HC Deb 12 February 1866 vol 181 cc345-55
MR. AYRTON

I claim the attention of the House for a short time whilst I bring under its attention a question which concerns most deeply not only the privileges of the House in its collective capacity, but also the rights and privileges of individuals elected to sit in this House. I believe that there is some misapprehension in the minds of some hon. Members as to the case which I desire to submit to the judgment of the House, and therefore I will state what is my view of the privileges that I think have been grievously violated on the present occasion. From the earliest time the House has always claimed, and for two centuries at least, has exercised, the most complete power over every question affecting the election of Members of this House, whether those questions affect the rights of voters, the conduct of returning officers, or any transaction connected with the election itself; and it has always claimed and exercised the right of determining as to the position of any Gentleman sitting in this House and of any person claiming to be a Member. But these rights and privileges are of a twofold kind. There is the right of the House itself to vindicate its own privileges and the privileges of its Members, which it has exercised upon the Motion or suggestion of a Member of the House. And there is also another right—namely, that of individuals who consider themselves aggrieved, and who have always enjoyed the power of petitioning the House to complain of any mistake or error in an election. Such petitions have always been treated like a suit in a law court—examined and decided upon by the House as a court of justice. It is obvious that these two powers are necessarily separate and distinct. The one has been asserted by the House for the maintenance of its own rights, and the other has been asserted by individuals for the vindication of theirs. It was, however, found that so much inconvenience arose from the House in its collective capacity acting as a judicial tribunal, that it became necessary a century ago to transfer that power of adjudicating upon petitions to special Committees selected for the purpose, who proceed according to the provisions of the statute then in use. This procedure has continued with some modifications from that day to the present time. I think it was in 1848 that the law relating to election petitions was completely and comprehensively reviewed, and a general Act was passed by which undoubtedly every case of individual complaint of grievances that could be brought under the notice of the House by petition was referred to the tribunal constituted to try election petitions. This Act was repealed and another was more recently passed, but there is no substantial difference between them, except perhaps that the last Act is not so complete and comprehensive as the former one. But I am not going to raise a question under these Acts. My case is entirely independent of them; but in considering their effect, I think I may state that it is a sound and true principle that the privileges of the House are to be treated like the Prerogative of the Crown, that they cannot be taken away by any intendment of language, but only by most express and precise terms. In this way alone can the Prerogative of the Crown be affected. The House has to consider whether these Acts have in any way diminished or abrogated its own inherent privileges; and I think that a moment's reflection will show us that nothing that has transpired in legislation has in the least diminished the supreme power of the House to vindicate and maintain its own privileges and those of its Members. In considering what the House should do when any question is brought under its notice in reference to the maintenance of the privileges of Members arising out of an election, I think that the House will recognize the wisdom of the distinction that has been maintained by a solemn judgment of the House. Some years ago a gentleman having been elected came to the table and took the oaths and his seat without any return having been made of the election. Upon this the question naturally arose in the House whether it was competent for a gentleman to sit by his election and not by his return. The House was struck with the gravity of the question, and it was referred to a Committee of the most distinguished Members of the House, and they came to a Resolution. The case, I may say, was that of Mr. Hawes, in 1848, and the Committee solemnly determined, by Resolution— That although the return of the indenture to the Crown Office has always been required by the House as the best evidence of a Member's title to be sworn, yet that the absence of that proof cannot affect the validity of the election, nor the right of a person duly elected to be held a Member of this House. This Resolution was accepted by the House, and it was held that Mr. Hawes had been properly sworn, and no further step was taken in the matter. This decision being recorded, we at once understand the numerous precedents that have occurred consequent upon the election of Members when the House itself has taken the initiative. Cases have arisen in which the House has been informed by a Member in his place that an election had occurred, and that a Gentleman was un- able to take his seat, because the return was not of a character to permit of his being recognized as a Member. Sometimes the return has not stated accurately the place for which he was elected, and sometimes there has been another name differing from that which the Member bore, and on all these occasions the House has received information of the fact of the election, and then proceeded on its own authority, without any election petition, to see that the form of the return corresponded with the fact of the election, and amended the return. This being the practice of the House, it is my duty to state that I hold in my hand a letter from the Under Sheriff of the King's County, which I will venture to read, rather than to state its effect; but I may state, in the first place, that at the last general election three gentlemen were proposed as candidates for the King's County, and one of those gentlemen, who is stated to have been elected, does not appear in the return. Consequent upon this state of things the gentleman communicated with the returning officers, the sheriff and his under sheriff, by a letter to the under sheriff. This letter is dated the 9th of February, 1866, and is signed "John Pope Hennessy," and is in these terms— With reference to your communication to me this morning, to the effect that Mr. Longworth authorized you to tell me that he had inspected the King's County poll book since the election, and was now satisfied that I had the majority of votes over Sir Patrick O'Brien, may I trouble you to let me know