§ Order for Committee read.
§ Motion made, and Question proposed, "That Mr. Speaker do now leave the Chair."
§ MR. A. MITCHELL
said, he rose to move the Resolution of which he had given Notice. He was sorry that the task of bringing forward this Motion had not been undertaken by some Member of more experience; but, no one else having taken it up, he felt it his absolute duty to do so. He thought local investigations into corrupt practices at elections would be more satisfactory than as they were now conducted. Investigations should be more rapid, and should be made by one who was intimately acquainted with the law — a man of honour, capable of sifting evidence; but, at the same time, he was convinced that the retention by the House of its own jurisdiction and the right of determining who were its Members was essential to its dignity and independence. There was to be no appeal from the Judge who tried the petition. The proceeding of the Judge was to be final, and his order was to be carried 297 into execution. The present Bill proposed to introduce a power between the House and the electors, which had never before been heard of in the history of this country. Before 1770, election petitions were decided by the whole House; but between that date and the year 1828 these petitions were referred to a Committee of fifteen Members. In the beginning of the reign of Her Majesty Queen Victoria great alterations were made, and Bills upon the subject were also passed in 1854 and 1860, the last Act which regulated elections being passed in 1863. In the Bill of last year, which bore the same names upon its back as the present, the most careful provision was made for the protection of the rights and privileges of the House of Commons. The present Bill completely destroyed the privilege of the House of Commons to determine who its own Members were. This was a most miserable and vicious attempt to deal with this question. If he might without presumption suggest a plan by which the object of the Bill could be obtained, he should propose that a Committee of the most important Members of that House — men of the highest position and highest honour — should be appointed to draw up a list of barristers of seven years' standing, one of whom should be sent down to the spot with full powers to conduct the investigation, accompanied by two Members of that House, one from each side, who were to represent that House, and who, on their return, would be able to state whether, in their opinion, the investigation had been full and fair. That Commission should make a Report to the House; and the recommendations in that Report should be carried into effect within a week, if the Report were not objected to by a Member of that House. His plan, if adopted, would preserve the right and privilege of that House to say who were its Members, and would settle controverted elections in the best possible manner. In conclusion, he implored hon. Members to recollect that the privileges of the House had been of old, highly valued by its most important Members; and that, if they assented to the Bill, they would be placing the power of the Crown between the electors and that House.
To leave out from the word "That" to the end of the Question, in order to add the words "this House, while earnestly desiring to provide
the best tribunal for the trial of Controverted Elections, to reduce the cost of such trials, and to ensure the detection and punishment of bribery and corruption, is not prepared to assent to any measure which aims at the destruction of its ancient right and privilege to hold in its own hands the power of determining who are its Members, a right which the House has asserted and exercised, to its great advantage, for several hundred years, and upon the possession of which the dignity and independence of this House and the constitutional freedom of the electors greatly depend,"—(Mr. Alexander Mitchell,)
§ MR. WHITBREAD
said, that having been a Member of the Committee, which last year recommended a Bill something in the nature of that now under theconsideration of the House, he wished to be allowed to state some of the reasons which had induced them to come to the conclusions at which they ultimately arrived. Before doing so, however, he must remark that the hon. Member who had just sat down (Mr. A. Mitchell) had, by the terms of his Notice, led the House to believe that he desired that the trial of election petitions should remain as at present; but, on the contrary, when he came to make his speech, he had proposed, as an alternative to the scheme of the Bill, a plan which was open to two or three grave and fatal objections. In the first place, the hon. Gentleman proposed that two Members of that House should accompany a certain set of lawyers, who were to be barristers of seven years' standing, down to the spot from whence the petition emanated to try the election petition. If that proposition were adopted it would often be impossible that the trial of election petitions could be entered upon immediately; because, if the House were not assembled, whence would they get the two Members who were to form a portion of the Commission? In the next place, if the House were sitting, it might place the Members selected to go down to the country in a most inconvenient position as regarded their respective constituents, who would naturally find fault with them if they were absent when grave and important questions were under the consideration of the House. The third objection to the hon. Member's plan was the most fatal of them all. The Grenville Act had been passed for the purpose of getting rid of the horrible system of bringing discussions on election petitions upon the floor of that House; but the hon. Member proposed, in contravention of the spirit of that Act, to bring the Reports of the Commissioners under the cognizance of the House on the Motion of any hon. 299 Member who might object to decisions at which they had arrived. It would almost appear, from the manner in which this question had been argued both in that House and in the Press, as though their only object was to substitute for the Election Committee another tribunal; but, for his own part, he would not have consented to part, with the power of that House with respect to elections petitions upon that ground alone. The two great objects to be kept in view were to secure an immediate trial; and to secure that the trial should take place on the spot. By trying the case immediately they would get rid of the disgraceful system, which he was given to understand prevailed to a large extent, of pairing off one petition against another, by which the worst cases of corruption were prevented from coming before the public. It was, of course, difficult to procure evidence upon this point; but he was afraid there was but too much truth in the charge. Then, as to the advantages to be derived from a trial upon the spot, most hon. Members had been present during the time that one of those disgraceful scandals—the trial of an election petition—was going on, and one of the worst features of those trials was that frequently answer after answer was given which everyone present knew was untrue. This would not be the case if the evidence were given in the face of those who were fully acquainted with the facts, and at the place where the witness lived. The trial of elections as proposed by the Bill would be surrounded by circumstances similar to those attending ordinary trials by a Judge in open court. The trial of a charge of bribery could not, therefore, fail to be associated in the minds of the people with the trial of other criminal offences; and would, in time, induce the belief that, after all, bribery was a serious offence of which an honest man should be ashamed. It was