Mr. Wynnsaid, that in conformity with the notice he had given, he rose to move, that a new writ be issued for the borough of Southwark, in the room of Daniel Whittle Harvey, esq. He felt the less difficulty in submitting this motion to the House, because he trusted, that it would be in no respect considered a party question, but would be regarded, like the motion discussed last night, as one in which the whole House was equally interested in coming to a conclusion, It had been suggested, that he had better move the appointment of a Committee to consider the subject, but he did not know why that should be a preferable course, because the opinion of a Committee could not be binding on the House. Besides, it was desirable, that no more delay than was absolutely necessary should occur in the case. The hon. Member (Mr. Harvey) was sitting opposite, and he had put himself in an awkward situation, if it should be declared, that his appointment came under the Act of Queen Anne, for, in that case, he was liable to a penalty of 500l. for every vote he gave. Again, if the hon. Member abstained from voting, the borough of Southwark would then virtually be deprived of its representative. If, however, a Committee should be moved for, he certainly should not press the House to come to a decision on a point which other bon. Gentlemen required further time to consider. It appeared to him, that the office to which the hon. Gentlemen had been appointed, came 447 under different disqualifying enactments. In the first place, it came under the Act of Queen Anne, by which any person accepting an office of profit under the Crown vacated his seat. Still more strongly did it come under the Act of the 5th of William and Mary, by which it was declared, that "no Member of the House of Commons shall at any time be concerned, directly or indirectly, or any other in trust for him, in the farming, collecting, or managing any of the sums of money, duties, or other aids granted to their Majesties by this Act, or that shall hereafter be granted by any Act of Parliament." He conceived, that the hon. Gentleman's appointment also came under the Act of the 15th of George 2nd,, which enacted, that no commissioner of the revenue in Ireland, or commissioner of the navy or victualling-offices, or any deputies or clerks in any of the said offices, or in any of the several offices following (among which were mentioned the offices of the Principal Secretaries of State or of the Commissioners of Hackney coaches) should be capable of being elected, or of sitting and voting, as a Member of the House of Commons. Under each of those Acts, it appeared to him, that the hon. Gentleman was disqualified to retain his seat. He would, first of all, consider the question whether the hon. Gentleman had accepted an office of profit under the Crown. The words of the Act of Ann were, that no person who accepted a new place of profit under the Crown, then existing, or thereafter to be created, should be capable of sitting or voting in the House of Commons. It was contended, however, that the office accepted by the hon. Member was not an office of profit under the Crown, as it was an appointment made by the Secretary of State. It, however, made no difference whether the appointment proceeded immediately from the Crown, or was filled up by the Secretary of State, if the appointment was really an office under the Crown. It was well known, that the stewardship of the Chiltern Hundreds was not granted by the Crown immediately; it was not an appointment under the great seal, but under the hand of the Chancellor of the Exchequer, and a salary of 20l. a-year was attached to it, though the money was never received by any person accepting the office. Still, it was held by invariable custom, that the acceptance of the Chiltern Hundreds by a 448 Member of Parliament vacated his seat. He was aware, that there were offices, the acceptance of which did not lead to a vacation of seats in Parliament, but they were the subject of special exception from the Act of George 2nd. Such were the office of Secretary of the Treasury, and the office of Secretary of the Admiralty, and the offices of the Under-Secretaries of State, and they were excepted probably because they were considered as being, at the time of the passing the Act of William, in no degree offices under the Crown; for the Secretary of the Treasury was Secretary to the Lord High Treasurer, and the Secretary of the Admiralty was Secretary to the Lord High Admiral. In the instance also of the Secretary of the Board of Commissioners for the Affairs of India, it was thought fit, that there should be a specific arrangement to meet his case, and it was expressly provided, that a person's acceptance of that office should not vacate his seat in Parliament. He would maintain, that with respect to other offices, whether the appointment rested with the Secretary of State, with the Chancellor of the Exchequer, or with the Commissioners of the Treasury, they were equally to be considered offices under the Crown, particularly when, as in the present instance, it was directed