HC Deb 26 June 1851 vol 117 cc1253-63

Order for Third Reading read,

Motion made, and Question proposed, "That the Bill be now read the Third Time."


said, he had complain- ed, on Tuesday last, of the order in which the business originally stood upon the paper having been altered, by, he believed, the right hon. Baronet the Secretary of State for the Home Department, and that a Bill of his which had stood second upon the list had been transferred to the bottom. He had asked if Government business was allowed precedence at the early sittings on Tuesdays, and, if such wore the case, if the right hon. Gentleman had also the power of so regulating the orders as to alter the position of the Bills of private Members. His objections had been overruled by Mr. Speaker, who decided that special business had precedence at the early sittings that were specially appointed for it; but what he had still to complain of was, that the Bill of the hon. Member for St. Andrews (Mr. E. Ellice), which was not a Government measure, had been placed before his. Now, as he understood the explanation he had received, those twelve o'clock sittings were merely granted for the purpose of forwarding particular Government business; but here was the case of the Bill of an independent Member being fixed for twelve o'clock. It was very inconvenient generally to Members of that House to come down at twelve o'clock to look after a measure they might object to. He had nothing to say as to the merits or demerits of the St. Albans Bribery Commission Bill; but it was at least an extraordinary circumstance that the only Order on the paper of the day for the twelve o'clock sitting should be the Bill of an independent Member, when, he considered, he (Mr. Frewen) had a just claim to precedence; he thought, therefore, this unusual course of proceeding justified him in moving the adjournment of the debate on the St. Albans Bribery Commission Bill.

Motion made, and Question proposed, "That the Debate be now adjourned."


said, that the practice of the House—for no rule existed on the subject—had always been, since he had had the honour of sitting in that chair, that at the morning sittings the Government Bills took precedence over other Bills; but other hon. Members were not precluded from putting down their own Bills for the morning sittings; and if they were put down, they would come on in the regular order, after the Government Bills, if there were any.


explained that he had not complained of the precedence of any Government Bill, but of the Bill of the hon. Member for St. Andrews having been placed befor his own.


said, he did not complain that Government should have the power to prefer any measures which they thought of importance; but he thought that the House was entitled to know what Bills were or were not considered Government Bills. For his part, he did not understand the present to be a Government Bill. He made no complaint of inconvenience in being obliged to attend on this occasion to discuss the Bill. He was not so presumptuous as to expect that his individual wishes should be consulted in the matter; and, now that he was there, he confessed it would be more inconvenient for him that the discussion should be postponed than that it should go on. His hon. Friend the Member for East Sussex (Mr. Frowen) had reason to complain that his convenience had been disregarded.


said, that the Bill was not a Government Bill; but at the same time, he did not think it could be considered as a Bill emanating from a private Member of the House. It had been introduced on the recommendation—the unanimous recommendation, he believed—of the Select Committee. It might, therefore, be considered as a Bill specially belonging to the House, the object of which was to promote purity of election; and, although it was not a Government Bill, the Government felt that they ought to facilitate, as far as possible, the progress of the Bill, and not allow it by any means to be postponed to so late a period as that it could not fairly be considered by the other House of Parliament. With respect to what had fallen from the hon. Member for East Sussex (Mr. Frewen), he thought that he was the last man in that House who ought to have complained. The hon. Member was aware that Wednesday was an open day for independent Members, and that his noble Friend (Lord John Russell) had stated that no Government business would be allowed to interfere with other business on that day. If the hon. Member, therefore, had placed his Bill on the paper yesterday (Wednesday), it might have easily been brought on before three o'clock; because it was not until all the Bills of other Members had been gone through, that the Government brought on the Medical Charities Bill. He hoped they would now proceed to the consideration of the Bill before the House.


was quite ready to go on with the Bill, so far as he was concerned; but knowing that his hon. and learned Friend the Member for Newark (Mr. J. Stuart) entertained strong objections to the Bill, and wished to take part in the discussion, his hon. and learned Friend had stated so much in the House, and yet the Bill had been appointed for a time when his hon. and learned Friend was engaged in the Court of Chancery. There were at this moment sitting on the Government side of the House, just twelve Members, and no more; and they were the persons who were to decide upon this important measure. He had no hesitation in declaring that it was not decent that a Bill of this kind should have been discussed in the way it had. There were not twenty Members of the House who knew its contents. Why, it gave to three barristers, who might or might not be gentlemen of great ability, power which no Judge—not even the Lord Chancellor—had ever possessed. That power had been inserted by the hon. and learned Attorney General, who had admitted that no Judge had ever been invested with it. Power was given to call for the most intimate and confidential communications between the parties. He was willing to trust such a power to the House, but certainly would not consent to give it to three barristers. Moreover, the court would not be an open court. He would divide with his hon. Friend for the adjournment of the debate.


