HC Deb 20 May 1836 vol 33 cc1119-30
Mr. O'Connell

(who after having been ejected from Dublin by an Election Committee, had been returned for Kilkenny, and had this evening taken his seat,) presented a petition from certain electors of the city of Dublin, against the sitting Members for that city. He conceived the petition to come within the statute; but if any doubt arose upon the subject, he should be content that it should be printed, and that the opinion of the House should be taken upon it on the first day of sitting after the recess. He had looked carefully into all the authorities upon the point, and entertained no doubt whatever that the petition—the per sons by whom it was subscribed not having been parties in any way to the former petition—came within the statute, and, consequently, that it ought to be received.

Sir James Graham

thought that the House ought not to be called upon to discuss a question of so much importance without previous notice. The case, how ever, arising out of the present petition did not appear to him to be a new one. In the year 1834, the House determined upon a case in every respect strictly analogous with the present. In that case, on the very day on which the petition was presented, the House came to the decision that it could not be received—he alluded to the Monaghan case. In that case the original election petition was presented on the 5th of June. On the 2d of July the Committee was struck, and on the 30th of July the Committee reported that Colonel Westenra was not duly elected, and that Edward Lucas, Esq., was duly elected, and ought to have been returned. This was strictly analogous with the Re port of the Dublin Election Committee. The House was aware that there was an annual classification of petitions of this nature; and, in that classification, a distinction was always drawn between those petitions which related only to the return of the candidate petitioned against, and those in which the affirmation was not only that the return of the sitting Member was undue, but that another candidate had been elected, and ought to have been returned. Under the Grenville Act there had been five or six cases in which time had been asked, consequent upon the Report of the Committee; but in all those cases, without any exception, the Report of the Committee had simply been that the return was undue. In no one case, where time had been granted, had the Committee reported, not only that the return was undue, but that the party petitioning was duly elected, and ought to have been returned. The only case which he found upon the Journals of the House of a petition ever being presented after the report of an Election Committee constituted under the Grenville Act, in which it was declared, not only that the one party was not duly elected, but that the other party was duly elected and ought to have been returned, was the case of Monaghan, to which he had already referred.

Mr. O'Connell

Will the right hon. Baronet allow me to interrupt him for one moment? A little explanation may, per haps, prevent further discussion at this time. I could not present this petition sooner than to-day. It was not prepared till within the last few days, and till to-day I have not been competent to present it. It was only on Monday last that the Re port of the Committee was made. I do not apply for time; I do not want it. I would have given notice of my intention to present the petition if the House had sat to-morrow, or even on Monday. But as this is the last day on which the House sits for nearly a fortnight, and as the day on which it next sits will be the last on which such a petition as the present could be received, I thought it better to lay it upon the Table this evening, in order that it might be printed prior to its being discussed when we re-assemble after the recess. I do not wish it to be prematurely discussed now. Having intimated to the House that such a petition is in existence. I should even be content to withdraw it for the present. But whenever it is discussed, I shall be perfectly prepared to show that it comes within the statute, that none of the cases alluded to by the right hon. Baronet apply to it, and that gross injustice will be done if it be not received and its prayer attended to.

