§ Order of the Day for the Second Reading read.
§ THE EARL OF MALMESBURY
, in moving that the Bill be now read the second time, said: My Lords, if this Bill is to be considered a part of the great scheme of Parliamentary Reform which Her Majesty's Government have been labouring to bring about during the last two years, I may perhaps be permitted to say I consider it the most important portion of the scheme. I think so, my Lords, because I believe that the character of the House of Commons is of even greater importance than its organization, and there can be no doubt that the character of that House has been constantly, and perhaps not altogether unjustly, assailed by many persons, especially by those who are desirous of finding fault with our laws and Constitution. It has often been reproached of being elected in a corrupt manner—and having been be elected, of 1794 establishing a tribunal from its own body to try the Election Petitions, complaining of corrupt practices in this particular. Such a tribunal has therefore been looked upon as unsatisfactory. We have all read in history the various phases of corruption of which the Constitution has formerly been accused. About 130 or 140 years ago it was said that the Members of the House of Commons themselves were under the direct influence of corrupt motives and a corrupt system. Boroughs were subsequently bought and sold by and to the highest bidders, as if the right of returning their Members were part of the property. That period, however, happily passed away when the Reform Act of 1832 was passed. But it now appears that instead of boroughs being openly and shamelessly sold, since then many of them sell themselves. Such practices have naturally created great scandal, and consequently in every Session of Parliament since 1832 the House of Commons has been endeavouring to put an end to this system of corruption. I believe I shall not be saying anything offensive to the character or dignity of that House when I state that its attempts to effect that object have proved utterly futile, and it became evident that a tribunal constituted of the very men who were themselves exposed to the suspicion of being parties to these well-known electioneering tricks and corrupt practices, could not carry with it that entire confidence of the public which a tribunal that was perfectly independent in character and position, and entirely clear of any temptation to connect itself with these transactions, would secure. Well, at last the House of Commons has, I think, acted most wisely in removing that tribunal from their own body to one perfectly impartial and disinterested—namely, to the Judges of the land. This, I think, is the most important part of the Bill. This measure will hereafter place in the hands of certain Judges of the three Common Law Courts the trial of Election Petitions, whatever be the nature of the charges made in such Petitions. In taking this course there can be no doubt the House of Commons has acted most wisely, and strengthened its own powers, because being the great source of legislation it will thus naturally obtain greater influence in the country, additional respect, and a large augmentation of power. As to the details of the Bill, I will briefly place them before your Lordships. I do not 1795 think it necessary to describe the many phases through which the Bill has passed, only to say—what is very remarkable in it—it has come back to that which the Government at first proposed in the House of Commons. The House of Commons went into the consideration of the question with great care and industry, and proposed to refer the trials of Election Petitions to the ordinary Judges of the land. At that time there was a great indisposition manifested on the part of the learned Judges to undertake, in addition to their ordinary duties, the new duties which this measure would throw upon them. They therefore presented a protest to the Government, praying that these new duties should not be imposed upon them. The House of Commons accordingly re-considered their proposition; and it was suggested that a new tribunal from its own body should be specially created for the trial of Election Petitions. That proposal fell to the ground; and after the House and the Government had tried their hands at several proposals to amend the law upon the subject, they at last arrived at the conclusion that no course could be so safe or satisfactory as that which Her Majesty's Government had originally proposed. Therefore, as far as the House of Commons is concerned, the matter stands thus—The Bill provides that before a certain Petition complaining of an undue return shall be prosecuted, that the security of £1,000 shall be lodged for the due prosecution of the inquiry, and that the trial shall take place before a Puisne Judge of one of the Superior Courts of Common Law; such Judge to be selected from a rota to be framed by the Judges generally. The measure further empowers Her Majesty to appoint an additional Puisne Judge to each of the Courts of Queen's Bench, Common Pleas, and Exchequer. It also provides that the trial of the Petition shall be held within the locality in which it is alleged the corrupt practices have taken place. This I think your Lordships will say is a most important and useful provision; for it is well known how effective have been the results when a Special Commission has been sent to any borough to prosecute the inquiry on the spot. The Judge is to report to the Speaker of the House of Commons the result of the trial, and to make a special Report if anything extraordinary should have occurred in the proceedings; and the House of Commons is to retain in itself 1796 the power of issuing the Writ for a new election. The Report of the Judge will be equivalent to the Report of the Election Committee now. The proceedings of the trial are to go on notwithstanding the prorogation of Parliament—the Judges are to be received, when they go down to the country to open those trials, with all the honours and dignity with which they were now received at the commencement of the assizes—the Sheriffs to