was a power which was used exceedingly sparingly. With respect to the remuneration, a portion of it was allowed for travelling expenses, and could be found sufficient if the barrister remained a greater number of days stationary.
On clause 40, empowering revising barristers to expunge names of persons misdescribed, with a proviso to allow the claimants to correct the mistake,
Mr. Aglionbyproposed to add the words "upon proof that a notice of the objection aforesaid shall have been given." The hon. Member said that his object was to prevent bonâ fide claimants, who might be objected to when they were not

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present, on account of a misdescription, being struck off the list.
Sir James Graham said,that the point which the hon. Gentleman had raised was a new one, and it was the first time he had heard of it. There had been no notice of the amendment, but ho was quite willing to consider it, and state what course he should pursue at a future stage.
Mr. Aglionby said,he would leave the matter in the hands of the right hon. Baronet.
Amendment withdrawn.
On clause 44, line 14,
Mr. Gaily Knightproposed the omission of the penalty of 20s. for the purpose of inserting 40 s.
Sir J. Grahamremarked that the proposition had been already negatived by a large division.
Lord J. Russellremarked that 20 s. would be amply sufficient where the person was objected to for the first time, but a great hardship was imposed on a person whose name was on the register, and yet constantly objected to. There ought to be a distinction made between the two cases.
Sir J. Grahamwas of opinion that the greatest abuses would be found most frequently to occur in making the first claims, and putting the first objections.
The committee divided on the question that the word Twenty stand part of the clause:—Ayes 113; Noes 30: Majority 83.

List of the AYES.

Aglionby, H. A.

Douglas, Sir C. E.

Bailey, J.

Duncan, Visct.

Baring, rt. hn. F. T.

Duncombe, hon. A.

Baskerville, T. B. M.

Egerton, Sir P.

Bentinck, Lord G.

Eliot, Lord

Bernard, Visct.

Elphinstone, H.

Borthwick, P.

Estcourt, T. G. B.

Botfield, B.

Fielden, J.

Bowring, Dr.

Ferguson, Col.

Brotherton, J.

Filmer, Sir E.

Browne, hon. W.

Fitzroy, Lord C.

Bruce, Lord E.

Fleetwood, Sir P. H.

Buckley, E.

Flower, Sir J.

Busfield, W.

Follett, Sir W. W.

Cavendish, hn. G. H,

Forster, M.

Chetwode, Sir J.

Gaskell, J. Milnes

Clerk, Sir G.

Gill, T.

Clive, E. B.

Gladstone, rt. hn. W.E.

Colebrooke, Sir T. E.

Gordon, hn. Capt.

Corry, rt. hn. H.

Goulbourn, rt. hn. H.

Crawford, W. S.

Graham, rt. hn. Sir J.

Dalmeny, Lord

Grey, rt. hn. Sir G.

Darby, G.

Hall, Sir B.

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Hamilton, W. J.

Praed, W. T.

Hawes, B.

Pringle, A.

Heneage, E.

Pusey, P.

Hervey, Lord A.

Rice, E. R.

Hodgson, F.

Roebuck, J. A.

Hodgson, R.

Rose, rt. hn. Sir G.

Hope, hon. C.

Round, J.

Horsman, E.

Russell, Lord J.

Howard, hn. C. W. G.

Shaw, rt. hn. F.

Hughes, W. B.

Smith, rt. hn. T. B. C.

Hume, J.

Stanley, Lord

Hutt, W.

Stewart, J.

Irton, S.

Strickland, Sir G.

Jermyn, Earl

Strutt, E.

Johnstone, H.

Sutton, hn. H. M.

Jolliffe, Sir W. G. H.

Tancred, H. W.

Kemble, H.

Tennent, J. E.

Knatchbull, rt. hn. Sir E.

Thornley, T.

Lascelles, hn. W. S.

Trelawney, J. S.

Leicester, Earl of

Trench, Sir F. W.

Lincoln, Earl of

Tufnell, H.

Lockhart, W.

Vane, Lord H.

Lygon, hon. Gen.

Villiers, hon. C.

Mahon. Visct.

Wawn, J. T.

Martin, J.

White, S.

Martin, C. W.

Williams, W.

Marton, G.

Wood, Col.

Maxwell, hn. J. P.

Wood, Col. T.

Morris, D.

Wood, G. W.

Morrison, J.

Worsley, Lord.

Peel, rt. hn. Sir R.

Wyndham, Col. C.

Peel, J.

Young, J.

Philips, G. R.

TELLERS.

Philips, M.

Fremantle, Sir T.

Pollock, Sir F.

Baring, H.

List of the NOES.

Ackers, J.

Hatton, Capt. V.

Aldam, W.

Hussey, T.

Arbuthnott, hn. H.

Lawson, A.

Arkwright, G.

Mc.Geachy, F. A,

Bowes, J.

Mainwaring, T.

Broadley, H.

Marsham, Visct.

Christopher, R. A.

Master, T. W. C.

Colvile, C. R.

Mitchell, T. A.

Cripps, W.

Mundy, E. M.

Dick, Q.

Neville, R.

Dickinson, F. H.

Norreys, Sir D. J.

Fitzroy, hn. H.

Sibthorpe, Col.

Forester, hn. G. C. W.

Trollope, Sir J.

Gladstone, Capt.

Glynne, Sir S. R.

TELLERS.

Greenall, P.

Knight, H. G.

Hardy, J.

Turner, E.

Clause agreed to.
On clause 57, relating to the remuneration of revising barristers, being put,
Mr. Aglionbymentioned, that he had been requested to state that the remuneration proposed was thought by many gentlemen at the bar to be inadequate, as the twenty-five days would, in many cases, be insufficient for the business to be transacted,
Sir J. Grahamobserved that it was dif-