said, however, that the House was unwilling to part with its jurisdiction. But what was the jurisdiction of the House in that matter at present? He said that the House as a House had no more jurisdiction in the case at present than it would have under the Bill. The House had no voice in the constitution of the Election Committees, and it had not reserved to itself the right of questioning the decisions of those Committees. As Sir Erskine May had accurately said, it was impossible to conceive a Legislative Assembly more strictly bound by a public law over which it had no control, and in carrying out 300 which it had little or no discretion. The moment the House had allowed the General Committee of Elections to be appointed unchallenged it had no more voice in the matter. Another illustration of the erroneous impression existing with regard to the jurisdiction of the House was to be found in the case of a bankrupt Member. If after a year that Member's bankruptcy was not reversed, the House did not think its jurisdiction encroached on because the seat was vacated without a Parliamentary inquiry into the solvency of its Member. All that was wanted in the trial of an election petition was to ascertain a matter of fact—whether A. B. was guilty of tendering a bribe or not. That was not the province of a Legislature, but eminently within the province of a Judge. Some hoped to see bribery die out as constituencies were enlarged; but he had little faith in that prophecy. It was true the smaller constituencies had furnished cases of most flagrant corruption; the obvious reason being that it was easier and cheaper to buy a small constituency than a large one. Others had directed attention to the West, and perhaps an hon. Member experienced in United States elections would furnish the House with trustworthy information on the subject. His belief, however, was that any person in the streets of a United States' city during a closely contested election would soon be asked whether he had voted, and, if not, would be informed that a sumptuous breakfast and a ten dollar bill were at his disposal in a neighbouring house. Still, it could not be denied the changes proposed by the Bill were very great, and it too often hapened that it was only when a change had been made that the wisdom of the original practice was discovered. But, notwithstanding this, the House should inquire under what circumstances the Bill had come before it. Two years ago the table of the House was laden with petitions, and, from time to time, hon. Members had received the records of the disclosures to which those petitions led. Another General Election was impending, and if some such Bill as the present were not passed a repetition of these unwelcome proceedings must necessarily follow. He therefore contended that some change was demanded by the necessities of the times; and, in his opinion, the changes proposed by the Bill were one and all sound in principle. He would have been unwilling to refer the trial of election petitions to any tribunal which had not the full confidence of the 301 country; but the scheme of the Bill left no room for criticism on this head. The new franchises conferred by the Act of last year, if used honestly, would be a source of strength to the House; but, if they became wares to be bought and sold, they would undoubtedly be a source of great weakness. If corruption entered largely into the composition of the next Parliament the money-elected would find that it was one thing to buy the suffrages of the people, but quite another to secure their confidence. Such a Parliament might well and fairly represent the heaped-up wealth of the country; but it would fail to feel the pulse which stir those working millions who go to make the real life-blood of the nation.
§ SIR GEORGE BOWYER
said, he feared some misapprehension existed regarding the constitutional question involved in the Bill. It seemed to be assumed that the jurisdiction of the House of Commons over its election petitions was a part of the ancient Constitution, and of the liberties of Parliament; but it could be traced back no earlier than Elizabeth's time, and originated in an anomalous usurpation by the House of Commons contrary to the common law of the country; though probably it was necessary, considering the influence of the Crown at that time, that Parliament should vindicate its right to say who should and who should not sit in the House. No such vindication, however, was necessary in these days. What, then, was the common law on the subject? Before that usurpation to which he referred, the common law was that a return to a writ, if triable, had to be invariably contested in the Court from which it had issued, and to which it returned. The writ for the election of Members of Parliament issued from the Court of Chancery; and the return was still made to that Court, and no Member could take his seat until the return had been so made. If questioned, the validity of the return was tried in the Courts of Law; if impeached by a demurrer, it was tried in the Court of Chancery, sitting as a Court of Common Law; if impeached by a traverse, the Lord Chancellor delivered the record into the hands of the officers of the Court of Queen's Bench, and the trial was made by that Court and a jury. This was the more worthy of remark because the Judges had lately declared themselves incompetent to decide any election questions; whereas, by the common law of the 302 country, the Judges were bound to decide such matters when they rested upon questions of fact. In cases of bribery, the Lord Chancellor, not being able to decide questions of fact, would in former times send the traverse to the Queen's Bench as a matter of course, and then it would be tried. So that it would appear that by the ancient common law every question of fact with regard to the validity of the return to the writ for the election of Members of Parliament was triable by the Judges with a jury, and not by the House of Commons, and that, when the validity of the election depended upon a question of law, it was decided by the Chancellor without a jury, sitting as a Judge at common law on the Common Law side of the Court of Chancery. So if the election of a Coroner, under the writ De Coronatore eligendo, or a Verderer, were impeached questions of law were decided by the Chancellor sitting on the Common Law side in Chancery, while questions of fact were triable by the Judges with a jury in the Court of Queen's Bench. The present anomalous power of the House of Commons had been assumed for political reasons; and he did not think that the House of Commons, in abandoning this jurisdiction, could fairly be charged with sacrificing any portion of its independence, especially when they remembered the great power which the House of Commons possessed and the diminished importance of the Royal Prerogative. Though he approved, however, the principles on which this Bill was founded, he doubted whether the mode selected was the one best calculated to carry out the objects which they had in view. He understood the Bill to provide that two Judges should be drafted from the Superior Courts, to decide upon this question of contested elections; but he much doubted whether they would be able to determine all the questions that would be raised after a General Election, while, at other times, they would have little more than sinecure appointments. He would recommend, instead of this proposal, that power be given to the Crown to issue a Special Commission whenever elections were to be decided upon—a plan by which the services of the most competent persons could be secured; while, when no election inquiries were pending, they would not have officials receiving salaries without rendering any services in return.
