HC Deb 25 May 1808 vol 11 cc544-9
Sir Francis Burdett

, adverting to the communication which he had thought it his duty to make to the house on a former night, relative to certain proceedings in one of the courts below, which appeared to him to trench upon the Privileges of that house, informed the house that the practical consequences, for which it had been recommended to him to wait, had now taken place. He assured the house, that in bringing this question again before the house he had no interest in it, but what any other member would, and ought to feel, upon a subject affecting his privilege as a member of parliament. The question was simply this, whether a member elected without his knowledge, and taking his seat in obedience to the king's writ, was or was not liable to incur any part of the expences of taking the election? He did not mean to submit any proposition to the house upon the subject, neither did he make any complaint. Having thus brought the matter under its consideration, it would be for the house to decide, whether or not the case was of such a nature as to call for its interference.

Sir A. Piggott

expressed a wish to know, what were the exact circumstances of which the hon. baronet complained?

Sir F. Burdett

stated, that the practical inconvenience to which he now alluded was, an execution having been sent into his house, for what were said to have been expences incurred in taking the election for Westminster; for which he had not been a candidate, and of his nomination, or indeed election, to which he was almost a stranger till the event had taken place. The ground of the decision, too, was the fact of his having taken his seat in that house.

The Chancellor of the Exchequer

apprehended that his learned friend opposite, (sir A. Pigott), had not been in the house on the former night, when this case was brought forward, He had then stated, that whatever the decision might have been, the house was not in a condition to give any redress. The hon. baronet then stated, that the direction of the noble and learned judge was, that the person who appeared for sir F. Burdett and claimed seats for his clerks, should be adopted as his agent; because the hon. baronet had since taken his seat in consequence of that election. He (Mr. Perceval) then stated, as he did now, that the house was not in a condition to take advantage of this fact. Had this been the direction of the Judge, the direct and regular road of proceeding would have been to have applied by writ of error, or on the ground of misdirection on the part of the judge; if wrong or right, the ground of the decision would then have appeared on the record, and would have been seen by the house. The hon. baronet's counsel, however, not having adopted that mode, but having moved for a new trial, which had been refused, no way now remained for bringing the matter with effect before the house. It now appeared not to be a case of privilege, in which a member of that house, as such, was interested; but a common case of debt, for work and labour. This circumstance did not arise from any defect in the fudge, who tried the case, but from the neglect of the counsel of the hon. baronet.

Sir A. Piggott

declared himself to be perfectly satisfied that this was not a case in which the house could interfere. It was a proceeding in the regular course of justice. If the action in this case could have been entertained at all, it must have been on the ground that it arose out of a contract. The act which allowed the expences of erecting hustings, &c. in the case of counties, did not extend to boroughs; yet even there, candidates might agree that for their accommodation, or that of their voters, during a contest of 14 or 15 days, hustings should be erected, the expence of which could not reasonably be expected to fall on the high bailiff. The action, therefore, could only be on the contract so supposed to be entered into, and could of course have no relation to the election, so as to make it a matter of privilege to be taken up by that house. This must be a question either of fact or of law, and in either case it might have been brought before the court by demurrer, or by bill of exceptions, so as to have the ground of it appear on record. It behoved those who had the legal means of defence in their own hands to go before the judge in a regular manner. If they omitted to do so, it was not for that house to interpose. If the house should be of opinion that it would be improper that a candidate should be on any account at the expence of erecting hustings, let it be made the subject of a prospective regulation. But as that was not the case at present, this must be like any other suit, founded on a covenant, the effect of which must be construed by the jury.

