§ Order for Committee read.
MR. GOLDSMID,in moving that the House go into Committee, said, the law in regard to returning officers was different in different parts of the kingdom. In Ireland, when there was an equal number of votes recorded for two candidates the returning officer was bound under the penalty of £1,000, and of being incapacitated for ever after from voting at an election and from serving in Parliament, to give the casting vote whether he had previously voted or not. In Scotland, if there was an equality of votes, the returning officer was bound to make a double return, and he was not allowed in any case to vote as an ordinary voter. In England there was no law on the subject, and hence great confusion had arisen. In some cases the returning officer had given a casting vote; and this had been done recently by the mayor at the recent election for Helston. The practice then was that on the presentation of a petition the Election Committee disallowed the vote and proceeded to inquire into the other votes, as if no such casting vote had been given. As far, however, as he (Mr. Goldsmid) could see, the returning officer was only doing his duty in giving a casting vote, because the writ commanded him to return "one fit and proper person to serve in Parliament," and this injunction he could not be said to obey when he made a double return. There were six objections to a double return. The first was, that it was not in accordance with the writ or precept which required the returning officer to return one Member to serve in Parliament. The second objection was, that for the time a double return disfranchised the constituency, because only one could sit, and until 1011 it was determined which it was to be, neither of them could sit. The third objection to the double return was that it conferred on no one the right to sit and vote in Parliament. The fourth objection was that it necessitated an appeal to an Election Committee, and it thereby greatly increased the expense and trouble of elections. The fifth objection was that it pre-supposed that some of the votes given were bad. The sixth objection was that if none of the votes given were bad, it necessitated another election; and this might go on indefinitely. He thought these six objections showed that a double return was exceedingly undesirable. The Bill, upon which he now moved that the House do go into Committee, provided that the returning officer should not be allowed to vote as an ordinary elector; but, as there ought to be some one on the spot, in the case of an equality of votes, to settle who should be the Member, in accordance with the writ or precept, and as the only person who must of necessity be on the spot was the returning officer, it proposed to give to the returning officer the power to give a casting vote. The proposal was, in fact, to give to the returning officer the same privilege that was possessed by the Speaker of deciding the question when the votes were equal. It had been argued that this would cast an unpleasant duty on the returning officer; but he did not think that that was an argument to which the House would be disposed to attach much weight. Then it was said that this would practically give the returning officer the power of returning the Member. But it did not give him any more power than that possessed by any other elector, except that his vote turned the scale. Lastly, he might be told that the returning officer might not be legally qualified to vote; but he did not think there was any force in that objection, for the Irish Act gave the returning officer the right to give the casting vote if there was an equality of voices, whether he was legally qualified to vote or not. He was not aware when he drew up his Bill that in the year 1850 Sir Erskine May—a great authority—wrote a pamphlet on this subject, in which he contended that the most simple arrangement to meet the case of a double return would obviously be, to restrain the returning officer from voting as an elector, but to let him give a casting vote in case of an equality of votes. This was exactly the method proposed by the Bill before the House; 1012 and this method had obtained the approval of the present Judge Advocate General (Mr. Mowbray) as well as of his predecessor (Mr. Headlam); and the hon. and learned Member for Clare (Sir Colman O'Loghlen) had told him that before he had seen the Bill he had intended to propose a clause in the Reform Bill, giving the returning officer the power in question. He trusted that the House would approve this attempt to make the law uniform in the three countries, and would now consent to go into Committee on the Bill.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
