HC Deb 23 February 1875 vol 222 cc755-72
MR. SERJEANT SIMON

rose to call the attention of the House to the operation and present uncertain state of the law relating to the trial of Election Petitions, and to move— That a Select Committee be appointed to inquire into the working of the 'Parliamentary Elections Act, 1868,' and to report what, if any, Amendments are necessary. The hon. and learned Gentleman said, that the subject to which he was about to call the attention of the House was one of considerable importance. It concerned the dignity of the House, its composition, its privileges, and the independence of its Members. Happily that was not a party question. It affected both sides alike, and every constituency in the kingdom, Conservative or Liberal. He need not remind the House how jealously they had claimed, and for centuries had exercised, the right of determining all questions relating to the return of Members to sit there. Until the passing of Mr. Grenville's Act, in 1770, those questions had been decided by the House itself. From that time down to 1868, when the present Act was passed, the jurisdiction over Election Petitions had been delegated to Committees appointed from time to time. In 1868, the House, after an inquiry before a Select Committee, and after lengthened debate, parted with that power, and transferred it to a new tribunal outside the House, created for that purpose, and independent of the House. He was not going to question the policy of that proceeding. It was probably too late to do so now; and if he said anything upon the subject, he wished it to be understood that it would be simply for the purpose of illustration, to show how the new system had worked, and what had been its necessary cones- quences. The right hon. Gentleman at the head of the Government, on a recent occasion, said that the Act of 1868 had, upon the whole, worked well, although, as he (Mr. Serjeant Simon) understood him, it was susceptible of amendment and improvement. He agreed to a certain extent with the right hon. Gentleman. The investigation of election cases by the Judges had the advantage of despatch, and of being free from any imputation of political partizanship; but, in other respects, he did not think that the Act had been a success. It had been always held, as a cardinal principle of constitutional government, that the legislative and executive functions of the State should be kept apart, and independent of each other, each in its own proper province, and that it was detrimental to both, and to the public weal, that they should be brought into conflict. Here, however, under this Act, the Judges of the land—the judicial branch of the Executive power—were brought into continual conflict with the House of Commons, and with popular opinion as well, upon matters of mere political partizanship. Their judgments were questioned and discussed—sometimes angrily discussed—both within and without the House; and what was the consequence? The dignity and authority of the Bench must be lowered, and public confidence in the administration of justice weakened by these unseemly conflicts. That was not a state of things that ought to continue, for however important it might be to have an efficient tribunal for the trial of Election Petitions, that was a small matter in comparison with the general administration of justice. The Judges, moreover, had been taken out of their proper sphere, and called upon to discharge duties, and to exercise functions entirely new to them, and wholly out of the range of those investigations to which they had been accustomed. The Act of 1868 required every year a rota of three Judges to be appointed in England, and three in Ireland. The last Parliament continued five years; so that in England there had been 15 different Election Judges, and in Ireland 9; making in all 24 tribunals consisting each of a single Judge, each sitting alone and apart from the others, independent of each other, without the opportunity of consulting one with the other in cases of doubt or difficulty; I and each of these tribunals so constituted was charged with the duty of deciding and determining questions of fact as well as of law; and against its decision, except in certain cases, there was no appeal. How was it possible to obtain, or to preserve, uniformity in the law; or to prevent dissatisfaction with decisions arrived at under such circumstances? What did the Judges themselves say on the matter? Before the Committee of 1869, Mr. Justice Willes, in reply to the question whether he would like to have four Members of Parliament associated with him, said— Two would be sufficient; they would afford the greatest relief to me personally, and would, I think, strengthen the tribunal. Mr. Justice Blackburn, before the same Committee, said— If two Members of Parliament would serve, it would greatly improve the tribunal, and be a means of relief to myself. The same learned Judge, in delivering judgment in a complicated election case, said, speaking of the difficulty of his position in having to decide alone upon the facts, that he had "to apply his common sense to the facts "before him; "but," he added, the "common sense of one Judge must differ from the common sense of another;" and he quoted the. famous saying