Lords Sitting of 1 May 1843

MINUTES.
BILLS. Public.—2a. Registration of Voters.
3a and passed:—Schoolmasters Widow's Fund (Scotland).
Private.—la. Wilson's Estate; Gilbert's or Miller's Estate.
2a. Kendall's Divorce.
Reported ߞBaliotu'a Estate) Charlwood Inclosure; Birkenhead Cemetery.
3a. and passed:—Manchester Corporation.
PETITIONS PRESENTED. By the Earl of Radnor, from Cork, for a Repeal of the Union.—From Andover, and Ellesmere, for Church Extension.—From a number of places, against any further Grant to Maynooth College; and for Inquiry into the course of Instruction pursued
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there.—From Elphin, against the Irish Poor-law.—From the Clergy of Norfolk, Talybolion, Heneglwys, and Fewalchinai, against the Union of the Sees of St. Asaph and Bangor.—From the Festiniog Union, against the Registration of Birth, etc. Act.—From Norwich, against the Bankruptcy Act.

REGISTRATION OF VOTERS.
Lord Wharnclifferose, pursuant to notice, to move the second reading of a bill to amend the law for the registration of persons claiming to vote on the election of Members of Parliament. The noble Lord said, that representations having been made as to the inconvenient operation of the existing law, it had been found necessary to introduce the present measure which, it was hoped, would be found beneficial to all parties. The objects of the bill were, first, to establish in every part of the country a real and bonâ fide list of voters; secondly, to settle certain doubts with respect to qualifications which had arisen in the revising barristers' courts; and, thirdly, to prevent the personation of voters, or the possibility of individuals voting twice at the same election. One of the greatest alterations in the bill was that which related to the right of voting as it depended on the payment of taxes. As the law at present stood, a person could not have his name placed on the list of voters unless he had paid all his rates and taxes up to the time of making his claim. By this bill it was provided, that persons should be allowed to have their names inserted in the list of voters if they paid, on or before the 20th of July next ensuing after making their claim, all the poor-rates and assessed taxes payable from them for twelve calender months before the 6th day of the preceding April. A great objection to the existing law was, that the decisions of the revising barristers were final; but, by this measure, an appeal from their decisions, on legal points, was allowed to the Court of Common Pleas. Provision was also made to clear up doubtful points as to the right of voting in counties, and also with reference to the place where a claim to the right of voting should be made, when the party resided in an extra parochial district where there was no overseer. Another important point provided for by the present measure was that which related to votes on account of trusts on mortgage estates. It was now provided that no mortgagee of any lands or tenements should have a vote for Members of Parliament unless he was

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in the actual possession or receipt of the rents and profits of the lands or tenements mortgaged; but that the mortgagor in actual possession or in receipt of the rents and profits, should be allowed to vote in respect of the property notwithstanding the mortgage. Upon the details of the bill he would not trouble their Lordships with any observations, us they had already been so fully discussed elsewhere. He had, therefore, only to move that the bill be now read a second time.
Lord Broughamhaving stood by the noble Earl (Earl Grey) when he brought forward the great measure, the Reform Bill, and having assisted in carrying it through Parliament to the best of his humble abilities, felt himself justified, on the present occasion, in offering a few words to their Lordships. After eleven years experience of that most important measure, it was marvellous to find how few and trilling its defects were. Of the constructing or creating parts of the system established by that bill, that of registration was perhaps the roost important. Without wishing to give rise to any controversy respecting the details of the present bill, which would be more properly discussed in committee, he was anxious to take this opportunity of making a few brief remarks upon the subject. The great evil of the present system was, that the voter, whose vote or "title to vote it was necessary to examine calmly and without bias, did not care for his vote, and if left to himself would not go to register it. The consequence was that the candidate took that trouble for him. That candidate, therefore, who had the longest purse and the longest train of agents possessed an immeasurable advantage over any opponent who wanted the influence which that purse and agency bestowed. He who had the means of defraying the expenses of the registry and those other expenses connected with elections was sure to continue in Parliament, and this state of things he considered to be the result of annual registration. With the exception of the universities, every member of the House of Commons was put to an annual expense on account of this annual registration, which it was necessary to keep alive. Annual Parliaments was a subject of great alarm to many of their Lordships, as calculated to create an annual excitement in the country; but then annual Parliaments would be of some benefit to the people, by consti-
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tuting a check upon their representatives; whereas by annual registration they had the agitation, and he maintained that the people did not gain one tittle of security. He therefore deplored the retention in this bill of the annual process of registration. If a man proved that be possessed the test of qualification when last he registered, and lost it afterwards, he was still amongst the class of those whom the law contemplated as fit to choose Parliamentary representatives. By the present law they had excluded in the counties all who had not some property, and in the boroughs they had excluded some of the ablest and most enlightened men, of the most respectable individuals who either gave value to land, or to manufactures, or to the revenue, or to our existence as a nation. He might have all the learning of a Locke, and all the inventive genius of a Watt, but if he happened to board and lodge instead of occupying a 10 l. house, he was utterly incapable of voting in boroughs. But they must draw the line somewhere, and the distinction drawn between the privileged and favoured classes and the bulk of the community, was the possession of property or renting a particular house. But having once separated these two classes, what he wanted to know was why they should not allow the classes that were to elect to continue that right for five or six years; he did not say, that the elector should not be re-registered to prevent fraud, but he did not see why the sifted class should not have the right to vote until another general election. For his own part he would say, once a voter for ever a voter; not perhaps to that entire extent, but when the privilege was once granted, and the test complied with, the right should be allowed to stand at least for any given Parliament for which the vote was registered. That was the safe principle—the expedient as well as the just course. The present system was the exception as to the usual practice, and not the rule. It was not the principle which was applied to Members of Parliament, for when once elected, though he might lose his qualification, he could still retain his seat, and until the bill which was introduced by Mr. John Smith became the law, even an uncertificated bankrupt could hold his seat. Even at present, notwithstanding the enactment of Mr. Smith's bill, he might remain in the House twelve months after his bankruptcy. To be a justice of the peace required a qualification of 100 l.