MR. LOWTHERagreed that recent events seemed to show that some alteration of the law was necessary to set this question at rest, and that an assimilation of the law in the three countries was a desirable portion of such a measure, but beyond this he could not agree with the hon. and learned Member. The hon. and learned Gentleman seemed to think that the only way of assimilating the law of the three countries was by adopting the law of Ireland, and did not seem to have any idea of extending the Scotch law to the other two kingdoms. Now he (Mr. Lowther) thought that, instead of extending the Irish law over the whole kingdom, the Scotch law, which prohibited the returning officer from giving a casting vote, and called upon him to make a double return, was much fairer. The hon. and learned Member was, he thought, in error in stating that there was no law in England on the subject, because he believed that the 11 & 12 Vict. c. 98, s. 21, specially provided for the case of a double return. He could not agree that there was the slightest similarity between the casting vote possessed by the Speaker and that given by a returning officer; because the casting vote of the right hon. Gentleman in the Chair was usually given on some broad principle—such as that it was desirable that the House should have an opportunity of considering the subject on another occasion—and no question of a political character was usually involved. But the casting vote of the returning officer would prevent the reconsideration of the question, for the opportunity of reconsideration was specially provided by the Act he had quoted. He should like to know what would become of the impartial character of the returning officer if this Bill passed? 1013 He must say that he did not think the Bill would diminish the number of election petitions. Since the Reform Act of 1832, there had been about half-a-dozen double returns. Out of this number, in two cases— the election for the Montgomeryshire District of boroughs in 1847, and the last election for Dumbartonshire—there had been no panel struck by a petitioner; whereas in Helston the casting vote of the returning officer had not prevented a petition. He gathered, indeed, from what he had read of the proceedings, that the casting vote of the returning officer had been the sole cause of the petition. The inconvenience which the proposed measure would entail upon the returning officers themselves would be excessive. It was, he believed, very unusual for the high sheriffs of counties to avail themselves of the privilege of voting as electors, and it was by no means the invariable rule of the returning officers of boroughs to vote for one or other of the candidates. Such a vote, however, given at an early period of the day was a very different thing, as affecting their character for impartiality, from a casting vote at the close of the day. There was a penalty for non-compliance with the Act, and the Act would be so formidable a grievance to returning officers, would so greatly aggravate the difficulty of discharging their duties, and was in other respects so objectionable, that he hoped the House would concur with him in the Amendment he now moved, that the House go into Committee on the Bill that day three months.
§ MR. DUTTONseconded the Amendment. In reference to the saving of expense, his opinion was, that in the event of the votes being equal at an election, it was almost certain that there would be a scrutiny, whether this Bill passed or not. Another objection to the Bill was, that it would deprive the returning officer, who was frequently the mayor or other leading inhabitant of a town, of the right to vote as an elector, although his fellow-townsmen looked up to him as an example, and his vote would have great moral influence.
§ Amendment proposed, to leave out from the word "That" to the end of the Question, in order to add the words "this House will, upon this day three months, resolve itself into the said Committee,"— (Mr. Lowther,)—instead thereof.
§ MR. DENMANsaid, he believed it to be of great importance that this question 1014 should be settled, and there could not be a better time than the present, when there were no election petitions on hand, and when the Bill could be discussed in a fair and unprejudiced spirit. Whatever the law might be, it was desirable it should be the same in the three kingdoms. These double returns were most inconvenient things, for they necessitated a scrutiny, and thus caused delay during which the constituency was unrepresented. If the mayor of Helston had made a double return, there must have been a scrutiny and a petition. If his hon. and learned Friend who now sat for Helston (Mr. Brett) had been in a minority instead of a majority he would not have been aggrieved, because the rights of the real majority were not prejudiced; whereas if it had been the duty of the returning officer to give a casting vote, the real minority would not petition at all. The provision restraining the returning officer from voting except when he was required to give a casting vote, was advantageous, as it relieved an official who ought to have the impartiality of a judge from the character of a political partizan. The returning officer might say, for example, he would always give the casting vote with the show of hands. That would be an easy way of settling the question, and preventing the casting vote from being canvassed in any unpleasant sense.
