§ Lord John Russell
said, that before he moved the reading of the Order of the Day, he wished to call the attention of the House to a subject which he thought entitled to their best consideration, and which, therefore, would most suitably be brought forward at a period of the evening, when the House was tolerably full. The Reform Bill having passed in 1832, the House would recollect, that on the 23d of June 1833, a resolution was passed, on the motion of the present Earl Spencer, respecting the striking off the names of voters from the register, which was in the following terms:—That in all cases where a Select Committee, appointed to try the merits of an election for any county, city, or borough, report to the House, that the names of any voters ought not to have been placed in the register of voters, or that the names of any voters have been unduly omitted from such register, Mr. Speaker shall issue his directions thereupon to the clerk of the peace, town clerk, or other officer with whom the register of voters of such county, city, or borough is deposited, to amend such register, by striking out or adding names to such register, as the case may be, in conformity to the report of such Select Committee.Having maturely considered the subject, however, in consequence of the reports of Select Committees of the House, both on the present and past session, he was induced to think that the House would now deem it proper to amend that resolution, by restricting its operation to Great Britain. He conceived that the resolution was based entirely on the Reform Act of 1832. Now, the Reform Act for England contained a clause expressly providing, that when any Election Committee should report that the names of any voters had been improperly placed on the register of voters, or improperly omitted, the Speaker should cause such register to be amended, by the striking off or insertion of the names in question, and the Scotch Act contained a clause giving similar power, though couched in more ambiguous terms. In the Irish Reform Act, however, there was no provision of the kind; and he conceived, therefore, that the law, as it affected the Irish registry, remained in the same state as before 955 the passing of the Reform Act. The Irish Act being entirely silent on the point, although both the English and Scotch Acts contained express provisions to the effect stated, he conceived it highly improper for the House, by virtue of a mere resolution, to assume a power not given it by Act of Parliament, or to pretend to correct the register, or make regulations as to the future votes of voters in any other way than that laid down by the Act of Parliament. He believed, that, in all former instances where a questionable vote was brought before the House—whether in its collective capacity, as in former times, or in a Select Committee, as in later times—and disallowed, the practice had invariably been to deprive the party of his vote for the election under consideration, but never to interfere with his vote in reference to future elections. Under the resolution of 1833, several cases had occurred in which the Speaker had been called upon to exercise the power given by that resolution; that resolution was somewhat altered in 1835, since which period no occasion had arisen for the Speaker's interference. It having been discovered, however, that the resolution might improperly apply to Ireland, although the Reform Act, in reference to that country, contained no clause authorising such a resolution, it was deemed expedient that the resolution should be altogether rescinded, and that another should be substituted, having application only to Great Britain. He would not further detain the House, but content himself with moving, that the resolution of the 23d of June, 1835, relating to the correction of the register, in pursuance of the report of an Election Committee, be rescinded, and another resolution substituted in lieu thereof, namely:—That in all cases where a Select Committee appointed to try the merits of an election for any county, city, or borough, in Great Britain, report to the House that the name of any person who voted at such election had been improperly inserted or retained in the register of voters, or that the name of any person who tendered his vote at such election, had been improperly omitted from such register, Mr. Speaker shall issue his directions thereupon to the clerk of the peace, town clerk, or other officer with whom the register of voters of such county, city, or borough is deposited, to amend such register, by striking out or adding names to such register, as the case may be, in conformity to the report of such Select Committee.
