§ Order for Consideration, as amended, read.
§ Motion made, and Question proposed, "That the Bill be now taken into Consideration."—(Mr. Attorney General.)
§ MR. MONKsaid, he had given Notice of a Motion to the effect that the Bill should be taken into consideration on that day three months, not in order to prevent the passing of this measure, but that he might express his sense of the conduct of the Government in having introduced in the last week of the Session a new proposal respecting the tribunal by which Election Petitions were to be tried. He objected, also, to the proposal in itself, which, he said, was not called for by the country. It was true that in Ireland there had been an outcry for more than one Judge to try Petitions; 872 but in England no one had asked for such an arrangement. A very considerable and influential minority of the Select Committee had reported against the proposal now embodied in this Bill; and last Session the Attorney General, on the part of the Government, declared himself strongly against it, on the ground that the present tribunal for the trial of Election Petitions had, in the main, proved satisfactory. He thought the House had a right to know what had produced this sudden change in the mind of the Government on this question within so short a time. When the Bill came on early this morning for discussion the Attorney General was not in his place, and the House had to go through the Bill in his absence. He could not imagine a more inconvenient tribunal for the trial of the matters of fact and law involved in an Election Petition than one composed of two Judges. It was to be regretted that in what purported to be a Continuance Bill debateable matter should have been introduced, and that at a period of the Session when the subject could not be adequately discussed. There appeared, moreover, to be no immediate necessity for the Bill, seeing that the Chancellor of the Exchequer had stated that before a General Election took place it would be the duty of the Government to re-distribute certain seats now vacant.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, he remained in the House until a quarter past 6 o'clock that morning, in the expectation that this Bill would come on; but then, feeling a little bit exhausted, he thought himself entitled to some repose. He had not withdrawn from the House, however, until, as he fancied, he had watched away the hon. Member for Gloucester (Mr. Monk) and the hon. Member for Liskeard (Mr. Courtney). The hon. Member for Gloucester, he could not help thinking, was a little too hard on the Government. It was admitted on all hands that the Corrupt Practices Act now in existence was not satisfactory in its operation, and he did not believe that there were many Members of the House who would be content to allow that Act to continue even for a year without alteration. In 1875, a Select Committee had been appointed to consider the subject, consisting of men of the greatest eminence, and they had 873 come to the unanimous conclusion that the tribunal for the trial of Election Petitions should be changed, and that they should be tried not by one, but by two Judges.
§ MR. MONKsaid, the Committee were not unanimous, while the weight of authority in the Committee was opposed to the change.
§ SIR CHARLES W. DILKEpointed out that the hon. and learned Gentleman had voted against the proposal himself.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)The hon. Member for Chelsea, he was afraid, confused him with some of his late Colleagues, for whom he had the greatest respect, but for whose opinions he could not be held responsible. It mattered very little, he might add, whether the Committee of 1875 was unanimous or not. They, at all events, recommended that the tribunal should be composed of two Judges. Now, he did not wish to retract anything which he had said on a former occasion on the subject, and he was still of opinion that a tribunal of three Judges would be more satisfactory than one consisting only of two; but, unfortunately, they had not a sufficient number of Judges to admit of the former proposal being adopted. The Government had, therefore, to choose between two propositions—to retain the tribunal consisting of one Judge, and in cases in which personal corruption was imputed to a candidate to give a right of appeal, or to appoint two Judges. At first, the Government were disposed to adopt the former alternative; but the proposal was one which the House did not seemed disposed to assent to, and the Government had deemed it right to reconsider their position, and to act on the recommendation of the Select Committee. Instead of being censured, the Government ought to have special credit for their reasonableness; because, knowing the Bill would not be acceptable to the House unless it were an Amending Bill as well as a Continuance Bill, the Government had concluded to adopt the views of the Select Committee, which had been endorsed by a majority of the House. He would admit that it would be better to act upon the principle that they ought to have the concurrence of two minds when a Member was unseated, and that the decision ought not 874 to depend on the opinion of the senior Judge only. The Government were quite prepared to strike out the latter part of the Amendment, so as to secure the concurrence of the two Judges. It was quite a mistake to suppose that two Judges never agreed upon a question of fact; two or three often agreed about facts in the Courts of Appeal, and five or six in the House of Lords. The Government had yielded to the arguments that had been adduced, and he believed the tribunal would give more satisfaction to all concerned.
