SELECT COMMITTEE MOVED FOR. (Hansard, 21 April 1864)

§ MR. BUTT
who had given notice, on consideration of the Petitions of R. Kennedy and B. Pelan, and J. J. Richardson, to move, That the Select Committee on the Lisburn Election Petitions do re-assemble and report upon the matter referred to them by the House, said, whatever opinion might be entertained with reference to the course the House ought to take in this matter, he thought everybody would admit that it was a question of great importance as affecting the privileges of that House and the practice of Election Committees. The Petitioner, Mr. Richardson, was formerly a Member of that House. He was a candidate at the last election for Lisburn, and had presented a petition against the return. He had attended the Committee at a very great expense; and he now complained that, after eleven days had been spent in the inquiry, he was in a worse position than when the inquiry commenced. He considered that having presented a Petition he had a right to have it heard and decided, and that he could not be deprived of that right except through some fault of his own, or some defect in the rules, regulations, and proceedings of that House. He had complied with every rule and regulation, and he asked the House to find some menus of remedying the injustice he had suffered. The hon. and learned Gentlemen then stated the facts connected with the lapse of the Committee by the illness and absence of Mr. Stirling, the Act of Parliament in relation to Election Committees not having provided for the case which actually occurred. The provisions were not, as had been asserted, new. 1427 They were contained in the Grenville Act of 1779. At that time the House sat at nine o'clock in the morning, and the Committees sat in the evening, so that the meetings of (lie Committees were subsequent to the sittings of the House. The clause, which had a meaning in 1770, had been copied into every subsequent Act, although the altered circumstances of the case, the meetings of the Committees now preceding instead of following the sittings of the House, rendered it utterly inapplicable. In the present case the Committee acted in the spirit, though not in the letter of the statute, by adjourning over the day when they could have taken the Orders of the House. All that the Committee had since decided was that they had lapsed their powers by adjourning to the wrong day. Every one would admit that there had been a grievous failure of justice. He had no right to assume what would have been the result of the deliberations of the Committee; but the House was in this position, that it contained a Member whose seat was impeached for bribery, and, unless the House devised a remedy, the electors of Lisburn might say that they were misrepresented in that House. And was this the result of all our detailed legislation on the subject? He believed that justice might still be done. In 1848, some difficulty arose relative to proceedings connected with an election petition; and an Act of Parliament, introduced by the right hon. Member for Cambridge University, was passed to provide a remedy for the inadvertence. Another course might be pursued. The Acts of Parliament regulating election petitions had nothing to do with the limitation as to time. This depended entirely on the Sessional Order of the House, and by special direction the Order might be suspended, and a new mode of proceeding directed by the House. There were two precedents of this on the books; one in 1831, when such a proceeding was resorted to, to provide a remedy for a delay in presenting a petition caused by a great storm of snow. It had frequently been said that the jurisdiction of Election Committees was entirely derived from statute. This he denied. By the ancient law of Parliament the House had a right to decide on the mode of trying election petitions. In olden time, the practice had been to refer them for trial before Committees; after this the number of petitions became so great that this mode of proceeding was abandoned, 1428 and the petitions were tried by Speaker Onslow at the bar of the House. It was a well known principle of law that power could not be taken away, except by express words of legislation. It followed, then, that wherever Acts of Parliament did not regulate the proceedings of Election Committees the House had power to supply the deficiency. The House had power to make orders for anything not provided for by the statute. Had the Lisburn Election Committee chosen to go on the next day their proceedings could not have been set aside, as was shown in the St. Alban's case, where Edwards was even committed to prison on proceedings subsequent to an irregular adjournment. The circumstances of the earlier sittings of the St. Alban's Committee were precisely similar in this— that neither the petitioner nor the sitting Member offered any objection to the constitution of the Committee after its adjournment; and though, on the presentation of the Report, the objection was urged by a Member of the House, the Report was nevertheless received, and an Act of Parliament was passed taking away the franchise of the borough. The words of the Act were, "The Committee shall try." Was, then, the express purpose of the Act to be set aside merely because the Committee did not sit de die in diem? Was the Act most obeyed by calling on the Committee to re-assemble, or by paying pharisaical attention to minute matters? The question was not to be determined by passion or party feeling ["Move."]

