§ MR. WESTHEADsaid, he rose to call the attention of the House to a question of Privilege, and he meant to conclude with a Motion. The petition relative to the Pontefract election, which was presented a few days ago, had attracted considerable attention, not only in that House, but throughout the country. The Report of the Committee appointed to inquire into the allegations of that petition had only just been circulated, and he had not succeeded in obtaining a copy of that Report until within a very short time of the meeting of the House.
§ MR. MALINSrose to order. He had himself a Notice on the paper for a Motion for the issue of a new writ, which was, he imagined, a matter of privilege, and was entitled to precedence.
§ MR. SPEAKERsaid, the hon. Member for York (Mr. Westhead) had stated that he intended to conclude with a Motion on a question of privilege. That hon. Gentleman was in the possession of the House, and if the question to which he was calling attention was one of privilege he was entitled to proceed.
§ MR. WESTHEADproceeded. When interrupted, he was saying that he had only obtained a copy of the Report of the Committee shortly before the meeting of the House, and had not been enabled to do more than glance over it very hastily. It appeared to him that by far the larger portion of that Report might be regarded as little more than a narrative of the allegations of the petition of which it might be said to be an analysis; but he would draw the attention of the House, and especially of the hon. and learned Member for Pontefract (Mr. Overend) to the three concluding paragraphs of the Report, which seemed to contain the sum and substance—the very kernel, as it were—of the Committee's decision. The 17th paragraph ran thus:—
Such are the facts with reference to the withdrawal of the Pontefract election petition. Many of these facts are still under dispute; but one thing is clear, and that is, that a great misconception has prevailed throughout, as well with regard to the intention of the parties, as also with regard to the meaning and effect of the memorandum itself. The consequence is that the election peti- 1406 tion has never been tried, the agreement intended to be substituted for it has failed of taking effect, and the rights of the parties with regard to the seat have not been determined.The 18th paragraph was of especial importance at the present moment:—Under these circumstances, your Committee are of opinion that the petitioner should, if possible, be restored to the same position in which he stood before the agreement of the 19th of July, 1S59, was signed, and before the election petition was withdrawn; but your Committee must leave it to the House to determine whether it possesses the power of restoring the petitioner to that position.The 19th paragraph said:—Your Committee have refrained from giving any opinion on the personal matters which have been brought under their notice. As the character or conduct of several parties have been more or less impugned, they have allowed a fuller latitude of statement than they would otherwise have thought right; but having done that, in order that everything which can be urged on either side may fairly be brought under the consideration of the House, they conceive that they will beat discharge their duty by confining their observations to the only matter which has been specifically referred to them—namely, the allegations contained in the petition of Mr. Childers, relative to the withdrawal of the Pontefract election petition.Now, he wished particularly to draw the attention of the hon. Member for Pontefract (Mr, Overend) and of the House to that portion of the 18th paragraph which referred to the circumstances in which Mr. Childers had been placed in connection with this petition. He would not attempt to go through all the allegations of the petition, nor would he refer to the observations occurring in the course of the Report, which seemed to indicate a strong feeling in favour of Mr. Childers on the part of the Committee. He thought, however, that when the following words of the 18th paragraph were fairly considered there was but one course open to the hon. Member for Pontefract:—Under these circumstances your Committee are of opinion that the petitioner should, if possible, be restored to the same position in which he stood before the agreement of the 19th of July, 1859, was signed, and before the election petition was withdrawn.He was sure the experience of hon. Gentlemen who had for any long time occupied seats in that assembly would lead them to the conclusion that it was quite impossible by any act of the House to restore the petitioner to the position in which he stood before the 19th of July; but the Committee had, as it appeared to him, offered in this paragraph a suggestion which was clear 1407 and patent to any man who regarded the subject with the eye of honour. If it were possible by any act of that House to replace Mr. Childers as a petitioner before a Committee in the same position in which he stood previous to the 19th of July, he thought it would be only justice to do so, because it must be remembered that for two or three months past Mr. Childers had been prepared with a large array of witnesses, who were to be produced before the Committee to establish his claim to the seat. He put it to the hon. Member for Pontefract and to any hon. Gentleman who had read the petition, and especially the Report, to say whether it was not perfectly evident that throughout the whole proceeding there was a clear understanding on the part of Mr. Childers and his agent that the seat was in issue.
