HC Deb 28 March 1848 vol 97 cc1084-95

The Order of the Day for the Second Reading of this Bill having been read,


said, that as far as any decisions of that House had gone, they had been in favour of some legislative interference on this subject, and he wished the House not to dismiss it from their minds till they should have come to a deliberate decision. He was anxious that they should do justice to parties who might think themselves exposed to injustice. It was advisable to interfere, and thus avoid all difficulties with courts of law. The authority of Parliament was in favour of interference by a majority; and the Committee on the subject was unanimously in favour of some interference. The Committee, in their report, stated that one suggestion was, that the petitioners against the sitting Member should he allowed to go on, and if the recognisances were incomplete or deficient, that then the parties should be allowed to appeal to the House for redress. The objection to this course was the postponement of the difficulty in the first place, and in the second place that it left the sitting Member in uncertainty as to the recovery of his coats. These alone were strong reasons why the matter should not be left as it was. But upon a former occasion—(he apprehended he was correct when he stated it)—the Secretary of State for the Home Department, and the Attorney General, and other hon. Members on that side of the House, on the first discussion on the second reading of the Bill in that House, came to the conclusion that some interference was necessary; but the fact was, that no deliberate decision had been come to on the former occasion. It was admitted on all hands, that there was a necessity for legislation; and he did not deny that, take what course they would, the matter was encompassed by great difficulty; but he conceived that the worst course of all which could possibly be taken would be to leave the matter as it was. The Act 7 and 8 Victoria was that which formed the ground upon which legislation proceeded in regard to these election petitions. In one matter respecting that Act—namely, the deficiency of the recognisances, they had no adequate remedy afforded them. A case might go to trial without any security to the parties as to the validity of the recognisances, and hence the costs would not be awarded. Formerly the House might have given relief; but since the Grenville Act had passed and ended, and the Acts 7 and 8 Victoria had passed, and since those Acts were established, the House had parted with its control over these cases. The evil now existing, therefore, was only to be remedied by further legislation. Now, these recognisances were given and required in order to prevent frivolous petitions. There was a time when it was open to any party to petition against the return of a Member; but afterwards it was provided that no person but an elector or a candidate should be allowed to petition. By the Act 28 Geo. III., it was provided that no petition should be proceeded with unless the recognisances were tendered in a particular form, and the same was the case by the Act of Geo. IV. Then came the Act 7 and 8 Victoria, in which more binding provisions were made; and one clause enacted that, before any petition was presented, the recognisances in a particular form should be presented. And in a subsequent clause it was provided, that no petition should be presented unless the recognisances should be certified by the examiner. Now, unless that was meant to be mere verbiage, it was quite clear that the intention of the Act of Parliament and the Legislature was, that no petition should be entertained, or made the means to deprive a Member of his scat, unless it was accompanied with a security for costs and other contingencies provided for by the Act of Parliament. He thought it would be bettor for the House to legislate for the present Session, and to leave it to the Government to deal with the subject afterwards. There was a precedent for the course which he recommended, in the year 1835, in the case of the Leicester petition. Now, suppose by accident the examiner should certify that a recognisance had been entered into, when in fact there was nothing but a blank piece of paper, would hon. Members go the length of saying that the petition ought to be proceeded with? He apprehended, very few hon. Members would agree with that view of the case. Besides, the courts of law were bound to look at the recognisances; and if the House was desirous of maintaining its privileges, it ought to expose them to the public gaze as seldom as possible, and take the utmost precaution against coming into collision with the courts of law. He would now state the nature of the measure which he wished the House to adopt. One of the objections to the Bill of the hon. Member for Midhurst was the danger of committing the privileges of the House in any degree to the other House of Parliament. His (Mr. Wortley's) proposition to avoid that difficulty was to omit the schedule altogether, and make the present a temporary measure, providing a temporary tribunal for all petitions which might be presented during the present Session. The remainder of the scheme was simply this, that instead of in all cases sending the party before the examiner to enter into fresh recognisances, power should be given to the Committee to do that which in the Wigan case they refused to do, because they conceived they had not the power—namely, to entertain the preliminary objection to the form of the recognisance, and give a remedy to the parties. If the Committee should think the recognisance wholly invalid, the invalidity being in any degree attributable to the laches of the petitioners, then they would report accordingly, and no further proceedings would be taken; but if the invalidity should be traced solely to the officer of the House, then the parties ought to have liberty to amend the recognisances. If the recognisances should turn out to be merely informal, then the parties ought to be allowed to amend them on the spot; but if the petitioners should not consent, then the petition would not be proceeded with. The hon. and learned Gentleman concluded by moving that the Bill be read a second time.