§ MR. BERKELEY
said, this was a Bill which had come down to the House by 303 lineal descent. A measure of this kind was first introduced during Lord Aberdeen's tenure of office after an election of more than usual vicious character, from a conviction that the electoral system might very well be altered for the better. The Earl of Aberdeen, however, shrunk from adopting the only remedy—the ballot—and the Bill was referred to a Committee composed principally of lawyers, and they as usual made a mess of it. The measure which that Committee brought forward was analysed by the late Mr. Coppock, in The Times, who concluded by saying, "When the House of Commons passes such a Bill as this, we all know what it means," and the Editor endorsed Mr. Coppock's opinion by this just remark: "This Bill is a pompous profession meant to be inoperative." The Bill found favour with the House because it contained one or two good clauses—such as doing away with bands and colours at elections. Every Member had felt the inconvenience and expense of such things, and so they passed the Bill. The result, howeve,, was, that the measure was found to be inoperative—nay, positively mischievous. It was, in fact, an Act passed to protect the candidates, and to punish the least guilty parties. The clauses against intimidation were a perfect farce; and those against bribery laid hold of the poor man, whilst the candidate passed by unscathed. The measure, however, died a natural death, and they then came before Parliament again for its renewal, but without the true remedy—the ballot. When the Bill went to the other House, Lord Derby gave it his parting blessing, and said that it was not worth more than so much waste paper. With that recommendation, however, it went to the country, when again, it was found inoperative, and to be, in fact, no more than so much waste paper. The First Lord of the Treasury had reproduced that Bill with a still more objectionable clause, and which proposed to give them a complete leap in the dark at the cost of £10,000 per year. The Committees of that House had not failed in their duty; the failure is in the law they are armed with. They might have passed candidate after candidate who had been guilty of bribery; but, with such a law for their guide, they could not find them guilty The Government did not attempt to deal with corruption or intimidation; but they passed a law to punish some wretched tailor or shoemaker who accepted £10, whilst they turned their back upon the candidate 304 from whom the £10 came. It had been throughout a mere tub for the whale, and they evaded the great and broad question of giving protection to the voter by the means of the ballot. Nothing but that would protect the voter, and cause purity of election. It was coming to that; but, according to the trick of the times and the fashion of the day, it would appear in that House as a Conservative measure.
§ SIR STAFFORD NORTHCOTE
said, he thought that what the hon. Gentleman who spoke last had said made, to a considerable extent, a case for the introduction of that Bill. He perfectly agreed with the hon. Gentleman that since the recent changes in the constitution of the Election Committees of that House it would be difficult, perhaps impossible, to point to any case in which those Committees had failed to do their duty; and that, nevertheless, in spite of the purity and efficiency of the Committees of that House, the system of bribery, as they very well kenw, prevailed to a scandalous degree. Well, the hon. Member had a nostrum of his own, and said, "Don't introduce anything to improve the present state of things till you give us the ballot." That, of course, was a fair line for the hon. Gentleman to take if he was anxious to recommend his own peculiar remedy to the exclusion of all others. [Mr. BERKELEY: I never said that.] That, however, was what the hon. Member's argument pointed to, because he contended that unless they gave the ballot it was of no use trying anything else. It was all very well for Gentlemen who believed the ballot was an invaluable, if not the only effectual, preservative against electoral corruption to argue in that manner. But those who were of a different opinion on that point, and who wished to consider whether there was any other way of grappling with that evil, were naturally led by their conviction that the Election Committees had done all that could fairly have been required of them, but without effect, to inquire whether it was not necessary to take a step further, and go beyond the precincts of the House itself in order to accomplish that at which they all professed to aim. He had listened to the speech of the hon. Member for Berwick-on-Tweed (Mr. A. Mitchell) expecting to hear from him a stronger case than he had presented. Of course, it was easy to say they all had the same great object in view, that they all desired to promote an efficient inquiry, and so forth; 305 but when the question came how that was to be done, the hon. Gentleman gave them a most vague and shadowy plan. And as to the hon. Gentleman's objection to the plan of the Government, he must say he never heard a more miserable objection; because, when reduced to its elements, it amounted to this, that, in his opinion, apparently, it was the House of Commons only that was interested in the character of the elections to that House, and that it would be a crying sin and shame if the House of Commons were to surrender its right to control and regulate the elections of its own Members. Now, he entirely disagreed with the hon. Gentleman at the very foundation of his argument; because he said it was not the House of Commons only that was interested in the purity of the elections to that House, but the whole country was interested in it. [Mr. MITCHELL here made a remark which did not reach the Gallery.] The hon. Gentleman might say it was an affair that rested with the constituencies and the House; but he held that the whole country was interested in the matter; and if by any particular system they could secure greater electoral purity, and could provide a better remedy against the evils which unfortunately crept into the election of Members of Parliament, he maintained that any attempt to resist that upon the ground that it involved an interference with certain imaginary privileges of the House of Commons was an objection to which the country would never listen, and ought not to listen. Of course, if he could show that the particular proposal contained in the Bill would be inefficient for its purpose, that was a valid objection; but the main ground on which the hon. Gentleman put his argument was that they would have another power in the State interfering between the electors and the elected. The hon. Member for Bedford (Mr. Whitbread) had answered the hon. Member for Berwick-on-Tweed extremely well, and had shown that there were now various instances in which another power interfered between the electors and the elected. The hon. Member for Bedford