§ THE CHANCELLOR OF THE EXCHEQUER
, on rising to move for leave to bring in a Bill for amending the Laws relating to Election Petitions, and providing more effectually for the prevention of Corrupt Practices at Parliamentary Elections, said, I rise to ask permission of the House to introduce a Bill to amend the laws respecting the trial of controverted elections by this House, and also to prevent bribery and corruption at Parliamentary elections. The first of these subjects has engaged the attention of the House frequently, I might almost say periodically, for now nearly a century. I need not remind the House that, within a comparatively modern period of our Parliamentary history, petitions with respect to controverted elections to this House were decided by a Committee consisting of all the Members of the House, and were frequently the subjects of party struggles. It is, I am sure, unnecessary for me to remind the House that the termination of the longest, the most powerful, and perhaps we may say the most prosperous, administration that this country ever knew—the administration of Sir Robert Walpole—was brought about by a division upon the Chippenham election petition. Even in the time of Sir Robert Walpole there were Members of this House who were sensible of the great outrage upon the principles of public justice, and, indeed, upon the propriety of public life, which took place in consequence of issues of fact and issues of law being decided in such a manner. But the formation of opinion in those days was slow; and more than a quarter of a century elapsed before the strong feeling of the House of Commons permitted one of its Members to introduce a measure which boldly struck at this evil. It was indeed, I believe, a predecessor in the seat which I now hold, a Member for the county of Buckingham (Mr. George Grenville), who brought in the famous statute which, having by the principle upon which it 694 was founded terminated the system of party struggles upon the subject of controverted elections for nearly a quarter of a century, regulated those matters. The principle of the Grenville Act was that a certain number of gentlemen should be chosen by lot to try each petition; and for seventy years afterwards, though altered and amended, and in some degree improved, the principle of the Grenville Act was never departed from. As late as the year 1839, shortly after I entered the House of Commons, Election Committees were still appointed by lot. At that time the Grenville Act had been so modified that the names of thirty-three gentlemen were drawn from a vase by the clerk at the table; it was open to the petitioner on the one hand and the respondent on the other to strike off eleven names from this list, and the residuum of eleven formed the Election Committee. Notwithstanding the various improvements which were at different times introduced into the Grenville Act, there were still constant complaints of the unsatisfactory character of the jurisdiction in respect to controverted elections. There were allegations of great and unnecessary expense, of great inconsistency and uncertainty of decision, and of total incapability on the part of the tribunal to prevent the corrupt compromise of petitions which had been presented. In the year 1839 Sir Robert Peel, who was then in opposition, and could give all his time to the subject, devoted his great intelligence and his unrivalled Parliamentary knowledge to the question, and brought in a Bill the object of which was to improve the jurisdiction of this House with regard to controverted elections, specially by increasing the responsibility of the Members of the Committees. But notwithstanding that the Bill was introduced by Sir Robert Peel, whose intelligence and experience few could rival, it was not successful. It was repealed two years afterwards, and various measures were introduced and amended at various times, until in the year 1848 the present procedure was adopted by the House. The great object of the Act of 1848 was to give a legal character and shape to the whole procedure with regard to controverted elections. In the first place, the House transferred the whole of its authority to a newly established tribunal called the Committee of Elections, which was composed of six Gentlemen appointed by the Speaker by his warrant, but subject 695 to the approbation and sanction of the House. They are gentlemen eminent among us for their high character, their great Parliamentary experience, and also for their professional acquirements. The Committee of Elections has the power under the existing Act of selecting a Committee of four Members from the whole body of the House, and a fifth Member to act as Chairman, from a panel previously selected from those elements of the House which give the best promise of impartial and able supervision and presidency. The Members thus selected take their oaths solemnly and in public at this table to execute justice and maintain the truth. The witnesses are examined on oath, the petitioner and the respondent both appear before the Committee by their counsel, the decisions and the precedents of the Superior Courts are quoted and followed, and the decision of the Committee is final and conclusive. I think hon. Gentlemen will agree with me that if we did not depart from the fundamental principle of our present jurisdiction and action in respect of controverted elections, it would be totally impossible to form a tribunal more likely to prove satisfactory, or more calculated to arrive at a true verdict on the facts before them. Yet that tribunal has not proved satisfactory, and at no time perhaps have there been, more than recently, greater complaints and charges against the inefficiency and unsatisfactory character of that tribunal. Every one will admit that, notwithstanding all the precautions we have availed ourselves of, as exemplified in the existing Act, the expenditure upon these Election Petitions has not diminished, but I believe I may say they have been considerably increased; that the decisions of the Committees have been uncertain, and therefore unsatisfactory, and that they have offered no obstacle whatever to the growing practice of corrupt compromise, by which, in the process of withdrawing petitions, a veil is often thrown over more flagrant transactions than any which are submitted to scrutiny and investigation. I think, then, that after the experience we have had of the existing law, the opinion of the House has been gradually, but surely, formed, that there is something in the principle upon which the jurisdiction of the House in regard to controverted elections rests which is essentially vicious, and which has hitherto prevented, and will prevent, any satisfactory solution of the 696 difficult and injurious consequences which all recognize, and which many have felt. And what is that principle? It is that the House has hitherto insisted—and I grant that it is natural, and that in a certain sense it has been wise and salutary that they should have insisted—on retaining the privilege of deciding on those questions which are so interesting to every Member of the House, as forming in fact the elements of which it is to consist. But public opinion and the opinion of this House have in a great degree of late years come to the conviction, that it is only by the transfer of this jurisdiction with respect to controverted elections from the House to some other and competent tribunal that we can arrive at more satisfactory results than we have hitherto experienced. It was with those feelings, and recognizing the justice of those views, that Her Majesty's Government last year had their attention drawn to this subject. Last year we were engaged upon a considerable measure with respect to the elements and constitution of this House, and of course the subject of Election Petitions, and the means by which returns to this House are sometimes improperly and illegally secured, naturally come under the general consideration of the House, and it was our intention at one time, in the Reform Bill we presented, to have treated this matter both as regards the subject of controverted elections, and as regards the improper means by which returns are sometimes obtained. But the subject was so large and so varied, and was of so controversial a nature, that there seemed to be a general understanding on both sides of the House that it would be more convenient to treat it separately. With this view, on the part of Her Majesty's Government, I introduced a Bill last year which I believe for the first time proposed to transfer from the jurisdiction of this House the subject of controverted elections to another tribunal. That was the great and main principle of the measure. Accepting that principle, it was of course necessary to offer to the House some tribunal which, as a substitute, would efficiently and satisfactorily perform the duties, and we proposed that Mr. Speaker should undertake the office of constructing a panel of eminent gentlemen of the long robe, of sufficient legal experience to undertake those duties, and that whenever a petition was presented to the House, and the recognizances satisfactorily fulfilled, by an order from the Speaker a 697 tribunal of Members of that panel should investigate the charges in the petition, and should make that investigation on the spot. The House accepted the principle of that measure, and a Bill was introduced. They approved of the transfer of the jurisdiction, but there was a great variety of opinion as to the construction of the tribunal which should be substituted. The House was, I think, strongly inclined to approve of the principle of local investigation. But after some discussion it was thought convenient that the Bill should be referred to a Select Committee, a decision with which I could find no fault, as from the nature of the subject, and in some degree from its novelty—because it was the first time that any application of the principle of a transfer of the jurisdiction had been brought forward—it appeared to me to be a wise and salutary course to adopt. The Committee was formed of Members of the House in whom both sides of the House placed confidence. It was presided over by my right hon. Friend the Secretary of State, and the House will be of opinion that the labours of the Committee were conducted with great ability and attention. That Committee differed from the mode of procedure recommended by Her Majesty's Government, so far mainly as the tribunal to be substituted was concerned. They approved entirely of the principle of a transfer of the jurisdiction, but they were of opinion that that jurisdiction should be transferred to the Court of Queen's Bench; that it should in every case be taken entirely out of the purview of the House, and that there should be no privity or connection between the petitioner to Parliament, challenging the seats of Members, and the House itself; because in the original Bill introduced by the Government, feeling that the House had a very strong—I will not say prejudice, but—sentiment upon the subject of retaining the jurisdiction in itself, and that it would alter