thought, that whoever undertook to introduce legislation upon this subject, ought to provide for future cases as well as for those which had occurred. There was wanted, in fact, some Act to define, and perhaps extend, the powers of the examiner. But the principal objection to this Bill was, that it would give Committees the power to decide questions of great legal difficulty; it was a pity that they had to do this now incidentally, and the House ought not to increase the instances.


said, that if the Bill, when it came out of Committee, should be presented to the House in its present shape, he would vote against the third reading; but if it were altered in the manner proposed by the right hon. and learned Member for Buteshire, it should receive his support. It was impossible to deny that the irregular proceedings in the examiner's office—be the fault whose it might—had been the cause of involving the House in very serious difficulty. Had there been no such irregular proceedings, there would have been no difficulty at all. The recognisances in each petition would have been either clearly good or clearly bad: in the former case the petition would have gone before the Committee; in the latter case the petition would have been arrested at its outset. But now the difficulty was this—that in some of the cases alleged, the recognisances were bad in themselves; but others were bad only by the laches of the examiner. The House was bound in fairness to protect the petitioners from the laches of its own officer; but it was not bound to protect them against their own ignorance or carelessness. This was the objection which he (Viscount Mahon) felt against the Bill as introduced by his learned Friend the Member for Midhurst—that it confounded the two classes of cases—that it gave the power of amending the recognisances not only to those parties who had suffered by the fault of the officer of the House, but also to those parties who had only their own ignorance, or carelessness, or possibly fraudulent intentions, to blame. To this latter part, he (Viscount Mahon) never could consent. But the Bill, as amended by the right hon. Member for Buteshire, separated the two classes of cases: it enabled each Committee to decide as to the validity of each original recognisance, but only allowed the power of amending it and substituting a right form for a wrong, whenever the error lay not with the parties themselves but with the officer of the House. To this extent even an ex post facto law was justifiable. Beyond this it was an act of partiality to the petitioners at the expense of the sitting Members. He (Viscount Mahon) was most anxious to avoid the chance of which the right hon. Member for Bute had spoken—the chance of any collision with the courts of law. Let the House remember how much popular resentment they had incurred, and how little of real power or real dignity they had gained, by their former collisions with such authorities. Even the smallest risk of such collision should now be carefully guarded against. It was said by the hon. Member for Rochester that the Election Committees were unfit tribunals to decide the points. He quite concurred in that opinion, and indeed had once been the person to propose that the House of Commons should wholly part with its jurisdiction in the trial of controverted elections. But still as long as the House thought proper to retain the jurisdiction, it was desirable that the tribunal to which the questions were submitted should be made as perfect as possible, and be armed with all requisite powers. The difficulty with which the House now had to contend was a temporary one, and might be met by a temporary remedy—a general or permanent Act could be passed hereafter.


felt very indifferent as to the decision which the House might come to upon this occasion. At the same time, he could not avoid declaring his opinion that the right hon. and learned Member for Bute had taken a most unprecedented course. Here was a Bill abandoned by its promoter, which the right hon. Gentleman seized upon as a sort of waif or estray, and invited the House to read a second time in order that he might have an opportunity of striking out every clause it contained. Why did not the right hon. and learned Gentleman move for leave to bring in a new Bill, in which he might embody his views? Under the extraordinary circumstances in which the House was placed with respect to this Bill, he would oppose its second reading.