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ficult properly to fix the rates of remuneration, but that a careful consideration of the subject, joined to the advice which he had sought for and obtained from those most qualified to give an opinion on the subject, induced him to consider the proposition before the committee as, on the whole, a reasonable one.
Clause agreed to.
On clause 58, appeals to be heard by the Court of Common Pleas,
Lord John Russellthought the committee should consider that, and several of the following clauses with reference to that clause, not only constituting the Court of Common Pleas the Court of Appeal, but of making the decisions of that court binding on committees of the House of Commons. He thought that it must be allowed that this was a question of great magnitude and importance. Ever since the House of Commons had existed, at first through struggle and difficulty—afterwards more calmly and without dispute—it had asserted that the final decision on questions of this nature, the power of deciding upon the election of Members of Parliament rested in itself. He was not then going to enter fully into the arguments which might be brought forward upon the subject; but would it not be wise—now that they were going to appoint a new court of appeal, such as had not before existed, and to endow that court with certain powers—would it not be wise not to completely part with the power of the House of Commons over the election of its own Members. He had objections to entrusting judges with that power. They could not very well assert, from any knowledge they had upon the subject, that these judges were infallible, and they could not deny that it was possible but that these judges might also take a greater interest and a more conspicuous part in political proceedings than they had hitherto done. That of itself would be a great misfortune, if, instead of judges looked up to by all as unconnected with politics, they should have to combine their names with the triumph of one political party, and the defeat of another- If they were to have one political party rejoicing, in the decision of the Court of Common Pleas—and another party angry and mortified, attributing that decision to improper motives—that of itself, he repeated, would be a very great misfortune;
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and should there be any reality in these suspicions, in that fact there would be a great additional calamity. They had hitherto, and during a long course of time resisted any interference of the judges with questions of this nature. They had supposed that unless the House of Commons reserved the ultimate power in their hands, that there was very great danger that the courts of law would come to have the superior and supreme authority, and that the power of the House of Commons of deciding upon all questions of the kind would be narrowed and limited by a power, controlling the franchise of the electors. Then there was the objection which he had stated in the former part of the evening, that according to all which he had ever read on subjects of this kind, it was the natural tendency of courts of law, supposing them totally unbiassed, totally unprejudiced, to construe the statutes and acts of Parliament very strictly, and consequently, in questions of franchise, to give opinions in favour of that which narrowed and confined the elective franchise, rather than by a more enlarged interpretation to give any advantage to the general—extension he could hardly say—but the general enjoyment of the franchise. Now, supposing that there was any foundation for these notions—if they altered the law which had stood for 150 years—without much consideration—with hardly any discussion—and if they found that these evils were to arise, and wished to get back the authority with which they had parted, he would ask them whether they would be enabled to do so? They would find it entirely out of their power. It would be necessary for them, as a first step towards regaining this power, to have the consent of the House of Lords to make any change, and they might rest tolerably certain that that body would not be favourable to any change that would restore power once given up to the House of Commons. He did not wish to oppose the first clauses, by which the Court of Common Pleas was constituted an appellate court. He would rather have supported a tribunal, the Members of which were to be appointed by a responsible Minister; and he thought it was a misfortune that they had ever given power of this kind—as contained in former clauses—to judges of law courts. But admitting that the Court of Common

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Pleas was to be the tribunal, and was to decide upon cases of this nature—would there be any mischief in waiting for a few years and seeing whether any actual evil was produced by this change in the law? Supposing that they found the working of this act unobjectionable, and that the fears which had been expressed upon the subject were chimerical, they could then part with the ancient power of the House; but if, on the contrary, they found these evils had really arisen, it would be in their power to make some alteration. It would be so, because they would have reserved to the committees of the House of Commons the power of finally judging in questions of the nature under consideration. It had been said to-night, that with respect to Ireland he had been content to give to the judge of assize the power of ultimate appeal; but that case stood on a quite different footing from the case in respect to England. He would not oppose the present clause, but if the right hon. Gentleman opposite should think it necessary to persist in clause G, he should take the sense of the committee upon it. The right hon. Member for Devonport had stated that, although the former clauses had been discussed, the question as to the decision of the Court of Common Pleas being final had not been discussed during the time that the House was in committee upon this bill. He would wish Government to consider what would be the case of a Lord Chief Justice of the Court of Common Pleas being liable to imputation on the account of a decision in his court. Many might look to the high character of the present Lord Chief Justice, and, relying on his impartiality, might be disposed to grant to him the power in question; but that was not the spirit in which they must make laws to last for future times. They might have a Lord Chief Justice hereafter who would take a warm part in political disputes—who might give decisions which would render him liable to imputations of being a warm and violent political partisan—and they would thus not only endanger the constitution, but throw a taint upon the administration of justice. He hoped that the Government would not insist upon the objectionable clause.
Sir James Grahamsaid, that after what had passed in the former part of the evening, he was unwilling to press the subject
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at any length on the attention of the committee; and, after what had fallen from the noble Lord, he thought, that it would be expedient to postpone the discussion until they came to the clause which made the decision of a court of law upon a matter of law final. He agreed with the noble Lord, that the question was of the utmost importance, and he also agreed with him, that it would be most unsafe were reliance to be placed on the constant presence of such judges as the Lord Chief Justice, who now presided over the Court of Common Pleas. This measure would be indefensible, unless the House was prepared to entrust this limited power—limited to a greater extent than the noble Lord supposed—for all future time to the Court of Common Pleas, constituted according to the ordinary chances of such tribunals, and without any reference to the character of the judges who now constituted that court. It appeared to him, that the noble Lord had misunderstood the power which was to be conferred on this tribunal, and had spoken of it as if the House was about to arm the Court of Common Pleas with a power which could influence the position of parties in the State. But this he (Sir J. Graham) altogether denied. The question of whether the return was valid or not was not to be sent up to the Court of Law. The cases sent up were not to touch matters of fact; for questions of fact were to be carefully excepted from all appeal to this tribunal. All questions of evidence which had come before the revising barrister, would also be carefully excluded from this tribunal. The power of appeal from the revising barrister was to be limited to an appeal on matters of law. The case would be stated by the revising barrister himself; it would be an A.B. case, and would be transferred, as a mere question of law, to the decision of the judges. He (Sir J. Graham) was not disposed to forestall the discussion of the question, but he had a strong opinion that the decision of the courts of law ought to be final and binding. The noble Lord had stated, that if the House were to part with its jurisdiction, it could on no future occasion regain it; but he (Sir J. Graham) was not so well satisfied with the experience they had had of its exercise of its jurisdiction in matters of this kind to make him very anxious to retain it. On the whole, limited as was the proposed jurisdiction,