the practice only from a high sense of duty, we had proposed that the decisions of the Commissioners appointed by the Speaker might, under certain circumstances and conditions, be challenged by a Member of the House, who might move that the case should be referred to a Select Committee. That was the Bill we introduced, and I need not say—it would be affectation to disguise it—that we acted in that spirit of compromise which, upon difficult questions of this nature, it is sometimes profitable to adopt. But the Select Committee en- 698 tirely repudiated any half measures of that kind; they entirely approved of the transfer of jurisdiction, and said that it should be complete, and not only complete, but that the substituted tribunal should be the highest in the land. They therefore proposed that the jurisdiction should be transferred to the Court of Queen's Bench; that the petitioner should, in the first instance, present his petition to the Court of Queen's Bench; that the recognizances should be fulfilled and completed in the Court of Queen's Bench, and that it should be in the power of the Court of Queen's Bench to direct one of the Judges of the Superior Courts to visit the locality, and there to investigate the allegations of the petitioner. In fact, all the forms of an action at law in a criminal case would be observed, except that you would have a Judge without a jury. The Select Committee adopted that principle, and came to resolutions upon matters of very considerable interest, although not necessarily of such great importance as the leading principle to which I have referred, and therefore I shall not trouble the House with them on this occasion. The Committee directed that a Bill should be prepared in accordance with their resolutions, and the Bill was accordingly drawn and laid upon the table of the House at the close of last Session. Upon the second part of the subject—that which referred to the means of preventing bribery—the Committee came to very stringent resolutions, and amongst them one to the effect that any Member of the House personally convicted of bribery should be disqualified from sitting in the House for seven years; and that if the offence were repeated he should be disqualified for life; and that any person other than a candidate or Member, who was found equally guilty, should be disqualified from sitting for seven years, and from holding the office of justice of the peace, or any branch of the municipal magistracy. There were many other resolutions which the Select Committee arrived at, such as retaining the operation of the Act which was passed some years ago, for pursuing local investigations by special Commissioners, on the Address of both Houses of Parliament. Her Majesty's Government had to consider the recommendations of the Select Committee and the Bill drawn up in unison with their resolutions; and I am bound to say that, having given the subject their deepest consideration, it was the unanimous opinion of the Cabinet that it would be our duty 699 to introduce a Bill in strict conformity with the recommendations of the Select Committee. There might be points of detail susceptible of alteration, but they were not of primary importance, and we thought they might be very fairly discussed in Committee; but with regard to the general scheme we were perfectly prepared to introduce a Bill in complete harmony with the recommendations of the Select Committee, and to support them by all the means we possessed. And when my right hon. Friend, on the night before the House adjourned, and when, unhappily, I was not present, gave notice on my behalf that I would introduce a Bill on the first night of the re-assembling of the House, it was our intention to have laid on the table a Bill such as I have described, to carry into effect, in every branch, the recommendations of the Select Committee. I regret to say, Sir, that it is not now in my power to fulfil the intentions of Her Majesty's Government, or to follow the recommendations of the Select Committee in the Bill which I am now asking leave to introduce; and the reason is, that we found an obstacle in the way which we did not contemplate at that time, and the largeness and importance of which all, I am sure, will admit. It became our duty, not to consult Her Majesty's Judges, whether they would undertake a duty which the wisdom of Parliament would put upon them, but, as a matter of courtesy, to inquire of the Judges the most convenient manner to themselves in which the application of the provisions of the Act, if it passed, might be carried into effect. But I regret to say, that instead of receiving from the Judges information upon the particular point on which we sought to be instructed, we received from that most eminent and exalted body—conveyed by their most august member—an expression of opinion upon the proposed Bill so entirely condemnatory of its provisions ["Oh, oh!"] that it became absolutely necessary for us to consider the course we should adopt. If it had been some particular point on which Her Majesty's Judges differed from the Select Committee, or from the Government, there might have been room for negotiation, and we might have hoped to remove the difficulty by friendly conference or correspondence. But the objections of the Judges were complete and entire. They were of opinion, first of all, that upon constitutional and personal grounds the propositions of the Government were 700 highly objectionable; and secondly—and this was explained in detail—that if even there were not those constitutional and personal grounds of objection, the fulfilment of the duties proposed by the Select Committee and Her Majesty's Government were absolutely impossible, consistently with the performance of their official functions, with their oath of office, and their duty to their Sovereign and their country. Well, I know not what the House may feel under these circumstances, but I must say, on the part of the Government, that having given to this expression of opinion their utmost and most anxious consideration, we have not felt it our duty to advise the House of Commons to thrust those duties upon the Judges of the land, or to place themselves—I will not say in collision—but in painful relations to a body so exalted and so much entitled to our reverence and respect. I confess that when I remember that this is a body of men practised in the formation of just opinions, from multifarious circumstances, I could not presume to maintain any opinion contrary to theirs upon such a subject. The idea has never for a moment been permitted to cross our mind that those who have arrived at what I am sure is their sincere and solemn convictions were influenced in any degree by any considerations of their own personal inconvenience. Although the highest authority has told us that even in Olympian dwellings there are those who are not superior to the infirmities of human nature, I may say on the part of Her Majesty's Government that we feel we can no longer attempt to influence the Judges in this matter, and that we have received their decision with mortification and disappointment. Under these circumstances, it has been our painful duty to endeavour to devise a substitute for the tribunal which the Select Committee contemplated, and which the Government approved and accepted. The House, I am sure, will feel the great difficulty in which we were placed. Nothing we can devise can equal in character and authority the tribunal we have unwillingly relinquished. The House will also see how impossible it was for us to attempt to carry out the policy indicated by the Select Committee, and approved by the general feeling of the House; and also, how impossible it was for us to revert to the tribunal proposed in our original Bill, and which had far less important duties to discharge than those recommended by the Select Committee. We had to consider what depended upon 701 the decisions of such a tribunal as that which we are contemplating—that an English gentleman might be deprived by it of the honour of sitting in Parliament for seven years, and in another instance for life, and that without the sanction of a jury. And I am sure that the House will feel that, although three gentlemen of the long robe, selected by the Speaker, may go down to a borough or a county charged with corrupt practices, and may make an investigation of a very advantageous and profitable description, still that they would hesitate before—as the result of such an inquiry—they inflicted a penalty so stringent. We could not, therefore, fall back upon that tribunal which, in our original proposition, was certainly, I think, an improvement upon the procedure which at present prevails. I need not trouble the House with the various schemes and combinations which have been placed before us. If, as I hope, we shall have an opportunity of discussing the Bill in Committee, I dare say many of those schemes will be reproduced, and we shall then be ready to give our reasons for not adopting them. I will at present content myself only by stating the course which we recommend the House to adopt; and I hope that the House, smarting as it were under the disappointment of not being able to carry into effect the higher plan of the Select Committee, will not be too apt to discard that which we propose, but will give it a full and candid consideration, and on the second reading of the Bill, and in Committee will fairly and impartially estimate its character. What we propose is that the House should form on this subject of controverted elections a new and original tribunal. We propose that it should consist of three Members; and, so far as the recognition of their honourable position is not a mean remuneration for men of the highest abilities and character who may not perhaps be inclined to continuous hard work, that the House may offer a temptation which will allow us to constitute a tribunal that will command the confidence of the House and the country. The objection, of course, to such a tribunal is that their duty is not fixed and continuous; but when the subject is fairly and fully investigated, I think it can be shown that there is a great deal to be said in favour of the proposition. We propose that there should be this new court, to be called the Parliamentary Elections Court, or some technical name of 702 that kind; that the Judges shall have a salary of £2,000 a year each, and that all the appeals from the decisions of revising barristers shall also be referred to them. I have now placed before the House the general character of the measure which I am asking leave to introduce. That measure, I repeat, is not that which, two months ago, I hoped it would have been in my power to introduce; but I think, under any circumstances, hon. Gentlemen, when they read the Bill, will find that it is a measure of great importance, meriting their most earnest attention; and that, as it is founded upon a principle which I am convinced is the only true principle upon which any great improvement in our jurisdiction can take place, I trust the House will not refuse me leave to introduce this Bill at the present time.
