§ Bill considered in Committee.
§ (In the Committee.)
§ Clause 5 (To whom and by whom Election Petition may be presented).
§ Question again proposed, "That the Clause stand part of the Bill."
§ MR. BOUVERIE
said, he strongly objected to the new procedure with regard to Election Petitions sketched out in this Bill. The remedy proposed with respect to corrupt practices was simply as to the mode of proceeding. It entirely destroyed the existing system, which retained the jurisdiction in Committees of the House, subject to the general supervision of the House itself, and gave it to a Judge of the Court of Common Pleas. The remedy 723 proposed was utterly incomplete. The Bill did not deal cither with Scotch or Irish Election Petitions. With regard to about three-fourths of the Election Petitions—those relating to England—tho new procedure would be established, but all Irish and Scotch Election Petitions would continue to be tried by the same machinery which had been employed during the last 100 years. As regarded Ireland and Scotland, therefore, the grievance now complained of would remain unredressed. He had heard no answer to that objection. It went to the very root of the Bill. Surely if the Bill wore good at all it would be good for the whole of the United Kingdom. If the present procedure was radically bad—if the Committees were incompetent, and justice was not fairly administered, how could they maintain such a tribunal for the trial of Election Petitions from Scotland and Ireland? It was, indeed, said, to the credit of Scotland, that very few Election Petitions had come from that part of the country; but this did not hold true with regard to Ireland. So far as he recollected there had never been a General Election without several important Election Petitions from Ireland, and to avoid dealing with the Irish part of the case was really to shirk the whole question. The proposal in the Bill was to transfer the jurisdiction to a single irresponsible Judge unassisted by a jury and without appeal; but how would that work in Ireland? Would anybody propose that a single Irish Judge, an Orangeman, should decide as to the seat of a Homan Catholic Member, or that a Roman Catholic Judge should decide as to the seat of an Orange Member? What were the objections to the present tribunal? It was not alleged by anybody well acquainted with the facts that it was partial; during the last twenty years he had been Chairman of a very great number of such Committees, and he had a strong opinion that they did their best to try the question submitted to them with the greatest impartiality. Indeed, he believed their decision was very often against the party feeling of the majority. Since the numbers of the Committee had been reduced to five, speaking on the whole, there was no party colour in their decisions. Then what was the objection? It was not that they were partial or corrupt, but that they were more or less incompetent. They were often presided over by Gentlemen who had no legal training—who were not skilled in the law of evi- 724 dence, or capable of dealing with questions of complicated law and fact. Within moderate limits that was more or less true. No doubt there was a very powerful and vigorous Bar practising before Committees, and unless a Committee was presided over by one competent to deal with the case, the Bar, unfortunately, might prove too strong for it. But what was the remedy? Not to destroy the jurisdiction altogether—not to take it out of the House—not to abandon one of the privileges to which in old times their fathers attached the greatest value, and which hereafter might be of the utmost importance if it were maintained—but to try and improve the tribunal, and this was the object of the Amendment of which he had given Notice. The suggestion he had to make to the Committee was not one of his own devising. At his request a plan had been drawn up by an eminent Member of the Northern Circuit, Mr. Pickering, who had had large experience before Election Committees. Mr. Pickering said, "Don't take away the jurisdiction from the House, for the public has confidence in the honesty of the decisions of the Committees; but they distrust the skill and ability of those Committees to deal with the legal questions that come before them. Therefore make your remedy co-extensive with your want, by placing a skilled president at the head of a Committee of Members of the House, to be chosen by the Committee of Selection. Leave the decision of questions of fact still with the Committee. Let it consist of five Members without a Chairman, instead of four with a Chairman as at present. In order to abbreviate the duration of the proceedings, let the formal Notices necessary to enable them to get under way be shortened. When the Committee is appointed, call on one of the Judges from the Superior Courts to preside over it precisely as he would do at a trial at Nisi Prius, directing the Committee as to the law, and stating to them the issues they have to try, but leaving them to determine the question of fact precisely as if they were a jury. The decision of a tribunal so constituted would be received with respect." That was the scheme which he (Mr. Bouverie) ventured to set up in opposition to the proposal of the Government, which had been so many times altered since it was first laid before the House. He objected most strongly to the Government scheme, in the first place, be- 725 cause it proposed to leave the determination of these questions in the hands of a single irresponsible Judge. The questions which arose upon Election Petitions were not such as, under any circumstances, ought to be submitted to the decision of one mind, however skilled or however impartial. If the questions of fact could be submitted to a jury he should not so much object to the Government plan; and he did not see whence a better jury could be selected than from among their own body. A tribunal like that he had suggested would prove far more deadly to the Member petitioned against than that proposed by the Government, because Members of that House, when sitting on Election Committees, were in the habit of accepting, as proof of agency, connections between the principal and the agent which were too slight to be regarded as evidence by a strictly legal tribunal. The effect of passing this measure might be to make the practice less stringent than it was at present. It would be a grave matter to leave decisions in these cases to one man; for even if he were an angel of light his impartiality would be sure to be called into question. But we knew that Judges were not impeccable beings living in an etherial atmosphere, and never subject to motives, feelings, and partialities. The history of that country ought to satisfy hon. Members how dangerous it was to trust their privileges to the decision of one Judge. They should recollect that once having parted with their authority, however much they might impugn, the decisions of the Judge, they would have no power to remove him. A Committee, on the other hand, after deciding one particular case, was re-absorbed into the body of the House; and if its decision had been influenced by bias, possibly the next Committee might have a bias the other way, and so set matters straight. He once knew a distinguished member of the Western Circuit who, on retiring from the scene of his professional labours, said—I have lost a great many cases I ought to have won, and won a great many I ought to have lost; and therefore, upon the whole, I think that justice has been fairly administered.Such a balance might, however, well be struck with reference to the political results of the decisions of Election Committees; whereas, if a Judge appointed to determine these cases were to permit his political feelings to influence his judgment it might be twenty or twenty-five years 726 before he could be succeeded by a more impartial person. Every person necessarily hold the English Judges of the present day in the highest respect; but what did those eminent persons themselves say with reference to the Government proposal. They all said, "Don't give us this jurisdiction—it would lead to our impartiality being impugned; we dread being intrusted with power like this, which we tell you we are not fitted to hold; and if you do intrust us with it, the character of the Bench for impartiality will be injured." But had there not been times when the impartiality of the Bench had been suspected, at all events in Scotland? He held in his hand an extract from the late Lord Cockburn's Memorials, which referred to the trials for sedition which occurred seventy or eighty years ago. That extract was as follows:—I fear that no impartial censor can avoid detecting, throughout the whole course of the trials, not mere casual indications of bias, but absolute straining for convictions. … If ever there was an occasion when a Judge might have shone simply by being just, this was one. But the Bench was the place upon which political passions, not aggravated by the prosecution, and distressing to many of the jurymen, settled and operated. … If, instead of a supreme Court of Justice sitting for the trial of guilt or of innocence, it had been an ancient Commission appointed by the Crown to procure convictions, little of its judicial manner would have required to be changed.That was the opinion of a man of mature judgment upon the Bench. The Judge who presided over the Bench of Scotland at that time said on one occasion, "Let them find me the prisoners, and I will find them the law." They must not judge of the effect of the proposed change by what was likely to occur in ordinary times. The measure should be tested by the more trying occasions which had often occurred in Parliamentary history, and would assuredly occur again; he therefore asked the Committee to consider whether, under trying circumstances, it could rely on the unrestrained action of a single Judge inquiring into the question as to whether a given Member was entitled to his scat, for the Bill proposed to do nothing less than give power to a single man to expel a Member of the House, however distinguished he might be, and to incapacitate such a Gentleman from again, sitting in that House for a period of twenty-one years. What would have been Mr. Fox's fate in 1794 if his return had been subject to the decision of Lord Braxfield, the Scotch Judge? Did they 727 think he would have had the slightest chance of obtaining justice from the hands of that Judge, however good his title to the scat? He would have been excluded from the House. Another objection to the proposed change of jurisdiction was that it did not afford any increased means of protection against corruption. Royal Commissioners had power to extract truth from unwilling witnesses, and in that way to try the borough, but the Judges under the Bill would simply try a case as between plaintiff and defendant, and as soon as the Petitioner found enough had come out as against his opponent he would cease to produce evidence for fear of blackening the borough which he hoped to represent. This was what happened before the Committee now, and this was what would happen before the single Judge who would sit simply as a Judge at Nisi Prius. Was it, then, worth while giving up the jurisdiction only to change the Committee for a Judge? At present it was acknowledged that the worst cases of corruption