ART. IX.-A Bill to Amend the Laws which Regulate the Registration and Qualification of Parliamentary Electors in England and Wales. Ordered by the House of Commons to be printed, 10th August, 1842.

Palgrave.

Sir Francis IT is not usual for us to notice the pending proceedings of the legislature, or to consider them as within the jurisdiction of criticism; but the Bill now before us forms an exception to the rule, and, indeed, asks for our remarks. Introduced towards the close of the session, it was purposely allowed to stand over for the consideration, not only of the members, but of the public: an intimation was given that it was desirable that the Bill should be examined and discussed, before it should be again presented to the House. We therefore trust we shall not incur the imputation of presumption, if we venture respectfully to express our belief, that the projected scheme will only add to the number of the experiments hitherto so unsuccessfully made for securing the legal exercise of the parliamentary franchise. As yet, no measure adopted by the Legislature has accomplished the muchdesired end, of submitting the rights of the electors and the elected to a fair, able, and impartial tribunal.

Anterior to the reign of Queen Mary, the House of Commons had no jurisdiction over the return of the writ. Whoever had the jurisdiction, it is quite certain that the House had it not. In some cases, the cognizance of the matter seems to have belonged to the Chancery, into which court the writ is returnable. Various original writs of election anciently issued from the Chancery. Of these, the most important were, and, indeed, still are, the writ for the election of the Coroner of the shire, the writ for the election of the Verdurer of the forest, and the writ for the election of the Knight, Citizen, or Burgess to serve in parliament,* which

* Although it may appear, from a perusal of Prynne, that the Parliamentary writs formed a distinct class, such is not by any means the case. Like all other writs returned into Chancery, they were kept in filacuis-that is to say, strung upon a string or file, usually a kind of catgut, and tied up in bundles. From the mass, Prynne made his selections; but, diligent as he was, he only partially worked the mine. Many more were discovered in our time, and added in Palgrave's Parliamentary Writs; and at this moment, an examination of the whole mass of the records in filaciis, which were built up like a wall in the ancient council chamber of the White Tower, has been commenced; and it has been ascertained to contain more Parliamentary documents. We have, in the present article, carefully avoided all antiquarian discussions; but we shall venture to state an historical fact which we are sure will be highly interesting both to Mr. Hallam and his readers, viz., that amongst the unpublished documents is a writ addressed to the sheriff of Kent, tested at Chester, 1 Sept., 3 Ed. I., for the election of knights of the Shire to serve in Parliament to be held at Westminster in the quinsain of Saint Michael. The knights elected are Fulk Peyforer and Henry de Apeldrefeud, or Apple-Tree-Field, names often occurring in the Kentish returns. This writ is not enrolled upon the 'Close roll;' and it is expected that the bundles in filacus will furnish other important documents, of which no other record remains.

several

several writs are emanations, so to speak, from one system, and guided by the same rules. But in early periods, the validity of the return was principally examined in relation to claims made by the member, after the dissolution of parliament, for his wages; and the question was thus brought before other courts, glancing off, as it were, from the Chancery. In the reign of Henry IV., the Lords in parliament inquired into the conduct of the returning officer, and examined the returns. Possibly this course was found insufficient, and a common law remedy was given by a statute yet in force, and according to which the return is made by indenture. Elizabeth attempted, but fruitlessly, to check the Commons in their impertinent meddling with matters belonging, as her Majesty asserted, to her Chancellor. James renewed the contest: James was beaten; and the resolution of the year 1624, that it is the ancient and undoubted natural privilege and power of the Commons in parliament, to examine the validity of elections and returns concerning their house and assembly, and to cause all undue returns in that behalf to be reformed,' has been repeatedly confirmed by statute, and is now unquestionable law. It is rather an amusing example of the shortness of parliamentary memory, that this right, so resolved to be ancient in 1624, was not older than many of the members: yet we will not cavil at the term.