§ MR. KNATCHBULL-HUGESSEN
apprehended that the House would be unwilling to enter into any lengthened discussion on that measure at the present stage; and, as a Member of the Select Committee which sat upon that subject last year, he was quite ready to tender his thanks to the Government for the prompt manner in which they had endeavoured to deal with the question. But he wished now to guard himself against being supposed to express the opinion that any measure in that direction could really prevent corrupt practices. He did not believe that object would ever be attained until Parliament was prepared to enact that communities possessing the privilege of returning Members to Parliament should themselves bear the legitimate expenses necessarily incurred in the exercise of that privilege. So long as these expenses were thrown upon the candidate, he did not believe that they would ever put an end to corrupt practices, because not only was the choice of the constituency greatly limited, but the door was opened to an immense number of illegal and unnecessary payments under the cloke of "legitimate expenditure." He also wished to point out the very great gravity of the constitutional change involved in the provisions of the Bill. He would not attempt to follow the right hon. Gentleman through his sketch of the history of the law relating to controverted elections, but he must remark that a transfer of that jurisdiction which the House had always most jealously guarded, and which was guarded, with equal jealousy, as to its own Members, by the other House of Parlia- 703 ment, was not a new proposal. Some twenty-eight years ago such a proposal was made, when among those who strongly opposed it were the late Sir Robert Peel, Lord Russell, Lord Lyndhurst, and the present Prime Minister. The objections then taken were two-fold, being based both on constitutional grounds and on the difficulty of finding a fitting tribunal out of that House to try Election Petitions. It was stated—and he believed truly—that there was no popular legislative body in the world which did not maintain its own proper jurisdiction over its own members, and that it was the inherent right of every assembly constituted like the House of Commons to keep such a power in its own hands. But, in his opinion, a more tangible and practical objection was the difficulty of selecting some other tribunal to exercise these functions; and when the right hon. Gentleman stated that the Select Committee of last year were prepared to transfer the jurisdiction to another tribunal, he (Mr. Knatchbull-Hugessen), speaking for other Members of that Committee as well as for himself, was bound to state that the transfer of the jurisdiction of the House of Commons was in their minds conditional upon its being given to the very highest possible tribunal which could be selected. He had always had some doubts with regard to the transfer of this jurisdiction to the Judges, because they were frequently selected upon political considerations. At present the Judges possessed the full confidence of the public, and he feared that if they were made the arbitrators in political matters, and brought into frequent contact with political partizans, they might lose a portion of that public confidence which they now enjoyed, and which it was so essential in the interests of the public that they should possess. Again, supposing the House declared itself to be an incompetent tribunal to decide these questions, how long would public opinion allow it to retain the jurisdiction which it exercised over other important matters by Committees upstairs? But the present Bill went further than the transfer of jurisdiction. That House was a high constitutional court to which an appeal could be made on every important question; but, under that Bill, as he understood it, if a question or a grievance were connected with the election of a Member, then that court would no longer be open to the aggrieved person, who must seek 704 his remedy from another tribunal. The further he looked into that subject the more difficulty he experienced in agreeing to a transfer of the jurisdiction of the House. The present proposal had come rather suddenly upon them, and due time would doubtless be allowed for considering it before the second reading. The question was one which ought not to be considered as a party question, and he hoped both sides of the House would unite in endeavouring to remove the evils complained of. But there was one great omission in the measure. He took it that the evils of the existing system were threefold. There was the difficulty of detecting corrupt practices, and that difficulty would no doubt be diminished if the tribunal tried the offences on the spot where they were alleged to have been committed. The second evil was the great expense attendant upon an exposure of corrupt practices; and, as regarded expense, he much questioned whether the Bill would lessen the cost of trying Election Petitions. But there was another great evil which that measure would not touch—namely, the trafficking in and withdrawal of Election Petitions after they had been presented to the House. Amendments might, no doubt, be proposed when the Bill got into Committee, but inasmuch as the measure varied greatly from the main principles laid down by the Select Committee, he could not hold himself in any way bound to support even its second reading. He, however, trusted that they would all approach that question in an impartial spirit, and would offer no opposition to the introduction of the Bill.
§ SIR FRANCIS GOLDSMID
expressed his regret that the Bill about to be brought in was not to contain a provision which he had repeatedly suggested to the House as being much more likely to check bribery than severe penalties and other enactments. Additional weight had been given to the clause to which he alluded, by the fact that about that time last year the Government referred to it as one that was to form part of the Bill which they intended to introduce on that subject. The provision in question was one for giving the seat to any candidate who, although defeated, had been supported by a substantial portion, say one-fourth, of the registered electors, and who should establish on petition a case of bribery against his opponent, without any recriminatory case being proved against himself. The pro- 705 posed enactments of the present measure, appeared to be founded on the principle of facilitating the detection of bribery and rendering its penalties more severe. The provision he desired to see adopted was founded on the more effectual principle of removing the temptation to commit that offence, and making it defeat its own object. Bribery prevailed chiefly in boroughs where there existed a knot of corrupt electors, who, having no political opinions, were always prepared to sell their votes to the highest bidder, and who held the balance of the elections in their own hands. It was impossible for any pure-minded candidate now to succeed without bribery in such a constituency unless he was so fortunate as to encounter an opponent whose detestation of corrupt practices was as great as his own. If a pure candidate, defeated by bribery, petitioned against his opponent and succeeded in ousting him, how much better off would he be? He would have to go down to contest the borough again, when he would find himself the most unpopular of all possible candidates among the bribable electors who had the decision substantially in their hands, and he would be the only person against whom they would be prepared to vote gratis. In that way purity was sure to lead to defeat; but by the provision he suggested all this would be reversed; for when one side was pure and the other corrupt, the corrupt party would soon find by experience that the only result of their corruption was to buy the seat, not for themselves, but for their opponents. Severe penalties would only do mischief by lowering the character of the Members of that House, unless the principle for which he contended were adopted. In Committee on the Bill he should therefore renew his proposal, and he trusted it would meet with favourable consideration on the part of the Government, (who, at one moment, at least, had been inclined to adopt it,) and that it would also be regarded with favour by the Committee.