§ Sir E. B. Sugden
said, that he thought 956 the resolution which the noble Lord had just moved, would not have the effect which he supposed, but it would have the effect of operating upon the minds of Election Committees, as to their right of opening the registers in Ireland; it would certainly not decide the question, but it would influence the minds of the Members of Election Committees. It would be absolutely necessary, first to consider whether a Committee Might open a register, and if not, the operation of the resolution must be extremely small. He had hitherto avoided looking at the question as to the right of keeping open the register. He did not wish to give an opinion of the law on the case, but it was now forced upon him, His decided opinion was, that this question was forced on the House,—could a Committee open the register or not? He thought that they had that power. He would proceed to state the argument of the question. There were three Acts—one for England, one for Scotland, and one for Ireland. The noble Lord had now found out, after a great lapse of time, that his resolution, though warranted by the English and Scotch Reform Bills, was unauthorised by the terms of the Irish Reform Act. The noble Lord was aware of the exact difference between the three Acts; the difference was so great, that he had the utmost difficulty in believing, that the noble Lord was serious in continuing as to Scotland what was taken away from Ireland. It was admitted on all hands—it was expressly provided, that as to England, a Committee might open and correct the register; why had such a provision been introduced, and what had been its operation? That provision was made because a system of registry was then, for the first time, introduced with regard to England, and it affirmatively gave power to do many things which could have been accomplished, though no such clause or resolution had been inserted in the Reform Act. It was, in many respects, only an affirmation of what the House would have had the power of doing of its own prerogative and control, without any such provision. The Scotch Act assumed a totally different shape. Instead of affirming, as nearly as words could express it, the Scotch Act assumed the power to be in the House, independently of the Act, and declared, that nothing in the Act should limit or take it away. The words of the Act were—Provided always, that no alteration of 957 the sheriffs' judgments, either by the courts of review above-named, or by any other judges of appeal, shall affect the merits of any election actually completed and carried through before the date of such alteration, except in so far as effect may be given to such alteration by any Committee of the house of Commons of Parliament, to which a petition against such election may be referred: provided also that nothing herein contained shall be held to limit or restrain the powers of such Committee, to take into consideration the validity of any vote or claim for registration, admitted or rejected by the sheriff of the judges of appeal, and to alter the register, poll, or return accordingly.The Act clearly assumed that the Committee had the power—it did not give any power which the Committee did not before possess. Beyond all doubt or question, it assumed the power to be in the Committee, and in the House, and that it was not necessary to give the power to the Committee. How, then, could the noble Lord reconcile this with his proposal to exclude Ireland, because there was no express provision for directing the registry in the Irish Reform Act, while he did not exclude Scotland, the Scotch Reform Act only saving the pre-existing power, and not granting any new power to that effect? The noble Lord would find much more difficulty than he seemed to imagine in reconciling his resolution with the actual state of the law. The Irish Act was different from the other two. The provisions of none of these Acts were equal to each other; if they were equal in point of law, certainly they were not in expression. The Irish Act particularly provided what should be the operation of the certificate. There was a system of registration in Scotland before the Reform Bill, but it did not affect the right of voting. In Ireland, from 1795 down to the 10th of George 4th, there was also a system of registration which made the certificate conclusive of the right to vote, but did not at all bind that House. There was not one word in any of the acts of Parliament before the Irish Reform Bill which limited the power of that House to regulate its own elections and control, or correct any improper return. The Irish Reform Bill followed the Act of the 10th of George 4th., and expressly enacted, that the certificate should have the same effect as it would have had under the prior acts of Parliament. Under prior acts of Parliament there was not a single clause to restrain or take away the right of that House to look to the registry. The cer- 958 tificate was to be conclusive of the right to vote at the moment of voting, but did nothing to restrain the House. Clause 59, on which great reliance had been placed, was in these words:—"And be it enacted, that if any person at the time of any election, being in the enjoyment of any office disqualifying him from voting at such election, or being otherwise disqualified, or having ceased to be qualified, shall notwithstanding presume to vote at such election, such person shall forfeit to his Majesty a sum of 100l., and shall be liable to all penalties, forfeitures, and provisions to which he would have been subject for such offence by any law in force at the time of committing the same; and in case of a petition to the House of Commons for altering the return, or setting aside the election at which such person shall have voted, his vote shall be struck off by the Committee, with such costs as to them shall seem meet, to be paid by him to the petitioner." The inference drawn from that clause was, that it was impossible to open the register, because, there being no express power given, a person disqualified to vote at the time of the registry might be "struck off" by the Committee. The truth was, this clause had been introduced alio intuitu, to impose a fine of 100l. on a person for voting who knew of his disqualification at the time, and to give the Committee a power to indemnify the petitioner in costs at the voter's expense. It in no degree took away the power of the House or of the Committee to open the register. The expression used was very remarkable—"his vote shall be struck off by the Committee," leaving it open whether it should be construed off "the poll," or off "the register." There was a contest at the time between those who supported the measure generally, some wishing to have a clause altogether to exclude the right of opening the register, and others requiring one expressly to open it; so that by way of compromise the question was left open; it was not struck out of the bill, it was only stated generally that the Committee should "strike off" the vote. One rule he took to be universal—they could not take away a power if it existed by a proviso of this sort, which was not inconsistent with it; they could not say, because these words provided specially for one case with a view to