considered it unnecessary to follow the hon. Gentleman through the details he had repeated. As to the Bill not having received due consideration and discussion, he could not avoid saying that it was somewhat strange if the contents of the Bill were so little known to hon. Members, seeing that it had been twice in a Committee of the whole House; that there had been some half-dozen of divisions upon it; and that the hon. Member had himself made at least a dozen speeches upon it.


said, that the hon. Gentleman, on a previous occasion, could only get seventeen Members to vote with him, against forty-five or forty-six against him; he, therefore, considered that there were no grounds for his complaints.


said, that in his opinion the hon. Gentleman who now sat for the borough, ought never to have taken his seat after the Report of the Committee. It appeared to the Committee that extensive bribery had boon committed during the last election; and his opinion was, that where cases of bribery had been made out, they should be submitted to the consideration of a court of law, in order that the offenders might be punished. He believed that such a course alone would prove efficient and satisfactory. At present, bribery at elections was considered and treated altogether as a joke.

Motion, by leave, withdrawn.

Question again proposed, "That the Bill be now read the Third Time."


said, that undoubtedly the legal number of Members to form a House were then present. Indeed, he believed that there were no less than twenty-five hon. Gentlemen on the Government side of the House. He did not pretend to say that the Government had not the power to pass the Bill, or any other Bill they liked; but that should not prevent him from giving his opposition to what he considered to be a bad measure. What were the circumstances? The Committee seated a Gentleman whom they suspected strongly to have been guilty of bribery, and they recommended an inquiry into the conduct of those whom they suspected of having been corrupted by him. He would submit to the inquiry, but it would be for him to consider whether the mode of inquiry proposed was fit and proper, and adapted to the case. In so doing he would first advert to the Clause giving power to these three Commissioners which should be given to no men, unless those of 'the highest judicial character, and who sat on a public tribunal, with the public eye upon them But these inquiries might be carried on in secret, behind the backs of the parties most concerned in them—those very persons whoso conduct was the subject of inquiry, and who had no right or opportunity of being present. To such a proposition he felt bound to say, No. When he found that in this case acts of such gross insolence towards this House had been done, that witnesses summoned by the authority of that House had been carried away with the full intention that they should be kept away until the power of the House expired with the end of the Session, then he must admit that some stringent and cogent remedy must be applied to such a case. But he had to inqure whether the remedy proposed was proper, sufficient, and safe. He might, as he had said already, consent to give this power to the House; and his reason was, that Members of the House of Commons would sit as an open and public judicature, and as the parties implicated were Members of the House also, the judges and the accused would meet face to face. As an instance of the tremendous powers proposed to be given to the Commissioners, he would state that every Gentleman who had over sat for St. Albans might have his affairs dragged before that body, the words of the Bill being "that the said Commissioners shall, by all such lawful means as to them shall appear best with the view to the discovery of the truth, and for such a period, retrospectively, as they shall think proper, inquire," &c. There was thus no limitation as to time, and no rule of conduct laid down, or even suggested to them. Was it safe to pass a Bill investing any Commissioners with such powers? Wishing, as he did, for a full and fair inquiry into the circumstances attending the elections for this borough, one of his objections to the proposal now made was, that this House would, in sanctioning this Bill, sanction a measure that could not by possibility pass in another place, if it met there with the slightest consideration. It was for these reasons that he opposed this Bill, and not from any private motive or interest, for he knew nothing about St. Albans. All the discussions upon the Bill had been taken when the benches of the House were occupied as they were now—by the supporters of the Government; and that was just the reason why Bills of importance did pass, which it afterwards happened that they were obliged to repeal in haste because they had made laws without due deliberation. It was a strong measure to send to the House of Lords the names of three gentlemen selected as Judges. On a former occasion the noble Lord at the head of the Government had left the nomination of Commissioners to the Judges of Assize, and he thought that was the most decorous course. These three Commissioners might turn out to be very proper persons for the appointment; but it did happen sometimes that gentlemen appointed by Parliament as Commissioners were not peculiarly happy in the execution of their duties. He might instance the case of the Commissioners who had acted under the Municipal Reform Act, and even those who had acted under the great Reform Act. The latter had disfranchised two boroughs in the county he represented upon grounds notoriously wrong, and their Report was acknowledged to he inaccurate, and founded upon imperfect information. Under all the circumstances he must oppose the third reading of the Bill. It would defeat the very object of its promoters, to ask the other House of Parliament to agree to such a measure. The other House was no doubt as anxious as this to put down bribery and corruption; but they would say even that must not be done by hasty and unwise legislation. He had before proposed another mode of procedure, which he considered better, and he would repeat it, namely, to appoint a Commission composed of Members of Parliament. The labours of the House would end with the Session; but a Commission of Members might go on while the functions of the House were suspended. But if not, then the witnesses who had been withdrawn would return when the power and authority of the House were lapsed for a time, and return with impunity. It was the duty of the House to maintain the jurisdiction they held with honour to themselves, and respect towards the public, he had proposed a course which he thought the most consistent with the dignity of the House, with public justice, and with justice towards all the parties; but he must give his decided negative to the Bill as it now stood.