of Selden, "that a standard of common sense on the part of Judges would be as uncertain as a measure of length of which the unit was a Judge's foot," and he then used these words—" I wish with all my heart that the Legislature would find out some test to relieve us from that uncertainty." He (Mr. Serjeant Simon) did not think it possible for the Legislature to discover such a test; but it had the power, which he hoped it would exercise, of so constituting the tribunal as to relieve the Judges from undue responsibility, and assist them in arriving at satisfactory decisions upon questions of fact while securing uniformity in the decisions upon questions of law. [The hon. and learned Member then proceeded to cite a number of decisions pronounced by Election Judges, in order to show that, as the law admitted of many diverse readings, it was necessary to amend it.] For instance, he said, a lawyer hearing the term "agent" would understand it to refer to a person appointed by another to act for him under a given authority, and whose acts would bind his principal only so far as they were in accordance with the authority so given. In election matters this was different. It had been laid down that, the relation between a candidate and his agent was analogous to that of master and servant, and further, that the candidate was not only responsible for the acts of his agent, but responsible even when the agent acted contrary to, and in direct defiance of, the instructions which the candidate had given him. Purity of election was, of course, the principle upon which the law so laid down was based; but it surely was a matter well worthy of consideration whether there ought not to be some limit to this doctrine. Indeed, it was too stringent to be always acted upon, and accordingly they found that the Judges themselves had endeavoured to relax its severity, as he (Mr. Serjeant Simon) would presently show. In one. case, a learned Judge hold that a candidate who had instructed his agent in these words—" Do not bribe; I will not be responsible for it," was nevertheless responsible, although the agent had positively disobeyed the instructions of the candidate. In another case, however, a learned Judge said, that where an agent acted inconsistently with the intentions and determination of the candidate, expressed in his public communications with the electors, the inference was, that the act was not authorized by the candidate, and he therefore was not responsible for them. Again, it had been decided to be immaterial whether the candidate was aware of the fact that his agent had been treating, and that even though the majority on the poll was not composed of persons treated, the seat was forfeited. In another case, however, a decision the reverse of this was given under very similar circumstances. With regard to treating, it had been laid down by a most distinguished Judge, that the intention was the test of a corrupt act, and that a thimbleful of drink given with a corrupt intention was sufficient to void an election. Another Judge, however, ruled that drink given by an agent in order to keep voters quiet who, during the election, had informed him that the other side were busily engaged in treating, was not corrupt, because it had not been given voluntarily, but under pressure, in order to keep the voters quiet; while a third learned Judge, in Ireland, held that treating, in order to be corrupt, must be proved to have operated so as to change the mode in which the elector would have voted. There were also judgments with reference to the payment of the rates of voters, and bribing at municipal elections in order to influence subsequent Parliamentary Elections, which it was very difficult to reconcile. In some instances, payment of rates by an agent had unseated the Member; in others, it had not. Bribery and treating at a municipal election shortly before a Parliamentary Election had not unseated a Member; while in another it had. Of course, there were differences in the circumstances of each case, but not such differences, he ventured to affirm, as might be expected where such opposite judgments had been pronounced. Then, with regard to money bribery, it had been held that a single bribe was sufficient to void an election, and that, too, even where the bribed voter voted contrary to his promise, and against the candidate on whose behalf he had been bribed. This principle of a single bribe voiding an election was applied in the Norwich case, and applied under very peculiar circumstances, for it involved another point of election law—namely, the influence of an act done at a previous election upon a subsequent election. In the Norwich case, Mr. Tillett was unseated, not for any act done at the election in question, or for any act done by him, or on his account; but because, at an election two years before, the agent of the candidate with whom Mr. Tillett coalesced, and who, after the coalition, acted for both, bribed a voter to vote for that other candidate, and he had voted for both. Mr. Tillett failed at that election, but stood again at the next vacancy, and was unseated upon Petition because of the bribe so given at the former election. The learned Judge who tried the case said he had— Arrived at a perfectly clear conclusion