§ Lord Marsham
rose to move the order of the day, for he ring at the bar the charge against R. A. Cox, esq and sir W. Rawlins, knt. the gent, who were, in 1802, the sheriffs of London and Middlesex. The noble lord said, he felt some slight embarrassment what course 276 to take, having at one time understood that the parties had no wish to call evidence, and now understanding that their opinions were rather changed. Any accommodation he could give he wished to give; he was sure the house wished the same. He now moved the order of the day.
The Chanc. of the Excheq.
avowed his intention to oppose the hearing of evidence at the bar. He would either move, that the order be discharged, or oppose it, when moved, in due form.
§ The Speaker
said, there were two roads open in this matter to the house; either the motion for hearing counsel at the bar might be made, and an order voted, or having heard the motion made, the right hon. gent, could move, that the order be discharged.
The Chanc. of the Excheq.
observed, that the noble lord was undoubtedly in possession of the house, but that if such a motion were made, he should feel it necessary to negative it.
§ Lord Marsham
would have no objection to any mode which the house should think proper to adopt. There was, however, some delicacy in the case, since the parties wished to be heard at the bar.
The Chanc. of the Excheq.
now rose to move for the discharge of the order. There was nothing, he said, to induce trite house to wish to hear evidence at its bar. The question had already undergone the fullest discussion. The house had the judgment of a select committee, the attention and the powers of which were peculiarly directed to this subject. Such was the case previous to the act called the Grenville Act. How did it stand now? The house had the advantages of the resolutions resulting on the enquiries of those who were sworn to fulfil the solemn duty to which they were appointed. What was now to be required? The persons, to be examined were either to-repeat their former testimony, or they were not. If they correctly stated their evidence as before given, there would be no advantage derived from the re-examination proposed; if they varied in their depositions, was the, house to give the preference to their former declarations on oath, or to their subsequent affirmations? Certainly it must be admitted, that the testimony which had received the authority and sanction of an appeal of that nature, ought to be preferred. On these grounds he should move, that. The order be discharged.
§ Mr. Fox
said, he felt it impossible to concur in the. grounds stated for the proposition of the right hon. gent, and equally impossible to accede to the res integra of the proceedings he recommended. A great deal of additional difficulty appeared to him to be thrown in the way of such concurrence by this consideration, that the house had already made an order that the parties accused should be heard at the bar. This order had been announced to those parties, in consequence of which they were in attendance, and prepared, no doubt, to produce farther evidence, perhaps of some persons who were out of the way, or were not known when the case was under the investigation of the committee. By such farther examination of evidence, the parties might expect to be able to lay before the house a more favourable view of their cause. After such an order, and such probable preparation in consequence, it appeared to him that it would be highly unjust to make a new order at the present moment. It would be, in fact, to say to the parties, "although we have made an order that you should be heard at the bar to-day; although you may have taken great trouble to collect evidence to throw new light upon your case, and to repel the charges against, you, yet we have changed our mind, and you cannot be heard; we mean to re-consider the subject." Such would be the language of the house to the accused, should the proposition of the rt. hon. gent. be adopted. The practice referred to by the right hon. gent, which prevailed before the enactment of the Grenville bill, was not, he contended, analogous to the case under consideration, or to any case under that bill; for, in the former instance, it was to be recollected, that the committees upon election petitions were, though nominally select committees, accessible to all the members of the house; and therefore, every member might attend to examine and cross-examine the evidence. Of course, the report of such committees must be different, in the estimation of the house, from those of the committees under the Grenville act, which consisted but of a few members. In the one case, all the members of the house were competent to attend and investigate any part of the subject, while, in the other, only a few select persons were permitted to do so. This difference he the more dwelt on, in order to shew, that from the change which 278 had taken place in the jurisdiction upon election cases, the course formerly pursued was not fairly applicable at present. The right hon. gent, had endeavoured to support his proposition by resorting to the popular argument, which, in his opinion, could make no impression upon any candid, rational man; namely, that because the witnesses would not be on Oath at the bar, although they were so before the committee, that therefore we should have no examination of evidence whatever before the house. The question for consideration, was not whether the committee was more competent to investigate a charge against individuals, and to ascertain their guilt or innocence. Perhaps the court of King's Bench was still more competent to such an investigation. But that was not the point before the house. The question was this, whether, when executing the office of a criminal judicature, the house would act according to its own constitution, or to the principles of equity, if it proceeded to pronounce judgment without any examination of evidence as to the nature of the case upon which it was called on to judge? In declaring a negative to this question, he had little doubt of being supported by a full consideration of the practice of the house, and by the opinion of dispassionate men. The Grenville act, whatever other persons might think of it, or however it might be considered in other respects, had created an anomaly in the constitution of that house. By the course followed antecedent to that act, the whole matter of the election, as well with respect to the seat as to the conduct of the returning officers, and all collateral points, were referred to the committee; and the ultimate decision upon all these points still remained