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he thought, that it might be safely transferred to the legal tribunal. The noble Lord had said, that lawyers were disposed to put a strained, harsh, and strict construction on the statutes, and in a manner adverse to liberty and popular rights. He (Sir J. Graham) did not know where the noble Lord had found that doctrine, but he believed, that the liberties of the country awed much to the bold decisions of judges in difficult times. Even at the present time popular rights were not left undefended by the judges in Westminster-hall, and he did think the doctrine was overstrained which would exclude judges from exercising these functions in cases where political considerations were involved. He (Sir J. Graham) thought that the noble Lord's apprehensions with respect to this transfer of power to this tribunal were to a great extent unfounded. He contended that all the great rights and liberties enjoyed by any member of the community, must, in one shape or another, come under the purview and jurisdiction of the Courts of Law—for instance, a question involving the law of libel could not come before one of the Courts of Westminster, without more or less exciting popular feeling. [Lord J. Russell—But there would be the intervention of a jury in cases of that kind.] He knew that there would be the intervention of a jury in such cases, bat according to Mr. Fox's Act the judge was bound to state to the jury the law applicable to the case, according to the best of his judgment. He could not imagine why the noble Lord should entertain such a jealousy of giving to the judges the power of deciding in the way now proposed. He saw opposite the hon. Gentleman; the Member for Leith (Mr. Rutherford) who, under the late Government had held a high situation connected with the administration of the law in Scotland. That hon. Gentleman knew that according to the present law in Scotland appeals from the revising barrister in the counties of Scotland were made to a tribunal composed of three sheriffs—three lawyers, gentlemen who he (Sir J. Graham) believed were more likely to mingle in party and political matters than the judges to whom it was now proposed to give this power. But passing from Scotland to Ireland, he must any that the answer which the noble Lord had made to the observations which had fallen from him (Sir J. Graham) relative to the Appeal to the judges of assize
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in the latter country, was altogether insufficient. The noble Lord said that he had some difficulty in giving the appeal to the Irish judges; but he (Sir J. Graham) would ask, was the appeal to the judges la Ireland strictly limited to the matters of law? No such thing. The appeal from the revising barrister in Ireland to the judge of the assize might open up every fact and every particular of the original case as it first came before the Revising Barristers' Court. But notwithstanding that the appeal in Ireland was open to matters of fact and evidence, and not confined, as it was here, to matters of law; the noble Lord felt such confidence in the Irish judges on circuit that he had no hesitation to give them that power, whilst he was unwilling to entrust a far more limited power to the judges of one of her Majesty's Courts at Westminster, sitting in the presence of the assembled bar of England. The noble Lord said that he would prefer to have the decision of the revising barrister reviewed by a separate appellate tribunal. He (Sir J. Graham) agreed in that, but the great difficulty he felt was as to the party who should nominate that appellate tribunal? He had a great objection to imposing that duty on the Speaker, for he thought it would destroy the efficiency of the Speaker's office, and be quite fatal to anything like comfort in the discharge of the duties which that right hon. Gentleman had to perform. The noble Lord said that he would prefer to have a tribunal appointed by the responsible minister. But supposing that he (Sir J. Graham) had come down to the House and proposed on his responsibility, as a minister of the Crown, to nominate a permanent tribunal—for a tribunal of this kind to be efficacious, must not be appointed from day to day, but to give it authority, it must possess a permanent character—well, then, supposing that he (Sir J. Graham) had had the presumption to come down to the House and make such a proposition on the part of her Majesty's Government, he was sure that such a proposition would have been scouted by the House. He had at first proposed that the judges in Westminster Hall should nominate an appellate tribunal. However, he had his doubts on the subject, and adapting a suggestion which came from the other side, he came to the conclusion that it would be much more safe that this power should be exercised by the judges in the

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way now proposed, administering this appellant jurisdiction in the presence of, and under the check of, the Bar in Westminster Hall It was true that this proposition was now before the committee, under the circumstances correctly stated by the right hon. Gentleman the Member for Devonport. It was true that they had not had an opportunity of discussing this proposition on the second reading of the bill, but he considered that to be immaterial, for if in committee the clause should not be adjusted to the satisfaction of the noble Lord, it would be quite competent for him, on the third reading of the bill, to take the sense of the House upon the question. Whatever objections might be made to this clause, he felt convinced that in its practical operation it would conduce to the purity of election, the stability of the law, and the general good of the community.
Mr. Darbywas so desirous that clause G should stand part of the bill, that, if he had any reason to anticipate that it would be omitted, he would divide against the clause now before the committee. He did not wish that any collision should occur between the judges and the committee. It seemed the disposition of the House to consider the judges fallible, whilst they considered that House to be infallible. He feared, therefore, that if any collision of opinion should occur, the decision of the judges would not be treated with much respect even in matters of law. For these reasons be thought it most important that their decision should be final, and trusted that the clause would be maintained in the bill.
Mr. Rutherfordthought it would be difficult to separate the consideration of the clause more immediately before the House from that of clause G referred to by the noble Lord. In his opinion the noble Lord had not at all exaggerated the importance of the questions which, under this appeal, would come to be determined by the courts of law. It was perfectly true that there was no appeal on any question of fact, and that the appeal was to be limited to abstract points of law which might arise on a case stated by the revising barrister; but he (Mr. Rutherford) thought that these questions of law might be of a most delicate and important nature, because they might turn on questions which necessarily involved the defi-
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nition of the franchise. Supposing the question to be whether a party had a right to be put on the register or not, that question might involve a definition of the franchise, and the court of law would have to decide a question of law, which would involve the decision of a question of fact. It was proposed by this clause to withdraw from the House the overruling power it possessed, and to allow the decision of the Court of Common Pleas to be final and binding on the committee, even on a question that involved the definition of the franchise. He thought this to be a startling proposition, even though it were to be confined to one particular decision, or to one particular case. Supposing they got the decision of the Court of Common Pleas on a question that defined the franchise, was that decision to be conclusive in all parallel cases? He understood not, but only in this particular case. Supposing the same question to arise again, were the committee to take their own decision, although it be different from that of the Court of Law. He owned that he would feel very unwilling to surrender this privilege which the House of Commons possessed. The right hon. Gentleman appealed to him with respect to the practice in Scotland. He owned that he did not like to see the judges of the land mixed up at all in questions relating to the registry—questions so much involving violent political feelings, for he did not think that it contributed to strengthen their authority. He knew that many persons had an objection even to the Court of Appeal in Scotland, though the appeal was to the sheriffs, and not to the judges of the land. He had a strong feeling that one of the worst things they could do with respect to Scotland would be to have an appeal to the Scotch courts on matters relating to the franchise. The high character of the learned persons who occupied the Bench in that country left no doubt that they would administer the law with the strictest impartiality, but he would be unwilling to see them mixed up with the decision of questions which might create discontent and dissatisfaction. He was opposed to the surrender of the privilege which the House possessed, and had a great objection to place in the hands of the Court of Common Pleas the decision of questions which involved the definition of the franchise. For these reasons he

