§ MR. SWIFT MACNEILL (Donegal, S.)
moved " That this House do resolve itself into a Committee of the Whole House to consider the Report of the proceedings on the trial of the Election petition for Yarmouth, and the complaints that have been made of the partisan and political character of the conduct during the trial of that petition of Mr. Justice Grantham." He said he was fully sensible of the great responsibility attaching to the bringing forward of a Motion of this kind. He admitted that such a Motion was not justified unless there was no other procedure competent. It was important that nothing should be done which would be a source of danger to the electoral life of the country, or which would involve the danger of lowering the dignity of the judicial bench, or create want of confidence in the proper administration of the law. It was absolutely certain that both Houses of Parliament had got what was called a controlling power over the Judges of the land. That controlling power had been expounded from their places in the House of Commons by no fewer than three Prime Ministers. It had been acknowledged by Sir Robert Peel in 1843, by Lord Palmerston in 1856, and by Mr. Gladstone in 1872. It must not be for- 370 gotten that under the Act of Settlement both Houses of Parliament had been invested with the protection and guardianship of the integrity of the bench. The judicial bench, as the House knew, had been surrounded, and properly surrounded, by many protections against improper and even proper criticism, when that criticism would be regarded as not of advantage, and as tending to the degradation of the bench as a whole. The House had to submit to a self-denying ordinance in this matter. They did not discuss the salaries of the judges which were charged on the Consolidated Fund. They did not criticise in ordinary debate the action of the Judges. The House had the right and the privilege of exercising control over the Judges either by criticism or in the last resort by an Address to the Crown for the removal of a judge. He admitted that it had been held to be in accordance with constitutional practice that such procedure in this country should not be instituted unless the prima facie case against a judge was so strong as to justify an Address. There was some slight misapprehension as to the practice, which, perhaps, he had better explain. Of course, the ordinary rule for the dismissal of a Judge was an Address of both Houses of Parliament to the Crown for his dismissal. That Address must proceed in the first instance from the House of Commons, but before the House of Commons could undertake the Address it must be supported by evidence, and that evidence was generally obtained first of all by a prima facie case, made out before a Committee. It was upon the report of the Committee that the House acted. He would now proceed to state the circumstances under which this Motion was submitted. The hearing of the election petition for Great Yarmouth took place during some eight days, and the disclosures startled the public conscience in an unusual degree. He did not recollect any display of popular feeling so great and so deep as was caused by the result of that petition, and likewise, he was sorry to say, in regard to the conduct of one of the Judges. It was undoubted that corruption, gross, open, and palpable, prevailed, that votes were openly bought and sold, that voters were carted to the polling places, and that 371 the chief participator in this orgy of corruption was stated by one Judge not to come within the definition of an agent so as to make the sitting Member, the respondent, liable, while Mr. Justice Channell stated on the same occasion that the evidence showing that this man was an agent was so clear that to take him out of the category of agency would be tantamount to subverting and nullifying the decisions of nearly all the judges of the High Court on that subject. What happened after the judgment was given? All the Press, from The Times upwards or downwards, spoke of it as a great miscarriage of justice. People outside this House spoke of it with indignation, and that indignation was echoed and re-echoed in the corridors of the House. It would be a very bad and sad day for any free people if, when the people were excited with jealousy in this way, its House of Representatives did not respond to and reciprocate that feeling. After the decision of the judges in this petition people asked whether the Corrupt Practices Act was blotted out of the Statute Book, and whether the representatives of the people in this House were going to take action in the matter. After a pause of two or three days, he on his own initiative, gave notice of the Motion he now moved. He was not a Member of any of the English political Parties, and he had no political interest to serve in this matter. He was interested in the purity of elections and the independence of Parliament. In bringing forward the Motion he took the somewhat unusual course of reading it to the House instead of putting in on the Paper. The very sympathetic cheers with which that notice was greeted showed him that he had the sense of the great majority of the House with him. The memorial which he presented to the Prime Minister for a day for the discussion of the Motion was supported in a manner which, he believed, was without parallel in Parliamentary history. Within three days 347 Members, a numerical majority of the whole House, feigned the requisition to the Prime Minister asking that facilities should be given for the discussion, among them their dear and lamented friend, Sir Wilfrid Lawson, who had ever been active in every good cause for liberty and freedom. His general charge against Mr. 372 Justice Grantham was that as an election judge he brought to bear on the decision of an election petition a mind so biassed by political prejudice as to render him incompetent to give a fair and impartial judgment. He would also prove that his conduct on the bench was unjudicial, calculated to lower the dignity of the bench as a revered institution, and to cast no credit on his fellow Judges. The whole effect of these proceedings—and, of course, they in the House of Commons had to judge of the whole effect—was to generate very strongly a want of confidence in the administration of the law. He objected, first of all, to the political bearing and demeanour of the Judge during the trial, which lasted eight days. His method of considering and interpreting Acts of Parliament was most unusual, unconstitutional, and almost illegal. Again, Mr. Justice Grantham had used the judicial seat as a bulwark to attack the House of Commons, the Prime Minister, and the Government of the day, and to provoke angry political passion. The charges he was making were so serious that he must substantiate them by evidence. The first charge he made had reference to the character and sayings of the Judge. These appeared on every page of the report of the election petition trials. If there was one thing more than another absolutely essential in a Judge who respected himself and the bench, it was that he should not identify himself with political partisanship, and should convey no impression of being a political partisan, Mr. Gill, the counsel for the petitioner, in the course of his address handed to the Judge a pamphlet of a very atrocious character, which advised the voters to take money from both bides and to lie to both sides. Mr. Justice Grantham, after examining it, laughingly observed:I thought it might have been a Barrelling Bill in support of secular education.Mr. Gill's speech was not in the authorised report, but he quoted the incident from an affidavit made by the representative of the Press Association. This observation was made at a time when the Education Bill was under consideration in this House and was rousing fierce sentiments. This was the Judge who was supposed to be holding the balance! Then they had at page 12 of the report of 373 Mr. Justice Grantham's Judgment the following—Prior to the election a bill was issued in the town in the colours of one Party, the Conservative Party, issued by a person who does not conceal his name—I suppose a real person, it is said so—telling the people to take money. And as there are in this town, as well as in other towns, a good many people who are ignorant; a good many people who only know the politics of the Party by the colour under which they fight—a good many people reading a bill of this sort would assume that this bill was issued with the authority and approval of the Conservative Party in Yarmouth. Now, this bill distinctly tells them with reference to bribes that there are bribers about—that bribery is rampant—take the money; you are justified in taking it and lying as to the way you vote.Then there came up a question about a Mr. Belcher who had a series of letters after his name. At page 81 of the report, Mr. Gill asked a witness—Is Mr. Belcher, Mr. Walter Belcher, F.C.L.A.? What does that mean?" (A)—" I could not tell you.Mr. Justice Grantham interjected the suggestion that the letters might be the certificate of a lunatic asylum. Turning to page 134, the Judge's animus with reference to the man who had passed an examination and who happened to be a Liberal agent was manifest. A question was asked by Mr. Gill, who had asked him to come and be a witness?—Mr. Belcher, the Liberal agent.Whereupon Mr. Justice Grantham said—The gentleman who rejoices in the letters F.C.L.A.Mr. Dickens then said—If your Lordship knew what that means you would approve of it. With a view of getting a better class of agent they have to pass three examinations before they win become a member of the association.Judges had to be very careful, in small towns especially, as the eyes of the world were upon them. On May 2nd a number of witnesses were examined with reference to their attendance at the At Home given on October 19th. That was the strongest At Home ever given in the history of society. The invitation appeared in the newspapers, and was given to everyone—Mr. and Mrs. Fell At Home in Great Yarmouth Town Hall, to meet Sir John Colomb.As many as twenty-four bottles of whisky were consumed, and one of the 374 guests walked straight into the river from that At Home. What had Mr. Justice Grantham to say about that? During the time the election petition was being tried an entertainment was given by the Mayor of Great Yarmouth, who, he believed, was a Liberal. At that dinner Mr. Justice Grantham made a speech in which he referred to the election—
§ MR. SPEAKER
said he understood that the hon. Member was going to refer to something which did not occur during the trial of the, election petition. If so, the hon. Member would not be in order.
§ MR. SPEAKER
said did not the terms of the hon. Member's Motion refer to the conduct of the Judge sitting as a Judge trying an election petition.