never came before the House, and this desire for concealment would increase in the future, now that Totnes and its companion boroughs had been dealt with so severely. It was questionable, by the way, whether the House would have learnt as much of the corruption of Totnes as it had but for one peculiar circumstance. It happened that the competing candidate, instead of having the seat in view, was determined to ruin the borough; he accordingly produced witnesses who, under ordinary circumstances, would have been kept out of the way, and thus the Commission was informed in the freest manner of past corruption and the political condition of the borough. But the great cheval de bataille of those who supported the Bill had been the local inquiry. "Let us go to the spot and have a local inquiry" was in every one's mouth. But "local inquiry" was a phrase often used without consideration. If the Judge were empowered to act as an inquisitor, and able to hunt up every case smelling of corruption, a local inquiry would be worth something; but he had already shown that the Judge had no more power than a Committee, and would, therefore, be able to conduct as searching an inquiry in London as on the spot. Then, again, in many cases a local inquiry was not needed, and in many others it would be idle to attempt it. Of what use would local inquiry be when purely technical or legal points were to be dis- 728 cussed; and how could a county or a borough such as Shoreham be subjected to a searching local inquiry unless the Court perambulated and took evidence at each polling-place? It would be as expensive to bring witnesses to the country town as to London. A suggestion of the hon. Member for Westminster (Mr. Stuart Mill) deserved attention. Designing, he presumed, to secure inquiry as to the purity of a borough, the hon. Member proposed that every Election should be followed by a regular scrutiny of the poll-books by the Revising Barrister, and that the said Barrister should make a Return to that House. But was that a practical suggestion? Could such a scrutiny be carried out consistently with the speedy return of Members to the House? The hon. Member doubtless remembered the famous Westminster scrutiny in 1783 after Mr. Fox had been returned at the head of the poll. After two years' labour the scrutiny was declared incomplete, and it was said it would take another two years to finish it. Considering how many constituencies we have larger than Westminster then was, it would be at once apparent that if a scrutiny were to follow a General Election no one would know for years who was to sit in the House and who not. In conclusion, he looked with great dread on this proposal to sacrifice part of the ancient and valued privileges of the House; and this reluctance to part with a time-honoured jurisdiction was increased when he remembered that the present Parliament was about to come to an end. He deprecated the diminution of an inheritance which the House had received ungrudgingly from its predecessors, as if, forsooth, the Parliament of the future were to be deemed unworthy of privileges which this Parliament in its wisdom had used on the whole successfully. On these grounds he would vote against the clause with a view, if possible, to move the insertion of clauses embodying his scheme.
§ SIR ROBERT COLLIER
said, he could not help thinking the greater part of his right hon. Friend's speech would have come more appropriately on the Motion for the second reading. The main objections to the proposal of his right hon. Friend were—first, that he made no provision whatever for a local inquiry, and, next, that he made no provision for an inquiry when the House was not sitting. Now, those two provisions appeared to him to be the main points of the Bill, 729 and a measure which omitted them would hardly be worth passing. The House generally, he believed, was in favour of a local inquiry, and those who differed on many other points were agreed upon that one. A local inquiry was the most potent instrument for eliciting the truth, and, with such an inquiry, if a witness made a false statement he might be immediately contradicted, because another witness might be called on the spot. Many men who did not mind forswearing themselves before a Committee of that House would shrink from doing so before their fellow-townsmen. Moreover, a local inquiry would be attended with a diminished expense, because it would obviate the necessity of bringing witnesses to London, where they had a sort of Saturnalia. The expense of taking counsel to the spot would be very moderate. The fees of counsel formed but a small item of the cost. Anyone who looked through an attorney's bill would find the fact to be as he stated it. It had been said that it would be beneath the dignity of the House to part with that jurisdiction; but if they were to stand on the question of dignity he thought they would make about as great a sacrifice in consenting to be deposed from the position of Judges to that of juries as in being ousted of that jurisdiction altogether. Again, it was very doubtful whether the plan of his right hon. Friend would work; and, even if it would, it would not be worth while making so great a change unless they were to have a local inquiry, and also an inquiry when the House was not sitting. If, however, there was to be an inquiry on the spot, he held that that inquiry ought to be final, otherwise they would have two inquiries instead of one, with, of course, a double expense. If the inquiry was not to be final, to whom was the appeal to lie? If to a Committee of that House, the Committee would have the power of reversing, upon written evidence, a decision founded upon oral evidence—a result which would be most unsatisfactory. But if the local inquiry was to be final, it could not be intrusted to any tribunal but the highest. It ought not to be intrusted to barristers of ten years' standing, nor to County Court Judges, nor to Commissioners. It was said the Judges, in determining those questions, would not have the confidence of the country. But if the Judges would not have the confidence of the country, he should like to 730 know what tribunal would? The question resolved itself into this—either the House must retain its jurisdiction, in which case he could see material improvement of which it was capable, or the House must part with that jurisdiction; and he thought it should part with it only to the highest tribunal. It was asked, was a Judge to be the judge of a matter of fact? They all knew that Chancery Judges were judges of matters of fact. The Common Law Judges also had the power of deciding matters of fact, which they exercised occasionally, and exercised it, as far as his own observation went, very satisfactorily. In the Probate Court and County Courts Judges decided matters of fact daily. He believed that the inquiries to be instituted under that Bill would be the most searching ever yet instituted, and would prove a better instrument for checking corruption at elections than any which now existed. And why did he say so? Because they had been told by the hon. Member for Armagh (Mr. Vance) that no corrupt place could stand such an investigation. A place that could not stand it ought not to return Members. If, therefore, they refused to adopt such a measure the public might well question the sincerity of their desire to suppress electoral corruption. He wished that the inquiry should be made as stringent as possible, so that those boroughs which could not stand the test might be known. As to the objection that the Bill did not apply to Scotland and Ireland, let it be extended, if it was a good measure, to both those countries as well as to England. It appeared to him that this was an important clause in a valuable Bill. Its rejection would be fatal to the measure, and he therefore hoped the Committee would adhere to it.
said, he objected to the Bill as introduced by the Government, because it was an abdication of the jurisdiction which the House had exercised so long and so efficiently, and also because it was proposed to intrust that jurisdiction to a tribunal which, he believed, would be very inefficient. The right hon. Member for Calne (Mr. Lowe) argued that the House had abdicated its jurisdiction 100 years ago; but did the right hon. Gentleman mean to say, because the House had thought fit to intrust that power to a component part of its own body, controlled by the House, elected by the House, and making its Report to the House, that was 731 the same thing as intrusting it to a person over whom the House had no control, and who was, in feet, nothing less than a nominee of the Crown? He presumed the House was to some extent committed to the principle of the Bill, and therefore he would record his vote for the Amendment of the right hon. Member for Kilmarnock (Mr. Bouverie). It might be said that there was a great objection to the present system, because the Chairmen of the Committees were not trained lawyers. He was prepared to admit that there was ground for that objection—that the law was laid down in one Committee-room differently from what it was laid down in other Committee-rooms, and that evidence which would be accepted by one Committee would be rejected by another; but these objections would, he believed, be removed by the Amendment now under consideration, because that Amendment, as he understood, proposed that questions of law should be decided by the assessors, matters of fact being left to a Jury of that House. He denied that all Judges entertained a willingness to be made judges of fact. He had the authority of an Equity Judge, recently a Member of that House, for saying that nothing more perplexed him than to have to decide questions of fact. It had been urged that by doing away with the proposed system of local inquiry the best portion of this Bill would be lost; but, for his part, he failed to perceive the advantages which were to be derived from local inquiries, which were generally, as they could see from what occurred at arbitrations, prolonged and expensive in their character. In favour of that proposal, however, it had been urged that the witnesses examined would be certain to tell the truth in the presence of their fellow-townsmen, and that they would be deterred by the gestures and murmurs of the bystanders—and he could scarcely refrain from smiling when he heard the Solicitor General employ that phrase—from stating that which was untrue. But at present in the County Courts, Bankruptcy Courts, and examinations before magistrates, we had these local inquiries, and it was not found in practice that the gestures and murmurs of the bystanders deterred the witnesses from committing perjury. He doubted, too, whether the advantages which would result from a speedy inquiry were so great as some hon. Members appeared to imagine, because experience had proved that 732 bribery and corruption were more easily traced after the lapse of some time, when political excitement had subsided and opportunity had been afforded for the passions aroused by electioneering contests to cool. For those reasons he should support the Amendment, believing that the alteration it proposed would remove the defects which existed in the present system, preserving in its integrity that portion of the present system which commanded the confidence of the House and the respect of the public.