Sir James Graham

did not wish to argue the question now, if the hon. and learned Member intended to withdraw the petition; but if it were proposed to suffer it to be upon the Table, it would be his duty to call the attention of the House to those circumstances which induced him to think that it ought not to be received. When the hon. and learned Member interrupted him, he was endeavouring to state to the House the grounds of the de- cision which was made in the case of the Monaghan petition. The present petition could be regarded in no other light than as virtually asking for the appointment of another Committee under the Grenville Act, to re-try the merits of the last Dublin election. But under the Grenville Act, when an election committee, duly appointed, had come to a decision as to the return of the Member, no provision what ever was made for any appeal. He had stated, that since the passing of that Act, five or six instances had occurred of petitions being presented, after the reports of election committees had been made, asking for the fourteen days within which, by the rule of the House, petitions complaining of the return of any sitting Member must be laid upon the Table. But in each of those five or six cases, the report of the Committee had not affirmed the right of the party petitioning to be re turned, but had only adjudicated upon the simple point of the propriety or impropriety of the return. The case of Monaghan was the only one in which a petition had been presented after an election committee had declared, that one Member was not duly elected, and that another was duly elected, and ought to have been returned. And how was that petition received? On referring to the Journals of the House, he found on the 13th of August, 1834, an entry to this effect:— "The petition of certain electors of the county of Monaghan, complaining of the election and return of Edward Lucas, Esq., being presented, the entry on the Journals of the 30th of July last, of the Report of the Monaghan Election Committee was read, to this effect: that the Hon. Henry R. Westenra was not duly elected a knight to serve in Parliament for the county of Monaghan; that Edward Lucas, Esq., was duly elected a knight, and ought to have been returned for the said county." A debate ensued, which ended by the House directing the petition to be withdrawn. This was the last decision which the House had come to upon a matter of this kind, and, believing the decision to be most correct, he thought that a similar course ought to be adopted on the present occasion. Seeing that the cases of Monaghan and Dublin were strictly analogous to each other, he thought that the precedent laid down in the one ought to be rigidly adhered to in the other. With that view he should now move, that the Report of the Dublin Election Committee, entered upon the Journals of the House on Monday last, be now read.

The Chancellor of the Exchequer

rose to call the attention of the House to the position in which the question now stood. If there were any difficulty upon the subject he thought it arose out of the circum stance of the petition being presented on the last day of the House sitting prior to the recess. If, instead of adjourning for ten days, the House were only about to adjourn till Monday next, there would, he apprehended, be no doubt as to the course that ought to be pursued, namely, to print the petition and take the discussion upon it on Monday. He agreed with his right hon. Friend (Sir James Graham) that there was no subject on which it behoved the House to act with more jealous caution than on questions of this description. As some difficulty seemed to have arisen on the present occasion, what he (the Chancellor of the Exchequer) wished to do was, to suggest that which appeared to him to be the fair and just mode of dealing with the subject, namely, to allow the petition to be upon the table, and to adjourn the discussion upon it until the first day of the House sitting after the recess. Meanwhile hon. Gentlemen would have an opportunity of consulting all the precedents upon the subject. Unprepared as he was at that moment, he, for one, should be very sorry to be called upon to pronounce any decision as to the ultimate course that the House ought to adopt. Of the contents of the petition he knew nothing. He was not aware of the existence of such a petition, and consequently was wholly unprepared for its presentation on that occasion. Therefore, if there were now any question before the House, he should move as an amendment that the debate be adjourned till the first day after the recess.

Sir George Clerk

understood, that this was a petition in the nature of an election petition. It was a petition complaining of an undue return, declaring that persons pronounced, by a Committee constituted according to the provisions of the Grenville Act, to have been duly returned, were not duly returned. If it were an election petition, he apprehended that no question could arise as to whether it should be presented or whether it should be allowed to be on the table. He did not know what they could gain by postponing the discussion. They could not be called upon to judge from the allegations of the petition, whether it were de serving of attention or not, because the question had already been tried before a competent tribunal, by which a decision that ought to be final had been pronounced. There was no difference between the pre sent case and that of the case of Monaghan. It was proper, therefore, that the same course should be pursued.