§ MR. WHITBREAD
said, he felt great regret on learning that the Government had so far departed from the scheme which came down to them from the Select Committee appointed last year. Having had the honour to sit on that Committee, he was one of the most strenuous advocates of the course which they ultimately adopted, and adopted almost unanimously. For the sake of effectually checking electoral corruption he was prepared to see the juris- 706 diction in the matter of elections taken out of the hands of that House, but he should be prepared to see that done only upon the consideration that they substituted some tribunal which was unexceptionable. Since he had had the honour of a seat on the General Committee of Elections he had taken great pains to inform himself as to the results of the Committees appointed to try Election Petitions. As to the Election Committees, he felt bound to say, notwithstanding the gossip which might float round the lobbies and elsewhere, that, as a rule, they arrived at just decisions on the cases which were submitted to their notice. It was complained, however, and the complaint was, he thought, to some extent, well founded; that those cases were not well put before the tribunal by which they were tried. In a word, the bar was too strong for the court; and this was not surprising when it was borne in mind that five Members, for the most part without legal training, were chosen to preside over those investigations. Under those circumstances, he would urge that, should the trial of Election Petitions be taken out of the hands of the House, it should be transferred to a tribunal in which the public would have confidence, and whose action should not be unduly restricted, for when the law was passed under which Election Committees now acted, the mark had, in his opinion, been overshot, in endeavouring to control to too great an extent the proceeding of the General Committee, who did not in reality appoint the Members who were to try a petition, inasmuch as, although they nominated four of the number, the selection being equally made from both, sides of the House, the fifth was appointed at haphazard, so that the tribunal was not always so fairly constituted as might be the case. He made those observations simply to show that the object which they had in view might best be attained by dispensing with artificial regulations and restrictions. He hoped, he might add, that the Government, before they proceeded further with the present Bill, would take into their serious consideration the recommendations of the Committee which sat on the subject of bribery last year. It was monstrous, he thought, to imagine that the work in question could not be done by the Judges; and the Select Committee of last year were unanimous in believing that they would form a tribunal in which the public would have the fullest confidence. The tribunal 707 should not only be above all fault, but above all suspicion of fault, and it should have at its head some one capable of conducting it in the best possible way. The Court which it was proposed by the Bill to establish was open to the great objection that it would be appointed ad hoc, and that its officers would not hold so high a position in public estimation as those who presided in the Superior Courts. When the Bill came on for second reading it would be time enough to state the course which he should think fit pursue with respect to it, but he trusted that the Government, having taking up the subject with an honest intention of dealing with it effectually, would not weaken their action by proceeding as they seemed to intend.
§ SIR ROBERT COLLIER
, as a Member of the Select Committee of last year, expressed himself as being greatly embarrassed by the course which the Government had announced it to be their intention to adopt. He at the same time was fully alive to the difficulties under which they acted. Any representations which came from the Judges must of course be treated with the utmost respect, and he was far from saying that the House would be justified in imposing upon them the performance of duties which, for any reason, they were unwilling to undertake. If, however, the Judges could not undertake the duties in question, it was, in his opinion, matter for serious consideration whether the House should part with its jurisdiction over Election Petitions at all. He thought the right hon. Gentleman the Chancellor of the Exchequer was not quite correct in supposing that the Committee agreed that the jurisdiction must be parted with to some tribunal. That was not so. The Committee agreed that the jurisdiction should be handed over to the tribunal they recommended, but to no other. He had a perfectly clear recollection of what had passed in the Select Committee on the subject, and the purport of their discussions was, in substance, that if the House were to part with its jurisdiction over Election Petitions—a jurisdiction which was of great antiquity and importance—it should be parted with only that it might be transferred to the first tribunal in the land, the suggestion that it should be transferred to inferior tribunals being altogether rejected. Under those circumstances he could not help thinking that the Members of the Select Committee were now placed in a difficulty, and that they would seriously 708 have to consider whether or not they should support the second reading of this Bill. The inquiry which the trial of an Election Petition involved was one of the most important which could be named, and required the exercise of the highest judicial ability. It was in the first place a civil cause dealing with important civil rights, and in the next place a criminal investigation, in the issue of which the public were deeply concerned. If, therefore, an inquiry of that kind were to be taken out of the hands of the House it would, in his opinion, be difficult to show that it ought to be transferred to an inferior tribunal. The result of the adoption of the Government proposal would, in fact, lead to the anomaly that while we had the Judges in the Superior Courts trying actions for assault, for debts of £50, and other small matters, we should have an inferior tribunal hearing cases of far greater importance than those which ordinarily went before the superior Judges, and second in importance to none. In saying thus much he must not be understood as contending that the jurisdiction to try Election Petitions should be imposed. He meant simply to reserve to himself the right to re-consider the very important question whether it was desirable that the House should part with that jurisdiction or not.
§ MR. RUSSELL GURNEY
said, he was extremely disappointed on hearing the announcement of the Chancellor of the Exchequer. He (Mr. Russell Gurney) had the honour of sitting on the Select Committee, and although he did not enter upon his duties at all prepossessed in favour of the scheme which was ultimately adopted, there were two conclusions to which he was necessarily forced. One was that it was desirable that the jurisdiction should no longer remain in that House. For nearly a century the House had been trying to invent a scheme by which that jurisdiction should be retained, and keep up an impression both in and out of doors that justice was done. They had not succeeded in that object. The other conclusion to which he was driven was, that if the jurisdiction was to be taken from that House, it should be placed nowhere but in the highest tribunal in the land, in which the public at large had general and unlimited confidence. They had that confidence in Her Majesty's Judges, but it was a matter of doubt in his mind whether, if the jurisdiction was 709 not transferred to them, it should be transferred at all.
§ MR. SANDFORD
said, he hoped the House would pause before it gave its assent to the proposal of the Government, which he looked upon as being one of a most dangerous character, inasmuch as it would confer on a barrister of seven, eight, or ten years' standing the power of preventing a man from taking his seat in Parliament for seven years, or it might be for life. He had no wish to see the House give up its jurisdiction in question over its own Members; and the highest constitutional authorities were, he believed, in favour of its maintenance in the hands of the House. He at the same time felt that there was considerable force in the remark of his hon. Friend the Member for Bedford (Mr. Whitbread) that the bar was too strong for the Election Committees as at present constituted, and he would venture to suggest whether that difficulty might not be obviated to a great extent by the appointment of competent assessors to aid them in the discharge of their duties. There was only one effectual way of getting rid of bribery, and that was by making it the interest of the boroughs themselves to put it down. In some boroughs in which bribery had extensively prevailed it had been put down by the respectable persons of both parties meeting together, and declaring it should no longer exist. If an Election Committee reported that any case of bribery had been proved, with or without the knowledge of the candidate, a commission should be sent down to inquire into the matter in the borough, and at the expense of the borough. The consequence would be that any candidate who bribed, or wished to bribe, instead of being the popular candidate, would be loathed, he might almost say, by the electors of the borough, who would be compelled to pay for his misdeeds. It was an error to omit from the provisions of such a Bill as that proposed some enactment for preventing bribery at municipal elections, where, by means of an annual machinery, bribery was practised in the worst and most extensive form; and so long as it was practised at municipal elections it would be impossible to put it down at Parliamentary elections.
