Ten Thousand a-Year. Volume 3

1

"The show of hands" (says Lord Stowell, in Anthony v. Seager, 1 Hag. Cons. Rep. 13) "is only a rude and imperfect declaration of the sentiments of the electors."

2

The time within which a petition against the return of a member of Parliament must be presented, has, for the last two centuries, been a fortnight after the meeting of Parliament, or the return of the member. This still continues the limited period. See stat. 2 and 3 Vict. c. 31, § 2. The allusion in the text, therefore, is to the day after that, beyond which a petition could not be presented; and if Gammon, on or after that fifteenth day, had paid money for their votes to the members of the Quaint Club, he might have done it with impunity, as far as concerned the perilling Mr. Titmouse's seat. The legislature has lately, however, made great exertions to put down the system of bribing; and by statute 5 and 6 Vict. c. 102, passed on the 19th August 1842, has invested the House of Commons with very formidable powers for that purpose. If petitioners on the score of bribery, fearful of the strength of the case which may be brought against themselves on the same ground, agree with their opponents to abandon the charge of bribery, and compromise the matter, the committee may nevertheless inquire into the whole matter, and report the result to the House. And by the fourth and fifth section of that act, a petition complaining of bribery may be presented at any time after the first fourteen days of the meeting of Parliament, and within three calendar months next after some one or more of the alleged acts of bribery shall have been committed; and the inquiries of the committee are limited to acts of bribery committed within three months before presenting the petition. The entire system of election law has been also remodelled by several very recent statutes, as will be explained in the next note.

3

For this purpose each party, attended by their counsel, agents, and political friends, immediately withdrew to separate rooms, to fix upon the eleven names which they would strike off. Having done this, they met in a third room, before an officer of the House; and struck off name by name alternately, till the thirty-three were reduced to eleven.—This process was called "Knocking out the brains of the Committee:" for as each party's object was to get rid of a decided and known political opponent, the abler and more eminent he was, the greater the necessity for getting rid of him. Those left were the more obscure members of the House.

4

The process of forming an election committee, as described in the text, fell several times under the author's personal observation—in his professional capacity—as late as till within the last five years, [this note being written in 1845.] It was prescribed by a statute, which since its enactment has been repeatedly amended and re-enacted, known by the name of "The Grenville Act," (stat. 10 Geo. III. c. 16.) It was long regarded as a very masterly and successful mode of securing an impartial committee. Thus speaks of it, for instance, Mr. Justice Coleridge, in a note to his edition of Blackstone's Commentaries, (Vol. i. p. 187, note 31:)—"This statute is justly celebrated for the wisdom and utility of its provisions. One of its principal objects is, to secure a fair election of petition committees." This eulogy was penned in the year 1825; but even admitting it to have been then justified by the working of the system, its defects became subsequently the object of universal regret and reprobation. For some years subsequently to the passing of the Reform Bill, this constitution of election committees—depicted in the text with rigorous fidelity—led to intolerable abuse, and merited scandal and reproach. In the year 1844, after a previous ineffectual remodelling of the system, was passed statute 7 and 8 Vict. c. 103, entitled "An Act to amend the law for the trial of controverted elections of members to serve in Parliament," (passed 9th August 1844,)—which created an entirely new system for the selection of these committees—of which the following is an outline.—At the beginning of every session, the Speaker appoints a "general Committee of Elections," consisting of six members, who must be approved of by the House—and then their appointment continues to the end of the session. A list is then made of all the members of the House, liable to serve on election committees, which is referred to this general committee; and they select from it a certain number, not exceeding twelve, whom they deem qualified to act as chairmen of election committees; and who are thereupon neither liable, nor eligible, to serve as private members of such committees. This body is called "the Chairmen's Panel." The remaining members of the House, liable to serve, are then divided into five panels, of equal numbers; and the order in which these five panels are to serve, is decided by lot, openly, by the clerk of the House, at the table.—All election petitions are then referred to the general committee, whose duty it is to select from the five panels, according to the order in which they may have been drawn, FOUR members, who are to serve as a select committee to try the petition referred to them, in the order in which that petition may happen to stand in the list of petitions—which is to be framed according to the provisions of the Act in question. On the same day on which the general committee thus choose the private members of the committee, but without knowing who have been so chosen, the members of the chairmen's panel select one of their number to act as chairman of the select committee; returning his name to the general committee, as soon as the latter shall have informed the chairmen's panel that the four members have been chosen. When all these arrangements have been completed, the parties in attendance are called into the House, and the names of the chairman and the four members read over to them; whereupon they withdraw, and this committee of FIVE then proceed, in due course, to try the petition. If, through illness, or other allowed excuse, the number should be reduced from five to less than three, the committee is dissolved—unless the parties choose to go on with two members, or even ONE, who in such case will lawfully constitute the committee.—Such is the scheme, devised with anxious ingenuity, which has recently been adopted by the legislature, for the all-important purpose of securing impartial election committees. That it is a vast improvement on the system described in the text, seems certain; but what will be its practical working, time alone can show.

