HC Deb 25 April 1873 vol 215 cc977-90

in rising to call attention to the judgment of the Court of Common Pleas in Dublin in the case of the late Galway Election Petition, and to the state of the Law relating to the trial of Parliamentary Election Petitions; and to move— That, in the opinion of this House, the present system of trying Election Petitions is unsatisfactory and requires alteration, said, he should not make any long remarks on the judgment delivered in Galway by Mr. Justice Keogh, as it had already been fully discussed by the House and the country; but between Mr. Justice Keogh's judgment and that of the Court of Common Pleas in Dublin there was a wide distinction, and it was to the latter judgment that he should for the most part confine his remarks. He had not the slightest wish to challenge the right of the hon. and gallant Member for Galway (Major Trench) to a seat in that House, but thought it would have been much better if he had been elected by a majority of the constituency than seated by a decision of the Court of Common Pleas in Dublin. Now the fact was, that out of a constituency of 4,000, more than 3,000 voted for Captain Nolan, whilst only 658 voted for Major Trench, to whom the judgment of the Court of Common Pleas gave the seat, notwithstanding that he polled only a small fraction of the constituency. In the course of the last Session during the discussion on the Ballot Bill, the hon. and learned Baronet the Member for Reading (Sir Francis Goldsmid) moved an Amendment to the effect that when the candidate at the head of the poll was guilty of corrupt practices, and where the second candidate on the poll received one-third of the votes of the constituency, he should be declared to be the sitting Member. During that discussion several strong expressions of opinion were uttered by influential Members, and the Solicitor General said it was contrary to the practice and law of Election Petitions that any Member should be allowed to take his seat unless he had polled a majority of votes. He (Mr. O'Conor) was well pleased when he found that the Attorney General and the Vice President of the Council expressed simi- lar sentiments, and that the House, acting on that view, rejected the Amendment of the hon. and learned Member for Reading. Within two months afterwards, however, the Galway trial came up and shattered the Solicitor General's law, and the principle was introduced which the House had condemned and the Government had thought it undesirable for the House to adopt. Hitherto he had no opportunity of discussing the matter; beyond that he had expected to be told early in the present Session that the Government intended to bring in a Bill to make the Act permanent, which enabled the Judges to try Election Petitions. The Attorney General, however, informed him that he had no intention to do anything of the sort, and the only course open to him accordingly was to bring the subject before the House by moving the present Resolution. Under the Act of 1868 giving power to the Judges to try Election Petitions they were declared to be Judges both of law and fact. From the decision as Judges of fact there was no appeal, from their decision as Judges of law there was practically no appeal either; but under the 12th section power was given to them to reserve questions of law, if they saw fit, to the Court of Common Pleas. Now, it occurred, that in the Galway case, Mr. Justice Keogh decided that Captain Nolan was not duly elected, and further, that previous to the election, he was not a qualified candidate, but he reserved two questions for the Court of Common Pleas—first, were the electors who formed the majority fixed with sufficient knowledge of Captain Nolan's incapacity, and should they have acted upon it; and, secondly, whether, supposing the first question were decided in the affirmative, Major (then Captain) Trench was entitled to the seat? It was doubtful whether the first question ought to have been reserved at all, because the Act did not give the Judge the power to reserve questions of fact, but only of law, and accordingly it was the opinion of Chief Justice Monahan that the question whether the electors were aware of the incapacity of Captain Nolan ought not to have been submitted to the Court above, and the Chief Justice hoped that the legislature would take into consideration the Report in the Clitheroe case, and establish some principle for the Courts to go upon when such cases arose. The Judges having declared that they could not find in the decisions of Election Committees any principle on which they could depend, formed their conclusion upon the broad principles of common law, that if an elector, knowing a candidate to be disqualified, deliberately voted for him, he thereby threw away his vote. Nobody, however, believed, as a matter of fact, that the great body of the Galway electors, in voting for Captain Nolan, had the least idea that they were throwing away their votes; and it was, he thought, in itself sufficient to show that the Government ought to legislate on this subject when they remembered that they had in that House a gentleman who, without polling more than 650 electors, sat as the nominal representative of 4,000 voters, by virtue of the judgment of the Court of Common Pleas, the Chief Justice of which had declared him not entitled to the seat. It might, perhaps, be suggested—indeed the hon. and learned Member for Limerick (Mr. Butt) had given Notice of a Motion upon the subject—that it ought to be referred to a Select Committee, with a view to their recommending a remedy. To that he had no objection, so long as its reference to a Select Committee was not made a pretext for postponing legislation, for there was no question that legislation upon the subject was necessary; and required to be immediate. He could not help thinking, however, that