that Mr. Tillett really and in all sincerity desired to conduct all election matters in which he was engaged with the utmost purity, and free from anything approaching to illegality or bribery. It seems to some people hard," said the Judge, "that a single act of bribery should void the election, but, in truth, it is not hard at all; but where an act of bribery is committed, the election is tainted. It is no longer an election; it is utterly void. I consider," said he, "that Mr. Tillett was desirous of conducting the election of 1868 with the greatest purity, and I consider that the result is undoubtedly a cruel consequence of the Law of Election, which, however, is a necessary law—a law arising from the necessity of the case. Mr. Tillett was unseated. But what said another Judge in another case? He said, speaking of a single act of corruption— I cannot take it as a hard-and-fast rule that, whenever a case of corruption can be proved within the letter of the Act, therefore the seat should be declared vacant. Each case," he said, "must be taken with reference to the facts taken together, and he refused to unseat the Member. So also, in another case, another learned Judge refused to unseat a Member on the ground of a single bribe. To quote his words, he said— One would really be sorry to upset this election, unless it could be shown beyond a doubt that these acts of alleged bribery," (amounting in all to half-a-crown), "were done by the candidate. But it had been laid down already that a single bribe of half-a-crown was sufficient to void an election, oven though the act of the agent in bribing had been directly contrary to the express instructions of his principal, and in spite of them. With regard, also, to the influence of corrupt acts at a previous election upon a subsequent one, there was a case in which payments by a candidate after an election as "debts of honour," in respect of corrupt acts done at a previous election, at which he had failed, did not effect his return at a subsequent election, and the candidate retained his seat. With respect to treating, too, whore refreshments had been ordered at a public-house, and voters were regaled there, and afterwards driven to the poll to vote, the learned Judge, while he condemned these and other proceedings at the election, saying that "the course pursued shows that it was known to be wrong," and that he had no doubt of the treating, yet he held that "it was not corrupt, considering the customs of the people." He (Mr. Serjeant Simon) would ask, in all respect, could anything like a safe guide be found in these varying decisions? Payment of voters' expenses in going to vote has been a subject of not unfrequent consideration on Election Petitions, and one learned Judge very properly described it as a means of giving gratuities in the shape of excessive payment for travelling expenses. In a well-known case—"Cooper v. Slade"—the House of Lords decided that a promise to pay a voter's travelling expenses, conditionally upon his voting for a particular candidate, was an offence under 17 & 18 Vict. c. 102; but the Judges were divided in opinion as to whether an unconditional promise—that was to say, a mere promise to pay a man's expenses for going to vote, without specifying how he should vote—was a corrupt act. A statute was afterwards passed, the 21 & 22 Vict. e. 87, declaring that to provide a conveyance was lawful, but that it should not be lawful to pay any money, or give any valuable consideration to a voter for, or in respect of, his travelling expenses. It has since been held that, to provide a railway pass for a voter was not unlawful, while in another case the permission to tenants to shoot rabbits was declared to be corrupt, because rabbits had a money value. That was perfectly true; but it might occur to some that a railway pass had also a money value. It certainly had been so treated. In the Launceston case, the circumstances were these—The gentleman who was unseated, on coming in to the property, like his predecessors, reserved, or continued to reserve, the right of shooting the game on his estate. Complaints having been made by some of the tenants of the injury done by the ground game, he, like a good landlord, made arrangements for trapping them, and dividing some of the proceeds of their sale among the tenants who had been injured. This was some time before the election, and when the election was not thought of, and could not have been thought of. When the election came on, the rabbit grievance was brought up against him; and, finding himself unpopular, in a speech which he made during the election, referring to the rabbit grievance, he told his tenants to shoot all the rabbits, and do what they liked with them. "I am anxious," he said, "that every rabbit should be killed, and every tenant is at liberty to kill them as he can." The gentleman was unseated for giving this permission, on the ground, as he (Mr. Serjeant Simon) had said, that the rabbits had a money value. He (Mr. Serjeant Simon)did not presume to question the decision. He pronounced no opinion upon it. All he wished to say was this—and it was his chief object in referring to the case—that the decision had excited much attention, and much surprise, and dissatisfaction had been expressed