§ MR. LOWE
It is unnecessary to defend the recommendation of the Select Committee, as nobody has impugned it, and even the right hon. Gentleman opposite has given it his frank adhesion; but 710 it is said that the Judges refuse to give effect to it. Their duty to the Crown and to themselves, I suppose, prevents their doing so. That raises a large question, and with every respect for the Judges, I must say that the administrators of the law are under the law like everybody else, and if this House in its wisdom thinks fit to put any duties on them they must perform those duties or give up their offices to others. I am disposed to resent such an intimation as is stated to have proceeded from the Judges, for they are, like the meanest public servants, only a body of public servants. If the present number of Judges be sufficient to transact the work we ought to have it done; and, if not sufficient, we ought to increase the number. I hope, then, we shall consider the question on its merits, putting aside the intimation of the Judges, and not being deterred by persons who would be the first to say in their own Courts that no one is a good judge in his own case. With respect to the tribunal now proposed by the Government, I consider it most unsatisfactory. It is a tribunal ad hoc, existing in permanence only to perform this duty. Therefore, it maybe expected that the persons composing the tribunal would be solicited, that their politics would be made matter of inquiry, that their conversation would be watched, and that they would become discredited in the public mind. It would likewise be a great expense to pay these gentlemen £2,000 a year each for work only to be done every four or five years; and for the £6,000 a year proposed to be given to the three you might increase the number of Judges by one, and have the benefit of the services of the additional Judge, not only temporarily, but permanently. Then, there is another objection to the scheme. The number of Election Petitions may hereafter be very numerous, and I rather think that what we have recently done is likely to lead to such a result. But how are we to deal with a large number of petitions by this Bill? It is only natural to suppose that the regular Judges, who have a special control over counsel, can conduct these inquiries much more expeditiously than the members of a tribunal which is only occasionally called into operation, I feel sure that the Government proposition will not be accepted by the House, and I state this now, because I hope that it is not too late for the Government to re-consider the matter. I am in favour of placing the 711 jurisdiction in the hands of the first tribunal in the country, if it be taken away from the House, and should it be necessary, let some reasonable increment be made in the number of the Judges. In the time of Lord Eldon the whole equity business was transacted by the Lord Chancellor, a Vice Chancellor, and the Master of the Rolls; but the House is aware what a large addition has been made of late years to the judicial staff of the Equity Courts. In the Common Law Courts, however, the judicial staff has not been increased. There were, indeed, three Judges added, but that was for the purpose of getting rid of the Welsh Judges; and the judicial staff at Common Law is still very nearly the same as existed 100 or 200 years ago. It may be that the Judges are overworked, but that circumstance constitutes no reason for throwing the transaction of this particular duty on inferior persons.
§ VISCOUNT CRANBORNE
I cannot agree in condemning the Judges for what they have done in this case. On the contrary, I think that the protest of the Judges was a patriotic protest, and that the Government has taken the right view in deferring to their opinion. The right hon. and learned Member for Southampton (Mr. Russell Gurney) said that if the Judges formed the tribunal they would possess unlimited confidence. But how long would they continue to possess it if this duty is thrown on them? Hon. Members speak of the Judges as if they were abstract entities, wholly apart from all external influences; but what are the realities of the case? Who is it that is selected to be a distinguished Judge? He is a man who has spent all his years immediately preceding his elevation in the hottest disputes of party, who was in the confidence of his party, and cognizant of all their political movements in Parliament. On every question which has arisen for years before his elevation to the Bench he was ranged on the side of his party, and held, as it were, a brief for them. He has learnt thoroughly to sympathize with his party, to feel for their reverses, to hope for their good fortune, and, on all occasions when he legitimately can, he is, no doubt, anxious to foster the growth of the principles he has always advocated. Such I take to be the feelings of a man appointed one of the chiefs of our Courts of Law. Several distinguished politicians have lately been raised to the Bench from 712 the Ministerial side of the House, and supposing that shortly there should be a similar run of luck for politicians on the other side of the House, we shall have in course of time the judicial Bench pretty fairly divided among gentlemen of the highest intelligence, of different politics, in whom, as respects all ordinary questions, the country would place the fullest trust. But in a short time men will be actively engaged in election contests, and at a critical period some of our Judges—supposing the scheme of the Select Committee to be adopted—might be sent down to the country to decide on questions on which party passions ran high. I have no doubt that they would do their best to decide honourably and fairly, and in that endeavour might rather be inclined to decide against the party to which they belonged; but would they not be bespattered by all the filthy mud which election agents could scrape together? You shove them into the dirtiest part of election life, and you hope that they will come out clean! Try the question by some other case. Suppose you wanted a tribunal to enforce the Party Processions Act in Ireland, would you think it wise to select for the purpose the Grand Master of the Orange Association, or Archbishop Cullen? Yet the cases are analogous, for the Judges are persons who have been engaged in the very controversies upon which, according to the plan of the Select Committee, they were to decide. I admit all the difficulty of the question, and I sympathize in the views expressed by some hon. Gentlemen that it would be impossible to transfer this power from the House to any but the highest tribunal; but I should be very sorry, even for the purpose of putting down bribery, to lower in the eyes of the country those high judicial functionaries, whose character is of intense importance to all the country. I believe that in forwarding their protest to the Government the Judges were not guilty of any disrespect, but only performed their duty to their country as loyal subjects of the Crown.
§ SIR ROUNDELL PALMER
I think the noble Lord (Viscount Cranborne) has exaggerated the risk of political imputations being made against the Judges if they performed the duty proposed by the Select Committee to be assigned to them, and in the absence of more information than the House at present possesses I cannot help feeling that the communication 713 made by the Judges to the Chancellor of the Exchequer was not such as to justify anyone in supposing that they declined on personal grounds undertaking any duties which this House might impose on them, and which they had adequate strength to discharge. If the communication from the Judges indicated any doubts in their mind as to the delicate question of retaining public confidence, should they be called on to discharge these semi-political functions, we should all, whether we agreed with them or not, be unanimously of opinion that the Judges did no more than their duty in stating their views on that point. Beyond this, the practical question arises as to the means which the Judges have of discharging this jurisdiction if it were imposed on them. The right hon. Member for Calne (Mr. Lowe) suggested that the number of the Judges, if not now sufficient, ought to be increased; and a Committee was now sitting to consider the whole of the judicial arrangements with a view to economizing the judicial powers for the public advantage. It will be necessary, with the present distribution of the judicial force, that there should be a considerable increase in the number of the Judges if they are to discharge these duties; but I think the House, before it forms anything like a definite opinion on this point, would do well to consider how far it is to be carried if the duty is to be adequately and efficiently discharged. The duty is essentially one of emergency, and comes with very great urgency after a General Election. I do not know that in future the number will be greater than in former times; but, even if they are only as numerous as formerly, it is quite clear that after a General Election there will be a large crop of Election Petitions. We cannot afford to have them taken in turn with other business; it is manifest they must be proceeded with de die in diem, without delay, and disposed of at the earliest possible moment. The right hon. Gentleman, recognizing that necessity, says you might send four or five Judges into the country for the purpose of doing this duty; but is the House prepared to recommend the appointment of four or five more Judges, in order that, on an emergency, they may discharge this duty? What would they be doing all the other years? In all probability the increase would considerably exceed what you want for the general judicial business of the country. I do not say the difficulty is 714 insuperable; but it is one which requires serious consideration before the House comes to the conclusion that this is a practicable proposal. I repeat that I do not myself believe that the Judges would discharge the duty, if laid upon, them, otherwise than to the general satisfaction of the public. I believe they would so discharge it as, in that duty, as well as in all other duties, they would retain public confidence. I do not agree with my noble Friend that those who fill high office, because they have taken their part in this arena, when they have to discharge duties unconnected with political subjects in their judicial capacity, have for many years past, or will in future, acquit themselves in such a manner that any considerable part of the public, even in places subject to particular prejudice, will believe them influenced by political considerations. If that were all, if there was no other difficulty, although I cannot but think the Judges were perfectly entitled to submit to the Government these considerations as influencing their minds, I should not be deterred myself by any such opinion from casting upon them these duties if I were satisfied, on the whole, that they were able to discharge them efficiently and well, consistently with the general administration of justice, and without laying on the public an excessive and needless increase of the judicial staff—an increase necessary for this purpose, but entirely unnecessary for any other. It is quite true that the present election tribunal labours under the disadvantage of the Bench being overweighted by the bar; but after all, that was not a very great disadvantage. I think there is high confidence in the Bench as constituted on the whole. If you have a local inquiry you might combine the advantage of examining into particular cases and doing what you now do by a commission of inquiry; but if the local inquiry must be conducted by the Judges, it will manifestly take a considerable time. I think all these points will require very serious consideration before the House comes to any practical conclusion on this question.
