HL Deb 02 May 1842 vol 62 cc1358-73
Lord Brougham

My Lords, I rise to move that your Lordships do send a message to the other House of Parliament to ask for the communication from them of the reports of their committees upon three elections, the merits of which had been referred to those committees to try. The votes of the other House show, that the committees have made their reports, and also that the House of Commons has ordered the printing of the minutes of those committees. The minutes of evidence have been specially reported to that House, and I wish to ask for the communication of those reports and minutes so received. I feel that it is the more necessary for me to call your Lordships' attention to the subject matter of these reports, in consequence of a notice which I gave last Session, and which I believe met with the concurrence, generally speaking, of this House, that I should move this Session for the appointment of a committee to consider the bribery laws— to consider whether the practices which have lately prevailed were in violation of those laws, and to consider of measures which might be fitting to adopt for the purpose of better enforcing them. I am frequently asked why, in redemption of the pledge I then gave, I have not hitherto called the attention of your Lordships to this subject. My answer is, that I then stated, until progress should be made by the other House in the various election petitions which appeared by the votes to be pending, and which were to be taken into consideration this Session, it would be inexpedient to enter upon the inquiry. Chiefly for this reason, while the inquiries were carried on before these committees alio intuitu, I deemed it improper to enter upon the inquiry here. Already, however, great progress has been made in these inquiries, and it appears that in three cases committees have reported generally against the places where the election has been had. It appears that in one of these instances, namely Ipswich, there is a general report that bribery has prevailed — that in another, namely Sudbury, there is not only a general report of bribery having prevailed, but a strong and, I believe, 1 may accurately add, an unanimous recommendation by the committee to effect the disfranchisement of the borough on account of the grossness of the bribery and of its universality. I must call the attention of your Lordships to the great importance and gravity of this question. It is in contemplation to discuss the propriety of the disfranchisement of boroughs, in consequence of the prevalence of male-practices. I must now, therefore, remind your Lordships of the very remarkable circumstance which took place in this House, as connected with this question, some years ago, namely, in the year 1834. A bill reached your Lordships from the other House, laying down a general course of procedure in all such cases, constituting a particular form in which Parliament should proceed, with a view to the disfranchisement of a borough, when a charge of general bribery was made. It is necessary that your Lordships' attention should be called betimes to this subject, because we know well that the course of proceeding in Parliament has, generally speaking, been this—that while we in this House have for the first three or four months of the Session little or no legislative business to transact, towards the end of one sitting there comes up from the other House an overwhelming bulk of measures of the greatest importance, the discussion of which, and the decision upon which is of necessity crowded into the space of a few weeks, and indeed, I should speak more exactly, if I said of a few days. When, therefore, I see notices in the House of Commons that such a measure as the disfranchisement of a borough is likely to be adopted on account of bribery, and when I know that these measures, all teeming as they are with interest, will come up to us late in the Session, and on the very eve of Parliament being prorogued, I think I have said enough to satisfy your Lordships that the sooner you direct your attention to the subject generally the more expedient for the country, and the better for the due discharge of your Lordships' public duties. Let me, then, proceed to remind your Lordships of what took place in this respect and with this view in the year 1834. The House of Commons then sent up to your Lordships a bill which had passed through their House apparently without any very great attention having been paid to the details— which had passed through that House without any very great attention having been paid to the inevitable consequence of passing that measure; for it amounted to this, that if a charge of general bribery should be made before the Commons, and if a committee, chosen as the old election committees were under the former act of Parliament, should be empannelled to discuss the charge, and should report that, in their opinion, the charge was true—then, not by a bill, not with all those safeguards against mistakes, which are provided by the various stages of a bill, but simply and only by two votes, one in the one House of Parliament, and the other in the other House, and then by a joint address to the Crown from the two Houses, the disfranchisement of the borough should at once be effected. I had then the honour of occupying that seat, now so much more worthily filled by my noble and learned Friend, and I at once said it was impossible such a bill should receive the concurrence of this House, for it would come to this, that by the power of a majority on the side of the party in power, all the great boroughs in England might, by a single vote of the House on each, be disfranchised in a