§ MR. DISRAELI
Sir, it is now my duty, with a little more detail than I ventured to use the other night, to call the attention of the House to a Question of Privilege—arising out of the distribution of offices held by Members of Her Majesty's Government. The House will perceive that the Question is one of great gravity. Already it has led, in a constitutional sense, to considerable inconvenience, and it may, if neglected, produce results of a character so serious that it is difficult at this moment to adequately describe them. And, Sir, my opinion is, that the embarrassing and even dangerous position in which this House is placed in regard to the distribution of offices here— embarrassing certainly to the Ministry, and, as I shall show, dangerous to the House—had its origin in the way the present 1219 Government was formed when the noble Lord, the present Prime Minister, acceded to office. The House will remember that, at that time, a considerable number—I think I may say the majority— of the great offices of State, were represented in the House of Lords. I would not myself, Sir, lay down any inflexible rules, such as the laws of the Medes and Persians, with respect to the distribution, on the formation of a Ministry, of the offices of State between the two Houses of Parliament. On the whole, that must be left to the discretion of the person who undertakes the responsibility of forming an Administration. But there are considerations which I think, generally speaking, ought to guide the individual called on by the Sovereign to form a Government in regard to the distribution of offices. For example, I would venture to say that I think the heads of the two great Departments of public expenditure should find seats in the House of Commons. I do not think the due control of this House over the public expenditure can be sufficiently possessed under other circumstances; and if the control of the House is diminished in that respect, its authority in the estimation of the country will proportionately suffer. With respect to the Secretaries of State, I would say that the majority of them should have seats in the House of Commons—even a large majority of them, I would say, as was the case with the late Government. The House, upon reflection, will see that in this matter the Constitution has, in practice, adequately provided for the representation of the Ministry in the other House of Parliament, One Secretary of State must have a seat in the House of Lords—at least, he cannot sit here, and, therefore, he must find a seat in the House of Lords. The Lord Chancellor, one of the most eminent members of the Cabinet, and the head of the jurisprudence of the country, must have a seat in the other House; the Lord President of the Council must also be a Peer, as must also be the Lord Privy Seal. The Postmaster General is by statute prohibited from sitting in the House of Commons; and since the Reform Act—a measure which it was supposed would so greatly increase the influence and power of the popular branch of the Legislature— the Prime Minister, in the majority of cases, has found a seat in the House of Lords. Added to this, the chief offices of the Household, always held by Peers, have 1220 sometimes been held by eminent statesmen, as by Lord Wellesley, for instance. I think no one can deny, therefore, that the Constitution has provided adequately for the representation of the Government in the House of Lords. And when we reflect on the manner in which the public business is divided between the two Houses —when we compare the labours of this House with those of the House of Lords —I think it is obvious that it is in this branch of the Legislature the great majority of offices should be represented. I recollect that, before the present Administration was formed—a few days.—I believe hours—before the fate of their predecessors was decided—in a somewhat memorable speech, it was said that the Government in this country ought to be conducted by the educated section of the Liberal party. Well, Sir, I thought, at the time, that was a phrase more candid than felicitous; but though various interpretations were placed upon it by both sides of the House, I do not think any interpretation arrived at contemplated the conclusion which was subsequently accomplished— namely, that the great offices of State in the new Ministry were to be confided to the custody of half-a-dozen Peers of the realm. So far as we on this side of the House are concerned in the arrangement, if we took a party view of it, we should be sufficiently satisfied. I hardly know that any arrangement could tend more to the political degradation of the party opposite. When power was seized—I do not say in a spirit of rapacity, but certainly on that occasion without any unnecessary delicacy; when there were no great scruples as to the nature or the conduct of the Opposition; and when, subsequently, the country found that the great Liberal party were in office, and yet that in the opinion of the leaders of that great party there were not in that branch of the Legislature which had brought them into power men from whose ranks they could select persons fitted to administer the affairs of the country—I think that must have been regarded as a slur upon the vote of want of confidence which had just been passed upon their predecessors. But there is something dearer to both sides of the House than party triumph—namely, the character and authority of the House of Commons. In that we all share and all participate; and I am sure that every hon. Gentleman in this House feels really sorry when anything takes place that humiliates the character 1221 of this House, or places it in a position not calculated to preserve for it the confidence and support of the country. For my own part, believing that Parliamentary Government is practically impossible without two organized parties—that without them it would be the most contemptible and corrupt rule which could be devised— I always regret anything that may damage the just influence of either of the great parties in the State. Well, Sir, this question with respect to the distribution of offices has arisen because, in consequence of the plan on which the present Administration was formed, the principal offices of the State have necessarily been represented in this House by Under Secretaries, or by Members of the Administration bearing, perhaps, a different title, but holding similar rank. It was on more than one occasion, I believe, the intention of Gentlemen on both sides the House to advert to that condition of affairs as, on the whole, unsatisfactory, as tending to diminish the authority of this House, as calculated to greatly reduce its influence. I do not know that I should myself have interfered in the matter—though I intended to do so some weeks ago—had it not been for an expression of the noble Lord at the head of the Government, which opened my mind to the position that the House was fast coming to occupy. When I offered some quite legitimate criticisms upon the conduct of a Secretary of State who happens to sit in the House of Lords, the noble Lord, not in a hurried manner, but with a most premeditated phrase, taunted me with having attacked "an absent man." That opened my mind to what must be the consequence of our passing unnoticed the: course which the Government had plainly adopted in the distribution of political offices; and I saw clearly in what a situation Members of the Opposition would be placed who, bringing forward eases of importance or urging inquiries of interest, were always put in collision with gentlemen whose abilities we all recognize, who are frequently adequate to the offices they nominally hold, but who are obliged to encounter us upon questions which no one can properly treat who is not in the counsels of his Sovereign, who is ignorant of the motives and the policy really pursued by the Cabinet, and who cannot enter into those engagements and make those representations which the authority of Ministers of the Crown alone authorizes them to express. But on that occasion I refrained from bringing the subject 1222 under your notice, because there had been for a considerable time impending over us a probable reconstruction of the Government to a certain extent, occasioned by a cause which I am sure is regretted by hon. Gentlemen on both sides. At that time, it was daily expected that the Duke of Newcastle would quit public life, and it appeared to me that to bring forward the question of the distribution of offices at a moment when the Duke of Newcastle was still a Minister might lead to observations and discussions which, in reference to him, might have been painful. The Duke of Newcastle sat for a long time in this House, and on these benches. Perhaps, now that he has retired from public life, I may be permitted to say, I am sure in no glozing language, that, during twenty years of rather warm public life my relations of personal courtesy with the Duke of Newcastle have never terminated, and I think I may add that he withdraws with the reputation of a sedulous, able, and conscientious Minister. Well, the Duke of Newcastle quitted office, and then took place the reconstruction of the Ministry which was expected. It was not of so extensive a character as had been anticipated; on the contrary, it was extremely partial—and the first thought on reflection was, that the subordinate members of the Government, who represented high offices of State in this House, were not materially reduced in number. We had to reconsider the question, and then it was suddenly discovered that the state of affairs which before we had thought practically injurious was, in fact, flagrantly illegal. The noble Lord asked me the other night how it was the thing never occurred to me before. I hardly know any subject more happy for a tu quoque, but I shall resist the temptation, great though it be. I remember reading somewhere of a Whig county Member, who, in the last century, questioned the right of Lord George Germain to sit in this House. Lord North asked Sir Joseph Mawbey, why he had not mooted the point before, seeing that Lord George had been sitting there for a year, "Why, to tell the I truth," replied Sir Joseph Mawbey, "it never occurred to me." When the noble Lord with the blue riband made his inquiry nobody thought it was an answer to the point raised by Sir Joseph Mawbey, and so I am sure that to-night in discussing this Question, which is one of great gravity, we shall not be met by observations of that kind, but shall address our minds to the merits of the case, in order to ascertain 1223 clearly the position in which we are placed.
