§ Moved, "That the first paragraph of Standing Order No. XX. be suspended and that the consideration of the Report from the Select Committee on Elections (Intervention of Peers and Prelates in Parliamentary Elections) have precedence of the Orders of the Day and Notices which stand before it."—(The Marquess of Salisbury.)
§ Motion agreed to.
§ Then the said report was considered (according to order).
THE LORD CHANCELLOR (Lord HALSBURY), in moving the reception of the Report, observed that their Lordships would remember that the Report of a Committee of the House of Commons, which had been sent to their Lordships repeating a Resolution which from time to time had been passed
every Session since the year 1641, had been referred to a Committee of their Lordships' House. In that Report certain statements had been made, but the nature of the infringement suggested had been unfortunately so wrapped up in ambiguity that it was very difficult to know what was intended by the Resolution. If it had referred simply to the absence of any right on the part of a Peer to vote in the election of a Member to serve in the House of Commons, he believed that none of their Lordships would have denied that by the Common Law of England a Peer was not entitled to vote. But the ambiguous language that a Peer should not concern himself in an election had been misunderstood to mean that Peers had no right to take an ordinary interest in electoral contests. While he believed, on the one hand, that no one would doubt that Peers are not entitled to vote in elections, on the other hand he believed that there was not the smallest foundation for suggesting that a Peer, like any other person interested in an election, could not take a lawful part in promoting the election of a Member of Parliament. The first conspicuous instance of action on the part of a Peer giving rise to this Resolution of the House of Commons was where a Peer had sent a letter to a particular borough ordering that a certain person should be elected member for that borough. In that case it was not unnatural that the House of Commons should resent such an occurrence as an undoubted interference, and the form of the Resolution specially passed indicated what it meant. A later instance was where an assault had taken place. But at present they had a modern Act of Parliament which made it penal to exercise any undue influence, and Peers as well as others were under that law. In these circumstances the Committee to whom their Lordships had remitted the consideration of this question had thought it right to make the following Report:—
Inasmuch as a Resolution of one House of Parliament cannot affect the law, it is unnecessary to take any action on the Report of the House of Commons as to the continuance of the Sessional order with reference to the intervention of peers or prelates in Parliamentary elections.
That which was contrary to the law in a Peer was equally contrary in a Com-
moner, and that which was unlawful in a Commoner was equally unlawful in a Peer, and in his opinion there was no other distinction. As the Resolution of their Lordships' Committee had suggested, neither House of Parliament could either make or unmake law, and the Resolution of the House of Commons neither added to nor took away from what the law was. He begged to move that the Report of the Committee be received.
§ Moved, "That the Report be received."—(The Lord Chancellor.)
§ LORD ESHER (MASTER of the ROLLS)
said, that he wished to say a few words, speaking entirely upon his own responsibility, which would be in no sense the opinion of their Lordships' House, with regard to the Resolution and Report of the House of Commons sent up to their Lordships. He would call their Lordships' attention to the extreme vagueness of the Resolution. It would be most difficult to say what interpretation was to be placed upon the Resolution. A good deal would depend on what was meant by interference. In the application of the Resolution to the case in 1641, to which the Lord Chancellor had referred, the Peer, he supposed, was the patron of the borough, and directed that a particular person should be elected as Member of Parliament. Such interference would by the Common Law be most improper. The second case, that of interference by force of arms, would no doubt also be most improper; but both would be as much illegal interference if done by any other person as by a Peer of the Realm. The Resolution could not pretend to be a judicial decision. The House of Commons had at one time the power of giving judicial decisions with regard to elections which were brought before it. But when there was no case before it upon which the House of Commons could adjudicate, it could not give anything like a judicial decision. A protest on the part of the House of Commons was but a pro-test, and could not have the effect of law before any judicial tribunal. Such a Resolution would have no effect whatever of any kind upon the law. As to the question of what the law is, and to the allegations in the Report, there is no legal penalty for interfering at an election, and no person 689 could be imprisoned for doing so. The only case in which the Resolution could possibly have any effect, if it could have an effect, was on a Parliamentary inquiry into the subject-matter of the election—namely, whether it was a due election or not. But the Resolution of the House of Commons could have no effect, because the House of Commons has given up the power of inquiring into the validity of an election, and the only tribunal which could inquire, and whose decision would have any effect, was the tribunal of the Judges appointed to try Election Petitions. Neither a Resolution of the House of Commons nor a Resolution of the House of Lords, nor both combined, would have any effect upon the Judges. The Judges must decide by Common Law or by Statute Law if anything should be alleged to have been done contrary to Statute. As he understood that this was the first time that this Resolution of the House of Commons had been sent to their Lordships' House, this is the first time that the House could take no notice of it. As it has never before come before them, it is impossible to say that their Lordships' House have failed to controvert it. It could not, therefore, be properly said that their Lordships, by not controverting, had made any admission. In the same way he was bound to say that this Resolution had never been brought in any shape or form to the attention of any judicial tribunal whatever. But if there had been an admission by their Lordships' House, it could be no higher than a declaration by the House; and, as he had said, a declaration of their Lordships' House would have the same effect only as a declaration of the House of Commons; and a joint declaration of both Houses would have no effect of any kind on the Common Law; it could neither add to it nor take from it. The Report went on to say that the Sessional Order of the House of Commons had been recognized by the Courts as a declaration of law. That was not so. He was party to a case in which not that Resolution, but a Resolution passed in 1699 was brought before the Court. This case was not called to the attention of the Committee of the House of Commons, though it is on the Journals. That case was that in consequence of the Earl of Manchester having voted at 690 an election, the House of Commons resolved that no Peer in this Kingdom had any right to give a vote in the election of any Member of Parliament. That Resolution was brought before the Court as the judicial decision of the House of Commons upon an Election Petition in which the seat was claimed, and the election was declared void. It was the decision of the House of Commons, therefore, given as a judicial decision determining the election. Such a decision, therefore, would probably be treated as a high authority by the Court of Common Pleas. He affirmed that the Resolution that Peers should not vote at elections, which was passed year by year by the House of Commons, had no effect what-ever. That Resolution had never been brought before any judicial tribunal of the country, and it was therefore erroneous to say that the Resolution was evidence of the Common Law of the land. The only Court that could come to a decision as to whether the interference of a particular Peer was or was not according to the Common Law of England was the Court of Judges of Election Petitions. If their Lordships were now to come to any decision on the subject it would be a futile decision and would have no effect whatever. The matter must be left to the only tribunal that could decide it. He, therefore, strongly advised their Lordships to adopt the Resolution.