day. My noble Friend opposite (Duke of Wellington), and my noble Friend now occupying the high situation of Governor-general of India, concurred in the view I took, that it was impossible for your Lordships to entertain a measure of that kind. The noble Duke then considered the subject, and made a suggestion of the greatest value, and of the very highest importance; and he requested me to aid him in putting that suggestion in a legislative form. 1 accordingly prepared a set of clauses by way of amendment or alteration of the bill on my noble Friend's plan, but with some additions. For this I claim not the least credit to myself, for the principle was my noble Friend's, not mine; and ninety-nine parts out of every 100 of what was valuable belonged to him. The clauses thus framed which I suggested were re-referred to a select committee up stairs, which sat day after day discussing them. Some material alterations were made in the course of those discussions, and the clauses were ultimately adopted by the committee, reported to this House, and agreed to by your Lordships with an unanimity that was singular upon a subject so likely to excite diversity of opinion, and singular as considered with reference to a subject of so much importance. I believe, that every one of the clauses was adopted by the select committee without a division, and they were likewise agreed to in this House without a division. The whole being passed, the bill, as thus amended, was returned to the other House. In that shape it was rather a new bill than an amended bill, I admit. It was on that account exposed to the same objection that I had originally taken to the measure as sent up from the House of Commons, that by a single vote interests of such magnitude were to be disposed of: for by the parliamentary form of proceeding the Lords' amendments would have been agreed to by a single vote of the other House, and the bill would have received the royal assent and become law with the usual discussions in all the stages. I could not therefore complain, that the House of Commons postponed the consideration of the bill for that Session, on the ground that it was a totally new measure; but I will venture to say, that at the time those amendments were taken into consideration in that House, no objection was started to the plan suggested by my noble Friend, framed by me, adopted by the select committee, agreed to by your Lordships, and by you sent to the other House. No objection was taken to the principle. The measure was merely postponed. I deeply lament, that that postponement has continued up to the present time, and I would fain hope, from the attention given by the other House to the measure, thus framed and remitted to them, that some such proposal will now be brought under their consideration. It was a large as well as a salutary measure. It was a measure of great novelty in parliamentary proceedings. I think it was framed upon the soundest principle, and I believe, that the adoption of the principle would work a great and important good. It appointed, that as often as a charge of general bribery should be made against a place, the matter of that charge should be referred to a committee—but a committee consisting of Members of both Houses of Parliament; a joint committee of twelve, seven of them being commoners and five being Peers, to form as it were a jury for the trial of the question. But this was not all. The jury was to sit and try the case under a presiding judge, that judge being one of the judges of England, and not a Member of either House of Parliament. And to that remedy, in my clear and firm opinion will Parliament in the end be obliged to come, after they shall have perhaps made one or two more experiments to carry on such enquiries within their own body, without other assistance, and after those new experiments shall have in the future, as they already have in the past, and up to this hour, signally failed. It was then provided, that sitting under the presidency of the judge—that judge to rule all questions of law, and to dispose of all questions of evidence subject to an appeal to the other judges of Westminster-hall, and a return being made of their opinion, affirming or reversing as the case might be, the first judgment—a special verdict should then be found by this court, consisting of the judge and mixed jury, and that the verdict, setting forth all the facts, should be returned as a record to both Houses of Parliament, and should be conclusive and binding on both Houses, as to all the facts of the case, in whatsoever proceedings either House might think fit to institute against the borough in respect of the charge. Then a bill was to be brought in, and that bill was to run the course of all other legislative measures: it was to be read a first, second, and third time, to be committed and reported, end passed. All the safeguards were to be observed and kept in the case of that particular bill as in the case of all other bills, but the facts of the case were to be concluded by the return of the judge and parliamentary jury, and upon those facts the act of the Legislature was to be grounded and passed. After once more expressing my opinion of the importance and value of that measure, I hare now to mention why, in another point of view, I feel it to be necessary that your Lordships at present should attend to this matter. We have been called upon for our assent two several times within the last few years to bills sent up from the other House to regulate the proceedings of committees on controverted elections. These bills more affect the other House than your Lordships. The Crown and the Peers have the least immediate, the