§ MR. MALINSagain rose to order, and appealed to the Speaker whether from the tone of the hon. Gentleman's speech this could be regarded as a question of privilege. The hon. Member was appealing to another hon. Gentleman, who had as good a legal right as himself to sit in that House, to ascertain whether he intended to resign his seat. It might be very convenient to the hon. Member and those who shared his views to put such a question, but he (Mr. Malins) could not see in what respect it had anything to do with the privileges of that House. The hon. Gentleman, referring to the substance of the Report, had said that there were no means by which the parties could be put into a position similar to that in which they stood before the 19th of July. He (Mr. Malins) had not had time to read the Report. ["Order."]
§ Mr. SPEAKERsaid, the hon. and learned Gentleman must confine himself to the question of Order.
§ MR. MALINSwould submit, then, whether the hon. Member for York was entitled to make an appeal to another hon. Member with the view of ascertaining whether he intended to resign his seat under pretence of raising a question of privilege.
§ MR. SPEAKERsaid, the hon. Member for York had risen to address the House on a question of privilege, relating to the compromise of the Pontefract election petition. The House had entertained that question as one of privilege, and the matter had been referred to the consideration of a Committee. The hon. Member for York was now calling the attention of the House to the circumstances that the Report of the Committee left it to the House to deter- 1408 mine whether they possessed the power of restoring the petitioner to the position in which he stood before the 19th of July. He understood that the hon. Gentleman intended to conclude with a Motion, with the terms of which he (Mr. Speaker) was not at present acquainted; but so long as the hon. Member addressed himself to the subject of his Motion—it being for the House to decide subsequently whether that Motion could be entertained—he was not out of order.
§ MR. WESTHEADresumed. It was not his intention to trespass upon the time of the House, but he thought—in the absence of the hon. Member for Birmingham (Mr. Bright), who had in the first instance brought the question under their notice, and had moved for the appointment of the Committee — that he could not move any Resolution on the subject without drawing special attention to the circumstances of the case. When he was unduly interrupted by the hon. and learned Member for Wallingford, he was going on to say that it was quite clear, from the Report of the Committee, that from the outset neither Mr. Childers nor his agent had been actuated by any corrupt motive, but that their intention from first to last was to claim the seat. He was fully convinced that that was the single object they had in view. Since then the Committee had recommended in terms so clear and decided that Mr. Childers should, if possible, be restored to the same position in which he stood before the agreement of the 19th of July, he thought, it evident that there was only one way in which the House could hope to escape from the difficulty in which they were placed; for the Committee were not able to suggest any complete and satisfactory remedy, and it appeared to him that at the present moment the House of Commons was not in a position to enter into the case. If time had permitted, the House, in conformity with the recommendation of the Committee—four Members of which out of the seven he would remind hon. Gentlemen were chosen from the other (Opposition) side—might have attempted to remedy the evil in the best way they could by passing an Act which would have placed the hon. Member for Pontefract and Mr. Childers as nearly as possible in the position in which they stood before the election petition was withdrawn. The period of the Session, however, precluded the adoption of such a course, and he therefore appealed to the only person who could relieve 1409 them from the difficulty, and who could if he pleased restore to his rival his sword, and go down and fight the battle again fairly before the electors of Pontefract He begged to move that the Report of the Committee be now read.
§ MR. CRAUFURDseconded the Motion.
§
Motion made, and Question proposed,—
That the Report from the Select Committee on the Pontefract Election (Childers' Petition) be now read.
