Commons Sitting of 25 January 1805

MINUTES.—
Mr. Mitford,from the commissioners of the customs in Scotland, presented at the bar, an account of custom duties charged and out-standing on bond or otherwise, on 5th April, 1803 and 4; and of all ships from Scotland employed in the whale fishery to Davis's Straits and the Greenland seas. Ordered to lie on the table, and to be printed.—He afterwards presented an account of the duties of excise in Scotland, out-standing on bond or otherwise, on 5th April, 1803 and 4. Ordered to be printed.—Also, an abstract of the account from the commissioners of the Northern light-houses. Ordered to lie on the table.—Sir E. Nepean gave notice, that he would, on Monday, move for the continuance of the suspension of the habeas corpus and of martial law in Ireland.—Mr. Alexander brought up the insolvent debtors' bill, which was read a 1st and 2d time, and committed for Monday.—On the motion of Mr. S. Bourne, a new writ was ordered for the county of Hertford, in room of the hon. P. Lamb, deceased.—A petition of the there-undersigned was presented to the house, and read; setting forth, "that the petitioners, at Michaelmas, 1801, entered upon the office of sheriffs of London, and sheriffs of the county of Middlesex, and continued in the discharge of the same till Michaelmas, 1S02; and that, during their continuance in the same, they did, by virtue of their said offices, and at a great expence, trouble, and inconvenience to themselves, preside, and were returning officers at three different strongly contested and protracted polls, namely, the election of a bridge-master, the election of four citizens to represent the said city of London, and the election of two knights of the shire to represent the said county of Middlesex in this present parliament; and at the close pf the said sheriffalty, the livery of the said city of London came to the following resolution, in a meeting or assembly of the mayor and liverymen of the several com-
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panies of the city of London, in common council assembled, at the Guildhall of the said city, on Wednesday, the 29th of Sept. 1802.—Resolved unanimously. "that the thanks of this common hall be given to Sir W. Rawlins, knt. and R. A. Cox, esq. late sheriffs of this city, and late sheriff of the county of Middlesex, for their firm, manly, and conscientious discharge of the various important duties of that high office, in a year of unprecedented public duty, for their-liberality and humane attention to the several prisoners confided to their care; and for the zeal they have manifested in support of the rights and privileges of their fellow citizens, and of the British constitution, by preserving inviolate that great bulwark of public liberty, the freedom of election—Woodthorpe;" and the petitioners state, that while in the execution of such office of sheriffs of the city of London, the petitioners having, upon the election aforesaid of four citizens to represent the said city in parliament, returned sir W. Curtis, bait, sir J. W. Anderson, bart. H. C. Combe, esq. and sir C. Price, bart. to represent the same, a petition was, by sir W. Lewes, knt. an unsuccessful candidate at such election, presented to the house against the return of the four citizens aforesaid, and against the petitioners, for making such return as sheriffs of the city of London aforesaid; which petition being by the house referred to a select committee appointed to try and determine the same, was by such committee voted frivolous and vexatious; and the petitioners were thereby entitled to be reimbursed the heavy costs and damages they had been put to in defending themselves against such unjust charge so brought against them.; but, from the distressed circumstances of the said sir W. Lewes, knt. the petitioners have not to this hour, nor are at any time hereafter likely to be, reimbursed the same, or any the smallest part thereof; and that two other petitions were presented to the house; the one by W. Mainwaring, esq. the unsuccessful candidate at the said election for the county of Middlesex; and the other by certain freeholders of the said county in his interest, complaining of the return made by the petitioners of sir F. Burdett, bart. And charging the petitioners, as sheriffs of Middlesex, and returning officers at such last-mentioned election for that county, with great partiality in favour of the said sir F. Burdett, and with other undue conduct in the course and progress of the said