5

These offences are now dealt with much more seriously; several late statutes empowering the police magistrates to fine the offenders, and even commit them to the tread-mill. The effect has been to interfere seriously with this species of nocturnal amusement.

6

The reader will bear in mind, that, as explained in a note to the first volume, arrest on mesne process was abolished a few years ago, by statute 1 and 2 Vict. c. 110, (passed 16th August 1838.) The policy of abandoning this system did not secure the unanimous approbation of the Common Law Commissioners. One of the most learned of them dissented from the report recommending the abolition of the system, and embodied his reasons in a very elaborate supplemental report. That arrest on mesne process was the means of inflicting an inconceivable amount of unjustifiable suffering, and was often a mere vehicle for oppression—is indisputable. The abolition of arrest on final process stands on very different grounds.

7

This is now very far otherwise. Legal proceedings have been recently prodigiously accelerated.

8

The reason why neither a Peer nor a Member of Parliament can be bail is, that they are not liable to the ordinary process of the courts.—(Tidd's Practice, p. 247, 9th ed.) The reason why attorneys and their clerks cannot be bail, is to protect them from the importunities of their clients.

9

A writ of certiorari issues from the Court of Queen's Bench in criminal cases, for the purpose of removing them into it from inferior courts; and when the writ is granted, as it may be at the instance of either the prosecutor or defendant, it entirely supersedes the jurisdiction of the inferior court, and renders all subsequent proceedings in it entirely erroneous and illegal—unless the Court of Queen's Bench should think fit to remand the record to the inferior court. A prosecutor may obtain a certiorari as a matter of right; but a defendant only at the discretion of the court.

10

Forgery was a capital offence down to the year 1830. By statute 1 and 2 Will. IV. c. 66, passed on the 23d July in that year, and statute 2 and 3 Will. IV. c. 123, passed on the 16th August 1832; and particularly by statute 7 Will. IV. and 1 Vict. c. 84, passed on the 17th July 1837, the punishment of death is abolished in all cases of forgery, and transportation for life, or for years, or imprisonment, with solitary confinement and hard labor, substituted.

11

Hamlet.

12

Bribery at elections of members of Parliament was always an offence at common law, punishable by indictment and information; but there are no traces of any prosecutions at common law for such an offence. In the year 1729 the legislature interfered, and, by stat. 2 Geo. II. c. 24, inflicted the penalties which were sought to be recovered by the actions mentioned in the text. Mr. Rogers, in his excellent treatise on Election Law, says that it is not difficult to account for the silence of the books of common law on the subject of bribery. When the increase of money, and the growing importance of a seat in the House of Commons, gave rise to a frequent commission of this offence, the House began to assert its exclusive judicial power over all matters affecting the election of its members—and punished bribery as one of the highest offences affecting the freedom of elections. Having thus made it a matter of privilege, it would have been dangerous for prosecutors to carry their complaints to any other tribunal. Even since the passing of the Act in question, however, numerous cases are on record of proceedings for bribery, by indictment and information—at the instance, not only of private persons, but of the attorney-general prosecuting by order of the House; which latter power has been greatly extended by the statute referred to in a former note.—With reference to the particular transaction of Gammon with Ben Bran, narrated in a former page, viz. promising after the election to pay the Quaint Club for the votes they had given—that alone was held, in the case of Lord Huntingtower v. Gardiner, 1 Barn. & Or., 297, (A.D. 1823,) not to be an offence within the statute 2 Geo. II. c. 24, § 27. But Gammon, it will be borne in mind, had been fatally implicated, by his negotiation with the club for the purchase of their votes, before the day of the election. The penalties sued for in the text, are to be understood as having been due in respect of offences committed by other cases of bribery, as already explained, than those affecting the Quaint Club.