§ MR. SELWYNsaid, that as a Member of the Committee, he might be pardoned for troubling the House with a few observations on this subject. He had himself proposed the 18th paragraph of the Report, and he thought the hon. Member for York had not correctly apprehended or stated the impression of the Committee with respect to that paragraph. The intention of the Committee in adopting that clause was, he believed, simply to act upon that rule which prevailed among honourable men, and which was acted upon every day in the courts of equity—namely, that when it was clear that a piece of paper which was supposed to contain the evidence of an agreement between two parties did not really represent the minds of both it should be considered a nullity, and the parties should be replaced as nearly as possible in their original position. He was sure that as soon as the hon. and learned Member for Pontefract was satisfied that there was a mistake on one side or the other—and it was the opinion of the Committee that there was a mistake on both sides—it was his desire that the parties should be replaced in their original position. With the view of effecting that object, he (Mr. Selwyn) proposed the 18th paragraph of the Report, which was adopted by the Committee. The difficulty with the Committee was, as to the manner in which this object could be accomplished. They searched for precedents, and one was found in which there had been an intention to withdraw a petition against the return for the borough of Cork, but by mistake a petition against the return for the city of Limerick was withdrawn instead. In that case the two things required by the Act in order to suspend all proceedings had been done— the petition had been de facto withdrawn, and the order referring the petition to a Select Committee had been discharged; but when the error was discovered, the House of Commons decided that the order for discharging the reference to the Committee was null and void, and the petition 1410 was remitted to its original position. At the same time that was not a case exactly similar to the present, because here there was a withdrawal by the agent of the petitioner. It was found that in the Norwich case an agent had withdrawn a petition without receiving proper authority from his principal, and in that instance the Committee reported almost in the very words adopted by the Committee in this case, leaving it to the House to determine what course should be pursued. After careful search, the Committee of which he was a Member were unable to find that that matter went any further, or that there had been any discussion on the subject in the House. The House was, no doubt, aware that the Act of 1848 provided, that if proceedings under an election petition had been suspended, without saying for any particular cause, but de facto, it should be in the power of the General Committee of Elections to place such petition at the bottom of the list, leaving it to come on in its turn. Whether there might be any difficulty in pursuing such a course in the present case it was not for him to say; but it seemed to him that if the House could get out of the difficulty arising from the wording of the Act, the petition might he remitted to the end of the list, and would then come on in its regular turn for trial, and that by this course complete justice would be done to the parties. He thought there was not the least ground for suggesting that, because misconceptions had arisen on both sides, and because this particular remedy had failed, the person in possession should give up his seat, which was the proposal of the hon. Gentleman opposite. He believed that his right hon. Colleague on the Committee (Mr. Walpole) entertained a very strong opinion that it was not competent for the House to adopt the course he had suggested. If so, it was an unfortunate thing, and the rules of that House were more strict than those of any court of law or equity. He hoped that means would be found of doing substantial justice in this instance, and for the purpose of raising the question, he would propose that the House should take the same course which had been pursued in the case of the first precedent to which he had referred—the Cork and Limerick election petition—and should declare null and void the order by which the reference of this petition had been discharged. The result would be, that one of the two things which it was necessary should coexist for suspending proceedings 1411 under the Act would no longer be in existence and there would be nothing to prevent the continuance of proceedings on the petition. The general power of the Committee of Elections would then be exercised. They would place the Pontefract petition at the bottom of the list, and instead of being tried by panels two or three, it would be tried by panels four or five. He, therefore, begged to move, that the Order discharging the reference of the Pontefract Election Petition to the General Committee of Elections be rescinded.
§
Amendment proposed,—
To leave out from the word 'That' to the end of the Question, in order to add the words 'the Order made upon the 20th day of July last, for discharging the Order for referring the Pontefract Election Petition to the General Committee of Elections be discharged,' instead thereof.
§ Question proposed, "That the words proposed to be left out stand part of the Question."