certain penalties, they should exclude a general power that previously existed. It was very important that this should be clearly under- 959 stood: if in Ireland a person were once put on the register, there he remained for years unless struck off by a Committee of that House; and even in that case he might vote immediately after on that very qualification which the Committee had declared absolutely void. In England there was no such inconvenience. In Ireland there was this additional inconvenience, that the assistant barrister might put whom he pleased on the poll, nor could he be struck off the register unless the House had power to strike him off. What, then, were the principles on which such a case as this should be decided? He took it that the House had inherently, by its own prerogative, a power to review and control all returns at elections for that House unless absolutely restrained by act of Parliament. It was upwards of two centuries since the House had resolved, that its ancient power and privilege was, to examine into all elections and returns to that House; and that resolution had never been impeached nor rescinded. He submitted, that the power of the House was supreme and without control as judge of the returns of its own Members itself, and alone. Nobody would dispute that. Another rule was, that where any court had a superior jurisdiction, nothing in the shape of an act of Parliament could take it away by giving another jurisdiction, unless it took away the superior jurisdiction. Although another power was introduced, the superior power still remained, unless it was expressly taken away. The case of the Court of Review in Bankruptcy put this point beyond dispute. The power of that House, its unchallenged, ancient, inherent power of jurisdiction, could only be taken away by an express, positive, Parliamentary enactment. Had it then been taken away by any act of Parliament? The acts of union had this provision—"that all questions touching the election of Members to sit on the part of Ireland in the House of Commons of the United Kingdom should be heard and decided in the same manner as questions touching the elections in Great Britain, subject nevertheless to such particular regulations in respect to Ireland as from local circumstances the Parliament of the United Kingdom may deem expedient." The election laws, therefore, as regarded Irish Members in the United Kingdom, were made subject to the English laws, except so far as Parliament should hereafter deem expedient. That provision had never been repealed, and such was the law of the 960 country at this very moment. The Act for which they were indebted to his right hon. Friend near him (Mr. C. Wynn), the 9th George 4th., had this provision—"that on the report of a Select Committee the House shall give the necessary directions for altering the return," and after providing for particular cases, "to carry the same determination into execution as the case shall require." There could be no doubt or contest, unless the right were taken away by the Irish Reform Act, that the Committee had the power to open the registry. It was perfectly clear in point of law; he entertained not the slightest doubt, that the Committee had the power to open the registry, and then it followed by necessary consequence that the Speaker, in obedience to the directions of the House, should order the registry to be corrected in Ireland. That was an incident to the Act of the Committee. The decision of the Committee being that certain votes were bad, and ought not to have been on the register, they could strike them off the poll, but not off the register without liberty from the House. But the House, to vindicate its own resolution, would direct them to be struck off the register. The 55th clause of the Irish Reform Act was in these words—"And be it enacted, that all laws, statutes, and usages, now in force respecting elections of Members to serve in Parliament for any county, city, town, or borough in Ireland, shall, save so far as they are respectively repealed or altered by this Act, remain, and they are hereby re-enacted and declared to be in full force; and that all elections for any Member or Members to serve in this present Parliament to be hereafter had, shall be held and made as if this Act had not been passed." To that the Irish Reform Act expressly provided that "all the laws, statutes, and usages now in force respecting elections," &c., "should, save so far as they are respectively repealed or altered by this Act, be re-enacted." The provisions of the Grenville Act, the acts of union, all the statutes previously existing, except so far as altered by the Irish Reform Bill, were re-enacted. Where there was nothing in the Irish Reform Bill to alter or repeal those ancient powers and usages, those ancient powers and usages still existed. The Irish Act said, they should exist, unless they were taken away, and the Grenville Act said, the House would give directions to carry them into execution as the case might require. The case required, that the register should be 961 corrected as well as the poll. There was direct authority for this, not merely authority given by implication. The Speaker had the power under the Grenville Act, which he had a right, when the case required it, to exercise. He had called the attention of the House expressly to the provisions of the Grenville Act. He had likewise endeavoured to prove to it that the right of the Committee to open the registry in Ireland was quite clear in point of law. He had looked at the point with all the diligence and with all the impartiality which he could command, and he had come, after due consideration, to the conclusion which he had just stated. Whether the House had now the power by its original and primary prerogative never yet displaced by statute, or whether the House possessed it by virtue of Acts of Parliament, in either case he contended, that the resolution of the noble Lord, so far as Ireland was excluded from its operation, was not according to law. He thought that the present was a very inopportune period for raising this question, because any resolution to which the House might now come would have an effect upon those Committees either now sitting or to be appointed hereafter, before whom it might happen to be agitated. He should, therefore, propose to adjourn the present debate to a distant day, in order that the House might not be thus suddenly called upon to put on the Act of Parliament the construction which the noble Lord had just proposed. If the noble Lord should persist in pressing his resolution upon the House at present, he, for one, should certainly vote against it, and he therefore proposed an adjournment of the debate, as well for other reasons as for the sake of saving the noble Lord the trouble and discomfort of voting against his former opinions. It was under the influence of some new light, which had recently broken in upon him, that the noble Lord entertained his present opinion, which was very different from that which he had embodied into the shape of a resolution in 1835. For the reasons which he had just stated, he should, if the noble Lord persevered in his resolution, take the liberty of moving that the debate be adjourned to this day two months.