that the Commissioners of the Treasury should fix and appoint the salaries which were to be paid. It might be contended, that this was not an office of profit, on the ground that no salary had been actually annexed. But the Act of last Session said, that "it shall be lawful for the Commissioners of her Majesty's Treasury to fix and appoint such salaries to be paid to such registrar, clerks, and officers as they shall think proper, which salaries, together with such other expenses in and about the execution of this Act as the said Commissioners shall direct, shall be paid by the said Commissioners of Stamps and Taxes out of any monies to arise from any of the duties under their care and management." Now, it seemed to him, that under this clause, a duty was imposed upon the Treasury which they were to discharge by fixing the amount of salary to be enjoyed by the registrar. They all knew that the words "it shall be lawful," were constantly construed as imposing a duty, and he apprehended, that if the hon. Member for Southwark had continued to hold the office which he had resigned, and the 449 Treasury had not fixed a salary, he might have compelled the Commissioners of the Treasury to assign him one. What should be the awount of the salary would indeed be left to their discretion, but it was imperative upon them to fix one. It might further be contended, that no emolument or profit had been received from this office. But the hon. Member, in his letter to the noble Lord, the Secretary of State for the Home Department, said, that he should not receive any emolument or profit from the office, if Parliament should be of opinion that its acceptance would oblige him to vacate his seat. The hon. Gentleman's refusal to accept a salary was, therefore, only a qualified refusal, dependent upon the decision of Parliament as to the effect of accepting a salary. This, he contended, did not exempt him from the disqualification created by his original acceptance of the office. Let the House suppose that a change of Administration had taken place, and that the now Ministers did not think it convenient immediately to dissolve Parliament. Would they, supposing them to execute a renunciation of the salaries attached to their offices for a couple of months, be thereby rendered capable of holding their offices, without vacating I their seats in Parliament? He apprehended not. It seemed to him that when Parliament constituted an office, and appointed a salary to be paid, an individual had no right to divest himself of the salary. The office still had all the qualities of an office, and it was wholly immaterial, whether the person holding it accepted a salary or not. There was nothing to prevent an individual accepting the Chiltern Hundreds, whether he claimed the salary attached to the stewardship or not, and he had been told, that it was not the invariable practice to refuse the salary, for one gentleman who had accepted the office did afterwards take the salary of 10l. for the half-year which had expired before the office was disposed of to another person. It seemed to him, therefore, that this was a new office of profit under the Crown, created since the statute of Anne, and consequently not tenable in conjunction with a seat in Parliament. He now came to the second part of the question, depending upon the effect of the disabling statutes of the 5th of William and Mary and of the 15th of George the 2nd, upon which he should 450 contend, that this being an office for the managing and collecting of duties granted to the Crown by Parliament, and being further an office under the Commissioners of Stamps, the party who accepted it was thereby disqualified from sitting or voting as a Member of the House of Commons. This would appear, from a perusal of the second section of the Act of last Session, by which it was enacted, that
There shall be charged upon, and in respect of, every license to be granted under the authority of this Act, as hereinafter provided, a duty of five shillings, and that the same shall be under the care and management of the Commissioners of Stamps and Taxes, and shall be denominated and deemed to be a stamp duty, and shall be raised, levied, paid, secured, and accounted for, under the provisions of any act or acts in force, or to be in force, for raising, levying, or securing the stamp duties, or any of them; and it shall be lawful for the said Commissioners, and they are hereby required, upon application for that purpose made by the person who for the time being shall be the registrar of metropolitan public carriages, duly appointed under the provisions herein-after contained, to issue to such person vellum, parchment, or paper for such licenses, duly stamped, for denoting the duties charged by this Act, either upon the present payment of the duties payable on such licenses, or upon giving such security for the payment thereof, and upon such terms and subject to such regulations as the said Commissioners shall think proper.It was provided, by a subsequent clause, that the Secretary of State for the Home Department, should appoint a registrar, and, as