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a-year, and though he should lose his property he was not put out of the commission. If however, such a person acted as a justice of the peace, he did so at his peril; but, notwithstanding the peril, it was constantly done. [The Lord Chancellor.—A bankrupt or insolvent could be struck out of the commission of the peace.] No doubt; but the insolvency or bankruptcy did not disqualify him. The striking out would be at the discretion of the holder of the Great Seal. He also doubted the justice of the provision which prevented a man remaining on the register who received parochial relief. It was said, that a pauper must necessarily be a dependent; but what would they say of a menial servant? Was he not a dependent? It was right that they should be consistent in their legislation. A menial servant could possess a vote, and vet the latter was more likely to be a dependent than one who had received parochial relief. Though pointing out these defects, he would not move any amendment on the second reading of the bill, but merely take that opportunity of calling the attention of the House to them. He considered the most important part of the bill was the improvement which it effected in the jurisdiction of the revising barristers. Nothing could be much worse than the present want of uniformity and a proper power of control. Excellent as were the persons appointed by the judges, it was impossible for so many persons to take exactly the same view of the various subjects submitted for their decision, and involving nice and intricate questions. It was, therefore, a great object to establish a controlling power to lay down the law upon any point, and whose decision should be followed by the revising barrister. The decisions of the revising barristers, as well as those of another tribunal—namely, a committee of the House, so varied from time to time, that it was difficult to reconcile a former decision with a later one. It was, therefore, an improvement to remove the jurisdiction with respect to registration from the House of Commons, and vest it in the judges, where the variance of decision would be avoided, as the tribunal would not be so fluctuating. Indeed, it would have been an improvement with respect to committees of the House of Commons if the same committee tried all petitions; for the same committee would not venture upon decisions so conflicting, as had been pronounced by different committees. The
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Court of Common Pleas was not likely to come to conflicting opinions; and if it were shown to the judges of that court, that they had committed an error, they would themselves be the first to correct it. He had heard some jealousy expressed with respect to taking the jurisdiction from the Commons and vesting it in the judges, but for his part he entertained no such jealousy. It was said that it was an unprecedented thing for a judge to decide on the validity of a vote; but it should be remembered that in every case of disputed property a judge had to decide upon the right and title to the property out of which the vote was claimed. For these reasons, and approving the principle upon which the bill was founded, he would vote for the second reading, reserving for a further stage any objection with respect to details.
Lord Denman,in the first place, with regard to all the provisions for improving the registration of voters, had no doubt that Government and the House of Commons had formed correct views of the improvement required, and in the appointment of the revising barristers, he believed that the bill had introduced a great improvement by reducing their numbers and also the expense, the latter being an object which Government ought never to lose sight of. Yet, in justice to those gentlemen who had filled the office under the old bill, though opinions had been different on some questions, he might venture to say that no dissatisfaction had been felt in any part of the kingdom on the ground that their contrary decisions had not been the result of the utmost honesty and impartiality. If he had any objection to the bill it was because he was of opinion it did not go far enough. He was extremely happy to find that in this bill a provision had been made for an appeal to the Court of Common Pleas. The doubtful points of law which were to be reserved for this court would be correctly decided, and there could not be the slightest fear entertained that political feeling would in the remotest degree influence the judgment of this tribunal. The real objection to the present system of trying elections was, that the tribunal is not a permanent tribunal, and that it is of necessity subject to a strong personal or political bias. It was something to remove these temptations by placing the appeal in the hands of the judges, but he thought the bill did not go