least near, and the least direct interest in these matters. The Crown and Peers, however, have that interest which renders the consent of both necessary to an enactment. Much discussion took place upon the passing of that act. My noble and learned Friend who proposed it in this House, with his usual ability and distinctness, with that clearness and that force with which he always states his case, brought before your Lordships the whole matter, and obtained your unanimous concurrence. He then stated the grounds upon which a change, and a great change, in the law of election petitions was deemed desirable by the other House. Two years after, or it might have been in the year immediately following, some alteration was made. I agreed with my noble and learned Friend that this measure was an improvement in the law as it stood. I thought with him that the measure was well devised, and there was every ground to hope for good effects resulting from it. It is natural that we who were the friends of that measure—it is becoming that you who adopted it on our recommendation— should look to its working with a view to ascertain whether we were wrong in the expectations we then formed, and then raised, with a view to ascertain whether experience has, told in its favour—with a view to discover whether it has been acted up to—with a view to discover whether it has had fair play—with a view to ascertain whether the fault, if fault there be, were with us, who expected good things from the bill if we should pass it, or in those who were to work out the measure, and whose working it differently from what they have done possibly might have produced the results we had a right to expect. Therefore it is that I think it becomes your Lordships to see what has been done under the bill, to which at the desire of the other House you gave consent. Again, another measure passed last Session at the desire of the House of Commons. That House sent up a bill which, setting forth in the preamble that the existing law was not sufficient against bribery at election, laid down, in four several sections, new plans for the purpose of more effectually preventing it. Three out of four of those sections proved to be of such a nature, to be liable to such innumerable objections, to be so inconsistent with themselves, to be so repugnant to all principle, and so opposed to the fundamental rights of the people, to be so utterly at variance with the sacred rules which guide the administration of justice, that I found no difficulty in prevailing upon your Lordships to reject those three enactments. But the fourth section stood upon different grounds. It appeared to be well contrived for its purpose, and to be a contrast to the merits or rather demerits, of the others. Accordingly, after due consideration, and some hesitation on the part of a noble and learned Friend of mine, whom I now see in his place (Lord Abinger), we passed it and it became the law of the land. It is, of course, natural that we who last Session passed that measure, with a view to the elections which were then immediately afterwards to take place, and it is also expedient, that we should see how that measure has worked, and above all how the House of Commons, who sent up the measure, to part of which we gave our consent, but from the residue with held our concurrence, have acted under that measure. I think it is in vain to deny, upon the proceedings which the votes of the other House of Parliament show, that both these measures have been at least unfortunate in their fate in that House; that unhappily—I speak with all deference and respect for the other House— that unhappily certain opinions have prevailed, and certain views been entertained and acted upon, which have not tended to give to the measure which your Lordships, at the desire of the House of Commons, assented to, a reasonable chance of producing any very considerable good, or perhaps I ought more correctly to say, of producing any part, however small, of that benefit which it was fondly hoped the measure would realize. The plan which we were desired to consider, which my noble aud learned Friend discussed with me, and which, upon mature consideration, became law at our instigation—the plan chalked out by the other House, and sent up to your Lordships, consisted of the appointment, at the beginning of each Session, of six Members of that House, who were to form a committee of selection. These six Members were to choose, in the first place, a panel of chairmen; and in the next place, to choose in each particular instance six Members to form a committee, which six Members, sitting under one of the chairmen, were to dispose of the merits of an election petition. This is, in short, the measure that we agreed to, and from which I think we bad a right to expect great improvement in the former election practice. The manner in which the House of Commons in its wisdom thought fit to act under this bill, is as follows:— The Speaker—I now speak from the votes—the Speaker names six members as a committee of selection. The votes of the House of Commons give us now an opportunity of ascertaining the course which the Members of that House think it their duty to pursue. It has pleased the House of Commons of late years to print, as a part of their votes, the names of all the Members who vote in each division. This is a great, and many think, a salutary innovation upon the practice of former times; some look upon it as a hurtful one, but that is a question upon which I will not now stop to enter. The names of all Members that vote on each division are printed, and their constituents, and your Lordships, and the world at large, have thus the means