noticed the case of a Member of that House who might be adjudged a bankrupt; but he mentioned another and more frequent occurrence of the interposition of another power—namely, in the very settlement of the list of electors themselves. Who was it that adjudged whether an elector had or had not a right to his vote? Why, the Revising Barrister, 306 a power not appointed by that House at all—but as the hon. Member for Berwick-on-Tweed would say—by another branch of the Legislature; and they might as well say it was an infringement of the privileges of that House that Revising Barristers should go round the country to decide whether a man had a right to his vote as that a Judge or any other tribunal should go to decide whether he had rightly exercised his franchise. He did not wish to occupy the time of the House by discussing that matter. It seemed to him that, if they were really in earnest about it, they do much better by proceeding to consider the Bill submitted to them by the Government, and not only by the Government, but by the careful Report of a very well-selected Committee of that House, comprising the most important Members chosen from all parts of the House, who gave great attention to that subject last Session. The Government when they brought in their measure last Session, did, indeed, proceed tentatively and cautiously, and it was true, as the hon. Member for Berwick-on-Tweed said, that that Bill, as originally introduced, preserved the right of the House of Commons to review the decisions which another tribunal might come to on these matters. What the Government had felt was, that it was important they should introduce a measure which would be efficacious, and which would also be accepted, and that it was of no use bringing in one that might look well, but that would be exploded. Therefore, they proposed a measure which, in the first instance, was very carefully prepared, to preserve the ultimate control of that House over these cases. But the moment that Bill was introduced, Member after Member rose and said, if they were to make the attempt they should do it on sound principles, and not seek to bring the decisions of the external tribunal under the review of that House; and when the Bill came before the Committee, there was found to be almost an unanimous opinion there that it would be better to intrust that jurisdiction to a tribunal which would command confidence, and with which they could leave the final decision. The Government accepted the decision of the Committee, and the Bill had been brought in in accordance with that decision. If they went into Committee he should be prepared to discuss the particular framework of the tribunal; but he thought, if the House was really in earnest in its desire to check bribery at 307 elections, that it would fairly grapple with the question, and that it was, he might almost say childish, and certainly futile, to be raising these objections as to an unwillingness to part with an imaginary privilege of that House which stood in the way of serious improvement.
§ MR. P. WYKEHAM - MARTIN
said, he approved of the suggestion of the hon. Member for Dundalk (Sir George Bowyer) that the old common law practice should be reverted to, and the evidence on election petitions be heard before a Judge and jury. It was proposed to inflict a very heavy penalty on a man for bribery—no less than making him an outlaw for seven years, which was a great deal worse than the punishment which would be inflicted on him if he had robbed a hen-roost. And yet the man might have been guilty of no crime at all. They proposed not to subject him to the opinion of the country—to which there was no objection—but to the caprice of a single individual. He did not, in the least degree, impute any impropriety to the Judge, who would, no doubt, try the case conscientiously; but the opinion of Judges on the moral guilt of bribery varied, for he had himself heard one Judge assert that, in his opinion, there was no moral guilt to be imputed to a candidate for the former borough of St. Albans, because it was the custom to give the voters £10 a head all round, therefore, a man gained the same whichever way he voted; and another assert that, in his view, it was bribery on the past of a candidate to subscribe to the local charities, and even to the local rifle corps. If, as was said by the right hon. Baronet, bribery was an evil which it was to the interest of the whole country that anyone practising it should be subjected to the penalty, then the accused person ought to be tried by a jury of his countrymen. So strong were the opinions of some men as to what was bribery, that he remembered on the occasion of one of his elections giving a dinner to his own father, and the solicitor who was the agent came in, and insisted, under the Corrupt Practices Prevention Act, that his father should pay for his share of the dinner. His father had to pay, and the solicitor saw a regular receipt given for it before he went away. Now, was that an act of bribery or not? This Bill ought not to be made a trap involving the most fearful penalties for what might be a perfectly innocent act. He was told a few days ago by a most eminent 308 counsel and solicitor, both of them opposed to him in politics, that frightful extortion might be committed under this Bill. The hon. Member for Bedford (Mr. Whitbread) said that time was a great element in the matter; but in twenty days a man might be able to make up something that would extort a very considerable sum from an unfortunate Member. There was his hon. Friend the Member for Nottingham, who would not give sixpence away improperly, and who would yet go the length of subscribing to the Nottingham Rifle Corps. [Mr. OSBORNE: Yes; or a dinner to my father.] Suppose a man went in twenty days after on election to his hon. Friend, and said, "Your Friend, Mr. Wykeham-Martin, has been down to Nottingham, through his great zeal for you, and he, having come down on your account, having walked out with you frequently, and being, in fact, your agent, has given a quart of beer to one of the electors." [Mr. OSBORNE: He would not care much for a quart.] In that case there would be no suspicion of bribing; but there would be the offence much more difficult to avoid, of treating. If the man in that case did not have matters squared with him, the Member's career might be cut very short, and he would be made an outlaw for seven years. His hon. Friend might not, under such circumstances, submit to extortion; but many timid Members might. If this Bill only had those offences which constituted bribery properly defined, it might be made a very valuable measure; but if not it might become a most iniquitous one. If Her Majesty's Government would satisfy him that the Bill was bonâ fide, and not to be made into an engine of tyranny and oppression, he would cordially support it; but if not, he should be inclined to vote not with the hon. Member for Berwick-on-Tweed but against the Speaker leaving the Chair.