As the point to which I wish to call the attention of the House is to the offices held by the Under Secretaries of State, I wish at the outset to direct attention to the state of the law upon the question. It may appear a very arrogant thing that I, who am a layman, should presume even to make a statement, much less to draw an inference, upon a subject so technical and professional; and I should, perhaps, have been daunted in this enterprize by the observations made by the Attorney General some time ago, when he told us incidentally, in order to give a cue to the House, that the subject is most refined and complicated. There are some men who have refined and complicated minds, and there is nothing they touch that, under their magical manipulation, does not quickly become refined and complicated. I would say to the Attorney General, whose talents I always admire, that I think he is a master in the art of refinement and complication. But, notwithstanding his statement, I venture to say that the question is really very simple; that any one who chooses to give his attention to it may understand it without being an Attorney General or a Queen's Counsel; and that if I do not make it in a brief space as clear as crystal it will be from want of apprehension, or a deficiency in the powers of expression on my part, and not from any fault of the House or the subject. The tenure of office in this country is mainly regulated by statute, and it is principally regulated, as far as this House is concerned, by an Act passed in the reign of Queen Anne, with which I have no doubt hon. Gentlemen are all familiar, by name at least. A very remarkable Act is that famous Act of Queen Anne. About 1708 there was a strong Parliamentary opinion, if not a strong public opinion, that there were sufficient placemen in the House of Commons, and a Resolution was come to that the number should not be increased. An Act was accordingly passed, which—to give a general description of its main feature—enacted that henceforth any one who accepted any office of profit in the service of the Crown created after 1705— about three years before the passing of the Act—should thereby become incapable of being elected a Member of this House, or of sitting and voting here. The effect of that Act may be put briefly before the House. When the Act passed Queen Anne had two Secretaries of State and two Under Secretaries, Suppose the day 1224 after Anne, as she had an undoubted right to do by her prerogative, had appointed a third Secretary of State, and, consequently, a third Under Secretary, both those offices would have been treated as new offices—offices, that is to say, created subsequently to 1705—and their holders would have been incapable of occupying seats in this House. Heavy penalties were attached to the violation of the statute; but it is quite unnecessary to touch upon that matter now, because the question of penalties has nothing to do with this House. A very considerable time elapsed after 1708 before any fresh legislation took place affecting the seats of Members of this House—I think seventy years passed away. Great events, great disasters, had occurred during that long interval. We had lost our American colonies; the country was in a state of distress and despondency; and there arose, as always in England under such circumstances, a cry for administrative and economical reform. Mr. Burke, one of the greatest men who ever sat in this House, happened then to be a Minister of State; and it fell to his lot to consider by what means the administration might be improved and economy effected. Mr. Burke therefore, in the year 1782, in the reign of George III., brought forward that great Bill, with which I am sure hon. Gentlemen are perfectly acquainted, his Bill for Economical Reform, and by that measure, among his other reductions and improvements, he abolished the third Secretary of State, who was the Secretary of State for the Colonies. England having lost her colonies, the administrative reformers of those days naturally thought, if reduction was desirable, that there was no necessity for a Colonial Secretary; and in the Act of Mr. Burke the Colonial Secretaryship is abolished, and all those offices dependent upon it. The result of Mr. Burke's Bill was this—that two Secretaries of State were permitted to sit in the House of Commons, and two Under Secretaries. Sir, that was the state of affairs which prevailed, as far as the distribution of offices with reference to the House of Commons was concerned, for another seventy years, including the whole of the great Revolutionary War. Unquestionably during that period new Secretaries of State were created, who, of course, appointed Under Secretaries; but they were appointed, all of them, solely by the prerogative of the Crown, not by statute, and none of them ever sat in the House of Commons. The hon. and learned Attorney General appealed 1225 to the case of Mr. Bagot. Now, that case would entirely substantiate, if necessary, the statement that I am making. Mr. Bagot was a Member of this House for Castle Rising, a borough which I suspect is now only to be found in schedule A. He was appointed Under Secretary of State for Foreign Affairs. There were two Under Secretaries then sitting in this House—one for the Colonial and the other for the Home Department. And what did Mr. Bagot do? He immediately accepted the Chiltern Hundreds; and the hon. and learned Attorney General endeavours to frame an argument on that, that he did not vacate his seat in consequence of accepting the office of an Under Secretary of State. Yet I apprehend it is a common course of Members of Parliament to accept the Chiltern Hundreds, even if they hold any other appointment than that to which the hon. and learned Gentleman referred. But I ought to remind the House that in Mr. Burke's Act of Economical Reform, which abolished the Secretaryship of State and the dependent offices, there is a special proviso—that in case hereafter any office for the same or for a similar purpose is created, then to all interpretations, intents, and purposes it is to be considered what is called "a new office—that is, an office subject to the provisions of the statute of Anne; and to the statute of Anne is attributable that distinction between old and new offices which once was very prevalent in political literature, and which may even now be found creeping into the statute book. All offices created before 1705 are "old;" all created subsequently to that date are "new" offices. Well, whatever refinement the Attorney General may found on the case of the retirement of Mr. Bagot from this House, I make him a present of it; for really it is not at all necessary to my argument, or to the clear case which we have before us. The hon. and learned Gentleman will not deny that the invariable practice of Parliament was that only two Secretaries of State and two Under Secretaries of State could sit in this House. That he will not contradict. And so it went on till we come to the times with which we are perfectly familiar, in which we were all actors, and which form part of our recent experience. Two Secretaries of State and two Under Secretaries, as I have stated, might legally sit in the House of Commons. Then occurred the Crimean war, with its military disasters, followed by a strong expression 1226 of public opinion that there ought to be a more effective organization of our military departments. Then the noble Lord, who ought to be familiar with this question, for he was then Prime Minister, recommended this House to sanction the appointment by Her Majesty of a new Secretary of State, who should be Secretary of State for the Department of War. For that purpose it was necessary in 1855 to bring in a Bill, which was afterwards passed into law. But now I request the House to mark this. Although there was not the slightest doubt from the language of Mr. Burke's Act that only two Secretaries of State could sit in this House— although that never was questioned for a moment—there had been doubts raised whether the terms of the Act of Economical Reform were sufficiently precise to touch the Under Secretaries; but the language was still so definite that it had never practically been infringed. There had been only two Under Secretaries of State in this House; but the lawyers knew of the doubts on the subject, and in the noble Lord's Bill —the Bill brought in by his Government, of course with his sanction, and, no doubt, with his intimate knowledge—it was thought advisable that the opportunity should be seized of removing all doubt on this point. If hon. Gentlemen refer to that Act they will find that a third Secretary of State is at once made, and there is a recital that, whereas doubts at some time have existed as to the number of Secretaries and Under Secretaries of State who might sit in the House of Commons—that was, doubtless, a reference to Mr. Burke's Bill—it is now decided that there shall be a new Secretary of State under this Act, and that three Secretaries and three Under Secretaries of State may sit in this House and "no more." I hope that, as far as I have gone, the House really will understand this case. We have now arrived at the period of the Crimean war. Well, the next great events in our history were the Indian mutiny and the expiration of the Company's charter, necessitating the bringing in of a new India Bill, which was to transfer to the immediate authority of the Crown the Government of those vast possessions. It fell to the lot of my noble Friend near me (Lord Stanley), then President of the Board of Control, to introduce that Act, and in deference to the Resolutions of this House upon which that Bill was founded, the office of President of the 1227 Board of Control was converted into that of a Secretary of State for India, and with the power of appointing an Under Secretary of State instead of the two joint Secretaries of the Board of Control that previously existed. And by that Act four Secretaries of State became qualified to sit in this House, and four Under Secretaries of State. I believe there is no person in this House who will question the accuracy of that statement. There is no refinement here about the case of some half-forgotten gentleman who vacated his seat when made an Under Secretary of State in the reign of King George; but here you have the present state of the law, which depends on specific statutes, that you yourselves advised and passed, and that have been carried in consequence of your own Resolutions.