§ The Attorney-General
was understood to say, that the question before the House was, whether the resolution of the 25th June, 1835, relating to the correction of the register, ought to be rescinded or not. He trusted, that he should be able to con- 962 vince his learned Friend, the Member for Ripon, notwithstanding the opinion which he had so deliberately formed in favour of that resolution, that it could not stand, as it was unauthorised either by the law or the practice of Parliament. According to that resolution, after a Committee appointed to try the merits of an Irish election had reported to the House that the names of certain voters ought not to have been placed on the register, or that the names of certain voters had been unduly omitted from it, the Speaker was to issue his warrant to the officer with whom the register was deposited, directing him to amend the register by striking out from, or by adding to, that register, as the case might be, the names contained in the report of that Committee. Now, with all deference to Mr. Speaker, he would observe, that the Speaker's warrant containing any such directions was not a whit better than so much waste paper; for the House had no authority whatsoever to direct Mr. Speaker to issue any such warrant. By the Irish Acts relating to registration, after the elector was once put on the register by the assistant barrister, and had obtained from him the certificate entitling him to vote, that certificate was primâ facie evidence of his right to vote, and without that certificate, or the affidavit verifying his title regularly signed by the assistant barrister, he could not vote at all. To support the resolution of the House in 1835 was to deprive the elector of a privilege given to him in express words by the Legislature in the Irish Reform Act; and unless the House had that power of deprivation given to it in so many words by an Act of Parliament, it had no such power at all, for undoubtedly it did not possess it at common law. In fact, it was setting aside the law by a resolution of that House. If his right hon. and learned Friend, the Member for Ripon, were right in his argument that this power was given to the House, and through the House to the Speaker, in the case of all elections in England, and that the Irish Reform Act extended that power to all elections in Ireland, there was an end to the question; but these were points too important to be taken for granted, even upon the authority of his right hon. and learned Friend, and his right hon. and learned Friend ought to be prepared to point out to the House the precise words of the Act of Parliament which gave it the power to overrule the whole register, and to cancel the certificates granted by the 963 assistant-barrister. The resolution which his noble Friend near him had proposed, did not at all touch upon the great point involved in the question, whether an Election Committee had a right, under the Irish Reform Act, to open the register. On that question he would not give any opinion at present, for it was not regularly before the House. Though he was inclined to attach due weight to the opinion of his right hon. and learned Friend, the Member for Ripon, whenever he had attended to the arguments on both sides of a question, yet on this particular question he must say, that he could not consider his right hon. and learned Friend's judgment entitled to the same respect as if it had been given in any of the cases which he had decided judicially as Lord Chancellor of Ireland. It was a question which his right hon. and learned Friend might yet have to decide in his capacity of a Member of an Election Committee. It might have been better if his right hon. and learned Friend, before he had come forward voluntarily to give an extra judicial opinion on this vexata qustio, had heard what could be said on the other side. For instance, it might have been better had his right hon. and learned Friend first heard the acute and forcible argument of his learned Friend, Mr. Austin, who had convinced several Committees that they had no right to open the register. He thought that his right hon. Friend ought not to have committed himself by an extra judicial opinion upon the question. It was, as he had already stated, a question that had been so often argued, that it would have been better for his right hon. Friend to have abstained from giving any opinion on a question prematurely, upon which, in a different capacity, he might hereafter be called upon to adjudicate. He repeated, that the question of opening the register had nothing to do with this resolution. He would, however, for the sake of argument, concede that the Election Committees had a clear right to open the register, and to declare any vote on it an undue and unlawful vote. The question then arose whether the Speaker had a right to issue his warrant, directing the officer who kept the register, to alter the register in conformity with the report of the Election Committee. He agreed with his right hon. and learned Friend, the Member for Ripon, that the House, where it was not debarred by Act of Par- 964 liament, had a right to determine every thing regarding the election of its own Members; and that, for the purpose of that election, its decision was supreme and final. But,—and here was the difference between his right hon. Friend and himself—it was for the purpose of that election, and of that election only, the House had a right to strike electors off the poll, but it had no right to disfranchise electors in futuro. Such a right was never dreamt of till the year 1833; and the resolution of that year was avowedly founded on the Reform Act. The English Reform Act unquestionably gave that power to the. House over the English registers; and it was on the authority of the English Reform Act that the resolution of 1833 was afterwards altered by the resolution of 1835. Before the Reform Act was passed, the right of determining elections, was regulated in various ways. Before the Grenville Act became law, the House determined all election-petitions as a body; afterwards it determined them by its Committees; but both before and after that Act, the House reserved to itself the right to determine whether any elector had been injured, either by the decision of the House, or by that of a Committee. But the House never ventured to go further than that. The House never authorised its