§ MR. J. STUART MILL
Sir, if the question were solely between the Bill of Her Majesty's Government and the Amendment, I should have no hesitation in at at once deciding for the Bill. Not that it corresponds or comes up in all respects to my notion of what such a Bill should be. Nor do I believe that by any one expedient—and there is only one expedient in this Bill—we can hope to put down corrupt practices. If the House are in earnest in their desire to put down corrupt practices at elections—and I am bound to believe that they are, however little credit they receive for such earnestness out of doors—I apprehend they 309 will be obliged to have recourse, not to one, but to several expedients. Nevertheless, I think favourably of the Bill, because though it does in reality only one thing, that thing is a vigorous one, and shows an adequate sense of the emergency. It shows a sense that, in order to put down this great evil, it is necessary to go out of the common path. The truth is that, however possible it may be for Committees of this House to be impartial on the question to whom the seat shall be given—and I do not deny that they are often impartial in that respect, nor is it hopeless that they might be always so—nobody out of this House, and I think I may almost add in it, believes that so long as the jurisdiction remains in this House the penalties against the giver of the bribe will ever be seriously enforced. There are several reasons for this, some of which, perhaps, had better be understood than expressed. To confine myself to what may be said with safety; any tribunal that acts only occasionally as a tribunal, still more any person called for the first time so to act, as is often the case with Members of Parliament, has naturally a very strong indisposition to convict: and still more is this the case when those who have to decide are men of the same class, and the same general cast of feelings, and subject to the same temptations as the accused, and men of whom it must be said that hitherto they have been disposed to consider a scrape of this sort as much more a misfortune than a crime. I think that there is, after all, something in the objection to the proposal for giving the ultimate decision to a Judge not appointed by the House. There is some reason against their handing over their jurisdiction at once and for ever to a functionary appointed solely by the Crown; but there is an easy mode of getting rid of that objection—namely, by making the Act temporary. I am not sure that it should not be annual—that it ought not, like the Mutiny Act, to be renewed every year, so that there should never be any long time during which evil consequences need be suffered. And although I do not myself think that any evil consequences are likely to follow, still, as where there is a bare possibility there is always apprehension, I hope that, if the House adopts the Bill, the Government will see the propriety of introducing some limitation such as I have suggested. There is another point on which I wish to say something. Great objections appear to be felt to turning over these inquiries to the 310 Judges of the land. Would it not be a suitable way of meeting these objections if this tribunal were to be only a tribunal of appeal? Indeed, even if the House should not choose to adopt this tribunal — if they should keep these matters in the hands of a Committee of their own Members presided over by a legal assessor—and few, I think, will now deny that there must at least be a legal assessor—whether the House adopt this way, or whether they adopt the proposal of the Government—there are very strong reasons for making the tribunal only a tribunal of appeal. It is only by enquiry diligently made on the spot, that the truth in such matters can be discovered. I will make one suggestion, which will be found in a pamphlet which has attracted a good deal of attention, and has been read, I know, by Members of the Government. It is written by Mr. W. D. Christie, formerly a Member of this House, and who I hope may be so again. It is that there should be a local inquiry by a person of competent legal qualifications after every Parliamentary election, whether there is a petition or not. ["Oh, oh!"] Notwithstanding the dissent with which this proposition seems to be met, much may be said in its favour; for the very worst cases are invariably those in which petitions are either not presented, or, having been presented, are afterwards withdrawn, because it is found that an inquiry would be equally damaging to the case of the petitioner, both parties being tarred with the same brush. These are such flagrant cases that I am sure it must be admitted that, unless they are in some manner provided for, it will be impossible effectually to put down bribery. The officer whom I suppose to be appointed would proceed after every election to the spot, and there sit in public to receive any complaints that may be made. Of course it is a necessary consequence that this officer should have the power, where the complaints are frivolous, of throwing the expense on the complainant. And whatever expenses would not thus be met, should be defrayed by the locality—should be, in fact, a public charge. There is the more reason for appointing such an officer, as it is indispensably necessary that there should be an inquiry, not only into Parliamentary, but into municipal elections, which are the nurseries of Parliamentary bribery. Mr. Philip Rose, a Conservative solicitor, well known to many hon. Members opposite, has expressed an opinion on this subject which 311 is well entitled to attention. Mr. Rose says, in his evidence before a Committee of the House of Lords, that in a vast number of places, illegal practices are carried on at municipal elections by a regular machinery, which is also made use of at Parliamentary elections. He adds that great pressure is brought to bear upon Members of Parliament to contribute towards the expenses of municipal contests, because it is held out to them that £10 spent upon one of these is better than £100 spent in a Parliamentary contest; and that it is an axiom among agents—"We were able to return our municipal candidate, and we shall therefore be able to return our Parliamentary candidate." After such testimony, coming from such a quarter, it is plain that, if you really wish to put down bribery and corruption at Parliamentary elections, you must extend your interference to municipal elections also. In addition to the duties which I have suggested that the Commissioners of Inquiry should perform after each election, there are a number of other duties which might well be performed by those functionaries. They would naturally act as election auditors; and, in places from which no petition proceeds, their principal business will probably consist in scrutinizing the accounts which Members are already obliged to render, and which ought to be required from them with greater accuracy and completeness. Belonging to the same class from which revising barristers are taken, there will be an obvious propriety in their acting also in that capacity; and they might even fulfil the duties of returning officers. ["Oh, oh!"] Whatever functionaries of this description may be appointed, no fear need be entertained that there will be any want of work for them. If you feel that the control of all these matters ought not to pass out of your own hands, you might leave the nomination of these functionaries in the hands of the Speaker; but any difficulty on that score will best be got rid of by making the legal authority proposed by the Bill of Her Majesty's Government the tribunal of appeal. These are the suggestions which I have felt it my duty to offer in reference to the measure brought forward by the right hon. Gentleman the Head of the Administration. The reasons in support of them will be found at length in the very able pamphlet to which I have referred.