§ MAJOR NOLANsaid, he thought he was one who might be allowed to speak on the question, as he had been unseated by one Judge, and condemned, in his opinion, to seven years' penal servitude. He thought it most unfair and unreasonable that one Judge should be allowed to reverse by his vote the decision in favour of a certain candidate by a large majority of any constituency; and, more especially, when the veto not only unseated the candidate who was at the head of the poll, but sent in another man who, possibly, had only one-fourth of the votes which the other candidate had. In his own case, he did not think if there had been two Judges that the same conclusion would have been arrived at; as he thought the restraining influence of the second Judge would prevent the other one from acting in an unfair manner, and would be of enormous advantage in the case of Election Petitions. In a case when, perhaps, a large number of people pronounced a verdict upon the Petition of a small number, a single Judge was sent down to dispose of the case. That Judge might be overpowered in every possible way; he might be asked out to dinner; ladies might strew his judgment-seat with flowers. He had seen that done himself, and could speak to it as a fact; and in many other ways the Judge might be so overpowered that he might think the opinion of the people was the opposite way, because he never met any of the exponents of the other side of the question. That could not take place if there were two Judges, because it would be perfectly ridiculous to send flowers to two Judges, and he only mentioned that as an illustration of what might be done. If a single Judge was sent his head might be turned; whereas the probabilities were that that would never 875 happen in the case of two Judges. There were also many other reasons why two Judges would be a great advantage. For instance, a single Judge might be attacked, and very powerfully attacked, by popular opinion; but it would be much more difficult to attack two Judges in the same manner. A single Judge might meet with a large number of political enemies in the trial of the Election Petition, and it was a very great temptation to a man in such circumstances; but the chances were very much against the same influences operating in the case of two Judges, for it would require a much more complicated combination of circumstances to produce the same effects in the case of two Judges. He had always objected to the whole of the Bill before the House from beginning to end. He had a very strong belief that no Assembly could get rid of its own right to pronounce on the election of its own Members, and he thought it was a dangerous thing for any Assembly to delegate that right to anybody else. He had said much the same thing in the House at 6 o'clock that morning; but he did not think it mattered much what was said at 6 o'clock in the morning on any subject. It might not do any harm now; but, in troublous times, it would be a very dangerous power to be allowed out of the House, and he should always raise his voice against it being so allowed to pass away to another body. He objected to the Bill, and he also objected to the absurd notion that the expenses of the elections were going to be decreased by the present Bill. He believed, on the whole, that the expenses of elections would be increased rather than decreased. There was another point in the old arrangement—a bill of particulars was always to be furnished, and no witnesses were to be allowed to be called except to speak to facts contained in the said bill of particulars. But the present Bill did not make the same provision, and that, he believed, would lead to additional expense. The man petitioned against did not know what he had to answer, and the petitioner was thus encouraged to go on, whether his case was good, bad, or indifferent. As a matter of fact, if the cases were in large towns, there could be no objection to bills of particulars being granted. He looked upon the Bill as not really diminishing ex- 876 penses, and, in addition, as open to a grave Constitutional defect. The whole Forms of the House were based upon the idea that one man was very likely to make a mistake; and, as two men were not so apt to err, he approved so far of the Bill, if it was necessary that it should be passed; and, on the whole, lie must thank the Government for this provision. He objected to the whole principle of the Judges trying Election Petitions; but, if they were thus to be tried, he would prefer to have two Judges. He had heard the Judges themselves object to this distasteful duty. There was this further advantage of the system of two Judges—that if they disagreed the Member remained seated. It was perfectly legitimate that the law should be thus laid down; because, if a large number of votes were recorded for any one man, there was a strong primâ facie case that that man should be the Representative of the constituency. When they got into the small boroughs of England with a few thousand votes, or a few hundred, it was quite possible there might be corrupt influence; but when they got into large constituencies, with from 200,000 to 300,000 of a population, then they might be perfectly certain that in 99 cases out of 100 the candidate who got a considerable majority was a good man, and had the good wishes of the majority of the constituency. If there was any fault to be found it would be with the small constituencies. As representing a very large constituency, he thought the Bill, now it contained what it did, would have done great good if it had been in existence eight or ten years ago, and he thanked the Government for the alterations they had made in it.