he had already stated, that it should be lawful to the Commissioners of the Treasury to appoint him a salary. Now, how words could be adopted which brought the case more closely within the Act of William and Mary, which provided, that no Member of the House of Commons should be concerned directly or indirectly in collecting or managing the duties granted by Parliament to the Crown, or, on the other hand, within the statute of George the 2nd, which disqualified persons from sitting or voting in that House, who were deputies to the Commissioners of Stamps, it was difficult to imagine. But, at any rate, if it should be decided, that those Acts had reference only to offices of the kind mentioned which were then in existence, it was then a new office, and came within the statute of Anne. Let the House look at the consequences which might result from the 451 neglect of the provisions in those statutes. If the argument were to prevail, that a person disqualified by accepting office from sitting or voting as a Member of the House of Commons did not vacate his seat, if he resigned the office before the meeting of Parliament, all these offices might be granted to individuals for six months, and all that they would have to do would be to resign them immediately before the meeting of Parliament, and take the salary of the office up to that time. Besides, the uniform practice since the passing of the Act of Queen Anne had been to issue a new writ immediately on parties accepting a disabling office, exactly in the same way as that which came within the second clause of the statute. It was right that a person incapable of sitting or voting in the House of Commons should be taken to have vacated his seat. He would again beg to call the attention of the House to the case of the stewardship of the Chiltern Hundreds. If, during the recess, a Member accepted that office, he might be re-elected by any constituency in the kingdom, which could not be done unless the seat was thereby vacated. There was an instance of this kind in which Lord Dudley, who was Member for Droitwich, accepted the Chiltern Hundreds, and was elected Member for Worcestershire. He believed, also, that his right hon. Friend, the Member for Pembroke, during the recess, vacated in the same way his seat for Carlisle, and was elected Member for Cumberland. It seemed to him, therefore, that by acceptance of the office, the seat was vacated to all intents and purposes. It might be contended, that the statute of William and Mary was only a prohibitory statute without, a penalty and consequently that the Parliament proceeded at first against such Members as accepted offices by expulsion. But since the latter act such conduct had uniformly been treated as vacating the seat. There were, indeed, cases in which, when an office devolved upon a Member by reversion, and the Member executed an immediate surrender, this devolution had been construed not to work a disqualification. But he was not aware of any case in which an individual having once excepted an office was held to be exempted from the disabling operation of the statutes because he had not taken the salary attached to it. These were the grounds 452 upon which he submitted the case to the House. He trusted it would be considered, that he had undertaken the task from a strong feeling of public duty for, supposing the House to be of a different opinion from him, and to resolve, that the seat of the hon. Member for Southwark had not been vacated, it seemed to him to be of great importance, that the House should come to a distinct decision upon the question, and not let it pass sub silentio. He need hardly say, that he had no personal feeling against the hon. Member, nor was he influenced by political feeling, for he believed it was well known, that if a new writ issued for Southwark his present constituents were perfectly disposed to reelect the hon. Member, and therefore no person could suggest, that there was any political object to be attained by the motion with which he should conclude—that a new writ be issued for the borough of Southwark in the room of Daniel Whittle Harvey Esq., who had vacated his seat by aceepting an office of profit under the Crown.
§ The Attorney-Generalrose to address the House, but observed, that if the hon. Member far Southwark were disposed to offer any remarks, he would willingly give way.
Mr. Wynnsaid, that the rule of the House was, that a Member should withdraw, when any question was about to be discussed touching his seat he having been first heard.
Mr. Prymementioned an instance when a question respecting his own seat was agitated, in which that rule was acted upon.
§ The Speakerhad no doubt that when any question was discussed involving the conduct of a Member of the House, the rule of the House was as it had been stated by the right hon. Gentleman the Member for Montgomeryshire, but he was not aware, that such was the rule when his seat was affected, no such case having occurred, since he had been placed in the Chair of that House. But the precedent mentioned by the hon. Member for Cambridge was in point.