whether you have also cast up the books, and can corroborate the statement of the high sheriff that I have the majority. To this letter Mr. Hennessy received the following reply, dated February 10:— My dear Sir,—I have just received yours of yesterday's date, asking me if I can corroborate the statement of the high sheriff that you had a majority of votes over Sir Patrick O'Brien, and in reply beg to state that I myself inspected the poll books at the Hanaper Office on the 31 at of July last, and was then satisfied that there had been a mistake in the totting up, and that you had a majority of votes. My conversation with the high sheriff to which you allude took place only a few weeks ago. It is therefore that I communicate to the House the startling fact that although this gentleman's name does not appear upon the return, yet that, according to the undoubted facts of the election, he was elected on that occasion. He is now unable to present himself at the table of the House, though he has been duly elected according to the statements both of the high sheriff and of the under sheriff, in consequence of his name being omitted from the return; and the question which I desire to submit to the consideration and judgment of the House is, what step it ought to take when it finds that its own officer has so erred in the conduct of his duty that the right to sit in the House which has been conferred by the election cannot be exercised in consequence of the mistake which has been made. I am not standing up to advocate the taking measures against the high sheriff or the under sheriff. I am willing to believe that it is an unintentional error, though one that any decent school boy ought not to have been guilty of. I am only here to consider whether it is in the power of the House, and, if so, whether it be not its duty to take some steps to repair this singular error. Undoubtedly, we ought to regard the sheriff without any feeling of vindictiveness, because the House will remember that he is not a volunteer acting for hire and profit, but a gentleman taking upon himself a most onerous office for the public good; and, therefore, it is the practice in all courts of justice to consider any error of which the sheriff has been guilty most leniently, and to give him every opportunity of correcting it, so that no interests should be compromised by his error. If we are to treat the sheriff, who for this purpose is an officer of the House, upon the same principle, it seems to me that we ought to give him an opportunity to correct the error in his return. It may be said that this is not an error merely, but a matter of substance vitally affecting the interests of others; but I have read the Resolution of the House that draws a clear distinction between the right of election and the ceremonial of return. In dealing with this question, the House will not deal with any question of fight to sit. On all occasions when the House, acting upon its own authority, has interfered to amend a return, it has at the same time recognized the right of individuals to petition, and it has always accorded to them the right to petition the Commons, when the return was amended. A Resolution to that effect has always accompanied any Resolution amending a return, which not only shows that no question of right was involved, but also that the distinction I have drawn has been recognized. Therefore, if the House were to order this return to be amended, it will be entirely without prejudice to the ultimate right to the seat; and, if any gentleman think himself ag- grieved, he will be entitled to petition to have the question adjudicated upon under the Elections Petitions Act. It will be a very grave thing for the House to admit that it can be in the power of a returning officer, when an election has taken place, in fact, to send any one he pleases into the House, and that, on the mere return, any gentleman can sit here to the exclusion of one duly elected. If party feeling were to run high in this country, the leader of the House might be elected beyond all question, and yet a returning officer, who was not skilful in arithmetic, might choose to suppress a hundred or a thousand in his addition, and might return some one else; and thus we might have the leader of the House, upon a mere act of the returning officer, kept at bay for two or three months during a contest on an election petition. It seems to me that it would be most dangerous to the privileges of the House and the rights of every Member if we were once to allow that, where an unquestioned election in fact has taken place, the returning officer may put any name he pleases in the writ. If, when we have it on that officer's authority that he had made a mistake, we were to say that our hands are tied, and that we are unable to remedy that mistake, we should not have the authority which every court of justice in the country claims to exercise for itself, where right is on one side and form and ceremony on the other. I have deprecated the Elections Petitions Acts, because their terms are so stringent, and I have thought it would be desirable if the House would legislate to qualify some of their provisions; but, apart from that question, I maintain that wherever right is shown in fact, and where form does not correspond with right, it is in the power of every tribunal to take care that the form shall coincide with fact and right. And I further say that the House has the same power, and that this is a case in which it ought to give effect to it. I am not willing to draw the House into any controversy about the facts. [Sir PATRICK O'BRIEN: Hear, hear!] The hon. Member cheers, and I hope that he will stand up and give effect to that cheer, for if the hon. Member can stand up and say upon his honour that he was in fact elected, I am quite content to withdraw the Motion with which I shall conclude, and to move the House that the doubtful question of fact shall be referred for solemn investigation upon oath before an election committee. But until I hear the hon. Member stand up and say that in point of fact he was and Mr. Hennessy was not elected, until he is prepared to say that the representations of the sheriff and the under sheriff are erroneous, I must be entitled to ask the house to proceed upon the substantial justice of the case. In the absence of any such representation of fact, I feel it my duty to bring this matter under the consideration of the House, so as to enable the House to vindicate its privilege. I move that the high sheriff of the King's County be called to the Bar of the House to be examined touching this return; and when that Motion has been assented to, it will be for the House to consider what is the proper course to be taken in vindication of those rights which I submit have been violated on this occasion.