§ MR. BRISTOWEsaid, he had listened to the speech of the Attorney General with the greatest attention. It was good-humoured, and tempered with good sense; but the hon. arid learned Gentleman totally failed to explain how the 2nd clause, which he now looked upon as so very important, had never been in the original Bill. Who was the author of this clause, and who would pay the expenses which it would double? The constituencies had never asked for two Judges to try Election Petitions. He, for one, should feel it to be his duty to oppose that clause.
§ SIR CHARLES W. DILKEobserved, that at 5 o'clock in the morning a very important Amendment was introduced into this Bill at the instance of the Government; but that Amendment had been attacked by the Attorney General, and it was now to be withdrawn. The Bill itself only dated from Saturday last, and, since then, it had undergone the most extraordinary changes. The whole proceeding was absurd. He was in favour of the House exercising its jurisdiction in this matter, and not remitting it to Judges; but if the latter course wore adopted, he thought a case had been made out for two Judges, so far as concerned the trial of Election Petitions in Ireland. If the Amendment were pressed to a Division he should vote for it.
§ MR. COURTNEYreminded the House that they were called upon to consider a new Bill, and that at the end of the Session. The Government were, in fact, endeavouring to rush important legislation through the House. He protested against that course being adopted, and he further protested against the Bill in its present shape being passed. The Attorney General had offered to the House an humble apology for the abandonment by the Government of the lines which they had assumed at the beginning of the Session. A small majority of the House had expressed themselves in favour of the recommendation of the Select Committee; eight or ten Members had used arguments which had convinced them, and, therefore, they disregarded the opinions of those who had voted, though they had not spoken; they threw aside their own previous convictions, and adopted the opinions which had been expressed and the decision adverse to them of the House. They had originally been in favour of trial by one Judge; now they relegated the decision of questions of fact to two Judges, but for that proposal there was no precedent in the history of English jurisprudence; and he might add that, in the opinion of a very eminent English Judge, to increase the number would be to diminish the sense of responsibility of each Judge. If the two Judges happened to be divided in opinion, then—as the Attorney General had himself stated in March last—they would have an hon. Member sitting in that House who, in the opinion of one Judge, ought 878 not to have been acquitted of the misdeeds alleged against him. The Bill should pass as a Continuance Bill; but, while he was quite willing that in Ireland two Judges should try and determine Election Petitions, he did not think the Irish Members should endeavour to force a similar law upon England and Scotland.
§ SIR WALTER B. BARTTELOTpointed out that they might agree with regard to Elections that it was wise to have two Judges or not. One thing must be apparent to the whole of the hon. Members present. They could not have one law for Ireland and another for England. Much as he might agree with what the hon. Member-for Liskeard had said, he could not support the hon. Gentleman's proposal, which, if carried, would cast a great slur upon, and do an act of great injustice to, the Irish Judges. Perhaps some Irish Members had not the respect for their Judges which they ought to have. He, however, hoped that this slur would not be cast upon the Judges, and that the Amendment would not be pressed to a Division.
§ MR. O'CLERYsaid, English public opinion, and the views of eminent Englishmen who were experienced in these matters, wore in favour of the principles laid down in the Bill. The Irish Members supported the Bill, because it was ill the interests of the Irish constituencies that Election Petitions should be tried by more than one Judge. For his own part, he should be in favour of constituting the tribunal of three Judges; but, in default of that, he should vote in favour of the proposal of the Government.
