§ Mr. Marsh
next rose, for the purpose of moving, in the committee, that a sum of money should be granted to the High Bailiff of Westminster, to remunerate him for losses sustained in consequence of the election of a member to serve in parliament for that city, in the year 1812. It was a case, he observed, of pure, unmixed justice, and he conceived that he should weaken it, if he were to detail the circumstances at any length. The claim came recommended by the committee, to which, four years ago, it was referred. In 1806 and 1807 two severe contests took place for the city of Westminster: and, according to the invariable practice of his predecessors, the high bailiff did that, which, if he had not done, the election could not be brought to a proper issue. It was evident, in a place like Westminster, where the election was of a popular character, and where no regular building was set apart for conducting it in, that, if hustings were not erected, scenes of riot and confusion would take place, totally subversive of the rights of the. electors'. The high bailiff, however, erected hustings, at a considerable expense, but the money was never refunded by the candidates. He in consequence brought an action for it in the court of King's-bench, but a verdict was given against him, leaving him a sufferer to the amount of 1,500l. He begged the attention of the committee to this circumstance, that the high bailiff did not ask compensation for the sum of money to which he had alluded as expended in 1806 and 1807; he only required the 1110 minor sum of 800l: being a moiety of what he had laid out in 1812. Parliament had recognised the injustice and hardship of the former loss which fell on the high bailiff, and they let no time elapse before they endeavoured to relieve him. With that view the 51st of the king, which assimilated elections in Westminster to those that took place in other places, was enacted, which rendered candidates liable to the expense incurred for the erecting of hustings. But they did not, in that statute, provide for the strange and anomalous case of an involuntary candidate. The high bailiff having been refused payment by an honourable baronet (sir F. Burdett) he brought his action against him, but he did not succeed; the court of King's-bench holding, that that honourable baronet was not a candidate within the meaning of the act. But surely, in justice, it could not be said, that he was not entitled to the money he had laid out. What inference could be drawn from this act, which rendered it compulsory on the high bailiff to incur expenses in the erection of hustings, &c. but that it was meant by the legislature that he should be reimbursed? It would be extraordinary indeed, if the legislature intended, at the same moment, to exempt from its operation certain individuals, who certainly were not specifically mentioned in the act, and were not therefore supposed to be candidates within its meaning. It was this legislative omission in the act that made it the duty of parliament to remunerate him. The act in question provided that a proper place should be erected in Westminster, for carrying on the election; and another clause directed, that the high bailiff should be indemnified for the expense incurred in consequence. Was it not just, then, when he was compelled, by an act of parliament, to lay out his money for this purpose, and when the interpretation given to the word "candidate" militated against his claim, that the legislature should stand forward and grant him that which their omission had deprived him of any other means of procuring? It was, as he had before said, a case of pure, unmixed justice, and he should be sorry to impute to the House so slow a sense of justice as to imagine, that they would refuse to agree to his motion, which was, "That a sum not exceeding 800l. be granted to his majesty, to enable his majesty to reimburse the High Bailiff of Westminster for Ex- 1111 penses incurred by him in the Westminster Election of 1812."
protested against the utter irregularity of the present proposition. Had the applicant the smallest claim on parliament—which he denied—it was quite irregular, in a committee of supply, to propose any vote except in the form of a grant to his majesty; and another irregularity was, that it was totally inconsistent with the practice of the House, for a member to rise up in a committee of supply, and propose a grant for the benefit of an individual, even in the form of a grant for the service of the Crown, unless the consent of the Crown to such a proposition had been previously signified. Had his right hon. friend, the chancellor of the exchequer, received any application on the subject? and if so, had he intimated the consent off the Crown? Without such an intimation, the motion of the hon. gentleman—even if its form were not in other respects incorrect—would be perfectly unconstitutional. Nor was this practice in the least calculated to give an undue influence to the Crown. It had been the established practice, from the time of queen Anne, that no application to parliament for a grant of public money should be made without the consent of the Crown. It was a prudent guard which the House had set up against its own prodigality and inconsiderateness. If once it were allowed to any honourable gentleman to stand up and propose any grant to which a feeling of compassion, or perhaps of levity, might prompt him, the profusion and waste, of which they were accustomed to complain on the part of the Crown, would soon be out-done tenfold by the exhibition of the same qualities in that House On the irregularity of the proceeding alone, therefore, without any inquiry into the merits of the case—which he was nevertheless quite prepared to dispute—he would oppose the motion in limine.
of the Committee (Mr. Brogden) apologized for an omission of duty. The consent of the Crown had been signified to the proposition, but he had omitted to communicate it to the committee.
observed, that that did not remove his objection to the irregularity of the form in which the hon. gentleman had brought forward his motion.
remarked, that that might he rectified by moving for the sum in the form of a grant to his majesty.