Amendment proposed, to leave out the word "now," and at the end of the Question to add the words, "upon this day three months."


said, that before the division was taken, he wished to put a few questions, although he hardly knew to whom, respecting the provisions of the Bill. Perhaps the hon. Member for St. Andrews (Mr. E. Ellice) would inform him whether some provisions of this Bill were fit to become law, or whether they had not inadvertently crept in by some accident or chance medley, and without that duo consideration which was so requisite. The 7th Clause conferred a general power to compel parties to give evidence and produce documents; but he would ask the right hon. Baronet the Home Secretary of State if all the provisions of the clause were necessary? By the 8th Clause, as it originally stood, power was given to indemnify parties who wore engaged in any act of bribery connected with the St. Albans election; and it went on to give power to compel those parties to give evidence even if it tended to criminate themselves; but they were to be preserved from penal consequences for any acts which were so detailed. But then came a rider, which had since been tacked on to the clause, the effect of which would be to leave all other parties, except those so specified, without any indemnity or exemption. He had never seen a precedent for this, and he thought it could hardly have been intended there ever should be one. The case could not have received proper consideration. His objection was also very strong to the bearing down professional privilege and confidence, especially as the inquiry was not to be conducted in public. Another objection was, that no provision was made to guard parties who might be injured by the enforced breaking through of professional confidence. The framers of the Bill had taken good care that the evidence given by professional men should not be used against them; but their evidence might be used against their clients, whose confidence they had been compelled to break. He had always understood that the privilege of the attorney was not his own privilege, but the privilege of his client, and that it was to guard him that the privilege was given; and if the privilege belonged to the client rather than to the attorney, it behoved the House to guard the client who might be injured by the disclosures of his attorney quite as much as to guard the professional man himself who had been compelled to disclose them. He hoped that the object of the Bill was not to oppress individuals, but to discover truth. He had no hesitation in saying that to compel a professional man to violate the confidence of his client, and to make no provision for the defence of that client, was a great and serious injustice. The measure would be a better one if the 8th Clause and the rider were struck out together.


said, that those Amendments had been most carefully considered by the hon. and learned Attorney General, and they had been introduced in consequence of the Sudbury Commission having proved abortive for the want of such powers. He was quite willing, however, to meet the objections of the hon. Member for Oxfordshire (Mr. Henley) by the insertion of such words as would make the exemption co-extensive with the power to compel evidence.


said, that it would not be candid to the hon. Gentleman, if he did not point out to him that such an alteration as he proposed would override the whole object of the clause, and prevent any attorney from being examined. If this measure had received so much consideration from the hon. and learned Attorney General, he was really the more sorry to see the Bill in such a state as it was.