§ MR. SERJEANT GASELEE
said, however unpleasant the proposal of the hon. Member for Westminster (Mr. Stuart Mill) 312 might be to the House and to the country, which would have to pay for it, he thought one set of gentlemen, at all events, would owe him a debt of gratitude—he meant the revising barristers and barristers of seven years' standing. The scheme was so chimerical that he should not, at that time of night, waste the time of the House by answering it. There was to be, it seemed, a Court of Appeal, so that there would be two trials instead of one, which would perpetuate and increase the very objection now made to our present election tribunals, that they were so expensive. He quite agreed with the hon. Member for Bedford (Mr. Whitbread), who had given reasons which it was impossible for any man to answer, that so far from the dignity of the House being concerned in retaining its jurisdiction, it was rather a point of weakness and dissatisfaction throughout the country to see the present unsatisfactory way in which Committees discharged their duties. He was surprised to hear the right hon. Member for Kilmarnock (Mr. E. P. Bouverie) lately say that the issues before the Committees were so simple that any body of men could easily decide them. One of the most complicated questions was that of agency. If the House gave up their jurisdiction, as he thought they would be quite right in doing, they ought to transfer it to the highest possible tribunal. He had as great respect for the dignity of the Judges, with whom he was more nearly connected, as the noble Lord opposite, and he put it to him, whether it would not be possible to get this jurisdiction undertaken by them: When this House gave the Judges the appointment of revising barristers they did not object that that patronage would destroy their independence and render them political, he recognized no right in the Judges to decide upon their duties; if they objected to discharge them, the course open to them was clear. In the words of the excellent prayer which they used to repeat in College, there would always be a supply of men duly qualified to serve in Church and State. The duties of the Judges had been very much diminished of late by two Acts transferring a large share of the business which formerly came before them to the County Courts on the one hand, and to the masters and clerks on the other. And further than this, it was proposed that three Judges should be allowed to sit in banco instead of four. The fourth, when he did sit, was always an outsider; for the Chief Justice sat in 313 the middle, with a puisne on either side of of him, and the fourth was unable to communicate with anybody. With every possible respect for the Judges, they should be invited to re-consider their decision. It might be necessary to add two or three to the total number, and when a necessity arose for sending down a special Commission connected with elections all the names might be put together and a couple of Judges chosen by ballot. The Scotch Judges had very little to do, and they might be got to try the Scotch petitions. The Irish Judges also, his friends told him, had a great deal of leisure on their hands; and if they were called upon to take cognizance of the Irish elections, that would be only "justice to Ireland." With a little coaxing and encouragement on the part of the Prime Minister, backed by an expression of opinion on the part of the House, the Judges, he was convinced, might be induced to undertake the duties which it was sought to intrust to their hands.
§ MR. BOUVERIE
said, that one suggestion made by the hon. Member for Westminster, to the effect that any transfer of jurisdiction to an external tribunal should be temporary in its character and renewable from time to time, was well worthy of favourable consideration. The experiment was a bold one, and he entertained great doubts whether it would succeed. The House seemed hardly to attach sufficient value to the constitutional privilege which, to a great extent, it still retained of appointing its own tribunal to try those important questions concerning the seats of its own Members. The hon. Member for Rochester (Mr. P. Wykeham-Martin) had very properly objected to the proposal to place the trial of controverted elections in the hands of a Judge without a jury. For what was the present tribunal but a small jury selected with care by the House, and composed of men in whom it could trust, to try the question of facts, whether the sitting Member by his agents had or had not been guilty of bribery? Let the House bear in mind that this privilege had been only won from the Crown after a great struggle 250 years ago. It was thought then by our ancestors, who were as wise, perhaps wiser, than ourselves upon these matters, that it was essential to their independence that they should have the trial of these questions in their own hands. And if hon. Members thought fit to look back to the Great Remonstrance 314 presented by the House of Commons to King James at the commencement of his reign, they would find that this was one of the points most strongly insisted upon by the Commons. What was the proposal now made by the Government, with the sanction, apparently, of many hon. Members present, and with the approval of the hon. Member for Bedford (Mr. Whitbread)? It was to transfer to one person nominated by the Crown the trial of controverted elections. The nomination of the Crown now-a-days was the nomination of the party commanding a majority in that House. And when party spirit ran high—and they knew that Judges, before their appointment at any rate, had not been untainted with party spirit—how long did the House suppose that the decision of a single Judge sitting to try, without appeal, the character of hon. Gentlemen and of constituencies, would continue to be regarded with respect? However pure and upright a single Judge might be they might rely upon it that, after a time, there would be, rightly or wrongly, a weight of odium accumulating against his decisions, rendering it impossible for such a tribunal to continue. He did not say that the present tribunal was a perfect one; but, like a jury, it ceased to exist as soon as it had given a decision, and though that decision might be found fault with by people out-of-doors, no personal imputation rested upon those who had composed it. They were in the long run admitted to have acted honestly, even if imperfectly, and no odium attached to them. But would this be the case with a single Judge? If a gentleman of the long robe who had taken a warm part in Parliamentary conflicts became a Judge, as often happened, and if he had to decide absolutely upon the seat and the character of the Leader of the House or the Leader of the Opposition, would his decision be accepted as a pure and impartial one? He had spoken with eminent men of the legal profession on the subject; and