The Chancellor of the Exchequer
said, that the present application was unquestionably sanctioned by the report of the committee four years ago, and that he had signified the consent of the Crown to the introduction of the subject to the consideration of the House.
§ Mr. N. Calvert
thought that the emoluments of the high bailiff's office ought to be made known to the House. It was a situation so valuable as to be the object of purchase; and the expense to which it appeared the high bailiff had been subject, might be no unreasonable burden on him.
§ Mr. Brougham
said, he was always disposed to listen to the hon. member for Corfe Castle, on questions of economy, and was one of the last men who would vote for an unjustifiable expenditure of the public money in grants, either to the Crown or to individuals, but the present appeared to him to be really a claim of strict justice. This gentleman had been saddled with an expense which the legislature never intended to fall on him, merely by the unfortunate use, in an act of parliament, of a word which was not technical, and which a court of law had construed in a sense different from that in which it was intended. The observation of the member for Hertford, that the office was purchased, rendered the high bailiff's claim still stronger. It was an estate on which parliament had, by mistake, imposed a burden, which the purchaser of it could by no means have anticipated. And for whose benefit was the expenditure in question? For that of the public. To blunder in acts of parliament was not peculiar to the House of Commons; but it was peculiarly imperative on that House to be accurate in every thing which respected elections. In the act under consideration that House had said, that the expenses of the hustings, &c. at Westminster, should be borne by the candidate or candidates. When these words were employed by the framers of the act, it was undoubtedly expected by them that whoever might be returned to serve for Westminster, and who professed his readiness to serve, would be liable to bear his share of the burden. A case had, however, occurred, in which a member had been returned who had not sought the honour, and it had been determined by a court of law, that he could not be called a candidate, and that therefore he was not liable to pay any part of the ex- 1113 penses. Under all these circumstances, the committee were, in his opinion, bound in justice to make good his deficiency to the high bailiff.
was of opinion, that it was highly desirable the report made by the committee four years ago should be reprinted, and in the hands of members, in order to make them adequate judges of the subject, before they were called upon to decide on it. He had a strong objection to the motion. Nor did it appear to him that there was any blunder in the act. The high-bailiff having brought his action against sir Francis Burdett, for his portion of the expense of the hustings, &c., a court of law had decided, that a man was not a candidate, who had not offered his services to the electors; and that he was not liable to pay his share of the expenses, unless he had rendered himself a party to the proceedings. Were it otherwise, what intolerable injustice might be inflicted on any man, by exposing him to the payment of some hundreds of pounds, in consequence of his being proposed to represent Westminster without his concurence. If such a proposition as the present were acceded to, it would be advisable to pass a general bill, to declare how such expenses should henceforward be borne; otherwise parliament would unquestionably be called upon to pay all future charges of a similar nature. The sum also appeared to him to be extravagant. He could hardly conceive how so large a sum as 800l. could be expended in the construction of hustings, as the materials of which they were composed need not to be afterwards wasted. Perhaps the best course would be for the hon. gentleman to withdraw his motion, and defer taking any farther steps until the report of the former committee was printed.
§ Mr. Brougham
said, he was counsel against the high-bailiff, when he brought his actions, and he was therefore anxious to do him justice, by explaining his case distinctly. He was non-suited in his action against sir F. Burdett; but, in the other against lord Cochrane he had succeeded. The expense was somewhere about 1,700l. and he recovered a moiety of that sum—the other moiety he now sought from the House. It was made a matter of surprise that the expense was so great. Now, the noble lord suffered judgment to go by default, and the damages were assessed before the sheriff. A minute investigation of the account took 1114 place; proof was given as to all the items; and the plaintiff did not receive sixpence more than he was entitled to, on the most unquestionable evidence. The expense was not merely incurred by the purchase of timber for the hustings; the hiring of poll-clerks and their assistants, occasioned a considerable part of it. By the act, it was imperative on the high-bailiff, when a poll was demanded, to cause hustings to be erected. He understood it was a temporary act, and had either expired, or would expire this year. He thought it was necessary that a new act should be passed to guard the high bailiff in future. But in the first instance, they ought to repair the injustice already done. It was of very little use to say, "We will not allow you to lose 16 or 1,700l. in future; but we will not reimburse you for what you have already lost."