receive them, &c. As to the witnesses, they will be subpoenaed in the same manner as they are subpoenaed on trials at Nisi Prius, and will be subject to the same penalties for non-attendance or false swearing. It the Petition be withdrawn, costs to be paid to the respondent, and the general costs of a Petition are to be defrayed by the parties in such a manner as the Judge shall determine. I now come to that part of the Bill which provides for the punishment of corrupt practices. Some of your Lordships may, perhaps, think these punishments rather severe. In the case of the candidate being convicted of bribery the punishment is exclusion from a seat in the House of Commons for a period of seven years. In the case of the voter the Bill declares that any person found guilty of accepting a bribe is to be deprived of the privilege of a voter either at Parliamentary or municipal Elections, and to be declared disqualified from holding any public office for a certain period, or from being appointed a justice of the peace. Such penalties, he thought, would prove effectual, to prevent a candidate from having resort to corrupt practices, and in the case of the voter would deter him from accepting bribes. This, my Lords, is the substance of this Bill, and I need not say more upon the subject. It has been a very difficult subject to handle, and it was with great difficulty passed through the House of Commons, because it was a subject upon which there were many different opinions both as to the main points involved in it and also as to what the punishment should be; but after a long time had been employed upon the matter the Government and the House of Commons have agreed upon this measure; and I trust that as it practically concerns the House of Commons more than it does this House—it concerns, indeed, the whole country, no doubt, for the whole country is interested in having its representatives free from all stain and suspicion—yet, as it practically applies principally to the House of Commons, I may ask your 1797 Lordships to pass the Bill without Amendment.
§ Moved, "That the Bill be now read 2a"—(The Lord Privy Seal.)
§ EARL RUSSELL
said, he very much regretted that a Bill of such great importance, and which, according to his view, if it had come up earlier, might have been amended by their Lordships with very good effect, should have reached that House only on the 24th of July, at a time when the attendance was naturally so thin that it was impossible it could receive the attention which, under other circumstances, might have been given to it. With regard to the importance of the question, he entirely agreed with the noble Earl (the Earl of Malmesbury). Nothing could be of more importance than that corrupt practices at elections should be prevented. When the Bill for the extension of the franchise was before the House last year he took the liberty of saying that he was afraid, not of the democratic influence which excited the apprehension of some of their Lordships, but of the increase of those corrupt practices which had hitherto done so much injury to our representative system; and he then pointed out that there had grown up a practice by which persons, perhaps coming home from the colonies or elsewhere, possessed of considerable sums of money, obtained seats in Parliament by means of large expenditure, often displacing persons who were connected with the boroughs in which they were elected. It too often happened that there is no difficulty in finding a man willing to spend £10,000 or more in obtaining a seat in the House of Commons—not for the promotion of any measure or any principle whose success might be beneficial to the public, but for the purpose of increasing his own individual importance in the country. He had, therefore, been very anxious that some legislation should be proposed by which that evil might have been checked, if not altogether stopped. The noble Earl had recommended that Bill to them, though without laying any great stress on any argument to show that corrupt practices would be put an end to by it. But there were very important considerations connected with the measure, and connected also with what had been the constitution of the House of Commons for more than 200 years. He (Earl Russell) entirely approved the principle by which the inquiry into corrupt prac- 1798 tices was to be removed from Westminster and carried into the particular borough or place in which the complaint had arisen. He thought it far more likely that such corrupt practices would be detected at the place where they were alleged to exist than if the great expense and delay of an investigation at a distance had to be incurred—disadvantages which, under the present system, had often had the effect of preventing inquiry altogether, because candidates who had been put to heavy cost for a contest in which they had been unsuccessful, were frequently unwilling to meet the large additional expense of prosecuting a Petition. It was therefore very desirable to obtain a proper tribunal to try those questions on the spot where the corrupt practices were alleged to have been carried on. But there came next very grave constitutional questions, which he thought could hardly be passed over lightly by their Lordships. The House of Commons, since the reign of James I., asserted for themselves the privilege of deciding on the validity of the elections of the representatives of the people. At present they need not fear that influence on the part of the Crown in these matters which was formerly exercised; but they ought to take the greatest pains, if they departed from the principle that the representatives themselves should be the parties to decide whether Members had been duly elected to sit among them, and that there should be a proper tribunal to try the questions. Now, the first objection made to the present Bill, as originally introduced, was made by the Judges; and he held in his hand the Letter on that subject, written in February last, to the then Lord Chancellor, by the Lord Chief Justice of the Court of Queen's Bench in his own behalf and in behalf of his brother