HELSTON ELECTION.—REPORT. (Hansard, 19 July 1866)

§ MR. LOWE,
the Chairman of this Committee, having read to the House two paragraphs from their Report to the effect that, although the poll books showed that the number of votes for Mr. Brett and Mr. Campbell were equal, the returning officer had nevertheless returned Mr. Campbell as duly elected, and that the returning officer did not appear before the Committee to offer any explanation Why such a 1076 return had been made, said, he might add that the returning officer was served both with a notice and with the Speaker's warrant. The Committee did not attach any blame to that gentleman for not answering to those documents, because he had received a notice from the agents for the petitioners stating that his evidence would not be required. But the Committee thought it right to mention the fact of his not having been in attendance, because they thought the circumstances disclosed before them were so remarkable that it was the duty of the returning officer to have attended before the Committee and explained them. The Committee further found, by investigating the poll, that the returning officer had voted for Mr. Campbell, and they also found that the returning officer was the father of the agent of Mr. Campbell. Under those circumstances, he thought the House would be of opinion that the Committee had no alternative but to call the attention of the House to the facts contained in their Report, in order that the House might take any steps which it thought proper for clearing up the matter. He had since received a letter from the returning officer, and he would read such portions of it as were relevant to the question at issue. The rest of the letter was taken up with excuses, with which it was not necessary that he should trouble the House. The part of the letter to which he wished to call attention was as follows:— In regard to the return which I made I desire to make the following observations:—When I discovered on adding up the poll books that an equal number of votes had been given for Mr. Campbell and Mr. Brett, I felt much difficulty as to the course it would be proper for me to pursue. In all other cases it appeared to me to ho clear that the mayor of a borough when acting in his official capacity had a casting vote, and my strong impression undoubtedly was that I had the casting vote in this instance also. I did not, however, feel certain on the subject, and stated this in the public hall, but that if I had a casting vote I gave it in favour of Mr. Campbell. I was also strongly impressed by the conviction that it was my duty to make a Return of one person only, according to the express requirement of the writ, and that I could not consistently with the writ return two persons. After a long discussion in the public hall I proposed to adjourn my decision to enable me to take the opinion of counsel as to the proper return for me to make. This course, however, was very generally objected to, and I was consequently compelled to decide for myself according to the best judgment I could form. I ultimately determined to return Mr. Campbell, after referring to the only authority I had at hand, and which I believed to be regarded as the best—namely, Rogers on Elections, in which the following pas- 1077 sage occurs:— A learned writer considers that if the votes are equal it is a void election, but adds that the returning officer may, without incurring censure, return either all the candidates who have equal numbers, or one only' (p. 291). I conscientiously believe that in returning Mr. Campbell, in whose favour the show of hands had been given, I was properly discharging my duty, having regard to the terms of the writ, the belief that I had a casting vote, and to the authority to which I have referred. I beg, in conclusion, to state to you, and through you to be permitted to state to the House, that in making such return I was influenced by the single desire to do that which appeared to me to be my duty; and I beg that you and the House will be pleased to accept the expression of my regret if the course which I have taken should on mature consideration be deemed by the House to be in any respect incorrect. He (Mr. Lowe) did not propose to offer to the House any observations upon the reasons which the writer of the letter gave for taking the course which he had adopted. He deemed it, however, to be his duty to state what the law on the subject was, because the best argument used by the gentleman in question was, perhaps, that he had been misled by the text books upon it. There was, in the first place, the "Bramber case," which occurred in 1703. In that instance two candidates, Lord Windsor and Mr. Middleton, polled an equal number of votes. The returning officer declared Mr. Middleton duly elected, on which Lord Windsor petitioned against the return, and the election was declared void. The returning officer, however, who took upon himself to return only one Member, had done so without incurring censure of the House. Then came the "Horsham case," in 1715 (18th volume of Parliamentary Journals, page 172). The first candidate in that instance was Mr. Eversfield, who polled thirty-six votes, the remaining two, Sir Henry Goring and Sir Arthur Ingrain having polled each thirty-three. The sheriff returned Mr. Eversfield and Sir Henry Goring, taking no notice of Sir Arthur Ingram. The counsel for the petitioner took notice of the irregularity, arguing that the returning officer had been guilty of misconduct in not making a double return. The House, however, although they unseated Sir Henry Goring, took no notice of the returning officer, who escaped all censure. That was all the information on the subject to be derived from the precedents. Since that period—1715—the almost universal practice had been to return both Members in the event of an equality of votes, leaving the question as to which of them should have the seat to be decided by the House of Commons. 1078 The circumstances of the present case being such as he had stated, the only point which remained for consideration was what course in reference to it the House ought to adopt? The House had been made acquainted with the excuses advanced by the returning officer, who was, he believed, seventy-five years of age, and not in good health. No good purpose could, he thought, be served by subjecting him to a reprimand for what he had done. He had acted in accordance with what was once the practice; at least, similar conduct had, as he had shown, been allowed to pass un-censured. The practice seemed, so far as he could see, to have been gradually changed by custom without any technical decision of the House. He for one, therefore, as Chairman of the Committee, did not feel disposed to press the matter as against the returning officer any further. If any hon. Gentleman took a different view, it was, of course, open to him to act upon it. It remained to be considered whether it was desirable that the House should place on record any decision on the subject. If it should be decided in the affirmative, he was prepared to submit a Resolution to its notice, or the matter might be postponed to some future day. Circumstances, he might add, had lately occurred which tended rather to complicate the question. A Bill had been introduced which had occupied the day before a considerable portion of the time of hon. Members, and the object of which was to enable the returning officer to give a casting vote in those cases in which the number of votes happened to be equal. It might, therefore, be deemed inexpedient to lay down any law on the subject, when there was some chance that double returns might be altogether abolished. At the same time it was probable, taking into account the period of the Session, that the Bill to which he referred would not pass; and even supposing that it did pass, the Amendment proposed by the hon. and learned Member for Richmond, if carried, would have the effect of limiting the power of the returning officer to give a casting vote to those cases in which he was an elector. We might still, therefore, have double returns, and the necessity for having some authoritative rule on the subject might continue to exist. That being so, the matter was one in reference to which he felt himself to be in a position of some embarrassment. The best course, perhaps, which he could, under the circumstances, 1079 pursue, was to move the Resolution to which he had alluded, leaving it to the House to deal with it as it might think fit.

THE CHANCELLOR OF THE EXCHEQUER
I think there can scarcely be any difference of opinion in the House with reference to the first part of the remarks of the right hon. Gentleman. The mayor of Helston having cleared himself from any charge of contempt of the House, it would, in my opinion, be undesirable to press the matter against that gentleman any further. With regard to the Resolution moved by the right hon. Gentleman, I confess my impression is that it is one likely to lead to considerable controversy. I cannot help fancying that the best course to pursue would be to defer passing any Resolution until it is ascertained what the House is prepared to do with reference to the Bill of the hon. Member for Honiton, which had been discussed on the previous day.

MR. GLADSTONE
I entirely agree with what has fallen from the right hon. Gentleman opposite; and I must add to what ho has said, that it appears to me it deserves consideration whether this is entirely a matter to be dealt with by Resolution—whether the control of the House on matters within its own precincts extends a jurisdiction to instruct those who conduct the election of its Members in other places as to the mode in which returning officers should construe the law. I mention this as a grave matter involved in the inquiry, and as sustaining the view of the right hon. Gentleman.