Judges. To this the Commons reluctantly assented; a conference took place before the King and council, and the King in the end admitted the right of the House to be a court of record and judge of returns, though he claimed a corresponding jurisdiction for the Chancery; and he suggested as a compromise, that the elections of Fortescue and of Goodwin should both be held void and a new writ issued. This was done, and the right of the Commons was not afterwards questioned nor that of the Chancery asserted 1. trial. For some time disputed returns were decided by a Committee Modes of of Privileges and Elections nominated by the House. This became an open committee of the whole House after 1672, and finally, in the time of Speaker Onslow, the confidence felt in him caused the parties to these suits to ask a trial at the 17271761. bar of the House. It would have been difficult to find a worse tribunal. As Trial at bar. the trial was before the whole House, no single member felt any individual responsibility. The judges were a large and fluctuating body, wanting alike in the training and the inclination to act judicially. In fact, a disputed return was settled by a party division. The closing struggles of Walpole's ministry turned, not on his foreign or domestic policy, but on votes of the House taken on election petitions. 'Last Friday,' says Horace Walpole, we carried a Cornish election Dec. 17th, ... You can't imagine the zeal of the young men on both sides.' 'Tuesday, we went on the merits of the Westminster election, and at ten at night divided and lost it. They had 220, we 216; so the election was declared void. We had fortyone more members in town who would not, or could not, come down. The time is a touchstone for wavering consciences. All the arts, money, promises and threats, all the arts of the former year are applied, and self-interest operates to the aid of their party and the defeat of ours.' Finally, the loss It is proper to note here a distinction between the claim of the Chancery, in the case of Fortescue and Goodwin, to adjudicate upon a disputed return, and the claim of the Chancellor, Lord Shaftesbury, in 1672, to issue writs to supply vacancies during a recess without a warrant from the Speaker. 1741. Under the Act. Under the of the Chippenham election petition determined Walpole to resign. To remedy this state of things, Mr. Grenville, in 1770, introduced and carried the Act known as the Grenville Act, at first a temporary measure, but afterwards made permanent. This Act transferred the decision of disputed returns from the House to a committee, selected from a list chosen by ballot, of forty-nine members, from which list the petitioner and sitting member struck out names alternately until the number was reduced to thirteen. Each party nominated an additional member, and the case was tried by this tribunal, to which was given the power of administering an oath. No appeal lay to the House, whose privileges in this respect were henceforth limited by the operation of the Statute. The committee was a more responsible tribunal than the House at large; it had a better chance of arriving at an impartial decision, and the power of administering an oath enabled it to obtain evidence on which it might rely: but its members could not fail to be interested on party grounds in the result of their decision, and being selected by lot, they had not necessarily any trained judicial capacity. The committee which determined these questions was diminished in number, and the mode of its appointment altered by Sir R. Peel's Act, 4 & 5 Vict. c. 58, and again by 11 & 12 Vict. c. 98. But in 1868 the House adopted the only course by which a really satisfactory decision of controverted elections could be attained, and handed them over to the Courts of Law. The rules for their trial are now to be found in the Parliamentary Elections Act, 31 & 32 Vict. c. 125, and the amending Act, 42 & 43 Vict. c. 75. The petition is presented, not to the House but to the High Court of Justice; the trial is conducted, not by a committee of the House at Westminster, but by two Judges of the High Court in the borough or county of which the representation is in issue. The Judge certifies his decision to the Speaker, and the House, on being informed of the certificate by the Speaker, is required (sect. 13) to enter the same upon the Journals, and to give such directions for confirming or altering the return, or for the issue of a new writ, as the form of certificate may necessitate. (3) As I have just explained, the House has given over to Notice of disqualifithe Law Courts the right to determine controverted elections; cation. that is to say, elections which are called in question on the ground that a candidate, otherwise properly qualified for a seat, has been returned in an informal manner, or by persons who were not entitled to vote, or by votes procured through improper inducements. But it retains the right to pronounce at once on the existence of legal disqualifications in those returned to Parliament, and will declare a seat to be vacant, if the member returned is subject to