§ MR. SWIFT MACNEILL
said that when he framed his Motion he meant that he would be able to state that the conduct of the learned Judge during the trial of the election petition would be subject to review. He had an affidavit from Edward Homer Jones, Congregational minister, who was present at that dinner, and who made oath as follows—Mr. Justice Grantham said: ' I do not know whether my friend, Mr. Dickens, will not hold that such a spread as this comes under the head of corrupt treating; and I am afraid I may be convicted myself. My friend, the Town Clerk, and I are agreed that anything over 2d. per head is an orgy.'>And then Mr. Justice Grantham went on to say in the same speech—I am pleased to see my dear friend, Sir John Colomb, here. I have continued confidence in him.Now, confidence was a very right thing to have in a friend, but why should the learned Judge go out of his way to talk in that style of a gentleman who would be before him next morning as a witness? It was quite clear that Mr. Justice Grantham was unconsciously influenced by his surroundings to give two distinct and different judgments upon what were practically the same 375 facts at Great Yarmouth and at Bodmin. At Great Yarmouth he spoke in terms of quasi-apology of the drinking habits of the people; whereas in his judgment at Bodmin he could not be too strong as to their drinking habits there. He held at Great Yarmouth that the At Home of October 19th might be, given by the Conservative candidate because there was no general election imminent; but he held at Bodmin that the party given by Lord and Lady Clifden, the parents of the Liberal candidate, Mr. Agar Robarts, in the middle of September, was highly improper, because it was on the eve of a general election! These two conflicting decisions showed that so influenced was the Judge in the discharge of his duty by political bias that he had forgotten his own previous judgment. Then there was a question whether Baker, who distributed sums of money among the electors at Yarmouth, telling them to vote for the Conservative candidate, was an agent. Mr. Justice Channell, in his luminous judgment, went into the whole question of principal and agent. This man Baker was a boatman in a small way; and at the time he was distributing half-crowns amongst electors his wife was being sued for the milk bill! And during the election petition trial he spirited away two witnesses out of the town! On the day of the election Baker had a car, with the Tory colours, carrying voters to the poll. Mr. Justice Channell held that it was as clear a case of agency as could be; but Mr. Justice Grantham thought otherwise, because, as he said, he took a common-sense view of the situation. Archbishop Whately once said that a man could not navigate a ship by common sense; and a Judge should not decide a point of law by common-sense when he had the Statute before him. There were other things to which he might refer, but he thought he had now brought the salient facts before the House. He had intended to show that Mr. Justice Grantham had acted illegally and had upset the judgments of Judges who had preceded him. He had said with great candour that he had never been an election Judge before, and had therefore to look up the judgments of other election Judges, and had come to the conclusion 376 that they were wrong, and he based that on his own recollection of what took place when he was a Member of Parliament. But if anyone quoted Hansard in a court of law to show what the intention of an Act of Parliament was he would be told he must construe the Act as it was passed. If ever there was a time when the House of Commons should interfere with the conduct of a Judge this was the time. This was not a mere question of general jurisprudence; it was a question in which every Member of the House was vitally concerned as affecting the purity of elections. Having regard to the fact that a large majority of the whole House signed the memorial, and that the case as disclosed then was infinitely weaker than it was now, he hoped that Members in a matter of domestic concern, vitally affecting their own rights and those of their constituents, would be left to form their own judgment as to what was right without considerations of Party expediency. This was a great occasion, and the House ought to pronounce a judgment which would strike a ringing blow for purity of elections. They owed it not only to themselves, butto those who would come after, to maintain the purity of elections, the honour of Parliament, and the keeping away from the bench as far as they could the animus of Party feeling. He commended the Resolution to the House, and expressed the hope that the God of righteousness, which exalts a nation, and the God of truth, which makes a people free, might guide and direct their decision aright.
§ SIR G. KEKEWICH (Exeter)
said that this was in no sense a Party Motion; it was not even a political Motion. It concerned both sides of the House. It was surely necessary for the dignity of Parliament and for the honour of this country that some further inquiry should be made into this matter, and that it should be sifted by a Committee of this House. The duty lay with the House itself. That was recognised by the fact that the Judge reported to Parliament and furnished with his report the whole of the evidence in the case. There could be no reason for his sending these reports to Parliament, unless they were for the purpose of Parliament coming to a decision on the matter. Mr. Justice 377 Grantham was a political Judge—he made no secret of it. Politics entered into his daily life and his daily sayings on the bench, and in his (Sir George Kekewich's) opinion a political Judge ought not to be trusted to inquire into these petitions. Mr. Justice Grantham was appointed as much for his political as for his legal attainments, and perhaps more so. He did not say for a moment that his decision in the Yarmouth case savoured of corruption, and he did not say that he was not honest, or that he was conscious of any political bias in coming to that decision; but he did say that the political bias was there and that he was affected by it just as he was in the decision he came to at Bodmin. He looked at this case through spectacles of the Tory colour. He (Sir George Kekewich) recognised how difficult it was for Judges to give decisions, especially political decisions, which were not open to objection, but he thought when Judges came upon the Bench politics should go. The summing-up of Mr. Justice Grantham read more like a special pleading for the respondent than anything else. It did not appear to be an exact balance of the evidence for and against, but throughout it betrayed the strongest bias in favour of the respondent. One curious result of this case was that the whole conduct of it rested on Mr. Justice Grantham. Mr. Justice Channell was a mere assessor and had no influence upon the result of the petition. As he understood the law, when judges differed the petition failed. Was it reasonable when men consented to an arbitration they should consent to two arbitrators being appointed without a third in order to settle matters. In this case, so far as he understood, the whole responsibility for the result rested with the senior Judge. The decision of an election petition was the most delicate duty that a Judge could undertake. The Corrupt Practices Act was full of technicalities, and he personally should doubt whether any Member of this House in the course of an election had not quite unintentionally been guilty of the infringement of the provisions of that Act. The two questions before Mr. Justice Grantham with regard to this election petition were with regard to agency and treating. As regarded the question of agency Mr. 378 Justice Channell was quite clear, but his clearness had no weight with Mr. Justice Grantham. So far as the question of treating was concerned there was very little difference between the garden party at Llandydrock and the party at Yarmouth. At the one there was tea and at the other there was whisky. The one took place in September and the other in October, and the one which took place at Yarmouth partook more of the character of an orgy than that which took place at Llandydrock. All these entertainments were bids for popularity on the part of the candidate, and in that respect they did not differ one from the other, although in the case of Bodmin the sitting Member lost his seat, and in the; case of Yarmouth he retained it. He thought the difficulties in the present case were due rather to the system than the man, and he hoped that whatever else the inquiry led to, it would lead to some attempt to reform the present system which was calculated to bring the Judges and Parliament into contempt.
Motion made, and Question proposed, " That this House do resolve itself into a Committee of the Whole, House to consider the Report of the proceedings on the trial of the Election Petition for Yarmouth, and the complaints that have been made of the partisan and political character of the conduct during the trial of that Petition of Mr. Justice Grantham."—Mr. Swift Macneill.
§ MR. BUCKMASTER (Cambridge)
said a debate which openly called in question both the administration of English ustice and the character of an English Judge was one upon which no man could enter without feelings of grave uneasiness and distrust, and especially no man who, like himself, had by the daily experience of over twenty years of a busy life learned to regard the example set by the English bench as creating an obligation in respect of which the whole world was our debtor. His plea for an indulgent hearing upon this the first occasion on which he had addressed the House was, therefore, no mere formality. He quite agreed with some of the observations which had
from the hon. Member who moved the Resolution. He agreed that it might he unwise 379 and undesirable for the House to abrogate any control over the behaviour of Judges on the Bench. He thought it was eminently desirable that that control should be retained, but could anyone doubt that its interference with regard to the conduct of judicial affairs, unless for some grave reason well approved in the consideration of all its Members, could be productive of nothing but mischief? If every unwise utterance a Judge made, if every foolish and flippant jest, if every exhibition of hot and unseemly temper, was to be made a subject of consideration by this House, the only result could be that they would impair at once the authority of the English Bench and the dignity of the House of Commons. It was therefore essential that before the House resolved upon this matter it should consider and determine the facts on which its resolution should be based; and for that purpose it was necessary to go a little more in detail than the hon. Member who moved the Resolution had done, into the actual facts which called for consideration in the Yarmouth case. The Member for Yarmouth was accepted under the euphemistic expression of "prospective candidate" as early as July, 1904. It was clearly established that during 1904 and part of 1905 ward meetings were held, at which he was present and made political speeches and where drinks were provided for those present free of expense. On October 19th a large meeting was held at the Town Hall, called an " At Home," at which drink flowed to such an extent that several people became intoxicated, and one man unfortunately lost his life. On the day of election it was established beyond dispute that a man called Baker bought voters for 2s. 6d. or 3s. a head, packed them into a cart that flew Tory colours, and delivered them in consignments at the polling booth like cattle at a market. These facts were proved beyond question. But what they had to consider was whether these facts of indisputable corruption were facts for which the present Member for Yarmouth was responsible. Reading the account of this election, one was able to realise the protest made by Lord Chief Justice Cockburn against the Judges having the 380 duty of deciding these matters thrown upon them. He said—Is Her Majesty's Commission to be neglected, the gaols to remain undelivered, and the assizes untried, while Her Majesty's Judges are engaged in the investigation of the unclean matters of a corrupt borough?What one had to consider was whether in the investigation of these unclean things, Mr. Justice Grantham, in coming to the conclusion he did, came to a conclusion which they could only attribute to his being improperly influenced by unworthy bias. On careful consideration of all the matters in this case, he respectfully asked leave of the House to say that there was no foundation at all for that conclusion. He said it with the more confidence because he freely admitted that when this matter was first brought to his notice by the newspaper reports alone the conclusion he formed was that this Motion was justified, and if he had retained that opinion, he would now have been speaking in favour of the Resolution. But on going into the details of the Blue-book containing the evidence, he found that the grievances which had so powerfully impressed the hon. Member who moved the Resolution had no foundation. The charges the Judge had to consider were these. First, was there anything which could invalidate this election in the drink given at the ward meetings in 1904; secondly, was the At Home given in October, 1905, corrupt treating within the meaning of the Act; and finally, could the agency of Baker in the corrupt practices of which he was guilty be brought home to the sitting Member for Yarmouth. Upon reading the evidence he would have thought that the most serious matter the sitting Member had to meet was the At Home on October 19th. It was with the greatest possible regret that he found such a meeting as that could be justified. It seemed to him that if the law was to be carried out as here kid down, it called for some very swift and drastic reform; but what they had to consider was whether the law as administered by Mr. Justice Grantham was properly based upon evidence before him. With regard to the gathering on October 19th, Mr. Justice Channell, in a most careful, luminous, and considerate judgment, thought it was not possible. 381 upon the evidence to say that there was corrupt treating at that meeting. Mr. Justice Channell dealt with this question first on page 7 of the Report, where he said—If the result of this election in my opinion depended upon it—and it does not, in my opinion depend upon it, because of the reasons I have given as to the agency of Baker—but if it had depended upon it, I think I should have wanted a little more consideration to see whether or not that did not come within the express terms of this Act. of Parliament; because it must be remembered what' corrupt' means. ' Corrupt' means doing the thing which the Legislature forbids, and the question is whether the Legislature had forbidden it. Treating is sometimes defined to be getting at voters through their mouths and through their stomachs—supplying them with food and giving them drink. Now, although on the whole it was a rash thing to do, I do not think that this case is made out.Was it possible in face of this to say that the learned Judge did not make up his mind upon it? He recognised the difficulty, and how evenly the balance was swung, but thought the balance on the whole was in favour of the view that at this meeting there was not corrupt treating. He said—I think the main object of the entertainment was to get the idea to prevail that Mr. Fell was a good fellow, who would welcome, and who would talk with people in all classes of life just as Sir John had done. I think that was the object, in addition to the object, which I do not leave out, although I do not think it is so very important, that it was also to give Sir John the opportunity of meeting and seeing these people. Then if the refreshment was subsidiary to that, I do not think it is corrupt treating.On page 8 Mr. Justice Channell said—If I felt bound to come to the conclusion that that entertainment was given for the purpose of getting votes, as is said, through the mouths and stomachs of the people who drank the whisky and tea and ate the bread and butter—if one came to that conclusion as a fact, one would be bound to hold it was corrupt treating within the meaning of the Act of Parliament. But I do not feel bound to come to that conclusion. I only say that it was a risky thing to do—that it is very near the line—and that it is only because I feel able to come to the conclusion that the main object of the entertainment was a different one, that I am able to come to the conclusion that that was not corrupt treating.He would ask any hon. Member who had heard him read these passages whether it was not perfectly clear that Mr. Justice Channell's judgment was a clear, definite, 382 and distinct judgment that that meeting was not a corrupt practice.