at it, and that this would not have been the ease if the tribunal that pronounced it had been composed of more than a single Judge. So also of the Windsor case. Much astonishment and dissatisfaction had been expressed at the result of that case, and for the reasons assigned in the judgment. He (Mr. Serjeant Simon) did not feel it necessary to detain the House by discussing a question of casuistry as to whether, or how far, or in what degree, a good motive was tainted or destroyed by a bad one, or whether an illegal motive vitiated an act which of itself would otherwise be legal. He referred to this case simply as another instance of a class of cases as to which no amount of judicial learning or ability would render the decision of a single Judge satisfactory. He had hitherto referred to cases tried by single Judges. He had before him abstracts of 40 election cases; but he thought he had shown enough to satisfy the House that discrepancies were inevitable where they had a number of tribunals, each composed of a single Judge, and that confusion in the law must be the result where there was no general controlling power. He would refer to two cases more, however, in one of which the Judges of a Superior Court had differed among themselves, and where two Superior Courts had differed from each other. In the Galway case, the Court of Common Pleas in Ireland unseated a Member, the Chief Justice differing from the other Judges. The same question arose here out of the Launceston case. The question to which he (Mr. Serjeant Simon) referred was, as to the ineligibility of the candidate, and the time when, after certain acts, the ineligibility commenced. The Common Pleas of England gave a decision the very reverse of the decision of the Common Pleas of Ireland. They had thus two superior tribunals—the ultimate Courts of Appeal in each country—differing from each other, the one over-ruling the judgment of the other, upon the selfsame question. But he (Mr. Serjeant Simon)would offer a few remarks upon some points arising out of the defective provisions of the Act itself of 1868. When the case of the Tipperary Election was before the House in the Session of 1870, and the question of the eligibility of O'Donovan Rossa was discussed., it would be remembered that the right hon. Gentleman the late Member for Kilmarnock (Mr. E. P. Bouverie), raised the point whether it was competent to the House to entertain the question at all. He called attention to the 50th section of the Act, and contended that under that section the House had relinquished its power entirely over election matters, except where the Judge had made a Report. He (Mr. Serjeant Simon) took part in that discussion, and expressed his dissent then from the right hon. Member; but he (Mr. Serjeant Simon) was bound to say that his own opinion rested only upon construction. Now, an Act of Parliament such as that, and upon such a point, should be clear and definite; but here the vital part—so to speak, the very purpose and object of the Act—had been left an open question, and to be decided by a Resolution of the House. Another instance arose in the case of Mr. Mitchel's return, which was mentioned in the discussion in the House last week. According to the provisions of the statute, a Petition against a return, except in certain cases, must be presented within 21 days after the return of the Writ to the Clerk of the Crown, and he ventured to think that if some elector chose to say—" I thought when I was voting for Mr. Mitchel that I was voting for an eligible person; the House of Commons have declared that he is not, but I am not satisfied with their decision, I will appeal to a Court of Law," he might even now, the 21 days not having expired, petition the Court of Common Pleas in Ireland and have the question of Mr. Mitchel's eligibility decided there. In the debate last week, it was suggested by his hon. and learned Friend the Member for Oxford (Sir William Harcourt), that Mr. Mitchel might be returned again, and the question raised by another candidate's standing against him and petitioning for the seat. His own opinion, however, was, that they need not wait for that; that it was not necessary that another candidate should petition for the seat, but that it was open to any elector before the expiration of the 21 days to petition against the return. It might thus turn out that the proceedings of the House had been premature, and that a solemn Resolution of the House of Commons was in direct conflict with the solemn judgment of a Superior Court of Common Law in Ireland, charged too by Parliament with the jurisdiction over this very matter. Perhaps it might be said that the Court of Common Pleas would take cognizance of the Resolution of the House of Commons; but as that Court had, at least, a concurrent jurisdiction, it would not be bound by a Resolution of the House. Such a conflict as he had indicated might arise, and that entirely because of the defective provisions of the Act. Of course, it was not to be expected that the framers of an Act of Parliament should foresee every possible contingency; but as contingencies of the kind he had mentioned had arisen, or had been seen to be possible, and even probable, we ought to consider whether the statute should not be