whatever course were adopted in cases where reserved questions of law came before the full Court, and where the Judges were divided in opinion, there ought to be some further tribunals to which such cases should be submitted. There ought also to be a provision by which litigants in Election Petitions should be entitled to demand a case in points of law as a matter of right. There could be no doubt that the present system of trying Election Petitions was unsatisfactory, although he was quite prepared to admit that the Galway case standing by itself, or even in company with one or two others, would not be sufficient to justify such a change as that for which he was pleading. It could not, he believed, be pretended that the public placed much confidence in the decisions of the present tribunals, their chief effect, as had been well said, being to furnish the corrupt practiser with charts and compass by which to steer his vessel. Indeed, when the new jurisdiction was created it was protested against in the strongest manner by the Chief Justice of the Queen's Bench and by the other Judges; and certainly if any confidence were reposed in it now, that confidence had been of very recent growth, for when the Election Petitions began to be tried under the Judges, there were complaints of the new tribunal from every part of the country. No doubt, the old tribunals were not always free from suspicion of party influence, and in the change which had been made, so far as England was concerned, they had secured a tribunal which might be said on the whole to be free from that reproach. In Ireland, however, the tribunals were composed of strong party men—for it was owing to the services which they had rendered their party that they had attained their judicial position—and it was easy to understand how difficult it was, when a Judge had all his friends arrayed on one side and all his foes on the other, to avoid being swayed by feelings in favour of his friends. It was not fair to the constituencies, to the candidates, or to themselves that the Judges should be placed in such a position, for by the present system a single Judge was sent to decide both the law and the fact, and from his decision there was no appeal. That was too much power to give to give to a Judge in important cases like these. By the ordinary principles of law a single Judge was never allowed to decide questions of fact without appeal, and in matters of this important character it would be well to adopt the same principle. In short, he knew no branch of English law in which the same procedure was adopted as in Election Petitions. The other evening, on the discussion of the Railway and Canal Traffic Bill, objection was taken to the proposal to vest the Commissioners with power to decide on questions of law and fact, on the ground that no such power existed in any other tribunal. The hon. and learned Gentleman the Solicitor General, however, defended the provision, and pointed to what he termed the precedent of the Court of Chancery. The hon. and. learned Gentleman, however, forgot that the decisions of the Court of Chancery could be, and were in fact, constantly appealed from, and that they were bound down by rules of evidence and of procedure. Such was not the case as regarded the Election Judges. They might receive evidence that was not legal and reject evidence that was legal, and no means existed of revising their decision. This he submitted was a state of things which should not be allowed to exist if they wished the people of the country to have confidence in the decisions of the tribunal in question. From what he had said the House might imagine that he ought to conclude with moving that the old system of Election Petitions should be reverted to. He confessed that, in his opinion, that would be the best course; but he did not intend to make any such Motion, for he knew it would be hopeless to get the House to acknowledge that it had been in the wrong, by resorting to the method which existed previous to 1868. All he would do was to ask the House to consider carefully whether it would not be advisable to make a change in the principle of trying the Election Petitions by one Judge. It would be productive of the greatest possible advantage if some system were devised which would take from the shoulders of one single Judge the responsibility which now lay upon them, and he was fortified in that opinion by the views expressed by some of the Judges themselves. For instance, when Mr. Justice Wines was examined before the Select Committee in 1869, in reply to a question put by the hon. Member for South-west Lancashire (Mr. Cross) as to whether it would be convenient or satisfactory to the Judges to have four Members of Parliament associated with them on the trial of Election Petitions, he said—"I think two would be sufficient; four would be too many. It would be be the greatest relief to me personally, and would, I think, fortify the tribunal." Mr. Justice Blackburn replied to the same effect—" If two Members of Parliament would serve, it would greatly improve the tribunal and and be an immense relief to me." An effort therefore should, he thought, be made to carry out that Amendment of the law. He would also suggest that, as to questions of law, there should be an appeal, and that in case the Court of Appeal was equally divided in opinion, an appeal to a higher Court should be provided. It was important that time should not be lost in this matter. They were probably on the eve of a General Election, and no hon. Member could tell how soon he might find himself before an election tribunal, sought to be made responsible for the acts of some person who was no agent of his—acts which he would be the first to repudiate and condemn. He therefore hoped the House would concur in the terms of the Resolution he had the honour to lay before them.