§ MR. BERESFORD HOPEthought that Gentlemen who advocated this measure omitted the consideration of two or three obvious matters. They argued as if the returning officer were somebody who happened to be in that position by the accident of his holding some other office, and that this furnished a sort of pledge of impartiality. They forgot that in boroughs which had been made by the Reform Bill and which were not municipal, the returning officer was appointed annually by the high sheriff, who was himself usually a party man, and if that officer were set up as an arbiter of the elections the selection itself would be a matter of hard canvassing with the sheriff, while the names selected would always expose him to great suspicion. If they passed this Bill there must be a new method of appointing returning officers. A double return was no doubt a bore and a trouble and an expense, but so was a contested election. It was necessary for the general good that elections should be troublesome and costly, but people went into them with their eyes open, and they ought to foresee a double return as a possible 1015 contingency. If two candidates received an equality of votes, tant pis for the two people who were tied up together, but they must go before a committee to see which was the right or the wrong man to have the seat. The hon. and learned Member for Tiverton was not quite correct in saying that in the event of a double return a Committee was a matter of course. There had been two cases of virtual equality of votes in the present Parliament. In the case of Helston the returning officer gave the casting vote and there was a petition. In the case of Dumbartonshire, which had hitherto been forgotten in the debate, the returning officer made a double return, but there was no committee. The two candidates set their heads together like men of common sense, and the man who knew he would come off worse saved his pocket and that of his competitor too. But there was another consideration. Supposing an election ran so close that under the present law there would be a tie, under the proposed law there would not be a tie, because the returning officer, who might be the most substantial voter in the town, would not have a vote, and therefore one of the candidates would be left in a minority of one and thus the wrong man might be returned. Consequently this absurd disenfranchising Bill would, in the very first step, alter the relations of the parties, and might very often produce the return of a candidate who would not otherwise have been elected. Finally, he would remark that the proposition was not likely to conduce very much to peace-making, by preventing petitions as its supporters contended. How, in the name of common sense and common ambition, would that Bill prevent one single petition? The man who thought he could knock off a few votes by finding that there had been a little too much treating or bribery would not be deterred from attempting to do so by his opponent having been returned by an official casting vote. They must change human nature if they supposed they could by that Bill prevent one single petition where there was the least chance of obtaining the seat. And in order to produce this no-result it was proposed to give up the high privilege of Parliament to be the judge of its own affairs, and to delegate to an external authority, to some single returning officer, whoever the man might be, the duty of deciding who was the right person to sit in that House. This might be the case in Ireland but it was a very Irish way of doing business, and he 1016 did not wish to see that Irish method introduced on this side of St. George's Channel. He trusted the Amendment would be carried, and that the time of the House would be no longer taken up by an attempt at amateur legislation such as was now before it.
§ MR. WALPOLEMy hon. Friend complains that for the first fortnight of the new Parliament no Member was able to sit in this House to represent Dumbartonshire. Now, I think that that was a great grievance to the constituency as well as to the representative himself; and it might have been a serious inconvenience, considering that most important questions have arisen on the first meeting of a new Parliament—questions in which the deepest interests of the country generally were involved, and which demanded the attention and assistance of every Member of this House. There is no doubt that under the present law a constituency may be deprived for a considerable time of the advantages arising from having a representative in Parliament in the case of a double return. It appears then to me that recent events supply an ample justification for bringing in this Bill. With regard to the case of Helston—where, indeed, under the existing law there ought to have been a double return—that particular case raises the whole question as to what the law should be on this subject. The hon. Gentleman is not quite correct in saying that there is no law on the subject in reference to England. There is a law upon the subject, but the difficulty of interpreting it is so great that I confess I do not know how it is to be acted upon. What the House has done with regard to England is to establish the usage of Parliamentary precedent as the law of Parliament. The first Act that relates to the case of a double return is the 7 & 8 Will. III. c. 7. The preamble of that Act recites that a double return is not only an injury to the individuals duly chosen to represent a constituency in Parliament, by depriving them both of the power of giving their service as Members of the House of Commons, and putting them to great expense, but it is also an injury to the particular constituencies by whom they have been chosen, and an injury to Parliament itself, because the business of Parliament is disturbed and delayed thereby. Well, that being the principle laid down in this statute, it seems to me to be clearly intimated what should be the guiding rule which it should be 1017 sought to establish. The reason, I apprehend why that Act of Parliament has not been carried out is this. There are certain words in the chief clause of the Act making officers who shall wilfully, falsely and maliciously return more persons than are required by the writ subject to the same penalties as those who wilfully and maliciously made a false return. The Legislature evidently looked upon the inconvenience of a double return as being almost as bad as that attending a false return; and I suppose that the difficulty of showing that the return is wilfully and falsely made is the reason why the statute had not been generally acted upon. With regard to England, what the Committees of the House have generally done in a case of this kind is this. They have taken the last decision—indeed, they were bound by the Act referred to to take the last decision under the Act as a precedent—and upon that decision they have framed the rule which the returning officers are bound to observe in reference to the case of a double return occurring in England. What, then, they have invariably done is to declare that the casting vote of the returning officer shall not determine the election of a Member of this House, inasmuch as