§ LORD HERSCHELL
said, he heartily agreed with every word contained in the Resolution. No Resolution of the Houses of Parliament could affect the law. It was quite certain that a Resolution passed by the House of Commons could not create the law if it did not otherwise exist. He was not, however, prepared to say that the declaration which had been made by the House of Cammons year after year for nearly two centuries was at variance with the Common Law of this country. If his noble and learned Friend opposite said that there was no decision which supported such a Resolution, he could only say there was no decision against it. Unquestionably it could not be denied that the impression had prevailed and been acted upon for many years that a Peer was not justified in taking that part in the election of Members of Parliament which every other subject could exercise. Distinction had been drawn between a 691 Peer taking part in ordinary political discussion and taking part in elections. Where the dividing line came in was a question which he did not think it necessary to decide. All he wished to say was that the matter should be left where it was. They could not by any expression of opinion make the law other than it was. He thought it was much better not to admit any new definition, especially as by immemorial usage there had been abstention on the part of Peers from taking part in elections. One other matter he ought to mention was that the Resolution of 1700 was brought to the attention of the Court of Common Pleas, and was referred to by Chief Justice Bovill in his judgment, though he quite agreed there was no decision in the case. He ought, also, to mention that after the Act of Union a new Standing Order was made which contained the old declaration, but in different terms, and making other provisions with reference to the action of Irish Peers. Therefore, it was not a mere reiteration from year to year, but the matter was considered by the House after the Act of Union. He entirely supported the Motion before the House, but he wished to make it clear that he was entitled to reserve his judgment as to what the Common Law had been.
§ EARL GRANVILLE
said, he was glad this discussion had taken place, because the fact that there was not absolute harmony among the Law Lords who had spoken with regard to the exact state of the law confirmed the necessity for approaching the subject with extreme caution; moreover, that want of harmony made the decision of their Lordship's Committee more satisfactory, as they were entirely agreed as to their Report. The state of the law on the subject appeared to him, as a Member of the Committee, to require very much more lengthened and elaborate inquiry than could be afforded to it on that occasion. The very fact that it was acknowledged on all hands that neither House of Parliament could by Resolution affect the law showed that there was no practical necessity for expressing an opinion on the Resolution of the Commons. He would, therefore, recommend their Lordships to adopt the Resolution.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)
With reference to the legal argument of the noble and learned Lord opposite (Lord Herschell) I shall not venture to offer an opinion, but he diverged for a moment from a mere statement of the law to what he conceived to be a statement of fact, and on that point I do not think he was accurate. He stated that the immemorial usage was that no Peer should concern himself in an election at the time it was taking place. If he had said that that had been a general custom I should not have disputed it; but it has been by no means a universal custom. I have known Peers to vote at elections; at University elections it was a common thing. I have taken part myself as a Peer in proceedings about an election after the Writ was issued. I believe it has been frequently done, and the only rule limiting it has been the power of the House of Commons, up to a recent date, possessed of cancelling an election without giving any reason for that annulment. Of course, as long as the House of Commons had that power, if any Peer thought he had a right to interfere and did interfere, and the result was the annulment of the election, his labour would be thrown away; but as to the fact that they have aften interfered I have no doubt whatever. I venture to prophecy that, as matters are carried for decision more to the hustings and the platform and less to the House of Commons at Westminster, your Lordships, not as Peers, but simply as ordinary citizens, will at all times express your opinions, as you undoubtedly have the right to do, as to who are the best persons to frame financial laws which you will have to accept, and to select the rulers who will rule the country in which you dwell. If you have no right to express opinions on these matters, you are, in respect of them, in a position more disadvantageous than any citizen of this country who is not an elector. There would then be three graduated stages of disability—electors who can vote, non-electors who cannot vote but may express opinions, and Peers who may neither vote nor express opinions. I do not think the Constitution places you in that position. I believe that the very fact that you have no power in this House to deal with the selection of those who govern the country, the very fact that by usage you 693 abstain from dealing with financial matters, does morally and practically confer upon you the right which is possessed by the humblest subject of her Majesty of expressing at all times freely your opinions upon all political matters which are before the country.
§ Motion agreed to.