§ SIR GEORGE GREYdiffered with the Mover of the Amendment as to the power of the House to take the course which had been suggested. The precedents referred to were not applicable to the present case. The statute gave a distinct power to petitioners to withdraw their petitions, and it also prescribed the course which, when a petition had been so withdrawn, the House should adopt by directing that the order of reference to the General Committee of Elections should be discharged. When that had been done the petition was completely put an end to. The cases which the hon. and learned Member had cited were cases in which a mistake had been made by the House itself by the accidental substitution of the name of one place for another in the order discharging the reference; and undoubtedly where an error of that kind had crept in, the House might rescind the discharge of the order, with a view to reinstate the petitioners in their former position. Here, however, the circumstances were totally different, the parties having been perfectly well aware of what they were about, and the agent of the petitioner having exercised the right of withdrawing the petition with a full knowledge of the effect of that proceeding, and for the House to take the course proposed by the hon. and learned Member (Mr. Selwyn) would be to resume the authority which they had parted with under the Act. He believed that the right hon. Gentleman the Chairman of the Committee agreed with him in that view of 1412 the case. [Mr. WALPOLE assented.] The right hon. Gentleman thought that this House had no power by statute to take the course indicated by his hon. and learned Colleague; and he (Sir George Grey) confessed that his own opinion was, that the House was powerless to effect the object which the Committee had in view, and restore the parties to the position in which they were previous to the withdrawal of the petition. Under these circumstances there was but one person who could effect that object, and that was the hon. and learned Member for Pontefract himself. The hon. and learned Member could consent either to refer the matter to some gentleman to be agreed upon between him and Mr. Childers, including the scrutiny, and the seat if the scrutiny determined that he had not been duly elected; or apply for the Chiltern Hundreds, vacate his seat, and refer the question between Mr. Childers and himself to the decision of the electors of Pontefract. It was, in short, a case in which a man's own feeling of honour should determine the course to be adopted. This House was powerless to interfere, and the remedy was to be found only in the action of the hon. and learned Member for Pontefract himself.
§ MR. CRAUFURDsaid, that the mistake in this case was not similar to that which was made in the case of the Cork petition, and the House had no power to remit the petition. He was one of the members of the Committee, but was not of opinion that there was any misconception in the matter on both sides, and there was a strong opinion on the part of some of his colleagues that the misconception was only on one side. It was not by any means the unanimous opinion of the Committee, and the 12th paragraph of the Report distinctly stated, "There cannot be a doubt that Mr. Leeman acted under the strongest conviction that in the references he would be entitled to claim the seat for his client."
CAPTAIN JERVIS, having been a member of the Committee, begged to remind the House that the 17th paragraph of the Report stated that "a great misconception had prevailed throughout, as well with regard to the intention of the parties as with regard to the meaning and effect of the memorandum itself;" and that that paragraph had been carried unanimously in Committee. With reference to what had fallen from the hon. Member for York, he might add, that the idea of the hon. and 1413 learned Member for Pontefract resigning his seat never once entered the minds of the Committee. He could not refrain from observing, also, that the appointment of a Committee to investigate a matter of this sort, without having the power to come to any conclusion, struck him as singularly absurd.
§ MR.MALINSquite agreed that the Committee had come to no conclusion on which the House could act. But the matter required grave consideration, and the House ought not now to be asked by the hon. Member for York to agree to his Motion.
§ SIR GEORGE GREYYou are only asked to hear the Report read.
§ MR. MALINSThat was true, but the reading of it would occupy all the short remainder of the Session. The right hon. Member for Morpeth and the hon. Member for Cambridge University (Mr. Selwyn) took different views of the question; and yet the House was asked to decide without having an opportunity of reading either the Report or the Act of Parliament. He therefore begged to move the adjournment of the debate.
§ Motion made, and Question proposed—"That the Debate be now adjourned."
§ SIR JOHN PAKINGTONThere was one point upon which, at all events, the House would be unanimous, and that was that they could not enter upon a protracted discussion at that moment. He could not help thinking that the hon. Member for York had not kept his engagement to the House. He did not understand how the hon. Gentleman's speech bore upon the question of privilege, and the Motion with which he concluded had only tended to consume time which the House could but ill spare. Not having been present when the subject was discussed the other day, he had read the proceedings upon this subject as they were reported in the public journals; and he came at once to the conclusion that the fair and right course between the parties was to replace them where they were before the withdrawal of the petition—if that could be done. But the question was, if it were possible to do so. He was aware of the high authority of the right hon. Baronet opposite (Sir G. Grey), and he was sorry to hear the decided opinion he had expressed that this course would be inconsistent with the Act of Parliament, But he would submit to 1414 the House, and he was sure that in doing so the right hon. Gentleman would not deem him wanting in proper respect towards him, whether it was competent for him or for any one Member to determine that point. He would, therefore, suggest that the sense of the House should be taken; that the hon. Member for York should withdraw what appeared to him his very useless Motion for reading the Report; and that the House should now decide whether that might or might not be done, which was the clear and equitable course—namely, to rescind the order discharging the petition, and thereby place the parties in their former position.