Judges. In that letter the Lord Chief Justice spoke of the insuperable repugnance entertained by all the Judges to having these new duties thrust upon them, and expressed it as their unanimous opinion that the inevitable consequence of requiring them to try Election Petitions would be to lower and degrade the judicial office, and to destroy or impair the confidence of the public in their thorough impartiality and integrity when, in the course of their ordinary duties, political matters became incidentally involved. It was impossible for him (Earl Russell) to allude to the arguments urged with reference to the objections of the Judges in the forcible letter of the Lord Chief 1799 Justice, without observing that within the last day or two they had lost a distinguished Member of their Lordships' House (Lord Cranworth), whose learning, whose judicial impartiality and calm judgment rendered his decease a matter of deep regret, he was sure, to them all. Their Lordships, he was convinced, would all feel that that House and the country had sustained a severe loss by the death of one whose opinion, from his high character and his great learning, was always entitled to great weight, and, who, from his long experience in judicial practice, would have been so well able to give advice on the present occasion. But, returning to the objections of the Judges, he believed the great majority of the judicial Bench still entertained those objections. The questions to be decided in proceedings to be taken under this Bill—the question whether a man is duly entitled to take his seat in the House of Commons—was one of a very delicate nature, and for himself he did not think it was possible for the Judges, however pure their conduct might be, to escape suspicion or imputations of partiality if they were called upon to decide these questions. No doubt Committees of the House of Commons belonging to one party or another, might sometimes have shown a bias with regard to an Election Petition. But that was quite a different tiling from saying that a Judge, who was supposed to have been altogether removed from a political sphere, in which he had perhaps acted as a Law Officer of one Government or another, was to decide who was entitled and who was not entitled to a seat in the House of Commons. He therefore thought that objection was well founded, and that the imputations to which he had referred against the Judges, if they discharged these functions, would he made. He was far from saying that those imputations would be deserved. Unquestionably the Judges would take every care to weigh the special circumstances that might be brought before them, and endeavour to arrive at their decision with the greatest impartiality. But when a party found that a favourite candidate of theirs, brought forward with a great desire that he should obtain a seat in Parliament, was displaced on an Election Petition, and probably on the evidence of persons whom they would believe to be utterly unworthy of credit, it was impossible that imputations such as he had re- 1800 ferred to would not be made. That, he thought, was the main objection to that proposal. He did not say that this objection was a conclusive one against the Bill, for he regarded the local inquiry as very beneficial, and he should be glad if his apprehensions with regard to imputations being cast on the Judges should prove to be unfounded. It was, however, he thought, a very grave objection. He was glad to find that the operation of the Bill was limited to three, or rather to four years; and if at the end of that period it should be held by general consent that the measure had failed, some other mode of repressing corrupt practices would have to be tried. Their Lordships would therefore, he thought, do wisely by agreeing to the Bill as an experiment, leaving it to time to decide whether the objections entertained by the Judges and others were well founded. The noble Earl (the Earl of Malmesbury) had explained the severe penalties which the Bill proposed to attach to persons who had taken part in corrupt practices. The 43rd, 44th, 45th, and 46th clauses contained certain disqualifications. The first was that a person who had been a consenting party to bribery or corrupt practices should be disqualified for seven years from sitting in Parliament. Now, this point had been settled by some in a very summary manner, for it had been asked whether, supposing a man had wilfully consented to corrupt practices, the punishment was too severe. This, however, was really not the question. The question was whether we could find a tribunal upon which we could implicitly rely that no man who was entirely innocent should be declared guilty of these practices. He could imagine a man going to a candidate and saying, "If you will give me £500 I will take care that fifty voters who are now wavering shall poll in your favour." The candidate might agree to this, and the whole thing might he hushed up, no third party ever knowing anything of it. Another candidate might reply that he would not give him £500, and he never would be a party to corrupting the electors, yet the very man who, had he received the money, would not have breathed a word of it, might go before the Judge and swear that he had received the money from the candidate, and spent it with his consent or at his suggestion in bribery. It might be said, indeed, that the Judge would not believe a man who thus perjured himself, and would be likely to 1801 come to a correct decision. Judges, however, even with the assistance of juries, were not infallible; and their Lordships would all remember that there had recently been at Manchester a very important trial, where five persons were tried for murder, or for being accessories to murder, and where one of those who were found guilty by the jury and sentenced by the Judge, it afterwards turned out, was entirely innocent. That was a recent case, and there were numerous cases of a similar character on record of men and women having been executed for crimes which they had never committed. Yet it was now proposed—not that a Judge and jury, but