SECOND READING. (Hansard, 23 June 1858)

§ MR. WARREN
Mr. Speaker, it is painful to me to rise for the purpose of endeavouring to defeat a Bill bearing on the back of it the names of two hon. Friends of mine on this side of the House; but I trust soon to satisfy it that I, or some other Member, ought to have done so. The Bill appears to me, I must say, a very inconsiderate interference with a carefully-constructed system of election law administration, and the proper dealing with such a Bill becomes, therefore, of great constitutional importance. What will the House think when I tell it that the object of this Bill, of a single clause, is to place our scats at the mercy of every young barrister who has worn wig and gown for barely three years, however gross and grievous the consequence of his blundering—to sweep away at once all that protection which the Legislature has so carefully afforded us by vesting it in a sworn 246 Select Committee of ourselves? I can easily conceive that this is a course very natural in the case of those who have recently smarted under the cruel expense and agonizing anxiety and suspense of a scrutiny; but the question is, shall we get rid of a scrutiny by the means afforded by this Bill? A few words will suffice to place the present position of the law before the House. By the Reform Bill of 1832 the difficult and responsible functions of determining the right to vote, exercised by returning officers, during all the turmoil of protracted and excited election proceedings, were wisely transferred to a new tribunal—that of revising barristers, making a calm annual revision, at stated periods, of the lists of voters. The 60th section of that Act made the register—which he had finally completed, questionable before a Select Committee, in the case of "the decision" of a barrister "improperly" inserting, retaining, or omitting the name of a voter, nothing being said about the case of his improperly expunging one. The continuance of that qualification, down to the moment of polling, could be ascertained by questioning the voter, who must then answer at his peril. These things continued till 1843, when one of the best-drawn Acts on the statute book was placed there under the auspices of the right hon. baronet below me (Sir James Graham), then Home Secretary. It was the statute 6 Vict., c. 18, which effected most important changes in the machinery of election law which were shown by the intervening eleven years' experience to have become necessary; and it is to these changes—as far as effected by this Bill—that I wish to call the serious attention of the House. In order to provide against the miscarriages of these revising barristers—against whom I bring no charge whatever, and utter not a single word of imputation on them—a very bold course was adopted: their decisions on any point of law material to the case, and of law alone—all questions of fact, and as to their admission, or the effect, of evidence offered before them being specially excluded—might be submitted to the decision of the Court of Common Pleas, whose decision would be final and binding on any Committee of the House of Commons. But even this appeal against his own erroneous decision, was dependent altogether on his own discretion in granting or refusing leave to do so. The register thus prepared by him was to be conclusive evidence of the continuance of the qualifica- 247 tion down to the moment of voting, and the question at the poll relating to that point was abolished; but there were two cases excepted—that a county vote was declared unlawful if the qualification, or a sufficient proportion of it, was not at the moment retained by the voter; and a borough voter was required to have resided within the borough, down to the time of voting. But now came the most important of all the alterations effected by this salutary statute—that of section 98. It placed three limitations, and three only, on the finality and conclusiveness of the register, as left by the revising barrister. It allowed an appeal to a Select Committee;—first, in the ease of votes "specially" inserted, retained, omitted, or expunged by his "express decision;" secondly, in the case of a voter labouring under any statutable incapacity at the time of voting; thirdly, in the case of any incapacity which might have arisen subsequently to the revising barrister's completion of the register. Thus stands the law at this moment in England, and that of Ireland was placed on the same footing in 1850, by statute 13 & 14 Vict. c. 69. Thus an appeal is most properly granted against the erroneous insertion, retention, omission, or expunging of any name by a revising barrister, after everything has been done which could be done, at the time, to contest the propriety of his ruling, and to prevent the polling-books being crowded by names of those who have, whether challenged or not at the revision, become, since his decision, disqualified from exercising the elective franchise. Well, now, what does this Bill propose? Simply to annihilate the powers of our Select Committees, by declaring that, with the sole exception of "acts done by the voter at the election," the register as it left the revising barrister's hands shall be "final and conclusive, before an Election Committee, to all intents and purposes, as to the right to vote of every person who shall be on such register." No matter how grossly or obstinately wrong the revising barrister may have been in deciding either law or fact, in spite of the clearest proof and most cogent reasoning before him, at the cost of great expense and exertion—though he may have wrongfully omitted from the register large classes of voters whose right to stand there was really as clear as noonday, or swamped the register with those who had no pretension to be there—no matter how many aliens, placemen, paupers, 248 infants, idiots, or convicted felons may have been placed on the register and polled at the election—there is to be no redress; the House of Commons is to look on impotently at such a creditable state of things; matters will of course grow worse and worse every year and with every election, if such a state of things is to be tolerated by the Legislature, and those will sit here who ought never to have entered the House, and those be excluded who are the unquestionable and honoured choice of the people. I am unfeignedly curious to see by what arguments such wild changes as these can be, I will not say justified, but excused. What necessity has called for them? I protest I know of none, and yet I have for years paid great attention to these matters. I know that it is a serious, sometimes a ruinous, misfortune to be the victim of a scrutiny; but at the same time we are not left without redress for actual injury, by the costs which may be inflicted by a Committee, while the dread of them operates as a sort of natural protection against recklessness or malice. I could bring forward other reasons which have occurred to me, but I really think I have satisfied the House that it ought no longer to entertain this Bill, and I therefore have no hesitation in moving that it be read a third time this day six months.