Mr. O'Connell

said, there was no argument whatever in the assertion that this petition could not be received because it was an election petition. Undoubtedly the question was, whether it could be received, and that question he was quite content should be deliberately discussed and decided. He did not rise to oppose the motion that the petition be now laid on the table and printed, and the debate adjourned till the first day after the recess. His object in rising was to reply to some of the observations that had fallen from the right hon. Baronet (Sir James Graham) opposite. He was prepared to meet the right hon. Baronet foot to foot. Here was a case where it was impossible to pre sent a petition sooner. Here, too, was a case which, in other respects, differed essentially from those to which the right hon. Baronet had referred. In this instance the candidates—the Gentlemen who now sat for the city of Dublin—were not parties to the original election petition; and the words of the statute were special, that the decision of a Committee appointed under the Grenville Act should not be final unless it were a decision between the par ties. He prayed the House to see what a monstrous thing it was to resist the course he proposed to take. The Report of the Dublin Election Committee, presented on Monday last, contained the following resotion:—"The Committee feel it to be their duty especially to report to the House that eight persons, viz., Matthew Nadden, George Osborn, Patrick Finucane, Oliver Richards, John Forsyth, Charles Dempsey, James Baldwin, and Andrew Hutchinson, were struck off the poll as having voted under a corrupt expectation, and having subsequently received money; but the Committee are unanimously of opinion that there is no evidence that Messrs. West and Hamilton, for whom they voted, were either directly or in directly implicated in such corrupt practices." [Hear.] He admired that cheer; but Mould the hon. Gentlemen who were so vociferous listen to the reason why there was no evidence to implicate Messrs. West and Hamilton? Because the Committee, when it opened a commission to go to Dublin for the purpose of taking evidence, gave directions to that commission, limiting them to particular points on which only they were to take evidence. He held in his hand a copy of the limitations imposed upon the commission. It was a question whether any recriminatory evidence was to be admitted against the un successful candidates. Upon that point the direction given to the commission was, that no recriminatory evidence should be admitted against the unsuccessful candidates except so far as regarded the disqualification of votes, the unsuccessful candidates not being parties before the Committee. That being the case, the un successful candidates not being parties, not being before the Committee at all, the Committee might well say, that there was no evidence against them. The question, then, was, whether under such circumstances—whether, according to a correct construction of the Grenville Act—the decision of the Election Committee was one that ought to be held as positively final? The words of the statute were, that the decision of the Committee should be "final between the parties to all intents and purposes." Now he assured the House that in this instance the parties seated by the decision of the Committee were not parties to the petition, that they were so far from being parties that the Committee expressly excluded any evidence of a recriminatory character against them. What did he claim for the present petitioners? Nothing more than that their petition should be printed, and that the contents of it should be deliberately considered on the first day of the re-assembling of the House after the recess. The question that arose out of the present case was one that had never been deter mined. It was out of the statute. The I words of the statute were precise. They stated distinctly and precisely that the Report of the Committee should be final and conclusive "between the parties." Messrs. West and Hamilton were not par ties—nothing was heard against them— yet the Committee did not pronounce them guiltless, but returned only the Scotch verdict of "not proven." He was prepared to adopt the course suggested by the Chancellor of the Exchequer if the House thought fit to adopt it. All that he required was, that in this case, where it was demonstrated that bribery existed —bribery which the former Committee did not try, because those on whose side it was committed were not parties to the petition—there should be allowed an opportunity of trying it now.

Mr. George F. Young

had paused much to consider whether it were right or not on his part in that stage of the proceedings to offer one word to the House upon the subject. He believed that in doing so he should he departing from that line of cautious prudence to which, perhaps it might be most wise in him strictly to ad here; but, at the same time, rather than run the risk of losing any portion of that character for candour and sincerity which, he trusted, he possessed as well within the walls of the House as out of it, he felt bound to state that, reserving for the pre sent all consideration of the propriety or impropriety of the views which influenced the Committee in restricting the commission as to the evidence to be taken on the question of bribery on the side of the un successful candidates—reserving himself upon that point, he felt, that he was bound in candour to say, that the Committee, having precluded the Commissioners from taking evidence upon a point upon which they conceived it was not competent to themselves to enter, came to their conclusion under the fullest impression that if there were any ground for the allegation of bribery against the Members who were seated in consequence of their Report, it would be open to the opposite party to try that question by presenting a petition to the House. He knew not whether he had acted properly or not in making that declaration. He had not had the opportunity of consulting more than one of his colleagues upon the subject, but he believed, that what he had stated was in strict accordance with the feelings and impressions of all the Members of the Committee. Under these circumstances he would not be a party to any attempt to exclude any parties who came before the House with an allegation of bribery against the sitting Members from giving such proof as it was in their power to offer.

