JOINT ADDRESS TO HER MAJESTY. (Hansard, 8 June 1869)

§ LORD CAIRNS
I quite concur in the remark made by my noble and learned Friend last night—that while your Lordships ought to be prepared to deal with this subject in a judicial spirit, yet it is one which your Lordships generally are just as well able to decide as the legal Members of the House. We fortunately have no original jurisdiction in regard to the action of the House of Commons in relation to election petitions or the inquiry into any corrupt practices—we have no right to meddle with them, or to move in any direction towards examining them. We are perfectly powerless except so far as power is given us by statute. One power only has been given to us by statute—that is the power of concurring with the House of Commons 1395 in an Address to the Crown for the issue of a Commission. Thai is a statutory power. It must be followed strictly and to the letter. The conditions the statute laid down are those—Your Lordships may concur with the Commons, and address the Crown for the issuing of the Commission; the Commission will issue and have all the powers the statute gives it. The powers of the Commission, issuing according to the Act of Parliament, will be, in the first place, that the whole expense of the Commission will be thrown on the constituency whose acts are to be inquired into. Next, the Commission will have power to administer oaths, to commit witnesses for contempt; and not only so, but to give to any witness who shall make a full disclosure of all the facts within his knowledge a certificate of indemnity against any criminal proceedings in respect of what he has disclosed. Further than that, the Commissioners will be protected in anything they do in the prosecution of their powers; but, on the other hand, if you do not pursue the powers of the statute —if the Crown issues the Commission unwarranted by the precise terms of the statute—then all acts of the Commissioners will be illegal and wrong—they will be liable to challenge by any person who chooses to do so; their committal of a witness will be false imprisonment, the officer who enforces their order may be resisted to a breach of the peace, and the crime will be the crime of the officer and not of the person who resists him. The case may come before your Lordships judicially, and you will have to say whether the House was justified by the Act in addressing the Crown to issue the Commission. Now, the first thing that attracts notice is the peculiar way in which the Address is to be founded in which we are asked to concur. What the Act of Parliament says is this— Where by a Joint Address of both Houses of Parliament it shall be represented to Her Majesty that (a Judge) has reported to the House that corrupt practices have, or that there is reason to believe that corrupt practices have, extensively prevailed in any city "— in this case it is a city—if a joint Address of both Houses of Parliament is presented to Her Majesty, representing that a Judge has reported, not as to any particular detail of facts, but that corrupt practices have, or that there is 1396 reason to believe that corrupt practices have, extensively prevailed in any city, then the Commission may issue. Now, observe the words "extensively prevailed." What do they mean? Is it possible to suppose that they can have any meaning except one with reference to the place or the constituency concerning which the Judge reports? What would be extensive bribery in a constituency of 100 would not be so in a constituency of 15,000. And, observe, what the statute has done is to interpose the Judge as the person who is to decide what is meant by the word "extensively." It is not that Parliament is to read the evidence, and form its own conclusion whether the bribery has been extensive or not; if that were so we might have those very painful discussions renewed in both Houses which politicians on all sides have long since endeavoured to sweep away from the action of Parliament—we might have Members coming down arguing on the report as to whether or not corrupt practices alleged had been "extensive." You have had the Judge interposed to avoid the whole of that scandal: but he must make a statement in his Report to the House that in the city—in the constituency—concerning which he has been inquiring, corrupt practices have extensively prevailed, or that there is reason to believe that corrupt practices extensively prevailed at the election. Then the two Houses are to approach Her Majesty and state categorically that a Judge has reported that corrupt practices have extensively prevailed, or that there is reason to believe corrupt practices have extensively prevailed. What are you asked to state to the Crown on approaching the foot of the Throne? You are asked to state to the Crown— We, Tour Majesty's most dutiful and loyal subjects, beg leave humbly to represent to Your Majesty that Mr. Justice Keogh … has reported to the House of