This then being, I venture to say, the unquestioned and unquestionable state of the law at this moment, expressed in the statutes before me, that in the House of Commons four Secretaries of State and four Under Secretaries may sit, and "no more," I must call the attention of the House to the strange fact that throughout this Session of Parliament at least five Under Secretaries of State have been sitting here. I have no doubt that on Friday night, if any discussion had occurred, it would have been necessary for me to mention in detail who those Gentlemen are. I feel sure that in the interval we have become sufficiently familiar with the subject. But, perhaps, on a question of this kind, it is expedient, both in the Resolutions which we may have to record, and in the statements which we may have to make, that we should make our case complete; and, therefore, I shall mention who are the five Under Secretaries of State who, during this Session, have been sitting in this House. There is the Under Secretary of State for the Colonies, the right hon. Member for the county of Louth (Mr. Chichester Fortescue); there is the hon. Gentleman the Under Secretary of State for India, the Member for Falmouth (Mr. T. G. Baring); there is the Under Secretary of State for Foreign Affairs, the hon. Member for Southwark (Mr. Layard); there has been, during this Session, the Under Secretary of State for the Home Department, late and still Member for Merthyr Tydvil (Mr. H. A. Bruce), whose fate we did not decide an hour ago; and lastly, there is the Under Secretary of State for the War Department, who is the Member, or who 1228 supposes that he is the Member, for North Lancashire. The House will now, upon reflection, find that this is a question which it becomes themselves in the first instance to undertake. It is the duty of the House to see that its composition is complete and correct. It is of the utmost importance that no person should sit or vote in this House who is not qualified for the exercise of those functions. And, Sir, I do not think that I can place this matter, as to its importance and urgency, more completely before the House than by showing them how much may depend upon the materials of which this assembly is composed being of an authentic character. I have, on more than one occasion, reminded the House of the important historical events and the equally important laws which have been shaped and passed by slight majorities, and even by casting votes. I know that Gentlemen may in these days consider historical illustration to be of little value. I am not of that school. I do not believe that a popular assembly can maintain its authority unless it respects the example and experience of its predecessors. What makes the House of Commons so influential in contradistinction to the popular assemblies of other countries is this:—That when there is any great question of difficulty— of complication, as the Attorney General would call it—the country feels that we are not solving it merely by the present thought and existing intelligence of the Members of this House, but that we come down to its consideration fortified by precedent, and bringing to bear upon it the accumulated wisdom of the eminent men who have preceded us. I need not go far to show how important it is that we should be most strict in seeing that no one votes in this House who has not a right to do so. There is no subject, for example, more important than a question of a vote of confidence. When the two great parties of this country meet with contending principles and with opposite policies, and challenge the decision of the House of Commons, the issue, it may be said, is almost of an awful character— because the very tone and temper of the policy of the country depend upon the vote. In my time there has happened a struggle of this kind; and there are few in modern Parliamentary history more interesting or more important. It was the vote which brought Sir Robert Peel to the helm in 1841. Considering the character of that eminent man, considering the measures 1229 he carried or brought forward, considering the influence of his career upon parties and events in this House, no one can look upon that as an ordinary Parliamentary struggle. And yet Sir Robert Peel was made Minister of this country virtually by one vote. Supposing there had been one or two Under Secretaries of State on the Treasury bench when a vote of want of confidence had been brought forward, perhaps by Sir Robert Peel himself, they would not have had the same opinion as Sir Robert Peel; they would have had more confidence in themselves than in Sir Robert Peel, and they would naturally have voted accordingly. But what if after that discussion it had been discovered that these Under Secretaries had no right to vote that night? See, therefore, what considerable consequences may depend upon our taking care that this House is properly constituted. But I need not go so far. I will take the present Session as affording a most striking instance of the importance of our attention to this matter. Remember the division on the question of the Yeomanry. Her Majesty's Government thought it expedient to omit from the annual votes the sum necessary for calling out the Yeomanry. An hon. Friend of mine (Colonel Edwards) challenged by anticipation the propriety of that omission, and appealed to the House. The question was really not of that limited character to which, in the somewhat hurried discussion, an attempt was made to narrow it. Some looked upon it merely as a matter of reduction or the reverse. I am myself in favour of reduction. I see with the utmost satisfaction the reductions which the Government have made of late years, and I observe with equal satisfaction that the services of the country are not less efficient. But the question of the Yeomanry was of a peculiar character. Nothing seemed more inconsistent to me and to many others than that at a time when the country was expending; so much money, thought, and energy in stimulating and maintaining the Volunteer institution—one of the most satisfactory events of our time—we should without thought deal a great blow and discouragement to our only considerable force of Volunteer cavalry. That was the view which we on this side of the House took of the matter, and I understand that was the view entertained, though not in this House yet in a place of considerable importance, by the noble Lord at the head of the Government. But what happened when the 1230 division was called? We lost the policy which we believed to be sound, and which has since been adopted by the Government by one vote. The Motion was connected with the office of the Secretary of State for War, and upon it the Under Secretary of State for that Department, representing the policy of the Government, spoke with all the authority and influence which a person holding office must have on such a subject. But not only did he speak—he voted. We were defeated by one vote; and yet it turns out that at that very time the Under Secretary of State who took that influential and decided part upon the question had no more right to speak—had no more right to sit in this House—had no more right to vote than the stranger who at this moment is passing over Westminster Bridge. The House will agree, therefore, that this is a subject which is not to be neglected. I regret that it has been neglected so long. The noble Viscount seems to think it a surprising thing that I should not have called attention to this matter before. I consider myself that the House generally is, in some degree, at fault. I am perfectly ready to take my share of the blame, and even more. But ours has been a sin of omission; but as regards the Government, theirs has been not only a sin of omission, but of commission. We have a right to expect from the Government, who have the distribution of patronage, that they should consider well how they distribute it. I say, with the greatest respect to the noble Lord at the head of the Government, that he is the individual to whom we look with confidence in such matters; and, perhaps, it is the unlimited confidence reposed in the noble Lord which has got the House into this scrape. It is not merely as the Chief Minister of the Crown that he sits on that bench—it is not merely to pass measures which he deems necessary to the welfare of the country—not merely to attend to the interests of his party that he sits there. He occupies a post second only in dignity and honour to that of Chief Minister of the Crown—that of leader of the House of Commons; and we have a right to expect from one who is the champion of our rights and privileges, and the trustee of our honour, whose first duty it is to see that the numbers of the House are complete, and if incomplete—are so only in consequence of the decision of the House itself— that he should take care that no one mixes in the deliberations and in the decisions of this House who is not justified by law in 1231 sitting here. I submit to the noble Lord, a the individual in this House who, if any one, is to be visited with its displeasure, that his own conduct rather requires explanation than that he should taunt those opposite to him, because they have discovered, however late, the critical position in which the House is placed.