Mr. Williams Wynn

regretted, that the House should enter into any discussion upon the merits of this question. Questions of disputed election were by law referred to a Committee, the decision of which was directed to be final, and if he (Mr. Wynn) were right, if the House of Commons had been right for the sixty-six years which had elapsed since the first passing of the Grenville Act, if the House had been right in all its former determinations upon questions of this description, it had not the power of entertaining any question whatever upon the determination of an election Committee. The direction of the Act was, that "the decision of the Committee shall be final to all intents and purposes whatever." The hon. and learned Member for Kilkenny (Mr. O'Connell) had referred to the course taken in the case of the Canterbury election petition as if it afforded a precedent for that which he now proposed. But if the hon. and learned Member had taken the trouble to look into that case he would see, that it had no analogy whatever to the present. The report of the Canterbury Election Committee was, that the sitting Members were not duly returned, and that the petitioner was duly returned; and that was followed by a motion on the opposite side, to be at liberty to question, not the return, but the election, upon which the Committee had not reported. In so doing the Committee had acted in perfect accordance with repeated precedents, in which, when it appeared that clearly on the face of the poll the petitioner was entitled to be re turned, they reported that fact without going into the merits of the election, leaving it open to the electors to petition, if they thought fit, within fourteen days, on the merit of the election. He (Mr. Wynn) happened perhaps to be more sensible of the full weight of the precedent upon this point, because one like it was connected with his own family. It was to be found in the case of the Denbigh election in the year 1742. The case was this: there appeared on the face of the poll to be 1,370 votes in favour of an ancestor of his, and between 800 and 900 in favour of Mr. Myddleton. Mr. Myddleton's brother was sheriff, and returned him in the face of the large majority on the poll. The House determined to set this right, and after going into an inquiry upon the point, it declared that the petitioner (his ancestor) ought to be returned, but at the same time gave fourteen days to the electors, or any other person, to question the merits of the election. A similar case occurred in the election for the county of Bedford, in 1784, when a contest took place between Mr. St. John and Lord Onslow. In that case the committee determined that the petitioner had a right to be returned, but allowed the additional time to question the merits of the election. But in the present instance the report of the committee was, that the petitioners were duly elected, and ought to have been returned. No petition, therefore, could be presented or be taken into consideration but for the purpose of reversing that decision. But, said the hon. and learned Gentleman, "these are not parties before the committee; the electors had not the power of questioning the election of Messrs. West and Hamilton; the sitting Members had that power, but the electors had not, because Messrs. West and Hamilton were not parties." Till about seven years ago, it was perfectly true, that this apparent hardship was one to which the electors might be subject. Up to the year 1828, those who had voted for the sitting Member might, either in consequence of his death, or supposing him to act in collusion with the petitioner, and not bona fide to defend his seat—in either of these cases the electors were precluded, and might, without any fault or negligence of their own, be prevented from being represented by the persons whom they had chosen. But, in 1828, he himself had the honour of introducing an Act upon this subject, with the view of remedying that defect; and to enable the electors, in the case of any disputed return, to prevent the possibility of such a contingency as that which he had pointed out. For this purpose in one clause of that Bill it was declared that it should be lawful, "at any time within the space of fourteen days, for any person or persons claiming to have had a right to vote at the election, to petition the House of Commons, praying for a committee, as a party or parties, to defend such return, and to support the prayer of such petition, and such person or persons shall thereupon be admitted as a party or parties, together with the sitting Members, and shall be considered as such to all intents and purposes whatever." Now if the present petitioners had thought fit, in the first instance, to petition under that clause, they would have been admitted as joint parties to oppose the petition—they would have had the full right of recriminating, if they thought fit, whether the sitting- Member did or did not think it his duty so to do. He would merely refer to the fact that during a period of sixty-six years since the Grenville Act was passed, that House had never, for one moment, given countenance to the opportunity of questioning the decision of a select committee. It had held, that it should be, as it was provided for by the statute, absolutely final. If it were not, they would be re opening the decision of every election case that might come before the House. They would have parties coming forward and re trying every case which had been already determined upon, in the direct face of the words of an act of Parliament, and in the direct face of sixty-six years' practice. Therefore he would conclude by saying, that if he stood alone he would divide the House against this petition being allowed to be on the Table, or of being received by the House.