Amendment proposed, To leave out from the word "That" to the end of the Question, in order to add the words "in the opinion of this House, the present system of trying Election Petitions is unsatisfactory and requires alteration,"—(Mr. O'Conor,)

—instead thereof.


said, he thought it a very undesirable course for the House to pursue, to proceed to condemn an Act of Parliament, unless they were prepared at the same time to amend it. I would have been far wiser if his hon. Friend the Member for Sligo (Mr. O'Conor) had brought in a Bill to amend the law by introducing a new tribunal, instead of proposing an abstract Resolution, the passing of which must weaken the authority of the House without effecting any change. At the same time, he concurred with his hon. Friend that it would be a hopeless attempt to try to bring back the old system of trying Election Petitions. That system was gone for ever, and there was hardly an hon. Member in the House who could wish to see it revived. The law of the House on this question had always been in a state of great doubt and difficulty, and the questions which had arisen in Committees of the House of Commons depended mainly upon the point whether a candidate was disqualified from the date on which his offence was committed, or whether his disqualification took place from the date of conviction. Although he (Mr. Collins) should have thought that the former view ought to have been taken by the legal portion of the House, yet on this point the most contradictory opinions had prevailed, as the cases of the Cheltenham and Horsham Petitions in 1848 testified. In that year two Select Committees came to conflicting decisions. In both cases the sitting Member had been guilty of bribery at a previous election, but the Cheltenham Committee, while unseating Mr. Berkeley, did not give the seat to his opponent, whereas the Horsham Committee not only unseated Mr. (now Sir) Seymour Fitzgerald, but declared his rival duly elected. When the point was again argued in 1853, the Clitheroe Committee, presided over by Mr. Milnes Gaskell, decided in the same way as the Cheltenham Committee, and in view of the contradictory decisions on record, recommended that the law should be distinctly defined. The last House of Commons, of which he was not a Member, unwisely evaded the responsibility of settling the question, though it must have been aware that it would continue to crop up. For himself, he did not think the candidate of the minority should in all cases be entitled to the seat, but it might be well, as suggested by the hon. and learned Baronet the Member for Reading (Sir Francis Goldsmid), to give it to him if he had polled a certain proportion of the constituency, for that would discourage improper practices. At present English Judges might decide one way and Irish Judges another. He hoped that early next Session—for, unlike his hon. Friend opposite, he did not anticipate a Dissolution prior to that time—the Government would introduce a Bill defining under what circumstances votes were thrown away.


