HC Deb 16 March 1819 vol 39 cc1014-9
Mr. Wynn

said, that an order had been made for the production of the minutes of evidence, taken before the committee on the Rochester Election, without any reason assigned for that proceeding. As this was contrary to the practice of the House, he should move that the said order be read, for the purpose of moving afterwards that it be discharged.

Mr. Bennet

said, he had moved for the production of the minutes without assigning any reason, but anxious himself to hear from some member of the committee the reasons for the decision which that body had adopted. As a motion was now made to rescind that order, he should state the reasons why he had been induced to procure it. He wished the minutes to be produced that future petitioners might see on what ground they had to stand. He had no opinion to pronounce as to the decision of the committee, that the sitting member was duly returned; it was merely to that part of their decision by which they declared the petition frivolous and vexatious that his attention was drawn. The circumstances under which the petition had been presented were these:—the petitioner, at the election, had stated his opinion that the qualification of the sitting member (lord Binning) was insufficient. In consequence of this suggestion a general meeting of the electors took place; the case was put into the hands of eminent parliamentary counsel, Messrs. Harrison and Warren, to decide whether there were grounds of petition against lord Binning, on the allegation that he had refused to produce a qualification,—he deeming himself to be qualified as the son of a Scots peer. The counsel gave it as their opinion, not only that there were grounds for petitioning, but even for expecting a favourable issue. On that advice the electors acted: yet the petition had been voted frivolous and vexatious. This was the first time that on an unmooted, undecided point of law, such a decision had been come to [Order!].

Lord Castlereagk

rose to order. The opinion of counsel was no reason, he said, for attaching blame to the committee. They had decided upon the evidence before them, and the previous opinion of counsel was very improper ground for impeaching their conduct. It would be improper and dangerous to arraign the conduct of committees.

Mr. Bennet

said, he was in a strange, and certainly a difficult situation. An hon. gentleman had objected to him, that he had procured the order without assigning reasons; and now when he had begun to assign reasons for his proceeding, the noble lord had objected to him that he was out of order. In what was he out of order. The House could canvass or arraign the conduct of the lord chancellor it could arraign the conduct of the judges or of any individuals in the kingdom, invested with judicial powers; and in that right he stood up, and asserted his privilege, though not in the language of arraignment, to offer his observations on the conduct of the committee. He repeated, that his object was the guidance of future petitioners; that it was the first time, that on an unmooted, undecided point of law, a committee had come to such a decision; that the decision was on a petition which had had the sanction of two of the most eminent parliamentary lawyers in the kingdom—nearly as good judges on these subjects as fifteen persons who were no lawyers. It was on these grounds that he moved for the production of the minutes: and if others had taken the course he now took, those decisions which were to be found on election petitions, contradicting one another on every point, would not have existed. If it was understood, that these committees were to be sacred ground, free from publicity or inquiry, that these anomalous judicatories might do what they pleased, without being open to observation, the franchises of the electors of the kingdom would be subject to very different decisions from those which protected their persons and property [hear, hear!].

Lord Normanby

, as a member of the committee, deemed it to be his duty to declare the opinion which he had formed after mature consideration, and which every thing he had since heard had contributed to strengthen. He had concurred most fully with the committee in deciding in favour of the due election of the sitting member, but there had appeared to him to be that ground of doubt on the face of the act of parliament, that a legal argument might fairly be raised on it. He could not, therefore, bring himself to concur in the opinion of the committee respecting the petition, because a sentence of a committee that a petition was frivolous and vexatious, implied not only that the committee had no doubts on the subject, but that there could arise no reasonable doubt in the minds of others. The House would only gather from this that the committee were not unanimous. He was convinced at the same time that the committee had acted from their best judgment, and he therefore concurred in the present motion.

