BOROUGH OF TREGONY.

HC Deb 24 November 1826 vol 16 cc115-25

Mr. Abercromby

said, that, as the subject of his present motion was intimately connected with the privileges of that House, it would, of course, take precedence of every other. He would commence by requesting the clerk to read the return to the Crown-office relative to the borough of Tregony.

The clerk then read the entry, in which there appeared the names of Stephen Lushington and James Brougham, returned with, and annexed to, the writ; and of James Adam Gordon and James Mackillop, returned with, bat not annexed to, the writ.

Mr. Abercromby

then proceeded to observe, that the simple reading of that entry might be almost sufficient to establish beyond contradiction, that there had been no double return for the borough in question, and that the entry in the book ought to be forthwith rectified, by order of the House. It was well known that the course of proceeding, in the election of a member of parliament, was this: the writ, in the first place, issues from the Crown-office to the sheriff of the county, and he, in compliance with the order contained in it, again issues what is called a precept to the returning officer of each borough within his county, in which he calls upon that officer to hold the election, and make the return to him by a certain time. When the election has been held in virtue of this precept, the returning officer annexes the indenture of the return to the precept, and sends it to the sheriff, who transmits it with such indenture to the clerk of the Crown. This was the ordinary and established course of proceeding, from which, he conceived, they never had departed, and from which no departure could, with any regard to the preservation of their own privileges or the rights of the electors, take place. This ordinary and established practice had been strictly followed, as regarded one of the indentures. The sheriff had directed his precept to the mayor of Tregony, an officer who had been duly sworn in by virtue of a writ of Mandamus; and this alone, he conceived, was sufficient for the purpose he had in view, because, as it was acknowledged that it was the duty of the sheriff to select that person who was, in his judgment, the proper returning officer, the indenture which that officer returned along with the precept must be considered as the legal return to the sheriff; and therefore Dr. Lushington and James Brougham, esq. must be considered as the duly elected members for the borough of Tregony. There had been, however, a great error committed, which it was the duty of that House to correct. The first return stated, upon the face of it, that it was made by virtue of a precept issued from the sheriff; while the second was only described as being in virtue of the writ, and therefore could not be maintained. This return was also invalid, as it was represented to be made by the deputy of the mayor; an officer not selected by the sheriff' for the performance of the duty. That gentleman had before issued his precept to the mayor, and it had been complied with by the first return of an indenture annexed to the writ; while the second return, made by an officer not appointed by him, and avowedly by virtue of the writ, could not for a moment be considered in the light of a double return. The sheriff, it was obvious, had not so considered it; for if he had done so, it was plain that he would have felt himself bound to return it, as well as the other annexed to the writ. He apprehended that the case of the borough of Helstone was a perfect illustration of the principle which he wished to maintain for the guidance of their decision. In that case there was one return made by virtue of a precept, and the other by virtue of a writ. The sheriff, in that case, did not presume to act upon his own responsibility, but took the advice of two of the most eminent lawyers of the day—Mr. Serjeant Davy and Mr. Buller—as to the course which he ought to pursue. These gentlemen gave what he considered n safe rather than a manly advice. They desired the sheriff not to take upon himself the responsibility of rejecting persons returned to him in that manner, but to send the names to the clerk of the Crown, and throw upon him the whole burthen of acting as he thought his duty might direct. They did not take the true manly course and say to him, "you have issued your precept—you have received a return —and any thing else which accompanies must be considered as mere waste of paper." No: they threw the responsibility on the clerk of the Crown, and left the parties afterwards to prove their respective titles. This, he repeated, was the safe but not the manly or the correct course; for it was competent for any person, by a very small sum of money, to keep out of parliament any two men he thought proper, on the most, critical occasion. If that House had been assembled for any vitally interesting purpose, instead of being called together to give their assent to a measure upon winch all were agreed, it might have been in the power of any man to keep out any number of the hon. gentlemen opposite, from the present period until the ensuing March, by precisely the same expedient. The learned gentleman then contended, that it was the bounden duty of the sheriff to have returned those mimes only which were annexed to the precept he had issued, and to have presumed that the others were not legally elected, until they had been enabled to establish their title elsewhere. It might be agreeable to those who were always applauding the wisdom of their ancestors to know, that this doc- trine of presumption, in such cases, had been held to be the proper course, as far back as the reign of James the 1st. In that reign, a person named Holford had been elected for Pontefract and for Stock-bridge. Ho made his election for Stock-bridge, and in some discussions respecting the election upon the new writ, to which a return was made by virtue of precept and of writ, the House decided, that the sheriff was bound to presume the return to the precept to be correct, until some-tiling was proved to the contrary. The case of Liskeard was somewhat different; but Helleston was quite in point; and he now contended that the House was bound, for the protection of its own rights, to shew that the sheriff was bound to return the indenture of his office, and that alone. —There was another extraordinary circumstance connected with this matter, which he would mention without comment; and that was, that when the agent, of the sheriff carried the precepts for his county to the Crown-office, one of the clerks there told him, that there was another return for Tregony, and wished him to fix it to the precept. The agent replied, that he was directed to leave that precept with the indenture separately and distinctly, as the return of the sheriff, and he would leave it in the state he had received it, without alteration. Subsequently there appeared in the Gazette, a notice of the members elected for Tregony, in which the names of Cordon and Mackillop appeared before those of Lushington and Brougham, who had been returned on the precept; and when this matter was mentioned in the course of the proceedings, the agent was told, that it did not signify what, appeared in the Gazette, the entry would be found to be correct in the book returned to the clerk of the House.—The thing of which he principally complained was, that the first return, that of the earliest date, was superseded in the Crown-office, and that the return of which he complained was substituted for it. And that was the more the subject of just complaint, as one was on the 13th of June, and the other on the 17th, and still more as the precept was affixed to the writ in one instance, and not in the other. Such a return, he contended, could not be maintained or supported by the House. He therefore thought, that the obvious proceeding for the House to adopt was, to reject the return which was informal, and therefore nugatory; and to leave to any party which might feel itself aggrieved, the opportunity of appealing to the House for redress for any injury it might sustain from the decision of the House; a redress which, on a representation of just ground of complaint, he was satisfied the House would be ready to afford. He concluded, by moving, "That the Indenture by which James Adam Gordon and James Mackillop esquires, were returned to serve in parliament for the borough of Tregony, be taken off the file."