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should oppose the clause, which provided that the decision of the Court of Law should be final.
Mr. Roebuckwished to see, in the first place, a simply constituted tribunal. That end he did not conceive would be obtained by the proposition now before them, which was too complicated in its machinery. He had hoped that they would have some simple court of this description in which one judge could decide upon the appeals that came before him. Every one acquainted with the administration of justice knew that justice could not be done unless the judge was assisted by a bar. The appellate jurisdiction proposed to be given to the Court of Common Pleas would bear the same relation to the Revising Barrister's Court, as the Queen's Bench now did to the Court of Quarter Sessions. Now, let them take the decisions of the Court of Queen's Bench on appeals from the Quarter Sessions, with respect to the construction of some of the sections of the Poor-law Act. Ever since these appeals had been made, the Court of Queen's Bench had been directing its attention to the question of settlement, and their conflicting decisions had made the whole mass of the law a complication of difficulty and technicality. He would ask, was the present administration of the law so cheap and rapid, that they ought to thrust on the judges of the Law Courts a host of new cases? Was it proper to thrust on the judges of the Criminal and Civil Courts, who already were unable to get through their business, a mass of cases with which they ought to have no connection? They were at present overwhelmed with work, so much so that the law of the country was not administered by them. [Sir J. Graham: Not those of the Common Pleas.] No, it was quite true that business had been shut out from that court by the exclusive regulations adopted recently in regard to those who were admitted to practise there. But was there to be no attempt to secure a more frequent administration of justice in the country? Was it not well known that prisoners were confined far too long already? Was this a time for thrusting on the judges wholesale a mass of cases with which they had no connexion or concern? He appealed to his hon. and learned Friends the Attorney and Solicitor-General, and to all the county magistrates present, whether they
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were not at this moment considering if the exigencies of society did not require a different mode of administering criminal law, whether the fifteen judges had not now more than they could properly discharge? In the name, then, of humanity and justice he appealed to the House not for mere party purposes, not for the avoidance of political collisions, to impose on the administrators of justice such a great additional amount of business. This was really a most momentous consideration, and one from which it was impossible to escape. Lately there had been a large accession of business to the courts of law, in consequence of the quarter sessions having been deprived of a great portion of their jurisdiction, owing to their inefficiency. This was not beginning at the right end; it would have been better to commence by making the quarter sessions a competent court, and then permitting it to retain its old jurisdiction. As it was, however, the province of the superior courts was already superabundantly extensive; and at the assizes, it was now constantly found impossible to get through the criminal business without the assistance of some of the Queen's counsel or Serjeants joined in the commission; doubtless a perfectly competent, but rather unseemly assistance for the sworn judges of the Crown. The bill was an ill-digested and badly concocted project, the effect of which, if carried out, would be to destroy much that was really admirable and valuable in our administration of justice, arising out of the good feeling of the people towards the administrators of the law. It would tend to hamper and encumber the administration of justice, by adding to what was already too large an immense additional province of business which would be far better appropriated to a new court with special jurisdiction, leaving untouched what had hitherto been considered sacred—the administration of criminal justice; and not tending to deprive the country of the great advantage arising from having that justice administered quickly, economically, and with certainty.
The Attorney-Generaldid not think it necessary to follow the rather discursive observations of the hon. and learned Member respecting the impediments which it was alleged the bill would cause to the administration of justice, for the cases it might give rise to would occupy no larger space of time than the courts would afford.

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Reverting to the arguments of the noble Lord (Lord J. Russell) and the hon. and learned Member for Leith, it struck him that the main question for consideration was how they should have a tribunal, whose decisions could he relied and acted on, and which should pot decide sometimes in one way and sometimes in another. He would be the last to support any proposition which, in his opinion, should have the effect of sacrificing; or compromising the just rights and privileges of the House of Commons. But if, under the bill before them, any cases should arise that might raise a question upon their privileges, he doubted much, whether for the next one hundred and fifty years—if the Constitution lasted so long—that House would he divested of power to vindicate them, But if a decision were required on a question of law, to what tribunal would they refer except to a Law Court? Was it reasonable to suppose that the responsibility of deciding questions of law upon the construction of statutes could be properly referred to committees of that House, rather than to the Judges? Before the Reform BUI, was not the Court of King's Bench in the habit of entertaining the very questions embraced by the clauses? On this point, he would refer to his hon. and learned Friend near him. The court could not determine in what bodies of persons the right of election lay. That question was to be decided by the committees of the House. But after the latter had determined upon the constitution of the corporation—whether the freemen, the members of the corporation, or what other parties were entitled to vote-when the committee had so decided, the court of law stepped in and decided what individuals were members of the bodies so en-titled. And if, by a mandamus of the court, a Corporation was compelled to admit the name of A B to the privileges, he very much doubted whether the election committee would not be obliged to admit the vote. Cases of this kind, which continually came before the court, might possibly outweigh in importance those which it would decide upon under the present bill, The noble Lord, the Member for London, said, do not refer these cases to a court of law, or, if you do, do not make the court's decision finally binding, Now, he agreed with the hop. Member who had expressed an opinion that if clause G did not stand part of the bill, they had better not have clauses A, B, C, D, E, or F; for
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if the decision of the court was not binding, reference should not be made to it. What could be more inconvenient than to refer to a law court the decision on a question of |aw, and then let its decision be overruled? Take a case where the question to be decided was on a point of law—whether, for instance, a life interest constituted a freehold estate or not? If, as the noble Lord suggested, the court's decision on points like these were not final, would that be the way to obtain uniformity of practice and opinion? If, after the determination arrived at by the court, the matter came before the election committee, and the latter came to a contrary decision, some subsequent committee, on a question of the same kind, might say we feel ourselves safer in abiding by the opinion of the Court of Common Pleas, than in following that of a former committee. Thus one committee would be deciding differently from another, and would that be the way to gain uniformity, or receive respect for the course of justice? For the dignity and character both of the courts and of the House, the proper course was to delegate to lawyers the decision of questions purely relating to law. The noble Lord, in alluding to the legal profession, appeared to think, that the members of that profession were not disposed to favour the full exercise of the principles of liberty, and the enlightened views that actuated the statesman. But he (the Attorney-General) must take leave to say, on behalf of the members of that profession, that the battles of the Constitution had been fought as frequently and undauntedly in the courts of law as in that House. At a period when the House was too impotent to effect such objects, the country was largely indebted to the courts of law. The extinction of slavery, under the name of villeinage, was accomplished by a series of legal decisions, under the direction of able and learned men, which led to the establishment of the happy Constitution that could not be endangered by the operation of these clauses.
Lord John Russellsaid, the hon. and learned Gentleman had in some degree misapprehended his meaning. The hon. and learned Gentleman argued as if he (Lord J. Russell) wished to see the election committees of that House overruling and altering the decisions of the court. Now what he desired was, that the questions should be referred to a separate tribunal. But he said, if the House wished to try the experiment of referring these