it had been already laid down by a Parliamentary Committee that such a proceeding is against the usage of Parliament. In Ireland the case is different. The first statute on the subject was passed in the reign of George II. If we are called upon to choose between the law and practice of the two countries, it appears to me that that of Ireland is that which we ought to follow. The statute to which I have just alluded says that the returning officer is wholly disqualified from voting, but that nevertheless that he must vote in the case of a "tie" at an election, and thus prevent the inconvenience of a double return. No doubt that enactment was recognized again in the statute of George IV. In Scotland, neither the sheriff nor sheriff's clerk, nor any person in any way connected with the election, can vote at all. The hon. Gentleman has omitted to notice that fact in his Bill. If he intends to repeal that Act, I think he ought to repeal it altogether, because there is as little reason for the sheriff or his clerk having a vote in Scotland as persons holding similar positions in England or Ireland. This being the state of the law in the three countries, the principle upon which we ought to proceed is, I think, this:—First 1018 of all, except by statute law, there is nothing to deprive any person of the right of voting, whether he were a returning officer or not; and consequently, except on the ground of public convenience and policy, that right of voting ought not to be taken away. But when a person placed in an official position like a sheriff or a mayor presides over an election, it is more convenient that, instead of depriving him altogether of his right of voting, we should simply reserve to him the right of voting when the case came to a "tie," and it is necessary, in obedience to the precept, that some person should be returned to Parliament. In fact, we should not disqualify him altogether; but for the sake of the convenience of having the precept obeyed, and for the further convenience of not having an active partizan taking part in the election until he was required, we should allow him to vote, but not till then. It appears to me that no great mischief would arise from such an alteration of the law in this respect; on the contrary, I think there would be a great advantage in making this change in the law, and in no longer allowing it to be different in the three parts of the United Kingdom. I am of opinion that in a new Parliament every constituency has a right to demand the presence of its representatives. I see no way of arriving at that result, so conformable to the principle and usage of Parliament, more conveniently than, in the case of a double return, to give the returning officer the power of declaring, in obedience to the precept, by his casting vote, who shall be the representative of the particular constituency. With these views, individually I am much inclined to support the Bill.
§ MR. BRETTsaid, he was surprised to hear the hon. and learned Member for Honiton (Mr. Goldsmid) say that there was a doubt as to what was the law of England upon this question, whether the returning officer has a right to give a casting vote? No such right could be given to any man except by common law or by statute. If the right were given by the common law they would find it in the uniform course of practice, whenever a case had arisen, or in authoritative decisions. Since the Reform Bill on every occasion where the votes had been even, until the last election for Helston, the return had been a double return, and before the Reform Bill there were many occasions on which double returns had been made, and 1019 it would be found that there were only three occasions before the Reform Bill on which the returning officers had presumed to give a second or casting vote. The statute which the right hon. Gentleman (Mr. Walpole) had quoted showed what the law really was, for it imposed a penalty on any returning officer who should "falsely and maliciously" make a double return. The clear inference was that he might make a double return if he did not make it falsely and maliciously. In the case of a double return it was necessary that there should be a new election, but either Member might give way and allow the other to take the seat. The Reform Act particularized the time and mode in which every person was to vote—that was to say, that no person was to vote after four o'clock, and that the poll books and polling booths were to be closed at that hour. If, therefore, the Legislature had intended that the returning officer should have a casting vote, and as that casting vote must be given after four o'clock, and could not be recorded in the polling book, it is impossible to believe that in that statute there would not have been some enactment to show how that vote is to be taken and in what manner it is to be recorded. Yet though there may be no doubt about what the law is, it may be desirable that the law should be changed. But there are some objections to the proposed changes. Take the case of a divided county. The high sheriff was the returning officer, and he might be a man who had not an acre of land in the division over the election in which he was presiding, and thus they might, under the present Bill, have a Member returned by a gentleman who did not belong to that division. In such a case it would be a fallacy to say that the Member so returned would be the representative of the constituency of the division for which he was returned. Again, with regard to the boroughs the mayor was generally the returning officer, and as he was merely the representative of the municipal constituency, which was entirely different from the Parliamentary constituency, it was possible that he might not be a Parliamentary elector; and yet it was proposed to put in the hands of such a person the power of returning the Member for the borough. But the strongest objection to the proposition was this; that whereas it was desired that the returning officer should be a wholly impartial person, he would in reality be made a most formidable political partizan. 1020 It had been said that the returning officer would be put into a disagreeable position by having to give a casting vote; but he (Mr. Brett) considered that any returning officer who was a strong partizan, would be placed in a most agreeable position by having an absolute opportunity of serving his party. Even at present it was supposed that the returning officer had facilities for doing so, by hastening or delaying the day of nomination, according to the convenience of his party. If there was to be any alteration of the law, he (Mr. Brett) thought the object ought rather to be to remove from the returning officer all suspicion of partiality. He could not agree with the hon. and learned Member for Tiverton in thinking that this was the best occasion for bringing forward that Bill, for nobody would be able to persuade either party in Helston that the object of the measure was not that which would be its result—namely, to enable the mayor of that borough to say that he had done no wrong in giving his casting vote, because he had only done six weeks ago what Parliament now said was a right thing to do.
