§ Mr. C. Buller
felt annoyed at having to bring forward more cases respecting election petition recognizances—but there was one consolation which the House had, and that was, that this was the last day for making such applications. In the case of two Irish petitions, it appeared that a mistake had been made in the recognizances. The same agent was concerned in both cases, and he had committed the same mistake in the recognizances of both. The error, however, did not amount to more than a clerical error, and it consisted in the name of the surety being inserted where the name of the petitioner ought to have stood. This mistake rendered the recognizances nonsense, because it would appear that the surety, and not the petitioner, was the party bound to prosecute the petition. In courts of law there was no doubt but that such an error would be corrected; and he submitted that that House had the power of correcting such an error. He could not apply, however, to have the mistake remedied, because he knew the recognizances could not be altered, and, therefore, he moved that the parties should have further time to enter into the recognizances in the case of the Sligo petition.
§ Mr. Borthwick
wished to know whether the day terminated at twelve o'clock, or whether the sitting of the House, after that hour, had the effect of prolonging the day? If the day terminated at twelve o'clock, it was clear that this application came too late.
§ The Speaker
was understood to say that, although the debate might continue after twelve o'clock, the clay closed at that hour in point of law.
felt it his duty to appeal to the justice of the House. By the Grenville Act he contended the day terminated at twelve o'clock, and as the recognizances had not been perfected at that hour, he conceived the Speaker was 1276 now bound to declare that the provisions of the Act had not, in this case, been complied with.
§ The Attorney-General
said, that now was the time, or never, for making the application. They had not as yet entered on the Parliamentary to-morrow, and therefore, although it was undoubtedly past twelve o'clock, he conceived the motion to be quite in time. The error was nothing more than a mistake in the name of the surety, and the effect of it was to render it obligatory on the surety, instead of the petitioners, to prosecute the petition. There really was no difficulty in the matter with respect to time, because it was well known that for many purposes the year was sometimes less and sometimes more than 365 days. This was the case in corporations, where the mayor, being elected for a year, continued in office until his successor was appointed. The object of the Legislature was, that there should be an opportunity of perfecting the recognizances, and hence it followed that the day was considered as subsisting until that House adjourned. It was well known by those at all acquainted with the business of quarter sessions, that matters of form, even provided by Acts of Parliament, were often departed from, for the purposes of justice, and, as in the present case, the recognizances would be void unless the error were corrected, he did think that, even in point of law, the application was in time, having been made before the adjournment of the House.
§ Sir T. Fremantle
must once again call on the House to adhere to the strict rule. The Act of Parliament was express, that the recognizances should be perfected within fourteen days, and no one, he thought, could deny that, in point of law, the duration of a day was from twelve o'clock to twelve o'clock.
Mr. H. Hinde
must deny the law to be as the hon. and learned Gentleman (the Attorney-General) had laid it down. The votes in that House made a clear distinction between the business done previous to twelve o'clock and that done afterwards. The business taken after twelve o'clock was entered, not only in the votes, but in the journals of the House, under a separate date.
§ The Solicitor-General
could not concur with his hon. and learned Friend (the Attorney-General), that the recognizances were void because of this mistake. The 1277 condition of the recognizances was, not that the parties should prosecute the petition, but that if the costs and expenses were not paid by the petitioner, the instrument should be void. It was true that if three or four parties were hound, and that any one of them paid, that was all that could be required. There was nothing in the Act which limited the duration of the day to twelve o'clock, and his opinion was, that, if the petition were presented at five o'clock in the evening the parties would be entitled to count from that hour. At all events, the application was quite in time, if made before the adjournment of the House.
§ Mr. Godson
said, that the question which they were called on to decide was one of very great importance, and was whether a Parliamentary day differed from the legal day. He was, he must say, surprised at what he had heard from his hon. and learned Friends. According to their view, if that House were to sit till seven o'clock in the morning the Parliamentary day would endure seven hours after midnight, but he must say that no lawyer, that no man of common sense in the country, would agree with the construction which they had put on this Act. Suppose that these recognizances were now to be received, and that the petition turned out to be "frivolous and vexatious," what would be the consequence? Why, that when they were attempted to be enforced the parties would snap their fingers and laugh at them, denying their validity, because they had not been perfected within the period of fourteen days limited by the Act.
§ Mr. Courtenay
said, that accustomed as he was to courts of law he had never heard worse law than had that night been propounded by the Solicitor-General. There was no person conversant with the practice of Quarter Sessions who did not know that whatever form an Act of Parliament directs must be followed. The hon. and learned Gentleman had spoken of the fraction of a day, but there was no tyro at the bar who did not know that there was no such thing known to the law as the fraction of a day. As a constitutional lawyer, he was surprised at the doctrine that had been put forward that they might dispense with an Act of Parliament. Why, what were the charges against the Stuarts, or against the Long Parliament, but this, that one part of the Legislature 1278 dared to take on itself to dispense with an Act of Parliament, and that House was now asked to exercise that dispensing power which every writer on constitutional law concurred in describing as the greatest act of tyranny?
§ Mr. C. Buller
said, that there was no neglect in this case, as happened in the Ipswich case, for as soon as the objection became known the petition was presented. The hon. Member for Cavan seemed to mistake the object of his (Mr. Buller's) motion. He did not mean to ask the House to pass any resolution about the validity of the recognizances, he only asked them to enlarge the time. A great deal had been said about the strictness of the law, but the same law gave them the power to extend the time for entering into the recognizances, and if they were to be precluded from exercising that power what was the use of possessing it at all? The hon. Member here referred to the words of the Act of Parliament, which provide that where the recognizances shall not have been entered into within fourteen days the Speaker shall report the same to the House, and the order for taking the petition into consideration shall be discharged forthwith, unless on special cause shown or unless matters shall be specially stated, on oath, as shall give the House reason to see that the time ought to be enlarged. Now, it would be competent for him, when the Speaker announced that the recognizances had not been properly entered into, and when it should he moved that the order be discharged, to get up and move that the order should not be discharged until witnesses had first been called to the bar to prove certain facts that would enable him to show to the House a sufficient case for the exercise of this indulgence. According to the opinions of the Attorney and Solicitor-General, the recognizances were good, but it was held by others that they were bad. Now, he did not want a decision on this point' all he asked was, that the House should enlarge the time.
could not think, as at present advised, that the House had any power to enlarge the time. He wished that some learned Friend could convince him that he was mistaken in his construction of the Act. What he felt a doubt upon was that the application for the enlargement of the time ought to be made before the expiration of the fourteen days. He 1279 thought that the words, "If the time shall not have been previously enlarged," &c, were to be understood as requiring that the application for the extension of the time should have been made before the expiration of the fourteen days.
§ Mr. Maule
said, that the Act of Parliament, which regulated their proceedings, ought to be so construed as to enable substantial justice to be effected. He would not engage in the discusion of the difficult question whether they should call the present time to-day or to-morrow. He would suggest to the hon. Member for Liskeard to take the question upon the motion that the order for taking the petition into consideration be discharged.
§ Mr. C. Buller
would adopt the suggestion, and take the discussion on the report of the Speaker. It seemed that his mistake was that he had applied not too late but too soon. He would move that the petition be printed with the votes.
§ Petition to be printed.