said, that a few nights ago the House was placed in an unprecedented position by having the word "that" left as the only question upon which they could come to a decision; and if the right hon. and learned Member for Buteshire were allowed to have his way, the House ran the risk of being put into a somewhat analogous dilemma. The right hon. and learned Gentleman took ap a Bill which had been abandoned by its promoter, and how did he propose to deal with it? He would exhibit the Bill bodily, as the right hon. Gentleman proposed to make it; for he (Sir R. H. Inglis) had pasted paper over the parts which it was intended to strike out. All that the right hon. and learned Member intended to leave of the Bill was the clause which graciously permitted the House to repeal the Bill, if it should think proper to do so, in the course of the present Session. Should the right hon. and learned Gentleman succeed in doing what he proposed, the hon. and learned Member for Midhurst would be somewhat astonished on seeing his Bill in its new shape— Miraturque novas frondes, et non sua poma,


observed, that, under the peculiar circumstances in which the House stood with regard to this subject, there appeared to him to be only three courses for them to adopt: either to do nothing; or to leave all questions respecting elections open for the determination of the House; or, thirdly, to legislate upon the subject. If they adopted the first, then the Select Committees would proceed with undefined powers to adjudicate on election petitions, and every question connected with them. To what would this expose those tribunals? They were statutable courts; and if they should at any time exceed their jurisdiction, he was decidedly of opinion the courts of law would have the power to issue a writ of prohibition against them. This would bring the House into collision with these courts. Would they, then, adopt the next course, and leave the question to be decided by the House itself? It had already been determined that the House was a very inconvenient and unfit tribunal before which to bring questions of the nature under consideration. What, then, remained? Why, that there should be some legislation upon the subject. He confessed he was disposed to pursue that alternative, and adhere to the Bill which had been introduced by his hon. and learned Friend the Member for Midhurst.


had listened to the hon. and learned Member for Bute (Mr. S. Wortley) in the hope of hearing some argument to alter the opinions he held on this question; but, disappointed in that hope, he begged to call the attention of the House to the position in which they were placed by the proposition which had been made to them. The Bill of the hon. and learned Member proceeded on the supposition that the House had a right to inquire into the validity of election recognisances; but he maintained that they had no such right except in one case only. It did not thence follow that if the examiner certified a blank sheet of paper as a proper recognisance, the House could not inquire into it, for then a fraud would be committed, for which a remedy existed, as against the parties guilty of it; but he could not understand on what principle the House took on itself the character of a court of appeal from the decisions of the examiner, nor could he discover any trace of such an authority being vested in them by the Act of Parliament. The appointment of the Committee was not an adjudication on the question at issue: the reference made to them by the House was, that "they should inquire into the allegations of the petitioners" in certain cases; and from the terms of that reference they derived no authority to inquire into any matter whatever, except such allegations, and had no right even to make suggestions to the House. He would go further, and say, that the General Committee of Elections had not performed their bounden duty, inasmuch as they had not appointed a Select Committee to try the validity of the recognisances. Looking to the whole of the Act on the subject, he maintained its object had been to place the House beyond the necessity of interfering with matters which did not redound to their credit or honour; and in this point of view the present Bill was most unsatisfactory. They had the authority of the right hon. Baronet, Sir R. Peel, who was the author of the Act, for affirming that the Legislature in passing it intended to make the decision of the examiner of recognisances final and conclusive; and he hoped the House would not adopt the course of adopting, in para matinâ, one decision one day, and of rejecting it the next. They had already determined, in at least one case, that the examiner's report should be final; and it would not be very becoming if they were now to come to a contrary conclusion.


concurred so far with the hon. and learned Member (Mr. Hayter), that he thought the Act set certain machinery in Motion, and prescribed certain things to be done, without giving to Parliament any power of stopping the one, or of interfering with the other. Once the examiner gave his decision, the House had no power to do anything but to follow a series of proceedings recited in the Act; but he certainly was not prepared to think the hands of the House should be tied altogether, and that they should not be able to correct error wherever it existed. The principle on which it was proposed to interfere was that of legislative equity; and it was not to be endured that the House should interfere to correct every flaw in favour of the sitting Members, and then to allow the latter to avail themselves of every technical objection against the petitioners. The noble Lord (Viscount Mahon) stated, that all the annoyance which had occurred arose out of the mistakes and errors in the office of examiner of recognisances; and it had been suggested in another place that fraud had occurred in the recognisances; but he could not see anything to warrant the latter assertion. The House should interfere, because by doing so they would put all the parties into the position they had originally occupied; and if the recognisances were in the form prescribed by the Act, while the sitting Members would have nothing to complain of, the petitioners would have all they wanted. The Court of Chancery would interfere in this matter if it were a private transaction. The Walsall case should, he thought, he made the subject of a special enactment, in which liberty should be given to amend the recognisances. He had felt deep pain at the remarks made at different periods of the discussion in reference to his friend the examiner. Whatever inadvertence there might have been on the part of that gentleman, the reasons stated by him for the course which he had pursued had produced a great effect on his mind; and he thought they exculpated the examiner from the charge of gross negligence which some had appeared disposed to bring against him.