I wish to suggest to the House a course which, I think, it ought to take. The position in which we find ourselves is one which deeply concerns the House. It is the duty of the House to set itself right without loss of time. We ought to do that in a manner which cannot be mistaken, which is becoming defined and decisive, but which, so far as expression of opinion is concerned, shall not in any way directly make any reflection upon the conduct of any Member of the House. I have no wish to shrink from the responsibility which every gentleman, to a certain extent, must have incurred by this unprecedented state of affairs; but, at the same time, it is absolutely necessary that we should take a constitutional course, and that having found the critical position in which we are placed, we should put on record the opinion of this House in a manner that cannot be mistaken, so that hereafter an Under Secretary of State shall not be appointed by a future Minister without due examination and reflection, and that there shall be a complete record of what has Illegally been done, and of the remedy which the House of Commons proposed under the circumstances. It is with that feeling that I shall propose this Resolution, which I sincerely trust I may induce the House unanimously to adopt. It is in these words —Notice having been taken by a Member of this House that more than four Under Secretaries of State have been sitting and voting in this House at the same time during the present Session,— Resolved, that the provisions of the 21 & 22 Vict. c. 106, s. 4, have been violated, and that the Seat of the fifth Under Secretary of State has been and is thereby vacated.Notice having been taken by a Member of this House, that more than four Under Secretaries of State have been sitting and voting in this House at the same time during the present Session:—
Motion made, and Question proposed,
That the provisions of the Act 21 & 22 Vict. c 106, s. 4, have been violated, and that the Seat of the fifth Under Secretary of State has been and is thereby vacated."—(Mr. Disraeli.)
§ VISCOUNT PALMERSTON
Sir, there are some things stated by the right hon. 1232 Gentleman in which I entirely concur, and there are some things which afford a remarkable comment upon the progress of constitutional principles and government in this House. The right hon. Gentleman reminded us that whereas in the early part of the last century there was a jealousy in the House of Commons as to the sitting in it of persons holding high office in the State, now, on the contrary, by the great increase in the political power which by the progress of events this House has acquired, there is an opposite feeling, and desire that persons holding important offices in the State should—within certain limits at all events—have seats in this House, and sit face to face with, and be personally responsible to, the House of Commons. That does appear to me a significant commentary upon the great development of the power of this House between the period to which he referred and that in which we are now speaking. The right hon. Gentleman said that there ought to be in this House the full number of Secretaries of State which the law allows, namely, four; and he finds fault with those who framed the present Government for having put an undue proportion of the great officers of the Government in the House of Lords, and not a due proportion in this House. The right hon. Gentleman, I think, was speaking, when he said that, without having sufficiently attended to the circumstances of the case. When the present Government was formed it consisted of fifteen Cabinet Ministers, of whom ten were in this House and five only in the other House of Parliament. Four Secretaries of State were included in that number of ten. The chiefs of the War Department, the Foreign Office, the Home Office, and the India Office, were all Members of the House of Commons. Then came the unfortunate illness of Mr. Sidney Herbert, then Secretary for the War Department, which led to his removal to the House of Lords in the hope—which, unfortunately, proved vain—that by going to a House where less attendance was required, the afflicting disease which weighed upon him might be remedied or mitigated. Lord Herbert unfortunately fell a victim to that disease. When that occurred it gave the opportunity of bringing back the War Department to this House, in the person of Sir George Lewis; we therefore restored that Secretary of State who had been removed by the visitation of illness. Then, when my noble 1233 Friend Lord Russell was removed to the House of Lords—the dignity of the peerage having been conferred upon him as a mark and reward of his long and distinguished services, and also from the circumstance that his health had suffered materially by his labours in the House of Commons—we had still three Secretaries of State in this House. Then Sir George Lewis was unhappily taken from us; and the peculiar circumstances connected with the interests of the army led to our placing that Department under the care of Lord Do Grey, who had long been Under Secretary of that Department, and had acquired a knowledge of all the improvements which Lord Herbert had so successfully carried into effect, or had been anxious to carry into effect, during his lifetime. Well, but not only had we, when the Government was formed, ten Cabinet Ministers in this House, but among them was the person who held the office which I cannot pretend worthily to fill, which in the Government with which the right hon. Gentleman was connected was held by Lord Derby in the House of Peers; and, therefore, I maintain that if you compare the original distribution and progressive changes of Cabinet offices in the present Government with their original distribution in Lord Derby's Government, you will find that the House of Commons had its proper share of those Members who occupied important positions in the administration of the country. Well, I cannot undertake to go into those legal questions which the right hon. Gentleman dealt with, because I am unwilling to trespass on those grounds which my hon. and learned Friend the Attorney General, with so much greater knowledge and ability, and without complication, will very clearly explain to the right hon. Gentleman and the House. The right hon. Gentleman maintains that one of the five Under Secretaries must have vacated his seat—that question will he fully discussed by my hon. and learned Friend. But, Sir, I am quite ready to admit that we have unintentionally, and by oversight, done that which the law does not authorize. I must take blame to myself—because I quite agree with the right hon. Gentleman, that, holding the office I do, having to originate the different appointments, I ought, perhaps, to have inquired more deeply and minutely into the state of the law. I certainly was under the impression that we were doing that which the law authorized; that we might have five Under Secretaries in this 1234 House. It turns out, however, on looking into the Act of Parliament, that we were wrong; and, therefore, I frankly admit that the right hon. Gentleman, or his learned Friend who, I believe, discovered the error, had a keener sight than we and the rest of the House possessed, But, at the same time, although I admit we were wrong—unintentionally wrong—the right hon. Gentleman and those who sit by him must share with us in the blame. Because, what is the natural occupation of an Opposition? What are they there for if not to find out when a mistake has been made by the Government? They are assigned by Providence to watch with keen eye the conduct of the Government they oppose—to trip them up even before they fall—at all events, if they stumble, mark their stumbling, and call upon them to set things right again. That is the peculiar function of the Opposition, if anything be wrong, or blameable, or liable to criticism in the conduct of the Government. I must say, therefore, we have a right to complain of the right hon. Gentleman and those who sit by him, that they have not previously announced that since April last year we have gone on in a course which they must have known—though they will not admit it— was wrong in point of law, and with reference to a law which they themselves brought in. They have laid a trap for us that I maintain is not fair in the course of a Parliamentary Opposition. But, I repeat, we candidly and frankly admit that we have done that which the law did not authorize us to do. I do not think that what the right hon. Gentleman proposes would be sufficient for the purpose; because, when a law has been broken, somebody must be liable to some penalty or other. Who is the person on whom the penalty would fall I am not prepared to say, nor what the penalty would be. I apprehend there is no penalty attached by the Act to either of the five Secretaries of State who, in excess of the law, has sat in the House; but where there is no penalty attached by the law it becomes a misdemeanour, and the person would be liable, of course, to the penalties of a misdemeanour. Well, my hon. and learned Friend will have to consider who the parties are who incur the penalty, and what we should propose as a measure of security to them, whoever they may be; and also, as a more effectual record than the proposal of the right hon. Gentleman, 1235 that a Bill of Indemnity should be brought in, which should record that the law has been violated, and by be recording, place, beyond all question, that nobody henceforward do the same thing. The illegal state of things has ceased, because, by the acceptance by my