§ MR. KNATCHBULL-HUGESSEN
said, he would not detain the Committee, but having taken the initiative in the Select Committee in endeavouring to prevent the total transfer of the jurisdiction of the House over these matters, he wished to state the course which he was prepared to take. He had certainly desired that the House should preserve its jurisdiction, and hand over its privileges unimpaired to the Parliament which was about to be elected by the enlarged constituencies; but both the Select Committee and the Committee of the House, having decided that the jurisdiction should be transferred, he was not prepared to imperil and delay the Bill by voting for any one of the numerous Amendments which were intended practically to reverse the decision at which the Committee had arrived. He thought there was something more important to the character of the House than the preservation of its jurisdiction—namely, that it should show the country that it was really in earnest in desiring to repress that bribery and corruption against which the Bill was aimed. In that view he should support the present clause, and should do all in his power to strengthen the hands of Government in passing as stringent a Bill as possible against those corrupt practices which were a scandal to the country.
said, he adhered to the objections which he originally entertained against this measure, objections which had been exceedingly strengthened by what had fallen from the hon. and learned Gentleman the Member for Plymouth (Sir Robert Collier). The hon. and learned Gentleman had argued that there must be one tribunal to decide those questions finally, and that it would never do to have any of the schemes by which the local inquiries were to be instituted subject to revision. The hon. and learned Gentleman had next said, "Why should 733 not a single Judge decide all matters of fact?" and had then gone over pretty-nearly the whole list of our judicial tribunals; but in no one of the cases referred to by the hon. and learned Gentleman were important matters decided without there being a power of appeal. [Sir ROBERT COLLIER explained that he had intended there should be no appeal to the House.] Well, that was a very pretty I question indeed. For the last fifty years the object of the Legislature had been to remove these decisions from that House, and to bring them to be decided by a limited tribunal; because if they once came to the floor of that House, as sure as six and six made twelve they would be affected by political and party feelings. It was, no doubt, very possible to pick holes in any scheme, but the plan suggested by his right hon. Friend opposite (Mr. Bouverie), at least, gave a jury, and Le was in favour of such a plan, because he believed that its advantages would over-ride the advantages to be derived from any system of local inquiry. The fact was that their minds had been run away with; owing to the results which had attended certain local inquiries held by barristers who had gone to the spot with indemnities in their hands. No doubt the expenses of witnesses coming to London were very heavy, but he should like to know what the cost would be of taking down to those places gentlemen learned in the law and Parliamentary agents? He had never had the pleasure of going through even a London inquiry, and therefore he did not feel himself competent to speak on the question of expense; he did, however, know that when high professional men were taken from the spot where they ordinarily pursued their avocations and were carried miles away, for an indefinite time, their charges were not apt to be light. And, more than that, those charges were not taxable. It was possible to confine the expenses of witnesses within reasonable limits, but the other gentlemen to whom he had referred were above all law, though they themselves were agents of the law. He had always expressed a strong opinion, and everything that had happened tended to confirm him in that conviction, that it was against the whole principle of our law to leave questions so important as these to be decided by a single man. He believed there was no precedent for it. He should, therefore, support the 734 proposal of the right hon. Member for Kilmarnock (Mr. Bouverie). This was a difficult subject, and notwithstanding what the hon. Member for Sandwich (Mr. Knatchbull-Hugessen) had said, he considered it was the duty of the Committee to discuss and re-discuss the point until they arrived at a safe and satisfactory conclusion. He must again state that he preferred a jury to a single Judge with, power by his decision to brand a man with infamy.
§ MR. J. STUART MILL
said, he thought it was desirable that the discussion should not be complicated by a reference to all the various plans which had been suggested; and he should therefore address himself to the Amendment of his right hon. Friend the Member for Kilmarnock (Mr. Bouverie) as compared with the provisions of the Bill. His right hon. Friend contended that Committees of the House, as at present constituted, gave their decisions in Election cases with great impartiality, and he was not prepared to deny that such was the fact as far as the decision with respect to the seat and the existence of corrupt practices was concerned. Did a Committee of that House, however, he should like to know, ever find a Member guilty of bribery? ["Yes."] Not once in fifty years. But if it were proved that a candidate had deposited a large sum at his bankers, that he made no inquiry as to how it was expended, and that his recognized agents had laid out portions of it in bribing, would not any tribunal, except one composed of Members of the same class as himself, and who were liable to the same temptations, find him guilty of some kind of corruption? What he desired to see was a tribunal which would consider bribery which was tolerated by a candidate as if it had been committed by him, and that would not be done, he believed, so long as the decision rested with the House itself. The Amendment of his right hon. Friend would be an improvement on the existing state of things, but it failed in the essential condition of providing a local inquiry, and one that could be pursued when Parliament was not sitting. By means of a local inquiry the commission of offences could be much more easily detected than if the investigation were conducted at a distance. If local inquiry was of no advantage, what was the use of the Judges going circuit? The cases were precisely analogous. Although he thought that 735 the plan of the Government possessed a great advantage over that of his right hon. Friend, yet he was far from being disposed to place implicit confidence in the Judges. He could not forget that they had been politicians, and that they were sometimes thought to be politicians still. There was reason to believe that a recent charge in the Court of Queen's Bench would cost the Government several votes on the present Bill, though it would not cost them his. If, however, the Bill were passed as it stood, it would not be in the power of the House—as they had been reminded at an earlier stage of the debate by the right hon. Member for Oxfordshire (Mr. Henley)—after trying the experiment, to discontinue it without the consent of the other branch of the Legislature. Now, he thought it very important that the House should be able to put a stop to the experiment without any consent but its own, and he should therefore suggest that the operation of the Act be limited to two years. Under ordinary circumstances he should say five years, but having regard to the experience which they would at once have of the working of the Act, he thought two years sufficient. In the meantime we should have a most important General Election, and there would, in all probability, be a sufficient number of Election Petitions to give an ample trial of the experiment.
said, he would not repeat the usual formula that he had no wish to prolong the debate; but he rose with a sincere desire to expedite, as much as possible, the proceedings in connection with the Bill. On a former night he had voted against the Motion for transferring the jurisdiction. As between the two pro positions before the Committee, though he was prepared to vote for the Amendment of his right hon. Friend the Member for Kilmarnock (Mr. Bouverie), he had no desire to see a division take place. The question was not what was best in the abstract, but what was best under the circumstances, and the wisest scheme under all the circumstances of the case was, in his opinion, that which stood on the Paper in the name of the hon. Member for the Tower Hamlets (Mr. Ayrton). That plan provided for a local inquiry by means of attorneys of the House of Commons to be appointed by the Speaker, while it proposed but a very small innovation on the existing system. It also had the advantage of being easily revocable. There would be no great inconvenience 736 arising from its adoption or in receding from it afterwards in the event of its not being found to answer the purpose which the House had in view. He hoped, therefore, the Government would be disposed to look upon it with favour. If, however, they too strongly approved their own scheme to allow the adoption of that of the hon. Member for the Tower Hamlets in its stead, then arose the question on what terms and conditions the Government proposal ought to be accepted. In answering that question the plan suggested by his hon. Friend the Member for Westminster Mr. Stuart Mill) was, in his opinion, well worthy of consideration. If the operation f the Bill were limited to two years, time would be given to see how it worked, and, f it did not work satisfactorily, the House of Commons would at the end of that time be enabled to reconsider its position with perfect independence. He trusted, under those circumstances, the Government would look upon the proposal of his hon. Friend as one which would tend very materially to diminish the difficulties of the case and one to which it would be well to assent. As to the apparent inconsistency which had been pointed out by his right hon. Friend the Member for Kilmarnock in legislating as the Bill proposed for England and not for Scotland and Ireland, he would only say that the force of that objection would be greatly mitigated if the Bill were to have only a temporary operation. Besides it was quite plain that, in legislating, for England the House was legislating for that part of the United Kingdom in which the chief dangers and difficulties against which it was intended to guard must be held to lie; for in Scotland, be it said to her honour, bribery and intimidation were comparatively unknown, while in Ireland there was comparatively a narrow field with which to deal. If the Bill were limited in its operation to two years, a serious question would no doubt arise with respect to the appointment of the Judges under its provisions, and to provide for the absorption of those gentlemen on the first vacancies which might occur after a General Election, even within the term of two years, would, of course, be the absolute duty of the Government of the day, for it would be preposterous to appoint Judges with vested interests and entitled to pensions for life only for so short a period. He could not see why they should not be absorbed into the ordinary tribunals, for the judicial appointments under this Bill would be made 737 from the same class of men, and for the same qualities of character, capacity, and learning as the ordinary appointments of Judges. He had, in conclusion, simply to repeat the hope that the Government would consider favourably the proposals which he had mentioned, for it was desirable to get through the Bill with as little delay as possible, and to save it from the risk of miscarriage.