that a Judge sitting singly, should sentence a man, without any power of appeal to the Crown, to seven years' exclusion from Parliament, and should disqualify him from being registered as a voter, from holding judicial and certain other offices, and from acting as a justice of the peace. Now, these were formidable penalties degrading and reducing a man in position and rank; they were of the utmost importance to the person himself, and they were also of importance to the district in which he might have hoped to fill a position of honour or usefulness. He doubted whether it was right to give such power to a single Judge, and he had drawn up a proviso to the effect that any person reported by a Judge as guilty of any of the offences enumerated in the 43rd, 44th, 45th, and 46th clauses might, within three mouths, appeal to the Court of Common Pleas, where such appeal should be tried by the Chief Justice or some other Judge and a jury, whose verdict should be final. If such penalties were imposed there should be something more than the decision of a single Judge; for though that Judge might be very learned in the law, and might have devoted his whole life to the study of the theory and letter of the law, he might not be well versed in the ways of mankind and in the practices of those connected with elections, and who are conversant with bribery and corrupt practices. Such a Judge might be very credulous of the evidence given; and thus the opinion of a single Judge, learned in the law, but unversed in the ways of the world, and especially in the ways of the election world, might condemn an innocent man to stigma and disgrace and to exclusion from political life. He should not, however, trouble their Lordships by moving any Amendments in Committee, it being far too late 1802 in the Session to come to any adverse vote on the subject, and he should therefore simply place the proviso in the hands of the noble and learned Lord on the Woolsack, who was qualified to consider the propriety of a single Judge deciding such questions. It was proposed that a single Judge should be put in the position now occupied by a Committee of five Members presided over by a competent Chairman. He thought their Lordships would all agree that in old times, when controverted elections were decided as party questions, very corrupt decisions were given. Mr. Grenville, in the middle of the last century, remedied this by substituting a tribunal consisting of five Members of the House of Commons. Now, he (Earl Russell) had repeatedly stated in. the House of Commons that the effect of that change was that, instead of considering a scat in Parliament as a political and party matter, it became a matter like a question of property, to be decided between two claimants, each risking several thousand pounds, one in order to obtain the seat, and the other in defending it. It was treated too much as a question between two individuals, and not as a question in which the constituency and the public were concerned. This was a defect in the present system, and it made him the more willing to agree to some change; but he must confess he did not think electoral corruption would be rooted out or very much cheeked by this measure. It was quite right, however, that something of the kind should be tried; and, this plan having been agreed upon by the House of Commons, he cheerfully assented to it.
The present being about the last debate of the Session he would venture to put a question to the noble Earl on another subject. In 1841 the Government of the day brought forward a financial measure in relation to the sugar duties which was defeated by a majority, he thought, of 36. The Government immediately decided that they would dissolve Parliament; but they did not announce their decision, and Sir Robert Peel thought himself justified in moving, or called upon to move, a Vote of Want of Confidence. That was carried in a very full House by a majority of 1; after which Sir Robert Peel asked him for an assurance that as soon as the dissolution and the elections should be over the new Parliament should be called together. Feeling that his Colleagues and 1803 himself would not wish to remain in Office unless they possessed the confidence of the country, he at once and willingly gave that pledge, and the new Parliament accordingly mot at as early a date as possible. There was a great majority against the then existing Ministry and there was an end of the Administration. And now Parliament was placed in a position still more peculiar, because for two years they had had a Government going on without the confidence of the House of Commons. He was not going to blame anyone for that; all he would say was this, that it would be for the public interest—and he was sure it would be more agreeable to the feelings of the noble Earl opposite and his Colleagues—that when the registration was completed and there would be an opportunity for a dissolution, Parliament should be called together again as soon as possible. He supposed the noble Earl opposite would have no hesitation in saying that that would be done. It was what he (Earl Russell) did when Minister in 1841.
THE LORD CHANCELLOR
In offering to your Lordships a few observations on what has fallen from the noble Earl (Earl Russell) I must commence by responding very sincerely to the statement which he made at the outset with reference to the great loss which your Lordships have sustained since the last meeting of this House in the person of my late noble and learned Friend—Lord Cranworth. My Lords, of the loss of Lord Cranworth to those who have had the privilege of enjoying his friendship I feel it impossible for me to speak. But, my Lords, this I may say—that your Lordships and the public have in him lost one who passed through a long career of high judicial office without a tarnish on his name—one who, I venture to say, in the discharge of his great duties for courtesy, for candour, for careful and conscientious efficiency, and, above all, for sound and exquisite common sense, has never been surpassed by any person who ever before filled the same offices.