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cases to the Court of Common Pleas, do not make its decision final. If, however, the hon. and learned Gentleman were determined to persist in this course, and to make this immense change in the constitution, the best course for him (Lord J. Russsell) would be to divide against the first clause, and afterwards take the opinion of the committee on the clause providing that the decision of the court should be final and conclusive.
Mr. Hardycontended, that the operation of the 68th clause removed any reason for apprehending inconvenience through vexatious appeals to the court. He did not wish that jurisdiction should be taken from the committees upon matters fairly within their cognisance, but questions of law ought to be referred to lawyers.
Mr. C. Bullerhad the unhappiness to differ from what he supposed was the popular side of the question—the opposition to the jurisdiction of election committees. He believed, that by the alteration effected in the last measure, so much had been done, and that by some easy alterations in that amendment so much could be done, towards rendering those committees good tribunals ["Oh, oh,"] "always let a man finish his sentence," that he believed, bad as they might be thought, they formed—or would formߞthe best tribunals for the objects in view. He would warn the House not to abandon the decision of questions relating to the franchise, and leave it in the hands of the courts of law. If anything could operate as a warning on this point, it would be the decisions of the courts of law on corporation questions before the reform of the corporations, and the effect of those decisions on the character of the courts. Every one who had been accustomed to attend the courts of justice during the trial of such cases, must have heard the remarks that used to be made; counsel, witnesses, and every one concerned on either side, were accustomed to speculate freely on the known political inclinations of the judge who tried the case. But if the House determined to bring in the Court of Common Pleas to decide parts of these questions, why not bring it in altogether? Why leave the decision (as practically it was left by the bill) in the Court of Common Pleas and the committees of the House of Commons jointly? Doubtless, the decisions of the Court of
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Common Pleas would be respected by the country, but then their decisions would only have the effect of disparaging those of the committees of the House of Commons. The right hon. Gentleman said, the decisions of the Court of Common Pleas should be final on points of law. How was it meant that their decisions should be respected by committees? How were they to be enforced? By clause 94 the whole of their old power was left to the committees, and by that clause, therefore, power would be left in their hands of upsetting, indirectly at least, the decisions of the judges, and frustrating the intentions of the House in giving this power to the Court of Common Pleas. Committees were accustomed to decide in a rough manner, on what hon. Members called principles of common sense. It should be remembered they had no pleadings before them to bring the questions to determinate and precise issues. Hon. Members said on such occasions—" Serjeant Thingamy has cited a number of cases on one side, and Mr. Austen has cited just as many on the other, but we care nothing for cases; we are accustomed not to mind what the lawyers say; we shall decide according to principles of common sense;" and so they came down and gave a decision, resting partly, perhaps, on facts, and partly on law, but not saying which, and in this rough way a committee might assuredly upset any decision of the Court of Common Pleas. By this clause, therefore, a power was put in the hands of the committees which was of great importance, for they would be sure to exercise it. He could not but observe marks of haste and want of deliberation in the way in which this part of the bill had been framed; but, independently of that, he thought it would be better not to make any alteration in the powers of the House; it would be far better to amend their committee.
The Solicitor-Generalmust say, that the noble Lord put a construction on this clause which it would not fairly bear. What was it intended to effect? There had been an outcry—he thought undeservedly—raised against committees since the passing of the late act, principally because they had had difficult questions to decide. What then was to be done? The revising barristers decided questions of franchise in the first instance, but their decisions were found to be sometimes con-

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flicting, and an appellate tribunal was found to be wanting. The noble Lord said that if they allowed any tribunal but the House of Commons to decide these questions, they would be infringing the constitution by introducing a new principle into questions of this nature. But, surely this was a remarkable objection to proceed from the noble Lord. The noble Lord, if he had not himself introduced, had sanctioned the introduction of bills into that House which had passed into laws establishing with respect to Ireland the principle that the registration should be final, as settled by lawyers, and not by committees of the House of Commons. The registering officers in Ireland were appointed by the Lord-lieutenant; and there was an appeal to the judges, whose decision was binding. The noble Lord thus took from the House of Commons the right of judging on every question of the elective franchise in Ireland. But the noble Lord feared that the decisions of the judges would always be adverse to the House. He presumed that the decision of the three barristers, whom it was proposed, at one time, to constitute a court of appeal, with the approbation, as he understood, of the noble Lord, were as likely to be adverse to the House of Commons as those of the judges. His hon. and learned Friend the Member for Liskeard (Mr. C. Buller) had spoken of the possibility of a difference between the decisions of committees and the Court of Common Pleas, but he thought that the House would lose its character if the courts of law and the committees came to different decisions. His hon. and learned Friend, however, did not seem quite fully to apprehend that the bill made the decisions of the court of law binding on committees. The Court of Common Pleas was to decide the question of law in each case which should be sent up, with the facts, for its decision. Then that decision was to be sent back to the returning officer, and the vote placed on the registry. That decision thenceforward would be binding in that case, and on that vote. If the vote, therefore came before a committee for investigation, they would be bound not to meddle with it. It was not possible that the decision of the Court of Common Pleas on that vote could be interfered with. Their decision was to be final. His hon. and learned Friend the Member for Liskeard had asked how were they to enforce it on the committee? He might as well have asked how any other law was
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to be enforced? There was no power that he knew of vested in committees of the House of Commons, any more than in the judges of the courts of law in Westminster-hall, to set aside an Act of Parliament. The committees must be bound by the statute law as interpreted by the judges. If, then, they allowed an appeal to the Court of Common Pleas at all, then in regard to a case sent up for the decision of that court by the revising barrister, that decision when once given must be final; that was to say, in that particular case. Now, what was the objection to an appeal to the Court of Common Pleas? It was much to be regretted, that the noble Lord the Member for London (Lord J. Russell), his hon. and learned Friend the Member for Liskeard (Mr. C. Buller), and his hon. and learned Friend the Member for Bath (Mr. Roebuck), had all been absent when this matter was discussed on a former evening, because the proposition for this very mode of appeal came from the Opposition side of the House; it was supported by the noble Viscount the Member for Sunderland (Viscount Howick), it was acquiesced in by the Ministerial side of the House; and, in short, it appeared to be the unanimous feeling of every Member then in the House; and it, therefore, certainly was much to be regretted, that when his right hon. Friend had prepared these clauses in obedience to the unanimous opinion of the House, as he conceived, these objections should have been brought forward that evening for the first time, on the ground of the alleged unconstitutional nature of the proceeding. But was this a true character of this part of the measure? The bill kept in the House full power over every matter connected with the control of elections, and full power of deciding as to all the facts; it was as to points of law alone that the decision was given to the Court of Common Pleas. The general power of the House, he must insist, remained untouched; it was simply the duty of construing of the Act of Parliament that they were asked to give to the Court of Common Pleas. The noble Lord had said that he thought that there was a tendency in courts of law to lean against the extension of the franchise. He was not aware that such was the case. Then his hon. and learned Friend the Member for Liskeard had spoken of the objections that were made to the decisions of the courts of law on corporation questions prior to the late act with reference to the supposed