§ MR. BUCKMASTER
said he would read the observations of Mr. Justice Channell in reply to Mr. Gill to which the hon. Gentleman had referred. The passage was—If one Judge says the case has gone on one ground, and that upon the other three grounds he has the gravest possible doubt—and that is what I said—and if it was not for the opinion I had formed as to bribery, I should have wanted further time to consider whether the treating was made out. I think your client could not have escaped much more narrowly than that.How could that take away from the statement of the learned Judge—I do not feel bound to come to that conclusion. I only say that it was a risky thing: to do—that it is very near the line—and that it is only because I feel able to come to the conclusion that the main object of the entertainment was a different one, that I am able to come to the conclusion that that was not corrupt treating.It was perfectly clear that in the mind of Mr. Justice Channell it was not corrupt treating. What was left was the question of Baker's agency. In regard to that question, some further facts needed to be added to those read by the hon. Member. To this day no one knew whence the money came which Baker used. Baker was subjected to a heavy fine. Whether it had been paid or not he did not know, but if it had been paid no one knew where the money came from. What they were concerned about, however, was as to whether there was any tiling in law that could connect the payment with the hon. Member for Yarmouth. It was perfectly possible that the money might have been provided from some outside source. He desired to say in the strongest terms he could express that it was impossible for anybody who read the evidence to say that the present hon. Member for Yarmouth was corruptly responsible for anything that Baker did. If he were responsible at all, it was by reason of a technicality which ought to be most stringently insisted upon in these election controversies, but which, 383 at any rate, ought to be established before a person was made responsible for any improper act. What was the evidence connecting Baker with the hon. Member for Yarmouth? It was not suggested that Baker held any responsible position at all in connection with the Conservative Party at the election. He was most certainly not in any sense the agent of the present sitting Member before the day of the election. The question was whether anything then happened which made him in law the agent. This was what happened. Baker proceeded to bribe in the early morning— he supposed he could not begin too early for his purpose—and he bribed with such freedom and generosity that the knowledge of his action spread over the town. It came to the knowledge of the Liberal agent, who went at once to a Mr. Nutman, the Conservative agent, and said, " There is a man bribing voters to vote for the Conservative candidate; you ought to put a stop to it." Mr. Nutman at 12 o'clock went to Baker and charged him with this matter. Baker stoutly denied it. The hon. Member who moved this Resolution thought Baker's denial ought not to have been accepted. Why? Supposing Baker had not been bribing after all. Reports of such a nature were freely spread about at election time, and many of them were false. Why was not Nutman to accept Baker's denial? Nothing in the evidence suggested that Nutman had any knowledge whatever of Baker's antecedents to denote that he should not accept what he said. Baker stoutly denied that he had bribed, and Nutman did nothing. However anxious or sore hon. Members might be in this matter they must remember that that was the whole of the case connecting Baker's action with the present sitting Member. Would they say that that evidence was so irrefutable, so clear, and so incapable of any other construction that they were bound to hold that one of the Judges could only have been influenced by improper motives in coming to the conclusion he did? That was what hon. Members had to decide, and everyone who voted in favour of this Resolution 384 must answer to his conscience that he had decided that, and decided adversely to the learned Judge. It could not be said that Mr. Justice Grantham acted corruptly simply because he differed from Mr. Justice Channell. They ought not, on evidence so slender, so unsatisfactory, and so misleading, to attribute unfair or improper methods to a man who, after all, had served his country seventeen years and was not in this House to answer for himself. There was the end, so far as he knew, of the evidence relating to the Yarmouth petition, and if the matter stopped there, could anybody say that there was anything on which Mr. Justice Grantham could be attacked? But the hon. Gentleman who moved this Resolution had referred to other matters which he said occurred whilst the petition was being heard and which he considered were more strongly in his favour than the evidence itself. One of those things was the statement with regard to the poster handed to the bench. Everyone must be in a difficulty with regard to that, for there was no information in the Blue-book upon it. There was no shorthand note to which they could refer. They could not possibly reproduce the circumstances under which it was made; but taking the statement as the hon. Gentleman himself had given it, although they might say it was a sorry and a poor jest to have made, it was impossible to say that it was meant to have any political bearing. It was a miserable thing to dissect this paltry joke, some six months after it was uttered. This joke about the " Birrelling Bill" was said to be one of the remarks which showed bias on the part of Mr. Justice Grantham. Then it was said that the blank which appeared on page 81 of the Blue-book in the remark by Mr. Gill, relative to Walter Belcher, F.C.L.A., had been filled in by the learned judge from the bench. It was by no means easy three months afterwards to speak with absolute certainty as to who the person was who made a particular statement. This statement did not appear in the shorthand notes. 385 He could only say that these shorthand notes had guided the judgment he had formed, and they were the only trustworthy materials to guide them. Finally, there was the statement made at a dinner by the learned Judge that he had confidence in Sir John Colomb. But Sir John Colomb's conduct was not in question in this petition. When a man went on the Bench he was not expected to leave his friendships behind him; and he saw no harm in Mr. Justice Grantham's expressing his friendship for Sir John Colomb. The learned Judge might have made foolish observations— he had never contended that he was wise in all he said—but the point was whether he had been influenced by political bias to give an improper and unjust judgment in this case. He was quite unable to follow the refinements of hon. Members who seemed to think that it was not corrupt for a Judge to decide contrary to justice in order to promote his own political views. If that was not the point then there was absolutely nothing in this charge. If Judge Grantham had not decided corruptly then there was nothing in this Motion, and they were only wasting time in its discussion. He approached the Bodmin petition with the greatest feelings of misgiving, because there was no trustworthy information before the House upon which they could base an opinion of what took place. Moreover, he greatly regretted the unfortunate circumstance that had deprived the House of the presence of Mr. Agar-Robartes. That regret was very keenly felt, and he was afraid of the result of that feeling when they were attempting to form an impartial judgment of the circumstances. [" Oh."] They had also to reckon with the fact that at Yarmouth one of the Opposition seats was retained, while at Bodmin a supporter of the Government was taken away. That made it difficult for them to be sure they were not looking at the matter through eyes that were not only obscured, but also inflamed by the bitter dust of Party strife. [" Hear, hear," and " No."] The hon. Member for South Donegal complained of Mr. Justice Grantham's throwing over cartloads of authorities upon the question when the election expenses were first incurred. But he did that 386 before the question of the tea party came before him, and he did it in favour of the unseated candidate. How, then, could it be said that he was prompted by political bias? Because he might have been mistaken in his law, was the House of Commons to pass a Resolution which would have the effect of branding him in the eyes of the public as an unjust and corrupt Judge? It was possible that the distinction between the two petitions was precisely that distinction which Mr. Justice Channell referred to in his judgment, when he said—If the food and drink were subsidiary to the object of the entertainment and it the object of the entertainment was not to promote the candidature, it was not a corrupt practice; but if the object of the entertainment was to promote the candidature, and the food and drink were given as ancillary to that, it was a corrupt practice.It was one of those technical points on which one man escaped while the other was punished. If they had the evidence before them in regard to Bodmin, they might find nothing which would enable them to say that, because of what happened at Bodmin, therefore the Yarmouth petition was improperly and unfairly decided. It might be suggested that he was a member of the same profession as Mr. Justice Grantham. [" Hear, hear."] Hon. Members cheered that statement. Were hon. Members so certain of their own judgment that when there were two motives to which a man's action could be assigned, they always felt right in attributing the one which was the less worthy? He held no brief for Mr. Justice Grantham. If he had not read the Blue-book he should have been supporting the Resolution. He had never spoken to Mr. Justice Grantham in his life, and he had never met him. He was not concerned for the man, but he was concerned for the great system which he represented. It seemed to him that the strength of our nation did not depend only on the strength of our Governments; it depended far in ore upon the zeal, the fearlessness, and the efficiency with which our public servants in all parts of our vast dominions administered the affairs of the State. It was because he believed that our Judges, who were the chief of those servants, had through many centuries built up a great 387 tradition of English justice that he regarded this Resolution with the uneasiness that he had expressed. He was sure that hon. Members would, at least, remember that, though there might be failings—and, if it were true that a high standard on the judicial bench must always be maintained, failings must occur, for the standard must be low if all men always reached it—yet, notwithstanding all mistakes, he confidently asserted that our great system of English justice was one that commanded the respect and confidence of all people throughout the whole civilised world wherever the English language or the English law was known. It was because he believed that this Resolution, if it were passed, would give a check to that system ["No" and "Hear, hear"], by singling out for attack a man who, as he submitted, had been guilty of nothing but folly—["Agreed"] —he never said otherwise; he had never said that all the utterances of Mr. Justice Grantham were utterances of wisdom, but it did not follow that they were not sound law. It was because he believed the effect of this Resolution would be to attack that system whose honour, next to the honour of this House, he prized most highly, this he trusted all hon. Members would resist it.
