Commons Sitting of 8 March 1805

MINUTES.
The Royal Marine Mutiny bill, the Isle of Man bill, the Sugar Drawback bill, and the Legacy Duty bill were read a second time —A message from the lords informed the house, that their lordships had agreed to the Loan, bill, and the Postage Duty bill, without, any amendment. Lord H. Petty having reason to understand that no objection would be made to the motions of which he had given nonce for this day, thought it unnecessary to preface them with any observations. He should therefore content himself with simply moving, "That there be laid before the House a Copy of the Depositions made by the Prisoners of State in the Prison of Kilmamham, Dublin, on oath, before three Judges of the Court of King's Bench, who sat there for that purpose, on the 16th and 17th of July last. Also a Copy of the Memorials from the said Prisoners of State to the Lord Lieutenant of Ireland, prior and subsequent to the said dates."

MIDDLESEX ELECTION.
The Chancellor of the Exchequer moved the order of the day for resuming the adjourned debate, and the report of the Middlesex committee relative to the conduct of the Sheriffs of Middlesex.
Mr. Sheridanrose for the purpose of opposing the resumption of the debate now. His intention was, if the house should agree with him in negativing that motion, to follow up the question by a motion for hearing counsel on behalf of the sheriff's previous to resuming the debate on some future day, it was not his wish to enter
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into the merits of, the question, nor to discuss, whether evidence, should be. examined. At the bar, or the resolutions of Committee be adopted by the house? These considerations were altogether out of his view in the present instance. However these questions might be finally disposed of, he contended that the house could not consistently with justice agree to the report without bearing what the parties had to say. It had been argued on a former day, that it would be idle in the house to try this question, because if had already been fully tried by the committee themselves, on oath, and on evidence taken, upon oath, with the advantage of the comments of counsel, and a view of the countenances of the witnesses. The question therefore was, whether the house should or should not agree to the? report of the committee, without the advantage at least of hearing counsel. The committee had given to the house with its report, the evidence that had been taken before it, in order to enable the house to ascertain, whether the resolutions were borne out by the evidence; and be maintained, that no hon. gent, would consistently agree to them, until be was convinced of their being so borne out He did not argue that all the evidence should be gone over, but that gentlemen should have the assistance of counsel to guide their judgments upon that which had been laid before there He understood that the noble lord who, had so ably presided over both the Middlesex committees, intended to support the motion for hearing counsel, and he hoped, the committee would act with the same, noble impartiality. There was one preliminary question which it was necessary to establish here. If the sheriffs had not been, heard at all, neither the right hon. gent opposite, nor any other gent. could contend that they ought not to be heard. If heard at all, they ought to be heard fully; and what evidence had the house, to what extent they had been heard, whether to their own satisfaction fully, completely and impartially? It appeared indeed that; they had been heard, but he denied that they had been folly beard; and if the house should decide against the hearing of counsel, it would be better for the returning officer not to be heard at all before the committee. Besides, the whole of the evidence was not before the house, but such parts of it as the noble lord and the committee bad selected as sufficient to en-

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able the house to form a judgment of the conduct of the sheriff. In his mind the whole evidence should be had for that purpose, and counsel ought to be heard to ascertain whether any more than they had was necessary. The sheriffs had no notice of their conduct having been under consideration until they accidentally heard of it, and when they applied to have the consideration deferred until after the whole of the case should be gone through, in order that they might have the benefit of all the evidence that might be produced, which was denied them. They had but a single day to prepare their briefs and defence, and that was five mouths previous to the resolutions being adopted by the committee. There was nothing, he contended, in the act, which gave the committee a power to try the sheriffs. The right hon. gent. Had triumphantly stated that the whole matter of the petition was referred to the committee. This he admitted quoad the seat, but not as to the sheriffs, any more than as to peers who might have interfered in the election, or any other persons not implicated in it. The committee quoad the seat, acted as a petty jury whose decision was final; but resembled a grand jury in their