with the house, the report of the committee serving to guide its judgment. But, under the new arrangement, did the house commit to the committee the whole matter of the case? No; that committee was the dernier resort as to the seat only. Upon that their decision was, according to a legislative act, final and conclusive. But the seat was the only thing upon which the report of such committee was unalterable. As to any special report which it was authorized to make relative to the conduct of the returning officers,' the house retained the full power which, according to precedent, was uniformly; exercised, to proceed upon such special 279 report in the way which it was the object of the right hon. gent.'s motion to reverse. The Grenville act made as clear o distinction between the power vested in the committee, as to the decision of the seat, and that relative to a special report, as words could express. In the one case their power was absolute; in the other, it belonged to them only to report that there were other circumstances connected with the election, which required the interference of the house. Considering the report before the house in that view, he could not admit that it should have any other influence than that of calling attention to the proceedings of the accused, but by no means that of forming the ground for their conviction or punishment. All the precedents, since the Grenville act, upon similar cases, justified this opinion. But the right hon. gent, who proposed another course, thought proper entirely to overlook those precedents, and to look to the conduct formerly pursued under circumstances which he contended were not at all analogous. If the report of a committee under the new jurisdiction were to be binding on the house to adopt, in what a dilemma would the house be placed, suppose that an election committee on the Shoreham case, or that of Nottingham, had, in addition to the other particulars in their report, resolved that the right of election ought to be thrown open, that the electors should be increased. Would not the admission of such an authority, in the report of a committee, as he had alluded to, be, in effect, to delegate to such committee the legislative power of the house? Yet, such an inference would naturally follow from the arguments used by the right hon. gent. If, then, that argument, or the proposition that followed, could not be sustained by reason, the constitution of the house, or precedent, he thought that justice would urge the adoption of such line of proceeding as might be most favourable to the interest of the accused, and that, obviously, was to allow them to bring forward any farther evidence that it might be in their power to produce for their exculpation. Any different course would, he was quite persuaded, be felt as inconsistent with the ends of substantial justice, as it would be with the spirit of our law. That law uniformly said, that a man accused of any offence should be fully heard before sentence should be pro- 280 nounced; and that law very properly allowed, that if any circumstances could be discovered, to alter the nature of the charge, and to establish the innocence of the accused up to the moment before the time fixed for the infliction of punishment, the sentence should be reversed. Here, however, it was proposed to deviate entirely from that laudable and salutary mode of proceeding. Since the investigation of this case before the committee, circumstances had occurred which, without meaning any reflection whatever on the judgment, principles, or character of the gent, who composed that commit: tee, would, he was persuaded, prevent them at the present day from pronouncing as a jury that verdict which appeared in the report on the table. Was it not, then, but fair to allow these circumstances to be laid before the house by evidence at the bar? It would be unjust towards the house, and it would be cruel towards the parties accused, to exclude such evidence. If a criminal were convicted of the most heinous offence, that power in whom the right of pardon is constitutionally vested, would not hesitate even the moment before the appointed execution of sentence, to remit that sentence, and pardon the accused, should any facts arise to prove his innocence. This example should be attended to in the case under consideration, and should urge the house to afford to the accused every opportunity of exculpation, before it attempted to pronounce judgment. This was not only the opinion which he entertained, but that which was sanctioned by all former proceedings in similar cases. In the Shoreham case, which the noble lord chose as the precedent to follow, with one exception only, in this instance, he recollected some debate, and a division also, the result of which was, a determination opposed only by a very small minority, that those accused should be heard fully by evidence, and by counsel at the bar. Such was the mode that justice, law, and precedent suggested to the house on the present occasion; and he felt the character of the house, and of public equity, to be so much concerned, that he could not help resisting the introduction of a different practice. The evidence which appeared in the report might have been taken in a loose way, or it might be imperfect, and a farther examination at the bar might elucidate many, important facts. This was not at all im- 281 possible, notwithstanding the close scrutiny said to have, taken place before the committee, and the known accuracy of the council employed, whose ability no man mole highly respected than he did, and upon even the possibility of such elucidation, he would have the parties allowed a farther hearing. Those parties he bad heard it intimated, were willing to acquiesce in the refusal of any farther examination of evidence; of this he knew nothing positively, but even if it were so, it would effect no change in the opinion he entertained. However, if upon appearing at the bar they admitted the evidence as it stood in the, report, their admission must of course be received; but in no other way-could he notice, that admission, because it was not more his object to render perfect justice to the accused, in this instance, than to guard against the establishment of a precedent that was likely to lead to great injustice towards others.—The hon. member concluded, with observing, that under all the circumstances of the case, particularly after having appointed a hearing at the bar on this day, and ordered the attendance of the parties accordingly, it would be one of the harshest proceedings imaginable to reverse that order now, and strike into a new and opposite course.
