Order read, for resuming adjourned Debate on Question [24th July]. That the Clause,
(And whereas doubts have also arisen as to whether the giving of refreshment to Voters on the day of nomination or day of polling be or be not according to law, it is expedient that such doubts should be removed; Be it Declared and Enacted, That the giving, or causing to be given, to any Voter on the day of nomination or day of polling, on account of such Voter having polled, or being about to poll, any meat, drink, or entertainment by way of refreshment, or any money or ticket to enable such Voter to obtain refreshment, shall be held and be taken to amount to bribery or treating, as the case may be within the meaning of this Act,")
§ Be now read a second time.
§ Question again proposed. Debate resumed.700
§ MR. WALPOLE
said, he must take that occasion to express his dissatisfaction with the clause proposed by the noble Lord the President of the Council, providing that refreshment given to a voter on the day of polling, or the day of nomination, should be regarded as an act of bribery, or of treating within the meaning of the Act. He submitted to the House that such a provision was too severe and stringent, and that it greatly exceeded the requirements of the case. It was a clause which did not present any analogy with the practice and general conduct of the Members of that House; for nothing was of more usual occurrence than that political leaders in that House—such, for instance, as the noble Lord the President of the Council, or the chief of the Opposition, should give dinners to their supporters. If a Member of the House of Commons were to be allowed to give a political dinner to his supporters, why should not a candidate be permitted to entertain his constituents at breakfast on the day of the election? He begged of the noble Lord to consider the propriety of withdrawing a clause which public opinion did not approve, nor any public exigency require.
§ MR. THORNELY
said, he was in favour of the clause, being distinctly of opinion that it was no duty of a candidate to pay any of the expenses of the voter, whether as regarded refreshment or travelling expenses. If refreshments were to be permitted in any form, however mitigated, the door would be opened for all those practices of riot and prodigality which had, unfortunately, brought so much discredit on the electoral system in this country.
MR. TATTON EGERTON
said, he thought that moderate refreshment ought to be allowed, at all events at county elections, to voters who had travelled many miles to record their votes. The greatest political purist in the country could not, with any colour of truth, contend that any prejudice could result to public morals or to the public welfare, by allowing candidates to give luncheon, or refreshment of some trivial kind, to an elector who might have undergone much fatigue and inconvenience for the purpose of discharging a public duty. Such inordinate severity, he considered, would only defeat its own purpose.
§ MR. STANHOPE
said, he wished to know, if this clause became law, how voters were to be got to the poll? Was it expected that poor men would come ten miles 701 and upwards to the poll, having afterwards to pay for their refreshment, besides sacrificing the value of their day's work? He believed any hon. Gentleman who had ever contested a county would tell them that it was positively impracticable to get those persons to the poll without giving them some moderate refreshment. If they made the law as stringent as it was proposed by this clause, they would have all classes evading it.
§ MR. HEYWORTH
said, if they wished to obtain a great principle, they must be prepared to submit to some sacrifice. Although it might be very disagreeable for a candidate to be unable to show his friends hospitality, yet the disadvantage would be more than compensated by the increased purity of election, for he believed a man could not give a farthing to a voter without degrading him in his own eyes.
§ MR. M'CANN
said, he regretted that the noble Lord had gone so far wrong as to allow travelling expenses, and if he consented to allow the introduction of a new system of bribery, by means of refreshment tickets, he should feel himself obliged to vote against the declaration.
§ CAPTAIN SCOBELL
said, he approved of the clause, believing that the sanctioning of refreshments would vitiate the whole Bill, by opening the door to all manner of deception and collusion on the part of the election agents. He was decidedly of opinion, that if any such provision were introduced into the Bill as would interfere with its effective operation, the consequence would be that the country would call for the ballot in a voice that could no longer be resisted.
§ Mr. E. BALL
said, he should support the clause, for if candidates were to be allowed to give refreshments in any proportion, however small, excess would sooner or later be the consequence, and it would be impossible to prevent the recurrence of those scenes of intoxication and crime which were a disgrace to this country. His election cost him nothing. He would never enter that House if obliged to have recourse to such means. The more efficient way to secure a pure constituency was by sending Members to that House free of expense. He was ready to support anything by which corruption should be diminished, and the purity of that House secured. He should vote against treating in any shape whatever, for to permit it in any form would be to let in the narrow end of the wedge.
