§ On the motion of Mr. Abercromby, the order of the day was read for resuming the adjourned debate, on the motion made on the 24th instant, "That the Indenture by which James Adam Gordon and James Mackillop, esquires, were returned to serve for the borough of Tregony be taken off the file,"
Mr. Stuart Wortleysaid, that he held the present question to be of such serious consequence, that he could not allow it to pass without offering a few words to the consideration of the House. The present occasion brought to his memory the words of a once distinguished member of that House, Mr. Grenville, who had declared, that he looked upon every case of contested election, brought before the House of Commons, as a case of the utmost importance, in which the property and birth right of every subject of the realm were at stake, and in which it, therefore, behoved the House to act with the greatest caution. If he entertained this feeling upon all cases of election, he entertained it more strongly than ever in this particular instance, where the House was going to pass a judgment which would form a precedent in one of the most important parts of its jurisdiction. He was, therefore, much obliged to the hon. and learned gentleman who had brought the subject before the notice of the House, for the manner in which he had done so. At the time when the hon. and learned gentleman first brought it forward, he thought his argument particularly clear and convincing. In the interval which had elapsed between that time and the present, he had taken great pains to inform his mind upon the subject; and, though he still hoped that the House would assent to the proposition which the hon. and learned member had made to it, he did not think that there was so clear a case as to make it necessary to take proceedings against any other parties. The hon. gentleman then proceeded to review the points in which he considered the last return to be informal, and cited a great many cases on the subject, which 179 were so imperfectly heard in the gallery, that we cannot pretend to give a correct report of them.
Mr. Secretary Peelsaid, he could not offer his opinion upon this important subject without first expressing the great pleasure which he felt in finding that a subject so dry and tedious had attracted the attention of the hon. gentleman who had just sat down. The talent and industry, of which the hon. gentleman had just given the House so striking a specimen, would, he had no doubt, be productive of great advantage to their discussions whenever the hon. gentleman should apply himself to a subject which admitted at once of research and display. He did not regret the time which the House had taken to come to a decision on this question; because it was one of great importance, and therefore, required mature deliberation. When it was first presented to their notice, he thought that the latter return could not be considered a valid return; and the consideration which he had since given to it, had satisfied him of the correctness of that opinion, and of the propriety of ordering that the indenture containing it should be taken off the file. He contended, that to follow any other course would be to furnish a precedent fraught with danger. The House was aware that in all election returns, a great responsibility was imposed on the sheriffs of counties. They were required to use their best discretion; the House being ready to give them every indulgence in cases where they used it honestly but erroneously, and to punish them whenever they used it partially and improperly. Now, the sure way for a sheriff to escape from a responsibility to which he ought to be liable was, to send up, besides the regular return annexed to the writ, another paper, not annexed to it, received from some other person than the regular returning officer, and then to leave the House to decide which of the returns was the proper return. He maintained, that the sheriff was bound, in all cases, to make either a single return or a double return to the writ, and no other. He was not prepared to say whether the sheriff might not make two returns annexed to the writ. It was, fortunately unnecessary to decide that question in this particular case, as the sheriff had declined to do so: and such being the case, he thought that the House was 180 bound to decide, that only one return had been made to the writ, and that the other indenture was invalid and of no effect. In the present case, the under-sheriff had not directed his writ to the mayor of Tregony. A doubt existed as to the validity of the claims of two different parties to that office. The under-sheriff selected one of them as returning officer: from that person he received the precept back again, with an indenture attached to it, and he returned that indenture, attached to the writ, to the Crown-office. The under-sheriff considered the return so made to be the proper return, and he (Mr. Peel) contended that the House ought to do the same. He attached no importance to the certificate which was received on a subsequent day. Indeed, he would not enter into that part of the question, but would treat the return as a single return, and would not examine whether the sheriff acted properly or not. If there was a dispute between two officers, as to which was the proper returning officer, it must be decided by the sheriff; and there might be cases in which it would be wiser for him to make a double than a single return. It was unnecessary to enter into an investigation of the precedents which had been quoted: for, in his opinion, none of them were at all applicable to the present case. The question was to be decided by common sense, and that due regard to the interests of justice which was felt by every man in that House. The safest plan upon which the House could act, was to admit no other return than a single return or a double return, and not to allow a sheriff to steer an intermediate course between the two. On that account, he for one should support the motion, which considered the second indenture as invalid, and should leave the parties mentioned in it to their remedy. He doubted whether the prudent course would not be to call in the Clerk of the Crown, to receive from him the originals, of which the entries in the books were copies, and to form their opinions upon inspection of the documents. If no objection should be made to this proposition, he would beg leave to substitute for the motion then before the House a motion to that effect; and then, if the entries appeared to be correct, as he had no doubt they would, he would move, that the return attached to the writ should be considered as a single return.