§ MR. DENTsaid, he was one of those Members who had experienced the personal inconvenience, and had known the inconvenience occasioned to his constituency through being excluded from a seat in that House by reason of a double return. Whatever might have been the case in Dumbartonshire, in his own case he was advised that the only means of deciding who was to have the seat was by going before an Election Committee, and accordingly he underwent all the trouble, annoyance and inconvenience of waiting four months before a Committee. But he did not think the inconvenience to individuals to be put in comparison with the inconvenience experienced by a constituency in having for a considerable length of time no representative in Parliament. The real point was not whether a returning officer might or might not be a voter for the division or borough for which he made his return; the main question was whether great public inconvenience was to be caused by double returns, which prevented constituencies from being represented. He trusted the hon. and learned Member for Honiton (Mr. Goldsmid) would persevere with the Bill he had brought forward.
§ MAJOR WALKERsaid, that if the Bill passed it would create an extremely anomalous state of things in Scotland. It 1021 might be an open question whether in England and Scotland a casting vote should be given by the high sheriff or the mayor, because both of those funtionaries offered the guarantee that they were not only voters but occupied high and influential positions in their constituencies. But in Scotland the case was very different indeed. The returning officer in Scotland was the sheriff, who was quite different from the sheriff in England, being a paid magistrate, combining, in fact, in his person to some extent the functions of a stipendiary magistrate and those of a County Court Judge; and it was not necessary that he should be a voter in his county, or even a resident in it. Therefore, the result which the Bill would bring about in Scotland would be that, in the event of an equal number of votes being given for two candidates—a case in which it was fair to suppose that party spirit ran high and furiously—the return would practically be made by a paid Government official. He was sure the House would pause before it established a "fancy franchise" of so questionable a character. Unless the hon. Gentleman consented to exclude Parliament from his Bill he (Major Walker) should vote against it.
§ MR. SHAW-LEFEVREsaid, he did not think the law on that subject was by any means as clear as the hon. Member opposite (Mr. Brett) supposed. The returning officer for Helston consulted Rogers on Election Law before making his return, and he understood that he did not give a casting vote, but following the words of the writ he returned one Member only. In Sir Erskine May's work it was pointed out that the statute of the 7 & 8 Will. III. was directed against false and double returns; but the general practice had been to make a double return where the votes were equal—a practice which had long been recognized by the Resolutions of the House and the decisions of its Committees; and it was doubtful whether the sheriff would do his duty if he only made a single instead of a double return.
§ MR. SCHREIBERsaid, that if he opposed the Bill he did so because it did nothing to remedy the unsatisfactory position in which returning officers are placed. By the 6 & 7 Will. IV. c. 102, a returning officer was compelled, under penalties, to provide, in view of election contests, polling booths, hustings, copies of the register of voters, &c.; and if no contest supervened no person was liable to reim- 1022 burse him for his outlay. If he was to be reimbursed at all he must rely upon the honour and good feeling of the candidate who was returned. No doubt as a thank-offering for his escape from a contest such a candidate would voluntarily defray these expenses; but in doing so he conferred a favour on the returning officer—a most undesirable position for a returning officer to occupy. The returning officer in many boroughs were engaged in business, or was a professional man having other calls upon his time. He was also an unpaid officer, and he contended that he ought to be legally entitled to remuneration, and thus placed on a more independent footing. Under all the circumstances of the case, he was prepared to offer to the Bill a hearty opposition.