they had urged with much force that such a jurisdiction involved an amount of odium and an imputation of party spirit which in the long run would assuredly destroy its weight and character. Lord Chief Justice Cockburn, than whom there was no more competent authority, had stated this objection very forcibly, showing that Judges were now free from such imputations because they had not to try questions of this kind, and the argument was no mere ad captandum one, but was entitled to great 315 weight. His hon. Friend (Mr. Whitbread) had urged that the plan proposed would secure a trial on the spot and an immediate decision; but if, as the hon. Member for Westminster had suggested, there were a fishing inquiry into every election, there would be little prospect of an immediate decision, and even if only returns that were petitioned against were inquired into, he questioned whether the dilatoriness of the new tribunal would not far exceed that of the present one. Indeed, one of I the advantages of Parliamentary Committees, whether with regard to election petitions or Private Bills, was that their administration of justice, however rough and unskilful, was rapid. A decision was given within a reasonable time, whereas, if forty, fifty, or sixty petitions had to be tried by two Judges in all parts of the country, with the host of witnesses which a local inquiry would produce, he doubted whether the proceedings would be completed in less than two or three years. He thought I that a great deal of the public feeling which existed as to the unsatisfactory nature of the present tribunal was due to a misapprehension. The popular notion was that a Committee sat to try the corruption of a constituency; but in truth the simple issue to be tried was whether the sitting Member had been guilty, personally or by his agents, of bribery or treating, and the amount of evidence adduced by the petitioners was generally the smallest which could be adduced with safety to their cause. A Committee had not to inquire into the general corruption of a constituency, over which, indeed, all parties were more or less interested in drawing a veil; and the simple issue presented to them was one which a jury of English gentlemen were perfectly competent to determine. Moreover, the expense, unless from an unforeseen accident the proceedings were unusually delayed, was not excessive. An inquiry on the spot would, he believed, be more costly—["Oh!"]—because the expensive part of the machinery would have to be taken down to the inexpensive part. He believed it would be dearer for the counsel and agents to go down from London than for the witnesses to be brought up. However that might be, he thought the local inquiry should be confined to the charge of corruption against a constituency; and if the Bill provided a permanent tribunal for the investigation of such charges, whenever made, without the cumbrous preliminary of an Address by both Houses to 316 the Crown, it would be much better than the present proposal. While trusting that the House would weigh well the importance of parting with a privilege wrung from the Crown by our ancestors, he would recommend the hon. Member for Berwick-on-Tweed (Mr. A. Mitchell) not to divide the House upon his Amendment, since it was not favourably viewed, and he thought that in Committee the practical difficulties of the Government scheme would be so evident as to necessitate a preference for something like the existing system.
§ MR. AYRTON
said, that the House was now discussing for the first time a measure of great importance, and, before going into Committee, they ought to know how Scotch and Irish petitions were to be tried. Were they to be tried in the same manner, or were they to be tried in Scotland and Ireland by the ordinary Judges? He would not attempt the disagreeable task of persuading hon. Members to retain an authority which they felt themselves conscientiously unfit to exercise; but he doubted whether this measure would improve the administration of the law. It had, apparently, two objects—first to deprive the House of its jurisdiction, in regard to the right of Members to sit in it, and secondly to repress electoral corruption. Now, would it not be better to pursue the latter object alone, without dealing with the question of jurisdiction? That question had important constitutional bearings; and its transference to the Judges might raise the question whether a seat had been vacated, or whether a writ had been properly issued, leading, perhaps, to a conflict between the House and an authority beyond its walls. It had been said that there was a law of the land as administered in Westminster Hall, and a law of Parliament administered in this House, and that a Judge thoroughly conversant with the former might be profoundly ignorant of the latter. Now, a Judge vested with this authority might enforce what he held to be the law of the land without taking due cognizance of the law of Parliament. So far from their being likely to repress bribery, he believed these provisions were artfully conceived for the purpose of encouraging bribery. ["Oh!"]. He would tell the House why. A Judge of Assize was to go down, with all the dignity of his office, to try a charge of electoral corruption. He would not go down like those ferrets, the Commissioners, who had no dignity to uphold, and who could pur- 317 sue their inquiries when and where they pleased, and ascertain the truth. The Judge was to try an issue technically raised under an Act of Parliament. Well, the parties prosecuting might not appear, and then the Judge could no nothing; his functions were practically at an end. In order to ensure that the Judge should have; as little as possible to do, what did the Bill as propose? It proposed that a man should be compelled to give such a security as would make him very unwilling to act at all. And, then, in order to insure a full disclosure of corruption, the Bill provided that, in the case of an inquiry into the general corruption of a constituency, the expenses of the inquiry should fall upon the inhabitants of the place. He could not conceive any expedients better devised to render the inhabitants indisposed to a full and searching inquiry. Besides, the Judge would confine himself to trying the one simple and narrow issue—the right to the seat; and, the moment a single act of bribery was proved, the Judge would be called upon to decide the question of the seat, as it was not for the interest of anyone to expose general corruption or to risk the disfranchisement of the borough. He was perfectly ready to go into Committee for the purpose of seeing whether they could discover a mode for putting down bribery and corruption, though he held that the Bill would wholly fail to effect the main purpose for which it was said to have been introduced. He recommended the hon. Member for Berwick-on-Tweed to withdraw his Amendment.