THE O'DONOGHUE

seconded the Motion.

SIR PATRICK O'BRIEN

said, he should not for a moment attempt to put forward his own personal opposition against the wish of the House; but having been elected by a large number of the King's County constituency, he should be forgetting his position as their representative if he did not venture to address the House after the hon. Gentleman (Mr. Ayrton), of course with the kindest possible view—being connected with himself (Sir Patrick O'Brien) in politics—had brought forward this Motion. He recollected some nine years ago, when a young man in that House, he had the honour to differ from the hon. Member for the Tower Hamlets, and on that occasion he said a thing to that Gentleman which in those days was considered to be inappropriate. The hon. Member seemed not to have forgotten that occurrence of nine years ago, and had selected him (Sir Patrick O'Brien)—he being a Member of the Liberal Party—for his (Mr. Ayrton's) attentions on that occasion. [Cries of "Oh, oh!"from the Opposition.] He could understand that hon. Gentlemen opposite approved of that course; but how the hon. Member for the Tower Hamlets, who called himself one of his (Sir Patrick O'Brien's) people, could pursue such a course, was difficult, except on the supposition referred to, to understand. He believed the hon. Gentleman was looking in the balance, and that perhaps something connected with the Council of India loomed before his vision. He merely rose to make this statement, and this alone, and he should at once retire from the House, inasmuch as the Question before it was his own. He pledged his honour as a gentleman that he believed on his honour as a Member of that House that he was in a majority for the King's County.