MR. GOLDSMIDsaid, the fact that the returning officer was in the position just described was no argument against his giving a casting vote. With regard to the remarks of the hon. Member for Helston (Mr. Brett) the case which had occurred in that borough was not parallel with the case for which he (Mr. Goldsmid) wished to provide. At Helston, the returning officer gave a preliminary vote as an ordinary elector; but by the present Bill the returning officer would not be able to vote as an ordinary elector, and if this had been the case at Helston the casting vote would not have been requisite.
§ MR. E. CRAUFURDsaid, that in the Dumbartonshire case one of the candidates having discovered that an elector had voted for him by mistake, most honourably retired. There were grouped boroughs in Scotland 100 miles apart, and no provision was made in this Bill as to the time for declaring the poll, whether on the day following or a month afterwards. He hoped, therefore, that Scotland would be excluded from the purview of the Bill. If the Bill should go into Committee he should move that Scotland be omitted from the Bill.
§ MR. CRUM-EWINGconfirmed the statement made by the hon. Gentleman in reference to what had occurred in the Dumbartonshire case.
§ Question put, "That the words proposed to be left out stand part of the Question."
§ The House divided:—Ayes 122; Noes 67: Majority 55.
§ Main Question put, and agreed to.
§ Bill considered in Committee.
§ On Question that the Preamble be postponed,
1023§ MR. E. CRAUFURDappealed to the Secretary for the Home Department to say whether he did not think it desirable that the further discussion of the Bill should be postponed until some Member of the Government connected with Scotland was in the House competent to pronounce an opinion as to the way in which it would be likely to operate in that country.
§ SIR ROUNDELL PALMERexplained that the reason why he and others on that (the Opposition) side of the House had voted in favour of the Motion for going into Committee was that they were of opinion it was not expedient that a different law on the subject with which the Bill dealt should be allowed to continue in each of three parts of the United Kingdom, and that the present occasion was an apt one for removing the existing differences. At the same time, he did not think it would be well that the casting vote should be permitted to be given in any case by a returning officer who was a non-elector. His hon. and learned Friend (Mr. Goldsmid) was, he believed, prepared to insert a proviso in accordance with that view, and if the Bill were to pass in that altered form the difficulty with regard to Scotland would in great measure be removed. He hoped it would also be provided that, except in the rare cases in which there would be found to be an equality of votes, the returning officer should be precluded from taking any part in the election, and the suspicion that he might be acting as a partizan thus obviated.
§ MR. BARROW,in reference to some remarks which had been made at an earlier stage of the discussion by the hon. and learned Member for Helston, said, he saw no good reason why the sheriff of a county which embraced two divisions should be precluded from giving his casting vote in either or both, inasmuch as he was the sheriff not only of a portion but of the whole county.
§ SIR FRANCIS GOLDSMIDsaid, he desired to remove any impression that might exist that this Bill had been introduced by his hon. Relative to meet the Helston difficulty by stating that it had been brought in some time before the late election for that borough took place.
§ Preamble postponed.
§ Clause 1 (Acts and Parts of Acts repealed.)
§ MR. E. CRAUFURDobjected to the clause. The sheriffs in Scotland were by law prohibited from voting. This Bill 1024 proposed to give the returning officer a casting vote, and therefore he apprehended it would by implication repeal the statute which prevented them voting in Scotland. The principle of allowing an officer of the Crown to decide an election was, in his opinion, wrong and unconstitutional, and therefore he should oppose the clause.
§ Clause agreed to.
§ Clause 2 (No more to be returned than required by Writ.)
§ MR. WALPOLEproposed to insert the words "being an elector qualified to vote" after the words "returning officer," the effect of which would be that if the returning officer was not a duly-qualified elector he would not be allowed to give a casting vote. The object of this Amendment was to obviate the objection which had been raised that under the clause as it at present stood an election might be decided by the casting vote of a person who, except in the capacity of returning officer, had no right to vote at all.
§ MR. KNATCHBULL - HUGESSENsaid, that in the hope of making the best of what he considered to be a bad Bill, he had proposed an Amendment substantially the same as that which the right hon. Gentleman opposite had just moved. He thought that his form of Amendment was rather more convenient than that of the right hon. Gentleman, but at the same time he was willing to give way.
MR. LOWTHERwished to know what it was proposed to do in the event of a double return where the numbers were equal. He hoped that the hon. Member would consent to withdraw the Bill, because it would be wholly inoperative if the proposed Amendment were carried.