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far enough, and judgments of contested election cases never could be satisfactory to the public till the tribunal for deciding them became a permanent, and not a fluctuating tribunal. To one portion of the bill he felt a decided objection. He alluded to clauses 81 and 87, which referred to the personation of voters, and the proceedings which were to be adopted against personation at elections. This offence, in his opinion, was one of the most audacious and mischievous in its consequences; and what he objected to was, that the present bill declared this personation to be an offence. Why, who ever doubted it was an offence? An offence that had been frequently punished, always severely punished, but not with greater severity than its turpitude merited. The same remark applied to the clause declaring it an offence to aid and abet others in personating, that is, in effect to suborn them to commit perjury, for every voter may be required at the hustings to vouch his identity by his oath. He not only objected to the declaration of personation being an offence, but also to the lightness of the punishment awarded by the bill. Imprisonment for not more than six months or not less than one month with hard labour. In the excitement of an election many an ignorant man might be tempted to commit the offence, from party spirit or for lucre, by being told that it only involved a month's imprisonment. He also doubted whether the power to apprehend suspected personators and bring them before the magistrates at the moment, might not be made a pretence for obstructing elections, and involve the ministers of the law in proceedings from which they ought to be kept aloof. And it seemed to him that the whole evil of personation would be better dealt with in a separate measure. It seemed to him that these two clauses were unnecessary, and in particular that the limitation of punishment would operate injuriously. There were other provisions to this effect, that agents were to be allowed to detect personation, and to give the presumed personators into custody, who were to be immediately taken before magistrates, and, if the case permitted, released upon bail. Now he would appeal to the experience of noble Lords, in county elections, to say whether a better expedient could be devised to obstruct an election than to allow a person to say that a voter was guilty of personation, and then to
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direct the voter to be taken up. If the voter was wrongfully accused the magistrate was to award compensation. But then it appeared that magistrates were to be constantly sitting during elections, and it was to be expected that these magistrates, from the political excitement and agitation of the moment, would be found voting one set of men to be personators and overlooking another set. If this clause were allowed to stand, he was satisfied it would be impossible to finish an election within the limited time, and magistrates would also be placed in a position in which they never ought to be placed. These clauses appeared to involve such obvious mischief and inconvenience that he felt it was the most respectful course he could take to draw the attention of the House to them, and to state that, if no one else took the step, he should, at a future stage of the bill, move the omission of the whole of the personation clauses.
Lord Campbelldid not rise to oppose the bill. He rejoiced to hear that his noble and learned Friend (Lord Brougham), on the whole, approved of the Reform Bill, though he now seined to think it in some parts objectionable. With regard to registration, he thought it one of the best parts of the Reform Bill. [Lord Brougham; I am not against registration, God forbid!] Without registration we must have elections lasting for fifteen days, and yet hundreds of votes might not be decided by the sheriffs. The system of annual registration called for amendment. By the bill which had been brought in by Lord John Russell, a man who had once established his vote enjoyed it unquestioned for six years, and this provision he hoped to see introduced into the present bill. He objected to this bill because it adhered to the system of annual registration. He objected to it also that instead of forty judges sitting for eight or ten days in the year there were to be ten permanent judges sitting all the year round. According to his noble and learned Friend (Lord Denman) there were eighty-five revising barristers, and as there was a power of adding to their number, probably there might not be less than one hundred judges. He concurred with his noble and learned Friend (Lord Denman) that there had not been a whisper against the purity of the revising barristers; that, if they had erred, the error was one of judgment;