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election and poll; which said two petitions were by the house referred to a select committee of the house, which was duly ballotted for and appointed on Friday, the 3d of February, 1804, and continued from that day to sit on the trial of the same petitions until Monday the 9th of July last; and that, on the said 9th of July, the chairman of the said committee acquainted the house (among other things) that the committee had determined, that the said election and return for the said county of Middlesex were void, so far as respected the said sir F. Burdett; and that the committee had also come to the four following resolutions relative to the petitioners, viz. 1st. That on the 13th, 14th, and 15th days of the poll, on the first of which days there was a considerable majority of votes in favour of W. Mainwaring, esq. the sheriff R. A. Cox, esq. and sir W. Rawlins, knt. wilfully, knowingly, and corruptly, did admit to poll for Sir F. Burdett, bart. upwards of 300 persons claiming to vote under a fictitious right, as proprietors of a mill purported to be situated in the parish of Isleworth, and called the "Good Intent Mill," by which means a colourable majority was obtained in favour of sir F. Burdett, 2d. That on the 15th day, towards the close of the poll, after such majority was established, they rejected persons tendering their votes under the same circumstances. 3d. That the sheriff at the poll acted in a judicial capacity, by admitting counsel to argue the validity of votes, and by deciding, in some instances, on the validity of such votes; that in other instances they refused to decide on the validity of votes which were objected to, and stated that they would admit any person to poll who would take the oaths, declaring themselves to be only ministerial officers, thereby acting in a manner contradictory to their practice in other cases, and in flagrant violation of their duty. 4th. That the obvious tendency of their conduct was to admit persons who had no right to poll, and to afford the greatest encouragement to perjury; and that the petitioners, being ignorant of the law, did, during the whole course of the said election, constantly and invariably act under the advice of their under-sheriffs and deputy under-sheriff, all of whom are attornies, highly respectable in their profession, and long conversant in the law, and one of them for above 20 years practised in the judicial decision of questions of the greatest value and importance; and
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that on the 13th of the said last-mentioned election, when the proprietors of the mill, as mentioned in the above report of the said select committee of the house, first tendered themselves to vote, their right to vote at such election, for such freehold was argued very much at length by different counsel on each side; and alter such argument the petitioners did (by the advice of the aforesaid deputy under-sheriff, and one of the under-sheriffs, who were then and there present during the whole course of such argument, the other under-sheriff not being on the said 13th day in attendance) uniformly admit such of them to vote as stated themselves upon oath to have been 12 months in possession of shares of the value of 40s. a year, and did as uniformly reject such of them as appeared not to have been 12 months in possession, or not to have shares of that annual value, the petitioners acting therein in conformity to the advice aforesaid, and that the petitioners admitted the said last-mentioned persons to vote, from, a full and perfect conviction at the time of the legality of their claim, established in the minds of the petitioners by the repeated arguments of counsel, and the solemn oath of the parties; and they do conscientiously and sacredly declare, that, in the admission of those, as well as all other voters during the whole continuance of the aforesaid election, they acted with the most pure and upright intention, without partiality to one candidate, or prejudice against the other; and that the petitioners humbly state, that, though in particular instances they did heap questions argued by counsel, yet they did not consider themselves invested with a judicial authority, for the petitioners were instructed to conceive, and did and do. still conceive, that any freeholder, who tenders himself to take the respective oaths required by divers acts of parliament, to be taken at a county election, is entitled to have such oaths administered to him, and to vote thereat, and that such persons would be rejected at the peril of an action for damages, to be brought against the returning officers so rejecting them; nevertheless the petitioners confess that, in divers instances, they did take such peril upon themselves when the justice and equity of the case seemed, to warrant them in so proceeding, though not compellable by law so to do; and, in order to satisfy and protect themselves in the execution of this part of their office, they were frequently willing and de-