Mr. Tierney

said, it appeared to him, notwithstanding what had fallen from his hon. and learned friend, and from the right hon. and learned gent. opposite, that the present was a question of privilege. He could not admit of the doctrine, that the house of commons was not entitled to interfere in the acts of omission or commission of the courts below, so far as the privileges of the members of that house were concerned. The case was this; the worthy baronet was returned without his knowledge, and without any previous consent on his part: the returning officer had no right to make a demand on any candidate for hustings; but a person whom he supposed to be the agent of sir F. Burdett having made use of them when erected, he sues sir Francis for his proportion of these expences; the judge esteems the hon. baronet's taking his seat as a confirmation and approbation of the conduct of the person who appeared on his behalf, in fact as a recognition of him as his agent; he instructs the jury accordingly, and they, in compliance with this recommendation, find the worthy baronet liable. If these facts were so, he asked, was not this a grave and serious question of privilege? Or was the house, by refusing to listen to it, to sanction the idea, that in complying with an order which he was not entitled to resist, namely, taking a seat when called to it by the electors, every member of that house was to incur a penalty which he had not contemplated, and which, but for the officious and forward zeal of a person with whom probably the party had no concern, the returning officer had no right to demand? In saying this much, the right hon. gent, begged to be understood as by no means reflecting on the noble and learned lord who tried the action. He knew that there was no person less likely than he to do any thing that could seem to infer a breach of the privileges of the house. It was possible, however, that even he might be mistaken. It would be a grievous burden if a member returned to parliament without any personal interference of his own, were obliged to shew, as by law he was, not only that he possessed a qualification of 3 or 400l. a year, but also to produce out of his pocket. 4 or 500l. to defray the expence of the hustings. He hoped, therefore, the question would not be supposed to have been disposed of, but that it would be renewed for after-consideration; appearing, as it did to him, to be one well worthy of deliberation before a decision was come to upon it.

Mr. Leycester

said, that the person who had been held as sir Francis's agent had called on the high bailiff, and, in the name of sir Francis, declared that he would not pay for the hustings; yet that this same person, day after day, asked, obtained, and availed himself of, the advantage of seats for the check-clerks, inspectors, &c. who were to attend to the hon. baronet's interests in the election. The learned gent, did not pretend to say what was the recommendation of the judge; but it was hardly probable, that it was such as had been represented, else a new trial, which had been moved for, would have been granted.

Mr. Bathurst

thought it impossible for the house to entertain a question on which they had no authentic information, the; recommendation of the judge, which could alone form the ground of the proceeding, not having been entered upon the record.

The Speaker

said, after what had passed in allusion to himself, it was necessary for him to put the hon. baronet right as to what he had stated on a former night. What he said was, that when any practical inconvenience did arise, if the hon. baronet continued to think that it involved a question of privilege, he should in that event lose no time in applying to the house. He had no hesitation in saying, that if any judge should recommend to a jury what could be construed into a breach of the privileges of that house, it was the duty of the house to resist, and to guide their course according to circumstances. As there was no motion before the house, he should only suggest two different modes of proceeding, both of which had been adopted in the reign of Charles 2. One was in the case of judge Weston, where an impeachment was ordered; and the other in the same reign, where that measure not being deemed necessary, the matter was allowed to drop without any further discussion. Those who thought the present a case of the most serious nature, would probably be of opinion, that the former of these was the preferable mode of proceeding; while others again might be inclined to think that the latter was the most desirable way of disposing of the present question. He had stated what were the modes of proceeding; and it was for the house to say, whether in this case the more or less serious mode ought to be adopted.

Sir Francis Burdett

said, the sources from, whence he derived his information as to the recommendation of the judge, were the notes of the short-hand writer employed to take down the trial, and the information of his counsel. He esteemed these as affording him sufficient foundation for bringing the matter before the house. The only thing he had submitted to the house was the instruction of the judge; that the circumstance of his taking his seat, a thing which was incumbent on him, was such an approval and ratification of the proceedings had under the election, as must subject him to the expence of the hustings. He felt himself by no means interested in the fate of this discussion. He esteemed it to be the cause of the house; and if he had taken a bill of exceptions. or adopted any other mode of setting aside the verdict than that which he now used in submitting the case to the consideration of the house, he should have conceived that he subjected himself to a severe censure for his conduct. He now left it to the house to determine as they thought proper.—Here the matter dropped.