of knowing, on the face of the votes themselves, how every Member of the House of Commons votes on every separate occasion. From this practice there necessarily follows a classification of Members—for, if you find on those votes the same Members always voting together, you naturally conclude there is some peculiarity distinguishing them, some diversity whereby they may be known from others and classed in an order of arrangement. When you see that the same Members are always recorded as voting for the measures propounded by the Government of the day, and that other Members as invariably vote against the measures so propounded, it is not without foundation that an opinion gets abroad that there is such a thing as party, and that party considerations influence the votes of the other House. Now, I find that the Speaker, called upon to name those six Members as a committee of selection, chooses three Members who are always found ranged among supporters of the Government, and three Members who are as invariably found ranged among its opponents; and to leave no doubt that it is with some such view that the arrangement is made, the names on this committee of selection are placed alternatively; the first is a Government Member, the second an opposition Member, the third a Government Member, the fourth an opposition Member, the fifth a Government Member, and the sixth an opposition Member. This committee of elisors, as our ancestors would have designated them, are then called on to elect six Members to form the election committee, and in this they proceed on the same principle on which the selection of themselves was made. Fifteen committees have already been chosen, and I find that each consists of three ministerial and three opposition Members, also chosen alternately—the first a ministerial, the second an opposition Member, the third again a ministerial Member, and so on; and that no doubt may remain, to prevent even the possibility of a doubt, for what purpose, and with what view the choice is made, twelve chairmen are selected, not alternately indeed, but on the same principle as the committees themselves, namely, six ministerial and six opposition Members are chosen as chairmen. The consequence of all this is, that each committee is composed of four members of the one party, and of three of the other party; and you have thus a court of justice of the highest order, a court of judicature appointed to consider questions of the highest importance — questions, compared with which ninety-nine cases in a hundred, nay, 999 cases in every thousand, of those disposed of before our judges and juries by the common law of the land sink into utter insignificance, whether we consider the gravity of the stake, or the vehemence excited by party spirit. A court of judicature is formed with four judges belonging to one party, and three to the other, all solemnly sworn, well and truly, upon their sacred oaths, to try the merits of the petition before them. I cannot help regarding this as a most astounding course. What is it more or less than to say that they suspect that I those men act, not according to their oaths but according to considerations of party? There must be suspicion, for nothing less can account for such a system of choice. But if you promulgate an opinion that you believe men capable of such offences—if you begin by blasting their characters, you go more than half way towards verifying your suspicion. I do not, of course, apply my remarks to such men as these; but in the case of other men, if they are once marked out as suspected, they will generally be prone to earn the wages after paying the price; they will not be suspected for nothing. I should have liked to hare seen skilful and learned men placed in the chair of these committees, and when I gave my vote for the bill I expected that such men would have been selected. I expected to see the committees presided over by gentlemen belonging to the profession of the law and distinguished by their legal knowledge. Is the House of Commons to derive no benefit from the copia peritorum—from the presence within its walls of the most skilful members of the profession? Yet, I cannot find in the lists of these committees any chairmen whose names are known in Westminster-hall. There may be among them men who are known there, but then they must have been known there before my time, or must have become known since my time. It might be a loss to so many eminent men were they chosen to preside over committees of the House of Commons; but if they felt they had a public duty to discharge, I am persuaded they would be the last men to refuse to discharge that duty. I now come to another question. In how many cases has the decision been according to, and in how many cases has it been contrary to, the party politics of the majority? There have been ten cases of contested elections, which have led to the unseating of the sitting Members. I know it is an opinion in Westminster-hall, that if a case is to be tried by a prejudiced judge, it is better that it should be tried by one judge than by seven. As the case now stands, the party that has an adversary in the chairman knows that that adversary is backed by three other political adversaries; whereas, if that chairman sat alone, he would be likely to feel a heavier degree of responsibility, and would be more likely to give the case a full and impartial hearing. I throw out this merely as an opinion entertained in Westminster-hall, and come now to the question I have asked, as to the result of these selections. There have been ten committees on contested elections that have ended in unseating the sitting Members, and in seating the