Mr. Sturges Bourne

said, he had not objected to the production of the minutes, lest he should seem to have opposed inquiry. His noble friend had put the question as to a petition which should be voted frivolous and vexatious on the fair footing; but he would state why it appeared to him that there could exist no reasonable grounds for such a petition. Minutes of evidence there were in fact none; all that was material had been admitted on both sides; the whole question arose put of a few words of an act of parliament, which any plain gentlemen were as competent to understand as the most learned lawyers. It was enacted, that every member representing English counties, &c. should possess certain property in land, "except the eldest sons of peers, or lords of parliament." One uniform construction had been put upon this act. It was said by the hon. gentleman, that it was unmooted and unsettled. It was unmooted because it was settled. No one had ever doubted that the eldest son of the earl of Haddington was the eldest son of a peer. It had been taken for granted at all elections, and even by the House for the sons of Scots Peers would not have been admitted to take their oaths unless the House had deemed them qualified. Yet never had they produced any other qualification than the declaration that they were sons of Scots peers; and to none of them, lord Cochrane among others, had a single objection been made. There was indeed evidence, that lord Kirkwall had delivered in a qualification in land; but he was the son of a peeress, which might have misled him as to the extent of his privileges. But even if there had been more instances in which this had been done, either through ignorance, or ex majore cautelâ, they would not have weighed with him. The arguments of the two counsel for the petitioner completely contradicted one another. Mr. Harrison argued, that even if lord Haddington had been one of the 16 Scots peers who sat in parliament, his son would not have been qualified; while Mr. Warren took a different ground, and said, that in that case, indeed, lord Binning would have been duly qualified. He argued, that the "or" was not disjunctive; and that "Peer and Lord of Parliament" were synonimous; but this was immediately answered by the case, not only of the Scots peers, but of the Catholic peers and peers in their non-age, who were all peers, though not lords of parliament, while è contra, bishops were lords of parliament, though not peers. He was therefore convinced, that there was no reasonable ground of doubt, but that the words were as clear as words could be. The committee had no alternative; they had to pronounce that the petition was frivolous, or that it was not. They could not pass it by in silence; and though, in this case, the voting the petition frivolous and vexatious was of subordinate importance, the costs being small, yet, if at any time a committee was to de so, it was on this occasion fit to do it, when a candidate, confessedly in a minority, attempted to seat himself by raising doubts which had never existed before.

Mr. Tierney

thought that good had been done by bringing forward this discussion, and argued that it was too much to decide that a petitioner had acted frivolously and vexatiously, when he proceeded under the advice of two gentlemen who had had so much business before committees. No petition could be with propriety decided to be frivolous and vexatious, unless the object of the petitioner clearly was, to harass the sitting member, without hopes of succeeding in his petition. The question as to the qualification of the eldest sons of Scots peers had never been decided: The clerk at the table was merely in the habit of receiving the declaration of a gentleman, that he was the son of a peer without inquiry. He did not quarrel with the decision of the committee as to the merits of the election; but when they had divided seven to seven on the question of censuring the petition, which was carried only by the casting vote, it was natural the petitioner should feel some degree of soreness. Some measure should be taken to relieve committees from the necessity of such a decision, as the practice would in effect be writing up against petitioners "Steel traps and spring guns." The right hon. gentleman had said that any plain person might construe the act of parliament; bat the right hon. gentleman was not a plain person; he was a person practised in the explanation of acts of parliament. But here came a gentleman who had been in the artillery. What could he do? He had consulted two eminent counsel, and had acted on their opinions. If a petition founded on such advice was voted frivolous and vexatious, no man could tell when he was safe in petitioning the House.

Lord Castlercagh

thought that no good could result from the motion; but, on the contrary, that to bring before the House, who were not on their oaths, the judicial parts of the transactions of election committees, would shake the fundamental advantage of the Grenville act. To decide a petition to be frivolous and vexatious, it was not necessary that the intention of the petitioner should be to harass the. sitting member; it was enough that he proceeded upon such loose and frivolous grounds as had the effect of bringing unnecessary vexation on him. He also protested against the idea, that because the petitioner could get the opinion of two counsel in his favour, he should be deemed secure against the decision of a committee.

Mr. Wynn

said, that this was the first time, he believed, for the last five and forty years, that it had been expected that any good could arise from canvassing in the House the decision of its election committees. The next step would probably be a proposal to repeal the law which had already produced such excellent effects. The House had, by the Grenville act, delegated to its committees the right of deciding on election petitions, and had thus prevented great evils. If the order to produce the minutes was enforced and the judgment of the committee questioned, there was an end of the law. It was a part of the duty of committees to declare on oath whether they thought the petitions on which they sat frivolous and vexatious. If they so determined, the petitioner paid the costs. Was not this what happened in all other cases? The right hon. gentleman had made a distinction between frivolous and vexatious; but it did not appear necessary for inferring costs, that a petitioner should be adjudged both. If frivolous, it was in fact vexatious. It seemed strange, after this petition had been decided on by fifteen gentlemen, who had the best evidence, and who were sworn to examine it impartially, that the question should be brought before the House for discussion by those who had heard only one side of it, and who saw only the opinion of counsel. Fifteen gentlemen had given their judgment against the petitioner on principles which had been acted upon for the last hundred and fifteen years and yet the hon. gentleman had said to-night, that the question was never mooted. A uniform practice of upwards of one hundred years was surely better than a doubtful decision, or a newly mooted question.

The question for discharging the Order was then put and agreed to.