such disqualification, without waiting for the return to be questioned by persons interested in the matter. The case of O'Donovan Rossa, February 10, 1870, of John Mitchel, February 18, 1875, of Michael Davitt, February 28, 1882, are instances of the exercise of this right by the House of Commons. The case of John Mitchel, who was twice elected, illustrates Ante, p. 8o. best the action of the House in such matters. In the first instance, no petition was lodged, and the House declared the seat vacant. On the occasion of his second election, a petition was lodged, and the seat claimed by the other candidate: the House allowed the disqualification to be determined by the Courts; but it does not follow that the House was bound to await the decision of a Court of Law. to serve, a cause of (4) Cases may arise in which a member of the House, Unfitness without having incurred any disqualification recognised by law, has so conducted himself as to be an unfit member of expulsion. a legislative assembly. For instance, conviction for misdemeanour is not a disqualification by law though it may be a disqualification in fact, and the House of Commons is then compelled to rid itself of such a member by the process of expulsion. But expulsion, although it vacates the seat of the Effect of expelled member, does no more than express the opinion Expulsion. entertained by the House of the unfitness of the member expelled. It does not create a disqualification, and if his constituency do not choose to regard his conduct in the same light as the House regards it, they can re-elect him. If the House and the constituency differ irreconcilably as to the fitness of the person expelled, expulsion and re-election might alternate throughout the continuance of a Parliament. Process of Expulsion. In 1769 the House, irritated by the re-election of Wilkes whom it had expelled, proceeded not merely to expel him but to declare his election void. The House thus endeavoured to create a new disability depending on its own opinion of the unfitness of Wilkes to be a member of its body. As a judge of returns1 the House was able to give effect to its decision, and in February 1770 to declare a subsequent reelection of Wilkes to be void, the votes recorded in his favour to be thrown away, and the candidate next on the poll to be duly returned. But the arbitrary conduct of this House of Commons was not sustained by its successors. Wilkes was elected to serve in the new Parliament of 1774 and took his seat without question. In 1782 a resolution which he had moved in five previous years was carried, and the vote which declared his election void, and all the declarations, orders and resolutions respecting the Middlesex election 2, were expunged from the Journals of the House. The manner of proceeding where a member who has been convicted of misdemeanour incurs the penalty of expulsion may be set forth. The judge who presides at the trial and gives sentence, communicates the facts to the Speaker, and the Speaker informs the House of what has occurred. 1 See, as to this, pp. 157-159. 2 May, Const. History of England, i. 414, where a full account of the Wilkes controversy is to be found. The House may be moved that a humble address be presented to the Queen to give directions that a copy of the Record of the proceedings at the trial be laid before the House, This being done, on a subsequent day the House is moved:That the letter addressed to Mr. Speaker, by Mr. Justice respecting the conviction before the Central Criminal Court of A.B. member for might be read, and the same was read as follows; Mr. Speaker, I beg to inform you that A. B. M.P. was this day convicted of a misdemeanour for which I have sentenced him to twelve calendar months' imprisonment. And I have the honour to remain &c. &c. A motion is then made and the question put, that the said letter and record of the proceedings upon the trial of A. B. be now taken into consideration. If it is resolved in the affirmative the House accordingly proceeds to take the letter into consideration, and if the result is unfavourable to A. B. it is resolved that A. B. be expelled the House 1. (b) Right to the exclusive cognizance of matters arising within the House. Blackstone lays it down as a maxim upon which the whole law and custom of Parliament is based, 'that whatever matter arises concerning either House of Parliament ought to be examined, discussed, and adjudged in that House to which it relates, and not elsewhere.' This statement cannot be accepted without certain reserva- Limits of the right. tions. It is not true to say that because a matter has arisen concerning the House, and has been adjudged within the House, such a matter cannot be considered elsewhere, if it affects rights exerciseable outside and independently of the House. It is strictly true to say that the House has the Extent of the right. exclusive right to regulate its own internal concerns,' and 1 The cases which have furnished ground for expulsion are summarised in May, Parl. Practice (ed. 9), 65, 66. The Commons' Journals for 1891 and 1892 will furnish more recent instances. |