amended, so as to prevent the recurrence of similar difficulties. There was another point worthy of consideration. The House might consider the Report of a Judge, and in doing so might criticize or dispute the correctness of the Report, perhaps even question the conduct of the Judge; but was it desirable or becoming to subject the Judges of the land, every now and then, to angry comments and discussions in the House—comments, discussions arising generally out of disappointed party feeling, and very often from the mistaken views of those who questioned the decisions of the Judges? That was one of the great inconveniences of the new election tribunal. For his own part he professed no superstitious reverence for the Judges; but he might be permitted to say that, having passed the better part of his life at the Bar, he knew them well. They were high-minded men, devoted to the duties of their high office, and sensitive of the honour of the Bench as of their own individual honour as gentlemen. Their conduct and their character should not be lightly touched, nor their judicial acts questioned in that House, which he ventured to say was not competent to deal with such matters. Apart from what was due to the Judges themselves, upon public grounds, it was in the highest degree objectionable. He had now concluded what he had to say about the working of the Act. His object had been simply to point out the inevitable results—and only as inevitable results—the discrepancies and uncertainty in the law, and in the decisions arising out of the present system of a large number of independent and varying tribunals, composed of single Judges, called upon to decide both law and fact. But it might be asked—" What do you propose as a remedy for the evils you have pointed out? "What sort of tribunal would you have? It was not for him (Mr. Serjeant Simon) to provide a remedy. That was the duty of Her Majesty's Government. The subject was one specially within their province. There were also on the Treasury Bench several Members of the Government that brought forward the Bill of 1868, and caused it to be passed into law; and the present Prime Minister, he believed, had himself introduced it, if he was not the author of it. But if the Government should decline the task, then he would say that the proper course would be to refer the whole matter to a Select Committee. Without presuming to prescribe what should be done, he would throw out a suggestion or two which a Committee might fairly consider. A learned friend of his, Mr. Serjeant Pulling—a gentleman of great learning and ability—had devoted much attention to the subject when the matter was before the Committee in 1869, and in a pamphlet which he wrote, he recommended that the revising barrister, as assessor to the returning officer, should, immediately after an election, go down to the place, and hold an inquiry into the proceedings and deal summarily with all corrupt practices, and in certain cases where the return was questioned, the County Court Judge of the district should preside and inquire into the return along with them. Another suggestion which he (Mr. Serjeant Simon) would venture to make was, that the Election Judges should conduct the inquiry and simply report to the House, and that there should be a Standing Committee of its most experienced Members, to consider and determine upon the Report. The House would thus retain the power which it had so long exercised, and the Judges would be relieved from undue responsibility, while their Reports would be received with confidence and respect by the Committee, and by the House. Another mode was suggested before the Committee of 1869, and that was to associate two or more Members of the House with the Judges. This, perhaps, would be the best possible method under the circumstances. The Judges, or some of them, as he had shown, had borne their testimony in favour of this plan. It would greatly assist and relieve them in trying the facts, and the right of appeal, not limited as it now was, but given as of right, upon all questions of law, would have the effect of keeping the law straight, and preserving uniformity, which was impossible under the present system. One subject more, and he had done. He would refer to it but briefly. It was supposed that in transferring the trial of Election Petition to the Judges there would be great saving of expense, especially as to the witnesses, who had formerly to be brought from remote places, and kept in town while the inquiry was going on. But the saving had not been so great after all, for against it there was the expense of three new Judges, and the taking them, with their suite, to the town where the trial took place. This expense fell upon the country; and besides that, there was the expense of special retainers, and heavy fees to counsel, which fell upon candidates and others concerned in the case, and which were considerably greater than they were when the cases were tried in town. He had now only to say how sensible he was of the kind attention with which the House had listened to his remarks upon a subject which, however important and interesting to them, was necessarily of a very dry character. The hon. and learned Gentleman concluded by moving the appointment of the Committee.