§ MR. HUNT
said, that the House had been more occupied that evening with the inhabitants of Caprera than with the events of the Lisburn Election Petition, and therefore it had been quite impossible for him. under the circumstances of the evening, (the hon. Member alluded to the presence of General Garibaldi in the seats under the gallery of the House,) to follow the whole of the arguments of the hon. and learned Gentleman who had just sat down; and, therefore, in the remarks which he was about to make, he had to beg the pardon of the House if he neglected to reply to all the learned Member's arguments. He wished to call the attention of the House to what occurred alter the recess. A 1429 debate arose, and the Secretary for the Home Department proposed an adjournment to the following day. Not one lawyer attempted to take exception to the position which he (Mr. Hunt) had laid down, that the Committee were dead as a Committee, and had no power to proceed further. The Attorney General recommended the House to give no advice, but to leave the Committee to flounder in the mud as they liked, and to get out of it in the best way they could. On the following day the four Gentlemen met again, and came to a determination that they were no longer legally able to proceed. These Gentlemen sat as a kind of coroner's inquest on themselves, and, no doubt, struggled hard to bring in an open verdict; but the force of circumstances and the legal advice which they received compelled them to return a verdict of felo de se. The hon. and learned Gentleman (Mr. Butt) asked the House to afford the petitioners some redress; but he had omitted to state one important fact—namely, that it was upon the advice of the counsel for the petitioners that the Committee took the step which led to their dissolution. But for that advice the Committee would have adjourned until the 4th instead of the 5th. When the counsel for the petitioners had led them into this error they certainly had no claim upon the House for redress. The hon. and learned Gentleman seemed to be of opinion that the House had some jurisdiction in the matter of elections independently of the Act under which the proceedings took place. Now, he (Mr. Hunt) ventured to dispute that proposition, find contended that the House was tied down by the Act, and could not go a step beyond it. The second section enacted that every petition presented within the proper time should be deemed an election petition, and then went on to provide how it should be dealt with. It provided that the Committee should determine by a majority of votes, whether the sitting Member was duly elected, or what other person was duly elected; or whether it was avoid election, &c.; which determination should be final; and the House, on being informed thereof, was directed to order the Report of the Committee to be entered on the Journals, and the House gave directions for altering the return, or issuing a new writ, &c. All, therefore. that the House had to do was to carry the determination of the Committee into execution. The House, no doubt, had the 1430 power to direct any four Members to report on any matter referred to them; but he would venture to say that if any Report was made by the four Gentlemen who sat on the Election Committee, such Report would not be within the terms of the Act, and would have no force or validity. The sitting Member might treat that Report as waste paper, and the House would have no jurisdiction in the matter, so far as to affect the seat. He did not see for what object a Select Committee could be appointed. If there was any probability of a Committee finding its way through this slough of despond, by all means let the hon. and learned Gentleman have it; but it would be much better for him to withdraw his Motion, and turn his attention to the improvement of the law respecting election matters, where it was very much needed.

THE ATTORNEY GENERAL
said, he agreed in much that had fallen from the hon. Gentleman opposite, and was glad to find that his hon. and learned Friend the Member for Youghal did not ask the House to assent to the terms of the Motion as it originally stood, but was prepared to submit it to the House in a modified form. It would be a dangerous precedent if the House were to take upon itself the introduction, by its own authority, of any Amendment in the course of procedure under the Election Petitions Act. The Cheltenham case, which occurred in 1848, appeared to tell against the Motion of his hon. and learned Friend. In that case an error was discovered in the preparation of the usual recognizances; but it turned out that there, were seven or eight other cases in which similar errors had been committed, and, on petitions being presented by the sitting Members, the right hon. Gentleman the Member for the University of Cambridge moved the appointment of a Select Committee much in the form of that now proposed. That certainly was a precedent so far; but what was the hearing of their Report, and what was the practical result? The Committee reported that it might be desirable to relieve the petitioners by legislation. The error in the Cheltenham case had occurred in seven or eight cases; and it was corrected, by legislation, before the inquiry, in any of these cases, had begun; but in the present case only one individual was concerned; the inquiry also was at an end; and if the Motion before the House were agreed to, it would be impossible to avoid the suspicion of being actu- 1431 ated by party or political motives, and of a desire to legislate against one single individual. Under these circumstances, the Government could not undertake the responsibility of advising the House to legislate on this particular case, or to enter upon an inquiry with a view to such legislation. There was another course which might have been worthy of the consideration of the House, and that was whether advantage might not be taken of the Motion to appoint a Committee to consider the expediency of making provision in future for errors in point of form or irregularity of proceeding on the part of Election Committees. But there was a Bill now before the House for the amendment of the law relating to Elections, introduced by the hon. Member for Northamptonshire (Mr. Hunt); and, perhaps, it might be desirable to refer both these matters to a Committee. Under all the circumstances, he did not think it would be advisable to agree to the appointment of the Committee proposed by his hon. and learned Friend.

§ MR. BUTT
said, he would withdraw his Motion after the statement of the Attorney General.