§ Sir A. Piggott,
pursuant to notice, rose to move, that the petitioners who prayed by petition, yesterday, to be admitted as parties to defend the seat of Mr. Fuller against the petition of Mr. Sergison, the defence of which had been abandoned by the sitting member, do, on or before the 21st of March, exchange lists with the original petitioner, of the persons whose votes were to be objected to, together with the several heads of the objection against the names of each person intended to be objected against, to be delivered to the agent or agents of the respective parties. The petition of Mr. Sergison, he observed, was ordered to be taken into consideration on the 24th, and the Election Judicature bill enacted, that petitioners claiming to be heard as parties in defence of an aban- 1157 doned seat, were to be considered, to all intents and purposes, in the place of the sitting member. As the resolutions of the house, therefore, required that lists of objectionable votes should be exchanged between the sitting member and the petitioner against his return, within a reasonable time, he trusted that the house would, in this instance, see the necessity of appointing some day for the exchange of such list between the original petitioner and the parties who had succeeded to the place of the sitting member in the defence of the seat. He should therefore move, that the said lists be exchanged on the 21st instant.
§ Mr. Huskisson
thought that the house had to consider two points upon the present question; 1st, Whether it was competent to the house to fix any day for the exchange of the lists demanded; and 2dly, whether there was sufficient time for so doing. The petition against the election of Mr. Fuller, had been within the proper period presented in last session, and had been regularly renewed in the present. It was not the duty of the sitting member to call for any exchange of lists, and the petitioner had neglected to do so until the sitting member had declared his intention to abandon the defence of the seat, which was on the eve of the day on which the petition was ordered to be taken into consideration. If the sitting member had persevered in the defence of his seat, no lists could be exchanged, because a motion to that effect could not be made without notice; and the house was aware that, as no such notice had been given before the eve of the day for taking the petition into consideration, it could not be available if given on that day, because the ballot for the committee must precede all other business on the subsequent day. As the petitioners, therefore, were by the act placed, to all intents and purposes, in the place of the sitting member, and no lists could be demanded under these circumstances from the sitting member, he contended that no lists could, according to the provisions of the act, or the usage of the house, be demanded from the petitioners. They were required to defend the seat only against the other allegations of the original petition, and were not obliged to enter into any scrutiny of objected votes. The house, too, would do well therefore to reflect, as to the second question, respecting the time mow remaining for exchanging, what a situation they would place the petitioners 1158 in, if they should call upon them within three days from this day to exchange lists of a poll that lasted 15 days, in a county 80 miles long, and in which 8000 electors had polled. The petitioners too had had the opinion of very eminent professional characters to direct them in the course they had taken, and the impression they entertained, that they should not be called upon to give or exchange lists.
§ Mr. Tierney
did not pretend to be lawyer enough to determine how far the opinion of the counsel alluded to by the hon. gent. was correct; but of this he was certain, that if the house consulted its own honour, it would not give effect to the present attempt. It was well known a month before Mr. Fuller gave in his declaration in writing, that he did not intend to defend his return. It was natural therefore for col. Sergison to say, 'Why should I put myself to expence, or the house to trouble, till I see if any other person will undertake to defend the return? If the freeholders do so, I know I have 30 days within which to demand an exchange of lists.' The effect of precluding col. S. from this right, would just amount to this; that a sitting member, against whom a petition was presented, had only to allege his resolution not to defend his seat; give in a declaration to that effect, immediately before the day fixed upon for the ballot; and prevail on a freeholder to step forward and ask leave to defend the return; thus the petitioner complaining of his return would no longer be at liberty to attack him, and the house itself would be made a party to the imposture.
Mr. C. Wynne
thought the present a question of considerable importance. It had occurred rather unexpectedly, and therefore, he wished the debate on it postponed till to-morrow, that gentlemen might he better prepared on the subject.
The Chancellor of the Exchequer
had no objection to indulging the hon. gent. with the delay proposed. As to the point itself, however, he had no doubt. The question was simply this; should col. Sergison stand in a better situation now, than if Mr. Fuller were himself defending the return? If Mr. F. had not declined, col. S. not having in due time applied for an exchange of lists, could not afterwards have insisted on it.
Mr. Ponsonby and sir A. Piggott resisted the position that the petitioner against a sitting member was not, at any time before balloting for the committee, entitled to 1159 an exchange of lists: such exchange was made partly for convenience, and partly for the dispatch of business; and even if omitted to be applied for in that house, or there refused, the committee had a right to inquire into the legality of votes, and even to order the exchange of lists; they being by their oaths required to declare the person having a majority of legal votes duly elected, not to exclude all evidence on the subject.—After some farther discussion, the debate was adjourned till to-morrow.