My Lords, with respect to the Bill now before your Lordships, most of the comments of the noble Earl (Earl Russell) as certainly might have been expected, have turned upon the character of the tribunal offered by the measure for the trial hereafter of Election Petitions. My Lords, upon that point I wish, (o say a word as to the changes which the proposition has from time to time undergone. When the Bill was introduced by Her Majesty's Go- 1804 vernment last year the proposition, I think, was that Commissioners to try Election Petitions should be nominated by the Speaker of the House of Commons. That proposition, in the discussions which arose, did not find favour with the House of Commons, and Her Majesty's Government proposed an alternative measure, that the trial of Election Petitions should be conducted before the Judges of the Superior Courts at Westminster. Before the opinion of the House of Commons was definitively taken upon that proposition Parliament was prorogued. At the commencement of the present year the Government through my noble and learned Friend (Lord Chelmsford), who then held the office which I have now the honour to hold, received a communication, to which the noble Earl has referred, from the Chief Justice of the Queen's Bench on the part of all the Judges, deprecating very strongly the proposal that the trial of Election Petitions should be devolved upon the Judges. As well as I recollect, the grounds taken by the Judges were substantially two. The first was that, by the appointment of the Judges to try Election Petitions, involving matter of political feeling, the confidence of the public in the impartiality of the learned Judges in other matters would be shaken; and the second ground was that, with the great amount of business by which the Judges were already over weighted, it would be impossible for them to undertake the further duty of conducting the trial of Election Petitions, which might last for a considerable time in some years or every year. These objections they stated with so much force that the Government felt it was necessary to refer them to Parliament, and to propose again an alternative measure. The next proposition laid before Parliament—and I mention these proposals to show the various schemes the House of Commons has had before it—was that three Election Judges should be appointed from time to time by the Government to try the Petitions. That, again, was objected to on the ground that instead of delegating their functions to the judicial Bench, it would be placing the power of deciding upon elections in three officers chosen by the Government of the day. In order to avoid, if possible, that difficulty, the Government made this proposition in the next place, that out of the present Judges in Westminster Hall two should be selected who would receive a 1805 somewhat higher position than the other Judges—probably receiving the rank of Privy Councillors—and that those thus chosen from the limited number of existing Judges, having given proof of their capacity in the discharge of judicial business, should be appointed to try Election Petitions when there were any to be tried, and at other times should sit on the Judicial Committee of the Privy Council. That proposal the House of Commons again objected to, and a very strong opinion was manifested that the reasons given i by the learned Judges for deprecating the office of trying Election Petitions ought I not to be allowed to weigh, and that the Legislature was the proper authority to decide what were the duties which the Judges ought to discharge. That was not only the opinion, but was supported by the vote of the House of Commons, and by a very considerable majority the proposition to assign two special Judges to try Election Petitions was negatived. At the same time a very strong inclination was shown to authorize the appointment of further Judges in the various Courts, to have the Bill re-modelled, and Election Petitions tried by the Judges very much in the manner originally proposed. Consequently the Bill was brought nearly into the shape your Lordships now have it, and in that shape received the sanction of the House of Commons. There was one proposition of Her Majesty's Government which did not receive the sanction of the House of Commons, but which I wish to mention more particularly. We proposed that, at the same time that the numbers of each Court were increased from five to six, the Court should select the particular Judge that was to try Election Petitions, and that the Judge so selected should, in addition to his present salary, receive a sum of £500 for each year that he was so employed, and if employed for a certain time, should be released from the duty of going on circuit that year. That proposal was rejected by the House of Commons. I am anxious to make this explanation, because some misapprehension appears to have prevailed on the subject out-of-doors. It would have been my duty to be the medium of communication with the learned Judges, and I wish therefore to say to your Lordships that neither directly nor indirectly was any mention made to the learned Judges that they were to receive an additional salary for the performance of the duties proposed; and therefore the 1806 observations that the learned Judges were willing to accept an additional £500 a year as "a bribe," as it was said, is a statement altogether without foundation. In point of fact, my Lords, after the division in the House of Commons, negativing the proposal with respect to the two specific Judges, it