proceedings, touching such other matters, the house having reserved to itself the right of final decision upon them. In the case of Mr. Davison, no mention had been made of him in the petition from Ilehelster, though something came out in evidence before the Committee which they made the ground of special report. What course did the house adopt? Did they send him to Newgate? No, they sent him to his trial. All the precedents were against the opinion of the right hon. gent. In the Shoreham case, which had occurred within a year after the passing of Mr. Grenville's Bill, whilst Sir G. Saville, Lord J. Cavendish, Mr. Dunning, and Mr. Wedderburne, who had been the most strenuous and zealous supporters of that bill, were in the house, no conclusion was come to against the returning Officer till he was heard in his defence. There was no other precedent which, bore upon the present case. With respect to the general question he should beg leave to submit a few questions to the house, which, to save them trouble and time, he should answer himself, and by monosyllables. Does the house, or does the law, give a copy of the charge against them to the returning, offi-
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cers? No.—Have the committee power to bring the returning officers to trial? no?—Have the returning officers power to oblige the committee to try them? No —Have they the right of challenging any number of the jury by which they are to try them? No.—Have they a voice in appointing them? No.—Have they a voice in appointing nominees? no. In a case where there were three parties, two were allowed to chuse nominees in the house, whilst the third was put upon trial without any such advantage. He contended therefore, that the sheriffs had aright to be heard by counsel. It had been frequently of late thrown in the teeth of the house that they could not examine witnesses on oath. This could never have been the spirit of the constitution, and if they had not that power, it was time they should have it, and he was sure no branch of the legislature would object to it. Here he thought it not amiss to advert to what had been the practice of the Irish parliament in similar cases. The question often occurred, and the practice had been to retry the sheriffs, and hear over all the evidence. This had been found troublesome and laborious to the house, and therefore they passed an act, whereby the copy of the charge was directed to be given to the sheriff, and the committee had power to try the whole case, so that decision was final and conclusive on the house. On a future day he, should move for leave to bring in a bill similar to that which had been passed in Ireland. He concluded by moving that the word "now" be left out.
Lord Marshamconcurred in the object of the hon. gent. though he differed with him in his statements of facts, and the conclusions which he drew from them. He agreed with that hon. gent. in wishing the sheriffs to be heard by counsel, and on this subject there had been hardly any difference in the committee, whose sentiments he expressed. The whole of the evidence undoubtedly had not been laid before the house, but such parts had been selected as were best calculated to enable them to form a just opinion on the conduct of the sheriffs. All that dry part of the evidence respecting particular votes, which could throw no light on the subject, had been omitted. As to the assertion that the sheriffs had not been fully heard, he should say, that though the committee had informed their counsel that they need not attend during the whole of the scrutiny.

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the counsel for the sitting member had attended to their interests, and were allowed the privilege of cross-examination. The noble Lord concluded with declaring his wish and that of the committee to be, that Counsel should be heard.
Mr. Foxthought it unnecessary to trouble the house, after the opinion that had been given by the noble lord. He should only observe, that all the arguments that had been used on a former day applied against the hearing of evidence, not against the hearing of counsel. The argument had been that the evidence on oath before the committee was better than any parole evidence. The house had decided this question; but he, notwithstanding that decision, remained of his former opinion, and thought that evidence out to be heard before they agreed to the report of the committee, and consequently counsel. The committee had had the advantage of the comments of counsel, of which they had not made any report. Why should not the house have the enjoyment of that advantage. It had been argued that the house ought to have confidence in their committee and agree to the report. But why stop there? why not place the same confidence in their recommendation to hear counsel. He thought it an extraordinary circumstance that a member, of great weight in that house for talents and official situation, should come down and persuade the house to a conclusion in the teeth of all his precedents. He hoped that some way would be found out for hearing counsel, on the present case, as the contrary course would not be very honourable to the house.