Speaker to issue his warrant to any town clerk, directing him to exclude any freeman from the list of voters belonging to that city or borough. Such a thing was never done—such a stretch of power was never dreamt of. The elector, whom the Committee struck off the poll, came forward at the next election, and if he was dissatisfied with its decision, claimed, as before, to vote. If the returning officer were satisfied as to the elector's claim, he was bound to take the vote of the elector, who had been rejected by the Committee, for on another election it might happen that another Committee might hold that to be a good vote which a former Committee had held to be on the contrary. Such cases had frequently occurred. Had there not been decisions over and over again, one Committee de-declaring an individual entitled to vote, whom another Committee had disfranchised? Then again, with regard to freeholders, First, as to the right of freehold. Was it ever supposed that a Committee could decide for more than the election referred to them, whether the freehold claimed was a good freehold—whether it was of sufficient 965 value to confer the franchise—or whether it had been for a sufficient time in the hand of the claimant? A Committee might disfranchise the claimant for one election, but it could not disfranchise him for ever. It was not till the Reform Bill passed in 1832, that any such right was supposed to exist, either in the Committee or in the whole House. The English Reform Act, by its 60th clause, gave to the Election Committee not only the power of deciding upon any particular vote, but also the power of correcting the register, so far as that or any other vote was concerned. That was a particular power given to the House, to be carried into effect by the Speaker's warrant. The law on the point was clear, so far as England was concerned. It was not so clear so far as Scotland was required. But in Ireland there was no law on the point at all. His humble opinion was, that the Scotch Reform Act did give the same power to the Committee as the English Reform Act gave it; for it said, that the Committee might "alter the register." But, then, again, it limited the correction by inserting the words "in so far as concerns the election petitioned against." From the words giving the Committee power to "alter the register," he concluded, that it was the intention of the Legislature that they should exercise over the register the power of correction. But the Irish Reform Bill was entirely silent on this subject; and the noble Lord opposite, the Member for North Lancashire, declared over and over again, in the discussions on the Irish Reform Bill, that he did not intend to introduce into Ireland the English system of registration, but that he wished the Irish system to be adopted just as he found it. Was it ever thought of in that country—was it ever dreamt of here, before the year 1833, that an Election Committee had the power to alter the register in Ireland? Could his right hon. and learned Friend point out a solitary instance in which such alteration or correction had been attempted before the year 1833? The law now was the same as before the Reform Bill. "But," said his right hon. and learned Friend, the Member for Ripon, "I rely upon the Grenville Act." Now, with all deference to his right hon. and learned Friend, he must tell him, that the Grenville Act had no bearing whatever on this question. The Grenville Act gave power to do everything that was necessary to set right the election referred to the consideration of the 966 Committee, but it gave the House power to do nothing more, and no one was justified in saying, that the resolutions of 1833 and 1835 were founded on the Grenville Act, and especially on the Grenville Act alone. The system of Irish registration, he again repeated, was left by the noble Member for North Lancashire as he found it. The certificate in Ireland lasted for eight years. The noble Lord did not alter the time of its duration. Why, then, what became of the suggestion of his noble and learned Friend that no injury was done to the voter by striking him off the register, because, if he had a good vote, and could make it out to the satisfaction of the assistant barrister, he could get registered de novo? It might happen that for six months after his name was struck off the register he might remain disfranchised; during that time no opportunity might be afforded him to replace his name on the register, and if in that interval an election took place he would be disqualified from voting. Would his right hon. and learned Friend contend in a country which boasted of its representative Government that that was no injury? Then the question before the House simply resolved itself into this, "Can you, so far as Ireland is concerned, correct the register, and remove a single name from it?" He said, that no power to do this was given to the House by Act of Parliament, and if no such power was given by Act of Parliament, it was quite evident from the recent origin of the registration system that it was not given at common law. The very fact of his right hon. and learned Friend being driven to the necessity of saying, that it was given by the Grenville Act and the Reform Act combined was a clear proof that it was not given at common law. Why, even in England, to say nothing of Ireland, this power did not exist in the House until it was given by the 60th section of the English Reform Act. In point of fact, it was well known that their resolution of 1835, notwithstanding all the terrors which the Speaker's warrant usually inspired, was considered by all lawyers, so far as Ireland was concerned, as nothing better than waste paper. Take the case of the city of Cork for an example. There, an assistant barrister, a gentleman of great eminence and high professional character at the Irish bar, had laughed at the warrant of the Speaker. It was shown to him. "Here is the Speaker's warrant; it directs you to erase 967 from the register so many names." The assistant barrister's reply was immediate. He said, "The House of Commons has no such power as it here arrogates to itself. It cannot of its own inherent authority command me to alter the register. It has not had the power conferred on it by Act of Parliament, and I shall therefore treat the Speaker's warrant as waste paper." He was as good as his word; he did not erase the names.