§ MR. DARBY GRIFFITH
said, he hoped that the Government would be inclined favourably to consider the overture made to them by the right hon. Gentleman the Member for South Lancashire (Mr. Gladstone). The real pith of the matter would consist in the limited time now proposed by the hon. Member for Westminster (Mr. Stuart Mill). But rather than not have any improvement, he would consent to adopt the plan of the right hon. Member for Kilmarnock (Mr. Bouverie).
§ SIR COLMAN O'LOGHLEN
said, he wished to know whether it was the intention of the Government to bring in a Bill relating to Election Petitions from Ireland? If not, there would be two separate systems in operation with regard to the trial of Election Petitions; but he would seriously object to the application to Ireland of such a scheme as that under consideration. He was opposed to the principle of transferring the jurisdiction in Election matters from that House to any other tribunal.
§ MR. DISRAELI
said, that the real question before the Committee was the Amendment of the right hon. Member for Kilmarnock (Mr. Bouverie); and, if that were carried, the Government would consider that the Bill had received a very considerable blow, which would be fatal, in his mind, to the whole Government proposition. It appeared to him that the best course to pursue would be to come to a decision on that Amendment. The suggestion of the right hon. Gentleman the Member for South Lancashire (Mr. Gladstone) to limit the period during which the Bill should be in force, was one which deserved the consideration of the House; but it would be far more convenient if that question should be discussed on the Amendment of which the hon. Member for Westminster had given Notice. It would receive from the Government a candid consideration, but he was not prepared, upon the moment, to accept a proposal which really required much consideration. It would be a matter, open to 738 discussion, whether it was advisable to limit the duration of the Bill at all; and, if it were thought proper to do so, it would still be a question, whether the limit should be two years or the end of the next Parliament.
§ SIR ROBERT ANSTRUTHER
said, he preferred the Amendment of the Member for Kilmarnock (Mr. Bouverie) to the clause in the Bill; but if he had an assurance from the Government that they would adopt the suggestion of the hon. Member for Westminster (Mr. Stuart Mill), he would then willingly vote for the clause.
§ MR. WHITBREAD
said, he felt disappointed at the statement of the First Lord of the Treasury; and he thought it incumbent on him distinctly to declare that he should vote against the Amendment of the hon. Member for Kilmarnock (Mr. Bouverie) with the intention of afterwards supporting the suggestion of the hon. Member for Westminster.
§ MR. SERJEANT GASELEE
said, he wished to have a distinct answer to the question whether or not the Bill was to apply to Ireland? The Bill, as altered from the shape in which it was introduced, was an exceedingly bad one, and he should give it his decided opposition.
§ Question put.
§ The Committee divided:—Ayes 204; Noes 127: Majority 77.
§ Clause agreed to.
§ Clause 6 (Regulations as to Presentation of Election Petition).
§ MR. AYRTON
said, he wished to have some explanation. The clause proposed that the Petition must be presented within twenty-one days after the return, unless it specifically alleged payment of the money subsequent to that period; and the Petition might then be presented within twenty-eight days after the date of such payment. The important question, therefore, would arise, whether a Member's seat should be questioned at any time during the continuance of the Parliament to which he was elected. But that was not the only question that would arise. Any number of Petitions might be presented—one after the other had been disposed of. First, there might be the general Petition, to be presented within twenty-one days; and when that was disposed of, another Petition might be presented, making some distinct charge of corruption within twenty-eight days of 739 the time of presenting the Petition; and that might be followed by a third Petition in reference to another corrupt payment, and so on. If a Member was thus liable to have his seat questioned, he would be in rather an unfortunate position as regarded his independence. There was no provision in the Bill which directed that after one Petition was tried no other should be presented. With the view of were distinctly raising the question, he should propose to omit in Section 2, from the word "unless" to the end of the clause.
§ THE CHANCELLOR OF THE EXCHEQUER
said, that the hon. and learned Member had alluded to the provision in this clause, as though it was of a novel character; but, in fact, that proposition was an exact copy, in a statutory form, of the ordinary Sessional Order, passed at the commencement of each Session. It was introduced for the purpose of meeting the case where the sitting Member, in order to avoid being unseated, had deferred the corrupt payment until after the time for presenting an ordinary Petition had expired. It was most desirable that there should be nothing in the Rill to preclude the inquiry which could at present be made under the jurisdiction of the House, where those guilty of corrupt practices had deferred their payments.
§ SIR ROUNDELL PALMER
said, he must beg to point out that, while the usual Sessional Order permitted Petitions to be presented from the date of the General Election to fourteen days after the next meeting of Parliament, the present clause limited the time for presenting them to twenty-one days after the return of the Writ, so that however gross the corruption and bribery might have been, if the means of exposing it were not discovered within twenty-one days of the date of the return, it would be impossible to present a Petition, unless some subsequent corrupt payment was alleged. That confirmed him in the belief that the effect of the Bill would not be to promote the discovery of bribery and corruption, but quite the reverse; that considerable additional discouragement would be thrown in the way of its discovery and exposure. No doubt the chances of compromise would be lessened, but the question was whether such an advantage would be a compensation.
THE SOLICITOR GENERAL
said, that in cases where the right to a seat was involved the clause directed that the Peti- 740 tion must be presented within twenty-one days after the return to the Writ. This was in accordance with the recommendations of the Committee, who thought that the time now allowed—namely, fourteen days, was too short for the presentation of Petitions which simply claimed the seat. Where corrupt payments, however, were alleged, the Petition must be presented within twenty-eight days after the alleged corrupt payment was made. The clause did not deal with another class of Petitions, in which the question of the right to a seat was not involved, but merely the question of the existence of general corruption in a borough. Nothing that was contained in the Bill would affect the right of that House to appoint at any time a Commission to inquire into the existence of such general corruption; but as some doubt had been expressed as to the power of Commissioners appointed in such case, he intended to bring up a clause that evening to confirm the power of the House to appoint Commissioners for that purpose.
§ MR. AYRTON
said, he was at a loss to know what were the views of the Solicitor General with reference to the Bill. If they repealed the 5 & 6 Vict. c. 102, would they not give up the jurisdiction which they had by the law of Parliament, over questions of corruption at elections? If the House preserved its general jurisdiction in such cases, they ought to consider what would be the position of the Judges. He should like to know how much law the Judges on the one hand were to administer under this Bill, and how much jurisdiction the Members of the House were, on the other, to retain under their general laws? No doubt if, as the Solicitor General stated, the House reserved all its own power in the case of corrupt practices, and only gave a limited jurisdiction to the Judges, much of the objection to the Bill would be removed, but unless it was distinctly laid down in what cases the House would use its jurisdiction, the Judges would be placed in some difficulty.
THE SOLICITOR GENERAL
said, that the Select Committee had come to the conclusion that it was advisable to repeal the Act to which the hon. and learned Member for the Tower Hamlets (Mr. Ayrton) had referred, because it had proved in operation to be futile with reference to inquiry into general corrupt practices; and it was therefore inserted in the Schedule. He proposed, in order to meet the objection which 741 he had mentioned, to bring up a clause which he believed would be found to meet all objections—If, upon a Petition to the House of Commons presented within 21 days after the return to the Clerk of the Crown in Chancery of a Member to serve in Parliament for any borough or county, or within 14 days alter the meeting of Parliament, and signed by any two or more electors of such borough or county, and alleging that corrupt practices have extensively prevailed at the then last election for such borough or county, and that there is reason to believe that corrupt practices have there so prevailed, an Address be presented by both Houses of Parliament praying that such allegations may be inquired into the Crown may appoint Commissioners to inquire into the same, and if such Commissioners in such case be appointed they shall inquire in the same manner, and with the same powers, and subject to all the provisions of the statute 15th and 16th of Victoria' cap. 57.