§ MR. WALPOLE
said, he believed the answer to the first part of the hon. Gentleman's speech was very easy—namely, that, by the very provisions of the Bill now before the House, Her Majesty's Government must almost of necessity bring in a measure which, regard being had to the different circumstances of the country, would establish as nearly as possible the same system for Scotland and Ireland. The objections taken to this Bill were of four kinds. The first objection insisted on in the Amendment, and still more strengthened by the argument of the right hon. Member for Kilmarnock (Mr. Bouverie), was that it was proposed to take away the jurisdiction of the House. But the Secretary of State for India had shown very clearly that the privilege supposed to belong to the House was clearly imaginary. It was very true, as the right hon. Gentleman had reminded them, that the House 318 had 200 years ago extorted this privilege from the Crown. But the state of things was very different 200 years ago from what it was now. Then it was the law and custom of Parliament to determine the right of the different electors to vote for the different places, and that law and custom of Parliament could not be interpreted by any authority but that of Parliament itself. But the moment they turned the right of election into statutory law, then it was no longer a question for the House of Commons to determine, according to the custom of Parliament, but according to the rules by which Courts of Law decide that and other questions. The question which was sent to a Committee upstairs to decide was not what the Parliamentary custom might be, but what the statute law was. Then, the second objection taken by the hon. Member for Westminster (Mr. Stuart Mill) was to this effect, that they were about to transfer to the Judges of the land a power which they might exercise in a manner not satisfactory to the House, inasmuch as they were appointed by the Crown. Such an objection as that would also have been very good 200 years ago, when the Judges were removeable at the pleasure of the Crown; but when once the Judges were made independent, they were as independent of the Crown as of that House in administering the law. The next objection was one that was urged by the hon. Member for Rochester (Mr. Wykeham-Martin), and there was some force in it—that they were giving power to a single Judge to try questions affecting the character of individuals, and to inflict upon them very heavy penalties. Now, the Bill dealt with two different subjects—the one a question of law, the other of fact. With regard to the question of law, that would be referred back under the Bill to more Judges than one. But with regard to the question of fact, it might be worth while to consider in Committee, whether in some cases it might not be the privilege and right of persons whose interests were affected to insist upon having the matter tried by a jury under the direction of a Judge. The last objection was raised by the hon. and learned Member for the Tower Hamlets (Mr. Ayrton)—namely, that they would by this Bill increase, instead of diminish, corruption and expense. But how could that be proved? The fact was, that if they sent these matters to an independent tribunal, where the Judges were not interested in the least degree in 319 upholding corruption or in screening it, the probability was that they would do more to put a stop to the vicious practices than if they were to keep the inquiry in the hands of those who might come personally into contact with the gentlemen implicated in the alleged crime, and who, therefore, might be disposed to be more lenient than a Judge of the land would be. On the subject of expense, his hon. and learned Friend could hardly be serious in arguing that to try these questions where the witnesses were not brought from a great distance, where large fees were not paid to counsel, and where constant adjournments would not take place, could be more expensive than it was at present where such inconveniences also necessarily occurred. It is true that by this Bill the alleged corruption of any particular constituency would not be investigated, because the issue would be raised not with regard to the general constituency, but with regard to the particular seat, and, in such cases, recourse must be had to a petition presented to that House, and the matter must be tried by a different tribunal when the charge of corruption was distinctly brought against a whole constituency. For these reasons he hoped the House would go into Committee, in order to constitute a better tribunal than that which they had been hitherto able to obtain.
said, he was anxious to say a few words on this Bill. He thought it was incumbent on those who wished to make a great change—to take away a privilege of 200 years' standing—to show distinctly that what they proposed would be an improvement, and that it would stop that corruption which it was its professed object to put down. Let them look to the tribunal constituted under the Bill. The House was now discussing a second proposal. The first proposal was for Judges of a certain standing; but now they had got to Judges of higher salaries and greater honours, and not only that, but his right hon. Friend (Mr. Walpole) said that they must have a jury also. But where were they to end? Now he, for one, was of opinion that they were departing from the old principles of our law and jurisprudence in putting crimes of such vast consequence not only to individuals, but to the country, upon the judgment of a single man. He cared not who that man was for; they could not show, in the whole range of our law, an instance in which issues of this kind were placed at the will of a 320 single man without appeal. For what were they doing? They were not only depriving the individual of a seat; but they were putting it in the power of this Judge to stamp with infamy for seven years, any man whom he might condemn honestly, no doubt, but perhaps mistakenly. If the case were a simple one, where there was no conflict of testimony, it was not of much consequence what kind the tribunal was, for justice was sure to be done. But in these cases there was always a great conflict of testimony from the mouths of witnesses not the most reliable; for, generally, the class of witnesses on election petitions was tinged with party feeling. He did not mean that they said what they knew not to be true; but in the heat of elections people acted under the influence of strong feelings, and the most contrary evidence of what took place was given. The proper tribunal for such cases was a jury; and if the House wanted to have justice done they would take care to have juries where men helped one another to come to a right conclusion. Juries would do justice where a single Judge would not do it. In the conflict of testimony a single man would shrink from coming to a hostile conclusion. And why did they say that cases where a a man's life, or character, or property was at issue should come before a jury, and not merely before a Judge? Well, if they were right in that, on what principle would they hand cases of contested elections over to a single Judge? At present a Committee of five was a jury composed of a man's equals, and that was the principle of our law from beginning to end. He thought it was incumbent on the Government to show that the Court which they proposed to establish would be better, more in consonance with the usages of this country, and more likely to stop corruption. He did not believe it would be. He gave the Government great credit for endeavouring to deal with this very difficult subject; but he did not believe that their plan would be an improvement on the existing system. If this were so, it would be better not to proceed. He did not think that abstract Resolutions were convenient. It would be far better to have no abstract Resolution at all on the matter. He was sure that the House would even give up a privilege if by so doing they could stop bribery and corruption; but he repeated that he did not think this Bill would have that effect.
§ MR. CRAUFURD
opposed the progress of the Bill, on the ground that it would, by its operation, entail as much expense as, or more expense than, was caused by the present system. He thought that it was due to the right hon. Gentleman who had just sat down and to the House that the Head of the Government should meet the objections which had been urged against the Bill. He begged, therefore, to move the adjournment of the debate.
§ This Amendment met with no Seconder.
§ Question, "That the words proposed to be left out stand part of the Question," put, and agreed to.
§ Main Question, "That Mr. Speaker do now leave the Chair," put, and agreed to.
§ Bill considered in Committee.
§ MR. AYRTON
hoped that before the Motion was agreed to the right hon. Gentleman the First Lord of the Treasury would state the intentions of the Government with respect to Ireland and Scotland.
§ MR. DISRAELI
We propose, when this Bill is carried, to introduce Bills for Ireland and Scotland analogous in their nature to this, though not exactly the same. We do not contemplate that it will be necessary to increase the number of Judges either in Ireland or in Scotland.
§ Motion agreed to.
§ House resumed.
§ Committee report Progress; to sit again upon Monday next.