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sirous to hear the arguments of counsel as a guide and assistance to the conduct of the petitioners, but not as a right to be claimed by either candidate; and that the petitioners further state, that they, in divers instances, as well relating to other tenements as to the mill tenement aforesaid, when it appeared to them, by the confession of the parties claiming a right to vote, that they had not been in possession of their freehold for 12 months, or that it was not of the annual value of 40s. did reject such persons; and the petitioners submit to this house that, from the aforesaid causes, they may seem sometimes to have acted ministerially, and at other times judicially, but at no time did they act from any interested or unworthy motives, but, on the contrary, from an anxious and earnest desire to do justice to all parties, though at the peril of an action against themselves; and the petitioners pursued this line of conduct equally in respect to voters tendering their votes for the aforesaid W. Mainwaring, esq. and sir F. Burdett, particularly in respect to very many persons claiming a right to vote by virtue of certain offices, some of which were held under the dean and chapter of Westminster, such as bell-ringers and butlers, organ-blowers and choiristers, cooks and gardeners, and who were admitted by the petitioners on the poll for the said W. Mainwaring, esq. and afterwards struck off such poll by the committee aforesaid; and that the petitioners humbly hope, since the greatest legal characters have differed concerning the nature of the duties, and power of a returning officer at an election of a knight to represent a county in parliament, that they shall not incur the censure of the house if, in the execution of their office, they sometimes appear to have been misled by contradictory arguments, which in the case of Ashby and White divided the opinions of the court of king's bench, where Lord Holt at that time presided as chief justice; and that those persons who, on the 15th day, claimed a right to vote for the mill tenement were rejected, because it appeared from their own confession, when the oath was tendered to them, that they had not been possessed of their freehold for the space of 12 months before the election, whereas those who were admitted on the 13th and 14th days, took the freeholder's oath, of the nature and effect of which they were solemnly warned and instructed at the time; and that the votes of the description above-
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mentioned were not rejected on the 15th day, because sir. F. Burdett had then secured a majority of numbers on the poll, for the petitioners humbly state, that many of that description were rejected both in the early and latter part of that day, as well before as after such majority appears to have been obtained; and that the petitioners are informed that, at the election in July last of a knight of the shire in the room of sir F. Burdett, several of the proprietors of the said mill, called the Good Intent, tendered their votes, and that by the advice of Newman Knowlys, esq. barrister at law, and common serjeant of the city of London, who was assessor to the then sheriff, the then sheriff did not consider such proprietors to be fictitious voters, but did, after various arguments on each side, admit such of the said mill proprietors to poll who stated themselves upon oath to have been in possession 12 months of shares of the value of 40s. a year, and rejected others who had not been for that length of time in possession of such shares, or whose shares were not of that annual value, pursuing therein the same rule and line of conduct that the petitioners had adopted in the former election; and that the petitioners, with all humility, submit themselves to the sentence of the house, assured as they are that in its wisdom and its justice it will consider the arduous duty imposed on the petitioners as returning officers at the aforesaid election; and that no evidence whatever was, or has been, or could have been adduced, to shew any interested motive, personal or political, by which the petitioners were influenced in their conduct, and the petitioners solemnly declare, and are ready, if they might be permitted, to attest the same on oath, that, throughout the whole of such conduct, they never did in a single instance willfully transgress the line of their duty, but uniformly acted to the best of their knowledge, and that without favour or affection, prejudice or malice, towards any, person or party; and that the petitioners most humbly state to the house, that whatever may have appeared blameable in the execution of their office has arisen from the difficulty and novelty of their situation, and from their general ignorance of the law, which, however, they most anxiously endeavoured to correct (but are sorry to have found how unsuccessfully) by acting under the immediate judgment of professional persons, of great character and long ex-

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perience; and that the petitioners are in formed, that the said report of the said select committee is ordered by the house to be taken into consideration on Tuesday, the 29th of Jan. inst. and therefore praying to be heard, by themselves, or by their counsel, at the bar of the house, and that the house will grant them such relief in the premises, as to its justice shall seem meet."—Ordered, that the said petition do lie upon the table.