said, he should regret to see the Bill defeat its own purpose, by reason of the inattention which had been manifested, not only to the drawing up of the provisions of the measure, hut to the rights and privileges of Her Majesty's subjects. He had already pointed out to the Government, who so ostentatiously talked of being the guardians of the rights and privileges of Englishmen, the propriety of proceeding with this matter in a constitutional way. With great respect, hut with great earnestness, he would request the attention of the hon. and learned Attorney and Solicitor Generals to the provisions of the Bill. Why was the House called upon to legislate? Because a petition had been presented from St. Albans, complaining of bribery at the last election; because the Committee to which that petition had been referred—a judicial tribunal, with the parties before it—had entirely failed to accomplish the purpose for which they had been appointed. Then, the parties before this judicial tribunal had failed to make out their ease, and after that came a Report from the Committee, stating their belief that gross bribery had been practised at the last election; that their endeavours to ascertain the truth had been defeated by improper moans; but still, notwithstanding all this, that the Member had been duly elected. Then came a recommendation of further proceedings to do that which the Committee themselves had failed to accomplish. He should really have thought that common sense would have been used in framing the Bill so as to form a proper tribunal. Other means could have been found to ascertain the state of the borough of St. Albans as regarded the allegations, and more than suspicions, of bribery, not only at the last, but at preceding elections; but, instead of taking a constitutional course, the Government chose to appoint Commissioners with inquisitorial powers that would violate the rights of any of the people of England who should he so unfortunate as to come within the scope of this Commission. Did the Bill provide either for eliciting the truth from those who complained of bribery, and showed that they had the means of proving it, or for the defence of those who could disprove charges of bribery made against them? There was no provision for cither case. The Commissioners had the discretion of calling before them whomsoever they pleased, but nobody else. He appealed to his hon. and learned Friends the Attorney General and the Solicitor General whether, as constitutional lawyers, they would pledge their reputation to such a brood of Commissioners armed with such unwonted powers, and without the right of accusers and defenders appearing before them? He asked those hon. and learned Gentlemen if that was a constitutional tribunal. He had himself suggested a clause to permit complainants and defendants to appear; but he had been met by utter silence only, and no reason whatever had been brought against his proposal. He did not complain of this as personal disrespect to himself; but he thought that an objection of the kind made by an independent Member, ought at least to have been answered, and some reason given why a great constitutional principle was to be violated. It was said by the hon. Gentleman the Member for St. Andrews (Mr. E. Ellice), that this Bill was in accordance with the Sudbury case. [Mr. E. ELLICE: No, no!] He was glad to hear the denial. But if the hon. Gentleman said that they had not followed the Sudbury case, upon what precedent had they proceeded? They must surely have resorted for one to the times when all the liberties of Englishmen were violated under the Usurpation. He would call the attention of the right hon. Baronet the Home Secretary to a petition that had boon presented on the 17th of the present month from Mr. W. Gresham, of St. Albans, a member of the Society of Gray's Inn, and a respectable solicitor, well known in the profession of the law, and also a voter in the borough, and therefore a man interested in the question which it had boon confessed had not yet been tried by the Committee. Mr. Gresham said in his petition, that, as he had been informed and believed, Henry Edwards had been for years past actively concerned in bribing electors, and in purchasing votes for money in the borough. That petitioner believed that a full investigation could not be had without the examination of the said Henry Edwards, and that the disgrace and ignominy attached to the electors of the borough could never be obliterated or removed, until the said Henry Edwards was placed under exami- nation. Let the House consider the position of Mr. Gresham, as an elector of the borough, stigmatised with others by the report of the Committee. Surely Mr. Gresham felt this ignominy, and that he, with the other honest electors of the borough, was disgraced; and surely it could not be denied that he and those others ought to have the opportunity of being examined before the Commissioners, and stating what they knew of this Mr. Henry Edwards and his coadjutors. But it would be purely in the discretion of the Commissioners whether or not Mr. Gresham would be allowed to utter a syllable before them. Would any man say it was decent or consistent with the rights of the honest part of the electors of St. Albans that a Commission with such powers should be constituted? He said fearlessly that it was unconstitutional and unprecedented. Mr. Gresham had stated that he was of whig politics, and he did not wish to take an open part against this Bill, or in opposing the Government; but if the House wished to guard the liberties of the people, they would not invest any set of Commissioners with the power of proceeding ex parte and with no proper judicial functions to perform; because no judicial functions could be exercised unless the accuser and defender were before the tribunal. The hon. Chairman of the Committee (Mr. E. Ellice) had avowed that he was not a lawyer, but that he had framed the Bill under the advice of the law officers of the Crown. That being so, it was a pity those hon. and learned Gentlemen were not present to explain their part in the drawing of the Bill. The measure annulled not only the professional privilege, but every other privilege, and put the Commissioners beyond all the rules by which such proceedings had always been regulated he hoped that his hon. Friend (Mr. Bankes) would divide the House. The people of England ought to know how many Members were present, and who they were who voted for such a measure as this.

Question put, "That the word 'now' stand part of the Question."

The House divided:—Ayes 37; Noes 16: Majority 21.

List of the AYES.
Anderson, A. Duncan, G.
Bellew, R. M. Duncuft, J.
Bouverie, hon. E. P Dundas, rt. hon. Sir D.
Brown, W. Ellice, E.
Dalrymple, J. Evans, W.
Davie, Sir H. R. F. Freestun, Col.
Grenfell, C. W. Pigott, F.
Grey, rt. hon. Sir G. Pilkington, J.
Harris, hon. Capt. Pusey, P.
Hervey, Lord A. Tancred, H. W.
Heyworth, L. Thicknesse, R. A.
Hughes, W. B. Thompson, Col.
Matheson, Col. Watkins, Col. L.
Mostyn, hon. E. M. L. Wawn, J. T.
Mowatt, F. Williams, W.
Mulgrave, Earl of Wrightson, W. B.
Paget, Lord C. Young, Sir J.
Patten, J. W. TELLERS.
Pechell, Sir G. B. Hayter, W. G.
Pendarves, E. W. W. Hill, Lord M.
List of the NOES.
Arkwright, G. Goddard, A. L.
Barrow, W. H. Hodgson, W. N.
Buller, Sir J. W. Pugh, D.
Bunbury, W. M. Seaham, Visct.
Colvile, C. R. Somerset, Capt.
Floyer, J. Tyler, Sir G.
Forbes, W.
Frewen, C. H. TELLERS.
Fuller, A. E. Bankes, G.
Gallwey, Visct. Stuart, J.

Main Question put, and agreed to.

Bill read 3°, and passed.

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