§ Mr. Abercrombysaid, that if he were permitted to make one or two observations at this stage of the debate, they would, in all probability, save the time of the House from being unnecessarily wasted. The right hon. Secretary had rested the case on its proper grounds. The sheriff had a right to receive, or to reject, both returns made to him; but then he must annex them both to the writ, and must not venture upon any middle course. He had no difficulty in agreeing to the proposition of the right hon. gentleman; but he must say this on his own behalf, that the peculiar advantage of the course which he had suggested was, that, it did not strike at the Grenville act, but was content with the evidence upon the table, which was in its very nature conclusive. If it should be the pleasure of the House to call in the clerk of the Crown to produce the original returns, and if that measure, on their being found to agree with the entries in the book, should be followed up by another motion, acceding substantially to that which he had himself brought forward, he could have no objection to urge against such a mode of proceeding.
Mr. Secretary Peelsaid, that if the original documents and the entries agreed, he should certainly follow up his present motion by another for taking off the file the second indenture.
§ Mr. Wynnsaid, he was anxious to explain how far he went along with the hon. and learned gentleman, and how far he differed from him on this important question. He put out of the way all observations on the manner of executing the return—on its being executed by the deputy mayor, and on its being executed by a different person from that to whom the precept was directed, because, if there was any validity in those observations, they ought to be received in the shape of a petition. The hon. gentleman who had done himself so much credit that evening by the research which he had displayed on the present abstract question, had adverted to a resolution of the House in which it was stated, that the House would look to the substance, and not to the form, of a return. Now, he would say at once, that, in the present instance, he did not think it necessary that the return should be annexed to the writ. It was true that the statute required that the returns for counties should be attached to the writ, but it said nothing of a similar nature with 182 regard to the returns for boroughs. Indeed, the constant practice in boroughs was quite different. If it were not so, there never could be a double return in them: for, supposing a dispute to exist as to who was the proper returning officer, one of the claimants to the situation would receive the precept, and the other would not. The one who received it would annex a return to the precept, and the sheriff on receiving it would annex that return to his writ. The sheriff, however, when he had a doubt as to who was the proper returning officer, had a right to receive a return from the different claimants for the situation, and to attach both returns to his writ. In the year 1640, when this subject underwent considerable discussion, there was a distinct proposal made to the House that returns coming through the hands of the sheriff should have the preference over those coming through the hands of individuals, and that the members returned by the sheriff should sit as members, until the House came to a decision on their right to continue to do so. That proposition, however, did not meet with the approval of the House. He could state other reasons to prove that it was not necessary that the returns should be annexed to the writ. In the present case, he thought it material to learn whether it was the intention of the sheriff to make a double return, or merely to place the second return in deposit, in case the parties named in it should think right to call for it. On that account he thought it necessary to read the certificate with which the sheriff had presented it to the clerk of the Crown. If it appeared that the sheriff had received on one day an indenture which he had attached to his writ, and then that he had received another indenture which he had not attached to it, he should think that the sheriff had given the preference to the first indenture. He should, therefore, consider the return as a single return, and should presume that the intention of the sheriff in sending up the other return, was merely to have it forthcoming in case the parties should call for it. In acting thus, he thought that the sheriff had acted indiscreetly; for he ought either to have made a single return, or to have annexed both returns to the writ. He did not see the danger which some gentlemen anticipated from having a number of similar returns. Undoubtedly it was in the power of every sheriff to 183 neglect his duty and to make such returns; but then the House possessed the power of punishing him for such misconduct, when it appeared to arise from improper motives. He was of opinion that the clerk of the Crown might have rejected the latter return, or might have made a special return to the House upon it, stating the circumstances under which he had received it, and asking for instructions how he was to act with it. Without intending to cast out any imputations upon that officer, he must say that his present entry in the book was indiscreet. In conclusion, he deemed it necessary that the House should be in possession of the original returns, and of the certificate of the sheriff; and he should therefore have great pleasure in supporting the proposition of his right hon. friend.
Mr. Peelobserved, that his intention in calling in the clerk of the Crown, was to demand from him the original returns, and not to ask him any question. The conduct of that officer had not been impugned, and therefore did not require any explanation. He should merely ask him if the returns he produced were the original returns, and he would then leave the House to exercise its own discretion.
§ Mr. Abercrombyperfectly agreed with the right hon. Secretary as to the course to be pursued when the clerk of the Crown was called in. He was happy, for the sake of individuals sitting in that House, as well as for the sheriff and the clerk of the Crown, that the House had come to a clear and decided expression of opinion on this question. He had no reason to complain of the conduct of Mr. Wilbraham, the deputy clerk of the Crown, and, under all the circumstances, as he saw no necessity for proceeding further, he would, with the permission of the House, withdraw his motion.
The clerk of the Crown, being then called in, produced the writ, directed to the sheriff of the county of Cornwall, for holding the late elections in the said county, with an indenture, whereby Stephen Lushington, LL. D., and James Brougham, esq. were returned as burgesses to serve for the borough of Tregony—annexed thereunto. He also produced another indenture, certified by the said sheriff to have been received at the office of his under sheriff, but which last mentioned indenture, whereby it appeared that James Adam Gordon, esq. and James 184 Mackillop, esq. were returned as burgesses to serve for the said borough of Tregony—was not annexed to the writ. Mr. Secretary Peel then moved, "That the return for the borough of Tregony is not a double return;" which was agreed to. And it was ordered, "That the indenture whereby James Adam Gordon, and John Mackillop, esquires, are returned for the borough of Tregony, be taken off the file."