said, that if the demand was confined to the election of 1812, it ought to be observed, that no poll had taken place at that time; and he could not conceive how an expense of 800l. could be incurred during the few hours which elapsed from the beginning to the end of the election.
§ Mr. Brougham
replied, that it was imperative on the high bailiff to have the hustings, and the poll-clerks, &c. ready. It was impossible for him to know whether or not there would be a poll until the time arrived; and such a city as Westminster could not be exposed to all the tumult that would arise from a delay in the commencement of the poll, in the event of its being demanded.
said, that the mistake was on the part of the high bailiff, in not bringing his action for the whole of the expenses against lord Cochrane, who was a candidate, and from whom he had obtained only a moiety.
§ Mr. Bathurst
said, that one of the plaintiff's counsel, Mr. Richardson, made a motion on that subject, but the court held, that, as there was no joint interest in the candidates, the liability was separate. Whatever provision it might be deemed necessary to make hereafter, was not now the question. The question was, whether parliament had not thrown a great duty on the high bailiff, which was not necessarily incidental to his office? The act did throw on him this burden, which was formerly only known by the sheriffs of counties; and why should not parliament grant him an indemnification, under 1115 his peculiar circumstances, when their intention evidently was, that he should not lose by their enactment? They said, the expense must be defrayed by the candidates. But that intention was defeated by a particular circumstance. He did not take the office with this burden appended to it. Parliament had caused it, and parliament were bound to prevent him form being injured by it. The demand had been for years in existence; and gentlemen now talked of printing the report, the circumstances of the case being well known. In other words, they were asked to expend half the sum claimed, in the printing of the report before they proceeded to consider the case.
§ Mr. Barclay
thought the present vote might go to establish an important precedent that would apply to other places, in one of which—he alluded to the borough of Southwark—a considerable expense had, on a late occasion, been thrown on the returning officer. He hoped something would be done to prevent the recurrence of such a case, as such claims on parliament ought not to be encouraged.
§ Mr. C. Calvert
said, that, at the last Southwark election, when he and a friend of his, now no more (Mr. H. Thornton), stood as candidate, a third person was nominated by his friends. That individual contended, that he had no right to defray any part of the expense of erecting the hustings, as he was not a candidate, and the high bailiff was obliged to pay it.
§ Mr. Lockhart
observed, that the act in question was a special one, confined to Westminster, and expired in the present year. The House would therefore do well, if they regarded the peace of Westminster, to adopt some farther legislative proceeding on the subject. As to the question before the committee, it should be remembered that the high bailiff was subject to the penalty of being proceeded against by indictment or information, if, in the event of an election, he did not, in the first instance take on himself all the expense of erecting hustings, providing poll-clerks, &c. He begged leave to say, in behalf of the high bailiff, that, consulting the peace of this large city, he did, on the occasion in question, under very inauspicious circumstances, pay out of his own pocket above 1,500l. for the purpose of making the arrangements prescribed by the act of parliament. Half that sum 1116 he had never been repaid. He therefore hoped and trusted that that gentleman, who had been already kept four years out of his money, would not be allowed to suffer for his obedience to an act of parliament; but that the committee would show, in his example, that when any duty was cast on an individual for the. public service, parliament would not permit that individual to be injured in consequence of his performance of it.
The Chancellor of the Exchequer
said, that there were so many cases in which the operation of an act of parliament threw a loss on individuals, that it required very particular words to distinguish this case. The charge had been thrown on the high bailiff in a way parliament did not intend. The act on the subject was about to expire, and would probably be repealed or amended. At all events, this ought not to be drawn into precedent; but it was of so peculiar a nature, that upon the whole, he did not think it proper to withhold his assent from the proposition.
The resolution was then agreed to.