I have listened to this discussion with very great interest. I am one of those who have the very gravest doubts whether the House ought to part with its jurisdiction in these matters. If you give up your jurisdiction, in a very few years I am persuaded you will be handed over to the tender mercies of the 715 other House of Parliament. Once submit to the decisions of a Court of Law, and somehow or other that Court of Law will carry you up to the highest court of all. I view with the greatest jealousy any proposal that the House should give up its power of deciding these questions. I do not think we shall have them better decided. I think, in general, they are honestly decided, and I, for one, should be sorry to see them taken away from our own jurisdiction.
§ MR. AYRTON
said, he wished to say a very few words on this question. He thought they were very much indebted to the learned Judges for having submitted such sound constitutional views to the Government in the shape of serious practical objections to this measure. He was not about to enter into the discussion of a proposal which the Government had found impracticable, and had, therefore, withdrawn; but he must say that the Judges were not open to the reflection that they were disposed to set themselves up against the legislative authority of the House. All they did was to state the constitutional and practical objections they entertained to the proposal. But it was said the House of Commons and its Committees were very unfit to deal with those questions. They were apt to be very sensitive as to the remarks made about tribunals on which they themselves sat; but if they went into the Courts on the other side of Westminster Hall they would hear enough to make them suppose that they ought all to be abolished too. The other day he was speaking to a most experienced naval officer, who insisted that the Court of Admiralty never could be made efficient or deserving the confidence of the public until the Judge was deprived of all power to express any opinion on nautical matters; his nautical assessors only should be allowed to do so. As to the Court of Chancery, it might be said, was it not a monstrous thing that a single Judge should undertake to decide complicated questions of fact without a jury? Was not that an objectionable state of things? Or, if they went into the Courts of Common Law, might they not be told that it was a monstrous thing that juries, uneducated people, should decide complicated questions of science; a highly-educated Judge only should be allowed to decide on the facts. Such were some of the opinions that were current, but, of course, nobody paid any attention to them. So it was 716 said how monstrous that the House of Commons should sit on Election Committees! He saw nothing monstrous in it. A legislative assembly, to maintain its independence, must have the right of judging as to the seats of its members. That proposition was as well understood in the other House as it had always been in their own. It was true that some attempts had been made in other countries to place the Courts above the Legislature. It was so in the old Spanish Constitution; but he did not know that it existed now. There was also some such scheme in the United States; and they saw what they had there come to—they did not get on with it at all—and no country could; it was producing serious complications. He thought also there was a similar scheme in India, which also brought about difficulties. Indeed, nothing was more likely to produce confusion than any attempt to place the judicial above the legislative tribunals of the country. To take a practical view of this question, he asked if there were any defects in the tribunal, what were they, and what was the remedy? They had not exhausted their means or done their best to make the tribunal perfect. One radical defect had been pointed out. The Chairman, on whom so much depended, was selected nearly at haphazard. That was not altogether satisfactory, but it was obvious that the House had power so to improve the existing tribunal as to make it greatly superior for the purpose of disposing of Election Petitions to any tribunal out of the House that could be named. He could not conceive what special merit would attach to a second or third class Court of Justice composed of barristers something between County Court Judges and Bankruptcy Commissioners, which would entitle them to place so much confidence in it as to intrust it with power to decide difficult questions affecting the constitution of the House. No doubt, the Government had been extremely anxious to meet the supposed wish of the House that their jurisdiction in Election Petitions should be transferred to another tribunal, but he believed that that wish had no existence except in the minds of a very few hon. Gentlemen. He trusted that the discussion that had taken place on this subject would induce hon. Gentlemen not to assent to any proposition for taking away their jurisdiction in these matters, since it was evident that but small changes were required to make Election Com- 717 mittees all that could be desired. He did not believe that there was such a great want of confidence in Election Committees as was alleged to exist. He had sat upon those Committees himself, and he had not discovered any grounds calling for a want of confidence in those tribunals. He believed that instances might be quoted to show that there were no grounds for the aspersions which had sometimes been passed upon Election Committees, except in the impure minds of election agents; and these aspersions, moreover, were not founded upon the facts of the case. Those persons drew inferences from their own bad practices, and thus unjustly made imputations on the conduct of the House. He was satisfied that if hon. Members would only be true to themselves, and while retaining their proper jurisdiction in election matters, would effect certain minor alterations in the constitution of the Election Committees, those tribunals would decide most justly, and would well support the honour and dignity of the House.
§ MR. BOUVERIE
said, he thought that the Government, in submitting this proposal to the House, had taken the only course which was open to them under the circumstances in which they were placed. They had acted on the present occasion on the same assumption on which they had acted last year—namely, that the House was willing and anxious to part with its jurisdiction. This was, however, the first occasion for many years upon which that subject had been fully brought before the House, and he thought that the discussion that had taken place would show that any proposal to transfer their jurisdiction would be beset with great difficulties. The Committee which sat last year upon this subject, appeared to have gone rather rashly to work. After more or less discussion they appeared to have resolved that this proposition for transferring the jurisdiction of the House upon election matters should be adopted, on the condition, however, that it should be transferred to the Judges. A more prudent course for them to have adopted would have been, before they embodied that condition in their resolution and submitted it to the House, to have ascertained, through the medium of eminent persons on the judicial Bench, what were the opinions of the Judges upon the subject, since it was impossible to suppose that the Committee could anticipate all the objections which those learned persons might have to the 718 proposal to transfer this jurisdiction to them. The Committee, however, did not adopt that course, but embodied this condition in a Resolution which was unanimously or almost unanimously agreed to. Under these circumstances the matter had come before Her Majesty's Government for their consideration. They had been told by the Chancellor of the Exchequer that the learned Judges objected to this transfer of jurisdiction, and doubtless their objections were based, upon very sound reasons, such, for instance, as that which had been given by the hon. and learned Member for Richmond (Sir Roundell Palmer), who had informed the House that, looking at the amount of business the Judges had now to perform, it would be utterly impossible for them to discharge the additional duties which such a transfer of jurisdiction would impose upon them. The Government were thus placed in a difficult position, the Committee having agreed to a proposition last year to which the Judges now offered forcible objections. Acting on the assumption that the House was desirous that its jurisdiction should be transferred, the Government had no alternative under the circumstances he had referred to, except to propose the constitution of some other tribunal to which the jurisdiction might be transferred. The question before the House was a very grave one, and he was glad that this conversation had taken place upon it, because it would show persons both in and out of the House that much was to be said against the proposal for transferring their jurisdiction to any other tribunal. It might be that the machinery of Election Committees required improvement; but he did not think it was as bad as had been represented. With a competent Chairman and an efficient bar he thought, on the whole, that justice was fairly administered. It was not in complicated inquiries in which questions of law and fact were mixed up together, that these Committees were called upon to decide. The questions were generally easy and simple, and, apart from political prejudices, could be easily decided by the Members themselves. When certain improvements had been introduced into the constitution of these tribunals, he thought there would be no need to talk of transferring the jurisdiction. He was glad to hear the right hon. Member for Oxfordshire (Mr. Henley), whose authority on such a subject must necessarily be great, express so strong an 719 opinion against the transference of the jurisdiction. He had himself come down to the House with a decided opinion on the subject, and that opinion had been strengthened by what had passed in the course of the debate, which showed that there was a strong preponderance of feeling against transferring their jurisdiction to any other tribunal.
§ SIR MICHAEL HICKS-BEACH
said, in the case of the Totnes Committee—a Committee presided over by one of the most competent Chairmen of the House—namely, the right hon. Member for Kilmarnock himself, a unanimous resolution was passed unseating Mr. Pender for personal bribery, the other Member for the borough being allowed to retain his seat because no case had been proved against him. The only evidence upon which the Committee were able to unseat Mr. Pender was the case of a man named Harris, to whom it was alleged Mr. Pender had personally offered a situation. Strange to say, however, it afterwards turned out that the Commissioners sent down to Totnes decided that almost the only case of bribery which was probably without foundation was the very case for which Mr. Pender was unseated. That surely proved that an Election Committeee which had the advantage of a most competent Chairman was not so efficient as was often represented. For his own part he thought that this fact alone proved that some alteration like that proposed by the Government was absolutely necessary.