The Master of the Rollswas of opinion that some legislative measure ought to be resorted to, in order to settle this question, which certainly stood at present upon bad grounds. Either the committee should have the whole judgment of the case, or the house should retain it altogether. The question whether counsel should be heard, was not to be decided by any abstract reasoning, but by what had been the practice of parliament. All courts of justice had the same principles. He did not know how far the sheriffs were bound by the report of the committee; that was to be regulated by the practice of the house. The hon. gent. had said that he did not agree with the decision of the house on a former day. He had not been himself in the house at the time of that decision, but fully concurred in it. There had been no
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instance of hearing evidence or counsel on the report of a select committee, when election cases were referred to such committees formerly; and since the Grenville act, there was additional reason for confiding in the report of select committees. There was nothing in that act to give to the house the power which it had never exercised with respect to former select committees. No court of appeal tries the merits of a judgment, but the evidence on which that judgment is founded. It would be an anomaly to distribute the power of decision, half to the committee, and half to the house. They had the written evidence, but they had not the advantage of confronting the witnesses; and therefore it would be desirable to hear counsel. If they were to try the whole case, they should hear evidence, and as it might be possible that such evidence might induce them to reject the evidence taken before the committee, he could not easily say what course in such case ought to be adopted. Exculpatory evidence to might be produced, which would also lead to difficulty respecting the resolutions of the committee. All these circumstances proved that some legislative measure was necessary to 9hew how the returning officers should be tried. Great inconvenience would arise from allowing a full hearing in the committee and in the house. A clause similar to the provision of the act in Ireland had been proposed to be added to Mr. Grenville's bill in 1778, but was afterwards, he knew not why, withdrawn. If he were to judge from the mere reason of the thing, he should be of opinion that counsel ought to be heard. Every court was infinitely assisted by hearing the arguments of counsel, in forming its decision. No judge, if he were to receive the case in writing, and consider it in his closet, could have the same comprehensive and clear view of it as after having had the advantage of the arguments of counsel. It was impossible for any one mind to consider ail the bearings of a case, as completely as he would be enabled to do after it has been discussed by a number of persons. For his own part he wished for the benefit of counsel. The only point was, whether that would be consistent with, the practice of the house. It had been said in a former debate by some gentlemen, that it would be proper to hear counsel in some state of the business, but he was of opinion that if they were to be heard in any, it ought to be the present stage,

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which would be more advantageous to the house, and to the parties, than if they if were to be heard when they came to discuss the degree of punishment. There was a total absence of precedents, for there was no case of counsel being offered. If the case had been only left sub silentio, it would be for the house to determine how far it should admit a practice on which the law was silent. He threw out these observations for the purpose of their being considered by those who were more conversant with the usage of parliament.
The Chancellor of the Exchequerperceived that the question was rendered much narrower than in a former debate, when the hon. gent.' (Mr. Fox) argument went to hearing the whole of the case. The motion of the hon. gent. (Mr. Sheridan) which he understood the other hon. member to acquiesce in was solely confined to the hearing of counsel. If counsel were at all to be heard, this was the time; and if the house should be of that opinion, he should not object to it. At the same time he confessed, that from the best consideration he had been able to bestow on the subject, he was not aware of any case in which the party had been heard either by his counsel or by himself. But there were a variety of cases, and no doubt there must be some of them bearing on this question, and she wing what was the sense of parliament upon it. The resolution of the committee had been accompanied with the evidence, and appeared to him to come under the fourth head contained in the report of the committee appointed in 1789 to examine into precedents. He did not think, and he was sure no gent, who heard him could think, that much light could be thrown upon the particular case by the arguments of counsel, however it might be desirable with a view to the general principle to have them called in Me agreed, that the question ought to be decided not by any abstract reasoning, but by what had been the practice of the house. The point of importance was, not to set the example of departing from the practice of parliament, nor to follow the example of attributing less weight to the decision of their committees. As, however, a number of gentlemen seemed to be of opinion that counsel should be heard, and his learned friend also inclined to that opinion, he should not have any objection, provided, however, it was to be clearly understood, that no other proposition was to be grounded on his agreeing to this.