reminded his hon. Friend the Judge Advocate, who had assumed the certificate of the examiner to be conclusive, that on the 7th of February, when the Attorney General was discharged from attendance on the Committee, the names of the Solicitor General, Mr. Stuart Wortley, and Mr. Hayter, were added to it; so that his hon. Friend, being a Member of the Committee himself, had it in his power to press on them those considerations which he had now urged with more ingenuity than soundness. Yet there was not a word in the report as to the certificate being final; there was no dissent on the part of his hon. Friend. The Committee set forth the opinion of Sir F. Kelly, Mr. Austen, and Mr. Peacock, which was that the judgment of the examiner of recognisances was not final. Why did the Committee not think it final? Because the finality of the certificate would destroy the Committee—the Committee could not have been appointed if the certificate had been final. The Committee was appointed on the Motion of the hon. Member for Midhurst, supported by the right hon. Member for Tamworth, and composed chiefly of lawyers. Perhaps they had not got the usual stimulus—the quiddam honorarium. His hon. Friend said the case was involved in a haze. How were they to clear away that haze? Legislation was indispensable. The Committee had not decided the question, neither had the House of Commons. They were not called on to pass an ex post facto law—a law with respect to transactions which had previously taken place. But this was a case where a tribunal must be established to decide on a question of law which had previously arisen. If there had been solid substantial error, let the party who had committed the error suffer. He conceived that legislation was indispensable.


thought a short declaratory Act ought to be passed, stating that doubts existed whether the certificate of the examiner was final, and declaring that it should be so. Such an Act would apply both to the present and to future cases.


was satisfied from what had occurred in the debate, that he was right when he contended that it was unnecessary to have any Bill at all in the matter. He now found that there were four courses under consideration. It was impossible to overcome the argument of the hon. Member for the University of Oxford, who had urged that it was quite informal and unparliamentary to read a Bill a second time merely for the purpose of rejecting all its clauses. But the Bill before the House would do nothing. It suggested a conflict between that House and the courts of law. He doubted the possibility of such a conflict. The Bill of his right hon. Friend would do literally nothing towards providing a remedy for the difficulties in which the House was involved. There were two classes of recognisances to which objections were made—the one, such as Cheltenham, in which there was high legal authority for saying the recognisances were not bad; and the other, such as Leicester and Walsall, where it had been suggested the fault lay with the examiner, who had not adopted the forms of the House; and in neither of those classes of cases would the Bill of his right hon. Friend be operative. Its only effect would be to create a great deal of delay, and to impose upon the petitioners the expense of keeping up their witnesses, and the annoyance of having their cases undisposed of while the inquiry was pending. He regretted that there had been any canvassing on either side in this which was a purely judicial matter. It had been intended that these questions should be withdrawn from the consideration of the House; and he thought they would be acting in fatal opposition to this principle if they did not at once reject this Bill.


had voted against the proposition of the hon. and learned Member for Midhurst, because he thought in insufficient for the purpose which it was intended to serve; but he would support the proposition of the right hon. and learned Member for Bute, because, though not free from difficulty, it appeared to him the best that had yet been submitted to the House.