· Cæsar did never wrong, but with just cause;'—whatever defect there may have been in the original title of the House of Commons to the jurisdiction, we are not prepared to assert that, considering the easy virtue of the Judges under the Tudors and early Stuarts, they should be blamed for having seized the power into their own hands. It may be that nothing short of such an usurpation could have secured the rights and liberties of the Realm. But, having won the battle, the Commons ran riot in the exercise of their power. Their licence became intolerable even to themselves. When Mr. Grenville brought in his celebrated Bill (10) Geo. III. c. 16), the foundation of the present system, he observed That the great defects of the present manner of determining arose, first, from the number of the judges, as in all known courts of judicature in the world there was none so large as in the House of Commons; that the consequence of this large number was, that gentlemen, having no particular tie on them of oaths and honour, and the tediousness of some of the causes, contented themselves with giving their vote without examining the affair as they ought to do, sheltering themselves under the numbers who did the same.'*-Debrett, vol. xxvii. p. 270. And, in a subsequent stage, he advocated the transfer of the power of the House to the Committee for this very reason:—

*Such of our readers as are not familiar with the early parliamentary debates may require to be told that the incoherencies and slovenlinesses appearing in these extracts are not the errors of our transcriber, but are to be found in the original.

'That

"That the House at large might not have anything to do in the decision, to which it always proceeded in a manner so justly complained of, to the shame of the House, in a manner so justly reproached by all without doors, and gave such scandal to the whole world. That there was no method of curing this evil but by removing the trial from a court that was thin to hear, and full to judge; from a court, the members of which openly avowed that they decided not on the merits of justice, but as their engagements stood; and by deferring the hearing and final judgment also to a court consisting of a select number, of a few members responsible for their conduct, and acting under the sanction of an oath. That this situation was exactly that of a jury (!!!)—that, whatever might be now the degree of profligacy and corruption in the world at large, yet juries, their proceedings and verdicts, still remained unimpeached.'p. 282.

It is not necessary to trace the alterations which the Grenville tribunal-a panel of forty-nine, drawn by lot, reduced to thirteen by striking the surplus off, on either side, and increased by two nominees-has since sustained. And still less is it needful to observe, that the newly-modelled tribunal of seven selected members-a tribunal existing in a manner upon sufferance, the act having been continued only for one year (5 and 6 Vict., c. 73)-has not gained more credit than its predecessors, either in the House or with the community at large. Strong as is the language which has been employed by Lord Brougham in attacking the constitution of the Committees, it hardly goes, so far as popular opinion is concerned, beyond the mark.

In order to analyse the causes of the incompetence of the tribunal, we must begin by endeavouring to obtain a full understanding of what an election committee is not. An election committee is not a trial by jury: it is not anything like a trial by jury. Mr. Grenville, as we have seen, exulted that he was establishing his court upon the principle of a trial by jury; and yet, when he so asserted that their situation was exactly that of a jury,' the words had hardly been out of his mouth by which he had flatly contradicted himself. In explaining his bill, he had just shown that his committee-men were judges, having, as they still have, the hearing and final judgment of the cause. Furthermore, the peculiar character of our modern trial by jury-we say modern, because our present jury has nothing, except the name, in common with the ancient array of jurors from whom it is derived -does not arise from the tribunal being a select number,' or from acting under the sanction of an oath,' but because they sit at the feet of the Judge who hears the case with them, and determines the law for them, who assists them by his advice, and to whom they are virtually responsible for their conduct. Lastly, Judge and Jury only form part of a court, by whom any

fault

fault which either may commit may be redressed. If the jury make a mistake in their decision upon evidence, the verdict may be set aside: if the Judge lays down bad law, you have a new trial; and, lastly, if a wrong judgment be given by the court itself, you have a writ of error to the Lords. But if the committee are puzzled, they can ask for no direction. No correction can be made, if they err on facts: no appeal, if they misunderstand the law.