§ The Attorney-General
That made his argument still stronger. The assistant-barrister for Cork found the names erased by the clerk of the peace, and, acting on his own opinion of the law—which he was well qualified to form—he actually restored them to the registry with the Speaker's warrant under his very eyes. What had the House done to vindicate the authority of that warrant? Nothing—absolutely nothing. And why? Because, upon consideration, the House felt that it had not the power which it claimed, either by common law or by statute law. The power had been clearly conferred on the Committee by the English Reform Act—it had not been so clearly conferred by the Scotch Reform Act—and it had not been conferred at all by the Irish Reform Act. The resolution of 1835 was, therefore, not according to law. He was willing to take his share of the blame of having recommended that resolution: for he thought it much wiser, and much better to amend an error than to persist in it after it was discovered.
should not have deemed it necessary to trespass on the attention of the House, after the very convincing speech of her Majesty's Attorney-General on this subject, had he not been anxious to express his opinion that the right hon. and learned Member for Ripon had introduced subjects not at all connected with the question, and improperly introduced them, whilst so many Election Committees were still sitting, which might be swayed by his opinions. There was not the slightest occasion for the right hon. and learned Gentleman to have entered on the question of the right of an Election Committee to open the register in Ireland in discussing this resolution. The right hon. and learned Gentleman had introduced that dissertation, not, he believed, for any improper purpose, but to serve a purpose not 968 floating in his mind when he commenced, but which afterwards entered it in the course of his speech—he meant the purpose of influencing the judgment of those persons who either had been, or might hereafter be, sworn to decide on Irish election petitions. Leaving that topic, however, to the consideration of the House, he would now proceed to inform it of the particulars of the transaction at Cork, to which her Majesty's Attorney-General had briefly alluded. By a decision of the assistant barrister, 700 freemen, who resided at a greater distance than seven miles from the city of Cork, were rejected as electors for that place. They appealed from the decision of the assistant barrister to the judge of assize, who happened to be Mr. Baron Pennefather. That learned judge accepted them all as electors. It was stated to him, that for such electors there was neither any affidavit nor any certificate provided in the Act of Parliament. He said, that he did not mind that, he would frame a form both of affidavit and certificate. The learned judge drew up both. Those electors went to the poll and turned the election. Two gentlemen, who would otherwise have been returned, were rejected. They petitioned against the return, and, on considering their petition, the House of Commons determined, that neither the certificates nor the affidavits were valid, that the votes of these freemen were bad, and that their names ought, therefore, to be struck off' the poll. An order of the Speaker was in consequence taken to the clerk of the peace for that district, and, in obedience to it, he struck the names of those voters off the register. On being made acquainted with that circumstance, Mr. Martley, the assistant barrister, then a King's counsel of great eminence, of political opinions agreeing with those of the right hon. and learned Member for Ripon, the brother-in-law to Mr. Blackburne, the Attorney-General to the Administration of that day, and of the Administration which had preceded it, ordered the clerk of the peace to restore to the register the names which he had erased in virtue of the order of that House. They were restored accordingly, and voted to the number of 263 at the last election. His hon. Friend had appealed to the House on this subject, and had accused the assistant barrister of a breach of privilege. He believed that Mr. Martley had acted conscientiously; but if to treat the Speaker's warrant with con- 969 tempt were a breach of privilege, Mr. Martley had been guilty of a breach of privilege, and ought to have been publicly reprimanded for it by the Speaker. But no such thing had happened, reprimanded he had never been. But let that pass. Had there been any necessity for the right hon. and learned Member for Ripon to enter into an argument on the propriety of opening the Irish registers? Let the House see how little that question had to do with the resolution then before it. In Ireland, there was no roll of registry at all—it was merely imaginary. The elector obtained from the assistant barrister a certificate of his right to vote, and an affidavit verifying his title, attested by the signature of the same officer. If the elector produced either that certificate or that affidavit, nobody could legally prevent him from voting. What good, then, was accomplished by striking his name off the register? Did the order of the Speaker affect either his certificate or his affidavit? He goes to the returning officer with his certificate in his pocket—he reads to him that section of the Act which declares, that the production of his certificate is decisive of his right to vote—and, after he has done that, not even the order of the Speaker can prevent his vote from being taken at the poll. It was not by any direct authority—it could only be by implication—that the right hon. and learned Member for Ripon had arrived at the firm opinion on this subject which he had just expressed, for the rule which the right hon. and learned Gentleman had laid down did nothing for his argument. Even if the voter's certificate was lost, the production of his affidavit would be sufficient to entitle him to vote, and thus again the order of the Speaker, as Mr. Martley