§ Mr. Harveysaid, against the motion placed in the hands of the Speaker, "that a new writ issue for the borough of Southwark," he had nothing to say. On the contrary he was perfectly prepared to second any motion by which the Members of that House should be often obliged to 453 go before their constituents. He was one of those who thought, that this was a very wholesome practice, and who wished, that it occurred more frequently. But he somewhat differed from the interpretation that he was not now called upon to give explanation from any apprehension, that he had committed a very serious offence (and which, to a certain extent, might explain the motion), for the right hon. Gentleman, who, he believed, had an unequalled acquaintance with the rules, practice, and laws of Parliament, would not be able to find a single case in which a Member of that House had given up to the service of the public all the months during which other Members were recruiting their strength, after the severe labours which had just closed without receiving any compensation whatever for the sacrifice. He could not but think, that this was a most alarming precedent; for if it were once established, that Members of that House should labour gratuitously, he apprehended then he should bring down on his head the very severe censure of no inconsiderable portion, and most assuredly of that portion (not a small one) who sat there year after year, receiving very large sums for doing nothing, or a very good fee for their services in what they obtained if they could say, that they had ever done any thing. He deeply regretted, that the course which he had taken, really with the view of not giving the House trouble on the subject, had not been acceptable. When he submitted the facts of the case to eminent counsel, though they were far from agreeing as to the law, and though, as he should presently show, a very considerable lawyer took an entirely different view from that laid down by the right hon. Gentleman yet when he found men of such high rank in their profession (one of the first of them holding a seat in that House) entertain very great doubts on this question, he thought it much better to yield in time and resign the office rather than impose on the House of Commons the duty of entering on the subject. However, it appeared that he was mistaken in that respect; and now that a motion was made on the subject, he owned he was much dissappointed at the narrow ground taken by the right hon. Member for Montgomeryshire. The right hon. Gentleman had entrenched himself behind a few precedents, more or less as he considered bearing on the sub- 454 ject; but he had never said one word bearing on the great constitutional question of the danger of Members sitting in that House who either expected a reward From Government, or who were put in the receipt of sums which rendered them subservient to the Government. Now, he had hoped, that the right hon. Gentleman would have embraced this occasion for bringing in a bill which should put the whole subject to rest at once, by including in it not only the disqualifying offices, but those which were every day adapted to to the votes, speeches, and silence of a large number of Members, who were never thereby put to the inconvenience of losing their seats. But the right hon. Gentleman had altogether confined this case to a question of law—whether the office referred to came under the declaratory statute of Anne; and he was sure the right hon. Gentleman would agree with him that that statute, being highly penal in its nature, must, like all other penal statutes, be construed strictly. Now, it would be readily conceded, that there must be some difference between a direct grant of an office with which an individual was invested by patent from the Crown, under the sign manual bearing a stamp of considerable amount, adapted to the nature of the instrument, as compared with the mere appointment under the signature of a public functionary, to which another and an inferior stamp was attached. There were grants of the first description, and appointments of the latter; and he would venture to call the attention of the right hon. Gentleman to a return which had been made to that House twelve months after the passing of the act which was referred to. The return was to be found on the journals of the House, and it purported to be one "of all the offices and employments under the Crown, which had been created and granted since the 25th of October, 1705." Now, an office granted by the Crown, was an office to be vacated by the Crown. An office appointed by a public officer, such as the Secretary of State, could be vacated by the Secretary of State, and the Secretary of State only. He apprehended, that if this appointment or any other proceeded from the Crown by way of grant, under the royal sign manual, that document could only be cancelled by an instrument of similar import, and of the same character; and he should also submit that, if we could anticipate 455 such a proceeding, an instrument from the Crown itself could not vitiate an order or appointment made by the Secretary of State. By the Secretary of State was this appointment made during discretion, and by him alone could that be cancelled or withdrawn; but he submitted it was not competent