said, he had not been in the House when the Committee was appointed from which the Bill had emanated, which had originally been introduced by the hon. and learned Member for Midhurst, but which his right hon. and learned Friend the Member for Bute now sought to mutilate with a view to changing its provisions. He must say that he was not conscious of any canvassing with reference to this Bill; that he was not aware of any party bearing that it had; and that he considered it entirely a judicial question. He thought the expression of the Judge Advocate was a very happy one, that much mist surrounded this subject. It had been with much doubt and hesitation that he, as an unlearned Member, approached the question; and, placing as he did much reliance on the judgment of the Gentlemen of the long robe, he had hoped to derive important information from them during the discussion. He thought he had heard the opinions of seven eminent lawyers on the present occasion. On the preliminary point as to whether any legislation on the subject was necessary, the Gentlemen of the learned profession were nearly equally divided. A majority, he believed, were in favour of legislation. But, assuming that legislation was necessary, there was great difference of opinion as to the mode of legislation that should be adopted. First of all, there was the Bill as it had emanated from the Committee, resting upon the high authority of the hon. and learned Member for Midhurst. From the plan thus recommended, with the concurrence of the Committee, his right hon. and learned Friend the Member for Bute entirely dissented; and he introduced them to forego the opinion of the Committee—to forego the plan introduced by the hon. and learned Member for Midhurst, and to substitute in its place a plan which had been deliberately considered by the Committee, and as deliberately rejected. Then came the hon. and learned Member for Abingdon (Sir F. Thesiger), who, in discussing the subject, and in dealing incidentally with the question as to whether legislation was necessary or not, had held out a sort of threat, which he (Sir J. Graham) confessed, even amidst the mist which surrounded the case, did not terrify him, that if they proceeded without legislation, some injunction, mandamus, or prohibition, might come down on them from the courts of law. He certainly was not anxious to come into collision with the courts of law; but he thought the House should judge for itself on such a question without any fear of such prohibitions; and if any inferior court presumed so to interfere, the House would know well how to deal with any such violation of its privileges. They next had the speech of the hon. and learned Member for Plymouth (Mr. R. Palmer), a speech remarkable for its clearness and ability; and that hon. and learned Gentleman did not approve either of the original proposition sanctioned by the Committee, or altogether of the measure now before the House, and thought there should be special legislation for the case of Walsall. Then came the Attorney General and the Judge Advocate, who gave reasons which the idleness of his (Sir J. Graham's) growing age predisposed him to favour, and which he was inclined to adopt. They proposed to deal with the matter brevi manu, and recommended that the House should do nothing at all. He could not make out exactly what was the proposition of the Master of the Mint (Mr. Shell), but he seemed to start a new proposition somewhat different from any suggestion previously laid before the House. And, last of all, there was the Cursitor Baron (Mr. Bankes), who was ready to vote for another Committee, though he admitted the question was not free from difficulty. Now, really, if they meant to do anything at all in this matter, by all means let them try a Committee, and let that Committee be composed of the learned Gentlemen to whom he had just referred. There was the Cursitor Baron in his chair, the Attorney General, the Judge Advocate, the Master of the Mint, the Member for Bute, the Member for Abingdon, and the Member for the University of Dublin. If such a Committee was appointed, he would certainly, as a matter of curiosity, seeing strangers would not be excluded, avail himself of his privilege of being present at the discussion; but, whether present or absent, he should wait with intense anxiety for the report of that Committee. He adhered to the view that, having already done so much on this question, they should now permit it to remain as it was. He thought the passage which had been read from the speech of the right hon. Gentleman the Member for Tamworth, who originated the Act of Parliament, was quite conclusive as to what was the intention of the author of the mea- sure; and he still thought that the words of the Act fulfilled all the purposes intended by its promoters. He was for staying where they were, by no means daunted with he threat of the interference of the courts of law in this matter; and he should therefore support the proposal of the Secretary of State, and vote against the Bill.

House divided:—Ayes 112; Noes 80: Majority 32.