SIR COLMAN O'LOGHLEN

, in seconding the Motion, said, he thought the time had come when the Act of 1868, which for the first time took away a jurisdiction which existed in this and every other Legislative Assembly, and gave to persons outside the power to determine the right to sit in the House, should be considered by a Select Committee. He himself last year gave Notice of his intention to move for a Select Committee on the subject; but he had not an opportunity of bringing it before the House. The Act was origin- nally introduced by the present Prime Minister as a permanent law; but on the suggestion of Mr. Mill, the late Member for Westminster, its operation was limited to three years. It expired in 1872, and had since been annually renewed by the Expiring Laws Bill without being submitted to the consideration of the House—a practice "more honoured in the breach than in the observance." He found that the number of Petitions tried under the Act since it passed in 1868 was 48 relating to English constituencies in the last Parliament, and 21 in the present Parliament, making together 69; while in Ireland 17 cases were tried during the last Parliament, and four in the present Parliament, a total of 21; and in Scotland during the last Parliament one, and in the present Parliament three. It was complained of the old system that it gave rise to great and unnecessary expense and inconsistent and uncertain decisions. After the speech of his hon. and learned Friend there could be little doubt that under the present practice the state of things had not much improved. They had not got rid of inconsistent and uncertain decisions, and the expenses equalled, if they did not in some cases exceed, those of former days. Last Session he moved for a Return of the taxed costs, and he found that the average costs of each party in England was from £1,000 to £1,500. In the Oldham case the taxed costs amounted to £3,036 3s. 6d., and in the Southampton case to £2,951 6s. 4d. In Ireland the costs averaged from £1,000 to £1,500. The taxed costs of the petitioner in the Galway case amounted to no less a sum than £6,789 17s. 2d. Then some of the decisions had surprised him a good deal. For instance, in the Windsor case the following passage occurred in Baron Bramwell's judgment:— As I have endeavoured to explain, I do not think that the considerations on which I am going to decide the case will be intelligible to any but lawyers. For an Election Judge to so decide a case was not a satisfactory administration of the law. There were also the contradictory decisions in the Galway and Launceston cases. In the first a decision was pronounced seating a Member which the Court of Common Pleas in England would not follow be- cause it did not think it was law. They had two decisions of Ultimate Courts of Appeal different ways, and there were no means, except by Act of Parliament, of declaring what was the real law. The question arose, what was to be done under the circumstances? He was strongly opposed to transferring the consideration of Election Petitions from Members of the House to the Judges, and he agreed fully in the Letter of the Lord Chief Justice, laid on the Table, in which he said that the House was imposing on the Judges a duty which would expose them to great odium and was foreign to the purpose for which they were appointed. Forty years ago a Committee presided over by Mr. Buller, the only surviving Member of which he believed was his hon. and learned Friend (Mr. Roebuck), came to the same conclusion—that duties of this nature ought not to be given to the Judges. Facilis est descensus—and he feared it was now too late to take away from the Judges the power of deciding in election cases. He thought, however, that every Election Petition ought to be tried by two Judges instead of by one; and if the two could not agree the election ought to stand, and the successful candidate should be allowed to take his seat. It would be said they had not a judicial staff for the purpose; but that was a mere question of expense. A very serious matter was that if the Judge reported against any persons for bribery or corrupt practices they were exposed to a species of outlawry for a period of seven years, and yet they had no appeal from his decision. They had not even an opportunity of being heard before the Judge who reported their names. A remarkable, and now historical case, that of Galway, was a good illustration of that hardship. In that case Mr. Justice Keogh reported against the Archbishop of Tuam and two Bishops for corrupt practices or undue influence, and an Order was made by the House that they should be prosecuted by the Attorney General. One of the Bishops was tried before a Judge and a jury, and he was acquitted, to the satisfaction of everyone who heard the evidence. Still, he remained disqualified, under the Report of Justice Keogh, from taking part in any election until the seven years had expired, and the Archbishop and other Bishop were in the same position. But there were other matters connected with the subject which also deserved attention. It was provided in the Act that in November of each year one of the Puisne Judges of each Court not being a Member of the House of Lords should be placed on the rota to try Election Petitions during the ensuing year. It was not usual for Puisne Judges to be Members of the House of Lords; it was possible, however, that some might be, but he presumed that this House thought that Members of the House of Lords should not interfere in the Election Petitions. And yet Lord Coleridge, a Member of the House of Lords presided over the Court of Common Pleas, and on an appeal to that Court might decide on the right of persons to sit in the House of Commons. He had called attention to this point, because it seemed to show some inconsistency in the policy of the Act. He thought there ought to be some Court of Ultimate Appeal from the decision of the Court of Common Pleas, and he suggested it should go to whatever Court might be established by Parliament as the Final Appeal Court of the Kingdom. In the case of the Drogheda Election Petition, Mr. Justice Barry referred a certain question to the decision of the Common Pleas in Ireland, and the Court being equally divided, was unable to give judgment. The case was remitted back to Mr. Justice Barry to give a decision as best he could, and he was obliged to do so. This was one of the most important questions which could be referred to a Select Committee; before it every one would have an opportunity of placing his views, and he trusted that a satisfactory conclusion would result from its labours.

Motion made, and Question proposed, That a Select Committee be appointed to inquire into the working of the 'Parliamentary Elections Act, 1868,' and to report what, if any, amendments are necessary."—(Mr. Serjeant Simon.)