§ MR. BERKELEY
said, he objected to the jurisdiction of the House being taken away from it. Such a procedure would seriously be a leap in the dark. If the House of Commons were competent to make laws governing life and property, it was surely equal to the task of determining which of its Members had been improperly elected. At a future stage of this Bill he should have a few words to say as to the means that should be adopted to afford efficient protection to the voter, a subject to which he hoped the right hon. Gentleman the Chancellor of the Exchequer would direct his attention.
I quite concur with my right hon. Friend the Member for Kilmarnock, that no censure is to be cast on the Government for the course they have thought fit to adopt on this occasion. We must all feel that they were placed in circumstances of very great difficulty. They were bound, in con- 720 formity with their own convictions, to bring to an issue what I take to be the principle of this Bill—namely, the transfer of jurisdiction from the House of Commons, and, having themselves a strong opinion in favour of a certain course which has been objected to by the learned Judges, they have proposed another method of effecting the transfer which the right hon. Gentleman opposite candidly confesses to be an inferior one to that originally proposed. For my own part, I think that it is much more easy to find fault with the proposal which has been made by the Government than to suggest any other course which they could have taken. I rise only for the purpose of pointing out two or three propositions on which there has been a general concurrence of opinion, even amid the many conflicting views which have been held by hon. Members whose arguments on either side are entitled to great weight. I do not presume at once to give a final opinion upon the question as to the expediency of transferring the jurisdiction of this House upon election matters to another tribunal, but I entirely concur with Her Majesty's Government in thinking that if that transfer be desirable, and if we can provide an improved and practical mode, by means other than those afforded by this House, of dealing with the two important subjects of petitions in contested elections and the punishment of bribery, there are no constitutional objections to such a course being adopted. I am convinced that the course for this House to pursue in order to strengthen itself with the country is to cast aside those conditions—what may be called the ceremonial conditions—which weaker assemblies might be compelled to regard, and look simply to the question how can we best and most effectually maintain purity in the conduct of Parliamentary elections and proceedings connected with them. When we come to the question of a transfer of jurisdiction, I own it appears to me the Chancellor of the Exchequer is perfectly correct in saying, with perhaps some qualification, that under the present Acts of Parliament we have put the exercise of the jurisdiction of this House into as good a form as it is capable of assuming; and, if the transfer is to be made, it certainly will not be made because the Committees of this House had incurred disgrace by the mode in which they administered their functions since the reform introduced by Sir Robert Peel. Owing in some de- 721 gree, perhaps, to increased publicity, but still more to the dictates of honour and the force of conscience, all feelings of political bias have been neutralized. And here, I venture to say, with respect to what fell from the noble Lord the Member for Stamford, when, he speaks of the great difficulty and danger attending our committing these functions to gentlemen who have been petitioners, he must remember that they are now discharged by gentlemen who not only have been, but may be, petitioners. There are two considerations which recommend the transfer to me, and they are entirely of a practical character. I mention them for what they are worth, without giving any final opinion on the subject. The first consideration is that the Committees of this House have been found adequate only to deal with questions as between the parties contending for the seat, and not adequate to that other and still more important function of ascertaining the manner in which electoral privileges have been used at elections—whether purely or impurely. Now that is an essential fact, inherent in the exercise of power by Committees of this House. It appears to me another essential and inherent matter of great importance is this—that as long as Election Petitions are to be tried by Committees of this House, their trial must be attended with the sacrifice of the enormous advantages which attaches to local inquiry. By local inquiry there would be obtained advantages the value of which it certainly appears to me to be almost impossible to overrate. By such inquiry a more expeditious result would be obtained; and this is of the greatest importance—for what happens now? It frequently turns out that an Election Petition is not decided until perhaps four or five months of the Parliamentary Session have passed; and, during those four or five months it frequently happens that most important votes have been given—votes, perhaps, deciding the fate of great measures, or the fate of administrations—by Gentlemen who are not the true representatives of the electors of the kingdom. Well, if you can contrive a system more expeditious, it is of the greatest advantage, and if you can contrive a system more economical it is of the greatest advantage. The advantages resulting from local inquiry would be enormous. There are two vital and essential difficulties that seem to me inherent in the present principle, but I will come to no fixed conclusion on this 722 Bill, which involves the transfer of the jurisdiction. With regard to the difficulty raised by the superior Judges, I do not venture to pronounce categorically; but this I venture to point out, that having now heard the opinions of some twenty Gentlemen in the course of this debate, including among them a very large number not only of persons of the greatest weight and experience in this House, but of those who have specially given their minds to the consideration of this very question, I do not think we have heard as much as one—I would almost include the Chancellor of the Exchequer—who, agreeing to the transfer of the jurisdiction, has been disposed to transfer it to any person whatever except the superior Judges. I own the discussion, as far as it leads to a positive conclusion, leads me rather to conclude that we should transfer this power to the first authority in the land than that we should retain it. It appears to me all the difficulty of principle and practice would be raised to a maximum by the endeavour to create a tribunal which will be judicial in its character, and which will not have the immense advantages of reputation which attach to the Courts of Law in Westminster Hall, and be placed in a position that would certainly have no parallel in the history of Courts of Justice in this country. It seems to me we have very nearly by this discussion elicited the mind of the House upon this point. I say that, without in the slightest degree censuring or criticizing what Her Majesty's Government have done, I think, with the opinion I entertain as to the transfer of jurisdiction, they are perfectly right in making the proposal for that transfer. I, for one, will be prepared to give the principle of the Bill a fair and candid consideration, whatever decision is come to.