petitioners. I apply again to the test of the votes of the House of Commons to ascertain in how many cases the decision has been according to, and in how many cases it has been contrary to, the politics of the majority. In nine cases out of ten, has the decision been according to the politics of the majority. I have no doubt that in all those cases the committees came to a conscientious judgment; I do not for an instant suspect that the politics of the majority interfered in any one case with the decision of the committee. For aught I know the committees may in every instance have been unanimous in their decision—there may not have been a single division among them; but it has often been said, and it cannot be too often repeated, not only should justice be pure, but she should also be unsuspected, and I would ask' any man who calmly considers the structure of those courts of justice, the manner in which each of them is studiously formed with a view to the party affections of the judges, the fact that the judges are themselves parties to the actions they have to try, and that in nine cases out of ten the decisions have been according to the party views of the majority—I would ask those who have calmly reflected on the recorded votes of the House of Commons, whether the decisions to which these committees have come, can do otherwise than create, I will not say a doubt, but at least some hesitation as to the perfect purity of the tribunals? In these committees it has been customary, time out of mind to deliberate with closed doors. I do not object to that, but the committees have now gone a step further; because they have concealed their votes when the House has published the lists of its decisions. They give their decisions publicly, but without letting it be known how the different Members of the court have voted. They may, in every instance, have been unanimous, or they may have decided every case by the narrowest majority of four to three, according to their party politics. Nor do they assign any reasons for their judgment. It would be some check upon the committee, if, as a matter of course, the minutes of all their proceedings were printed, and made known. The judges of the land do not hold it to be inconsistent with their duty, or beneath their dignity, to let their countrymen know on what grounds they form their judgment; the judges do not think it inconsistent with their duty, or below their dignity, to assign reasons for their judgment, for it is on reason that they expect the authority of their decisions to rest. Not so these committees, with three party men on one side, and three party men on the other, and with a party chairman to preside over them. Though in each question that comes before them some party interest is involved, that is some interest of them, the judges, they wrap themselves and the motives of their decisions in mystery, and would deem it derogatory to their dignity if they were to let the world know how they have voted, or if they were to give any reason for the manner in which they have voted. This system, I have not the least doubt, is one that cannot last. It will become necessary that these cases be dealt with judicially, by tribunals composed of persons unconnected with party. So long as the judges continue to be Members of the other House of Parliament, so long it will be absolutely necessary that this anomaly should continue—namely, that we shall have a court, all the judges of which are parties in the cause, yet against whose judgment there is no appeal. My Lords, I have no hesitation in stating it as my opinion, that this must be the result of all experiments having for their object to leave the decision of these cases to a committee of the House of Commons; and to those who say that the House of Commons will never part with their jurisdiction in such matters, I would answer that this remark might have been made previously to the year 1770; but since that year, when the Grenville Act was passed, an act that was perhaps one of the greatest improvements ever made in legislation, the assertion is no longer to be admitted. That very Grenville Act took away the jurisdiction from the House of Commons, and vested it in a separate court—a court of which, it is true, the Members were all to be Members of the House of Commons; but the House of Commons itself from that time parted entirely with its jurisdiction. I have thought it my duty to call the attention of your Lordships to these matters, and, through your Lordships, the attention of the other House of Parliament. One thing more must be stated. By the act which governs these committees, they were called on to report whether the sitting member or the candidate had any knowledge of the acts of bribery charged against his agents. Now, we have had three or four cases—at any rate we have had two—in which general bribery is declared to have prevailed, and in both cases the sitting members have been unseated, but no statement has been made as to whether the members or the candidates had or had not any knowledge of the bribery practised on their behalf. I will not now detain your Lordships longer on this subject, but I affirm that it will become the duty of your Lordships, as guardians of the purity of Parliament, as guardians of the existence of our mixed constitution—I say it will become your absolute and bounden duty to prosecute this inquiry, and to investigate the profligate bribery and corruption that have prevailed; and with this view I shall now conclude by moving,— That a Message be sent to the House of Commons to request a communication of the evidence taken before the Sudbury, the Ipswich, and the Great Marlow election committees.