hon. Friend the Under Secretary for the Home Department of the office resigned, as I sincerely regret, by my right hon. Friend who was the Vice President of the Committee of Privy Council for Education, the hon. Member for Merthyr Tydril has vacated office as Under Secretary of State, and there are now only four Under Secretaries in the House, which is the proper number, We are now, therefore, within the law, and I need hardly assure the House is is our intention to remain so. But we do not admit that part of the Resolution of the right hon. Gentleman which asserts that the seat of any of the five Under Secretaries is vacated. That is a question which my hon. and learned Friend will be more able to argue than I can. But that is our opinion; and, therefore, independently of the circumstance that we do not think the Resolution of the right hon. Gentleman covers the case as a Bill of Indemnity would, and because it makes an assertion we are not prepared to agree to, I hope the right hon. Gentleman will agree to a Bill of Indemnity; and if he is at all anxious on the subject, there should be a clause specially reserved for himself, in regard to any responsibility he may have himself incurred in the matter. However, we take all the responsibility on ourselves. We freely admit we ought to have looked more accurately, and it was my own indiscretion not to have looked more accurately into the matter. I certainly should have done so if I had entertained any doubt, and it was only because I thought we were within the law that the error was committed.
THE ATTORNEY GENERAL
Sir, it would have given me much pleasure to hear my right hon. and learned Friend the Member for Cambridge University (Mr. Walpole), (who had risen but sat down on there being a call for the Attorney General), before addressing the House on this subject, since I am sure we should all have derived benefit from any observations he might make; and I shall regret if, following me, he should make observations I shall not have the opportunity of answering. But I take it to be the wish of the House that I should 1236 redeem the promise made by my noble Friend at the head of the Government, and I have no difficulty in doing so. The right hon. Gentleman (Mr. Disraeli) I think, attributed to me a statement which I do not recollect to have made, or, if I did, I used the expression in a different sense from that he placed upon it. He says that I represented this as a refined and complicated question, on which the House would have a difficulty in arriving at a clear understanding. But it will be necessary to correct several errors of no inconsiderable importance into which the right hon. Gentleman has fallen, with reference to the various Acts of Parliament bearing on this question. He started with a fundamental and radical error. He has misunderstood altogether the effect of the Act of Queen Anne, passed in 1707, which he supposes to have had the effect of making it impossible after that Act passed for more than three Secretaries of State, and three Under Secretaries, to sit in this House. That is an entire mistake of the right hon. Gentleman. The Act of Queen Anne had no operation whatever on the right of any Under Secretary to sit in this House; and in this consists the entire fallacy of his fundamental proposition. What the Act of Queen Anne said was this— that persons to be appointed to new offices created after 1705—not all new offices, but new offices under the Crown—should he ineligible and incapable of sitting or voting in Parliament. Now, nothing is more easy to demonstrate than that the office of Under Secretary of State is not an office created after that date; and the way in which we should deal with the point is by appealing to the practice of the House with, regard to all persons who have held the office of Under Secretary since 1705. The right hon. Gentleman does not seem to have had his attention called to the fact that, although the clause absolutely disqualifying certain persons from seats in the House of Commons relates only to new offices, the clause which regulates the practice and law of the House as to persons vacating seats on the acceptance of office applies to old as well as to new offices held under the Crown. The 26th section is to the effect that if any person, being a Member of the House of Commons, should accept of any place of profit from the Crown, his election should be deemed void, and there should be a new election, as if in consequence of a vacancy by death; the Member in question being, however, capable of re-election, 1237 if not otherwise disqualified. Upon that clause rests the practice of Members when taking office in the Government resigning their seats and going down to their constituencies to ask for re-election. Consequently, if an Under Secretaryship of State is an office of profit accepted from the Crown, then each of the Under Secretaries, who accepted office from the date of the statute of Anne to the present time, ought thereupon to have vacated his seat:—but not one of them ever did so. I appeal to you, Sir, whether it is not the notorious and universal practice of the House that a Member, on accepting the office of Under Secretary of State, does not vacate his seat, and has not to be reelected? Therefore, the uniform practice of the House, which is the best commentary on the meaning of the Act, proclaims distinctly that an Under Secretaryship of State is not an office of profit under the Crown, within the scope of the Act, whether created before or after the passing of the statute. What is the reason of that? The reason is to he found in the very language of the Act. It is that an Under Secretary of State is not appointed by the Crown, but is appointed, both in form and in substance, by the Secretary of State, and therefore his office is not an office held under or from the Crown. Thus the Act of Anne has no more to do with the matter than any other Act in the statute book. Then the right hon. Gentleman went on to say that there was an interval without change which lasted till we came to Mr. Burke's Bill for Economical Reform, in 1782. The right hon. Gentleman, however, either from taking a different view of the statute from mine, or from some other reason which it is not for me to divine, passed over an extremely material statute on this subject, passed in the fifteenth year of George II., 1742. For the purpose of further limiting and reducing the number of officers capable of sitting in this House, that Act provided that deputies and clerks in certain offices of the Government, including those of the Principal Secretaries of State, should not be capable of sitting in the House of Commons; but in order to make it perfectly clear that this was not intended to interfere with the eligibility of an Under Secretary of State to be a Member, there was a proviso that nothing in the Act should extend or apply to "the Under Secretaries to any of His Majesty's Principal Secretaries of State." Thus the rights of Under 1238 Secretaries are distinctly preserved; they are not rendered ineligible, and they are not required to vacate their seats and to go to their constituents for re-election on accepting their offices. Next came Mr. Burke's Act; and there, again, the right hon. Gentleman contrived to make out his argument by putting into the Act what would have been very material if it were there, but what was not really there. It is true that the Act abolished, among other offices, the third, or Colonial Secretaryship, and declared that if any office thereby abolished were at any future time re-established, it should be reckoned a new office; but the Act did not say one word as to the Under Secretaryships. It left those offices as they were before. I need not remind the right hon. Gentleman that the division of the business of the Secretaries of State into departments is a matter which the law knows nothing about. On that point these Acts of Parliament are entirely silent, and no restriction is placed by them on the number of Under Secretaries whom the Secretaries may in their discretion think it necessary to appoint, nor on their capacity of sitting in Parliament. The only Acts which deal with that subject at all are that of 1855, when the fourth Secretary of State—the Secretary for War —was established, and that of 1858, on the appointment of an additional Secretary of State for India. In using the word "established," I do not mean that these Acts created the new Secretaryships. They recognized the power of the Crown to appoint as many Secretaries of State, and the power of the Secretaries of State to appoint as many Under Secretaries as might be deemed fit and proper; but they also limited the number as well of Under Secretaries, as of Secretaries, who might at one and the same time sit in the House of Commons. By the former Act it was provided that any three of Her Majesty's Principal Secretaries of State, and any three of the Under Secretaries, might sit and vote in the House of Commons at the same time, and that no more than that limited number should do so; and by the latter Act the number was raised to four Secretaries and four Under Secretaries. We ought to consider how the matter stands, not only in regard to the latest Act itself, but in comparison with the way in which Parliament has dealt with the capacity of the holders of particular offices for the functions of Members of this House. The Act does not specify 1239 that the Secretaries or Under Secretaries of certain Departments of Administration shall be entitled to sit in the House, but it only limits the maximum number of