§ MR. YEAMANremarked, that it was a matter of indifference to Scotland whether these Petitions were tried by one, two, three, or half-a-dozen Judges. There never were Election Petitions in Scotland. [An hon. MEMBER: Wigtown.] If there were, he was sure they were seldom heard of. He trusted the Scotch Members would support the Government. Two Judges were preferable to one, and three would be better than two.
§ SIR PATRICK O'BRIENsaid, Irishmen had confidence in their Judges; but all the circumstances pointed to the desirability of having two Judges to deal with Election Petitions in Ireland, and he saw no reason why there should not 879 be similarly constituted tribunals in England. If the staff of Judges was not sufficient for the duty, why let it be enlarged. With regard to the observations of the hon. Member for Dundee (Mr. Yeaman), Scotland was not an immaculate country. He had heard of a Petition in Falkirk, and two or three in Wigtown; and if he were to examine these matters as accurately as he examined matters of business, he would find that Petitions in Scotland, when compared with the numbers of the population and of elections, were as numerous as those which took place in Ireland. He failed to see the relevancy of the statements made by the hon. Member for Liskeard.
§ MR. M'LARENsaid, that although he had taken a great interest in all political matters in Scotland since the passing of the first Reform Bill, he could not say he ever heard any desire expressed for a second Judge at the trial of Election Petitions in Scotland. He could not agree with his hon. Friend the Member for Dundee as to Election Petitions in Scotland, for two had recently occurred in the Wigtown, and one in the Falkirk Burghs, and there might be others which had escaped his memory. Since the passing of Lord Grey's Reform Bill there had not been six cases of corrupt practices in Scotland. By taking more Judges than was necessary for the trial of these Petitions, the administration of justice was hindered; and if one Judge did as well as two—as he thought he did, except, perhaps, in Ireland—he did not see why two Judges should be thrust upon England and Scotland because Ireland thought two necessary.
§ MR. P. MARTINsaid, he could not understand why the hon. Member for Liskeard (Mr. Courtney) objected to the proposition. Candidates and their supporters had been subjected to severe penalties by the findings of a single Judge. Those findings were now irrevocable. Yet, in respect to several of these election trials, not only had public opinion strongly condemned the decisions made as to facts, but they had seen the legal principles on which the judgments had been founded disregarded and reversed. If the tribunal had not been composed of a single Judge, the scandal of the Galway case would not have occurred. Not unnaturally, great 880 indignation had been aroused by that trial and its results. Rightly, as be believed, very, many considered it now established, by the decision in the Launceston case, that not only had a majority of the Galway electors been disfranchised, but a gentleman named by the Judge had, as their Representative, sat and voted in that House who had no more right to do so than any of the doorkeepers. He failed to see, looking at the importance of the duty to be discharged, why they should not have two Judges. The hon. Member for Liskeard contended that in England opinion and authority were against the change. In his judgment, however, the weight of intelligent opinion had pronounced even in England in favour of the trial taking place before two Judges. ["No!"] He did not care for mere verbal statements thus made. He relied on the evidence taken before the Select Committee of this House, and the recorded opinion of the majority of the Members who sat on that Committee. Mr. Baron Keatinge's evidence was adverse to trial by a single Judge. It was stated that Lord Justice Blackburn concurred in the same view. Other witnesses experienced in these election trials, and men of the highest eminence, might be cited as in favour of the proposed change in the constitution of the tribunal. In Ireland the weight of opinion was in favour of having three Judges. The Irish Chief Justice of the Common Pleas, and other distinguished men, who knew all the surroundings of these inquiries, were in favour of the proposition now contested. It was a misapprehension to consider the dissatisfaction expressed with many of those decisions had been confined to those given by the Irish Judges. The Press and the public had in England been most severe in their comment and censure on those pronounced by English Judges. Loud complaints had been made in some five or six cases that their decisions had been contrary to common sense and reason. In trying Election Petitions, the very best aid that could be obtained was required. What question could be more difficult for a single Judge to determine than the complicated question of agency in such cases? Indeed, there was no precedent in our jurisprudence for such powers as were now given to a single Judge in Election 881 Petition cases. As to the argument that the expense would be increased by having two Judges, it must be remembered that the Judges were paid by salary, and that the only extra cost of having a second Judge to try the case would be the trifling charge of £10 or £15 for lodgings, &c. In mercy, then, alike to the candidate, the constituency, and the Judge, they ought to strengthen that tribunal.
