§ Mr. Gisborne
wished to call the attention of the House to a Petition, which he presented last night, from Mr. Joseph Parkes, the agent for the Petitioners, complaining of the Return in the Borough of Leicester Election. The Petitioner wished to be allowed to alter the name of one of the persons who had been given in as sureties. It appeared that when a gentleman who had been named in the first instance, declined to become surety, the agent was authorized to give in the name of Mr. Thomas Stokes, of Leicester, for that purpose, but that, by some clerical error, the name of Mr. Samuel Stokes was given in. He was not aware of this until yesterday morning, when he received a letter from Mr. Stone, the solicitor for the petitioner, against the sitting Members at Leicester, informing him of the error, and that it was then too late to give the usual notice of this change. The Act enabled the House to alter the name of the proposed securities once, but it stated that the time shall not be enlarged more than once, or for a longer period than thirty days. The name of the securities had been altered once, and the present was not an application for that purpose, but merely that leave might be given to rectify that which was little more than a clerical error. If the Motion was assented to, no injury would be inflicted on any party, nor was there the slightest ground for supposing that any injustice would be done. The House had consented to a much more important alteration the other night, in reference to the Ennis petition, by substituting the number six for five in the 269 address of one of the securities, and he did not see how they could refuse to listen to the prayer of the petition in the present case. The hon. Member concluded with moving that Mr. Parkes be called in to verify the allegations of the petition.
§ Mr. Williams Wynn
said, that the Motion of the hon. Member could not be assented to without violating the letter of the Act. It was directly contrary to that Act to let the name be altered a second time. With respect to the Ennis case, he would only observe, that it was not analogous to the present case, as then the only question was, whether parties should be allowed to alter the number of a house, which number they were not under the necessity of inserting.
§ Mr. Warburton
said, that hon. Gentlemen on the other side gave two different interpretations to the same Act. The interpretation given in the first place was, that name meant person. Now, it was not in the present case wished to substitute one person for another, but one name for another name erroneously given to the same person. The House having decided that person was the proper interpretation of the word name, he contended that they had the power to make the required alteration.
§ Mr. Law
was of opinion, that the prayer of the petition contemplated, not only a breach of the Statute, but of the regulations of the House. The Statute said, that the name should not be changed more than once, and the name had been already changed. Then there was not sufficient time, for the 30th of the present month was the day by which the whole matter must be decided, and the House required seven days' notice even from the presentation of the petition, in order that the other party might have the opportunity of examining into the sufficiency of the sureties.
Sir Matthew While Ridley
contended that the case required only a common sense view to dispose of it properly. The first object of the House in such matters was, to do justice between the parties—in the first place, to the petitioners; and, secondly, to the sitting Member. He thought the Act would be in no respect violated by allowing the error, which was only a clerical error, to be corrected. The Statute, he admitted, would not allow the surety to be changed more than once, but it would allow of the Christian 270 name being altered, if the identity of the person was known to be the same.
§ Mr. Grote
said, that while the Act precluded the substitution of one person for another more than once, it did not preclude the correction of an error in the name ten times over, if the House thought fit. It did not appear to him that the Act objected to the change of the residence more than once.
Mr. Secretary Goulburn
said, the error was not to be considered merely a clerical error; because, if they granted the prayer of the petition, they would deprive the other party of the power intended to be given to him of inquiring into the sufficiency of the sureties. On the 20th of this month, notice was served on the sitting Members, that a person of the name of Samuel Stokes, of the parish of St. Mary, Leicester, was named a surety. The parties went to inquire for him; it was a large parish, and they could not find any such person. Then, on the 25th, came another notice, which told the parties that they had been looking after the wrong man, and that they should inquire after Thomas Stokes in the same parish. The consequence was, that the parties could not have the time to which they were entitled, viz. seven days, the 30th being the day on which the recognizance would be perfected.
§ The House divided: Ayes 147; Noes 101—Majority 46.
Mr. Joseph Parkes
was then called to the Bar; and having been sworn, was examined. He said that he was instructed, on the 20th of March, to substitute the name of Thomas Stokes for Matthew Babington. On the 20th of March he tended the affidavit of Thomas Stokes to the examiners, and delivered the name of Samuel Stokes to Mr. Rose. The mistake made of giving the name Samuel instead of Thomas, was an error on his part, and it was committed without the least intention of creating delay or difficulty. In reply to the Attorney-General, he said he had a knowledge of Leicester, and wag acquainted with only two persons there of the name of Stokes, one Thomas and the other Benjamin. He had had no communication by letter with Thomas Stokes; the only communication with him was the receipt of his affidavit. He first applied to change the name of Babington to Stokes on the 20th of March. He communicated the error yesterday morn- 271 ing to the opposite party. He was not aware whether they had heard it before. He had lodged the proper notice, but still he thought it right to inform the House of the error. There was yet time to send down to Leicester. He had served the formal notice of the mistake and substitution yesterday about one o'clock, on the opposite party. The answer from them acknowledging the receipt of the notice, was dated half-past three o'clock.