who had a Notice of Motion on the Paper for the appointment of a Select Committee to inquire into the law on the subject, said, that two questions had been brought before the House in the course of the debate. One was the general question as to the unsatisfactory nature of the tribunal, a question which could very well be settled when the House would renew the power of the Crown with respect to Election Petitions which expired during the present Session; and the other, which was a subordinate one, related to the state of the law as to the votes given to disqualified candidates. On the second of these points he wished to say a few words. Twenty years ago he had been one of the Members of the Committee on the Clitheroe Election, in which case the Member returned was impeached on the ground that he had been guilty of treating at the previous election. After sitting three weeks the Committee found that he had been guilty of treating. The seat was claimed for the other candidate, and the Committee came to the decision that the candidate of the minority was elected. It was true the Galway case went on an- other principle. Chief Justice Monahan, in dissenting from the rest of the Judges of the Court of Common Pleas in Ireland, quoted the Report of the Clitheroe Election Committee with approval, and said it expressed the principles of the common law. When an elector went and voted for a candidate whom he perfectly well knew to be disqualified, he no more discharged the duty cast upon him by the law than if he voted for a dead person or the man in the moon, and his vote was thrown away. But, on the other hand, if the vote was to be deemed to have been thrown away, it should be shown that the voter had the disqualification distinctly in his mind, and his vote must have amounted to an act of wilfulness or perversity. To extend that principle of the law to doubtful cases, where the candidate's disqualification could only be deduced from a long inquiry into a variety of facts, appeared to him a perversion of the law. The decision of the Irish Court of Common Pleas in the Galway case was, he believed, disapproved by the entire voice of the profession both in Ireland and in England. The Court held not only that a large number of the voters must have had notice of the fact that there had been spiritual intimidation exercised, but that the person exercising it was the agent of the candidate. How, in many instances, were the electors to know that? Why, the elector who had a notice in English, telling him that the person for whom he was about to vote was disqualified, might not even know the English language. With a view to remedy such cases, the Clitheroe Committee recommended that a declaratory Act should be passed, providing that a vote should not be deemed to have been thrown away unless it had been perversely and wilfully given for a candidate who the voter knew could not sit in Parliament. He (Mr. Butt) had himself brought in a Bill for that purpose, but he failed to carry it owing to the opposition of his hon. and learned Friend who spoke last. It was, however, not too late to deal with the matter now, and he would suggest as an Amendment, that they should appoint a Select Committee, consisting of persons who were most likely to be acquainted with the law applicable to elections, to consider the existing law as to disqualified candidates. He did not know that he should be able formally to move such an Amendment; but he had no doubt that when the question was settled, it would be settled in accordance with the view of the Clitheroe Committee. As to the tribunal which was now vested with the power of trying Election Petitions, he thought that it was scarcely a satisfactory tribunal. He, therefore, concurred with his hon. and learned Friend who had just spoken in earnestly hoping that when the Bill for continuing the existence of this tribunal should be brought forward, it would be in such a shape that it would afford full opportunity for considering whether the tribunal could be improved, and that it would not be a mere Continuance Bill.


said, that two views might be presented of the rule of law which enabled a candidate who had a minority of votes to take the seat under certain circumstances. One was, that the power of seating a person who had only a minority of votes might operate as a great discouragement to improper practices; because without such power it would be very small terror to a person of great influence that he might himself be liable to be unseated for bribery, when he knew that the effect of that very bribery would at another election operate in favour of his nominee. He had stated last year, that it would be rather a strong measure, where a few had been bribed, to seat the candidate of the minority, who might not have the slightest knowledge of the bribery on the other side. The whole question really depended on the circumstances of the case. If there was any transaction about which it was the interest of the parties concerned to keep silence, it was bribery, nor had the minority in all cases an opportunity of knowing whether bribery had been committed or not. But if the matter of disqualification was or might fairly be inferred to be patent to all, a different rule was applicable. And here he must say, according to his understanding of the case, that Mr. Justice Lawson, who was one of the ablest, most learned, and most impartial of the Irish Judges, did not found his judgment on the circumstance that a paper was placed in the hands of voters alleging that a particular candidate was disqualified, but upon the fact that from what