THE O'CONOR DONsaid, that under the present law in Ireland the returning officer, whether on the register of voters or not, was able to give a casting vote, and he was unwilling to see this altered, as it would be if the present Amendment was carried.
§ LORD HENRY SCOTTobjected to the proposed Amendment. The returning officers in Scotland occupied very different positions from what they did in England.
§ MR. HOWESsaid, that as the Irish Members were satisfied with the law as it at present existed in Ireland, and as the Scotch Members were equally satisfied with the law in Scotland regulating this matter, and as they both appeared to be equally unwilling to accept the proposed alterations to be effected by this Bill, he really thought 1025 that the Home Secretary had better at once suggest the withdrawal of it. The subject might be more deliberately canvassed during the recess.
§ MR. DARBY GRIFFITHthought that after the decision at which the Committee had just arrived to proceed with the Bill, it would be rather illogical for the Home Secretary to suggest that it should be withdrawn.
§ MR. M'LARENwished to correct an error which had been committed by the hon. Member (Mr. Howes), who said that the Scotch Members were opposed to this Bill. Now such was not the case, for he had himself voted in favour of the Bill, and he believed other representatives of Scotch constituencies had also done so. He admitted that he should prefer to see things remain as they were in Scotland—but when he saw evils existing in England, and believing that the principle of one uniform law for the United Kingdom was a good one, he did not think the Scotch Members should stand in the way of a matter of this kind, and he therefore trusted the Bill would be allowed to proceed.
§ SIR ROUNDELL PALMERthought it was very inconvenient for the law to be in such a state as to render a double return possible. The highest authority in the House had informed him that the only remedy at present for a double return was that there should be a fresh election. It was not fair to permit an entire stranger in the constituency, as a returning officer not possessing a vote might justly be described to be, to have the power of choosing between the candidates in the event of a double return, and deprive the constituency of their right of returning a representative of their own choosing. It would be better to let the candidates toss up for the seat, or to give the seat to the candidate the initial letter of whose name came first in the alphabet. If the sheriffs of Scotland were now prevented by law from voting, they would not, he apprehended, be qualified to vote under this Bill as "duly qualified and registered electors." He proposed to insert after the word "shall," in line three, the following words: "except as hereinafter provided." He also proposed that the casting vote of the returning officer should not be given till the poll books were made up and the result ascertained; and that the returning officer should not vote unless he was a "duly qualified and registered elector."
§ MR. BERESFORD HOPEagreed with the hon. and learned Gentleman that it would 1026 be much simpler to toss up; or perhaps the result of the election might be determined by a rifle or a cricket match. But when the hon. and learned Gentleman proposed that the returning officer should give his vote any time after the poll books were made up, he thought he was opening a door to malpractices. The returning officer might be a chandler, an ironmonger or a shareholder in a joint stock company, to whom the possession of a £100 note would be almost a fortune, and with all respect for the returning officer, he thought it dangerous to allow him to give a private casting vote when one gentleman would be much disappointed and another much benefited by the decision to which he might come.
§ MR. GOLDSMIDthought that the difficulty started by the hon. Member for Stoke (Mr. Beresford Hope) might be got over.
§ MR. LAWSONwould be unwilling to see a change of the Irish law upon this subject, as he considered that it was founded upon the convenience of the thing.
§ MR. E. CRAUFURDsaid, that in Scotland certain classes of persons disqualified from giving a vote at elections of Members of Parliament were got upon the register for municipal purposes. It might happen that the returning officer was one of those persons; and it followed that under the clause, even as amended, he would be able to give the casting vote—because he would be upon the register for municipal purposes— although he was one of a class of persons prohibited by the statute from voting at the election of Members of Parliament. He considered the Bill objectionable in principle, and trusted the Committee would not accede to the Amendment, which would render the measure unworkable.
§ MR. WALPOLEsaid, that a returning officer who was an elector had a common law right to vote, and that right could only be interfered with by an enactment to the effect that until a certain contingency arose it should not be exercised. It was very desirable that the inconvenience of a double return should be avoided, and it was proposed to make that contingency in the event of two candidates having an equal number of votes. He could not see on what principle that portion of the Bill could be objected to. It had been stated that the sheriffs of the Scotch counties being appointed by the Crown, would be subject to undue influence, but he believed that there were no persons more independent than the class from which they were selected; 1027 and the English sheriffs were quite independent. He regarded it as of importance that the law of the three countries should be assimilated when an assimilation on true principles could be effected.