§ MR. WHITBREAD
said, he could confirm the statement of the Solicitor General as to the Act referred to by the hon. Member for the Tower Hamlets being inoperative. The Committee thought it hardly worth while to retain it on the statute book. Whether it were repealed or not was immaterial as regarded the inquiry under this Bill.
§ MR. AYRTON
said, he must still contend for the accuracy of the view which he had expressed. He maintained that if they repealed the Act they would shut the door against all general inquiry into corrupt practices. He thought it should be struck out of the Schedule, otherwise more harm than good would be the result of the Bill.
§ MR. GOLDNEY
said, he would beg to remind the Committee that they were discussing matters which did not properly come under consideration at this time. If they desired to progress in this matter, it would be much better to confine themselves to the question immediately under consideration, which was whether twenty-one days were a sufficient time for the presentation of a Petition after a General Election, and twenty-eight days for a Petition complaining of undue influence and corruption. It was necessary to shorten the time if they expected two Judges to get through the work.
THE ATTORNEY GENERAL
said, he believed that the time allowed was quite sufficient, inasmuch as the existence of bribery was pretty well known at the time at which it was committed. "With reference to what had fallen from the hon. and learned Member for the Tower Hamlets (Mr. 742 Ayrton), it was scarcely advisable to retain a statute which never could work. His hon. and learned Friend the Solicitor General had, however, promised to bring up a clause on the subject, and that clause could be discussed at the proper time. He thought it would be better to postpone further discussion on the point until they came to the Schedules.
§ MR. BOUVERIE
said, he thought a longer time than twenty-one days was necessary; because facts leaked out from the vexation and disputes which usually followed an election, and ample time should be given for them to come to a head. He was of this opinion, although he admitted that in some instances more than twenty-one days was practically given.
THE ATTORNEY GENERAL
said, his experience had led him to believe that neither twenty-one nor twenty-eight days produced knowledge of bribery; whether bribery existed or not was always very well known while the election was in progress. Agents were on the watch, and kept their eyes on the forty thieves to be found in every borough [Mr. BOUVERIE: Not in every borough.], and the agents soon knew whether any of the forty thieves had been bribed. What remained unknown was the time and place when the bribery was committed, and that was only divulged in the committee-room, and very often not there.
§ Amendment negatived.
§ MR. J. STUART MILL
stated that as his three Amendments on this clause had been virtually disposed of, he did not propose to move them.
§ MR. POWELL
said, he thought that Notice of a Petition having been presented, should be required to be given to the constituency. He therefore moved, in line 16, after "prescribed," to insert—And by sending a copy thereof, within the prescribed time, to the Returning Officer of the Borough or County to which the Petition relates, who shall forthwith publish the same.
THE SOLICITOR GENERAL
objected to the Amendment on the ground that it was inexpedient to multiply conditions precedent to a prosecution. The more they multiplied such conditions, the more opportunities they afforded for evading the jurisdiction of the Judges. There could, however, be no objection to a separate clause embodying the suggestion of the hon. and learned Member.
§ MR. M. CHAMBERS
said, he considered that it was essential that the constituency should be informed that a Petition was presented, because otherwise the thing might be kept perfectly quiet and the constituency might know nothing about it.
§ MR. SERJEANT GASELEE
said, he approved of the Amendment, but thought it should be proposed as a new clause.
§ Amendment, by leave, withdrawn.
§ MR. POWELL
said, he thought the amount of security mentioned in the clause might be too small in many cases. He desired to give power to increase the security required of the petitioner above £l,000, and, therefore, he moved in line 27, after the word "of," to insert the words "not less than."
THE SOLICITOR GENERAL
said, he felt there was danger of preventing Petitions if too high a security were required.
§ MR. SERJEANT GASELEE
said, he hoped the Government would insert "£2,000." He spoke feelingly on that subject. He had no idea of men of straw being allowed to harass Members by attacking their seats without the slightest excuse for doing so. That system was practised in order to carry on that great abuse the pairing off of one Petition against another.
§ SIR ROBERT COLLIER
said, that in the case of men of straw it would be all the same whether they were made answerable for £1,000 or £2,000.
§ MR. M. CHAMBERS
said, that if the object of the Bill was to prevent bribery and corruption, they ought not to impose these penalties—for they were nothing else but penalties—upon petitioners who might be poor electors, who had themselves suffered from such corrupt practices. It ought not to go forth to the world that unless such persons could produce £1,000, or could get somebody else to be answerable for that amount—supposing they should fail in establishing bribery—they would be precluded from coming forward to expose or punish if. There 744 ought to be some public officer whose duty it should be to investigate in the first instance whether there had been bribery and corruption in any particular constituency. Provision ought to be made to punish the man who got up a Petition to serve private purposes.
§ Amendment negatived.
§ Clause agreed to.
§ Clause 7 (Recognizance may be objected to).
MR. J. STUART MILL moved, to add at the end of the clause the words—
And the respondent making any such objection shall be required to serve notice of it, precisely describing the ground of it, on the Petitioner, or on all the Petitioners, if more time one, within the said prescribed time, not exceeding five days.
They ought not to discourage, but rather to facilitate the presentation of Petitions, and petitioners ought to have such warning of any objection taken to their sureties as would enable them, if any mistakes had been made, to rectify them.
Amendment proposed, at the end of the Clause, to add the words—
And the respondent making any such objection shall be required to serve notice of it on the Petitioner, or on all the Petitioners if more than one, within the prescribed time not exceeding five, days."—(Mr. Mill.)
THE ATTORNEY GENERAL
said, the present practice in that matter worked very well, and he thought the use of the word "precisely" in the Amendment would not add much to its efficacy, while it might raise numerous questions in regard to every one of the notices served.
§ MR. J. STUART MILL
said, he had no objection to omit from his Amendment the words "precisely describing the ground of it," but he thought that notice of objection ought to be given.
§ After a few remarks from Mr. CANDLISH, Mr. Serjeant GASELEE, and Mr. NEATE,
THE SOLICITOR GENERAL
observed, that all the practice was to be prescribed by rule of Court, and he thought they might trust to the Court to see that proper notice was given.
§ MR. P. WYKEHAM-MARTIN
said, that while hon. Members were anxious to give facilities for presenting Petitions in every possible way, they ought not to forget that there were such things as poor candidates. He would mention the in- 745 stance of a former Member of that House who had been petitioned against, and who rose in his place and stated upon his honour that he had a good defence to make, but that he was unable to raise the necessary £1,000 for the purpose. The consequence was that he was obliged to give up his seat.
§ MR. DENMAN
said, he was also of opinion that too great facilities should not be given to men of straw, low attorneys, and villains of all kinds, who might desire to get up Petitions against men who might have been returned by a good majority. For his own part he looked upon bribery as a most heinous offence, and would not allow a single farthing to be expended on his behalf that might not appear in the auditor's books; but then he knew from his experience how vexatiously Petitions were sometimes presented against particular returns. The House should bear in mind that there was such a thing as an honest candidate, and should not seek to favour only petitioners and sureties, who very often were men of straw. In his own case, a Petition had been presented against him by two persons, one of whom became bankrupt, and the other went to the Continent in order to avoid being mulcted in costs. An offer was made to withdraw the Petition if he would not insist upon costs; but to that he refused to assent. Ultimately the Petition was not prosecuted. The costs in that case amounted to between £200 and £300, which was no light sum f for a man of moderate means to lose through being called upon to defend his seat before a Committee. How much greater the expense might be if a man were called upon to defend his seat at a distance from London he was not prepared to say. He thought that the proposed Amendment too much lost sight of the case of the honest candidate.
§ SIR ROBERT COLLIER
thought the object of the hon Member for Westminster (Mr. Stuart Mill) a very excellent one, but it was met by the clause as it stood.
§ VISCOUNT AMBERLEY
said, that though there was great force in what had been stated by the hon. and learned Member for Tiverton (Mr. Denman), yet it must be remembered that there was also a great hardship on the other side; and it appeared to him that the hon. Member for Westminster was right in proposing to facilitate as much as possible the presentation of Petitions.
§ MR. J. STUART MILL
said, he was fully aware of the evil to which his hon. and learned Friend the Member for Tiverton (Mr. Denman) referred. He believed that there were nearly as many dishonest Petitions as there were corrupt elections. But the remedy for this evil must be taught independently, and not by rendering bonâ fide Petitions expensive and difficult.
§ Question put, "That those words be there added."
§ The Committee divided:—Ayes 31; Noes 85: Majority 54.