§ MR. JOHN LOCKE
said, he was at a loss to find in the speech of the hon. and learned Member for Midhurst any argument which could induce him to reject a Bill which had so many merits. In the first place it was very short. In the second it would remove a great grievance, which was severely felt by all persons who contested a scene in that House. He alluded to the expense of a scrutiny. No doubt it would render entirely useless the numerous publications which had appeared of recent years on the subject of election law. It would not, however, as his hon. and learned Friend seemed to imagine, leave the seats of all Members at the mercy of the revising barristers. The register was open to public inspection; and consequently it was perfectly clear that it was just as fair to one candidate as to another, at a county or borough election, to compel both to accept the registry in existence at the time of an election contest as final. Why, then, should the 249 registry be re-opened by a Committee of that House? Was the decision of a Committee of that House with respect to a vote likely to be better than that of a revising barrister, reviewed as that might be in point of law by the Court of Common Pleas? He thought that the scrutiny obtained through the medium of the revising barristers and the Court of Common Pleas was as good as they could reasonably expect to obtain.

§ MR. BARROW
said, the real question before the House was whether its Members should be elected by real or fictitious voters. A large class of voters duly entitled at the time of making up the registry might have since become disqualified. And the point was, whether a Committee of that House should have the power of striking them off? The Bill answered that question in the negative, and he hoped therefore, it would not be allowed to proceed further.

§ MR. STEUART
said, he would remind the House that in every case there was a cheap and easy appeal from the decision of the revising barrister to the Court of Common Pleas, and that election Committees were not at liberty to review the judgments of that tribunal. The fact was, indeed, that Committees were seldom willing to enter into cases which had been decided by the revising barristers. It was his intention to support the Bill, believing that it was founded upon a right principle, and that all the points which had been raised by its opponents might be satisfactorily discussed in Committee.

§ MR. WALPOLE
said, that before proceeding to consider the merits of the present Bill, it was important to ascertain the state of the existing law, which he thought had been stated not quite correctly. Under the 6 & 7 Vict., c. 18, sec. 79, it was enacted that at a future election of Members to serve in Parliament the registry of voters should be deemed conclusive evidence that the persons therein named continued to have the qualification set opposite to their name. Therefore the registry was conclusive evidence of the possession of qualification; and as to whether a person was properly qualified or not, that question was decided, first by the revising barrister, and afterwards, if a case were granted, by the Court of Common Pleas, so that he thought there was no necessity for an alteration in the law so far as the question of qualification was concerned. But this 250 Bill said that the registry should be conclusive, not only as to the qualification, but to all intents and purposes as to the right to vote of any person who should be on such registry, except so far as the vote of such person may be disputed on the ground of some act done by such person at such election; such, for instance, as bribing and treating. That raised the question whether there might not be some circumstances by which the elector would be disqualified from voting at an election, although duly qualified when the registry was made up. It was certain, at all events, that the 98th section of the Act, 6 & 7 Vict., empowered Election Committees to decide upon the right to vote of any person whose name appeared on the register, so far as it might be disputed on the ground of legal incapacity at the time of the election, or on the ground of any other incapacity which might have arisen subsequent to the expiration of the time allowed for making out the list of voters, Excise and Custom House officers, as well as persons in the receipt of parochial relief, were legally incapacitated from voting; and before altering the existing law, the House were bound to consider what might he the probable consequences of admitting a class of persons upon whom great influence might be exercised by public authorities. He had no objection to make the register as conclusive as was possible, consistently with those grounds which the Legislature had thought right to introduce to proctect the independence of the voters; but the present Bill went too far, and if it were to be proceeded with, he hoped considerable alterations would be introduced in Committee. Considering, however, the period of the Session at which we had arrived, he thought the Bill ought to be withdrawn.

§ MR. COLLINS
remarked, that the object of the Bill was merely to extend the application of a principle already in operation, and which was proved to work beneficially, and to remove doubts upon questions of legal incapacity in respect to residence and other matters upon which, as the law now stood, conflicting decisions were frequently come to by Election Committees. The question, after all, was merely one of convenience—voting was the mere creature of statute, for no man had an inherent right to vote; and it was a great question whether it was not more convenient to leave these questions to local tribunals. He did not think that revising barristers always 251 acted correctly, but neither was he of opinion that the decisions of the Committees of this House could never be impugned. He could quote several instances of mere election law, which were decided by the Committees more according to the party feelings of the Members than according to the law of the case. He also urged the propriety of making the register conclusive on the ground of its making election scrutinies cheaper—a matter of some importance now, when the property qualification was abolished, as there was a probability that they would have a class of Members less able to bear the expense. As to the Bill, he did not think there was much chance of its passing this Session, but he thought the principle it contained ought to be affirmed by a second reading.

§ MR. M'MAHON
said, he should support the Bill because there was a precedent for it in the Irish Act, where the register was conclusive both as to the qualification and as to the residence. Confined to that object, he thought the measure might be carried through in that Session.

§ MR. GREAVES
said, he wished to instance a case where a man occupied property of the clear yearly value of £10, but the Common Pleas decided that he had some relation to the property in his corporate capacity as owner, and they held that, in order to have a vote, a man must be either landlord or tenant. He thought, therefore, that the House ought not to give up its right of revising these decisions, which in the case he had named seemed to him to be unfair.