would have been utterly impossible for me to communicate with them; but, in addition to that, it appeared to me that it would have been very much better to avoid making any proposition to the Judges about the increase of salary; that if the House of Commons were willing to increase their salary, it would be a very fit and very proper thing to do, but it would not be proper to make any communication to the Judges, whether directly or indirectly, on the subject. I am bound to say that I regret very much that the House of Commons has negatived that proposal. The position of the existing Judges in the Superior Courts is very peculiar. They are learned persons who have surrendered large and lucrative private practice; they have accepted the office they now hold, knowing at the time the duties both on the Bench and on circuit they would be expected to perform, and knowing who would be associated with them on the Bench, and whose advice and assistance they would have the benefit of. For persons who have accepted office on that footing to have their duties changed without offering any terms by way of compensation is a proceeding that I must think very unfair. And although the trial of those Election Petitions is very much of the nature of the business on circuit, yet I am bound to say that the two things would be very different. It is one thing to preside on circuit where proper arrangements have been made for their reception, where they have the society of a large Bar during the time the circuit continues, and it is quite another thing to scud a single Judge alone into various parts of the country, where Judges have not been in the habit of going, where there is no kind of fitting accommodation for them, and where; they may be kept at a distance from their houses and families it may be for two or three months. It appears to me that to men who have accepted office on very different conditions there would be an irksomeness in the new duties which they might very fairly deprecate. I very greatly fear that the result will be that, whereas if the House of Commons had increased the salaries some of the existing Judges 1807 would have been found willing to undertake the duty, these Election Inquiries will be thrown in the various Courts on the new Judges who accept office with their eyes open, and that the public will not have the benefit of the experience of the elder Judges. I do not propose to follow the noble Earl (Earl Russell) at any length in his criticism of the tribunal which it is proposed to constitute. He says, and says truly, that this is a very great power to place in the hands of a single Judge without a jury, and that the punishments to be inflicted under this Bill for bribery and other cognate offences are punishments of a very grave character. In that opinion I entirely concur. But what is the alternative offered for your Lordships' consideration in this case? Before we criticize or condemn the tribunal proposed by this Bill we must ask what other tribunal we are to propose and to weigh in the scale against it? The House of Commons have declined any longer to provide out of their own body a tribunal for the trial of Election Petitions—the fact of their passing this Bill shows that they wish to devolve that duty upon some other tribunal. What, then, is the suggestion we are to make to them in preference to the plan contained in this Bill? The noble Earl agrees in the propriety of a local inquiry. But does he really think that that inquiry will be improved by empanelling a jury of the vicinage, where politics run high, and the question is as to the conduct of parties in the election? Docs he really propose that a jury shall be summoned from the neighbourhood, not to assist the Judge, but to decide the questions which come before the Court?
§ EARI, RUSSELL
said, that what he proposed was to leave these questions to be decided on appeal by a Judge and jury sitting at Westminster.
THE LORD CHANCELLOR
I am going by steps through the noble Earl's argument, and am dealing first with the local inquiry. He said this was a very strong power to entrust to a single Judge without a jury; but I do not suppose he would think the tribunal improved by a jury of the vicinage. But then the noble Earl would allow any person affected by a certificate from a Judge conducting one of these local inquiries to appeal within three months from that decision, and he would provide that the appeal should be heard at Westminster before the Chief Justice of the Court of Common Pleas 1808 and another Judge and jury. Now, let us consider that proposal. Your Lordships must assume that in every single case there would be an appeal from the certificate of a Judge finding the offences specified in this Bill. Every person so found guilty would endeavour to avail himself of this power of appeal, because he could not be the worse, and he might be the better for it. I would ask whether the decision of this Court is to be based upon evidence brought before it, or on evidence taken in the country? The noble Earl says that one of the merits of this Bill is that the truth will be more effectually ascertained on the spot. Therefore his proposal is that the local inquiry—which the noble Earl admits is the best for ascertaining the truth—should be brought under review by another inquiry, not conducted in the locality, but at Westminster, where the same means of ascertaining the truth will not exist.
§ EARL RUSSELL
The Court of Appeal at Westminster will have before it the evidence taken at the local inquiry.