§ Clause agreed to.
§ Clause 8 (Determination of Objection to Recognizance).
§ MR. POWELL
proposed to insert the following words after "mentioned," in, line 12—Or if proof be not given in manner prescribed that the notice of the presentation of the petition and of the nature of the proposed security has been duly sewed as hereinbefore provided.
§ MR. J. LOWTHER
said, he thought facilities ought not to be given by which men of straw might, from improper motives, present Petitions against the return of Members. The effect of this clause would be where the security required was insufficient that a London Club would be got to advance the £1,000. Now, as the money would be spent in that locality, and the Judge would bring a train with him, it would be the direct interest of those living on the spot to get up such an inquiry. He moved the omission of the words relating to the deposit of the money.
§ THE CHANCELLOR OF THE EXCHEQUER
, did not see that any injustice would be done by allowing the petitioner, instead of giving security, to deposit a sum, of money.
§ MR. SERJEANT GASELEE
said, he hoped the House would not encourage frivolous Petitions. He intended to move a Resolution requiring that a certain number of persons should unite in every Petition.
THE ATTORNEY GENERAL
said, he must point out to hon. Members who talked so much about men of straw, that the clause was framed to provide against such persons coming forward with Petitions, by requiring them to deposit a considerable amount of money by way of security. By the law, as it at present stood, 747 a candidate might enter into his recognizances with a sum of money.
§ MR. M. CHAMBERS
said, he thought that the proposal of the Bill was in point of fact equivalent to a revival of the old custom of straw bail. With a view to prevent unjust and frivolous Petitions being fomented, he should support the Amendment.
§ MR. RUSSELL GURNEY
said, he must oppose the Amendment. The object was that the party petitioned against should have good security, and no security could be so good as the actual deposit of the money.
§ Amendment negatived.
§ Clause agreed to.
§ Clause 9 agreed to.
§ Clause 10 (CLAUSE A.—Appointment of Judges for Trial of Election Petitions).
§ SIR ROUNDELL PALMER
said, that the time had now come when the Committee would expect to hear from the Prime Minister whether he agreed with the hon. Member for Westminster (Mr. Stuart Mill) that the Bill should be in operation for a limited period only. He (Sir Roundell Palmer) had always doubted the wisdom and policy of the Bill. Those who, like himself, regarded the Bill with disfavour would prefer its being looked upon in the light of an experiment; but, on the other hand, there was no disguising the fact that if at the end of the time determined on it were not thought advisable to continue the measure, the two Judges who were to be appointed under the Bill would be left without any functions to perform, and must, of course, be ultimately merged in the general body of the Judges. Whether or not an increase in the number of our Judges was necessary was a very important question, but one which it was scarcely their province at that moment to determine. A Royal Commission had been recently appointed to inquire into the subject, and it would not be right to anticipate their decision by something incidentally arising in this Bill. He hoped the Commission would recommend something acceptable to the country. He had a great objection to special jurisdictions, and he thought that if new Judges were to be appointed they should form part of the present body. If two Judges were to be appointed specially for this jurisdiction, he doubted whether two men could be found who would in every respect command the confidence of the public; and if, by any chance, the Judges elected should not prove 748 acoeptable to the country, if their decisions should not be viewed with public favour, Parliament would be in the unfortunate position of having intrusted to these gentlemen the power, without the intervention of a jury, and without appeal, of dealing with matters of the highest importance, and of attaching by their decisions in many cases a stigma which must last for seven years, and which at the least amounted to political disfranchisement for that period. The Judges chosen for this purpose would not be taken from the general body in rotation. However incompetent or unqualified for the duty they might be, when once they were appointed to the post their decisions must be submitted to without chance of redress. All the Judges were not held in equal regard by the public. They did not all in an equal degree give satisfaction to the public. Moreover, the defects and infirmities of particular men selected for the discharge of special duties would appear more prominently and be more remarked than those of men who had to perform only ordinary duties. There should therefore, be an interchange of this special work with the ordinary duties. The one would, as now, act as a set off against the other. Honesty and integrity were the characteristics of our Judges, and he hoped nothing would be done that would tend to impair public confidence in them. He had, also, some objections to the wording of the clause, which, for instance, empowered Her Majesty to appoint "any number of persons not exceeding two." These "Honorary" Justices would be in the same position as to salary as the other Judges, and they were to be styled "the Honorary Justices of the Court of Common Pleas," with which Court they were to have nothing to do except in name. Why the Bill should fix them in a Court to which they did not belong, and probably take them out of their own Court to do so, he could not understand. They were to be in other respects in a higher position than the other Puisne Judges, because they were to be Privy Councillors, and they were to sit as Judges in the Court of Exchequer Chamber or in any other Court of Error or Appeal from the superior Courts of Common Law at Westminster. It appeared to him that, if Parliament were about to make a superior order of Judges to exercise a higher jurisdiction, it would be better to call them by a name that would distinguish them in conformity with 749 the duties given to them. It might be said that the Petitions were to be presented to the Court of Common Pleas, and that therefore the Honorary Justices ought to be called Judges of that Court. But he denied the consequence. If these Judges were not numerous enough, and it became necessary to take other Judges to assist, them who were not Justices of the Court of Common Picas, it would be absurd to call them so.
§ MR. KNATCHBULL-HUGESSEN
said, he thought they ought to be Judges who had held the office of Judge for five years.
§ SIR STAFFORD NORTHCOTE
said, it was always contemplated that they should be Judges of this standing.
§ MR. AYRTON
said, it would be better to add two Judges to the number of the present Judicial Bench, or to the Court of Common Pleas, if that were thought preferable, leaving for after selection the two Judges for the particular duty under this Bill; so that if the system should not be found to work well, those Judges would merge into the Court as vacancies occurred, and we should return to our present starting point. This plan would involve no disturbance of the ordinary organization. The new Judges would sit at chambers, go circuit, and take the usual part in the Exchequer Chamber. They would act as Assessors to the House of Lords, or assist in the Court of Probate and Divorce, the Court of Chancery, & c. When an Election Petition was presented to the Court of Common Pleas, there would be the advantage of seven Judges to choose from instead of two. Then comes a larger question. He wished the Committee to ask themselves how the Judges were going to try these Petitions? According to past experience the number of Petitions after a General Election would be about forty. Many hon. Members who were favourable to the Reform Bill of last year believed there would be a great many more Petitions in the next Parliament; and the present measure appeared to have originated in the fear and belief that corruption would be increased, and that the next, House of Commons could not safely be intrusted to discharge the duties which the present House performed. Supposing that there were as many Election Petitions at the next election as in times past, how were these two Judges to try forty cases? How long must they sit to enable them to do so? It would be necessary to have 750 have-a-dozen Judges or more to conduct these inquiries, and it was therefore better that there should be no distinction between the Judges. There was something very objectionable in the selection by the Crown, on the eve of a General Election, of Judges who were to sit upon Petitions against the return of Members of that House. He hoped the Government would repudiate the invidious position which would be given them under the Bill. He hoped that, instead of having a special tribunal, they would give jurisdiction to all the Judges indiscriminately, and leave it to them to decide who should try these petitions, as they now decided in regard to circuits. In order to raise the question, he would move the omission of all the words after "exceeding," in page 4, line 26, leaving it to the Solicitor General to make such an addition to the clause as would carry out the object he had in view.
§ Amendment, proposed, in page 4, line 26, to leave out from the word "exceeding" to the end of the Clause.—(Mr. Ayrton.)
said, he concurred in the opinion that the two Judges to be appointed should be added to the judicial Bench and exercise a general jurisdiction, it being undesirable that they should have special and exclusive functions. He would suggest a proviso that they should take office subject to the future determination of the Mouse as to what their duties should be. This would not interfere with any of the very valuable provisions of the Bill.
§ MR. SANDFORD
said, that as the transfer of jurisdiction had been determined upon, all that remained was to carry it out in the best manner. He did not think it would be desirable to give the two additional Judges to the Court of Common Pleas; because if such a course were adopted the Judges of that Court might appear to be selected exclusively for that office. In his opinion it would be better that an additional Judge should be appointed both in the Queen's Bench and Common Pleas, and if it should be thought necessary in the Court of Exchequer also, so as to assist the present judicial Bench in their ordinary duties, and the Puisne Judges should take these Election Petitions in turn.