THE ATTORNEY GENERAL

Sir, I must say I am somewhat surprised that the hon. Member for the Tower Hamlets should have lent the influence of his authority to the course he has proposed. I have great respect for the abilities of my hon. Friend, and I am quite sure on all occasions he is actuated by a desire to discharge his duty faithfully. Yet, speaking for my own part, I must say I think it would be a matter most deeply to be lamented if the House of Commons gave its sanction, even for a single moment, to such a course. It is equally opposed to all the principles upon which we ought to act; to the rules which guide the proceedings of the House; and to all the interests of every Member of the House, which are, as I think, involved in its rules and practice, as well as in the law on the subject. My hon. Friend has attempted to draw a distinction between the privileges of the House and the law of the land. He says this House is not to consider itself debarred from exercising its powers of interference with matters of election, and that those powers cannot be taken away except by the most express terms of an Act of Parliament. Sir, I venture to say, when this House is a party to the passing of an Act of Parliament to regulate its own practice, in matters connected with its own privileges, which experience has shown to be most delicate, liable to abuse, and liable also to the suspicion of abuse, the House is best consulting its dignity, and best preserving its own privileges in the truest sense of the word, by showing the highest degree of jealousy in maintaining those several rules and regulations which have been established by that Act of Parliament. The real question, viewing it on this and on all like occasions as one of principle, is, whether the course upon which you are now invited to enter is or is not in substance an evasion of the laws which we have laid down for the government of our proceedings, and by which we are bound, even although there be no authority to compel their observance except our own sense of what is due to ourselves and to the law. For what is the principle involved in this case? The Act of Parliament enacts that every complaint of any improper election or any improper return with respect to an election, whether preferred by a candidate or an elector, shall be received only under certain conditions, and investigated only in a certain way. The conditions are that certain recognizances shall be entered into, and then there is the mode of proceeding in the House with which we are all acquainted. Is any gentleman to escape from these obligations? Is the House to be deprived of those securities because a gentleman, instead of going through the form of a petition, thinks fit to enter into a private communication with the Sheriff of the County, and then make a private communication to an hon. Member of the House, complaining of an improper return? I think the House would enter upon a most dangerous, a most unwise, and a most unworthy course if it gave its assent to any such proposition. The practice in the cases referred to by the hon. Member for the Tower Hamlets has nothing whatever to do with the case before us. They were not cases of an alleged improper election or return. They were cases in which hon. Members who took their seats had been returned as Members. About the return there was no question. The question was whether the forms by which the return ought to be communicated to the House had been sufficiently complied with. There was no case in which a return had been made and in which an hon. Member had been permitted to take the oath and his seat in the House and that return had been challenged. There is no precedent for such a course, but there are precedents to the contrary. In the case of the Dundalk election in 1826, and the elections of Dublin and Rye in 1831, petitions were presented complaining of the conduct of the returning officers, and because they were considered to be in the nature of election petitions, though not directly assuming that form, the House refused to receive them. But if the House had taken the singular view advanced by my hon. Friend, that the returning officer is to be considered an officer of the House, the House, in ail those cases, would have received the petitions. But the House acted in those cases upon this most salutary rule, that it would not suffer that to be done indirectly or by evasion which could not be accomplished directly according to the rules which regulated its proceedings; and I hope the House in the present case will adhere to that rule. Let me say one word as to the manner in which the information in the present case has been given to the House. If the House were, under any circumstances, to entertain a question of this kind on the ground that a sheriff had made a mistake, one would have expected that the sheriff would have forwarded his communication to the Speaker, who is the authorized representative of the House. But what has been the course pursued in this case? I am now speaking with the utmost respect for my hon. Friend and for the gentleman from whom he has received his information. A private letter is written by a person complaining of an erroneous return, and then an individual Member of the House say he was told certain facts in conversation by Mr. So-and-So. But if the House is to act on private letters written to individual Members complaining of erroneous returns, and stating that the writers had been told by Sheriff A or Under Sheriff B that they were satisfied that a mistake had been made, no one could tell how far this would go or where it would end. There are a great many other modes of making mistakes at elections besides easting up the votes erroneously. Votes might be taken after the poll had closed. Votes might be wrongly taken down at the poll; it would be as easy to allege that the polling papers had been falsified, as that the numbers had been wrongly cast. The fear is that this evasion, once admitted, would never stop; and therefore it must not be admitted at all. The statement of the under sheriff, that there was a mistake, may be true or not. The House knows nothing about it, and we have no right to assume that an hon. Member who has taken the oath and his seat has been returned in an irregular way. These matters can be investigated in the proper way. The sheriff has made his return, he has no more to do with the subject, and neither he nor the under sheriff can, by unauthorized information, impeach the accuracy of the return made. In all cases in which the accuracy of the return is questioned the proper mode of proceeding is by petition in the regular way. It is then quite possible that when you come to deal with the poll-books there will be a majority found for the party who claims it, but the majority must be a real one, and that it is so can be proved only by showing that the votes recorded were good and valid. The result of such an investigation, conducted in the ordinary way and according to law, may be to show that the hon. Gentleman who now sits as Member for the King's County has been duly elected. I would ask the hon. Member for the Tower Hamlets what would take place if there should be an election petition presented and it should be investigated in the regular way. Would the duty of the Committee be confined to the recasting of the numbers in the poll-book? No. The investigation having been opened, it would not stop until the Committee had decided who ought to have been returned. If the investigation should be made in the ordinary way the result might be that, notwithstanding an arithmetical inaccuracy, the hon. Member has been duly elected. The hon. Member has stated to the House, upon his honour, that he believes he has been duly elected. I think my hon. Friend will be satisfied with that. At all events, I should be greatly surprised if the House is not satisfied that the course proposed ought not to be adopted.

MR. AYRTON

said, after the statement of the Attorney General, he would not adhere to his proposition. He had proceeded upon what he considered unquestionable matter of fact. He asked leave to withdraw his Motion.

Motion, by leave, withdrawn.