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political sentiments of the judges. Why, judges in the revising barristers, the diver-at this moment, all manner of questions touching the Reform Act might come, and did come, to be decided by the courts of law; but he would venture to say that no judge of those courts ever knew, when he gave his decision, which side in politics his decision would be for the advantage of. Again, when his hon. and learned Friend the Member for Bath (Mr. Roebuck) deprecated overloading the judges, he (the Solicitor-general) would venture to say, that there would not be six cases of appeal in a year. This bill, it should be remembered, was rendered necessary in order to clear up certain doubts which had arisen on the construction of the Reform Act, but from his own knowledge, and from what he could learn from friends of his among the revising barristers, he should say, that there were few questions, indeed, scarcely any questions of great importance, that remained to be settled. The real questions of law on which appeals would come into the Court of Common Pleas would be settled, he was persuaded, in a very short time. With regard to the questions respecting corporations before the alteration of the law he was not aware of such remarks as his hon. and learned Friend the Member for Liskeard alluded to having been made. He never had heard any such remarks, and he thought he might appeal to learned friends of his who had been longer in Westminster-hall than himself to say whether any one had ever imputed to the judges political views at all in the decisions they gave on those questions. At any rate, he was confident he might say that the decisions actually given worked quite as much for one party as for the other. On the whole, then, he was not one of those who wished to part with the general jurisdiction of the House in matters of this nature; he saw great difficulties in that course, but, he saw no difficulties in constituting this appellate jurisdiction: it would be, to a great extent, less expensive than the present mode of proceeding, and it would much diminish the frequency of the agitation of questions relating to the franchise; for these reasons he gave the proposition his cordial support.
Sir G. Greywould not shrink from avowing his opinion that this was the best appellate tribunal they could have. He thought it was necessary, but the necessity for it had arisen from the original fault of having too great a number of
354
judges in the revising barrister, the diversity of whose decisions had at length redered it indispensable to have some system of general control in an appellate jurisdiction. Those hon. Members who had coincided with him on a former evening had considered that if the appeal were to be made to lawyers, it would be far better to look for lawyers already holding seats on the bench than to take three barristers as was proposed, both because there were objections to making judges of practising barristers, and because the judges of Westminster-hall would have the assistance of an established bar to aid them in their decisions.
Sir R. Peelsaid —I agree with the observations made by the hon. Member for Liskeard, that one of the great causes of complaint against election committees of this House, is, that the nature of the subject, affecting as it does party interests, has a tendency to excite a suspicion of partisanship; and therefore, I cannot help coming to the conclusion that when this House decides upon transferring its authority on the decision of points of law to other hands a more favourable opinion will soon be entertained of its proceedings in such cases. I cannot, however, agree with the hon. and learned Member for Bath that this authority should be transferred to one judge, with enormous and unwieldly power; because, before a month elapsed, I am perfectly satisfied that there would be many more complaints made against his decisions than had ever been made even against election committees of this House. How would such a judge be able to perform the duties imposed on him? For instance, some election committees lasted as long as five or six weeks —what would become of the others that might be pending at the time? He could not begin to try one till he had finished with another. After the bill has passed, the administration of the law of elections will be greatly changed for the better My opinion is that if the committees of this House believe that the Court of Common Pleas gives a judgment founded upon pure motives they will have perfect confidence in that judgment, given, as it will be, upon the law clearly stated. I feel assured that, under such circumstances, the committee would not think of reversing the decision of the Court. I am, I confess, very unwilling to give to a court of law any power over our privileges;

355
but, on the Whole, I think it will be of great advantage, in saving the expense of election committees, to give to the Court of Common Pleas the power to decide the point of law alone, according to the Act of Parliament.
Lord J. Russellsaid, that, from what he had observed of the working of the bill of the right hon. Gentleman, it was a great improvement.
The committee divided on the question, that the clause stand part of the bill. Ayes 154; Noes 51: Majority 103.

List of the AYES.

Ackers, J.

Farnham, E. B.

Acland, T. D.

Feilden, W.

A'Court, Capt.

Fellowes, E.

Acton, Col.

Ferguson, Col.

Aglionby, H. A.

Fitzmaurice, hon. W.

Aldam, W.

Fitzroy, hon. H.

Allix, J. P.

Flower, Sir J.

Antrobus, E.

Follett, Jir W. W.

Archdall, Capt. M.

Forester, hn. G. C. W.

Arkwright, G.

Fuller, A. E.

Astell, W.

Gaskell, J. Milnes

Bailey, J.

Gill, T.

Balfour, J. M.

Gladstone, rt. hn. W.E.

Baskerville, T. B. M.

Gladstone, Capt.

Bentinck, Lord G.

Glynne, Sir S. It.

Bernal, R.

Gordon, hon. Capt.

Bernard, Visct.

Goulborn, rt. hon. H.

Boldero, H. G.

Graham, rt. hn. Sir J.

Botfield, B.

Greenall, P.

Bramston, T. W.

Grey, rt. hon. Sir G.

Broadley, H.

Grimsditch, T.

Bruce, Lord E.

Grimston, Visct.

Buller, Sir J. Y.

Grosvenor, Lord R.

Charteris, hon. F.

Hall, Sir B.

Chelsea, Visct.

Hamilton, W. J.

Chetwode, Sir J.

Hardinge, rt. hn. Sir H.

Christopher, R. A.

Hardy, J.

Clerk, Sir G.

Henley, J. W.

Colebrooke, Sir T. E.

Henniker, Lord

Colvile, C. R.

Hepburn, Sir T. B.

Copeland, Mr. Ald.

Herbert, hon. S.

Corry, rt. hon. H.

Hervey, Lord A.

Crawford, W. S.

Hodgson, F.

Cripps, W.

Hodgson, R.

Darby, G.

Hope, hon. C.

Davies, D. A: S.

Hope, A.

Denison, E. B.

Hope, G. W.

Dickinson, F. H.

Hughes, W. B.

Dodd, G.

Hume, J.

Douglas, Sir H.

Hussey, T.

Douglas, Sir C. E.

Ingestrie, Visct.

Duncan, G.

Irton, S.

Duncombe, hon. A.

Jermyn, Earl

Duncombe, hon.O.

Jocelyn, Visct.

Egerton, W. T.

Johnstone, H.

Egerton, Lord F.

Jolliffe, Sir W. G. H.

Eliot, Lord

Jones, Capt.

Elphinstone, H.

Kemble, H.

Esmonde, Sir T.

Knatchbull, rt. hn. Sir E

Ewart, W.

Lefroy, A.

356

Leicester, Earl of

Ross, D. R.

Lincoln, Earl of

Round, J.

Lockhart, W.

Rous, hon. Capt.

Lyall, G.

Sanderson, R.

Lygon, hon. Gen.

Scarlett, hon. R. C.

Mackenzie, W. F.

Seymour, Sir H. B.

McGeachy, F. A.

Shaw, rt. hn. F.

Mahon. Visct.

Sheppard,T.

Mainwaring, T.

Shirley, E. P.

Marsham, Visct.

Smith, A.

Martin, C. W.

Smith, rt. hon. R. V.