THE ATTORNEY GENERAL

said, that the subject to which his hon. and learned Friend the Member for Dews-bury (Mr. Serjeant Simon) had drawn the attention of the House was one which had been under the consideration of Her Majesty's Government for some little time, in consequence, among other causes, of the circumstances to which the right hon. and learned Member for Clare (Sir Colman O'Loghlen) had referred. The House was aware that the Act of 1868 would expire at the close of the present year, and it would, therefore, become necessary to do one of three things:—to include it again in the Expiring Laws Continuance Bill—against which there was a strong expression of opinion at the close of last Session—or to bring in a separate Bill to continue or amend the Act, or to appoint a Select Committee to inquire into the working of the Act. The conclusion the Government had arrived at—and he might say they had done so before the Notice of the hon. and learned Member was placed upon the Paper—was, that, under all the circumstances, to proceed by the appointment of a Select Committee would be the best course. He understood from the observations of both his hon. and learned Friends that, in their opinion, the appointment of such a Committee should be made at the instance of the Government, and that it should be done during the present Session. He believed he might say that the Government would ask the House to appoint a Select Committee for the purpose of dealing with this question. It would be necessary, however, to consider a little more in detail the form of the Resolution by which the Committee should be appointed, and for this reason—that another very important Act connected with elections, the Act of 1854, would also expire at the close of this year. Under those circumstances, it would be undesirable that he should attempt to follow his hon. and learned Friends in discussing the general merits of the question. There was one thing, however, which he was glad to hear from the right hon. and learned Member for Clare, and that was that he had no desire to alter the character of the tribunal by which Election Petitions were to be tried—a tribunal which he (the Attorney General) thought had given general satisfaction. At the same time, there was force in the observation that the proceedings of the tribunal might be, in some respects, improved. He desired, however, to say that he did not concur in the opinion that there was so great a discrepancy in the decisions of the learned Judges as his hon. and learned Friends thought. A very difficult duty had been east upon the Judges, and he thought their decisions could be reconciled when the different circumstances which affected their opinions were taken into consideration. Whether those discrepancies did exist or not, as also the various circumstances affecting them, could be all inquired into by the Committee. If his hon. and learned Friend thought it consistent with his duty to withdraw his Motion, he would undertake, on the part of the Government, to move on a future day for a Select Committee.

SIR GEORGE BOWYER

entirely concurred in the Motion, but not in the remedies which had been suggested by the Mover and Seconder. When the Bill of 1868 was before the House, taking away the jurisdiction of the House, and giving it to a single Judge without a jury, he thought it was a very extraordinary and unconstitutional measure. How did the matter stand? If a man was indicted for an offence which would subject him only to a light fine or imprisonment, he had a right to be tried by a jury; and yet a Member of Parliament could be convicted without trial by jury, and by the Act of a single Judge, and subjected not only to the forfeiture of his seat in this House, but to grave disabilities. He had the greatest respect for the Judges; but the Judges were not trained or accustomed to try issues of fact without the assistance of a jury, and that accounted for the unsatisfactory nature of their decisions. With regard to the question of providing a remedy for the present state of things, he would remind the House that anciently the validity of returns of Members of Parliament could be tried at Common Law, on the return being traversed in the Court of Chancery, and sent for trial to the Court of Common Pleas. Moreover, there were two ancient statutes which bore upon this question—11 Henry IV. e. 1, and 6 Henry VI. c. 4—the former providing for an inquiry by a method resembling a coroner's inquest, whilst under the latter the inquiry was before a Judge and a jury at the Assizes; and it was a matter of grave consideration whether it would not be expedient to revert to the old principle of the Common Law and of the Constitution and provide for the trial of those questions as to the election of Members of Parliament before a jury. What he would suggest, was that where the return of a Member of Parliament was questioned in point of law, the Peti- tion should be heard and determined, not by the Lord Chancellor, as was formerly the case, but by the full Court of Common Pleas or the full Court of Queen's Bench; and that, where the return was questioned on matters of fact, the trial should be before a Judge and a special jury—a course which would be in accordance not only with the ancient law of this country, but with the principle that cases of this kind should be decided by the Commons, and that a man should be tried by his Peers. He did not wish to prolong the discussion now, but threw out the suggestion with the view of ventilating the subject.

SIR WILLIAM FRASER

recommended that the question as to the amount of deposit required to be made by petitioners should be taken into consideration by the Committee, as he thought that the present amount of £1,000 was totally inadequate.

MR. SERJEANT SIMON

said that, after the statement made by the Attorney General, he would readily withdraw his Motion. His only object was to procure inquiry, and he thought that object would be best attained by means of a Committee.

Motion, by leave, withdrawn.