§ MR. DENMAN
pointed out that if no two of the fifteen Judges could be found to undertake this jurisdiction—a contingency not unlikely to be realized—the whole thing would come to a dead-lock, 751 the Bill containing no compulsory powers. It was only on the two Judges who undertook the office not being able to get through the work that the other part of the Bill came into play. He shared in the objection that had been made to the establishment of a separate Court; but if they did not take that course, they would impose duties on the Judges which they did not desire to accept. He objected to a single Judge deciding these cases, and also to the 19th clause, which allowed evidence of bribery to be gone into prior to proof of agency. He recommended the Government to postpone the clauses for a day or two, and then bring in a better scheme.
§ MR. RUSSELL GURNEY
said, that if the Committee were compelled to listen to long speeches on subjects already decided on, very little hope of making Progress could be entertained. He rose simply to disclaim the notion suggested by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton) as that which prompted supporters of the Bill. As a Member of the Select Committee which considered the Bill of last Session, he assured the Committee that the recommendations made were founded, not on fears for the future, but on experience of the past. The Select Committee was satisfied a change was needed, but that no change would be effectual unless the jurisdiction were removed from the House. He was bound to say he preferred the scheme of his hon. and learned Friend to the scheme of the Bill, which he would support merely as superior to the present system. He thought there were great objections to the Minister of the day choosing the Judges who were to fill the office. He was in favour of adding to the Judges, and leaving the work with them as a body, on the understanding that the Judge for the occasion would be selected by a rota. The only objection he could conceive to the scheme was the antipathy to it expressed on the pan of the Judges themselves. But if that proposal were not adopted he should support the Bill, because he was unwilling to lose the chance of effecting a great reform from a desire to carry a still larger reform. They were all aware that the Bench was at present under-manned, and independently of any considerations connected with that subject, it was desirable that its strength should be increased. Perhaps some changes in that respect would be suggested by the Commission now in- 752 quiring into the subject; this question, however, could not be postponed until that Commission had reported.
§ MR. SERJEANT GASELEE
said, that if he could not get a better measure he should support the Bill, because he believed that; human ingenuity could not devise anything worse than the system under which Election Petitions were at present tried. He thought, however, that the whole of this jurisdiction ought not to be given to the Court of Common Pleas, but that an additional Judge should be appointed to each of the Common Law Courts. These Judges ought to go circuit, and do all ordinary business. The Judges on whom the trial of Election Petitions should devolve should be appointed by rota or ballot. According to the plan of the Government two gentlemen who were distinguished, not for their learning, but for their party spirit, would be appointed to try Election Petitions, and nobody would be satisfied with them. As he had said some months ago, he believed the whole of the Judges would undertake this work if they were coaxed a little. On that point he spoke with some authority, for although he had not the honour to be a Judge himself, he was a Judge's son, and he would say that the Judges were a little underpaid. Till very lately the Judges had £5,500 a year, but now they received only £6,000 a year; that was to say, no more than a Vice Chancellor, who had not to pay the expense of going circuit. If £500 were added to the salaries of the Judges all this difficulty would be overcome.
§ MR. NEWDEGATE
said, he would remind the Committee that the Judges objected to the work being thrown on them as a body, because it would entail odium on them and depreciate their authority in matters of greater importance. Everyone was interested in the purity of the Bench and the authority it exercised. It was a strong argument against change of jurisdiction if no one could be found competent to take it. He believed, however, that if special Judges were appointed to the Election Petitions jurisdiction, perfectly qualified persona could be found to fulfil the functions.
THE SOLICITOR GENERAL
said, that the first objection taken by the hon. and learned Member for Richmond (Sir Roundell Palmer) was that the Judges whom it was proposed to appoint would be improperly named, and besides this he made a verbal criticism by way of ob- 753 jection that they should be called Judges of the Court of Common Pleas. But inasmuch as the Committee had already determined that the Petitions should be presented to the Court of Common Pleas, as every preliminary step was to be taken in that Court, as the Masters of that Court were the officers who were to carry out the Act, and when a Judge actually tried a Petition he would require to have all the powers of a Judge of that Court at Nisi Prius, it was thought better that he should be called a Judge of the Common Pleas, and there was a provision in the Bill to give him all the powers which he would have as a Judge of that Court. Then he came to the main objection, which was that it was proposed to appoint two Judges, and it was said that the original plan recommended by the Select Committee, that the matter should be left to all the Judges, was far preferable. That might be so or it might not, but the Committee ought to consider that if they departed from the plan at present embodied in the Bill and attempted to go back to the scheme against which such strong remonstrances had been made by the Judges—remonstrances which had not been withdrawn—they would be in the greatest possible danger of losing the Bill. It might be all very well to say that they could carry the Bill by majorities in that House but if the Judges persisted in their remonstrances there would probably be resistance in "another place" at their instigation, and he could not help thinking that it would greatly jeopardize the Bill. Now, what was the great difference between the plan inserted in the Bill and the plan of the Select Committee? It was true that by the Bill as it stood at present two Judges were to be appointed, who were to be peculiarly Election Judges. But by a clause, which, though not forming part of the Bill at present, could be easily introduced, it might be provided that in times of pressure there should be power to call upon the other Judges to assist in the trial of Petitions. In this way, there would be two Judges who would have the management of Election Petitions at ordinary times, and who would be very useful in instituting the forms of procedure, and getting the Court into working gear, a thing which was always very difficult at first; and after a General Election, when the number of Petitions to be tried was very large, the other Judges, or at least a great part of them, might render assistance. The only difference between the 754 two plans was this—that, according to the scheme embodied in the Bill, they would have two Judges specially appointed for the purpose of managing the general business of the Court with regard to Election Petitions, and of trying some of the Petitions. Now it was no fair argument against the plan to misstate what the consequences would be, as when it was said that the Government would have the power before a General Election of selecting and appointing two Judges. But the Judges were to be appointed, as all Judges were, upon the responsibility of Ministers and by Patent from the Crown, and, according to an Amendment which had been accepted, they were to be persons who had acted as Judges for five years. They would, therefore, have been removed from all political connection for five years, they would be persons in whom the country had learnt to confide, and they would be irremovable. The public would have in. their case everything that had given the country confidence in its other Judges, and, therefore, it could not fairly be said that they would be appointed for political purposes, and open to political influences. The only question to be tried was whether a person had been bribed or not, and he did think it a stigma upon the Judges to say that Judges who had been appointed Judges for five years could not be got who would not be liable to the imputations of corrupt motives. ["No, no!"] His hon. and learned Friend the Member for Tiverton. (Mr. Denman) said "No." He did not intend to say that his hon. and learned Friend meant to cast such an imputation on the Judges, but his argument went to that extent. It had been objected that when these Judges were not engaged in trying Election Petitions they would be perfectly idle; but the 12th clause provided that when they were not engaged in trying Election Petitions they might be performing other duties most useful to the country, which would give them ample employment and be of material assistsnce to the other Courts. The only duties they would not have to perform would be the going on circuit and sitting in chambers. The only other objection taken by the hon. Member for Richmond (Sir Roundell Palmer) was that these Judges would be constantly trying Election Petitions, and would have no interchange of duties. But if that was an objection it applied with equal force to a great many other Judges. The Judges in Chancery had no inter- 755 change of duties, the Judge of Probate and Divorce, who gave general satisfaction to the country, had no interchange of duties. The question, then, really was whether they would pass this Bill, or now, on the 6th of July, go into some virtually new Bill of which they knew nothing. He would strongly urge on the Committee that they would do well to accept this Bill.