had expressed it, was nothing else but mere waste paper. What could be more monstrous than the operation of the resolution of 1835 as it now stood? Votes were tendered at elections which were perfectly good as far as regarded the register, those who tendered them had done every thing required to entitle them to vote, and had paid up all their taxes; but in Ireland taxes were required to be paid which became due after the registration, and the vote might be struck off for non-payment of such taxes. Was it fair to strike off a vote for a subsequent omission of the voter, though at the time of registration every obligation required by law had been discharged? This could not occur in England 970 and Scotland; for there no inquiry was made as to subsequent taxes; but it happened in Ireland. Nine-tenths of the votes struck off in Irish elections were disallowed in cities and towns for alleged non-payment of subsequent taxes. But if an election were declared void, it was very plain that by going and paying their taxes the voters had the clearest right to exercise their franchise, which right would be most preposterously and unjustly taken away if Ireland were included in the resolution. What was the mode of registration in Ireland? Registry was not effected by making a list or poll, but by a judicial determination. In any case a man could not be registered until he proved his right in every respect, and until a judicial decision was passed on it. He was obliged to bring his title deeds, which were liable to be inspected, even to ascertain whether the proper stamps had been used. He was obliged to prove his land, and to satisfy the assistant barrister in every particular. That magistrate heard the entire case, and formed his decision upon it, and his judgment could not be impugned on a mere technical ground, for the words of the Act were express upon the point. What could be more unjust than attempts to open the register? For example, a man was registered five years ago, a Committee proposes now to open the register, and they say to the voter, you have not paid your taxes. Who could show at present that he had paid all his taxes due at a particular period within the last five or six years? Why, nobody could prove it; and if not, all that an opponent had to do would be to get the book of taxes, to prove that the entries were regularly made—a very easy matter if the Committee were favourable—and then to insist that the voter must be disqualified, because he had not paid his taxes. If the registry were opened, could it be proved, that the value of the land had remained the same at all times for the last five years? Could any thing be more monstrous than to permit, by implication, such questions as these to be raised? Could anything be more unjust than to subject the voters of Ireland to the enormous expense they must incur if such proceedings were admissible? With what show of reason could the registry be opened if such consequences were to follow? The right hon. and learned Member for Ripon had talked of the danger of abandoning the power which that House 971 possessed of regulating all matters connected with elections. But would the right hon. Gentleman say, that the House had any power to interfere in any matter which came within the scope of the Grenville Act? The registry, however, was the creature of the Act of Parliament. The conditions under which registration was to be effected were strictly laid down by the Act, and the House had no jurisdiction over it, except in so far as the Act provided. Registry could not take place except through a judicial determination, into the grounds of which the House had no power to inquire, and which power they could not of course delegate to an election Committee. What, then, became of the right hon. Gentleman's case? An election Committee had not the power of striking votes off the register. Then the House, according to the right hon. Gentleman's view of its powers, must, of course, decide. But how? By really investigating every case. They must do that, for they could not strike off all the votes for subsequent non-payment of taxes. Then the House itself would have to discriminate between cases of votes struck off for subsequent non-payment, and those which ought never to have been registered, by reason of prior non-payment of taxes. The House would have to investigate every vote, and thus, in fact, a jurisdiction would be restored to it of which it had happily been long deprived altogether. He repeated, that on no principle of expediency, consistency, or justice, could the policy of opening the register be defended; there was no end to the embarrassment and confusion it occasioned. Suppose a Committee to strike off a number of votes; if they were wrong in taking them off, cadit questio, the votes must be returned; but, supposing them right, they were bound to see from the statute-book what authority there was for striking the votes off the register. He defied them to show any; in fact, to speak of the register in Ireland was a mere abuse of the term. In England the register was a list from which the electors voted; there no man could vote from a certificate or an affidavit; his name was on the roll, and he identified himself on oath. But the Irish registry was in no way analogous to that. In England no question was raised, unless from an objection made to the validity of the claim: in Ireland, registry arose out of a judicial determination, with which the House could not interfere. The House had no 972 power to interfere with a certificate or affidavit; and that being so, their order was quite futile. He defied any man to show, that according to the law of Ireland there was anything that could be called registry but the certificate and affidavit. The order of the House had been set at nought already, and the proposed correction of the resolution was necessary, in order to abolish a rule, absurd and useless as regarded Ireland, and which could not be extended to that country.