The Attorney General
said, he saw no force in the arguments used by the hon. gen. in opposition to the motion of his right hon. friend, and still less in the observation which the hon. gent, applied to the reversal of the order and course of proceeding at the present moment. It could not be complained that the parties were taken unaware, as when the business had been postponed on a former day, his right hon. friend distinctly stated, that the ground of that postponement was to afford gentlemen an opportunity of considering the' expediency of a deviation from the precedent of the Shoreham case, of the nature of that which was now proposed. That the course proposed by his right hon. friend was strictly according to the uniform practice which prevailed previous to the Grenville act, was not attempted to be denied; and the question for the house to consider in the present instance, and also for future cases, was this, whether it would be more agreeable to justice and expediency to follow the former course, or that which bad obtained since the enactment of the Grenville law? For the former he certainly was an advocate, and his 282 surprize was, that any deviation from it had ever taken place; the more particularly as the Grenville bill prescribed nothing on the subject. As to the objection urged by his right hon. friend against the examination of evidence at the bar, who not being on oath might differ from the allegations made before the committee, the hon. gent, in order, no doubt, to depreciate that objection, had thought pro? per to style it "a popular argument," and certainly the maxim of uox populi, vox dei, was never more applicable than to an argument of such irresistible force. But although this argument was so forcible, he would not go so far as to say that the farther hearing of evidence at the bar, should, be resisted if such resistance should appear to be injurious to the cause of justice, or unfair towards the individuals concerned in the case before the house. There was no pretence, however, for saying that such could be the consequence; on the contrary, it was as fair to argue that the examination of evidence, not on oath at the bar, might be injurious to the accused as otherwise. Witnesses might go beyond their former statements, and might aggravate the case against the accused. Therefore, in any view, the further hearing demanded by the hon. gent. appeared to him quite inadmissible.—He observed, upon the hon. gent.'s allusion to analogy, and reasoning as hostile to the course proposed by his right hon. friend, but he had omitted to state any precedent to sustain his statement on the score of analogy. Those precedents indeed which he had it in his power to state, were very few compared to the practice that prevailed so long before the existence of the Grenville bill. The hon. gent. had argued that it would be iniquitous, and contrary to any. precedent of law, to pronounce sentence without hearing evidence upon the case to which such sentence applied: but the hon. gent, must forget that such was the frequent practice in the Court of King's Bench, where sentence was pronounced, upon cases, where1 not one of the four, judges had ever heard the evidence, nor had any other knowledge of it than that which they derived from the notes of the judge who presided at the trial; which, notes, by the way, were not so much, at least not more, intitled to confidence than the minutes of the evidence in the report before the house, which were taken by a sworn short-hand writer. It might be 283 said that the judges pronouncing upon the verdict of a jury constituted a material difference, but it was to be observed, that a committee formed in cases of this sort, with relation to the house, a constitutional tribunal tantamount to a jury. On the ground of analogy stated by the hon. gent. he was satisfied from what he had mentioned, that it was unattainable, and his arguments as to precedent were not less. If a precedent were wrong the hon. gent, himself would, he apprehended, be one of the last to maintain that it ought to be followed. That the case of Shoreham was not felt to be unexceptionable, appeared in the debates and proceedings on the Cricklade case, and in the instance of Great Grimsby alone, had it been followed. Why, then, should such a practice, if contrary to the old course, which he reasserted was not at all changed by the Grenville act, and still more if contrary to the ends of justice, be suffered to go on? It was pretended, in the case before the house, that another hearing should be granted to the parties, because they might have new light to introduce on the subject. If such a suggestion were attended to, it would form an argument for new trials, ad infinitum. The accused bad already been afforded ample opportunities to bring forward any-evidence in exculpation they desired. They had the ablest counsel that could be obtained, to cross-examine the evidence against them and to conduct their defence, therefore he saw no ground whatever, to induce the house to enter into the case again. In the case of Great Grimsby, where the house ordered evidence to the bar, it appeared that the returning officer was not present before the committee who reported against him. Here then there was ground for the order, which constituted a material difference from the matter now before the house. He submitted that a more anomalous course was recommended to the house by the hon. gent, namely, that it should call evidence to its bar for an ex parte examination, for it could be nothing else, as the house must be unable to cross-examine the witnesses, having no particular knowledge of the transactions to which their evidence, was meant to apply, and not being furnished with those suggestions for cross-examination, which the counsel on both sides could have had before the committee. The learned gent, considering that the house had the same relation to the committees 284 under the new jurisdiction that it had to the committees under the old, and that the course proposed by his right hon. friend, was preferable for many reasons, at the same time that it did not bind the house by any means servilely to adopt the resolutions of the committee, unless they were found to be fully justified by the evidence, stated that he should give his support to the motion before the house.