§ MR. BARROW
said, he thought that the elector ought under no circumstance to be bribed or rewarded for the exercise of his franchise, but it was only fair that he should be relieved from expense in regard to the discharge of that duty. The poor elector made a sufficient sacrifice when he sacrificed his time for the public good, but he thought it would be too much to expect that he should also defray his own expenses in the matters of refreshment and travelling.
§ Question put.
§ The House divided:—Ayes 77; Noes 35: Majority 42.
§ Clause read a second time.
§ MR. BANKES
then moved an Amendment for the insertion of certain words in the clause, the effect of which would be to legalise the allowance of refreshments which were reasonably incidental to the travelling expenses of the voters.
§ Amendment proposed in line 7, after the word "refreshment," to insert the words "not being refreshment reasonably incidental to the travelling expenses of such voter."
§ LORD JOHN RUSSELL
said, the object of the clause which he had moved was to put an end to uncertainty on this subject, but he was afraid the Amendment proposed by the right hon. Gentleman, if adopted, would lead again to that uncertainty which it was so desirable to do away with. It would be very difficult to say what were expenses reasonably incidental to travelling, and, supposing at a county election 100 voters were assembled in a tent, it would be extremely difficult to discriminate between those who came a long distance and those from the neighbourhood. He could not, therefore, accede to the proposal.
§ SIR FITZROY KELLY
said, that although he had every wish to put down treating as well as bribery, he thought it would be carrying legislation too far if they rejected the Amendment proposed by his right hon. Friend (Mr. Bankes). If the voter came a distance of a mile or two, he certainly ought not to be allowed refreshment, but it was different where he came from a long distance, in which case his travelling expenses ought to be freely 703 paid; and he (Sir F. Kelly) did not see how they could refuse to allow him some reasonable refreshment, because in many cases the voter would come from distant counties—from Cumberland, Northumberland, Cornwall, and even Scotland and Ireland; and he asked, were such persons to be starved on the journey? If the object was merely to legalise the giving of refreshment to those who only came a few miles, he should oppose it; but, as he understood it only referred to such expenses as were reasonably incidental to travelling, he must express a hope that the noble Lord would give way on the point.
MR. J. D. FITZGERALD
said, he believed that the object with which the present Amendment was proposed was already attained by the 24th clause, which authorised candidates to defray the cost of "bringing voters to the poll." Now he felt sure that the courts of law would construe those words to include his reasonable refreshment on the journey. It was, in fact, what was known to lawyers as a viaticum.
§ MR. SPOONER
said, that at all events it was clear that the noble Lord had not attained the object which he said he had in view—that of settling the law on this point; for the hon. and learned Gentleman who had last spoken and the Attorney General had given directly opposite opinions on the question whether "travelling expenses" included the cost of the necessary refreshments taken by the voter on the journey.
§ MR. J. G. PHILLIMORE
said, he thought the insertion of the travelling expenses clause a great mistake, and he hoped the noble Lord would not add another to the Bill by consenting to this Amendment.
§ MR. W. WILLIAMS
said, the hon. and learned Member for East Suffolk (Sir F. Kelly) now proposed to open a wide door for corruption, which, if the Amendment was agreed to, would extend throughout the country. The whole of the mischief had been caused by the noble Lord (Lord John Russell) giving way to the insertion of the clause excepting travelling expenses from the operation of the Bill. If he was about to consent to this Amendment, he considered the noble Lord had better give up the Bill altogether.
THE ATTORNEY GENERAL
said, that he still adhered to the opinion he had before expressed, that when they sanc- 704 tioned the payment of the expenses of bringing a man from one place to another, they did not also sanction the expense of feeding him. He had himself voted against the clause authorising the payment of travelling expenses; but still he must admit that there was a great distinction between that and the payment for refreshments. A man must cat wherever he was, and therefore there was no reason why a candidate should defray for him a charge which he must otherwise have borne himself. His travelling expenses were, however, not an expenditure which he must necessarily incur, and there was, therefore, some—though he thought not sufficient—ground for relieving him from them. He should oppose the Amendment, believing it would open the door to corruption and abuses without end. It was not difficult to discover what a man's railway fare came to, and therefore to see what was the proper allowance for his travelling expenses; but it would be utterly impossible to say how much he should be allowed for refreshment on the journey.
§ LORD ROBERT GROSVENOR
said, that everything that he heard confirmed him in the objections he entertained to the clause which authorised the payment of travelling expenses, and he therefore now gave notice that he would move its omission on the third reading of the Bill.