§ Mr. Williams Wynn
could not help wondering, that the hon. and learned Member should in no respect have addressed himself to the proposition made by his right hon. Friend, that of suspending a decision upon this question. He was quite willing to admit, that this subject was embarrassed by many difficulties, and he felt, that they could only be satisfactorily disposed of by a declaratory Act. That, he thought, was the safest method of settling cases of this kind. Many points were not provided for by law, and were left to be decided by resolutions of the House. In numerous instances, however, the inconvenience of that course had been experienced, and it had been found necessary to legislate afresh on doubtful matters, as the resolutions of the House could not be equally binding with Acts of Parliament. He confessed he would much prefer, that the resolution of 1835 be suspended, and that they should abstain at present from pronouncing any decision as to the question which had been raised upon it. On the best consideration he could give the matter, he concurred with his right hon. and learned Friend in thinking, that the House possessed an inherent right to regulate elections, which could only be limited by an Act of Parliament, and that where no Act existed to restrain this jurisdiction, it could not be taken away by implication. He hoped the noble Lord would postpone his resolutions till the cases of controverted elections at present before the House were finished, with the view of then deciding the points in question by an Act of Parliament.
§ Lord J. Russell
would, with great willingness, declare his own opinion, and then the right hon. Gentleman might explain to the House in what way he thought the difficulty connected with the proposition he had made could be solved. As regarded the observations of the right hon. and learned Member for Ripon, he did not think the right hon. Member had answered 973 the argument he had stated at the commencement, that, before the Reform Act of 1832, it was not the practice for the House to order any votes to be struck off the register in Ireland, although there was what was called a register in that country. The Act of 1832 did not affect Ireland in the least, so far as the power of that House was concerned, so that if there ought to have been, as the right hon. Gentleman contended, an exercise of power by the House, it should have been put forth in 1832; and as it had not then been called into action, he did not think it necessary that it should be employed at present. The resolution stood now upon the journals of the House; it was originally adopted in 1833, in pursuance of the words of the original Reform Act, and modified in 1835, and in that Act no limitation was made with regard to Scotland and Ireland. The right hon. and learned Gentleman had proposed, that the question should be postponed for two months. It did seem to him, that there would be great difficulty in adopting that course, because the case, if once brought under the consideration of the House, was very clear, and he thought, that the resolutions having been proposed by him, and the debate on them postponed, the right hon. Gentleman in the Chair would feel greatly embarrassed in acting on the existing resolution. The right hon. Gentleman, the Member for Montgomeryshire, had proposed another course—that the resolution should be suspended, and not acted upon. If he could suppose, that the course he had taken could have any effect on the proceedings of the election Committees now sitting, he would gladly embrace the proposal; but it was not his wish, that it should have any effect beyond that of preventing them from being misled by complying with a resolution not in accordance with the law. But there was this difficulty. The resolution as it stood affected England and Scotland, as well as Ireland. Now, with respect to Scotland there was a considerable degree of doubt. His hon. and learned Friend near him thought the law gave the power of correcting the registry of that country. He only quoted his hon. Friends opinion; he would not himself, as one unlearned in the law, enter into the question. But with respect to England no doubt whatever could exist. The clause was very definite in conferring power on the House to make any order on the subject, and he felt him- 974 self restricted from suspending the resolution for two months, because if report were made from any Committee sitting to try an election for a place in England or Wales, affecting a number of votes, the Speaker would be precluded from the steps pointed out as necessary in such cases. It would be incumbent on the right hon. Gentleman to refrain from exercising the right of correcting the register, of striking out or inserting names, and if a new election should take place it would be influenced by the omission of the Speaker to do that which the Act of Parliament directed. He had stated the difficulty which occurred to him, and if the right hon. Gentleman could obviate it, he did not wish to press any resolution which could be considered as interfering with the present election Committees.
§ Mr. C. Wynn
suggested, that the resolution of 1835 should be suspended, as far as regarded Ireland and Scotland.
Original resolution and amendment withdrawn, and Mr. Wynn's suggestion to suspend the resolution of 1835, so far as regarded Ireland and Scotland, was adopted.