The Lord Chancellor

said, having been aware that his noble and learned Friend was about to bring his motion before their Lordships, he thought it his duty to make some inquiries in another quarter, the result of which led him to imagine that the noble and learned Lord was not likely to get anything by his motion. He hoped that he had said enough, without entering into particulars, to induce his noble and learned Friend to withdraw his motion.

Lord Brougham

referred to a similar message sent to the House of Commons in 1837 as a sufficient precedent to justify the present motion. The noble and learned Lord was understood to intimate, however, that he should not persevere with his motion after what had fallen from his noble and learned Friend on the Woolsack.

The Lord Chancellor

had made inquiry on the subject, and he believed it was not likely that an answer would be given to the message proposed, such as would please the noble and learned Lord, or forward the object he had in view.

The Earl of Wicklow

could not understand how they were to discuss and deliberate on any measure sent to them from the other House for correcting these evils which had been so ably detailed by his noble and learned Friend, unless they were in possession of the information upon which that measure was founded. He trusted, if any such measure should be sent to them from the other House, that his noble and learned Friend would bring forward his motion again.

Viscount Canterbury

said, that his noble and learned Friend, in taking the report of the committee in reference to fictitious votes in the year 1837, asked for by that House, as a precedent for his present motion, must recollect that that committee had been appointed with the view of getting information upon which legislative proceedings were to be taken. He quite agreed with what his noble and learned Friend stated respecting the Grenville Act; and that the House of Commons could not interfere in those election committees by suggestion, by instruction, by commentary upon their course of proceeding, or in any way whatever. It was true there were special cases in which a motion has been submitted by a committee to the House, and there the matter has been before the House. The minutes of the committee have then been before the House with a view to some legislative proceeding, which it was the opinion of the committee itself should be resorted to; but the House has never concurred in such a motion without an express intention of proceeding in that particular case by legislative proceeding. Then, if the House of Commons proceeded to disfranchise, or to deal in any other way with a corrupt borough, that could only be done by a legislative measure, and such a measure must come up to that House, and with it all the information of which the House of Commons was in possession with relation to it. The same thing took place with respect to the report on fictitious votes. The committee were instructed to give information to the House of Commons as to the existence of the practice, and with a view to a legislative cure. It was clear that that House must concur, or the cure could not be effected. His noble and learned Friend had said, that it might be a useful check upon the proceedings of election committees if their minutes were always laid before the House, and were accessible to the country. It might be so, but before that could be done there must be an alteration of the act of Parliament for that purpose. The House of Commons felt great jealousy and delicacy about interfering with the powers of its committees given by act of Parliament; and he was thoroughly convinced, judging from an experience of no short duration whilst he had the honour of filling the Chair of the House of Commons, that, if a message was sent by this House to the House of Commons, it would receive a most civil reply, stating, that the House would send an answer by messengers of its own, but he was thoroughly persuaded that, whatever might be the duration of the Session, they would never find time to despatch their messengers. He thought that the matter of the message which his noble and learned Friend meant should be sent was utterly insignificant in comparison with the magnitude of the statement he had made, in great part of which he entirely concurred; but he did not think, if they got no further answer to the message, that his noble and learned Friend would find that he had advanced one single step in the great undertaking which, he rejoiced to hear, his noble and learned Friend had loaded himself with. He thought, in a matter of such immense public importance, if only confined to the great evil which, as his noble and learned Friend had said, was demoralizing the people, who were led to think that if it produced no danger to them there was no positive harm in it, that it was a sort of equitable juggle; he thought that any thing that could remedy so great an evil was important. But in checking this evil, his noble and learned Friend knew the great jealousy of the House of Commons as to their privileges, and as to their right to be judge of their own law, and nothing would be more wise than, in any thing which this House might do, to carry the House of Commons with it in such a great and beneficial measure. He should, therefore, deeply regret if any step should be taken which might excite a feeling of jealousy in the other House, or in any way break in upon the cordiality subsisting between the two Houses—than which, nothing would help his noble and learned Friend more through the rugged path he would have to travel. He, therefore, strongly urged him not to press his motion.

Lord Brougham

said, that no authority could be higher than that of his noble Friend who had just spoken j but in this case a legislative proceeding had commenced. "We report bribery," said the committee, "and we recommend you to disfranchise the borough." A legislative proceeding had, therefore, commenced. The noble Viscount, however, said, "Wait till the bill comes here." But that was not done in the fictitious votes case. He was inclined to believe that at the time the Commons sent up to their Lordships the report upon fictitious votes, no intention had been announced of introducing a legislative measure on that subject. Certain it is that the report of that committee in 1887, was committed by the Commons one week after it had been made. However, he should yield to the opinions of others, and not press his motion.

Motion withdrawn.

House adjourned.