13

The system of joint-stock companies' speculation, as described in the foregoing and subsequent pages of the text, so far from being an exaggeration, falls far short of a complete illustration of the stupendous scale of swindling which has, during the last ten or fifteen years, been tolerated in this great commercial country. At length, however, in the year 1844, the legislature has struck a blow calculated to demolish the whole fabric, or, at all events, prevent any similar erection. By statute 7 and 8 Vict. c. 110, entitled, "An Act for the Registration, Incorporation, and Regulation of Joint-stock Companies," passed on the 5th Sept. 1844; and by act 7 and 8 Vict. c. 111, entitled, "An Act for facilitating the winding up the affairs of Joint-stock Companies, unable to meet their engagements," passed on the same day—such restrictions are placed upon fraud and improvidence, as are calculated to paralyze much of their powers of practising upon public credulity. Publicity and responsibility are two objects which are effectually attained by the combined operation of these acts, which are masterpieces of commercial legislation.

14

I. e.—The proctors' setting forth of their client's name and interest.

15

See the note to a preceding page in this volume, (ante, p. 307,) where an explanation is given of the salutary change recently effected by the legislature, in the law of joint-stock companies.

16

The present punishment of bigamy [or polygamy as, says Blackstone, (4 Comm. 163,) it ought to be called] is fixed by statute 9 Geo. IV. c. 31, § 22, which declares the offence of bigamy (whether the second marriage have taken place in England or elsewhere) to be a felony liable to transportation for seven years, and imprisonment with or without hard labor, for any term not exceeding two years; subject, however, to a proviso that the act shall not apply to any of the following cases: 1. The case of a second marriage contracted out of England by any other than a British subject. 2. The case of a person marrying again where husband or wife shall have been continually absent from that person for seven years then last past, and shall not have been known by such person to be living during that time. 3. The case of any person who, at the time of the second marriage, shall have been divorced a vinculo from the first marriage, or whose former marriage shall have been declared void by any court of competent jurisdiction.

The meaning of the second of these exceptions is, that the husband or wife shall not have been known by the other party at any period during the seven years to be alive. Regina v. Cullen, 9 Car. & P., 681.

17

It has been recently decided (the King v. Inhabitants of Wraxton, 4 Barn. and Adol., 640,) that to render a marriage invalid on the ground stated in the text, both parties must be aware of the false name being adopted. See also, Wiltshire v. Prince, 3 Hagg. Ecc. Rep., 332.

18

Signing is not necessary to the validity of a bond or deed at Common Law. The essential requisites are—sealing and delivery. See a very interesting explanation of these matters in Vol. ii. pp. 305 et seq. of Blackstone's Commentaries.

19

An attorney cannot be thus compelled to answer matters which would amount to an indictable offence; for that would be compelling him to criminate himself. Upon this ground, applications like that in the text are often discharged; but it affords no protection to an attorney where the application is, not to show cause why he should not answer the matter in the affidavit, but why he should not be struck off the 28th roll.—See the distinction clearly explained in the case of Stephens v. Hill, 10 M. and W.

20

The law regulating the "qualification," in respect of property, requisite to render a man eligible for a seat in Parliament, has been recently—viz., by stat. 1 and 2 Vict. c. 48,—altogether altered. Real or personal property to the extent of £600 a-year, now gives a sufficient qualification to a county member, and to the extent of 300, to a member for a borough.

21

The privilege of franking letters, so long enjoyed by the members of both Houses of Parliament, has been recently abolished. After the introduction of the penny postage system, the privilege in question was very greatly reduced in value and importance. By statute 3 and 4 Vict. c. 96, § 56, (passed on the 10th August 1840,) "All privileges whatsoever of sending letters by the post free of postage, or at a reduced rate of postage, shall, except in the cases in that act specified, wholly cease and determine."

22

These are the abbreviations of the technical words by which are known the two writs of execution against a debtor's person, and his goods. The former "Ca. Sa." represent the words addressed to the sheriff, "Capias A. B. [the defendant] ad satisfaciendum." The latter represent the words addressed to the sheriff, commanding him "ut fieri faciat"—that he should cause to be made, or realized, out of the defendant's goods, the amount due to the plaintiff.

23

The certificate of a bankrupt no longer depends upon the mere will and pleasure of his creditors, but upon the discretion of the commissioner, or judge in bankruptcy, who has become acquainted with the whole conduct of the bankrupt, and may grant, refuse, or postpone a certificate, and annex such conditions to a grant of it as he may think fitting. This very important and salutary alteration of the law was effected by statute 5 and 6 Vict. c. 122, § 39, passed on the 12th August 1842. This power has been exercised on several recent occasions, in a manner highly satisfactory to the public, and creditable to the acuteness, discretion, and firmness of the court.