§ MR. LOWE
said, that the speech of the Solicitor General might be divided into two parts—argument and menace. And first as to the argument. He did not think that his hon. and learned Friend could gravely contend, if they were to sit down to devise the best system for trying Election Petitions by Judges, that this Bill would be found to contain it. Her Majesty's Government hardly thought so, and he was very unwilling to press on them, because he thought that in this matter they had shown a great and sincere wish to carry out the Report of the Committee. He wished, therefore, to speak with all moderation of their conduct on this question. Many reasons might have led them to take the course which they had adopted; and he did not mean to say that this scheme, lame and imperfect as it was, would not be better than losing the Bill altogether. But when the scheme was argued on its merits—when it was put as a matter not of threat but of reason—he must demur to what his hon. and learned Friend had said. For what could possibly be worse than to pick out two persons on whom the eyes of all persons likely to have business coming before the Courts would be fixed, and who were inevitably to decide on these matters? Let those persons be ever so moderate—let them be the perfection of carefulness, prudence, and impartiality—they would not escape all manner of censure and cavil. Then there was another question, which was, that when they created a tribunal for a particular purpose there ought to be some reasonable proportion between the powers of the tribunal and the duties it would have to perform. Now, how could it be supposed that two Judges could try a tenth part of the Petitions after a General Election? It was clearly ridiculous to suppose that the means provided had any sort of relation to the end to be attained. Well, that had been foreseen, and it was provided against; because the two Judges who were to be specially marked out from the rest of their brethren as political persons, whenever they found that they had 756 more to do than they could do, which would always be the case after a General Election, were to certify that fact. They might as well be required to certify that they could not lift three tons. And then what would happen? The House objected to Select Committees for the trial of Petitions on the ground that they were appointed by partizans from among partizans, and that, however pure they might be they did not escape suspicion. But what was to happen in this case? These Judges, having certified a notorious fact, Her Majesty's Government—who were of all people in the world those who had the greatest reason to wish Election Petitions to be decided in a particular way—were to appoint other persons to assist them. Now, if you wanted to subject two honest and upright men to suspicion and obloquy, and if you wanted to discredit the Government who appointed them, you could not hit upon a more certain way of attaining this end. He felt confident that every Judge would, to the best of his knowledge and understanding, do his duty; but it was necessary that our tribunals should be not only upright, but unquestioned; and that they could never be if this proposal were persisted in. He appealed to the Government, who had been driven into their present course by circumstances beyond their control, to take into consideration the unanimity which prevailed on this subject both in the House and in the Committee. Such unanimity gave the Government fair reason for re-considering the question. In a matter of this vast constitutional importance neither the Government nor the House could suffer themselves to be influenced by the motives which had been suggested. They were told that they had not got the consent of the Judges. He could only say that the House of Commons must not regard the consent of the Judges. If they were Judges in their Court, this House, as a constituent part of the Parliament of this country, were Judges in this Court; and when Parliament had given its decision, the Judges were bound to obey, just as every litigant was bound to obey their decisions. It was due to the Judges that the most careful consideration should be given to all they alleged, and that they should not be overweighted by duties; at the same time Parliament was bound to consider the public interests, and not allow itself to be swayed by personal considerations. A great evil was 757 to be dealt with. Parliament stood between the present and the future, and must do the best it could to purify our electoral system. It was not to be endured that in discharging this duty they should be prevented from doing what they honestly believed to be right by apprehensions of what might happen "elsewhere." Let this House do what it thought right, and let the other House be responsible for any course it might choose to take. These matters were too important and too sacred to admit of a compromise. This House was bound to act as it thought best for the public interest, and to speak as men entrusted with the consciences of the people, not leaving it to be supposed that they thought so poorly of the rights confided to them by their constituents as to create an inferior machinery for dealing with these questions when they were capable of devising a much better tribunal. He hoped the House would not swerve one hair's breadth from what they believed to be the right path on account of any such considerations as had been presented to them. They should do their duty, and leave the House of Peers to do theirs. It seemed to him that the proper course would be to authorize the appointment of three new Judges, who should be in no way earmarked or distinguished from the rest of the Judges—who should sink into the general body of Judges, and exercise the same duty as their fellows in the different Courts. Parliament ought to provide that they should in some general way arrange a rotation in which they should perform these duties; and they should be subject to any arrangement Parliament might decide upon hereafter when the Commission for the re-constitution of our judicial system presented their Report. He hoped that the same Judges would not try a number of Petitions. That should be specially avoided. Each Judge should have a Petition to try, so that there should be no pretence for fixing peculiar odium upon any one Judge, but they should return to their respective Courts as little noticed as possible. This was the feeling of the Committee; it was the feeling of the House; and he hoped still that it might be the feeling of the Government.
§ MR. DISRAELI
Sir, on the 6th of July the right hon. Gentleman and many Members of the Committee have arrived at a conclusion which was originally adopted by the Select Committee, and which the Government approved in the 758 Bill they brought forward. That was probably on the 6th of February, and I think it is much to be regretted that so long a period should have elapsed without the Committee having expressed in a very distinct manner their opinion on the subject. I cannot agree that my hon. and learned Friend the Solicitor General addressed any menace to the Committee. I think his suggestions were prudential. If we are anxious to carry a Bill we must consider in what form it will be practicable to carry it. Now, remembering the effect which the manifesto of the Judges had upon the opinion of the House of Commons, I do not think it is to be looked upon in the light of a menace, if we suggest that it is not improbable that their representations may have some influence upon the opinions of the other House of Parliament. I am not prepared to run this risk. I preferred the scheme proposed by the Select Committee, and I preferred the Bill which I submitted to the House. But if not with the unanimous consent, it was with the very general consent of the House that the Government adopted the modified course which they pursued upon this subject. At this period of the Session I am not prepared to adopt the views of the right hon. Gentleman the Member for Calne (Mr. Lowe). Though I myself am not ready to deny their justice and their propriety, I must look to attaining the greatest amount of benefit I can attain under the difficult circumstances with which we have to contend, and therefore I must ask the Committee to express their opinion upon this clause. As to the inquiries which have been addressed to me, and to which the hon. and learned Member for Richmond (Sir Roundell Palmer) has referred, whether I would agree to pass this measure for a limited period, one great objection to such a course, if we did not adopt the plan suggested by the right hon. Gentleman the Member for Calne, is this—where should we get the capable officers who would administer this Bill? I must act, therefore, with the greatest reserve before deciding upon this question. But that is not the point we are called upon to decide, which is the clause before us; and, believing that upon the whole the course we are asked to take is a dangerous one, I must ask the opinion of the Committee.
§ MR. FAWCETT
said, he did not think that the speech of the Solicitor General contained anything like menace. He had 759 merely suggested that if the Bill were altered in a fundamental point the protest of the Judges might induce the Lords to reject the Bill. If two or three months back there had been a Motion in this House to keep to the Bill originally proposed by the Government and disregard the protest of the Judges, he should have agreed to that Motion; but, in acceding to the second reading of the present measure, the House of Commons virtually agreed to the plan of the Government, and he should, therefore, support them in this instance.
§ Question put, "That the word 'two' stand part of the Clause."
§ The Committee divided:—Ayes 71; Noes 136: Majority 65.
§ MR. DISRAELI
It was originally intended to report Progress about this period of the evening, and the decision which the Committee has arrived at is an additional reason for doing so and affording the Government an opportunity to consider whether they can meet the exigencies of the case. I cannot conceal from myself, although I do not say it by way of menace, that I have great difficulties to contend with.
§ MR BOUVERIE
said, there was a clause upon the Paper drawn up by himself which expressly made the provision that three Judges should be appointed. If the Committee adopted that clause, it would give effect to all that was implied in the decision just come to. It would be a great convenience to all those who were most sincerely anxious to support the Government in passing this Bill if a day were fixed for resuming the consideration of it.
§ MR. BERESFORD HOPE
said, it would be a great convenience to those who wished to support the Government if the right hon. Gentleman the First Minister of the Crown, would let them know on what day he would go on with the Bill.
§ MR. DARBY GRIFFITH
said, that in his opinion the case presented no difficulty for the Government at all, as the Committee had by its decision reverted to the original Government plan of employing all the Judges. The opinion of the House had been at first unfavourable to this idea, but it now appeared that they were willing to adopt it.
§ MR. WHITBREAD
said, he hoped the right hon. Gentleman would be kind enough to name the earliest day on which 760 he would proceed with the Bill. The majority of Members had come to the conclusion that a change was desirable, and they had indicated the direction in which it was desired. He was sure the right hon. Gentleman had nothing to complain of in the conduct of the Opposition or of the House generally. All that was wished was that he should bring in the Bill he originally introduced.
§ MR. DISRAELI
I must give the same answer both to the hon. Gentleman, opposite and to the hon. Gentleman near me. The Committee has not yet agreed to report Progress, and therefore it is quite premature to make the inquiry.
§ MR. CLAY
said, he thought the situation a very simple one. The Government paid to the protest made by the Judges the respect to which it was entitled, and they had altered their Bill. The House of Commons also, out of respect to the Judges, offered no objection to the Government bringing forward a new scheme. Its difficulties, however, were apparently so great, as were the disadvantages of any plan except that which the Government first recommended, that the House had wisely determined to revert to the original plan of the Government and to increase the strength of the judicial Bench by the addition of three Judges. He had far too much respect for the Judges of the country to believe that they would persist in the objection they had made.
§ House resumed.
§ Committee report Progress; to sit again upon Thursday.