A petition of the several persons, whose names are thereunto subscribed, was delivered in at the table, and read; setting forth, "that the petitioners are freeholders of the county of Middlesex, and claim to have had a right to vote at the last election for that county; that at such election sir F. Burdett, bart. and G. B. Mainwaring, esq. were candidates to represent the said county in parliament; that upon a shew of hands the sheriff J. Shaw, esq. and sir W. Leighton, knt. declared the majority, on the view, to be in favour of sir P. Burdett, but a poll being duly demanded for the said election, the same was granted by the said sheriff, and commenced on the 23d of July, 1804; that the said poll continued open 011 the first day till about 5 o'clock in the evening; that on every other day during the continuance of the same, the poll was kept open 7 hours; that on divers days during such continuance, several persons attended at the booth, appointed according to law, to give their votes, and did accordingly declare their votes to be in favour of sir F. Burdett, whose names, places of abode, and freeholds, and in whose occupations their freeholds were, were duly entered on the poll, but the sheriff refused to permit the scratches or marks to be set opposite to their names, denoting the candidate for whom they voted, until their titles to vote had been examined into, although they offered to substantiate their titles by their oaths, nor would the sheriff allow such examination to take place at the booth, but insisted on their attending in a box, placed in a different part of the hustings, to undergo such examination; and although such persons, in compliance with such requisition, did accordingly attend at the said box, yet the consideration of many votes so-circumstanced, was adjourned, for want of time, till the days respectively succeeding, and thereby great delay and confusion arose; that in order to prevent the same in future, application was at sundry times, by the agents, friends, and
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counsel of sir F. Burdett, made to the sheriff of the said county, to keep the poll; open longer than 7 hours, as by law he was bound to do when upon good and sufficient cause requested so to do; that the said sheriff, at the several times aforesaid, refused to accede to such application, that on the 14th and 15th days of the poll, the said sheriff, together with Newman Knowlys, esq. who then and there sat as assessor, or assistant to the said sheriff, severally, and at sundry times declared, that if at 3 o'clock on the said 15th day the votes of any persons that had been before that time objected to should not have been examined, the said sheriff would proceed upon such examination, and determine on the same after 3 o'clock on the same, or the following day; and the petitioners further state, that at 3 o'clock on the 15th day of the poll, several voters were in attendance at the sheriff's box, in obedience to orders given by the sheriff, waiting to be examined in respect to the titles to their votes, which had been previously entered on the poll, and their votes declared, some for the said G. B. Mainwaring, but many more for the said sir F. Burdett; and the petitioners humbly submit, that if the poll had been cast up at such hour, without any further examination of such voters, the names of such voters ought to have been reckoned, and thereby a majority of votes received on the poll declared, as in foot it was, in favour of sir F. Burdett; but the petitioners further state, that the poll was not cast up, nor the numbers declared, till the following day, and, in the mean time, the sheriff, in compliance with his aforesaid promise, proceeded to satisfy himself respecting the titles of the voters so previously entered on the poll, and, after such examination, directed marks to be set opposite to their names, some in favour of the said sip F. Burdett, and some for the said G. B. Mainwaring, according to the votes previously given for one or other of the said candidates; that a majority of the votes received on the poll did thereby also appear in favour of sir F. Burdett, and the said sir F. Burdett ought to have been returned to serve in this present parliament for the county aforesaid; and that the said sheriff, well knowing the premises, did, on the 16th day of the said election, illegally, wrongfully, wilfully, and falsely declare the majority of numbers to be in favour of the said G. B. Mainwaring, and illegally, wilt fully, wrongfully, and falsely, returned the

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said G. B. Mainwaring to serve for the said county in the present parliament, although the said sir F. Burdett had a majority in number of votes received on the poll in his favour, and ought to have been returned in the stead and place of the said G. B. Mainwaring to serve in the present parliament for the county of Middlesex aforesaid; and therefore praying the house to order the said false return of the said sheriff to be amended, by directing the name of the said G. B. Mainwaring to be erased there from, and the name of the said sir F. Burdett to be inserted therein in the stead and place of the name of the said G. B. Mainwaring, and that the house will appoint an early day for taking their petition into consideration, and grant to the petitioners such further relief in the premises as to the house shall seem meet."—Ordered, that the said petition be taken into consideration upon Tuesday, the 19th of Feb. next, and that Mr. Speaker do issue his warrant or warrants for such persons, papers, and records, as shall be thought necessary by the several parties on the hearing of the matter of the said petition.

DEFENCE OF THE COUNTRY.—
Mr. Windhamrose for the purpose of making a motion, to which, he trusted, there could be no objection. It referred to a point upon which, when he brought forward his motions a few days since, it was his wish to have obtained full and distinct information. He was still of opinion, that it would be necessary to procure information separately on this head, in order to enable the house, when the situation of the military circumstances of the country should come to be discussed, to form a clear and impartial opinion upon it. He had been led to give up this motion by a spirit of accommodation to the right hon. gent. on the other side of the house, and to generalise the motions he on that occasion submitted; but as it often happened, that whilst acting under such an impulse, a man might concede more than upon reflection he would deem consistent with prudence or discretion, he proposed in the present instance, to correct his former omission by a specific motion. His object in making it was, to ascertain the number of men that had been raised in col. French's levy. He was aware, that as his former motions took in the new levies in England, Ireland, and Scotland, it might be said that his present motion was included in one of them. But* as the only inconve-
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nience that could be apprehended from it would be, that col. French's levy would be returned in the double, that inconvenience would be obviated by his moving for a separate return of that levy. He therefore moved, "that there be laid before the house a separate return of the number of effective men raised for the levy now recruiting by col. French, for general service, in the united kingdom; distinguishing the number of recruits finally approved, up to the last return; also the number that bad received bounties as boys, and the number of officers appointed iii that levy." Ordered.