§ Mr. Fox
said, he would trespass on the house but for a few words, not that he thought it necessary to vindicate himself from such gross ignorance as he should be ashamed of. The learned gent. had charged him with saying, that it was contrary to all analogy to pronounce sentence without hearing evidence. He said no such thing. He said it was contrary to analogy to pronounce the guilt of a party without hearing evidence. He believed, the hon. gent, would allow there was a material difference in the expresssion, and he was certain the learned judges would perfectly agree with him in the distinction he had taken.
§ Mr. Sheridan
said, he agreed entirely with his hon. friend, whose arguments had been so strong that he did not think it at all necessary to reply to the observations that had been made by the learned gent, on the other side. There was a principle, however, laid down by the learned gent, that if the returning officer should not happen to be present at the committee who might report against his conduct, there would then be ground for hearing such evidence at the bar as such officer might feel it necessary to bring forward for his exculpation. If so, then the course proposed by the learned gent.'s right hon. friend was inadmissible. For it always would be necessary to establish a preliminary inquiry, according to the learned gent.'s principle, to ascertain whether the returning officer was present at the committee before the house proceeded to pronounce judgment upon him; and in point of strict justice, this inquiry should also go to this point, whether the returning officer was present throughout, or whether his defence was not perfected before the committee had made their report. In the case before the house, he could say that the defence of the accused was not perfected, because the counsel for the accused did not conceive it necessary to sum up, and remark upon the evidence. Such was that learned gent.'s reliance on the 285 strength of his clients. To supply that omission was one reason why it' was the' wish of the accused to be heard at the bar, and he could state that those gentlemen would feel themselves hardly treated, if they were refused that hearing. It did appear that the case of the accused was but partially and collaterally taken up, and imperfectly heard before the committee, and they were therefore strongly entitled, from common equity, to be^ further heard before the house decided on their case. If the house proceeded to a discussion in the way proposed, it would be as well to pronounce judgment upon the accused, from the resolutions of the committee at once, without any review of the evidence, as such review would be superfluous.
§ Lord Marsham
observed, that the counsel for the accused not having summed up and remarked on the evidence before the committee, was no fault of the committee. The noble lord thought the parties ought to be allowed to supply that omission by hearing their counsel at the bar.—In some farther conversation between Mr. Fox, Mr. Pitt, and the Attorney General, it was understood to be the intention of Mr. Pitt to oppose the hearing of counsel upon the question as to the guilt or innocence of the accused; but that right hon. gent, observed, that upon the question as to the measure of punishment, it was competent to any member to propose the calling in of counsel.
§ Mr. J. Hawkins Browne
supported the motion. In animadverting on what had fallen from an hon. gent, opposite (Mr. Sheridan) he said, that if the sheriffs had not been fully heard in the committee it was owing to their counsel, for he understood that it had been a matter agreed between the counsel of both sides, that if the one forbore to criminate the sheriffs, the other would be less urgent in their defence. To this cause he therefore attributed the counsels not summing up the evidence in favour of the sheriffs, which the hon. gent. had alluded to.
§ Mr. J. Fitzgerald
stated, that the parliament of Ireland had adopted also the Grenville act. But they had also gone farther and adopted it with an amendment. There, appeared here to be no particular law in regard to the returning officer, but the parliament of Ireland had provided by express act for cases of the kind now before the house* When the conduct of the 286 returning officer was made the subject of investigation, pare was taken he should receive due notice of it, and be accordingly prepared for his defence. This notice the committee was bound to give him before they could institute any proceedings against him. But according to the Grenville act the committee were under no necessity of deciding on the conduct of the returning officer; this duty therefore became more particularly the province of the house. A good deal had been said of the analogy of the present case, with the proceedings usual in Courts of law. This analogy had been denied by a learned gent, opposite, who had referred them to the practice of the court of King's Bench. He had only to remind him, however, that it was very usual in such courts, after verdict had been given to receive affidavits from the parties. There was such a thing as moving for a new trial and an arrest of judgment in those courts, which might be considered as proceedings somewhat analagous to the present question. The hon. and learned gent, concluded with professing himself adverse to the motion.
The Chanc. of the Excheq.
begged leave to put the hon. gent, right in regard to the duty of the committee. The gentleman had said chat the committee was not bound to judge of the returning officer, that question not being before it in virtue of the Grenville act; but had the hon. gent. had recourse to the votes of the house, he would have found that the petition of Mr. Mainwaring complained of the conduct of the sheriffs expressly, and that this petition, with the complaint, was referred to the committee. The conduct of the sheriffs, therefore, became the direct subject of the committee's investigation.— The question being then called for, the gallery was cleared, no division, however, took place. Mr. Pitt's motion was acceded to, and the order discharged accordingly. The first resolution of the committee was then agreed to, and the debate postponed till this day vwek,—Adjourned.