A

It is the presence of the Judge which renders our jury trial so practically useful. From the union of Judge and Jury results the salutary power, so imperfectly appreciated amongst us, and which continental jurists do not understand at all, possessed by the jury, of doing wrong with just cause; that is to say, of measuring out the particular application of the law to each individual case, without disturbing the general principles of the law. swindler brings his action against a newspaper for exposing his machinations. The Judge lays down the law: explains to the jury that the defendants have by no means been able to justify the libel; but, at the same time, he tells them that they will give the plaintiff such amount of damages as the justice of the case requires. Damages to the amount of one farthing is the verdict of the jury the wholesome principle of the law, which punishes calumny upon the character of an individual, is maintained untouched, the shabby plaintiff walks out of court, and is sued by his attorney for the costs, the said attorney getting nothing for his pains but the non-assets, which, after a due period, appear in the insolvent's schedule. In criminal cases, equally, there is the same equitable adaptation, though worked in another way. The facts are proved: the Judge directs the jury to find the culprit guilty of the theft; but he listens to their recommendation, and pronounces a sentence of a week's imprisonment, after which the girl is to be sent home to her friends. You fit the law to the case, without establishing any precedent which may destroy its stringency.

:

Now, in the Committee, which, as we shall show hereafter, is not a Committee of the House of Commons, there can be none of this adaptation, this flexibility: the members are judges of law and of fact, and the Court is so constituted as to afford the smallest possible chance of coming to a right decision upon either. It is a hopeless court; for, when a decision has been given, there is no mode of correcting the errors of the Judges if they have received improper evidence or rejected proper evidence, or misconstrued the law. Possibly, in many particular classes of questions (e. g. actions for nuisances), you may construct a very good and useful court, in which the judges shall decide law and fact; but in the formation of the election committees the Legislature has

departed

departed from every principle by which Judges can be qualified for the station which they enjoy. An election committee is a court in which the judges are forbidden to acquire wisdom by their own experience. Our old proverb says, that experience makes fools wise,' which is not true-for a fool brayed in a mortar continues a fool; but it is true, that no wisdom can be acquired except by experience. In all other cases, the older a judge is, and the longer he has sat in court, the more skill and science he obtains; but in the case of an election committee, any modicum of experience your member has acquired by having once served as a judge is a disqualification from his further acting in that capacity; and you have a shifting court, which as soon as it has begun to learn its alphabet, as far as great A, little A, bouncing B,' never has another opportunity of trying its incipient skill. Permanent courts, however arbitrary, are in some degree ruled by their own precedents. The Alcade of Mogadore would not venture to decide that what was white yesterday shall be black to-day. The election committee is not bound by any precedents, neither from other committees, nor from any other court; and thus, whilst the judges have no stock of experience of their own, they refuse to profit by that of any one else. They do not know the road, nor will they ask the help of any guide.

He

A judge is controlled and supported in his functions by the consideration and dignity attached to his permanent station. acquires the esprit de corps, which makes him take a pride, and a very honest pride, in the exercise of his duty. He is not only morally, as well as legally, responsible for his conduct, but he is also restrained by the wish to sustain his character; and in proportion as he likes his duty, so does he perform it well. An election committee has no character to sustain; the members have no responsibility, and are brought into the committee-room by an operation not exceedingly dissimilar to that of sailors who are put on board ship by the tender mercies of a press-gang. To use a homely but intelligible expression, there is hardly one who would not rather shirk the duty if he could. Of course there are very many who do bestow great pains, and conscientious attention, in the discharge of the duties forced upon them, yet they would all rather be excused: they have been driven into a disagreeable task; and, according to the ordinary average of human nature, a disagreeable task is never well performed.

It is a court without any authority over the bar: it is a court which does not command the respect of the bar: it is a court not qualified either by knowledge or constitution to exercise that species of freemasonry, if we may use the expression, which keeps bench and bar in a state of proper understanding with each other.

The