Mr. Wynn

assured the hon. and learned member that he should not have thought himself at all disorderly in interrupting him before he had concluded his speech, had he been aware that his motion would have taken the shape which he had eventually given it. The hon. and learned member commenced by telling them, that he had a motion to submit on a matter connected with their privileges; but, in fact, he had concluded with a proposition which was against law, and against the usage of that House. The details with which the learned gentleman had favoured them, would have been perfectly in place, before an election committee, legally constituted for the investigation of the alleged irregularity; but when addressed to that House, which had no power to entertain the subject, they were useless to all purpose, but to prejudge the question. What was the substance of the motion? That that House should of its own authority, order a return to be taken off the file. If the learned member could persuade the House to such a course, the next thing he must do, would be to bring in a bill to repeal all the acts relating to elections passed by that House since the commencement of legislation on the subject. If the House were to controvert a return made to it, in the manner now proposed, it would lead to the greatest inconveniences. For if, under any pretence, they were once to arrogate to themselves such a power, there would be always plenty of cases, with circumstances of a special and peculiar nature, to demand their interference. It was the established practice of the House, in cases of this kind,' to refer the matter in the first instance, to a committee of privileges. That was the course pursued in the case of Pomfret, in the time of James the 1st. In that case it was decided, that the proper course to be pursued was, to refer mat- ters of disputed election to an election committee. He knew nothing of the parties in this case; but he must say, that an election committee would be the only tribunal in which justice could be done, and an opportunity given of defending the return complained of, and shewing that it was legal, and one which the House ought to adopt. The learned member had found a precedent for the course he recommended in the time of William and Mary, about the year 1690. At that time the House exercised a jurisdiction over returns, and felt no hesitation whatever at acting, if a clear case was brought before it, without the aid of a committee. But the object of the Grenville act was, that in no case the House should act of itself. The greatest danger would arise from the House exercising such a power: and even if it were to assume the jurisdiction, it would not proceed to exercise it, without first referring the matter to a committee of precedents. There were several cases on the subject, but he would not then go into them, as he thought there was but one in which the House interfered with a return to which the sheriff was no party. There was, however, one case which bore a strong analogy to the present: it was that of the borough of Liskeard. There the party to whom the precept was issued by the sheriff made a regular return, and another return was made by other parties. The one return was under the regular seal of the corporation, while the other was without that requisite, and under the seals of parties to whom no precept was issued. There could be no doubt of the irregularity of the latter return, but still he was of opinion, that to interfere in the manner required by the hon. mover, in the present instance, would be improper, and the more so, because it could be decided by an election petition. It could not be done without the examination of evidence at the bar of the House; and it would be unusual and inconvenient to examine and cross-examine a number of persons at that bar. By the election laws there was a committee expressly appointed to try the merits of election petitions and returns. In the case of the city of Westminster, in 1784, the high bailiff made a return, not of certain persons to sit in that House, but that certain candidates had such and such a number of voles. Against that return Mr. Fox petitioned, and the House decided, that they could take no cognizance of it, because they could only come to a decision upon a return, but in that case there was no return at all. The House there felt a difficulty as to how it should act, and an act was immediately passed, giving the House power to decide on petitions in cases where there had been no return. There were no grounds upon which the House could proceed to do what was required of them. There were a number of facts no doubt stated; but it would be much better to refer the case to an election committee, which had power to examine witnesses upon oath. In that case the House, if there were any breach of duty, either on the part of the sheriff, the returning officer, or the clerk of the Crown, could visit it upon the party offending, or the aggrieved party might have his remedy by action, against whoever was in fault. The House ought certainly, as far as possible, to discourage double returns; because, of the two persons returned neither could act, and the place which they both sought to represent was literally without a representative so long as the case was undecided. For these reasons, he must object to the motion, and he entreated the House to pause before they consented to a proceeding which might form a precedent capable of leading to considerable mischief.