§ Motion, "That the Bill be now taken into Consideration," agreed to.
§ Bill, as amended, considered.
§ MR. MARTEN moved the omission from Clause 2 of words providing that where two Judges differed the opinion of the senior Judge should prevail on certain matters.
§ MR. CHILDERSasked the Government to explain what would be the effect of a difference of opinion between the two Judges on the question of the withdrawal of an Election Petition.
§ THE CHANCELLOR OF THE EXCHEQUERunderstood there were certain rules that would be followed in a case of that sort which would really govern the decision, just as when the Chairman of a Committee gave a casting vote he gave it according to certain principles.
§ MR. MARTENsaid, that when the words which he had just moved to omit were proposed that morning, the hon. Member for Liskeard (Mr. Courtney) took notice that they were open to exception, and he had himself felt that they were liable to objection. The insertion of words giving, where two Judges were sitting together, the senior Judge such a power, would be entirely without precedent. They had an example in regard to the proper course to be adopted where two Judges sat together in the late Court of the Lords Justices of Appeal, where no such power was given; and if the two Lords Justices differed, from the necessity of the case there was no decision, and the matter fell to the ground. In respect to an Election Petition, they had, first, the decision of the constituency itself, then the application of the Petitioner to set aside that decision, and if that application were referred to two judicial minds it would be necessary to have the two Judges concurring on every material point to set aside the verdict. The 882 right hon. Member for Pontefract (Mr. Childers) asked what would happen if the two Judges differed in regard to the withdrawal of the Petition? Such a contingency was very improbable, though, perhaps, not impossible. But the answer was very simple. That would occur which always occurred when an application was made to the Lords Justices of Appeal or to two Judges of the High Court of Justice. If the two differed, the result was that the application was refused.
§ SIR PATRICK O'BRIENsaid, that the one thing desirable in this tribunal was that the two Judges should be of equal jurisdiction. If the senior Judge were considered the higher, public confidence in the tribunal would be taken away.
§ MR. CALLANheld that while Election Petitions should be tried by two Judges, the question as to the withdrawal of a Petition might properly be left to the decision of a single Judge.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)thought it was somewhat unfortunate that the words which provided that upon certain matters the opinion of the senior Judge should prevail had been inserted. His hon. and learned Friend the Member for Cambridge (Mr. Marten), who was so careful in his consideration of Bills, was of opinion that the words ought to be omitted, and had moved an Amendment to that effect. The Government came to the conclusion that it would be better those words should be struck out, and that, in all cases, they ought to have the decision of two minds. In cases where the two Judges did not agree, the result would be in favour of what he might call the defendant.
§ MR. HOPWOODthought the Government ought to make an explicit declaration of their views on this part of the Bill.
§ SIR HENRY SELWIN-IBBETSONexplained, that the opinions expressed had induced him to think that it would be setting up a principle foreign to our procedure to give this overruling power to the senior of the two Judges in hearing Election Petitions, and he believed the House would do well to accept the clause proposed by the hon. and learned Member for Cambridge—a clause which, he believed, would enact the 883 regulations which he thought ought to be performed.
§ MR. BRISTOWEthought the discustion showed that they did not know the real author of the clause.
§ MR. MONKagreed with the Secretary to the Treasury that the words under consideration had better be left out. He appealed to the Law Officers of the Crown for their opinion as to the reading of the clause. Two Judges were to be substituted for one for the hearing of any application for the withdrawal of an Election Petition. In case they differed, was their divergence of opinion to be interpreted as favourable to the withdrawal or to the maintenance of the Petition?