Mr. Sheridanexplained by observing, that he was still of opinion with his hon. friend near him, that evidence ought to be heard, though he only how contended for hearing counsel. With regard to the evidence on the scrutiny, if it appeared there that a number of voters who had no legal title to vote had been received for Mr. Mainwaring, equal to that of the mill voters, then the charge of corruption would be done away.
Mr. Fullersaid, that he was sorry to observe in the enumeration made by the hon. gent. who opened the debate, he had omitted the mention of his relation, Mr. Rose Fuller, who sat as chairman of the committee which framed that bill, and was as strenuous in support of it, as Sir G. Saville, or any of those whom the hon. gent. had selected a gentleman who was only attached to the service of his courttry, and kept himself always free from the contests of any parties.
A short conversation then took place respecting the proper course to be followed; when the question that the debate be now resumed, was carried in the affirmative for the purpose of moving afterwards that counsel be called in.
Mr. Sheridanthen informed the house that the learned gentlemen, supposing the proceedings would be the same as on the former night, were not prepared to proceed.
Mr. Foxcontended that they had no right to conclude that any other course would be adopted than that which had taken place on a former night, and he put it to the candour of the right hon. gent. himself whether he was not of the same opinion.
The Chancellor of the Exchequeradmitted that he did think the present question involved in the former one. But when the debate had been last adjourned, it was under a distinct notice of the present motion, and therefore the counsel ought to have been prepared. He was not disinclined to grant any time consistent with the orders of the house, but it was derogatory from the dignity of the house to suffer itself to be trifled with. If the counsel, when called in, could assign any good reason for not being prepared to proceed, he should have no objection to agree to any convenient interval, before the debate should be resumed.—he order for resuming the debate being then read, and, the counsel being called in, on the motion of Mr. Sheridan,
Mr. Adamappeared at the bar, as counsel for the sheriffs, and stated, that he was not perfectly prepared; but, if the house desired, he would proceed in the best manner he could. He allowed it was highly unbecoming in any man to appear at the bar of the House of Commons, otherwise than with every preparation which the best exertion of his faculties would enable him to attain. But if he might take the liberty of alluding to any thing that had passed in that house, there were some circumstances that had appeared in the printed votes of the house, which, in some measure, justified his precent deficiency of preparation; It was at first to be understood from these votes, that it was the intention of the house to hear counsel; from a subsequent vote, it was understood that counsel was not to be heard. He was now in attendance merely from the accident of having been in the neighbourhood, which had afforded his clients the opportunity of informing him that his presence was likely to be required. He took the liberty to remind the house, that there was no order for hearing counsel this day; and though having formerly turned his mind very attentively to the whole of the circumstances of this case, and the law connected with it, he may possibly be still capable of calling many branches of it to his recollection so as not to be totally unqualified to present a statement of it to the house; yet he would consider it as matter of favour to himself, and advantage, to his clients, if he was allowed time to review the case. He, therefore, conjured the house, to permit him again to look attentively over the precedents of parliament in this case, from the earliest times, and the law connected with them; as without this revision, he could but ill discharge his duty. The indulgence of the house would be applied by him in the best manner he could to the convenience of the house itself, by concentrating all that was important in the facts of the case, in the precedents, and the law upon them, so as to take up as little time as possible in his statement.—The counsel having withdrawn;
The Chancellor of the Exchequersaid, that after what he had heard from the counsel, though he was not satisfied that the counsel had not heard something which it was not so proper for him to hear, he would not press the hearing of counsel this day, But after ail the delay this busi-
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ness had experienced, he begged it to be understood that he made this concession on no other ground than that the proceedings should be fixed for the earliest day in the next week, and that whatever business stood for that day should give way to it. He trusted further, that gentlemen would come prepared to bring the matter to a final decision, as the hearing of counsel, now that the hearing of evidence was no longer insisted upon, would not take up so much time as to prevent the house from coming to a decision the same night. He would move that this debate be further adjourned till Monday, and that counsel be then heard. He trusted farther, that as no other business would stand for that day, the house would proceed to this matter at four o'clock.—The debate was accordingly adjourned till Monday.—djourned.