THE LORD CHANCELLOR
Well, then, the jury are not to decide upon evidence taken before them, but upon the record of vivâ voce evidence taken before a Judge elsewhere. Now, in hearing evidence very much depends upon the demeanour of witnesses. A jury should hear the evidence given; they should be able to judge from the sight, and by the tone of a witness, and the manner in which he gives his evidence, whether that evidence is or is not worthy of belief. But the noble Earl would propose that the decision of the Judge who has actually heard the evidence should be brought under review, not by another Judge, but by a jury at Westminster, who have seen none of the witnesses, and are simply to decide upon written evidence. I think that any tribunal of that kind would be the very worst that could possibly be devised; and although I should be glad to see the tribunal suggested in this Bill fenced round by every reasonable precaution, I feel satisfied that upon consideration the noble Earl will hesitate before seriously proposing another tribunal of the kind which he has suggested.
Leaving the Bill now before your Lordships, the noble Earl referred to a topic of more general interest. He said that the Government had for two years conducted the government of the country without the confidence of the House of 1809 Commons. Now, I must demur entirely to that statement. I believe, on the contrary, that the Government have had the confidence of the House of Commons; and I believe it for this reason—because, in a case where the Government for so long a period have not had the confidence of the House of Commons, I have never known the House of Commons abstain from expressing their opinion to that effect; and inasmuch as the House of Commons have never expressed such an opinion with regard to the present Administration, and as, when a member of the party with which the noble Earl is connected, placed upon the Notice Paper during the present year a Motion of Want of Confidence, he never had the courage to bring it forward, I venture to think that the view of the noble Earl on this subject is entirely an erroneous one. But the noble Earl has asked whether a statement would be made by the Government analogous to that made by Sir Robert Peel relative to a dissolution of Parliament in 1841. Why, that statement has been made for some time past pretty nearly every week, sometimes in this and sometimes in the other House of Parliament. When the Registration Bill passed through Committee your Lordships were told that the subject had been carefully considered with a view to lead up to and make possible a dissolution at the earliest possible moment; and it was with that object your Lordships were asked to give a somewhat hurried consideration to the Bill in order that it might receive the Royal Assent at the necessary period.
§ LORD ROMILLY
My Lords, it is not my intention to discuss the Bill now before your Lordships, which it is important should pass without the danger of involving any difference with the other House or any chance of delay. But my right hon. Friend the Lord Chief Justice has requested me, on behalf of himself and of all the other Judges, to say that though when first consulted they disapproved very much of these functions being imposed upon them because they thought it would be injurious to the authority and reputation of their office that the Judges should be mixed up in election matters, and though they retain that opinion up to the present moment, nevertheless they desire it be known that, if Parliament think fit to require them to perform these duties, they will cheerfully and readily perform them to the best of their ability. 1810 Besides this, my right hon. Friend desired me to confirm to your Lordships that which we have heard from my noble and learned Friend—that they were never consulted upon the subject of whether an additional sum of £500 should be given to the Judges to be selected for the purpose of conducting these inquiries; that, so far from its being the fact, according to the very injurious rumours which got abroad, that this provision had been introduced with their sanction for the purpose of making things smooth, nothing of the sort had occurred; and that if such a proposition had been made to them my right hon. Friend, on behalf of himself and every one of his Colleagues, declared that they should have unanimously rejected it. Though, however, under the circumstances, that is a very natural feeling on the part of the Judges, I cannot but assent to a part of what has fallen from ray noble and learned Friend—not that it would have been right to give an additional £500 a year to particular Judges to be selected for this purpose, which would have been, in the nature of a bribe for the performance of those duties, but that, considering the additional functions imposed upon them all, which they would all readily and cheerfully undertake, however much they disapproved them, this addition to the judicial salary would have been a very fit and proper proceeding. I said that I did not intend to discuss the Bill, although it seems to me to contain very crude provisions, and to be a Bill likely to have a very ignominious conclusion; but I wish to point out that my noble and learned Friend (the Lord Chancellor) has misapprehended the proposal made by my noble Friend below me (Earl Russell). It was never proposed by him, as I understood, that the inquiry at Westminster should be substituted for the local inquiry, nor that it should be founded upon the written evidence taken in the course of the local inquiry; but that in every case of appeal the same witnesses should be re-examined and the former evidence tested, and, if necessary, additional evidence given in a further and more minute inquiry before a jury. Now, whether that would be a beneficial measure or not I will not stay to inquire, because it appears to be generally understood that at this period of the Session it is not desirable to introduce into the Bill any Amendments which might delay the prorogation, but I thought it necessary to correct this misapprehension 1811 on the part of my noble and learned Friend.
