1837. shall, or who shall not vote at a particular election. The interests of the members of the House of Commons may, in some measure and in some cases, be directly opposed to the interests of particular classes of voters, which reason is alone sufficient to prevent the elected from having any common law right to determine who shall be the electors; when such right is to be conferred, or taken away, or modified, it can be done only, as it always has been, by an Act of the whole Legislature.

But it may be urged, that before the passing of the Irish Reform Act, the House of Commons had to a certain extent the power of questioning the right of voters to be placed on the poll; and that, as nothing is contained in that Act expressly taking away that power, it must be considered to continue. In order to explain this satisfactorily, it would be necessary to inquire accurately into what is and what has been the authority of the House of Commons on this subject.

Before the Grenville Acts, the House of Commons had by common law an authority to investigate the due execution of writs issued to returning officers for the return of members to that House. At that time, it was the duty of the returning officer to inquire into the right of persons who tendered themselves to vote, and to return the person who had the suffrages of the greater number of qualified voters. The returning officer was liable to the House for any abuse of the authority reposed in him, and if his conduct was impugned, the House of Commons were authorized to investigate it, and for that purpose to scrutinize the list of persons whom he had permitted to vote, and whom he had excluded. Thus the inquiry into the qualification of voters became necessary, as part of the inquiry into the mode in which the sheriff had done his duty.

This power was vested in Committees by the Gren- 1837. ville Acts.

But the jurisdiction of the House of Commons, and subsequently of Committees, was always limited to the extent of the returning officer's jurisdiction.

A Committee of the House of Commons is the tribunal to which an appeal lies against the conduct of the returning officer; and the same rule is applicable to its jurisdiction which holds good in all other cases of appeal, viz. that the court of appeal may inquire into any thing which the inferior court may have inquired into, and nothing further. The court of appeal may use more extensive means of inquiry than the inferior court had within its power, but cannot try any question which it was not competent for the inferior court to have tried.

Before any system of registration was introduced into Ireland, the returning officer in Ireland inquired into the whole of the qualification of the voters, so might the House of Commons on appeal. When by the Reform Act the returning officer was confined in his inquiries to what took place subsequently to the registration, the House of Commons was also confined in its review of the conduct of the returning officer to what took place subsequently to the registration.

The inherent power of the House of Commons extends only to an inquiry, whether any thing has been done by the returning officer, the voter, or the candidates, which ought not to have been done, supposing them to have had full information of what their duty was.

The House of Commons has power to inquire if a voter has accepted a bribe; that is a contempt of the House of Commons.

If a candidate has used intimidation.

If a returning officer has neglected his duty or been imposed upon. Thus, although the returning officer is restricted to requiring the oath in schedule (B) to be

1837. taken, the Committee have a power to examine into the

correctness of the averments in that oath; and by section 59, they are authorized to punish a false oath. The Committee may inquire, whether any thing has occurred since the registry to disqualify the voter. They may sit in appeal on the decisions of the returning officer, and in prosecuting their inquiry may use the most ample means of investigation, but they cannot sit in appeal on the decisions of the assistant barrister, unless the power of doing so is expressly given to them by Act of Parliament.

The subjects of inquiry before Committees and before the returning officer would be found to be the same, though the modes of inquiry might be different; the returning officer's means of inquiry being restricted by the Reform Acts to the questions and oaths prescribed by them. There was one exception to this rule; the returning officer had no power of inquiring whether a voter had become disqualified by accepting an office; the Committee had: but as this power was conferred by express enactment (in sec. 59), it showed the existence of the rule in other cases.

Such, he believed, would be found to be the true and constitutional privileges of the House of Commons in matters of election. But let it be granted, for the purposes of argument, that the view which he had taken of the ancient, immemorial, natural, and undoubted privileges (1) of the House of Commons was too narrow ; let it be granted that the privileges of the House of Commons were paramount to any Statute, although that statute was originated by themselves. Let it be granted, that in matters of election they were not "bound to judge according to the law of the land, and the known and established laws and customs of Parliament,”(1)

(1) See the authorities cited by Mr. Harrison, in his argument on the Oxford case, P. and K. 79.

Let every thing be granted which the wildest declaimer 1837. for their privileges ever contended for, still the grounds on which the present vote was objected to could not be sustained. They were called on to strike John Allen's vote off the poll, because a previous Committee had ordered his name to be struck off the register. The register was a thing of yesterday. What prescriptive right could the House of Commons claim to control it? To have been the subject of their ancient and immemorial usages, it must have been ancient and immemorial itself.

If this principle be conceded, the objection to John Allen's vote cannot be sustained.

For although the resolution of June 1835 authorizes the House of Commons to direct a Speaker's warrant to be issued requiring the clerk of the peace to amend the register, yet this resolution is only founded on section 60 of the English Reform Act, and is wholly inapplicable to Ireland, if the House of Commons has no power to interfere in any way whatever with the Irish register.

Consequently, the warrant of the Speaker of the House of Commons for striking off the name from the register was a nullity, for want of jurisdiction; and John Allen's first certificate still remained good.

Even if that was not conceded, the second certificate at least was good, unless the register could be opened.

And even if the register were opened, they would still be bound to hold the vote good, until having inquired into the evidence on both sides for themselves, without any reference to the opinions of any previous Committee, they themselves should adjudicate it to be bad.

Mr. Thesiger.-The question of opening the Irish register is not new. There has scarcely been a contro

C

1837. verted election since the passing of the Irish Reform Act in which it has not been amply discussed. Probably there never was any question brought before any tribunal, which has been more thoroughly argued and considered. And the result has been, so strong and general an impression in favor of the reasonableness and legality, and even necessity, of opening the register in Ireland, that although the decisions are not strictly uniform, yet the great and overwhelming current of cases is decidedly in favor of preserving to Committees of this House their ancient and constitutional authority. The only reported case cited on the other side, is the first Carlow county, in which the reported decision of the Committee is given as follows:-"The Chairman stated, that after the most anxious deliberation, the Committee were of opinion, that they ought not to enter into the qualification of the voter." (1)

The very form in which this decision is given, shows strongly the doubt and hesitation with which the Committee arrived at their conclusion, and that they were well aware of the difficulties and inconveniences which must arise, if the view which they took of the question were to be generally adopted. Two other cases have also been cited, those of Youghal and Ennis; but as neither of those cases is reported, it is impossible to estimate the weight to be attached to them, or the extent to which they go. But from his own recollections of the Ennis case, he could safely assert, that so far as it bore upon the question at all, it was decided upon grounds directly contradictory to the reasonings which had been adduced on the other side.

But he might well afford to give to his opponent the full benefit which could be made of the three decisions which he had quoted, without giving himself the trouble

(1) C. and R. 439. P. and K. 393.