§ MR. POWELLthought the proposed change ought not to be made without more mature consideration. Double returns were not of frequent occurrence, and when they did occur he did not see that they were evils of such enormous magnitude; and, moreover, he did not believe that any Member would be satisfied if his return depended upon one individual. He believed that the Bill would not have the effect of preventing inquiries by a Committee upstairs whenever a seat was gained by a casting vote. It had always been, and always, he believed, would be the case that an election of that kind would lead to an investigation on petition.
§ MAJOR WALKERbelieved the Bill, under pretext of remedying one anomaly, would create an anomaly still greater, for not one out of six of the Scotch sheriffs was duly qualified as an elector. In five cases out of six the established course would be pursued, but in the sixth the returning officer, by virtue of possessing a little property in the borough, would be able to make the return on a principle hitherto unknown in Scotland.
MR. HENLEYsaid, that he had come down to the House with the intention of voting for the Bill, but on listening to the debate on the Motion for going into Committee he had changed his mind. Certain objections had been stated, and to obviate those objections Amendments had been proposed on the spur of the moment. These Amendments not having been printed, it was impossible to judge of the effect. Now, he thought it would have been much more satisfactory if, on a question of such great importance, the measure had been introduced either by the late or the present Government, for there would then have been some kind of assurance that the alterations would have been considered by competent persons acquainted with the election law of the three kingdoms. What would be the result in the case of a contested county election? The poll closed on a certain day, and the poll books were then sealed up. On another day the seals were broken, and the poll books cast up. Now, as he understood the Amendment, some indefinite time was to be allowed for the returning officer to make up his mind how to vote. The question arose as to the 1028 time to be given, and who was to have the custody of the books until the returning officer could make up his mind. He did not see that the urgency for this Bill was so great that it was absolutely necessary to hurry it on in such breathless haste. The removal of anomalies and the assimilation of the election law of the three kingdoms ought to be well considered by the Government, and be dealt with by a measure carefully framed, instead of by a Bill passed in haste, and which might cause much uncertainty and litigation.
§ MR. GOLDSMIDremarked that he was not responsible for the hon. and learned Gentleman's Amendment, for he preferred the Bill as it stood, and the objection of the right hon. Gentleman (Mr. Henley) as to the indefinite interval allowed to the sheriff was equally applicable to the present law.
§ MR. OLIPHANTwas opposed to the Bill. He regarded the proposed assimilation of the law of England and Scotland as impracticable, the conditions of the two countries in the matter to which the Bill referred being essentially different.
§ MR. SULLIVANobserved, that the matter was fully considered by the Irish Parliament in 1795, when an Act was passed providing that in the case of an equality of votes at the close of the poll, the returning officer should be obliged to give a casting vote, whether he was legally qualified or not, or whether he had voted or not, and in the event of making a double return he was liable to a penalty of £2,000. That statute was reaffirmed by the Imperial Parliament in the reign of George IV. Almost everybody was satisfied with the present law, and he protested against any hasty alteration of it.
§ SIR GEORGE GREYadmitted the desirability of assimilating the law of the three countries as far as possible, but agreed with the right hon. Gentleman the Member for Oxfordshire (Mr. Henley) that the Bill and the Amendments which had been extemporised required more consideration then they could receive at that period of the Session.
§ SIR FRANCIS GOLDSMIDthought that they ought to try to assimilate the law and practice on this subject in the three kingdoms, but it was clear that however favourable Members were in the abstract to such a change, no sooner was an attempt made to put it in practice than English, Scotch, and Irish Members desired to retain their own laws and practices.
§ MR. E. CRAUFURDsaid, Scotch Members did not ask for any assimilation, and not one of them could be found to put his name on the back of the Bill. He moved that the Chairman report Progress.
§ MR. GOLDSMIDsaid, his object in introducing the Bill was to do away with an anomaly. If the Home Secretary would bring in a Bill on the subject next Session he would allow this Bill to drop.
§ MR. WALPOLEthought that it would be advisable for the hon. Gentleman to give the Amendments further consideration, and deal with it at a future stage. At present he could not say more on the subject.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.