I cannot conclude my remarks without expressing the deep regret I feel at the loss of a valued Friend with whom I have been more or less intimately associated for the last thirty years. I have been repeatedly his junior before your Lordships' House and in the Court of Chancery, I have been constantly engaged with him in public and legal business, and I always received from him the utmost kindness. He was preeminently distinguished for three qualities—his candour and fairness, his common sense, and his gentlemanly feeling and bearing towards all with whom he was brought into contact. No one can regret more than I do the loss which this House has sustained, and I cannot refrain from adding my testimony to the character and qualities of the noble and learned Lord who has been thus suddenly removed from the midst of us.
§ THE EARL OF HARROWBY
said, he did not regard the transference of jurisdiction in the matter of Election Petitions as a confession on the part of the House of Commons that it was incompetent to conduct these inquiries with fairness, for he had had no small experience on Election Committees, and he must bear his testimony to the general fairness with which their inquiries were conducted. Electoral corruption was different from almost any other offence or crime, for it had not yet received that mark of individual reprobation which made it to be considered a crime by those who committed it and by those who were the objects of it. It was difficult to invest the offence with that feeling of gravity and that weight on the conscience which enabled those who made investigations respecting it to do so with a sense of responsibility, and to conduct the inquiries in such a manner as to impress others with a due sense of gravity. Hitherto corruption had been considered by those who committed it, and by those who were the objects of it, a positive rather than a moral offence, created by the law rather than existing in the nature of things; and under these circumstances it was difficult to invest an inquiry with that solemnity with which it ought to be surrounded. As he understood it we were now about to make the experiment, by transferring the jurisdiction to another tribunal, and adopting a different mode of procedure, to create a moral sense on the subject, and 1812 he agreed that it was only by creating such moral sense that we had any chance of putting an end to corruption. If the object aimed at had been to make inquiry more searching and complete, then he believed the transfer of tribunal would have an opposite effect, for in his opinion the irregular jurisdiction and proceedings of the Select Committee of the House of Commons, not bound by any rules of evidence or practice, were far more likely to effect a penetrating and searching inquiry than a regular Court presided over by a Common Law Judge. But he was prepared to admit the probability that the substitute of one of the Superior Judges for the Commissioners, whose Courts presented the aspect of a dramatic entertainment in which the audience were frequently "convulsed with laughter," was much more likely to create a moral sense than the present method of inquiry. The experiment was a great one, and he hoped it would bear fruits.
§ VISCOUNT STRATFORD DE REDCLIFFE
said, he must congratulate the House and the country on the step which had been taken by the House of Commons with the object of putting a stop to electoral corruption. To his mind it was highly creditable to the House of Commons that they should have taken such a step in order to free themselves from any suspicion of sympathizing with bribery; and that in the last moments of its existence it should have passed a measure divesting itself of its right of trying Election Petitions, and transferring its authority to another tribunal. It was equally creditable to the Government of the day that they had done their best to forward the measure and to encourage the House of Commons to pass it. With respect to the evil against which the measure was directed, it had taken root so deeply in the habits of the country that it was an extravagant expectation to hope that the Bill would put a stop to it entirely; but it was to be hoped that the change of tribunal would have a great moral effect, would impress people with the gravity of the offence, and would cause, them to reflect on the injury done to the country by those who committed it. He had some personal recollections which showed how deeply corrupt practices were rooted. Once, when he was a candidate for a borough now extinct, he called upon a voter, who being at dinner held up his knife and warned him to be off, well- 1813 knowing that he was about to lose the £10 bribe he had pocketed at former elections. On another occasion, when he contested Lynn Regis, a shoemaker of his party declined u bribe; and when his procession, as one of the successful candidates, passed the shoemaker's shop, a shoe was hoisted on a pole and three cheers given in recognition of what was regarded as an extraordinary instance of public virtue. Such instances could, no doubt, be multiplied. He thought that the amount of security required in reference to the presentation of Election Petitions might discourage persons from presenting them; but with regard to the penalty imposed for corrupt practices, he had no hesitation in saying that, regard being had to the nature of the offence, the penalty could hardly be too great. However, in the present temper of the country, it might be well to go no further than was now proposed, and to wait until some additional moral effect should be produced by the operation of the Bill.
He could not sit down without adding a word to the tribute of regret so generally expressed for the loss of the eminent man whose recent death had been referred to in the course of the present discussion. He had known Lord Cranworth in private life long before he attained the high position which he ultimately reached. If he was always an honest politician, he was equally remarkable as a sincere, straightforward, single-minded man; and it was impossible for any one to go to his grave with a nobler or more estimable character.
§ Motion agreed to; Bill read 2a accordingly, and committed to a Committee of the Whole House To-morrow.