came before Mr. Justice Keogh there was reason to believe that intimidation, not operating in isolated districts or particular cases, but general, extending as embodied influence and affecting the whole country, was patent and notorious. It was on that, coupled with the fact that it was reported by the Judge that the agents of the candidate in the minority were unable to give notice of intimidation in every case, that Mr. Justice Lawson founded his judgment. He (Dr. Ball) was not prepared to say upon principle that any wrong had been done in the Galway case; and, indeed, the matter could not be dealt with upon abstract principle. All the Judges agreed upon principle, and that principle was this—that if there were disqualification accompanied by actual knowledge by the voter who chose to give his vote for the disqualified candidate, it was not unreasonable that the candidate of the minority should be seated. Three of the Judges drew the inference that all the elements were present which ought to go to make up disqualification—namely, notoriety, knowledge arising from the notoriety, prevention of actual service by violence at the moment the voter was entering the booth; and therefore they came to the conclusion in favour of the application of the rule. The other Judge did not, for he was not convinced that knowledge of the disqualification was brought home to the voter in such a manner that his vote should be considered as thrown away. In reality, therefore, the disagreement arose rather from an inference of fact than of law. Now, every tribunal was liable to error, and this liability would be just as great in a tribunal of five as of one, and all that could be done in law was to lay down a principle in itself correct, but the application of that principle by the Judges themselves could not be guarded from error. The other question, where the jurisdiction should be placed, was an important one. It had been suggested by the hon. Member for Sligo (Mr. O'Conor), that the Irish Judges were open to suspicion in this matter, because they reached the bench almost always through being Law Officers; but surely a man might be a Law Officer as well as a politician, and a politician without being a violent politician, and need not carry to the bench that ardour which distinguished young gentlemen who were just entering upon their career, to whom it might naturally appear a matter of import as to whether there was one hon. Member more or less on either side of the House. In fact, he had never heard any imputation upon the Judges in election matters, until the Galway Election case arose, when no doubt, by agitation, a very strong feeling was got up. Indeed, even before the Court of Common Pleas had decided what the effect of the judgment was, a meeting was called in Dublin by the highest religious authority in a certain denomination for the purpose of condemning the Judge. Then, again, there was no mode of testing or judging this matter as regarded the general question, for the judgments hitherto given, according to his experience, had given general satisfaction, and surely no one would say that the decisions under the old system had given general satisfaction, for those decisions had been most discordant and inconsistent. A question of this kind, however, should not be brought forward on the basis of an isolated case, nor by a private Member; it should be dealt with in connection with the whole system, and be undertaken on the responsibility of the Government.


thought that no one could complain of the hon. Members for Sligo (Mr. O'Conor), and Limerick (Mr. Butt), for bringing the question under the consideration of the House, for, whether rightly or wrongly, a large amount of public excitement had been created by it, and, indeed, in regard to the Galway Election Petition, he did not wonder at the attention of the public being directed to the tribunal referred to, neither did he regret it. If he should have said anything having the appearance of discourtesy towards his hon. Friends, he could assure them that it was totally unintentional on his part to give them the slightest offence, and he hoped after that explanation his hon. Friends would dismiss any such impression from their minds, but he must say he saw no ground for the present Motions. The first Motion raised the question of the tribunal which Parliament had elected to try these Petitions, and the second, the state of the law in regard to the disqualification of candidates. He would consider the last question first, because there was less to be said upon it. The law was perfectly clear, though the application of the law, he confessed, was somewhat difficult. It was not sim- ply because a vote had been given for a disqualified person that that vote should be thrown away. There must be also a knowledge in the mind of the voter, or an express notice of disqualification conveyed to his mind, of the party for whom he was about to vote being disqualified. Under what particular circumstances knowledge would be held to exist and express notice of disqualification conveyed to the voter was a question of a very different character. He could, therefore, understand how differently constituted minds could arrive at different conclusions. Speaking for himself, he candidly confessed he felt he could not have arrived at the same conclusion upon the facts of the case in question as had been arrived at by the tribunal referred to. That was, however, a very different thing from saying that the tribunal which had arrived at such a conclusion as that under their immediate consideration should be immediately put an end