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but how could it be expected that, where there was so large a number of men, some of them so recently called to the bar, there could be an uniformity of decision? The expense was a great evil, but a greater evil was the multiplicity of judges. Another objection was, that the patronage it gave the judges placed the bar, he would not say in dependence, but in an uncomfortable situation. It had been ascertained that ten judges would be sufficient, and it had been arranged between the two parties in the other House, that five should be appointed by one and five by the other; and he (Lord Campbell) had made the selection for the liberal party and Sir Frederick Pollock for the other. They had agreed upon ten barristers, and that bill had passed the Commons and been sent up to their Lordships. He (Lord Campbell had had an interview with his noble Friend (the Lord Chancellor) on the subject, and had intimated to him, that the arrangement had received the approbation of Sir Robert Peel. He could not, without a breach of confidence, state what had passed on that occasion; but the look of his noble and learned Friend seemed to say, "What care I for Sir Robert Peel? He is too candid for me." [The Lord Chancellor, That is your interpretation.] That was expressed by the looks of his noble and learned Friend and about that time he believed there was a certain party who would not have been unwilling to get rid of Sir Robert Peel, and that might be the reason. A committee of the House of Commons might be a bad court of appeal, but a court of law in his opinion was a worse. The judges of the Court of Common Pleas were at present men of great learning and great integrity; and there was no question which he would not implicitly refer to their decision; but their Lordships must not legislate with reference to the personal character of the judges of that court; though they were about to trust the decision of the privileges of the House of Commons to them. These judges might decide most conscientiously, yet erroneously; they might decide according to the policy of the law, and the policy of the law might, as in past times, suggest the contraction of the constituency as much as possible; but even if they decided with ever so great propriety, their decisions might be looked at with suspicion. Rarely had political questions come
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before the judges, but now it was proposed to send such questions directly before them, and he feared that it would involve the characters of the judges. He was, therefore, of opinion that it would be better that the House of Commons should, as Lord Coke suggested, have power to administer an oath and decide all questions of controverted elections proprio vigore. He had to object to the bill that it trenched upon the elective franchise, and that it multiplied an objectionable species of votes. It was the opinion of Sir J. Graham that questions of registration should not be mixed with questions of franchise; but this bill narrowed the franchise in connexion with popular rights, and added to the number of votes generally supposed to be on the Conservative side. First, as to trustees—why should the bill touch anything of that sort when there was to be a court of appeal? By the 23rd section of the 4th and 5th of William 3rd, cap. 45, a right of voting was given to trustees who were in possession, and if it had not been for certain words in the 26th section, there could have been no doubt whatever that trustees in possession had a right to vote. The 26th section, however, said, that no one could be allowed to vote unless he received rents for his own use. This could not apply to trustees, since trustees did not receive money for their own use. Trustees had accordingly been allowed to vote, though some revising barristers had excluded them. The present bill said they should have no vote, and thereby disfranchised hundreds. Another clause altered the mode of measuring the limits of seven miles from each borough (on which the right of voting often turned) from the rule laid down by the Court of King's Bench, giving a larger circuit, and the greater the circuit of the borough the greater were the means afforded of swamping the town voters. The great blots of the Reform Bill were the allowing the old freemen to vote, and the 50 l. tenants at will. By the present bill a farm let for 200 l. might be let to four joint-tenants, and each of those joint-tenants would have a vote, so that there might be as many of these sham votes multiplied as there were 50 l. in the rental. When the bill got into committee he should move, that the clause respecting trustees, that respecting the mode of admeasurement, and that respecting the 50 l. freeholders,

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be omitted. He could not conclude without expressing his surprise that no notice had been taken of the subject of registration in Ireland. Two or three years ago the subject was represented as brooking no delay, and a bill was pressed forward, but when it had served its purpose it was heard no more of. He should not oppose the second reading of this bill, but if it did not come out of committee a much improved measure he certainly should oppose its further progress.
Lord Broughamsaid, that if his noble and learned Friend were as correct in speaking as in hearing, it would be great mercy for those to whom he addressed himself. He (Lord Brougham) an enemy of registration! Why, he thought it almost the greatest benefit of the Reform Bill. His only objection was to annual registration. Again, his noble and learned Friend said he (Lord Brougham) was an enemy of schedule A. Why, he was the parent of schedule A; and he would venture to say it was much safer in his hands than in those of his noble and learned Friend.
The Lord Chancellorsaid, as the objections made to the bill were chiefly those of detail, he should not enter into the general question, but leave those matters to be considered in committee. When, however, they were charged with an alteration of the law, he would give one specimen of the accuracy of his noble and learned Friend. They were charged with a great alteration as to the mode of calculating the distance,, which was calculated at present according to the flight of the crow. Now the clause on this subject was precisely the same as that in the Registration Bill introduced by the late Government on the 8th August 1836.
Lord Campbellsaid, the clauses were neither the same in words nor in effect. He was glad his noble and learned Friend could find no other answer to his objections.
The Lord Chancellor: There is not time now. I only give that as a sample. Wait until the bill comes into committee.
Bill read a second time.
Their Lordships adjourned.