Marton, G.

Smith.rt. hon. T. B.C.

Master, T. W. C.

Spry, Sir S. T.

Masterman, J.

Stanley, Lord

Maxwell, hon. J. P.

Stanley, E.

Mitchell, T. A.

Stewart, J.

Mundy, E. M.

Sutton, hn. H. M.

Murray, C. R. S.

Tennent, J. E.

Neeld, J.

Thompson, Mr. Ald.

Neville, R.

Trelawny, J. S.

Newdegate, C. N.

Trollope, Sir J.

Peel, rt. hn. Sir R.

Turner, E.

Peel, J.

Turnor, C.

Philips, M.

Vane, Lord H.

Plumptre, J. P.

Verner, Col.

Pollock, Sir F.

Williams, W.

Ponsonby, hon. C.F.

Wood, Col.

Powell, Col.

Wood, Col. T.

Praed, W. T.

Wortley, hon; J. S.

Pringle, A.

Young, J.

Pusey, P.

TELLERS.

Repton, G. W. J,

Freemantle, Sir T.

Rose, rt. hon. Sir G.

Baring, H. B.

List of the NOES.

Baring, rt. hn. F. T.

Layard, Capt.

Berkeley, hon. G. F.

Martin, J.

Bernal, Capt.

Mitcalfe, H.

Borthwick, P.

Morris, D.

Bowring, Dr.

Norreys, Sir D. J.

Brocklehurst, J.

Ogle, S. C. H.

Brotherton, J.

Paget, Col.

Browne, hon. W.

Palmerston, Visct.

Busfeild, W.

Philips, G. R.

Cavendish, hon. G.H.

Plumridge, Capt.

Clive, E. B.

Rice, E. R.

Craig, W.G.

Roebuck, J. A.

Dalrymple, Capt.

Russell, Lord J.

Duncan, Visct.

Scholefield, J.

Fitzroy, Lord C.

Sibthorp, Col.

Fleetwood, Sir P. H.

Stansfield, W. R. C.

Forster, M.

Strickland, Sir G.

Hastie, A.

Strutt, E.

Hatton, Capt. V.

Tancred, H. W.

Hawes, B.

Thornely, T.

Hindley, C.

Vivian, hn. Capt.

Hollond, R.

Wawn, J. T.

Horsman, E.

Wood, G. W.

Hutt, W.

Worsley, Lord

Labouchere, rt. hn. H.

TELLERS.

Lambton, H.

Tufnell, H.

Lawson, A.

Buller, C.

Clause agreed to.
On clause 73, right of voting in bo-

357
roughs by occupiers of houses of the annual value of 10 l
Mr. Horsmansaid, that the word "building" lad a very wide signification, and he thought that the words "other buildings" in this clause ought to be more clearly defined. He therefore, moved the insertion of this proviso:—
"And whereas doubts have arisen as to the meaning and construction of the words 'other building,' Be it therefore declared and enacted, that no person who shall occupy within such city or borough, any building, not being a house, warehouse, counting-house, or shop, jointly with any land, shall be entitled to vote in the election of a Member or Members to serve in Parliament for such city or borough, in respect of the occupation of such premises, unless such building, when taken separately from such land, shall be of the clear yearly value of not less than 51."
He made this proposition merely with a view of bringing the subject under the consideration of the committee; if the right hon. Baronet would give the matter his attention he would not press the amendment.
Sir J. Graham said,he did not think that any doubt could be entertained on this point after the decisions of committees on the subject. The great essentials of qualification were residence, occupation, payment of the rates, and the value of the premises. As the object was to have a substantial constituency, the relative value of the building to the land was of little importance.
Mr. Horsman said,there were several contrary decisions by revising barristers on this point.
Sir J. Graham said,the clauses providing an appeal to the Court of Common Pleas afforded the best answer to the hon. Gentleman's statement relative to con-conflicting decisions, for that appeal would establish an uniformity of decision. He felt bound to oppose the hon. Member's motion.
The committee divided on the question, that the words be inserted.—Ayes 34; Noes 128: Majority 94.

List of the AYES.

Aglionby, H. A.

Cavendish, hon. G. H.

Bernal, R.

Cowper, hon. W. F.

Bernal, Capt.

Craig, W. G.

Bowring, Dr.

Elphinstone, H.

Brotherton, J.

Ewart, W.

Browne, hon. W.

Ferguson, Col.

Busfield, W.

Fitzroy, Lord C.

Cavendish, hon. C.C.

Forster, M.

358

Gibson, T.M.

Stansfield, W. R. C.

Grey, rt. hn. Sir G.

Strutt, E.

Hill, Lord M.

Tancred, H. W.

Hollond, R.

Thornely, T.

Layard, Capt.

Towneley, J.

Martin, J.

Wawn, J. T.

Ogle, S. C. H.

Worsley, Lord

Palmerton, Visct.

Plumridge, Capt.

TELLERS.

Ponsonby, hn. C.F.A.

Horsman, E.

Ross, D. R.

Tufnell, H.

List of the NOES.

Ackers, J.

Gladstone, Capt.

A'Court, Capt.

Glynne, Sir S. R.

Acton, Col.

Gordon, hon. Capt.

Allix, J. P.

Goulburn, rt. hon H.

Antrobus, E.

Graham, rt. hn. Sir J.

Arkwright, G.

Greenall, P.

Bailey, J.

Grimsditch, T.

Baskerville, T. B. M.

Hamilton, W. J.

Bentinck, Lord G.

Hardinge, rt. hn. Sir H.

Bernard, Visct.

Hardy, J.

Blackstone, W. S.

Henley, J. W.

Boldero, H. G.

Hepburn, Sir T. B.

Borthwicke, P.

Herbert, hon. S.

Botfield, B.

Hervey, Lord A.

Broadley, H.

Hindley, C.

Brocklehurst, J.

Hodgson, R.

Bruce, Lord E.

Hope, A.

Bruce, C. L. C.

Hope, G. W.

Buller, Sir J. Y.

Hughes, W.B.

Charteris, hon. F.

Hume, J.

Chelsea, Visct.

Hussey, T.

Christopher, R. A.

Ingestre, Visct.

Clerk, Sir G.

Irton, S.

Clive, Visct.

Jermyn, Earl

Colvile, C. R.

Jocelyn, Visct.

Copeland, Ald.

Kemble, H.

Corry, rt. hn. H.

Knatchbull, rt. hn. Sir E.

Crawford, W. S.

Knight, F. W.

Cripps, W.

Lambton, H.

Darby, G.

Lawson, A.

Davies, D. A. S.

Leicester, Earl of

Denison, E. B.

Lincoln, Earl of

Dickinson, F. H.

Lockhart, W.

Dodd, G.

Lyall, G.

Douglas, Sir C. E.