Commons that corrupt practices did extensively prevail amongst the Freemen voters at the last Election for the City of Dublin, and that, save as reported respecting the said Freemen corrupt practices have not been shown to have extensively prevailed, nor is there reason to believe that corrupt practices have prevailed at the said Election. Now, if that is a Report that in the constituency concerning which he was inquiring he was prepared to say that corrupt practices extensively prevailed, why, in the first place, did he not say so; and, 1397 in the second place, why not tell the Crown so? You are compelled to put on the face of the Address the truth, and that truth is not that which is required by the Act of Parliament. Let me remind your Lordships of the view taken on these Reports in 1853 with reference to Canterbury and Clitheroe, which became the subject of discussion in this House and on which Lord Lyndhurst, speaking with reference to Canterbury, said— His noble Friend had stated—and he believed the same argument was stated also in the other House of Parliament—that, the terms made use of in the Address were equivalent to those in the Report. Now, he apprehended that their Lordships had no authority to draw any such conclusion. It was the duty of the Committee to draw their conclusion from the evidence: their Lordships had no power to look at that evidence for the purpose of altering the Report. The Committee were the only parties to draw that conclusion, and Parliament was bound by their Report."—[3 Hansard, cxxv. 904.] Then he said further— If a Commission were issued, what would be the consequence? Why, that the validity of that Commission might be questioned if the matter were brought before a court of law. He apprehended, therefore, that they ought not to present an Address to Her Majesty stating that which was in terms incorrect, drawing a conclusion which they had no right, to draw from the Report, and which, if put upon the face of this Address, would not support the Commission which it was now sought to issue. But, further than this, he did not consider that what had been reported by the Committee was equivalent to what was stated upon the face of this Address. So well did the House feel the cogency of this statement that when the Clitheroe case came before the House, though the House of Commons, as in this instance, had voted the Address, Lord Campbell, on the recommendation of Lord Lyndhurst, withdrew it. Now, is there any difference in the present case? On the register for the City of Dublin there are 2,700 freemen voters, the constituency numbers 12,854 and the learned Judge states that out of the freemen eleven were proved to have received money, and forty-one were charged with having received it. I do not quarrel with the statement of the learned Judge, for he was the person to form an opinion as to the prevalence of j bribery; but he does not say that among the constituency corrupt practices extensively prevailed, but that among the freemen such practices prevailed. He wanted to show to what extent that offence prevailed among the freemen, but to take care that his Report should not 1398 be held to cast on the constituency at large the slur and disgrace which would be involved if the statement was that corrupt practices extensively prevailed among the constituency at large, and to show that he was not prepared to give the certificate on which alone a Commission can issue. The noble and learned Lord on the Woolsack has put a case for the purpose of illustration. Now, illustrations are dangerous things if they are not on all fours. But I will take the case supposed. I will suppose that, by some legislation, some statutory action shall be taken if a certain public officer shall give his certificate that the cattle plague extensively prevails in any particular county, and I will suppose that this officer has given his certificate that cattle plague extensively prevails in a parish of the county, but that save in that parish it does not prevail in the county. If that public officer made such a report, and you attempted in consequence to act under the statute, I apprehend that you would find yourselves woefully wrong in a court of law. Again, if the Report stated that the cattle plague extensively prevailed among a particular species of cattle, and that, save and except with regard to that species, it did not otherwise extensively prevail, then anyone attempting upon such a report to act under the statute would soon discover that he had committed a very great mistake. This is a grave matter, and I trust that the course taken by your Lordships on the present occasion will be the same as that which was pursued in the Clitheroe case, in respect to which Lord Lyndhurst and Lord Campbell concurred, and where the House assented to a Motion similar to the one I am about to make—namely, that the Address to Her Majesty in the Dublin case be taken into consideration on this day six months.