List of the AYES.
Acland, Sir T. Hervey, Lord A.
Adderley, C. B. Hildyard, R. C.
Alexander, N. Hudson, G.
Anstey, T. C. Ingestre, Visct.
Bagge, W. Jackson, W.
Bagot, hon. W. Johnstone, Sir J.
Bailey, J. jun. Jolliffe, Sir W. G. H.
Bankes, G. Kershaw, J.
Barkly, H. Knox, Col.
Barrington, Visct. Law, hon. C. E.
Bennet, P. Lowther, hon. Col.
Beresford, W. Mahon, The O'Gorman
Berkeley, hon. H. F. Mahon, Visct.
Berkeley, hon. G. F. Meux, Sir H.
Blake, M. J. Neeld, J.
Boldero, H. G. Newdegate, C. N.
Bolling, W. Newport, Visct.
Boyle, hon. Col. Newry & Morne, Visct.
Bremridge, R. Nugent, Sir P.
Bright, J. O'Brien, Sir L.
Brisco, M. O'Connor, F.
Brockman, E. D. Packe, C. W.
Burroughes, H. N. Palmer, R.
Chichester, Lord J. L. Peto, S. M.
Christy, S. Pigott, F.
Clay, J. Pilkington, J.
Cobbold, J. C. Power, N.
Cocks, T. S. Raphael, A.
Codrington, Sir W. Bl Renton, J. C.
Coke, hon. E. K. Sadleir, J.
Colvile, C. R. Scholefield, W.
Cripps, W. Sheil, rt. hon. R. L.
Davies, D. A. S. Sibthorp, Col.
Devereux, J. T. Simeon, J.
Duncombe, hon. O. Smith, J. B.
Duncuft, J. Smyth, J. G.
Edwards, H. Somerville, rt. hn. Sir W.
Fagan, W. Spooner, R.
Farrer, J. Stafford, A.
Fellowes, E. Stephenson, R.
Floyer, J. Stuart, H.
Foley, J. H. H. Sullivan, M.
Forbes, W. Turner, G. J.
Fortescue, C. Tyrell, Sir J. T.
Fox, R. M. Verner, Sir W.
Fuller, A. E. Vyse, R. H. R. H.
Gardner, R. Waddington, H. S.
Gaskell, J. M. Walmsley, Sir J.
Gibson, rt. hon. T. M. Westhead, J. P.
Gooch, E. S. Williams, J.
Greene, J. Williams, T. P.
Grey, R. W. Willoughby, Sir H.
Grogan, E. Wilson, M.
Gwyn, H. Wyld, J.
Halsey, T. P.
Hamilton, Lord C. TELLERS.
Heathcoat, J. Wortley, rt. hon. J. S.
Henry, A. Thesiger, Sir F.
List of the NOES.
Adair, R. A. S. Jervis, Sir J.
Arkwright, G. Langston, J. H.
Armstrong, Sir A. Lewis, G. C.
Baring, rt. hon. F. T. Magan, W. H.
Bellew, R. M. Marshall, W.
Bouverie, hon. E. P. Martin, C. W.
Bowring, Dr. Mitchell, T. A.
Bramston, T. W. Morris, D.
Brotherton, J. Mure, Col.
Buller, Sir J. Y. Napier, J.
Campbell, hon. W. F. Norreys, Lord
Cardwell, E. O'Connell, M. J.
Carter, J. B. Ogle, S. C. H.
Clerk, rt. hon. Sir G. Palmer, R.
Clive, H. B. Parker, J.
Cowper, hon. W. P. Patten, J. W.
Craig, W. G. Plowden, W. H. C.
Douglas, Sir C. E. Price, Sir R.
Duff, G. S. Ricardo, O.
Duncan, G. Rice, E. R.
Dundas, Sir D. Rich, H.
Ebrington, Visct. Seymour, Lord
Evans, W. Shelburne, Earl of
Ferguson, Sir R. A. Smith, J. A.
Fordyce, A. D. Sotheron, T. H. S.
Forster, M. Strickland, Sir G.
Graham, rt. hon. Sir J. Stuart, Lord D.
Greene, T. Talbot, C. R. M.
Grenfell, C. W. Tancred, H. W.
Grey, rt. hon. Sir G. Thicknesse, R. A.
Haggitt, F. R. Thompson, Col.
Hall, Sir B. Thornely, T.
Hallyburton, Lord J. F. Townley, R. G.
Hastie, A. Watkins, Col.
Hastie, A. Wawn, J. T.
Hayter, W. G. Wood, rt. hon. Sir C.
Heathcote, Sir W. Wood, W. P.
Herries, rt. hon. J. C. Yorke, H. G. R.
Hey wood, J.
Hill, Lord M. TELLERS.
Hobhouse, T. B. Bernal, R.
Hood, Sir A. Inglis, Sir R. H.

Bill read a second time.

House adjourned at a quarter to Twelve o'clock.