§ The witness having withdrawn,
§ Mr. Gisborne moved that the mistake in the name of one of the sureties being caused by a clerical error, the name of Thomas be substituted for Samuel.
The Chancellor of the Exchequer
said, the question lay within the narrowest possible compass. If the House passed a law, it was the duty of the House, as it was the duty of the other subjects of his Majesty, to set the example of conforming to the laws. The enactment provided that seven clear days should intervene between the day on which the names of the sureties should be given in, and entered in a book, and the day on which the sufficiency of the sureties was to be examined into. The question then was, whether the name of Samuel having been given in, the House had afterwards power to sanction the substitution of that of Thomas—would that be a compliance with the Act? A name had been given in seven days before completing the surety—would they, by substituting another name, comply with the rule?
§ Mr. Harvey
did not agree in the terms of the distinction taken by the right hon. Baronet (the Chancellor of the Exchequer). The substitution was merely the name of Thomas for Samuel; it was the same surety, but an error merely having been committed, they could allow the parties to correct the error.
§ The Attorney-General
said, if the House had the power of granting the Motion for the alteration of the name in the case of a mistake, it ought to grant it. He fully admitted that without any reserve; but it was another matter when the mistake might make it too late for the sitting Member to write into the country on the subject of the inquiry into the sureties' sufficiency. He thought the time had gone by. He was reluctant to address the House on the subject, but as it was peculiarly within his province as a lawyer, he could not avoid it. He would appeal 272 to Mr. Speaker, and, confident of his impartiality, put the question in his hands; if he thought it a case to extend the indulgence of the House to, it ought to be granted.
§ The Speaker
said, if it were the pleasure of the House, he would give it his opinion. ["Divide," "Chair"]. He would give his opinion; but it would only be that of an individual in that House. The question, being the construction of an Act of Parliament, it was undoubtedly for the House to decide it. It was clear, from the Act, that seven days' notice were required of any change being made; but the witness at the Bar stated, that the House having enlarged the time, he did not consider it necessary for him to give seven days' notice. The question then, was, how far it might be consistent with the usage of the House, to dispense with such notice? He was not able, from his own experience, to state any case in which it had done so; and, having applied to those who were much more conversant with the subject, he could not find that they recollected any instance in which such a course had been pursued.
§ Lord Sandon,
amidst cries of "Question" and "Divide," said, if they adopted the principle contended for by the Motion, it was indifferent for how long it was. He would appeal to the other side, whether they were acting honestly, in dealing with this question in the manner they were doing.
§ Mr. Robinson
never saw such proceedings on a question where there ought to be the absence of all party feeling, and it would be recollected that the other side of the House (the Opposition) cheered when the witness was under examination at the Bar. He thought the House had not power to dispense with the rule, although it was a mere laches committed—the Act was clear, and they were bound by it.
§ Mr. Rolfe
felt unpleasantly situated when he thought he was bound to vote against the party he usually voted with, and it was a question how far, when acting with a political party as a body, he could be permitted to vote against them on questions like the present. He agreed with the Attorney-General, that the question was, whether the House had authority to interfere under the Act. It was impossible to enlarge the time beyond Monday next; the rule must apply, and there would be no time if the place were Cork, or any other distant town.
§ Mr. Richards
had voted with the majority under the impression that it was for the correction of a mere clerical error, but he was now bound to say he had found out he had, by so doing, acted erroneously.
Lord John Russell
differed from his hon. and learned Friend, the Attorney-General, on the construction of the Act, as to the alteration of the name, and he thought the words of the Act did not preclude them from making such an alteration as was then proposed. In this case, the name of the surety had been given; they did not propose to change it, but merely to correct a clerical error committed by altering the name of the same person.
§ Lord Francis Egerton
amidst cries of "Question," said, that though, as had been observed, they did not propose to substitute another person, but another name, still the effect would be the same to the parties interested.
§ Mr. Warburton
said, in case there had been no name of a surety delivered in till that day, he should have agreed with those who opposed the Motion, because seven days could not then elapse. But the name of the surety had been given as far back as the 20th or 21st instant.
said, the hon. Member for Bridport (Mr. Warburton) had stated the case truly. The name of Samuel Stokes had been given in from the 20th inst. and continued till yesterday. The sitting Member only knew that as the real name.
§ The House divided: Ayes 129; Noes 113—Majority 16.