§ THE SOLICITOR GENERAL (Sir HARDINGE GIFFARD)said, the question was not difficult to answer. Two Judges were to be substituted in the place of one. If, then, these two Judges did not agree, then there would be no decision. In cases where Judges had to make a Report, or to certify on whatever might be the judicial act, then, if the Judges differed, the legal effect would be that the act would not be done.
§
Amendment proposed,
In page 1, after the words "so differ," in the Amendment made in Committee in line 23, to insert the words "and if they differ as to an application for the withdrawal of a petition it shall be allowed to be withdrawn, and if they differ as to the statement of a special case to the court leave shall be given to state such case."—(Mr. Benjamin Williams.)
§ Question proposed, "That those words be there inserted."
§ SIR PATRICK O'BRIENobserved, that for many years the principle had been, when Judges differed, that the matter in dispute should remain in statu quo, and he wished to know what reason could be assigned "for the totally new departure proposed by hon. and learned Gentlemen?
§ MR. P. MARTINsaid, that he should vote against any Amendment that proposed to do what the public complained of—namely, to increase the cost of procedure by allowing appeals and the statement of cases for the Superior Courts.
§ MR. CHILDERSremarked that hon. and learned Gentlemen seemed to be in direct opposition with one another as to the result when the Judges differed. Several sets of mutually destructive 884 reasons had been given by hon. Members who had discussed the question; and he, therefore, appealed to the Government to allow the insertion of words that would remove the whole difficulty.
§ MR. SPEAKERsaid, the more convenient course would be that the Amendment proposed by the hon. and learned Member for Cambridge (Mr. Marten) should be put first, and then the hon. and learned Member for Carmarthen (Mr. B. Williams) could propose his Amendment.
§ Amendment (Mr. Marten) agreed to.
§ Amendment (Mr. B. Williams) negatived.
§ MR. COURTNEYproposed an Amendment, limiting to Ireland the operation of Clause 2, which provided that two Judges should try Election Petitions in England, Scotland, and Ireland. It appeared to him that only the Irish Members were favourable to the change involved in the law.
§ Amendment proposed, in page 1, line 26, at the end of Clause 2, to add the words "Provided always, That this Clause shall apply to Ireland only."—(Mr. Courtney.)
§ Question proposed, "That those words be there added."
§ SIR GEORGE CAMPBELLsaid, that Scotland having plenty of Judges, he saw no difficulty in getting two to try each Election Petition there; but he did not see in England where the Judges were to come from, their number not being so large in proportion to the work as in the North.
§ MR. MONKargued that there were no additional Judges available in England for this duty, and that the appointment of three additional Election Judges would entail an expense of £20,000 a-year on the country.
§ THE ATTORNEY GENERAL (Sir JOHN HOLKER)said, it was proposed that there should be two Judges instead of one, and he had come to the conclusion that even after a General Election the condition of business would not be such as to interfere with the progress of such trials. There was no ground for the Motion of the hon. Member for Liskeard. In fact, the hon. Member had not based his Amendment on the grounds of inconvenience. The hon. Member objected to 885 this alteration of the law. He entirely disapproved of the tribunal. He said, in fact, that a tribunal in the shape of two Judges was a bad tribunal, and they did not want such a tribunal in England; but he said—"Let us have such a tribunal in Ireland," his idea being that it would suit Ireland. He hoped the Irish Members would not concur in that proposition.
§ MR. HOPWOODquestioned whether the judicial strength, especially after the General Election, would be sufficient to carry out the Government suggestion. The measure was a sham, and it was well known that it could not become operative without extra judicial assistance.
§ MR. MORGAN LLOYDconsidered it monstrous that there should be no right of appeal, when there was appeal in suits involving sums of £50. He would prefer that there should be three Judges.
§ Question put.
§ The House divided:—Ayes 23; Noes 95: Majority 72.—(Div. List, No. 233.)
§ Bill read the third time, and passed.