Mr. Lockhart

was not disposed to concur fully with the hon. and learned mover, although he certainly had not heard anything from the right hon. gentleman to affect his statement. He thought the House ought to exercise its utmost vigilance to guard against fictitious returns. Suppose, for instance, that in some of the boroughs or popular places of England, where persons voted by scot and lot, some person on the part of the scot and lot voters assumed to officiate as the returning officer, and that his return was forwarded to the sheriff, and accompanied the writ to the clerk of the Crown's office; great difficulty might arise from setting aside such a return. He, therefore, thought it necessary to adopt some measure to provide against the inconvenience that might arise from undue returns in such a case, or in a case similar to the present. When it was considered what expense arose from prosecuting petitions in cases of controverted elections, every precaution should be taken to prevent fictitious returns. He would support a motion that went to effect such an object.

Mr. Brougham

differed entirely from the right hon. gentleman in the observation, that an acquiescence in the present motion would infringe upon the Grenville act. The right hon. gentleman was not more disposed than he himself was, to bestow hearty commendation upon that act, than which no one more wise or virtuous had ever been framed by that or any other assembly. For what was the object of that act? It was to make a voluntary surrender, on the part of this branch of the legislature, of a jurisdiction which it found itself not capable of wisely and impartially exercising. So far, therefore, as the Grenville act went to take from that House, in its collective capacity, the right of determining upon cases of controverted elections, and to refer such cases to a more satisfactory tribunal, it had his approval. But this provision for a competent tribunal to decide upon such cases, did not go to take away from parliament the right and power of self-defence and protection, in the event of circumstances totally unconnected with those under which that act was originally passed. Did his hon. and learned friend propose, that that act should, in this particular case, be infringed on, or did he propose that inquiry and examination should be abandoned, where investigation could be attended with advantage? No such thing. There was here no necessity for such inquiry; for the decision was to be formed on an inspection of the returns themselves. They were both before them. It was unnecessary to examine into the details of the election; for there were documents before the House which, without reference to such details, would enable them to come to a decision. Here were two returns. In one, the indenture was annexed to the writ by the sheriff; in the other, it was not. In the one all the necessary forms were complied with; in the other, they were not. The question for the House to determine was, which of these returns the House should adopt? Witnesses were not necessary. They had the evidence of their own senses to regulate them in the course most proper to pursue. The case of the election of Liskeard had been adverted to; but, in his opinion, the cases were by no means analogous. Even in that case he had the high constitutional authority of Mr. Pitt to support him in the opinion, that that case did not fall within the Grenville act, and that the House went too far, when they referred it. to a committee, and neglected to decide upon it themselves immediately. But if that was a case which called for the interference of the House, how much more strongly did the present do so? For there was this difference between these cases, that in the case of Liskeard both returns were annexed to the writ, but in the present there was only one; and it was therefore more imperative on the House to come to a decision. The two cases were toto cælo different. The most satisfactory test of the validity of the return was, that of its being annexed to the writ. If such a practice as that now complained of was permitted, it would be competent for any person who might wish to prevent the properly elected members from sitting for any place for some months after the election, to send returns to the sheriff; who, for his own security, would probably forward them to the Crown-office, and thus the duly elected members would for a time be debarred from sitting. By such means, it would be competent for him, with two hundred pieces of paper forwarded to the sheriff, and by the sheriff transmitted to the Crown-office, to embarrass the returns of two hundred members; and he owned there were times in that House, when he would be glad that he could perform some operation that could effect such a reduction of members [a laugh]. However desirous be or any other person might be, to possess the power of making such fictitious returns, he thought that that capability in him, or in any other person, would very inadequately compensate for the mischief arising from making mock returns to that House. Among the many other disadvantages which the return of which the present motion complained was, that it was not made until four days after the correct return. The motion of his learned friend did not go to deprive any party of a right which they might suppose they were entitled to; it only went to declare which of the returns, upon the evidence of the returns themselves, was the one that that House ought to sanction and approve of. It did not deprive any party of the opportunity of petitioning against it, or of adopting any ulterior measure they might think proper.