§ LORD WESTBURY
said, by the existing statutes a conditional power is given to Her Majesty to issue a Commission for the purpose of making inquiry into the existence of corrupt practices of any election of a Member or Members to serve in Parliament. The power is conditional—that is to say, it 1399 will not arise unless the required precedent condition has been fulfilled. Now, the condition is, that the Judge shall have reported to the House of Commons that corrupt practices have, or that there is reason to believe that they have, extensively prevailed in any county, city borough, or place electing a Member or Members to serve in Parliament at any election or elections of such Member or Members. Unless the Report of the Judge strictly answers this description the power to issue the Commission does not arise. the House will observe that the Report of the Judge must predicate or affirm of the county or borough, as the ease may be that corrupt practices have, or that there is reason to believe they have, extensively prevailed in it. This must be affirmed of the whole of the county or borough by the Judge, and it is a conclusion which he himself must derive and stale. The Houses of Parliament cannot draw that conclusion. If the Judge affirms the existence of corrupt practices in a part of a county or borough, or in some separate part or body of the electors of a county or borough, it is not sufficient to fulfil the statutory condition, and the power to issue the Commission will not arise. No lawyer could reason, as the Government appears to have done, that by this Report the Judge affirms the existence of corrupt practices extensively in a certain body of freemen, which body is a considerable part of the whole body of electors, and therefore by inference it affirms extensive corrupt practices in the city generally. That mode of reasoning will not satisfy the Act of Parliament. The Judge must himself derive and state the conclusion, and where he has not done so, the House of Commons cannot substitute its own inference for the Judge's conclusion. The House of Commons has been led by the Law Advisers of the Government into error. No Commission can legally issue.

§ LORD CHELMSFORD
said, that the simple question was whether the Report of the Judge was in the words of the Act of Parliament. It was perfectly clear that the power given in respect to the issue of Commissions of Inquiry was a statutory power, and the statutory form must be implicitly followed. Under the statute the Judge was to report that corrupt practices had extensively prevailed, or that there was reason to be- 1400 lieve that corrupt practices had extensively prevailed in a city or county, as the case might be: and unless the Judge so reported it was quite clear that the case was not brought within the statute. Now, in the case of Dublin, the learned Judge reported that corrupt practices extensively prevailed among the freemen, but that, save as aforesaid, corrupt practices were not shown to have extensively prevailed, nor was there reason to believe that they had extensively prevailed. It was, then, a question for their Lordships to decide, whether a Judge saying that corrupt practices had not extensively prevailed was the same as his saying that they had extensively prevailed. The learned Judge having come to the conclusion that corrupt practices extensively prevailed among the freemen, and having reported to that effect, seemed anxious to avoid being supposed to mean to say that corrupt practices extensively prevailed throughout the whole city of Dublin; and he therefore added that, with the exception of the class of freemen, corrupt practices were not shown to have extensively prevailed, nor was there reason to believe that they had extensively prevailed at the election to which the petition he had to decide on related. It was quite plain that that was not a Report in the words of the Act of Parliament, and their Lordships ought not, under these circumstances, to agree to the proposed Address in the case of Dublin.

THE LORD CHANCELLOR
said, there was no magic in words, and if the Judge said—"I find that corrupt practices extensively prevailed among the freemen of the city, but, save as aforesaid, there were none," was not that sufficient? The Report that corrupt practices had extensively prevailed among a large class shows that they had existed; but the argument on the other side really was that, because corrupt practices extensively prevailed only among the freemen, corrupt practices did not extensively prevail at all. Surely they did not exist the less because they were confined only to a class. Suppose they existed in a particular street or in particular wards, and the Judge said so, not wishing to affix a stigma on the rest of the city, would not such a Report have justified a Royal Commission? As to the Clitheroe case the Committee there 1401 reported that treating extensively prevailed—treating not being an offence which, under the Act, would have justified the issue of the Commission—and then in the Motion for an Address the words of the Act were adopted, and the words of the Committee's Report were departed from. Here the very words of the Judge's Report were given in the Address. On the whole, he did not think it well to carry the Question to a division, and would therefore withdraw the Motion for an Address in the ease of the City of Dublin.