persons holding particular offices who shall at the same time be allowed to sit as Members. It is said that the Act has been violated, inasmuch as five Under Secretaries have been appointed, all of whom have sat and voted in this House at the same time. Now, I should be glad to know on which of the officers in question the Act throws the responsibility of violating the provision as to the number entitled to be Members at the same time. It is easy for the right hon. Gentleman to try to impose the responsibility on the person who last entered office, and to say what the Act certainly does not say, that he should be held on accepting office to have vacated his seat. But it is the sitting of five of these officers at one time, and not the sitting of one or other of them individually, which is the corpus delicti. I wish the House to see the absurd consequences that would follow if it could be maintained that you are to fasten upon any one of the five Under Secretaries and to say that he has vacated his seat. It may be that in this case you may be able to identify the order of time in which five persons holding office were appointed; but it may happen that you may not always have the opportunity. Supposing that persons who are not Members of this House are appointed Under Secretaries during a dissolution, when, of course, no vacancy takes place. A general election follows—two, three, or more of those Gentlemen are simultaneously elected. Which of them has vacated his seat? Of course, if Parliament had meant that a particular Member of this House should lose his status as such, it would not have left the law in a state which was open to such doubts. So, if two Under Secretaries simultaneously accepted office, the Act does not say that one or either of them, or all, shall vacate their seats. It only says that not more than a certain number shall sit in this House at one time. I promised that I would state what I found to be the language of other Acts of Parliament which bear upon this or analogous questions. I find that when Parliament intended to create ineligibility to sit in this House, it used language appropriate for that purpose. Thus in the 6 Anne, while in one clause it declares that a person who accepts any office shall always be incapable 1240 of sitting or voting in Parliament, by a subsequent clause it says that if a person, being a Member of the House, accept any office, his election shall be declared void, and a new writ shall issue. There the process is marked out. A Member accepting office is incapable of sitting or of voting, the former election is declared void, and anew writ is issued. Exactly the same thing is done by the Act which prevents contractors from sitting in the House —the 22 Geo. III. There are other Acts which do not go on to say that the election shall be void and a new writ shall be issued; but to mark the intention of Parliament persons holding particular offices were declared to be incapable of being elected or of sitting or voting in the House of Commons. Such is the 15 Geo, II., which says that the clerks in certain public offices shall not be capable of being elected or of sitting or voting in this House. Such is the Act passed in the 10th year of Geo. IV., excluding persons holding certain appointments under the East India Company; and even in the Indian Government Act itself, when it was intended to make the tenure of a particular office or the acceptance of it create a personal incapacity to sit as a Member of this House, it was enacted that the Members of the Council of India should not be capable of voting or sitting in Parliament. That incapacity is attached to the office and to the person of the holder of it. There is not a single Act intending such a thing in which it is not provided for. Now, I take it that if there be a well-settled principle of constitutional law, it is that you should never infer, without strong necessity, from the terms of an Act of Parliament, disabilities, incapacities, or penalties; that you ought not to go beyond the language, if the object of the Act can be satisfied by adhering to it and keeping within it. It remains for me to endeavour to satisfy the House that there are upon the statute book sufficient reasons for holding, that we may give effect to these words, that not more than four Under Secretaries shall sit as Members of this House at the same time, without implying what the Act does not say, that some one or other of them, to be arbitrarily selected by the House, shall vacate his seat, which under other circumstances he would not do. The only Acts which contain at all similar words are those which show that the Legislature contemplated the possibility of a man retaining his status as a Member of this House, 1241 and yet being placed under a disability dependent upon variable circumstances, of voting and sitting. The Act of Charles II., well-known as the Oaths Act, is one in point. That Act has been rendered familiar to the House by the cases of Mr. O'Connell and of Mr. Salomons. It prescribes that no Member shall vote in the House of Commons, or sit there during a debate, until he shall have taken the oaths. A Member cannot sit upon these benches until he has complied with that requirement; but his status as a Member remains unaffected, although his power of sitting and voting is in abeyance. That is the Act of which the language most nearly approaches the language of the statute we are considering; and let not the House forget, that it is the earliest of all the statutes upon the subject. Exactly the same thing, in still more forcible terms, is done by the Act which excludes bankrupts from the House, When a Member becomes bankrupt, the Act says he shall remain during twelve months incapable of sitting or voting, unless the commission be superseded or his debts be paid in full; and then, if at the end of twelve months certificate is made to the Speaker that he continued a bankrupt, the Act goes on to declare that his election shall become void, and a new writ shall issue, It is quite plain, therefore, that the Legislature recognizes a temporary incapacity of sitting and voting, as capable of being reconciled with the continuance of the status of a Member of Parliament. Upon what principle, then, are we to give to the same words in this Act affecting the Under Secretaries a different effect? Every reason which induces Parliament to preserve the status of Members of this House in favour of persons who hesitate to take the oath, but who may do so at any time, and to afford to bankrupts a reasonable opportunity of ridding themselves of the incapacity, all these reasons apply à fortiori to the case of Under Secretaries. The public convenience may make it expedient to appoint a Member of this House. It may require some time to make arrangements, and in the meantime he ought not to resume his seat after appointment; and thus the intention and the language of the Act of Parliament would be satisfied; and but for some oversight, as in the present instance, arrangements would easily be made to limit the number of Under Secretaries in this House. There is nothing in the nature of such a case which makes it necessary 1242 that any particular individual should vacate his seat because there happened to be four persons already in the House holding similar appointments. It is to be presumed that when the attention of the Government is directed to the subject they will always take care to make the necessary arrangements. While the Legislature has carefully defined the maximum number of Under Secretaries who shall sit at the same time as Members of this House, it does not go on to say that the election of one or all shall be void if that number be exceeded, nor that any of them shall be incapable of voting or sitting; so that I apprehend, upon all legal principles of construction, you cannot hold that any seat has become vacant; although undoubtedly the Government is open to any censure which the House may think fit to pass upon them for not adverting to the terms of the recent Act of Parliament, which limited the number of Under Secretaries sitting in this House. When the attention of the Government was called to this subject no time was lost by them in making the necessary arrangements to comply with the terms of that Act of Parliament. Of course, the responsibility of that oversight rests with the Government; but the very fact that hon. and right hon. Gentlemen opposite have not before discovered it, and that it escaped you, Sir, with all your vigilance, affords some explanation and excuse for the fact that the attention of the Government was not directed to it. I apprehend, therefore, that the House will not allow their notice of this matter to travel beyond the necessity of the case; and that they will not declare that to be law which is not to be read in, any Act of Parliament; and which may, by comparing the language of the Act which governs this case with that of other Acts of a similar nature, be satisfied by taking a different course. I submit that, although the former part of the Resolution moved by the right hon. Gentleman is unquestionably true, and we cannot object that it should be placed upon record, yet the latter part of the Resolution declaring vacant the seat of—I suppose the right hon. Gentleman means the noble Lord the Member for North Lancashire, because he was the person last appointed—is entirely unwarranted by the Act of Parliament, is not supported by any legitimate or necessary inference arising from any of the former Acts, and is one, therefore, which it would not become this House to adopt.