Mackenzie, W. F.

Duncombe, hon. A.

M'Geachy,F. A,

Eastnor, Visct.

Mainwaring, T.

Egerton, W. T.

Marsham, Visct

Egerton, Lord F.

Martin, C. W.

Eliot, Lord

Masterman, J.

Estcourt, T. G. B.

Meynell, Capt.

Farnham, E. B.

Mitchell, T. A.

Feilden, W.

Morris, D.

Fellowes, E.

Mundy, E. M.

Filmer, Sir E.

Murray, C. R. S.

Fitzmaurice, hon. W.

Neeld, J.

Fitzroy, hon. H.

Neville, R.

Flower, Sir J.

Newdegate, C. N.

Follett, Sir W. W.

Paget, Lord A.

Forester, hon.G.C.W.

Peel, rt. hon. Sir R.

Fuller, A. E.

Peel, J.

Gaskell, J. Milnes

Plumptre, J. B.

Gill, T.

Pollock, Sir F.

Gladstone, rt. hn.W.E.

Pringle, A.

359

Pusey, P.

Thompson, Ald.

Round, J.

Trelawny, J. S.

Rous, hon. Capt.

Trollope, Sir J.

Ryder, hon. G. D.

Wakley, T.

Scarlett, hon. R. C.

Wellesley, Lord C.

Shaw, rt. hon. F.

Wood, Colonel

Sheppard, T.

Wood, Colonel T.

Shirley, E. P.

Young, J.

Sibthorp, Col.

Smith, rt. hn. T. B. C.

TELLERS.

Stanley, Lord

Fremantle, Sir T.

Sutton, hon. H. M.

Baring, H.

Clause agreed to.
On clause 77,
Mr. Elphinstone said,that this was the part of the bill in which he could properly move to add the clause of which he had given notice as a proviso. The hon. and learned Member then moved the addition to the clause—
"Provided always, That no scot and lot voter (whose name is on the register of voters for the current year) shall be prevented from voting by reason of his not having paid any rates demanded of him previous to the day of election."
Sir J. Grahamsaid, the question which the amendment raised had been fully discussed when the bill was last in committee, and he had then stated his reasons for dissenting from the present proposition. It had never been intended by the Reform Act to place the scot and lot voters in a better position than they enjoyed before that measure, and yet the proposition now made by the hon. and learned Member went directly to attain that object. He opposed the proposition of the hon. Member because, if agreed to, it would give the scot and lot voter a great advantage over every other class of voters who appeared upon the register.
Mr. Humesupported the proviso on the ground that the law, as it at present stood, encouraged bribery, as the candidate might pay the rates of the scot and lot voters even on the morning of the poll.
The committee divided on the question, that the proviso be added.—Ayes 32; Noes 81: Majority 49.

List of the AYES.

Aglionby, H. A.

Cripps, W.

Arkwright, G.

Dalrymple, Capt.

Blackstone, W. S.

Ewart, W.

Borthwick, P.

Fitzroy, Lord C.

Bowring, Dr.

Forster, M.

Brocklehurst. J.

Gibson, T. M.

Brotherton, J.

Gill, T.

Crawford, W. S.

Hill, Lord M.

360

Martin, J.

Towneley, J,

Mitchell, T. A.

Trelawny, J. S.

Morris, D.

Tufnel, H.

Ogle, S. C. H.

Wakley, T.

Plumridge, Capt.

Wawn, J. T.

Ross, D. R.

Worsley Lord

Stansfield, W.R. C.

Strutt, E.

TELLERS.

Tancred, H. W.

Hume, J.

Thorneley, T.

Elphinstone, H.

List of the NOES.

Ackers, J.

Hervey, Lord A.

Acland, T. D.

Hodgson, R.

Antrobus, E.

Hope, G. W.

Bailey, J.

Hughes, W. B.

Baskerville, T. B. M.

Hussey, T.

Bentinck, Lord G.

Ingestre, Visct.

Boldero, H. G.

Jermyn, Earl

Broadley, H.

Knatchbull,rt.hn.SirE.

Bruce, Lord E.

Lawson, A.

Bruce, C. L. C.

Leicester, Earl of

Clerk, Sir G.

Lincoln, Earl of

Clive, Visct.

Lockhart, W.

Colvile, C. R.

Mackenzie, W. F.

Copeland, Mr. Ald.

McGeachy, F. A.

Corry, rt. hon. H.

Mainwaring, T.

Darby, G.

Marsham, Visct.

Denison, E. B.

Masterman, J.

Dickinson, F. H.

Maxwell, hon. J. P.

Dodd, G.

Meynell, Capt.

Douglas, Sir C. E.

Mundy, E. M.

Duncombe, hon. A.

Neville, R.

Eastnor, Visct.

Newdegate, C. N.

Eliot, Lord

Peel, rt. hon. Sir R.

Filmer, Sir E.

Peel, J.

Fitzmaurice, hon. W.

Plumptre, J. P.

Fitzroy, hon. H.

Pollock, Sir F.

Flower, Sir J.

Pringle, A.

Follett, Sir W. W.

Rous, hon. Capt.

Forester, hn. G. C. W.

Shaw, rt. hn. F.

Fuller, A. E.

Sheppard, T.

Gaskell, J. Milnes

Sibthorpe, Col.

Gladstone, Capt.

Smith, rt. hn.T.B. C.

Gladstone, rt. hn. W.E.

Stanley, Lord

Gordon, hon. Capt.

Sutton, hon. H. M.

Goulburn, rt. hon. H.

Tennent, J. E.

Graham, rt. hn. Sir J.

Trollope, Sir J.

Greenall, P.

Wellesley, Lord C.

Grimsditch, T.

Wood, Col.

Hamilton, W. J.

Young, J.

Hardinge, rt. hn. Sir H.

TELLERS

Henley, J. W.

Fremantle, Sir T.

Herbert, hon. S.

Baring, H.

Clause agreed to.
On clause 96,
Mr. Elphinstonesuggested that the word "churchwardens" should be used as well as "overseers," as doubts had arisen about the meaning of the latter word.
Captain Fitzroystated, that in the borough which he and his hon. Friend represented, there had been two directly conflicting decisions in two successive years by the revising barristers. In the

361
first year the list of persons claiming to be placed on the register was signed by the two churchwardens and two overseers; and when it was presented to the revising barrister, he struck out the names of the churchwardens, telling the parties not to have it signed in that way again. On the next year that direction was attended to, and the absence of the churchwardens' signatures was considered by the revising barrister as a serious objection.
Sir J. Graham said,in point of law, he understood there was no doubt that churchwardens were overseers. However, the matter should be considered.
Clause agreed to.
Remaining clauses and schedules, with verbal amendments were agreed to.
House resumed, report to be received.
House adjourned at half past one o'clock.