to or be discredited by the votes of that House. There was, moreover, no doubt that the principle was acted upon much further in the Galway case than it ever was before; but errors were incidental to all tribunals, and while they had perfect confidence in the uprightness, integrity, and impartiality of the Judges, they must submit to having important questions like these occasionally decided by a majority of one. The hon. and learned Member for Limerick (Mr. Butt) did not like the idea of a Member being seated by the majority of a divided Court. The Act, however, required the Judges to decide who should sit, and since Parliament had resolved, after deliberation, to require this from them, the position should not be hastily withdrawn from. Indeed, the same thing might have occurred as the result of an inquiry by an Election Committee under the old system. The existing tribunal was erected after great deliberation and argument in that House. It was constituted in the face of the remonstrances of many hon. Members whose opinions were justly entitled to great weight, and he must confess that it was constituted against his own judgment, and that he had considerable misgivings of its success. He thought, therefore, that there was great force in the protest offered to it by the Lord Chief Justice of England with all his great power and force of language. That tribunal, however, was set up, as late as 1868. Only one General Election had since taken place, and only one set of Election Petitions had been tried by those Judges, and whatever might be said of their decisions, nobody could charge those Judges with being either corrupt, partial, or dishonest in pronouncing those decisions. He said, therefore, from the insufficient nature of the experience they had as yet acquired, that there was no case shown for the alteration of the law, and he would be no party to restoring the jurisdiction to that House, which deliberately parted with it in 1868. But the hon. and learned Member proposed to amend the law by giving an appeal to the Exchequer Chamber. Now, the expense and delay attending such a proceeding would be very considerable, and as to an appeal to the other House, he frankly confessed he had an invincible objection to submit the question whether an hon. Member should or should not sit in that House to the decision of the other House of Parliament. On the whole, therefore, he did not see that any good would be got from the suggestions offered for the amendment of the existing tribunal; and though the question was a grave one, he did not think the House yet had any materials for a salutary change in the law. As to the appointment of a Committee for the purposes of inquiry, the law was perfectly clear as it stood, though its application to complicated facts was exceedingly difficult; and he did not think that any good would come from inquiry. Under all the circumstances, therefore, he hoped that the hon. Mover would not press this question to a division.


said, there was another point of view from which he thought the question ought to be regarded. The tribunal for the trial of Election Petitions was changed and the jurisdiction removed from the House of Commons for the express purpose of increasing the confidence of the public in the decisions arrived at. But would anyone say that the results of the Galway election had had any other effect than that of overthrowing all public confidence in the new tribunal, or that, rightly or wrongly, it had not produced a widespread impression in Ireland that the decisions in election cases depended very much on the political complexion of the Judge? The appeal to the Court of Com- mon Pleas was a farce. It was no appeal at all. The Judge who tried the Petition stated the case in such a form as to leave no option to the Court, and the majority delivered a judgment which all the lawyers in England, and in Ireland, almost without exception, declared to to be in manifest opposition to the declared wishes of Parliament, when it legislated on the subject. The point was whether sufficient notice had been given to the electors of the supposed disqualification of the successful candidate; but this, which was the essence of the case, never came before the Court of Common Pleas at all. The Judge found as a fact that the electors had notice, and then asked the Court above to decide whether the candidate who polled so small a number of votes should or should not have the seat. The Chief Justice took the constitutional view and decided against the claim, but the other three Judges thought otherwise. It was high time, therefore, that Parliament should step in and declare the will of the nation. If there had been an appeal on the facts as well as on the law it would have been another matter, and this scandal and absurdity would probably not have arisen. In reality what had to be decided was a mixed question of fact and law—namely, what constituted due notice of disqualification, and then what legal consequences followed if due notice had been given? But the first point never came before the tribunal at all, but was decided adversely to all reasonable theories of representation by the voice of one man in an impassioned judgment which had set the whole country in a flame. He regretted very much that the Government held out no hope that it would review the operation of the existing Act, and he believed that if there had been any Irish Law Officers in the House, who knew and could interpret the general feeling of the country a different decision would have been arrived at.

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.