§ MR. A. DEWAR (Edinburgh, S.)
said he could not help feeling that his hon. and learned friend mistook the purpose of this Motion. They were not reviewing Mr. Justice Grantham's decision. Much less were they condemning him there and then. They were asking for an inquiry in order that they might have some explanations of what at present undoubtedly puzzled the mind of the community. He agreed with his hon. friend that there was a serious responsibility connected with the Motion. Lord Palmerston had laid it down in accordance with precedent and in language which he thought the House would be ready to accept that—nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself the duties of a Court of review of the proceedings of an ordinary Court of law. It should only interfere in cases of such gross perversion of the law either through intention, corruption or incapacity as makes it necessary for the House 388 to exercise the power vested in it of advising the Crown for the removal of the Judge.He did not suggest that the mistakes in this case were intentional. Much less were they, in the ordinary sense of the word, corrupt. The question was—Had there been such a gross perversion of the law, a prima facie case of that, as entitled the House to demand an inquiry and explanation? He admitted, with his hon. and learned friend, that a Judge ought to have a commanding position; but another thing a Judge equally needed was the confidence of the public. If the public confidence went, the Judge's usefulness would be at an end. If the public confidence was shaken there was an occasion for inquiry. The question now was, had the public confidence been shaken? He had studied all the cases that had been before the House, and this instance was unique in this particular, that more than half the House of Commons petitioned for the inquiry. That was a, fact that they could not disregard. The question was whether there should be an inquiry now. His hon. friend had only given them a sketch of what took place at Yarmouth, but had public confidence been justified? In the first place Yarmouth was exceptional in the respect that political meetings were held in public-houses: no less than twenty-six meetings were held in public-houses. Sometimes those meetings were attended by 100 persons. The chairman's duty was to treat every man who came to free drinks and cigars. In the second place, it was the chairman's duty to introduce the candidate. There was not the least doubt from the evidence what the purpose of these meetings was. One of the most prominent Conservatives in Yarmouth Colonel Driver, said—Through the ward association they could get hold of the men who voted haphazard and would be able to teach them something of Imperial policy and how to exercise their votes.No less than twenty-six of those meetings were held in public-houses during the course of the campaign, and they were held under protest from the Liberals. He would quote from the evidence to show how this protest was treated. Mr.. Sudbury (Question 3279) said—Since Liberals objected to the Conservatives meeting in public-houses, and grudged 389 them having a glass of beer, the Liberals might suck their acid drops or a little gin out of a bottle in their schoolrooms.And how did Mr. Justice Grantham treat this state of things—this was a matter of some importance. Instead of animadverting upon the practice of holding meetings in public-houses he said—You cannot get a certain class of people to come to hear you unless—well, as one of the witnesses put it—' I never sit dry in a public-house.' There is a danger I agree, and by all means get them to come and not go to the public-house. But if you cannot I do not think that you are to to blame.That meant, " Conduct the election without introducing the meetings by free drinks and cigars, by all means, but, if you cannot do that, then give them free drinks and cigars." If a man could not get into the House of Commons without treating the electors to free drinks and cigars then he had better stay out of it. Not only did they have meetings in public-houses but meetings were held in large halls at which drink and cigarettes followed. They were attended by between 400 and 700 persons and drinks again went round. With regard to bribery, fifteen men received sums varying from 1s. to 5s., the average being 2s. 6d. This was done by a man named Baker who was taking voters to the poll all day. At the time Baker was doing all this he was a bankrupt dependent upon £2 10s. a week on the ground that it was due to his wife. How did Mr. Justice Grantham treat Baker? He first of all speculated through a column of the report as to whether this was not what he called a " plant " by the Liberals, without one word to justify his remark. Then he went on to say that Baker was —a self-constituted enthusiast who gave— poor persons, nearly all of them of the unemployed class, 2s. 6d.But Baker was convicted not for charity, but for bribery. It was the accumulation of such points as these that made up the case. The hon. Member had alluded to the placard which was posted at Yarmouth, but he had not read it. This was what was placarded all over Yarmouth by the senior magistrate of Yarmouth—Bribery. It is said that bribery is rampant here in Yarmouth. If it is so, who is to blame? Why, those who find the money. What, then, should the voter do? Well, he should take the bribe or bribes offered to him, and then vote as he pleased. If asked how he voted, he should say, ' for your man.' ' The moral law,' 390 says Archdeacon Paley. 'is that a lie may be told to him who has no right to to know the truth.'One would have thought that was a case calling for a judicial remonstrance, but how did Mr. Justice Grantham treat it? Here were his words—Yarmouth, as a whole, has purified itself from the evil character for corruption it had once possessed.H thought he put it moderately when he said that it was disquieting to the public to have a Judge going out of his way, in these circumstances, to compliment Yarmouth on its purity. Another matter that gave him trouble and justified inquiry was that Mr. Justice Grantham disregarded authority to an unconstitutional extent. It had been laid down since 1892 in the decision of a most eminent Judge that, from about the time when a man became generally known as a candidate, he must begin to account for his expenses. Mr. Justice Grantham had resisted the train of current decisions. Again, nothing was more firmly established in courts of law than that it was illegitimate to refer even to the history of an Act of Parliament, yet Mr. Justice Grantham referred to the history of the Corrupt Practices Act in the House of Commons, and in point of fact was wrong in his reference to its history. In giving his recollection of what took place in the House of Commons he said—One of the most acute and best electioneers of the day, Sir H. James, brought in the Bill because of the great expense he and others had incurred at the elections.In point of fact the recollection of Mr. Justice Grantham was not only wrong, but he had misquoted Sir Henry James whose actual words were—When the summer and autumn of 1880 had passed … it was found that corruption had been applied to that portion of the constituencies… which had been lately enfranchised, and whose poverty rendered them an easy object to those who wished to corrupt. There was a general feeling that some steps must be taken to prevent the spread of corruption at elections…Another evil almost as great in its effects as the evil of direct corruption, viz.—increasing expenditure …‥It was not the intention of that Act that candidates should be protected against a corrupt constituency, but that a corrupt constituency should be protected against a candidate. The Act was passed to 391 prevent free drinks in public-houses, free entertainments in public halls, and free invitations to casual labourers, fish hawkers, and others. That was why the Corrupt Practices Act was introduced, and if these things were allowed to go on the Act might as well never have been passed. On the top of all this there came the Bodmin petition. He believed that the Bodmin petition was not now before the House, and Mr. Justice Grantham was entitled to the benefit of that technicality. But he doubted whether Mr. Justice Grantham would care to have the case put on that narrow basis. They knew what was said at Bodmin and at Yarmouth, and he would quote the passages in order that they might have them in mind in dealing with the case. At Yarmouth, referring to the Town Hall entertainment given to 700 people on 25th October, Mr. Justice Grantham said—Why should it not have been held? I fail to see. If it had teen held during an election, I quite agree the circumstances would have been entirely different. But at that time there was no idea of an imminent election.Then at Bodmin, dealing with the garden party which took place in September, Mr. Justice Grantham said—As to the garden party, how any sane person could give advice to the father and mother of the candidate to hold such an entertainment on the eve of an election passed his comprehension.That was to say, that half-past six on December 24th was on the eve of Christmas Day, but that at half-past nine Christmas was not imminent, these two decisions could not stand together without explanation. It was only inquiry which was asked. No one would be more delighted than he or the mover of the Motion would be if Mr. Justice Grantham could give such an explanation as would restore public confidence. He thought his hon. friend was justified in bringing forward the Motion, and he should support the demand for inquiry.
