LEICESTER BOROUGH ELECTION. (Hansard, 1 April 1835)

§ Mr. Warburton
opposed the Motion to discharge the Order for taking the Petition into consideration; and applying himself particularly to the question of the power of the House to grant the indulgence already conceded, he observed that he considered that the point of expediency had been disposed of on the 25th ult. The power of the House depended mainly on two passages in the Act: one at the close of the 5th, and the other at the end of the 7th clause. The first provided, among other things, that the name of the surety should not be changed more than once; and the House had already resolved that the correction of a clerical error, in the substitution of Thomas for Samuel Stokes, was not such a change of name as was contemplated by the Act. The passage at the end of the 7th clause, required that seven clear days should be given for inquiry into the validity of the sureties; but the hon. Member contended, that this provision applied to the names of the sureties, delivered in on the day when the petition was presented, or on the day after. He admitted, that this was construing the Act strictly, but insisted that in a case of this kind, where the merits were so decidedly in favour of the petitioner, the House ought to allow no latitude. The terms used in the proviso to the 7th clause, referred back to the 5th clause, and showed that it was to be interpreted with reference to it. He also argued that the examiners had gone beyond the line of their duty, as denned by the Act, in the Special Report they had made, upon which the present application was founded. The parties had had five days for inquiry into the circumstances of Mr. Thomas Stokes, of the parish of St. Mary, Leicester, hosier; but not a single day was actually necessary for the purpose, as he was perfectly well known 545 through the whole Borough as a man of great wealth and respectability, although Mr. Burbidge (the Town Clerk) professed, in his letter, to be in doubt whether he was the person intended. If Mr. Burbidge were called to the Bar to give evidence, he could not but say, that he well knew that the description given, applied to Mr. Thomas Stokes, of Welford-road, and to no other Thomas Stokes in Leicester. On the whole, he submitted that the House, having the power to grant the indulgence sought, and having granted it, ought not now to rescind its former vote.

§ Mr. Rolfe
said, that it was essential that hon. Members should know what they were going to vote upon; and from the conversation he had had with several hon. Gentlemen, he did not think they knew what was the question they had to decide. His own opinion was, when the application was made to alter the name of the surety, that it was the duty of the House not to grant the indulgence asked; but, supposing that he was right in his opinion, and the House was wrong in its decision, that was no reason why the present Motion should be agreed to. He called on his hon. and learned Friends, the Attorney and Solicitor-General, to state their opinion to the House, whether it had the power to discharge the order. In his own opinion of the Act, the House had not, under the terms, the power to discharge the order for taking the Leicester petition into consideration.

§ Mr. Williams Wynn
said, he could not agree with the hon. and learned Member, that the House was in any respect bound by its former decision. If that decision was directly in the teeth, and in breach of an Act of Parliament, as it assuredly was, the Resolution of the House was an absolute nullity. The change of name from Samuel to Thomas, was just as much a change of name as if they changed the name of Stokes. He would not go into the question of expediency; the House was sitting judicially, and ought to consider itself bound by the fair construction of the Act. He would only ask, would a Court of Law hold that this recognisance had been properly entered into according to the provisions of the Act of Parliament, and give judgment to the party suing upon it?

§ The Attorney-General
begged to be permitted to address a few words, in reply to the challenge of his hon. and learned Friend, who had used the expression that all the arguments were in favour of the prayer of the petitioners. He was pre- 546 pared to state that not only the arguments, but Parliamentary practice, was against them. Aware of the responsibility he should incur by the assertion, he was satisfied the recognisances were invalid, and hence he would infer it was the duty of the House to discharge the order.

§ Mr. Aglionby
conceived that the argument of his hon. and learned Friend upon the construction that ought to be put upon the 16th section, had been unanswered, even by the hon. and learned Attorney-General, and was, in fact, unanswerable. Looking at the question, as to the equity of the Statute, he found his opinion strengthened, for no injury had been sustained, nor any person deceived by the change of the name of the surety.

§ The Solicitor-General
said, the question the House had to dispose of was, in strictness, this—whether the House had power to discharge an order to hear the petition, in consequence of the recognisances required having been found not to be entertained within the time, or according to the form prescribed by the particular section of the Statute. He begged to correct the error of his hon. and learned Friend opposite; the question did not turn, as he stated, upon the 16th section, but upon the 5th section of the Act of Parliament. According to which it would be found that the recognisance in this case, had not been properly entered. It seemed to him that the examiners had renewed the recognisance, in order to enable the House to consider the question itself, and draw it within the jurisdiction of the House. He would now appeal with confidence to the Chair whether its opinion was not in conformity with his own as to the point of law, whether these recognisances were properly entered?

§ The Speaker
said, he considered it to be his duty to state the course he had taken with respect to these recognisances, and the grounds on which he had acted. It was true that the party, before he received the recognisances, did serve a notice stating that he had not the power to receive them. The question he had then to decide was, how he should proceed under such circumstances? His object was, first, to do no injury to either party; and secondly, not to take upon himself the responsibility of putting a construction upon an order of the House, which the House itself had the power of construing and revising. If he had not received the recognisances, the necessary effect must have been that the petition must have been at an end. On 547 receiving them, therefore, he considered the question must be brought under the review of the House. Undoubtedly, in what he had done he should have defeated his own purpose, if what was contended for by the hon. and learned Member for Falraouth was true, that the House was not now in a situation to consider whether the recognisances had been properly entered into or not. The view he took of it was, that if the petitioners had not applied to the House for assistance, by allowing them to substitute Thomas for Samuel, the clear result of that, or of refusing the application, must have been that they would not have entered into the recognisances at all; the case would have been so reported to him, and he should have so reported it to the House. The indulgence having been given by the House, and the proceedings having gone on, the two recognisances, the manner in which they were entered into, and the whole of the proceedings were completely under the control and jurisdiction of the House, and in all respects subject to it, until the whole matter was finally concluded and settled by its judgment. He therefore, did not think that what the hon. and learned Member for Falmouth had stated introduced any obstacle.
The House then divided on the motion that the Order of the Day be discharged, for taking into consideration the petition against the return of the Leicester Borough Election: Ayes 216; Noes 200—Majority 16.