§ MR. WALPOLE
Sir, the latter observations of the hon. and learned Gentleman (the Attorney General) seem to imply that some censure is cast upon the Government by the terms of the Resolution, for an error of conduct in having appointed a fifth Under Secretary. Now, I think the House will recollect that my right hon. Friend the Member for Bucks most carefully avoided casting any such imputations; and, indeed, he stated in his speech to-night, that he was not going to cast any censure upon the Government; nay more, he added that the whole House, and he himself as well as others, was to blame for not having noticed the illegality before. He adopted, in fact, the humorous observation of the old play as equally applicable to the noble Viscount and himself, "Brother, brother, we are both in the wrong." The only question now is, how are we to put ourselves right; and this is a matter of grave importance—one that concerns the constitution of the House, and in reference to which we ought to take care to put upon record something to prevent a similar illegality or excess of authority from happening again. The noble Viscount seems to think that this could be done simply by a Bill of Indemnity; but I take leave to doubt whether that is the way in which this House ever sets its records right. It has always taken care to put some resolution upon its Journals, declaring its opinion of a matter affecting the privileges of its Members, and its own constitution; and the Motion of my right hon. Friend seems, therefore, to meet exactly the nature of the case. The observation of the Attorney General is that he concurs in the first part of the Motion, that there has been a violation of the Act of Parliament; and it is the latter part of the Motion to which he demurs. My hon. and learned Friend addressed to this Act of Parliament a very refined argument, but I do not think that that argument was sound. My hon. and learned Friend did not bear in mind two things, which if he had done he would have found the question to be plainer and clearer than he has represented it to be. The first thing I should have wished him to bear in mind was, that he should take the Act of Anne in conjunction with the Act of the present Queen; and secondly, that the words of the Act of Anne, "shall be incapable of sitting and voting," are not more strong for vacating the seat than the words of the later statute "shall not sit and vote." The words are nearly synonymous, and 1244 what construction you put upon one phrase you must put upon the other. Suppose that this blot had been hit the moment that the Under Secretary of State for War had been appointed to his office; will anybody deny that a Member of this House might immediately have moved that a writ should be directed to the place represented by the fifth Under Secretary of State for the election of a new Member? If you do not put that construction upon the Act of Parliament you would give to the Government the opportunity of creating offices without the checks imposed by the Legislature, and I cannot believe that the House would assent to a construction so contrary to its own independence and to all the privileges of Parliament. Now, what is the state of the law. In attempting to correct the speech of my right hon. Friend, I think the hon. and learned Gentleman himself fell into an inadvertence in reference to the statute of Anne. The two sections of that statute which relate to this subject are the 25th and the 26th; the 25th relates to new offices, and the 26th to old offices. The 25th section prohibits any Member from taking any new office—that is, an office created since 1705—and declares that any person who shall have a new office under the Crown shall be incapable of being elected to this House, and of sitting and voting. The 26th section has not the word "new" office, and in order to give effect to that section you must interpret it as relating to "old" offices, otherwise you would repeal the 25th section, which immediately precedes it. When an old office is accepted, the Member is to vacate his seat, but he is eligible for re-election. As to new offices, on the contrary, the seat is to be vacated, and the person to be ineligible for re-election. This principle of vacating the seat runs through all the statute law; and any statutes relating to Secretaries and Under Secretaries also, which give an exemption from the full operation of the statute of Anne, are only exemptions in the specified cases to which they extend. Then my hon. and learned Friend points to the statutes of George II., but that Act confirms my view, instead of giving weight to his argument. The statute of George II. was another disqualifying statute, for the very preamble and the very title of it make more persons ineligible than were ineligible before. That was the object of the statute; but then a proviso is added which extends the exemption to any Undersecretary of a Secretary of State. I ask 1245 my hon. and learned Friend whether that would give exemption to any Under Secretary except one Under Secretary of each Secretary of State—would it give it to two? [The ATTORNEY GENERAL: I have no doubt whatever about it.] Will my hon. and learned Friend show me any authority for that? The proviso is to take them out of the ineligibility that rests upon them, and to give the benefit of the exemption to one Under Secretary of a Secretary of State, and not to two; or otherwise there could be a Power to create her officers without number, whilst the Legislature has taken good care that the number should be restricted. Pass we then to the statute of Geo. III. Now, that statute having done away with the third Secretary of State, says, in the strongest possible words, that the office of a third Secretary of State, under whatever name he is called, is to be considered as a new office; and what does that mean but that such office is to be considered a new office within the meaning of the statute of Anne. So that the third Secretary of State when he was appointed would receive his appointment as to a new office, and if there were three such officers in the House of Commons he would be rendered ineligible, and the Under Secretary would be in the same position. Then comes the Acts constituting the Secretary of State for War and the Secretary of State for India, giving the benefit of the exemption to these third and fourth Secretaries of State, but not to the fifth. Now, how does the Act deal with Under Secretaries? Why, in exactly the same words as it deals with the Secretaries themselves. The words are, that the four Secretaries of State may sit and vote as Members of the House of Commons, but that not more than four shall sit as such Members; and it is also said that not more than four Under Secretaries shall sit as members. If my hon. and learned Friend admits that these are disqualifying words as to the Secretary of State, how can he put a different construction upon identically the same words when applied to the Under Secretary. My hon. and learned Friend has quoted two Acts relating to Bankruptcy and to the admission of Baron Rothschild. The Bankruptcy Act is no doubt an enabling Act, giving to Members a limited time within which to obtain their certificates and sit again as Members of this House. By that Act it was provided, in the case of Members becoming bankrupts, that at the end of twelve months after the declaration 1246 of the bankruptcy the Speaker must be certified of the fact, and the election of such Members then became void unless the fiat were superseded or the creditors were, paid in full. That being so, I ask my hon. and learned Friend to consider whether, supposing the law vacates the seat when a Member is declared incapable of sitting and voting, the law does not also vacate the seat when it says he shall not sit and vote? Could my hon. and learned Friend point out the distinction between those two propositions? If not, it appears to me that the case is established completely against him; and for the sake of the regularity of our proceedings, and in order to preserve the constitution of the House, as it was intended by the Legislature when it passed the law limiting the number of Members holding office to so many and no more, we have nothing to do but to declare at once not only that the law has been violated, hut that the seat has been and is vacated; and then, I think, we shall set ourselves right. The question arises not only whether the noble Lord the Under Secretary for War has been guilty of a misdemeanour, for which, I understand, you purpose to bring in a Bill of Indemnity, but whether he has not also subjected himself to the penalty of £500. The Bill of Indemnity should extend to that and to everything. [The ATTORNEY GENERAL: The Bill will include all penalties.] Nevertheless, if the Under Secretary for War continues to sit here and vote without vacating his seat, the question may arise, whether he is not still guilty of a misdemeanour and still liable to penalties? My own belief is that that is a very doubtful point; and, if so, I cannot conceive why the Government should object to set forth the matter fully on the records of the House. The noble Lord the Under Secretary for War would then go to his constituents, and I hope he would soon be returned to the House; but in the meantime the House is bound to take notice that a Member has been sitting here who ought not to have sat here, and who might by his vote have decided some of the most important questions that come before us. If this is the proper construction of the Act of Parliament, we must take the consequence of our own inadvertence and set the matter right at once, or as nearly as we can; that is to say, we must now deal with the circumstance as it would have been dealt with if notice had been taken of it at the proper time; but for the House to adopt the proposition 1247 that a Member, holding an office which he cannot hold while he is Member, is to continue to sit and vote in the House as long as the Government and the Member himself may choose to hold such office, would be, I think, a course detrimental to the privileges and independence of the House, and therefore I shall support the Motion of my right hon. Friend.