§ THE ATTORNEY-GENERAL (Sir JOHN WALTON,) Leeds, S.
No one can have listened to this most interesting debate without feeling that my hon. friend was quite justified in introducing his subject for discussion. He has 392 pointed out the widespread interest which has been taken in the Yarmouth election petition, and the public apprehension lest certain views of election law which were there expressed should seriously endanger the purity of elections held throughout the United Kingdom. He has raised grounds for seriously questioning the judicial impartiality of one of His Majesty's Judges, and these are the materials which have in the past afforded, and which I trust will in the futureé afford, ample justification for the largest measure of criticism in the House of Commons. Several Parliamentary authorities have restricted very closely the action of the House in regard to occupants of the judicial bench, but they have always insisted that the range of criticism should be unrestricted, and that the members of this House were just as entitled to call in question utterances and actions on the part of His Majesty's Judges as to deal with the conduct of any other servants of the Crown. I rather demur to one passage in the admirable speech of my hon. friend behind me, because he rather intimated that this Motion could be treated as a Motion for inquiry. My hon. friend the Member for South Donegal did not so define it; he is too good a constitutional lawyer not to know that there is no minor course which the House in regard to these questions can pursue. We are entitled, as a body, to petition the Clown for the removal of a Judge, but there are the very strongest reasons against seeking to inflict any minor penalty. There are the strongest arguments against censuring a Judge and yet leaving him to occupy his position— against calling upon any member of the judicia bench to continue to discharge under a cloud of Parliamentary censure the most important functions which devolve upon him. And if necessary to support that proposition, I could appeal to the dicta of a series of leaders of the House during the last three or four generations, commencing with Mr. Canning in 1825, and embracing Sir Robert Peel and Mr. Gladstone, and, on a minor plane, the late Lord Chief Justice Coleridge when Attorney-General. I do not think the proposition will be challenged. My hon. friend boldly took his stand upon a submission which, 393 if it can be established, amply justifies this Motion. He said that he laid before the House grounds which, if prima facie proved—and he gave prima facie evidence—warranted an Address being presented to the Crown for the removal of Mr. Justice Grantham. He admitted this was the first constitutional step in a course which must end in that result. Therefore we have to face this Motion under a deep sense of responsibility. The House has to realise, not that the matter is one of public interest which may be further investigated and discussed, but that they must either support this Motion or resist it as they believe or do not believe that Mr. Justice Grantham's conduct is such as to warrant the extreme penalty which can be inflicted upon any person occupying a position upon the judicial bench. If that is so, it is very important to the House to know what is the standard, what is the measure by which his conduct must, be judged; and I am sure the House will expect from me some little guidance afforded by the opinions of leaders of great Parliamentary authority and influence in the past who have been , called upon to discuss this question. I think they will find that throughout the course of a series of dicta prescribing the circumstances under which this penalty may be inflicted, there is the recognition of one pervading and important principle—namely, that this House will not inflict the penalty except for some defect of moral quality on the part of the learned Judge. There must be a moral element present in the misconduct or misbehaviour which is charged; and if that moral element be absent, however much the House may deplore the conduct, however unfortunate they may think it, however much it may violate every canon of judicial demeanour, taste and discretion, yet the occasion is not such as to demand the infliction of this very extreme punishment. Let me ask the House to listen for a moment or two while I establish that proposition. First, what was said by Sir Robert Peel in 1834 as to the conduct of Baron Smith, an Irish Judge brought before the House by Daniel O'Connell. Sir Robert Peel said that to warrant a Motion for the removal of a Judge it was clear that there must be " corruption, partisanship, 394 intentional moral delinquency." I understand partisanship to mean a conscious partiality perverting justice, a partiality leading the Judge to be disloyal even to his own honest convictions. I understand it to mean that the Judge knows that justice demands that he should take one course but that his political alliance, or political sympathies, may be such that he deliberately chooses to adopt the other. In such a case the moral element undoubtedly enters info the definition of misconduct, and cannot be excluded. Again, we find that Lord John Russell, in 1843, in the case of Lord Abinger, which was discussed in this House, said that the—independence of Judges is so sacred that nothing but the most imperious necessity should induce the House to adopt a course that might tend to weaken their standing or endanger their authority.In the course of the same debate Sir James Graham, a most eminent master of constitutional law and practice, said he had no objection to the question being discussed, but it was—due to the cause of justice itself to defend the Judges of the land, unless we shall be satisfied that their conduct has been corrupt, and their motives dishonest. It is only fair to a Judge, considering his eminent station, the great power with which he is entrusted, and the grave responsibility under which he acts, that the House should not adopt such a Motion as this, unless in our deliberate judgment we are satisfied that there has been manifested on the part of the Judge, who is the object of it, a badness of heart, and a corrupt intention, which have contributed to the perversion of his judgment.Lord Palmerston in 1856, in resisting the Motion in the case of Mr. Justice Torrens, said that—nothing could be more injurious to the administration of justice than that the House of Commons should take upon itself the duties of a court of review of the proceedings of the ordinary Courts of Law, because it must be plain to the commonest understanding that they were totally incompetent to the discharge of such functions.He therefore urged the mover, Mr. Phillimore, not to press his Motion to a division, and that Gentleman complied with his request. Lord Palmerston a little further on in his speech said that to constitute misconduct justifying the removal of a Judge there must be—gross perversion of justice by corruption, intention, or incapacity.395 By " incapacity " I think Lord Palmerston tad in his mind physical incapacity, not mere aberration, not mere error in the exercise of the judicial function, but the incapacity of a Judge who continues so long on the Bench that he is physically unable to discharge his duties. Therefore I think I have made it clear that my hon. and learned friend, in order to succeed with this Motion, must carry the charge home to the point of prima facie proof of moral delinquency or obliquity on the part of the Judge. [An HON. MEMBER: " Or mental."] Or mental, in the sense that it amounts to misconduct in the ordinary acceptation of that term. A Judge's patent is during good behaviour. No Court of law could displace a Judge by any proceeding except by the invalidating of his patent; and to do that it would be necessary to prove that he has been guilty of misbehaviour, and that involves an allegation of misconduct in the moral sense of the term. Has that standard been established satisfactorily in this case? The charge which my hon. and learned friend makes is the charge of partiality. He says that the learned Judge was so influenced by his anxiety to serve one of the political parties that he intentionally disregarded the plain dictates of justice in order to accomplish that end. If my learned friend proved that case the House would, without the smallest hesitation, extend its support to the Motion. But if he has not proved that case, what alternative has he laid before us? We cannot adopt what Mr. Gladstone once called the infliction of the minor penalty of censure; because such a course would leave the learned Judge in the occupation of his eminent position, but discredited and disgraced in his administration of justice by the censure of the House of Commons. Therefore, unless we are thoroughly satisfied that the charge of partiality has been prima facie established, however strongly we may condemn the action of the Judge, however deplorable we may regard it, there is no course open to us except that of opposing the Motion.
