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Monday, 4th June, 1838.
THE TRIAL OF CONTROVERTED
See No. I. page 28.
There are three kinds of questions which may arise on these trials: questions of fact, questions of law, and questions of privilege. The House of Commons, if it means to retain a share of the sovereignty of parliament, must preserve some control in the last resort over all these questions, but the House is not well adapted to decide any of them by itself in the first instance, except the questions of privilege.
It is not easy to prevail on those who have not practised as lawyers, to give a full attention to the consequences which are connected with the difference between questions of law and questions of fact.
Questions of fact, under which head questions of intention ought always to be included, cannot be tried satisfactorily, or without needless expense, any where else than in the neighbourhood of the place where the facts have occurred, and by the neighbours themselves, learned or unlearned; but questions of law are best determined in the metropolis, and by those who have studied the laws respecting which the questions have arisen. A trial of facts, even if the decision be erroneous, affects only that particular case : a wrong determination of law may have a mischievous effect upon every future case in which the same question arises. In questions of fact, a tribunal of appeal can only be employed with advantage, for the purpose of setting aside a wilfully false verdict; or one which is made without any evidence at all, to support it; it scarcely can attempt to correct verdicts which are merely erroneous, without destroying the peculiar advantages of the trial by jury; and it cannot possibly establish any universal rule for determining future verdicts, because oral evidence never presents twice over exactly the same state of facts. But an appeal upon erroneous determinations of questions of law is attended with very little inconvenience, and is absolutely necessary, for the purpose of establishing universal rules, without which precisely the same questions of law might for ever recur.
When facts and law are presented in the concrete to minds which have not ready and practised powers of analysis, it is impossible that there should be any clear decision or apprehension of them. That state of doubt, or rather of confusion, is produced, which affords to the mind an excuse for deciding according to inclination. The public are not able to discern whether such decisions are made fairly or not; and the encouragement of public approbation to upright judgment, and the check of public reprobation upon that which is unrighteous, are both in a great degree lost. The most obvious and unanswerable objection, however, to the trial of questions of mere fact by election committees, is the useless and pernicious expense. Take an instance or two. It was doubted, by the returning officers at some of the late elections in England, whether it was necessary for a voter, on the day of polling, to be in the occupation of the same tenements which were stated on the register to be his qualification, and some members owed their returns to the votes of those who had not retained such occupation. Before the trials, however, of any of the election petitions, the lawyers in London had so generally come to an understanding, that the continuing occupation was indispensable, as to have induced some sitting members to abandon the defence of this point. Yet, according to the provisions of the Grenville Act, and of the improved edition of it, which is contained in the 9 Geo. IV. c. 22, it was necessary for petitioners to bring witnesses from the places of election to London, to prove the change of occupation. Suppose a case of this sort, in which only fiveand-twenty voters might have to be struck off the poll. Two witnesses, at least, might be required, as to each voter ; and they might have to come three hundred miles, and to remain a week in London, and then return home. In what way could a thousand pounds be more thoroughly wasted ? But points equally well understood, and equally trifling and minute, and fitted for the verdict of a country jury, may exist in the case of a remote county in Scotland or Ireland; or, in a Dublin case, may be counted by hundreds instead of scores, and thus many, many thousands of pounds may be exacted by the House of Commons, for giving a decision of what the ordinary forms of trial might determine in a more satisfactory manner for as many pence.
Sir Robert Peel's plan, as far as it has yet been disclosed, does not provide any remedy for this foolish waste. Yet, why should not his general committee send issues of fact, to be tried in the country, as the three common law courts in Westminster Hall do?
The second class of questions which arise before election committees, are questions of common law, or statute law, or of equity. No one can deny that those by whom such questions would be most likely to be decided correctly, are the fifteen common law judges, and the judges of the High Court of Chancery ; nor can any one doubt, that election committees are likely, in such questions, both to make mistakes, and, even where they do not make them, to be suspected of them. The instances may be remembered, in this session, of Mr. Gibson's qualification in the Belfast case, and of Mr. Wilberforce's in the Hull case. Now, there are strong reasons against leaving even these questions in election cases to be wholly raised and determined by the superior courts in Westminster Hall. It might subject these tribunals to the imputations of political bias, which election committees are now supposed to deserve, or might bring the judges into opposition with the House of Commons. But the same reasons do not exist against Sir Robert Peel's general committee having the liberty and authority to state abstract points, or cases of law or equity, for the opinions of the judges, which the House of Lords has always done; nay, which benches of magistrates did in cases of settlement, under the old poor laws, until they made the Court of King's Bench gradually, and, in a long series of years, form a code of decisions upon questions as various, as minute, and as vexatious, as those points of election law, which it recently occurred to Lord Stanley to think of settling at once, by a declaratory act.
Questions, as to the privileges of the House of Commons, by which, in correct language, such of its rights are meant as rest only upon the unwritten law of parliament, or upon entries in its own journals, cannot be subjected, without inconvenience and danger, to the determination, even in the first instance, of any other tribunal than the House itself, or of the Speaker, or of a committee of the House. Sir Robert Peel's general committee might unite, with its other functions, those of a standing committee of privileges ; and, with the assistances which have been suggested, it might pronounce the final decision upon every thing involved in the trial of a case of controverted election, excepting any question as to privilege, properly so called ; upon which it might decide or report, in the first instance, and then it might be left open to any members of the House, but to none else, to appeal to the Speaker, and from the Speaker to the House. These cases ought to be, and probably would be, of very rare