§ MR. OVERENDsaid, he could assure the House that nothing could be further from his wishes than that any misunderstanding with him should have prevented Mr. Childers from having all the right to which he was entitled; and if after this discussion it appeared that anything had been done to prejudice that gentleman, and he could be remitted to the position in which he was before the memorandum was signed, he (Mr. Overend) should be glad to assist in restoring him to that position by any means in his power. If Mr. Childers thought that the memorandum should be considered a nullity, and it were possible to restore him as a petitioner against the election he would heartily assist him in such a proceeding. In fact, he (Mr. Over-end) was anxious not to avoid an inquiry, inasmuch as that inquiry involved charges of personal misconduct against himself; he was desirous, therefore, that Mr. Childers should be put exactly in the same position as if no memorandum had been made. If there were an insuperable difficulty to that object being attained, all he could say was that he should deeply regret it; and he felt that in justice to Mr. Childers and himself, that gentleman ought not to be prejudiced by any misconception which had taken place on either side; and he was sure that Mr. Childers would not accuse him of wilful misconception, as he was sure he did not accuse Mr. Childers. He believed that they had both acted bonâ fide; and if the House was of opinion that Mr. Childers had been prejudiced by what had occurred he would, with the permission of the House, be happy to refer the matter to the right hon. Gentleman the Chancellor of the Duchy of Lancaster (Sir G. Grey) and the right hon. Gentleman the Member for Droitwich (Sir J. Pakington) to name a gentleman who should decide what was 1415 best to be done between the parties, whether as regarded the seat or any other question that might come before him. He felt that by the unfortunate misconception which had arisen he was placed in a worse position than before the agreement; but he would not complain of that now, for whether he was in a good or bad position he felt bound as a gentleman to do what was right. He was in a bad position, however, because if the question of the seat were gone into there was this difficulty, that the referee could not compel the attendance of witnesses, or administer an oath; that consequently there could be no indictment for perjury, and that he would be altogether in the hands of parties who might come forward and make any misstatement they pleased with impunity. But, let that be as it might, if the House were of opinion, that although the agreement should be rescinded, Mr. Childers could not be remitted to the position in which he would have stood had the agreement not been signed, or the petition withdrawn, he was willing to leave the two right hon. Gentlemen he had mentioned to appoint any one they chose to suggest what ought to be done by him, and he would faithfully abide by the decision.
§ Motion, by leave, withdrawn.
§ Question again proposed, "That the words proposed to be left out stand part of the Question."
§ Amendment and Motion, by leave, withdrawn.
§
Motion made, and Question proposed,
That the Order made upon the 20th day of July last, for discharing the Order for referring the Pontefract Election Petition to the General Committee of Elections, be read, and discharged.