Let me point out what I understand to be the main grounds upon which the allegation is made. As I proceed I shall criticise the Judge with frankness and freedom. I feel a great difficulty 396 in approaching this task, on account of my long years of professional association with the Judge. But it is a task from which I cannot shrink, which I cannot hand on to another; and I should fail in my obligation to the House if I did not state frankly my opinion in regard to the different topics to which my hon. and learned friend has invited our attention. The first charge which my hon. and learned friend makes is that the political opinions of the Judge were so manifested upon the Bench that it became obvious to those in Court on which side his political sympathies, if not his political alliance, were to be found. It is hard not to say that the utterances of the Judge are open to that construction. If they do bear such a construction, all I can say is that such utterances violated the best traditions of the English bench. I remember how Lord Justice A. L. Smith, a man of the strongest Conservative opinions in private life, a most admirable and learned Judge, declaimed with indignation in Court against the attempt of counsel to introduce some political allusion with a view to influencing the jury. " Politics," said the Judge, " have no place in a British Court of law." In the trial of an election petition the sphere is especially unfortunate for the display of any political feeling on the part of the Judge, which, though it did not influence his decision, and, as I believe, might not ultimately influence his decision, yet would lead persons present who had not the advantages of the Judge's personal acquaintance to the conclusion that he was biassed in regard to political issues, and thus shake that confidence which all should feel in the perfect impartiality with which he discharged his functions. It is all-important not only that a Judge should be impartial, but that he should seem impartial, that he should not merely be actuated by those principles of justice which he is called upon to administer, but that in the public estimation he should be credited with possessing them. I therefore think the action of the learned Judge was most unfortunate. It may have been due, and probably was due, to thoughtlessness; and no doubt if the learned Judge had clear to his mind the inference that would be drawn from, them he would have restrained himself from making 397 these observations. We have been given a few specimens of his jokes. Judicial humour proverbially occupies a very low place in the classification of wit. Its scintillations gain immensely by their setting and surroundings. They are emanations from a superior sphere, and are accepted and enjoyed and condoned by those who are compelled to listen to them. They are very seldom enjoyed by both parties to a cause. The wit is generally exercised at the expense of the party, or the witnesses of the party, who is supposed at the time not to have the favourable consideration of the Court. Let me beg the House not to attach too much importance to a judicial joke. The temptation to make it must be so overwhelming that the graver construction that might be attached to it probably never presents itself to the mind of the learned Judge who makes it. But while I would beg the House not to criticise the joke too closely, I must say that it is most unfortunate that the humour should be characterised by an inclination or feeling in favour of the sitting member and against the petitioner. It is difficult to present a petition in an election Court where you are seeking to vacate a seat after a popular election. The whole feeling of the town is against the petitioner. The Court blazes with the colours of political opponents. Ladies smile on the scene from the gallery. If the Judge does not restrain but rather encourages these manifestations of partisanship by observations of this sort, he makes it exceedingly difficult for any petitioner to establish his case, and he throws the greatest obstacle in the way of eliciting the truth from the witnesses. I am not here to excuse or defend what I think was from many points of view deplorable, and what certainly has led to a very grave inference affecting the judicial impartiality of the learned Judge. And now I come to what is the worst feature of the case. The learned Judge was entertained by the Mayor at a banquet, and, unfortunately, made a speech in regard to the election petition. As I understand it, the evidence for the petitioner had not concluded, and next morning it was proposed to discuss seriously the inferences that were to be drawn from the entertainment 398 given by the hon. Gentleman who is Member for the borough. The whole petition rested on the character of that entertainment. It was the main ground on which the petitioner sought to challenge the seat. As I gather, the learned Judge rose and made a reference to that entertainment which could only be construed into disparaging and turning into ridicule the petitioner's case. The entertainment in question had been described as an orgy—perhaps a little highly coloured and too graphic a description; but the learned Judge, as everybody present felt, clearly indicated that he had already made up his mind that there was absolutely nothing in the petition, and had satisfied himself that there was very little to be said in support of the case. Well, I am asked the question— Is that to be justified? I do not suppose there is a Member in the House who will justify it. No one will say it was a wise or that it was not an injudicious speech; but the very openness, the frankness, and candour of it shows that the learned Judge was not acting with any conscious intention to pervert the evidence. [" Oh."] If he had been influenced by a wish to pervert the evidence, disregarding all considerations which would lead him in favour of the petition, do you suppose that he would have laid the foundation for such a charge by the unwisdom of such a frank, spontaneous, and unconsidered utterance? When you wish to ascertain the moral quality of that speech, the whole conduct of the Judge shows that it was due to lack of realisation of the situation, and was not due to conscious intentional partiality. [" Oh."] I am not going to defend it. But I cannot conceive anyone getting up and saying that he believed it was a designed and intentional utterance with a view to bring about the result which it is alleged he wished to accomplish, although as an indiscretion I think it is strongly to be condemned and deplored. It was a a postprandial utterance, but I do not justify it upon that ground. I have heard in this House apologies for speeches made after dinner. It is possible that the learned Judge forgot for the moment the occasion on which he was making it. [" Oh."] I say that is a most deplorable and unfortunate feature, but when we come to consider whether it is moral 399 misconduct I confess I cannot come to that conclusion. [" Oh."] This House is not a Court of law or a Court of appeal, although I think it would be highly desirable that some Court of appeal were organised to review these decisions. The learned Judge is said to have remarked that popularity could be legitimately purchased by treating, and he drew a distinction between treating for popularity and treating with a view to securing votes. The distinction, to my mind, carries no difference.
§ SIR JOHN WALTON
I was going to say I think he did. The learned Judge took the view that the hon. Member for Yarmouth in giving that entertainment wished to make the acquaintance of the people whom he desired to elect him— in other words, to gain popularity. At Bodmin the popularity was not needed, because Mr. Agar-Robartes and his family were long resident and well known. So that explanation could not be adduced; and therefore the inference was drawn that the Bodmin entertainment was given with the object of obtaining votes and not merely to obtain popularity. With regard to the justification of political gatherings in public-houses; if every public-house is to be turned into a political symposium where politics are to be discussed, with the accompaniment of cigars and drinks, what hope is there of maintaining the purity of elections? Yet the learned Judge apparently holds these views because he avows them with the utmost frankness, apparently honestly holds them and challenges contradiction of them, and then, when faced with what his learned brother described as a cartload of authority, he upsets that cartload because it conflicts with his view of the law. His reason is that in election law precedent does not apply as it does in other departments of jurisprudence, and that a Judge for the time being is quite entitled to take his own view and to enforce that view by reference to his own Parliamentary experience. That may be an unfortunate and erroneous opinion 400 from a legal standpoint. It is a view which may be and would be open to judicial review if there were any Court of appeal—and there is no member of the Bench who has had more experience of the painful results of judicial review than the learned Judge. The House, should they deal with this matter in its legal bearings, would take it out of the true sphere in which it ought to be discussed. The legal opinions expressed by the learned Judge might be criticised and condemned by a Court of appeal, but unless they can be carried a long way past the stage of unwisdom and indiscretion into the sphere of moral delinquency, I submit you do not get a proper ground for supporting this Motion. A word about the Bodmin case. Although it is difficult to reconcile the judicial rule framed at Yarmouth with its application to the case at Bodmin, I submit there are grounds which may lead the House to the conclusion that the learned Judge did honestly distinguish between the two cases. In the first place, I think both sides agree with the decision at Bodmin. I think both sides agree that, after the evidence of what was illegal treating in the eyes of the law, the seat was properly vacated. You have the decision in the case of Yarmouth supported, not for the same reasons, but in its result and conclusions that the treating was not corrupt, by the highly efficient, by the extremely high-minded and judicial opinion of Mr. Justice Channell, and, therefore, I feel that no inference can be drawn from a comparison of this case with that of Bodmin. In the Bodmin case the Court was largely relieved from the necessity of drawing the inference which they were compelled to draw at Yarmouth. The question was not, was there treating? There was undoubtedly treating. The question was, Was that treating corrupt? And the Court has to draw an inference as to intention. In the Yarmouth case it was strongly contested whether or not the entertainment was given in contemplation of the election; and Sir John Colomb and others were called on to say that in their opinion there was no election contemplated within a year. The Member for the borough had expressed a similar opinion. Therefore, although 401 the period of the entertainment was actually nearer to the general election than in the Bodmin case, yet on the evidence there was nothing to show to the satisfaction of the learned Judges that the entertainment was given in contemplation of the general election. That conclusion has been drawn by both these learned Judges. At Bodmin, where possibly the respondent's case was less carefully constructed, it was admitted by the witnesses that they knew that an election was imminent, and at the time the entertainment was given they were conscious of an impending election, but they thought they were sufficiently far off to be within the limits of the law. It was in the face of that admission that the inference of the Judges was drawn. I do not ask the House to say whether the grounds were right or wrong. Probably some hon. friends behind me will say there was not sufficient justification for drawing a different inference in the two cases, and I think I entirely share that; opinion. But what I do say is that there are grounds from which you might fairly infer, and from which you ought to infer in the absence of very clear evidence, that, although it is difficult to reconcile those two decisions, you cannot say they are absolutely irreconcilable—that you are driven to the conclusion that there must have been a dishonest mind tampering with the law just as it became convenient to accomplish some end. That is what I have to say, and I am sorry if in saying it some of the expressions I have used have not commended themselves to all sections of the House and to some hon. friends behind me.
Now I come to the issue which I understand the House is called upon to decide. There is no case for inquiry; there is no case for censure; there is no middle course for the consideration of the House. Either you must take the first step—and I cannot conceive that it could be a step that would be reversible or could be reversed—in a course which involves removal from the English Bench of one of His Majesty's Judges who for nearly twenty years has been performing judicial functions, or you are to come to the conclusion that, although you condemn part of his con- 402 duct, disapprove of his utterances, or think he may have been guilty of some error of judicial demeanour and judicial discretion, you do not regard the case as one in which such misconduct has been shown to have been committed as the law contemplates, and therefore that this is not a case in which the infliction of the extreme penalty applies.
§ SIR JOHN WALTON
That is apparently regarded all round as a satisfactory compromise. There is only one instance, only one certainly in modern times (the hon. and learned Member would probably confirm this), in which the House has adopted a motion of this sort. That was in the case of Sir Jonah Barrington in 1828.
§ MR. MACNEILL
interposed to mention the instances of Mr. Justice Johnson and Mr. Justice Fox, against whom proceedings were instituted, but both of whom resigned.
§ SIR JOHN WALTON
I think that confirms my impression. I do not think Parliament has ever addressed the Crown for the removal of a Judge except in cases of grave moral misconduct—and Sir Jonah Barrington's case was one of clear malversation and clear moral misconduct—and I think it would be the first time in our history if, for grounds such as are alleged here, on such evidence as has been adduced, this House were to adopt or seek to inflict the extreme penalty. To put it very shortly, I consider that, although the conduct of the learned Judge was open to animadversion and has received and may receive strong animadverson in the course of this debate, the penalty of deprivation is reserved for graver errors than those upon which the hon. Member has relied in support of this Motion.