Mr. Huskisson

said, that nothing was further from his intention than to take any part in this discussion, nor was he aware of its nature until he had entered the House; but having been concerned in the Liskeard case, he felt it necessary to say a few words, in reference to the proceedings on that occasion. He was proposed as a candidate, and a majority of votes tendered for him. For the other candidates, votes were also tendered, many of which were rejected. The agent of the other party procured a piece of parchment, to which he obtained the signatures of several persons who were rejected voters, and that parchment was received by the under sheriff, and by him attached to the precept. It was contended in the House, that it was a case not necessary to be referred to an election committee, and the general consideration of it was as it had been represented by the learned gentleman. What the circumstances which accompanied that case had to do with the present question, was for the House to determine. There was no double return. There was no return at all, or any thing partaking of that character. The distinction between it and the present case was, that the matter was then determined by a simple inspection of the document; but here there were two returns; each of them pretending to be a return. It appeared to him that this case could not, like the former, be decided by a simple inspection of the returns. It was not competent for him to say how far the clerk of the Crown was, in the present case, in fault, but he was certain, that officer would be able satisfactorily to account for his conduct. Whether the question was similar to the former, was for the House to decide. All he knew was, that he had been, in that instance, kept for some time out of his seat.

Mr. Abercromby

wished to explain that nothing could be taken as a return to the king's writ, except the return made by the sheriff to the Crown-office, and by the officer of the Crown to the House. There was the book on the table, stating that one return was annexed to the precept, and annexed by the sheriff to the writ; and also stating, that the other return was not annexed to the precept or to the writ, as well as that it was not regularly received, in point of time. From the manner in which the entry was made no further evidence was necessary for the House to decide the question.

Mr. Wynn

said, he had never contended that any return should be received by the House, except such as had been made through the sheriff; nor did he think the House would treat that as a return which had not been regularly annexed to the writ. He only contended, that it would not be safe for the House to decide at once without any inquiry.

Mr. Horace Twiss

thought the House ought to decide from the documents before them. If they went out of those documents, they would travel out of the record.

Mr. Carter

thought the House had no power to alter the return made by the sheriff, except it was decided by a competent tribunal that he had acted corruptly or illegally. He thought, therefore, that the book on their table was quite sufficient to decide the case. The second return, it was clear, was never mentioned as a return by the sheriff himself.

Mr. D. Gilbert

thought the whole question was, whether the second return could be called a legal return. In his opinion, it was no return at all, though he did not think that any blame was attributable to the sheriff.

Mr. Secretary Canning

said, he must make a confession, and take to himself whatever shame attached to it; namely, that he was ignorant of the course which ought to be pursued in this case, and if called on to vote, he must oppose the motion; because, in his present state of information on the subject, he was unwilling to assent to a vote which would decide it all at once and for ever. He was not prepared to go the whole length with the hon. and learned gentleman in saying that want of annexation to the writ constituted a nullity. If that were so, undoubtedly the learned gentleman's case would be a very strong one. However, as it would be better to decide by precedents, and as this would decide future cases, he would suggest the propriety of adjourning the question for further discussion, when they would come better prepared to give it that attention which its importance required. He had at first thought that it would be better to call the clerk of the Crown to the bar, to give explanation, if necessary; but on consideration, bethought, that might be deciding the case at one side. He would move, that the debate be adjourned to Wednesday, and that the clerk of the Crown be ordered to be in attendance.— Agreed to.