to any royal or political authority existing to create another power which could cancel it. But it might be said, (and with great weight on constitutional considerations) that it was unfitting that any Member of that House should hold an office at discretion, which a public functionary might continue or take away, as the Member adopted a coerce in compliance with, or adverse to, his wishes. With this feeling strongly in his mind, he did hope that the right hon. Gentleman was prepared to put the question on broader and higher grounds. He was not pleased to hear the right hon. Gentleman propose an extension of the principle of disqualification. On the contrary, he should wish to see the extinction of all disqualification, provided that the acceptance of any office should vacate the seat of the individual, he being re-eligible, if his constituents chose to continue their confidence in him. It was well known to the noble Lord to whom he was indebted for this appointment, what course he meant to pursue. He had stated from the beginning, that this was not a disqualifying office, and that, therefore, it was competent to him to accept it without vacating his seat; but it was his intention to move, on the first day of the Session, to accept the Chiltern Hundreds on the broad and constitutional grounds, that, as he had accepted office, and as his constituents might conceive that he had thus incurred political obligations, they should have the opportunity of expressing their opinion on the subject. And this was the situation in which, with all submission, he thought every individual ought to be placed by the law, who had any participation whatever in the public funds. When, therefore, the right hon. Gentleman asrured him that this proceeding had no connexion with party or personal politics, he levied a large tax on his (Mr. Harvey's) credence, he drew a large draft on his credulity; because, when he heard on every side in the speeches and papers of the party of the right hon. Gentleman, that there was an universal re-action throughout the country, that the consti- 456 tuents were panting in every borough for an opportunity to record their change of opinion, and that not a vacancy could take place but a Conservative candidate wes prepared to take the field, he was sursurprised that the right hon. Gentleman, when he considered the princely resources at the command of his party, and that the humble individual addressing the House bad not concealed that the emoluments which he received for the duties of his office (however uninviting these might be), were not unacceptable, should now turn round and tell him, with all possible gravity, while the Conservative cry was ringing through the country that at no hustings durst a Reformer or Radical show his face, "You have only to go to the borough of Southwark, and you'll be reelected without trouble, expense, or inconvenience." The praise of the great constituencies which was implied in this recommendation was very just, and his constituents (fully persuaded of the kindness of the right hon. Gentleman) were quite prepared to re-instate him without expense, let who would present himself from the Carlton Club as his opponent. But he ventured to think that this motion was not so divested of personal considerations as the right hon. Gentleman would lead the House to think; for why was it that the vigilance of the right hon. Gentleman had been slumbering for some time? There had been some instances much more suspicious than the present acceptance of an office, where the appointment was known, the individual holding it was known, and the exact amount of his emoluments also known. And though it might be said that the trust of discretion implied the arbitary exercise of that power, he would venture to say, that no leader of a party would dare to dispossess an individual holding this or a similar office, who discharged its duties to the satisfaction of the public, for whose benefit it was created. And he did not hesitate to say, that were he holding this office at the present time, he should give his vote and express his sentiments precisely in the same way as he did before he accepted it. It seemed, however, that he should have thought differently, when he recollected the principles of the party opposite; and that he should have concluded that his office was one which he was bound to give up on the change of an administration, and 457 that if the right hon. Baronet (Sir Robert Peel) came to that side as rapidly as some of his more eager friends desired, the value of his appointment, when found constantly in opposition, would be but small, and he must remain in continual expectation of receiving a notice from the Home Secretary (whoever he might be) that his services were, in the exercise of a sound discretion, considered to be no longer necessary. This was, indeed, a species of dependence which it was fitting that public men should understand. But he was observing that the right hon. Gentlemen was rather lax in his vigilance, when he contended that the acceptance of this office was of a disqualifying nature, even though all salary was refused. He admitted there was great weight in what the right hon. Gentlemen had stated, that Members ought to be prevented from accepting offices during the recess; hut