§ MR. A. J. BALFOUR (City of London)
It would be improper that this debate should come to a conclusion without some expression of opinion from this bench. The House will not be surprised that I should agree with the conclusion at which the Attorney-General has arrived. I think the reasons that 403 he has given for that conclusion are conclusive, although I do not wholly agree with everything that has fallen from him. I am not sure that I have the competence to enter on the criticism of his legal position, but I agree with him so far as I am capable of understanding that aspect of the question. With the general inferences he has drawn upon the case and with the advice he has given to this House I am myself in entire harmony. The learned Gentleman has commented upon the obiter dicta of Mr Justice Grantham from the Bench in the course of the trial, and, in terms more severe, upon the speech he is alleged to have made at some entertainment given not to him alone, or to one Party alone, but by a Radical mayor to the two Judges trying the case, to the counsel on both sides, and, as I understand it, to persons belonging to both Parties. The Attorney-General takes a graver view of the indiscretions of the learned Judge on that occasion than I am disposed to take. He is very lenient to the judicial wit and rather severe upon the postprandial wit. I do not know that, read in cold blood, either the one or the other would add much to our amusement or edification. Judicial wit has not many admirers in this House. I am not sure that if we had the opinion of the Judges on the House of Commons wit we should find that much more favourable; and I tremble to think what would be the opinion expressed on this House could we conceive a meeting of His Majesty's Judges at which there would be free debate and free comment on the episodes which day by day occur within these walls, which even within these walls do not command universal admiration, and which, in the language used of these Judges by some one in the House to-day, do not greatly add to the dignity, credit, honour, or authority of the House. If we are fallible here, if there are lapses within these walls, we must not be too rigorous in our criticism of similar lapses elsewhere. But in truth it seems to me that you can hardly listen to the accounts given by the learned Members who opened these proceedings of the Radical dinner to all sides in the case without seeing that these much commented on observations were very unhappy specimens no doubt of that kind of humour 404 which many of us are driven much against our will to produce on these occasions, and which—I am sure I speak to a sympathetic audience—we do not wish to have too severely criticised or too minutely reported in the next day's newspapers. On the legal question, of course, I will not offer an opinion. The Attorney-General, as I thought a little gratuitously, expressed a strong opinion as to the conclusions which the Judge should have arrived at on several controverted points. I am aware that I am not competent to follow in his footsteps; and any opinion of mine on a question of law would be received with deserved contempt by the audience I am addressing. But the chief point in which it is asserted that Mr. Justice Grantham is open to criticism is that he gave a decision at Yarmouth on the subject of treating which was inconsistent with his decision at Bodmin. I would remind the House that both those judgments were unanimous. [" No."] Yes, on that point they were. There was a matter on which the two Jadges differed, but that was not the matter of treating. Mr. Justice Channell and Mr. Justice Grantham were agreed upon the treating case at Yarmouth, and Mr. Justice Lawrance and Mr. Justice Grantham were agreed upon the treating case at Bodmin. Does this House feel itself so strong in law and impartiality that, where both Judges were agreed, it will decide that one of the Judges concerned was guilty, not only of incompetence, but of incompetence amounting to corruption? It is impossible to pass censure on a Judge who found another Judge of undoubted impartiality to take the same view. What is the history of that change in the law by which the trial of election petitions was transferred from this House to the Judges? This House recognised that it could not approach these questions of election petitions with the impartiality required to decide them. We recognised that we were a Party Assembly and that it was impossible, we being human after all, that these questions should be decided by a Parliamentary Committee purely on the merits of the case. It has been said, that although a House of Commons Committee may be a partial body, a gentleman who wears his politics on his sleeve to the extent that Mr. Justice Grantham does cannot be regarded as 405 more impartial than a House of Commons Committee. I respectfully suggest that those who say that have drawn very erroneous inferences from the fact. No doubt Mr. Justice Grantham is a gentleman who has always held Conservative opinions, But most of our Judges, from the Lord Chancellor downwards, have at one time of their lives been Members of this House—ardent, politicians, and sometimes vehement and intemperate politicians. I am not making a charge against one side rather than the other. But it has never been alien to our judicial system to appoint gentlemen of notoriously strong political opinions to the highest judicial office. That being our practice, we cannot suppose, and none of us do suppose that these Gentlemen divest themselves in their private capacity of the convictions which they have always held, and through which, it may be, they have risen to the judicial Bench. It has often been that distinguished capacity, shown perhaps more in our Party conflicts in this House than in the Courts of law, has raised them to their high position; and we are so familiar with that rule that we rightly accept the view that these gentlemen are capable of divesting themselves of political prejudice when dealing with cases that touch politics. Supposing, per impossibile, that some gentleman of strong political opinions were raised to the Bench, and were determined to use his great office to further the interests of one Party. What would occur? Would he make jokes, good or bad, about the Party agents of one side? Would he make after-dinner speeches with a Party bias in connection with a case being tried before him? Would he let it be known to all and sundry that he still held the opinions which he held before being raised to the bench? No, Sir, this hypothetically corrupt Judge would pursue opposite tactics. He would be the last man in the world to utter obiter dicta from the Bench, to throw suspicion on his judgments, and to enable them to be caught hold of by critics, to be commented on in this House and in the hostile newspapers. His sinister object and corrupt motives would be concealed under a judicial gravity of demeanour. No joke, good or bad, would escape his lips, and no imprudent speech would he utter which could be brought against him. Nothing 406 is more transparent than Mr. Justice Grantham's honesty in this matter. It never occurs to him that his countrymen could suspect that his action as a judge would be modified by the fact that he held such and such political opinions. He behaves imprudently, it may be—from his own point of view, and perhaps from all points of view. But no man who had the smallest drop of the poison of corruption in his blood, no man who was really moved by the atrocious intention of using his judicial position to further the interests of a political Party, would act as Mr. Justice Grantham has acted in these recent trials. You must take the man as you find him; and, speaking for myself, and not without some sympathy from Gentlemen who differ from him, I say that a more transparently natural, candid man than Mr. Justice Grantham never exercised judicial functions. And what are we doing now, or, rather, what is the hon. and learned Gentleman asking us to do? He is asking this impartial ond non-Party assembly to constitute itself a Court of appeal upon a Judge who, he alleges, has been influenced by Party motives. I cannot imagine anything more discreditable to this House. If hon. Members will think of the kind of cases in which we criticise our Judges, they will find that they are cases in which the decisions of the Judges have come into collision with some Party interest in this House. There have been three or four cases, and most of them were connected with Party politics. [Mr. MACNEILL: " No."] All those cases quoted by the Attorney-General were connected with the Party politics which we recognised so perverted our judgment that we could not deal with these election petitions ourselves. That fact should make us pause. It has been universally recognised that Parliamentary Committees were deprived of their powers in these cases: and if, whenever a Judge goes against the interest of any section in this House in a manner which gives some handle, however legitimate, to comment and criticism—if that is going to be made a ground for dragging him before this House, and for commenting on his conduct in a manner which Mr. Speaker would never tolerate in ordinary debates then I say that the great reform in our electoral laws which was effected when 407 we transferred the trials of petitions will be found to have done more harm than good. At all events, as long as it was in our hands, we might be the victims of a Party majority, but the evils did not spread beyond this House. We are accustomed to the evils as well as to the benefits of our Party system. But if, as a result of this change, we are to transfer Party feeling from the walls of the Committee rooms and to comment on the Judges of the High Court, then the benefit of what seemed to be a great reform will be more than neutralised. Although I fully recognise that from the first the debate has been conducted on the whole with moderation, and with a great desire not to misuse the opportunity, I confess I look at these debates with the greatest doubt as to whether they will not do infinitely more harm than good. If I had been in the place of the right hon. Gentleman opposite, I own that I should have hesitated to give an opportunity, sadly wanted for other discussions, to bring this debate on. The right hon. Gentleman may have had reasons not known to me for doing so; and I admit that the character of the debate has been in the main not discreditable to this House, if there must be a debate at all. But if the debate is to finish with a vote which is really condemnatory of a Judge of the High Court, manifestly that can only be followed by further discussion as to whether that Judge should not be removed from the Bench. It is impossible, unless we are prepared to take that further step, and to give the remainder of the session to these difficult matters, to accept the Motion of the hon. Member. Supposing we do accept it and supposing the inevitable consequences follow—namely, a vote brought forward not by the Government, because they dissent from it, but by some independent Member, in time given by the Government far a Committee of the whole House appointed to investigate Mr. Justice Grantham's position, are you not going to aim a blow at the administration i of justice in this country? I think you are going to administer the severest blow. You are going to constitute yourselves, as I know may sometimes be necessary, the judges of the actions of a Judge, and you are going to choose as 408 the topic on which to criticise his action a topic on which you cannot pretend to be impartial, a topic on which we have transferred our powers to the Judges, and a topic on which political passions will inevitable arise. Under cover of purifying justice and keeping the Bench absolutely apart from any taint of political partiality, you are going to aim a blow at the independence and at the position of the Judges of the High Court, which no possible advantage which you could obtain from it could compensate, and the evils from which would be far-reaching and would make it, I believe, impossible for you to leave the jurisdiction of these election petitions in the hands of the Judges at all. I am sure it would involve a total re-modelling of the whole method of trying election petitions; and that serious enough in itself, would be a small and insignificant element in the general mass of public injury and public evil which you would inflict by hasty and partial commentary on the action of Mr. Justice Grantham.