The right hon. Gentleman the Member for Oxfordshire made an observation which appears to me of more value than any made during the course of this discussion. This matter of transferring the jurisdiction in cases of contested elections from the House of Commons to some other tribunal has been much talked of in past years. I think the highest authorities in the House have come, very naturally, to the conclusion that the case must be desperate. Indeed, when a popular house of representatives would turn out its power with regard to the determination of the right of men to take their seats in that House to any other tribunal, 723 the case must be desperate. Now, I maintain there is no desperate case. I am disposed to agree with the right hon. Gentleman, and accept the warning he has given in this matter. Now, what is it a Committee appeared to do last Session, and what is it the House is asked to do now? It is dealing with a certain offence which is frequently committed; and as there is a sort of hopelessness that the offence can be got rid of, some short cut is to be got for the purification of the House; but there seems to be no intention on the part of the House to see whether we can prevent the offence, rather than take some extraordinary method of punishing it. Now, I should be very glad if we had before us information from other legislative assemblies in the world respecting this matter. We know something—a great many of us a good deal—of the legislative assembly in the United States. We know a good deal of what is done in the Parliament of the Colony of Australia. We know something also of the Parliaments in France, Italy, Prussia, and the smaller European kingdoms; and we have this lamentable fact to acknowledge, that this House in which we are now assembled is the only legislative assembly in which there is this great and intolerable grievance—that after a General Election the proceedings of the House are—I will not say interrupted—but in some degree disturbed by the number of petitions coming before the House complaining of undue electoral returns. There is no such thing in the other legislative assemblies of the world, and if any Member can give a contradiction to that, let him get up and state it. I might appeal to the right hon. Gentleman the Member for Calne (Mr. Lowe), who sits near me, and who knows the Parliament of Australia, or to the hon. Member for Pontefract (Mr. Childers). I received a letter only this morning from a gentleman who was in Australia for two years, and he refers to the very fact I have mentioned. The fact is, if you have small constituencies in any country in the world, and have open voting, the malady of corruption will prevail. There is no other remedy for the matter but to have large constituencies and secret voting. Hon. Gentlemen opposite do not like that remedy. They never do like any remedy—at least I proposed a great many remedies for a long time which they did not like. But that is a remedy. Now, the right hon. Gentleman the Member for Calne, 724 looking at what took place last Session, and which he naturally did so much to bring about, has anticipated that after another General Election we shall have many more petitions than we have had previously. Well, I hope very much he may be disappointed; I believe also he will be disappointed. I think when you have larger constituencies you will be much more free from those eternal petitions. You have had no petitions—at least within my recollection—from Glasgow, Manchester, or Birmingham—indeed, scarcely from any of the larger constituencies in the kingdom. In the larger constituencies, where bribery is useless and impossible, you have no difficulty of this kind—no petitions. Now, I would prefer—if I might presume to offer advice to the House—that we should not take this transfer of jurisdiction, but look forward to what will happen within the next five or ten years—that a great number of the small constituencies will be abolished, because I find hon. Gentlemen on the opposite side are accessible to reason on that question—and they are as anxious as we are to abolish the small constituencies, so that a real population may be represented. I think the experience of Parliament is that those large constituencies, as a mere matter of machinery, will bring a large majority of the House and the country before long to accept the principle of the ballot. ["No!"] With that view, then, looking forward, not to an increase of the evil, as the right hon. Gentleman expects, but rather to a diminution of it; and looking forward to the House coming by-and-by—as it gradually and slowly comes to many sensible conclusions—I believe it will do away with, the small constituencies where the temptation to bribery is so great, and for the sake of the purity and tranquillity of elections will grant the shelter and security of the ballot; therefore I am unwilling to make the transfer which some hon. Gentlemen have recommended, and which the right hon. Member for South Lancashire appears to give some colour to. I think it is a very unpleasant, extraordinary, and, I would say, desperate remedy. I think the case is not desperate. I would rather look forward for a few years, hoping that remedy will not be required, and without the House of Commons abdicating its functions, that, finally, it will no longer be ashamed of the number of petitions presented after General Elections. One or two petitions I can readily 725 understand coming from accidental circumstances in particular boroughs; but a shoal of forty, seventy, or eighty petitions is an absolute disgrace to the English Parliament. I am not without hope that public opinion and measures of Parliament may provide some remedy for the disgrace without our being compelled to humble ourselves before the world, and say, "We have been obliged to transfer from ourselves the power which constitutionally belongs to us, and to give it to another tribunal, which, indeed, we make by Act of Parliament, but which, when we have made it, will be, with regard to its decisions, absolutely independent of us."
§ MR. LOCKE
said, he would not have risen had it not been for what had been said with reference to the petition against the return of Mr. Pender. The circumstance which had been pointed out might have occurred even if the inquiry had taken place before the Judges, for it frequently happened that where a new trial was granted entirely different evidence was adduced to that brought forward at the first, and an entirely different result arrived at. The nature of the evidence taken before a Commission was altogether different from that brought before an Election Committee; and Election Commissions had been established, as was well known, for the purpose of making an inquiry which no Court of Justice could by any possibility make, inasmuch as the witnesses gave their evidence under an indemnity, and were therefore quite willing to make statements which they would refuse to make in an ordinary investigation on account of their rendering themselves liable to penal consequences. He entirely coincided with the hon. Member for Birmingham that that House must be in a very desperate position indeed if it were obliged to transfer to another tribunal powers which it had possessed from time immemorial. In the very large constituency which he represented no bribery had ever taken place within his knowledge, and, indeed, in large constituencies it was no use bribing; whereas in very small constituencies the vote did sometimes become a valuable marketable commodity, and was so treated. He thought the greatest safeguard would be the enlargement of constituencies and the introduction of vote by ballot, which would be an effectual check to bribery, as men did not choose to throw their money away upon an article which they might not obtain after all. He hoped that the 726 House would fully consider this matter, and would maintain, as far as possible, those rights and privileges which they at present possessed.
§ MR. BONHAM-CARTER
, said, they were all too ready to find fault with themselves, and he thought there had pervaded the debate rather an undue disparagement of the existing tribunal. He agreed with the Chairman of Committees that the great difficulty of the present tribunal was the mode in which the evidence was presented to it. It was possible that by some local inquiries they might be able to supplement to great advantage the present system; but they ought to hesitate before coming to the conclusion that Election Committees, as now constituted, were useless and unfair. The fetters which the Act of Parliament imposed upon them prevented Committees conveying to the public that appearance of fairness which they might have if their discretion were less controlled. He had sat for many years upon the General Committee of Elections, and even in times of great political excitement he had never heard any charge of unfairness made against the selected members, or the Chairmen of Election Committees.
§ MR. GOLDNEY
said, he was of opinion that a great many of the defects which had been pointed out arose from the very limited powers Committees had of dealing with the various subjects before them, all they could inquire into and decide upon being whether the seat belonged to the petitioner or the sitting Member; whether the election was void; and whether a new writ should issue. Before they threw away the existing jurisdiction they should consider whether, if the extensive powers proposed to be given by this Bill to the existing Judges, or to the new Court were given to Election Committees, it would not be possible to deal with these questions in as satisfactory a manner as they could be if the House parted with its jurisdiction.
§ MR. DARBY GRIFFITH
said, he considered that the Chancellor of the Exchequer was entitled to considerable credit for having brought forward this subject on the first day of the Session, and for the candid manner in which he had related to the House all the circumstances connected with his recommendations. He hoped the right hon. Gentleman would be induced to go a little further, and satisfy the natural curiosity of the House as to the 727 exact nature of the communication which had passed between the Judges and Her Majesty's Government; whether this was merely in the nature of advice given, whether it was a round-robin signed by all or only a portion of the Judges, or whether it amounted to a strike on the part of the Bench. Under the existing system impartiality was out of the question; for, in the first place, as we have been told, two Members from each side of the House were nominated upon Election Committees distinctly as equally representing the two political parties, and the Chairman, who was professedly appointed from a different source to that of the other four Members, nevertheless, himself, as a Member, naturally participated in the feelings and passions of the House. In fact, the precautions which are habitually taken by the House to insure impartiality in dealing with a Bill concerning the affairs of a joint-stock company were directly reversed. The hon. Member also expressed a hope that the Chancellor of the Exchequer would explain why from the present proposals of the Government that provision had been omitted upon which so much stress was formerly laid—namely, the proposal to give to the candidate whose conduct was proved to have been pure the seat forfeited by the candidate convicted of bribery. He had troubled the right hon. Gentleman with a letter on this point, and the secretary of the right hon. Gentleman had done him the favour to call upon him. But his explanation—lucus à non lucendo—did not render the case very clear. At least, it seemed to him that the Chancellor of the Exchequer had yielded very easily to whatever objections had been made from some subordinate quarter. As matters at present stood the greatest impediments were thrown in the way of petitioners, for the candidate who performed the public duty of petitioning incurred not only the expense, but the unpopularity of the proceeding, and, unless seated by the ordeal of a scrutiny, he never ventured to down again to the constituency. He was put in this position—after bringing his action he was not allowed to win his cause.
Motion agreed to.
Bill for amending the Laws relating to Election Petitions, and providing more effectually for the prevention of Corrupt Practices at Parliamentary Elections, ordered to be brought in by Mr. CHAN-
CELLOR of the EXCHEQUER, Mr. Secretary GATHORNE HARDY, and Sir STAFFORD NORTHCOTE.
§ Bill presented, and read the first time. [Bill 27.]
§ House adjourned at half after Seven o'clock.