Dr. Lushington

did not rise to pronounce any opinion whether the petition ought to be received or not; but he had heard quite enough in the course of the present debate to satisfy his mind that it was a question of great importance, and ought not to be disposed of by the House without mature consideration. Whether this petition ought to be received or not depended upon the true construction of the Grenville Act, as stated by his right hon. Friend, upon reference also to that Act of Parliament which his right hon. Friend introduced, and upon reference to the whole train of decided cases during the last sixty-six years. Now, he must be a very bold Member of Parliament, and very regardless of the importance of this decision, who would rashly pronounce an opinion either one way or the other, with out an opportunity of considering what was the force of those enactments, and what the applicability of those decisions by which it was said this case ought to be ruled. He must be prepared to bear in mind not merely the whole of the Grenville Act, and the whole of the particulars of that important statute to which the right hon. Gentleman had referred, but he must be prepared also, without any notice of this petition, without any previous opportunity of informing his mind upon the subject, or, of comparing this case with the Monaghan or any other case, to come to a conclusion upon a most important question involving the validity of the seats of two Members of that House. In his judgment, he who pronounced an opinion in any way upon this case, without applying himself to the points he had mentioned, and without any consideration whatever beyond what the present debate afforded him to give to the question, did injustice to the parties. He was decidedly of that opinion, because he would venture to say perhaps he might make an exception in favour of the right hon. Gentleman, the Member for the county of Montgomery— that the great majority of the Members of that House were not acquainted with the purport of those statutes, nor of the decisions which bore upon the question. For them, therefore, to decide upon it without deliberating, without thinking, without examining, would be to run the risk of doing infinite injustice. He agreed to the position that this petition ought not to be received unless according to the statute and the law of Parliament. He agreed that in strictness the proper motion would be, not that the petition should he on the Table and be printed (although that might be the more convenient mode) but that this debate should be adjourned. By adopting that course, they would violate no law of Parliament, and would give an opportunity for due consideration, which would enable the House to do justice to the parties. He agreed further with his right hon. Friend, that if this was one of those cases in which the decision of the Committee ought to be final and decisive, not merely as between the parties who at tended upon the hearing of the petition, but as against the whole world, he himself would be one of the first, whatever in justice might have been accidentally done by the Committee., to oppose the establishing a precedent that would lead to mischief.' But he could not shut his eyes, in the consideration of this question, to the declaration which had been made by the hon. Member for Tynemouth (Mr. Young) who was a member of the Committee. He could not forget that that hon. Member had told the House that the Committee, right or wrong, had excluded from their consideration one of the most important topics that could enable them to pronounce the very decision to which they had come; that was, whether the now sitting Members had themselves been guilty of bribery or not. It might turn out that the Committee lost their way and were in error. But he would say, that if, according to the statement of the member of that Committee, it appeared that a matter which ought to have received a just investigation, had received none, this House ought to pause before it affirmed the sentence of that Committee. He agreed that those cases in which the decision related to the return, had no applicability to the point now before the House. But when they were pronouncing an opinion upon this point, which the great majority of the House had never been called upon to consider with that particularity which would enable them to perceive what were the precedents that applied to the case, he thought they ought to give time for consideration. Why should they be led into a discussion now? Why not give hon. Members time for consideration? The greater the importance of the question, the greater the reason for the delay. ["Hear, hear" from Mr. Wynn.] Very well. If his right hon. Friend agreed, he had done.

Mr. Williams Wynn

wished to explain. All that he objected to was, that the House should take the slightest step which, might appear as if it admitted such a petition. Either it was an election petition, or it was not. If it were an election petition, it ought to be received without any question, and as a matter of right. On the other hand, if it were, as almost every body seemed to think it could not be, then it ought not to be received. Therefore, as the hon. and learned Gentleman would be equally within the fourteen days if he were to present the petition after the holidays, he (Mr. Wynn) would suggest that the debate should be adjourned till Monday the 30th inst.

Mr. Hume

thought, although the debate were adjourned, that the petition might be printed.

Mr. O'Connell

would not oppose the adjournment of the question till Monday, the 30th. But he begged it to be under stood that he offered the petition as a matter of right.

Lord John Russell

thought the best course for taking the debate on the question which had been raised by the right hon. Gentleman, would be to agree to the adjournment. He agreed with the right hon. Gentleman, that if this were not an election petition it should not be received at all; and, therefore, until that question was decided, it would not be proper that the petition should be laid on the table.

Debate adjourned to Monday, the 30th of May.

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