The Chancellor of the Exchequerthen rose, and observed, that it would be highly expedient, before the question should come to be discussed, to have a complete view of the aggregate military force of the country, in one connected account. He wished gentlemen to be put in possession of the most satisfactory and comprehensive information on the subject, and with a view to that object, should move, "that there be laid before the house, an account of the total amount of his maj.'s regular, militia, and provincial forces, on the 1st of Jan. 1804, and the 1st of Jan. 1805, respectively, distinguishing the limited from the unlimited force, and cavalry from infantry; and also those serving in G. Brit. Ireland, and the islands of Guernsey and Jersey, and those serving in guards and garrisons abroad. Ordered.

WAR WITH SPAIN.—
Mr. Greythen rose, for the purpose of giving notice of several motions, which it was his intention to submit to the house on Monday. After all the attention which it had been in his power to bestow on the papers relative to the new war in which we were now unfortunately engaged, in the short period since they had been distributed, it appeared to him, that there were many important omissions, which it was material to have supplied before the main question should be discussed, and to enable the house to form a just and impartial opinion on the merits of the case. It could not be denied, that on so solemn and momentous a question, every information ought to be given to parliament, as far as it might be consistent with the interests of the public service. It was with a view, therefore, to supply the omissions which appeared to him in the papers laid before the house, that he proposed to bring forward the motions of which he then gave notice. The

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precise objects to which they would relate were, some further information respecting the correspondence between lords Hawkesbury and Harrowby, and air Frere, and the discussions, if any, that might have taken place between the Spanish minister here and his maj.'s govt. There were other points, also, on which information was necessary, but as he did not conceive any objection that could be made to granting it, he was not equally inclined to think it necessary to give any previous notice of his motions respecting such topics. It would be felt generally how very desirable it was to have all the information that could possibly be procured on the subject as early as may be, before it should come tinder discussion. As, however, there might be some objection to the immediate production of the information he wished to obtain, which he could not then foresee, it might be more regular to read the motions he proposed to make in that instance, previous to his moving the question on any of them, that he might discover how the right hon. gent, opposite would feel, with respect to them, and if there should be any difficulty in acceding to them he had no objection to let them stand over, noticed with his other motions for Monday. The hon. gent, then read the string of motions he had prepared, the object of which was, to obtain copies or extracts of all dispatches or letters from sir E. Pellew and adm. Cochrane, relative to the state of the ports of Ferrol and Corunna, and the armaments said to have been carried on in them; also relative to the sale of prizes in the ports of Spain, in Europe and America; and to the quantity of naval and military stores supplied to our squadrons from the ports of Spain since the commencement of the present war.
The Chancellor of the Exchequerexpressed a wish, that the hon. member would postpone his motions till Monday, on the ground that it might be necessary to consider how far it would be proper to comply with them, consistently with the public service.—The motions were then noticed for Monday.
The Chancellor of the Exchequernext intimated an opinion, that it would be desirable to have the object of the hon. gent's other motions more specifically stated, in order to afford an opportunity of considering them, previous to their being submitted to the house.
Mr. Grey,in explanation of his object,
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stated, that his wish was to have the omissions appearing in the papers before the house, supplied as fully as possible. In the first packet of instructions transmitted by Lord Hawkesbury to Mr. Frere, forming the first document in the published papers, there was a reference to previous communications, which, as they did not appear, it was his wish to obtain. Another object was to obtain copies of the discussions that must necessarily have taken place during the chasms of many months that appeared in the papers, for the purpose of completing the links of discussion, from the first question of difference to the final rupture; and lastly, he wished to have the house put in possession of the discussions that might have taken place between the Spanish ministers and our govt. here; and also the communications that might have been made to our minister by the Spanish govt. after his demand for his passports.