§ SIR GEORGE GREY
It is very desirable that the House should come to some satisfactory decision on the matter involved in this discussion. We have heard the statements of the Attorney General and of the right hon. Gentleman opposite, and the Government have considered the question very fully since notice was taken of the circumstance which has given rise to the present debate. They have had high legal opinions, in addition to those of the Law Officers of the Crown, confirming the opinion of the Attorney General that the appointment of a fifth Under Secretary has not rendered his seat vacant, but there can be no doubt that an error has been committed by the fifth Under Secretary being in this House. Under the circumstances, I would suggest that we should avoid committing ourselves by any decision in this House, either to the proposition that the seat is actually vacant —for that may be wrong, and, if so, it is a serious constitutional error—or to the counter-proposition that it is not vacant. After what has passed in debate it appears to the Government to be the proper course that, in accordance with what has been done on former occasions, when a doubt arose whether the acceptance of an office involved the loss of a seat, a Select Committee should be appointed to report their opinion on the point. I will mention two instances when this course was adopted within my recollection. One was the case of Mr. Wynne, than whom there could not be a man with greater constitutional knowledge. Having accepted an office which seemingly involved the loss of his seat, he himself suggested the appointment of a Select Committee to consider the question. At a later period Mr. Daniel Whittle Harvey accepted an office which led to a doubt whether his seat was vacated, and the House, abstaining from committing itself to any declaration of opinion, referred the matter to the consideration of a Select Committee. I might refer to more cases of an analogous nature; and I therefore think that, without committing ourselves to any opinion—for if we do we may be 1248 establishing a bad constitutional precedent —we should adopt the course of referring the matter to a Select Committee. Consequently, I propose, as an Amendment, that the latter part of the Motion of the right hon. Gentleman declaring that the seat is vacant should be omitted, and that there should be substituted instead thereof the words, "That a Select Committee be appointed to inquire whether the Under Secretary of State last appointed to that office has thereby vacated his seat." At the same time, the Bill of Indemnity may be proceeded with, because that is a distinct question. It will be proposed in general terms, exempting those who may have subjected themselves to penalties from those consequences, and it will also stand as a permanent Parliamentary record of the fact which has occurred, and thereby provide against its recurrence.
To leave out from the words "violated, and that" to the end of the Question, in order to add the words "a Select Committee be appointed to inquire whether the Under Secretary of State who was last appointed to that office thereby vacated his Seat,"—(Sir George Grey,)
§ —instead thereof.
§ MR. DISRAELI
My opinion is that in questions of this kind it is highly desirable that the House should not arrive at a decision which might have the appearance of anything approaching to the character of a party proceeding. At the same time, I think that it is of great importance that the House should not act in a timid and hesitating manner. I have indicated the line that I think that the House ought to take, and I understand that the Government to a great extent adopt it. They acknowledge that there has been a violation of the law, and the only point they hesitate at is, whether it has vacated the seat of the Under Secretary of State who was last appointed. I should not object to refer that matter to a Select Committee in the way that has been suggested; but there are one or two points upon which previously I think we ought to have a clear understanding with the Government. It should be clearly understood that the Bill of Indemnity should not be introduced before the Committee come to their decision, and I should like the House to have some understanding us to what is to be the conduct of this fifth Under Secretary of State. I was not indisposed to limit the inquiry to the fifth Under Secretary. But the noble Viscount 1249 the Prime Minister appeared to express a doubt whether the position of all the Under Secretaries was not affected? If there be any doubt I must say I do not think that these Gentlemen ought to take any part in the deliberations or decisions of the House until the question has been entirely settled by the Select Committee. Certainly, on the understanding that the Bill of Indemnity will not be introduced until the Committee comes to a decision upon this question, I shall look upon that as an arrangement which ought to be made. I think that an agreement of that kind should be entered into before the House is asked to assent to the Amendment of the right hon. Gentleman.
§ MR. AYRTON
said, he was glad the Home Secretary had proposed the Amendment, because, although the question affected the privileges of the House to a great extent, it also affected the seat of an hon. Member, and the House ought not to pronounce an opinion upon the matter without duly investigating it, and giving the hon. Member affected by it an opportunity of being heard by counsel before the Committee. The speech of the right hon. Gentleman opposite, the Member for the University of Cambridge (Mr. Walpole), I had raised many difficulties which did not occur to his mind before. The right hon. Gentleman said that the statutes spoke of the Secretaries and Under Secretaries in the same language. The effect of the construction put upon the statutes by the right hon. Gentleman might be not merely that the fifth Under Secretary must vacate his seat, but that all the Under Secretaries holding new offices might be equally subject to re-election. That was a reason why the House should proceed with great caution, because the later statutes did not declare that the new Under Secretaryships were not new offices. He doubted, after hearing the right hon. Gentleman, whether the reference to the Committee was quite large enough, and it might, therefore, be desirable that words should be added so that no doubt might arise herein.
§ SIR FITZROY KELLY
, said he did not think any difficulty could arise on that point; but nevertheless the utmost possible care ought to be taken in the form of the reference to the Select Committee, as it appeared to him the question involved one of the most formidable constitutional points that in his experience had ever arisen in the House. He thought that they ought to make the subject clear and specific, as 1250 it related to the present constitution of the House in connection with the office of the Under Secretary for War. He was quite satisfied that the Committee would do full justice to the question.
§ VISCOUNT PALMERSTON
With reference to what has been said by the right hon. Gentleman about the Bill of Indemnity, I have no objection to postpone that until after the Committee has reported.
§ Question, "That the words proposed to be left out stand part of the Question," put, and negatived.
§ Words added.
§ Main Question, as amended, put, and agreed to.
That the provisions of the Act 21 & 22 Vict. c. 1.06, s. 4, have been violated, and that a Select Committee be appointed to inquire whether the Under Secretary of State who was last appointed to that office thereby vacated his Seat.