§ MR. HENLEY
said, that it was his intention to support the Amendment, believing that it would remove the doubt and uncertainty which he thought existed as to what expenditure had been authorised under the cost of "bringing a voter to the poll." It was not at all clear whether these words authorised the payment of his hotel bill.
§ Question put, "That those words be there inserted."
§ The House divided:—Ayes 61; Noes 113: Majority 52.
§ LORD ROBERT GROSVENOR
then moved to leave out from the word "refreshment," in line 7, to the end of the clause, in order to insert the words "shall be deemed an illegal act, and the person so offending shall forfeit the sum of 40s. for each offence to any person who shall sue for the same, together with full costs of suit," instead thereof.
§ MR. HILDYARD
said, he wished to point out that any one guilty of treating came within the 7th clause, and would be consequently subjected to all the disabilities which the Legislature certainly did not in- 705 tend to operate against any one who had violated the noble Lord's clause without any corrupt intention. He thought the introduction of the words "provided that such persons so offending should not be deemed to be guilty of treating within this Act" would obviate the difficulty.
THE ATTORNEY GENERAL
said, he really thought the Amendment entirely unnecessary. Treating was defined by the Bill as corruptly giving refreshment to the voter, and that was the only way in which they could incur the heavy penalties of the 7th clause. This had reference merely to the case of supplying refreshments without any corrupt intention.
MR. J. D. FITZGERALD
said, he would call the attention of the House to the fact that both in the Amendment and in what was termed "the treating" clause the word "offence" was used, and he therefore thought there ought to be some specific words defining it.
§ Amendment agreed to.
§ MR. M'MAHON
then moved the insertion of the following clause after Clause 14—In case of any indictment or information by a private prosecutor for any offence against the provisions of this Act, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the defendant by reason of such indictment or information, such costs to be taxed by the proper officer of the court in which such judgment shall be given. It shall not be lawful for any court to order payments of the costs of a prosecution for any offence against the provisions of this Act, unless the prosecutor shall, before or upon the finding of the indictment, or the granting of the information, enter into a recognisance, with two sufficient sureties, in the sum of 200l. (to be acknowledged in like manner as is now required in cases of writs of certiorari awarded at the instance of a defendant in an indictment), with the conditions following, that is to say, that the prosecutor shall conduct the prosecution with effect, and shall pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs.He thought that in such a case as was contemplated by the clause they were bound to give the defendant the same protection which he would receive in regard to costs against any malicious penal action. There was no novelty at all in the principle, and if it were not adopted candidates, agents, and all other persons engaged in an election would be liable at all times to the most vexatious proceedings. So far back as the reign of Edward I. a similar provision had been adopted in cases of appeal, and by the Act passed a few years back, it was applied to undue pro- 706 secutions for libel. By a second clause which he wished to wished to bring forward, he proposed that it should not be lawful for any court to order payment of the costs of a prosecution for any offence against the provisions of this Act unless the prosecutor should, before or upon the finding of the indictment or the granting of the information enter into a recognisance with two sufficient sureties in the sum of 200l., which be believed would be the amount of costs to be awarded in ordinary cases, on condition that the prosecutor should conduct the prosecution with effect, and should pay costs to the defendant, if acquitted. If the clauses were adopted, every private prosecutor would be at liberty, just as much as he was at present, to go before a grand jury and prefer his indictment, but with this difference, that he must go on with the prosecution—there must be no compromise or trifling with justice. It was not only for the benefit of the candidate, but for the benefit of all parties, that these clauses, founded on common sense and justice, should be adopted.
§ MR. PHINN
said, he opposed the clause on the ground that the point was fully discussed in the Select Committee, and it was not considered desirable to insert such a provision. The policy of the law was not only to trust to public prosecutors, but to allow private persons to institute prosecutions; but they now sought to introduce a new principle, making prosecutions under this Act exceptional cases, and calling upon persons to give security for costs, which was a course wholly unknown even in cases of felony. In his opinion the power of prosecution should be free and unrestricted, otherwise they would throw the whole weight and responsibility on the Crown. The Bill did not make it compulsory on the Judge to award costs in case of a vexatious or malicious prosecution. A discretionary power in this respect was placed in the hands of the Judge. As a general provision that all parties wrongfully or vexatiously prosecuted should recover costs, he should have no objection to see something of the sort carried; but he objected to make an exceptional case, as proposed by these clauses.