§ THE PRIME MINISTER AND FIRST LORD OF THE TREASURY (Sir H. CAMPBELL-BANNERMAN,) Stirling Burghs
The right hon. Gentleman attached some blame to me for having given a day for the discussion of this question. I think he forgets the memorial that was presented to me signed by 347 members of this House asking for an opportunity. But even if I had received no such memorial, I conceive that the state of irritation of public feeling in many quarters and the astonishment which prevailed after we had read the accounts of the Yarmouth election trial, would have necessitated the granting of a day for the purpose. I think, further, that the discussion that has taken place to-day amply justifies the devotion of some part of the public time to the purpose. I was glad to hear the right hon. Gentleman recall to the House the circumstances in which the House in 1868 parted with its jurisdiction in the matter of election petitions. These proceedings have led me to ask myself again and again, why was it that the House parted with its jurisdiction if this is what it is to receive for it? The House parted with its jurisdiction because it was conscious that trial by Select Committee of this House was almost farcical in its results. The Members of these Committees were 409 all Party men, the Committees were constituted in such a way that one of the two parties always had a majority, and, therefore, one petition was balanced against the other. Unless there was some flagrant impediment in the way, it was pretty well known the moment the Committee was appointed what its decision would be. It was thought that we must take it out of the atmosphere of Party politics altogether, and that in the interests of purity and of strictness and of legality in elections we should get it into a higher and serener sphere, and for that purpose it was referred to the judges. I venture to say that those who proposed and supported that policy would have hesitated if they had been able to foresee such cases as these. The right hon. Gentleman has admitted that Mr. Justice Grantham is avowedly a Party man. We all know that he is. I had the pleasure of sitting with him in this House. He was one of those most useful of all Party men who come to the rescue of the Government they support when they are unable to find anything new to say for themselves. After doing a good deal of willing service very effectually, he took latterly to another course, that of pin-pricking the Government which he supported, and that was only interrupted by his elevation to the Bench. He was then, as he is to this day, an honest, straightforward, amiable gentleman against whose moral character I am sure no one who knows him would have a word to say. But he is undoubtedly a partisan, and an outspoken and intemperate partisan. I think it was a deplorable mistake on his part not to avoid, as he could have avoided, as others have avoided who were conscious of having partisan feeling, being selected from the rota for the trial of these petitions. It is unnecessary to suppose that he is a dark-minded, sinister man, still maintaining his old opinions and anxious to interpret them in some subterranean way. He is so saturated with Party feeling and prejudice that he cannot help their coming out. Every one who knows him, and who watched all that has happened, knows that that is the fons et origo, that is the real cause. That is a very serious fault in any judicial person. The Judicial Bench in this country, and it is one of the greatest blessings we enjoy, has the confidence and support of the 410 whole community, and it is a large factor in securing for us our prosperity and our well-being. But the Judges have the respect of the country because, and in so far as, they respect themselves. When a Judge whoso proper function it is to try a case steps down into the lower sphere, and assumes the right to use the position which he occupies and the advantage he possesses of not being answered on the spot to make little partisan speeches, however short and sometimes humorous, or intended to be humorous, he is as open to our criticism as any man in the street. If we think any Judge by such conduct is lowering the dignity of the Bench and is introducing other evils also, it is our duty to express our reprobation of such conduct. Therefore this Motion is not only in order in a Parliamentary sense, but is perfectly justified and perfectly natural in the circumstances. But let us consider where we stand. My hon. friend the Member for South Edinburgh in his admirable speech said that all that was asked for was tin inquiry. But, as my learned friend has pointed out and the right hon. Gentleman has shown, a Motion of this sort, if it means anything, means, and ought to be intended to be carried out, the removal of the Judge in question from the Bench. Let that be understood. If this was a mere question of spending a few days in raking up the somewhat unsavoury facts of these petitions, that might be useless, but it might do no great harm. But if this Motion is carried, undoubtedly it means capital punishment. That is the plain English of it. Has Mr. Justice Grantham—and no one more strongly condemns his conduct than I do—done anything, after all, which deserves removal from the Bench, which, as we have been told, has never been applied except for some moral turpitude, malversation, or other crime of that sort against the law? The most that can be said of him is that he has mistaken the dignity of his office, that not only in Court, but out of Court, while he was engaged on this trial, he has used intemperate partisan language, and that he has forgotten, not only that he was a Judge of the High Court, but that he had been sent to try this political issue, and to carry out the intention of Parliament of removing from the trial of 411 election petitions the very suspicion of any political motive. Another thing he forgot was this, that in these observations of the Judge, whether in the course of the trial or at some dinner, where anything he might say would be reported all over the place the next morning, he did something to distort and pervert the course of justice in the Court over which he presided— not intentionally, I agree with my hon. and learned friend. It was because, as I have said, he is so saturated with his political feelings that he cannot resist acting upon them and declaring them. But, after all, that is a great mistake of judgment. It is a matter deserving of condemnation. But, when we go a little further, and it is sought to interpret this Motion as an expression of the House of Commons that the decisions were wrong, and to constitute the House of Commons, as the right hon. Gentleman said, a sort of Court of appeal for the trial of these petitions, I agree that that is not a function for which the House of Commons is well fitted, and I think it would be most disastrous if it undertook the duty of revising the decisions that were given on election petitions. So that, after all, have we not accomplished all that was required by the situation—namely, that there should be this public, and, as far as I can make out, almost universal—in different degrees, of course, but of the same tendency— condemnation or censure of Mr. Justice Grantham's language and action? Have we not, by this discussion, accomplished all that is necessary? Have we not given him such a lesson that he is not likely to repeat these ill-considered actions? And have we not also vindicated the Courts of law, so far as it is our power to do so, from the taint of political prejudice which is brought upon them by these intemperate, ill-considered words on the part of the presiding Judge? I believe that we have accomplished that. This is the first occasion, as far as I know, be it remembered, since the change in the jurisdiction over election petitions, that the action of a Judge in regard to them—[" No."] Well, there was an Irish case, but that was founded on different grounds altogether. I do not say the whole branch of Judicature has been very successful. I have thought for 412 a long time, though I do not see my way to suggest an alternative that would be preferable, that the trials of elecdion petitions are not very satisfactory. But, at any rate, there they are, and we must uphold them until we get something better; and, in the meantime, we have given this proof to-day of the strong feelings that exist against the interposition in such matters of any Party feeling in this flagrant manner. I think by that we have done our duty to the country, but that we are not entitled to go the length my hon. friend asks us to go—namely, to take the first step in a course which must lead to nothing less than the removal of the Judge from the Bench.
§ MR. EVERETT (Suffolk, Woodbridge)
said he desired to join in the appea which had been made to the hon. Gentleman opposite to withdraw his Motion. He could conceive of nothing that would be accomplished by the Motion's being carried to a division which had not been accomplished by the debate that had already taken place. If it were pressed, a great many of them would be put into a very difficult position to know which way they should vote, and therefore he hoped the hon. Gentleman would withdraw the Motion.
§ SIR J. JARDINE (Roxburghshire)
thought the discussion which had taken place was sufficient even for so grave a matter. Long ago, on the sage advice of Mr. Disraeli, the House adopted the rule that it would not use its powers to review the reports of the Election Judges, as that would be transferring the ultimate decision from a judicial to a political tribunal. Thus a uniform practice of many years had been established. But this debate disclosed the danger that under the form of inquiry into an Election Judge's conduct his verdict on facts might come under appeal to the House. In this Yarmouth election case the two learned Judges agreed on all points except one, namely, whether the accomplice witness Baker was constructively an agent. On this difficult question the House could not pronounce judgment. Neither was it expedient to make solemn inquiry into supposed judicial jokes, especially when made after dinner and not from the 413 Bench. The House should remember that, as was said, in Butt v. Conant, the Judges and other dignified servants of the Crown have a valuable property in their character and reputation. He hoped the Motion would not be pressed to a division.
§ MR. BLAKE (Longford, S.)
said he could not go quite as far as the Attorney-General as to say that there must be absolute proof of what the hon. and learned Gentleman called corruption. If they found, as it seemed to be admitted on both sides here, the case of a man who, perfectly honestly in one sense, perfectly frankly in every sense, was so saturated by his politics and his partisanship as that, unconsciously, it perverted his judgment, and reduced the trial to something like a very bad farce, they had a case which might demand the interposition of this House. He agreed with the view that, if they went no further, the proceedings of to-day would yet have done a great work. There had been such a practically unanimous condemnation of the course that had been pursued that he could hardly conceive existing in the mind of any Judge worthy to occupy a place on the English Bench a wish for the retention of office. They found a gentleman whom the House of Commons had, by the voice of its leading men, declared to be so absolutely, so frankly, so honestly perverted and saturated with political feeling and prejudice that he could not keep that feeling and prejudice under during the main business of these election petitions. That was a state of things which, if it were to continue, would be intolerable. His opinion was that the voice of the House of Commons, as expressed in this debate, would render it impossible of continuance. He held that the persistent public exhibition of political partisanship and prejudice in the discharge of official duty might be a reason for tie House of Commons to proceed to the extreme sentence, but in this case he thought the severe lesson given by their proceedings to-day would be adequate for the occasion, and a greater effect would be produced on the public mind if his hon. friend withdrew his Motion.
§ MR. MACNEILL
said that in yielding to the appeal of his hon. and learned 414 friend, and in acknowledging the general sense of the House, he felt he should be doing the right thing. Having regard to the universal condemnation of Mr. Justice Grantham's conduct it would be scarcely appropriate to carry the matter further. They had secured a moral and substantial triumph, and he asked leave to withdraw his Motion.
§ Motion, by leave, withdrawn.