§ MR. WALPOLEsaid, he was desirous to say a few words on this subject, because it was very important that the House should clearly understand what it was called upon to do, especially after the suggestion made by his hon. and learned Friend the Member for Pontefract for reinstating the parties in their previous position. If this proposition were acted upon it would give rise to this difficulty—how the parties could be reinstated in the position they were before; and this still more important question— was the House to take the matter into its own hands, and to decide, for the first time, that an Act passed expressly for the trial of controverted elections should be set aside at its own pleasure? That was not a technical but a most substantial question. 1416 By the Act of 1848 the House, to prevent party discussions in such cases, had, in concurrence with the House of Lords, enacted that a certain course should be taken upon election petitions, and had reserved to itself no power of taking any other course than that prescribed by the statute. Such being the object for which the Act was passed, it behoved them to be very careful how they broke through the legitimate form of proceeding. Certain parts of the draught Report, referring to particular clauses in that Act, had been struck out by the Committee of which he was chairman, because the Members very properly did not like to bind themselves to a specific legal opinion; and he was glad that they had adopted the paragraph suggested by his hon. and learned Friend, because it left the legal question open. But by the Act the House had delegated the whole of its authority to the General Committee of Elections when once the petition had been referred to them, and that Committee had their duty distinctly marked out for them. They had no power to alter or even suspend the course of proceeding, except in three given cases. First, they might postpone the hearing of the petition for a day or two, if, upon reason shown, they thought such a step expedient. Next, they could also suspend it on a vacancy caused by the death or resignation of the Member, in order that parties connected with the place affected by the petition might have an opportunity of considering their altered position. And, lastly, they could suspend the petition in one more instance, and in one only—namely, where another petition having been presented, it might be desirable that the two petitions should be both tried together. Further than these the General Committee of Elections had no power, neither was any further power reserved to the House, itself. Independently of that, his right hon. Friend (Sir George Grey) was perfectly right in stating that where a party had the power by statute to withdraw his petition, and it was withdrawn bonâ fide accordingly, then by the 46th section of the Act of 1848, not only was the order discharged for referring that petition to the General Committee of Elections, but the statute went on to say that "no further proceedings should be taken thereon." That being so, and more than a fortnight—several weeks indeed—having elapsed since the withdrawal of the present petition, his opinion was they could no more restore that petition to the state 1417 in which it was before, than that they could restore any other petition that had been withdrawn. He put it to the House, then, whether they were prepared to have all these matters again brought under their notice, with all the attendant difficulties that might arise—reasons for withdrawing or not withdrawing, and other questions unpleasant to discuss and determine, and which was almost impossible for them to sit in judgment upon. On these grounds, he hoped the House would not concur in the Motion of his hon. and learned Colleague, although he entirely approved of the course adopted by his hon. and learned Friend the Member for Pontefract. That was the course which, as a man of honour and a gentleman, he ought to pursue; but it was obviously one to which the House could be no party.
§ MR. EDWIN JAMESsaid, there could be no doubt that the right hon. Member for Cambridge University had laid down the law of that case with perfect accuracy. There was no other way of restoring Mr. Childers to the position which he ought to occupy, except by the hon. and learned Member for Pontefract accepting the Chiltern Hundreds and going to a new election. ["Oh, oh!'] That was not a party question, and he adhered to his statement.
§ LORD JOHN RUSSELLhoped the House would not adopt the Motion of the hon. and learned Gentleman the Member for Cambridge University (Mr. Selwyn). It was the intention of the statute to withdraw from the House the discussion of subjects of this nature, from a well-founded distrust of the House in these matters. He thought the hon. and learned Member for Pontefract had made a very fair proposal, and if it were entertained, and this Motion was negatived, as he thought it ought to be, the right hon. Member for Droitwich (Sir J. Pakington) and his right hon. Friend (Sir G. Grey) might very easily agree upon the appointment of a person to inquire into the question, and he understood the hon. and learned Gentleman (Mr. Overend) to say that he would abide by their decision. It appeared to him (Lord J. Russell) that this was the only mode in which they could arrive at a satisfactory result.
§ SIR JOHN PAKINGTONwould suggest to his hon. and learned Friend (Mr. Selwyn), that as the opinion of the House, and especially that of one of its highest authorities, was so decidedly against the Motion, he should consent to withdraw it He 1418 believed at the same time that it was the unanimous feeling of the House that nothing could be more strictly honourable than the course pursued by the hon. and learned Member for Pontefract.
§ MR. SELWYNsaid, he had only been anxious to elicit the opinion of the House upon the subject, and he had no objection whatever to withdraw his Motion.
§ SIR GEORGE GREYagreed with the right hon. Gentleman that the hon. and learned Member for Pontefract had pursued a most fair and honourable course. He understood that the Gentleman who might be appointed referee was to have full power to go into the whole case, and to determine what should be done.
§ MR. OVERENDwished in every way to accede to Mr. Childers' views; and that that Gentleman should not have reason to complain that he had been prejudiced by any act on his (Mr. Overend's) part. Mr. Childers might put his own interpretation upon the contract, and go into a scrutiny if he pleased.
§ Motion, by leave, withdrawn.