§ SIR FITZROY KELLY
said, he considered it absolutely necessary some provision should be made for the particular cases arising out of this Act. Prosecutions for murder, burglaries, or felony of any kind were seldom preferred from private motives, but it would be quite dif- 707 ferent with the cases which it might be supposed would arise out of this Act, on account of the great temptation there would be to indict for bribery from feelings of political partisanship and private animosity. They must recollect, also, that by the Bill they were creating a numerous class of offences, and it was highly desirable that, under the peculiar circumstances of the case, the persons prosecuted should have the protection sought to be given to them by this clause.
§ MR. J. G. PHILLIMORE
said, he should support the clause, and thought all those who intended to become candidates at the next election would do well to follow his example. They had, as the hon. and learned Member for East Suffolk just said, created a numerous class of offences, and they must take care that public objects were not sacrificed to private malice.
§ MR. HILDYARD
said, he was surprised to hear the hon. and learned Member for Bath (Mr. Phinn) attempt to argue that, because such a provision would not be applicable to cases of felony, it ought not to be introduced in this Bill, especially after the precedent furnished by the decision of Lord Campbell, which, being delivered in a case of libel, would be more analogous to a case under this Act than any other. If persons were to be exposed to innumerable actions from questionable motives, and were deprived of the protection afforded by this clause, he believed that the result would be, that the House would rise in indignation and sweep away the power of bringing actions for penalties under the Act altogether.
THE ATTORNEY GENERAL
said, that with regard to bribery prosecutions, they stood on ground very different to that of penal prosecutions. He thought sufficient reason did not exist for making a particular exception in cases of bribery. If too many difficulties were put in the way of prosecutors, then they would find that the law would not be put in force in cases in which the law ought to be resorted to. He admitted, where actions were brought without reasonable cause, and from vexatious and malicious motives, that prosecutors ought not to be awarded their costs. But how would they prove motives, or that prosecutions were vexatious or malicious? He had no objection to meet the difficulty this way—to give a discretionary power to the Judge, in case the Judge might think a prosecution improper and malicious, to award costs; but he must 708 say, he felt considerable hesitation in interfering with the old principle of English law, by which the costs were dependent on the result of the verdict.
§ MR. BARROW
said, he considered that, in instances where private pique and passion operated, as might be reasonably expected in these cases, some protection ought to be given, and that the Judge should have discretion as to the allowance of the cost.
MR. J. D. FITZGERALD
said, he had always thought it unwise to vest any such discretion in the Judge, approving the simple rule, that the costs should go to the successful party. If they made the exercise of that discretion contingent on the presumption of malice, he should like to know how that question could be tried? It was much better either to leave the clause as it stood, or reject it altogether. He must say he was surprised to hear the observations of the hon. and learned Member for Bath (Mr. Phinn) on this particular subject. He knew a notable instance of the efficiency of the protection now sought in the case of a friend of his, who was Lord Mayor of Dublin, who had told him that, having been elected for that city, he had had no less than 170 actions brought against him, no doubt with the intention of ruining him by means of the costs required in defence, and which attempt was only defeated in consequence of the necessity of the parties giving security for the costs. He would advise the House, instead of giving prosecutors full swing, to throw all the protection they could around the prosecuted, to defend them against actions which were not bonâ fide.
§ THE LORD ADVOCATE
said, that in his opinion, this being a matter of public, and not private interest, it would be exceedingly desirable that prosecutions should be conducted by a public officer, and not left to private parties.
§ MR. M'MAHON,
in reply, said, he must contend, that the principle embodied in the clause was by no means a new one in the English Constitution, he having examined the opinions of most of the text writers on the subject. He hoped the day would come when the House would pass a law whereby those who brought groundless actions under this Act against individuals of known credit, worth, and station, would be fined, imprisoned, and compelled to pay the costs of the men they had perilled in person and property. He could not conceive a more humiliating position than that 709 of a Gentleman who, having come to the table and made the required declaration, was immediately after prosecuted by such parties for bribery and treating on the chance of getting a verdict against him. It was needless to say that the clause did not apply to prosecutions directed by the Crown.
§ Clause agreed, to, as was also another clause brought forward by Mr. M`Mahon.
§ Three new clauses were then proposed by Sir F. Kelly, and agreed to.
§ Bill to be read 3° on Friday, and to be printed.