the right hon. Gentleman forgot to add, that the evil was much greater when a party exercised large patronage, and received indirect emoluments, though without any appointed salary. It was a doctrine most alarming to that portion of politicians called Radicals (a term that was illustrated to a certain extent by the possession of personal property), that gentlemen of large estates should have it in their power to say, "We don't look for emoluments in such an office as that of the Chancellor of the Exchequer; we don't care any thing for the salary—5,000l. or 6,000l. a year is nothing to us—but we have a tribe of cousins, and a large number of subordinate relations, and as we should wish to crowd Somerset-house and Downing-street with some few hundreds of them, this field of family patronage would be extremely acceptable to us." Now this was a dangerous doctrine, against which men of small means were justified in protesting. But there were other offices which the right hon. Gentleman he was surprised to find had thought it consistent with his station as guardian of the technicalities of the house to overlook. He saw by a motion of the gallant officer (Colonel Sibthorp) that thirty or forty commissions had been appointed with salaries attached to them. There were several Members of Parliament in these commissions, to whose names, it was true, the remark was annexed to the return that they had declined salaries. But it should be recollected that there were many temporary commis- 458 sions constantly appointed which stole quietly through the House, and to which attention would never have been directed if a time of peace had not given a military Member an opportunity of exercising unusual vigilance. At all events these commissions were much more silent and stealthy in their passage through that House than the act by which he was appointed, and which was debated clause by clause. In the county-rates commission he found the names of Mr. Law Hodges and Mr. Shaw Lefevre, who it was said "declined to receive salaries." Their declining to receive them rather implied that they could take them if they pleased, and their acceptance of this office worked their disqualification, according to the reasoning of the right hon. Gentleman. Why the right hon. Gentleman had suffered such appointments to pass unnoticed he could not conceive unless it was, that as commissions were not found on the Journals of the House, they were a subject beneath his notice. Again, he found that there was a commission on Irish fisheries, and in this case it was laid down that they should receive their salary when they reported. But he saw that Mr. Walker, as one of the commissioners, had from the commencement refused to receive any remuneration. That, no doubt was very creditable to Mr. Walker, but if the doctrine were approved, as agitated by the right hon. Gentleman, that the acceptance of office—such paid offices as these commissionerships—constituted the case provided for by the law and vacated the seat in Parliament, he was a little surprised, giving the right hon. Gentleman credit for not being actuated in the smallest degree by personal feelings or party motives in bringing forward his motion of that evening, that these commissionerships should have altogether escaped his attention. Besides this, many acts of Parliament had been passed with disqualifying clauses. Take, for instance, the act which constituted the charities commission. The charities commission was composed of eighteen or twenty commissioners, appointed by the Crown; that was to say, the commission was appointed by the Crown, but the parties who were to sustain it were appointed by the Treasury. In that bill a clause was inserted, expressly declaring that no charity commissioner should be competent to sit in Parliament. So, again in more recent times, in the 459 Poor-law Amendment Act, a clause was inserted disqualifying the Poor-law commissioners, who were also appointed by the Treasury, from a seat in Parliament. But there was this extraordinary circumstance connected with the Poor-law Amendment Act—that whilst it declared that the three chief commissioners should be disqualified, it made no provision of the same kind with respect to other subordinate officers; so that the secretary, or any other highly paid officer attached to the commissions (and it was to be remembered that the secretary received 1,200l. a year), would be perfectly competent to hold a seat in that House. The same law obtained with respect to the registrar and deputy-registrar in the Bankrupt Court. Now, if the opinion of the right hon. Gentleman were borne out in law, all these disqualifying clauses were entirely superfluous, because the right hon. Gentleman contended, that the appointment to these offices being in the Treasury, the parties accepting them assumed the character of political functionaries, and were thereby disqualified from sitting in the House. If that were so, why were the disqualifying clauses inserted in the bills to which he had directed the attention of the House, as well as in many more to which he might refer? Why were these disqualifying clauses inserted, except for the purpose of guarding against the construction which he humbly submitted would otherwise have been put upon these offices—namely, that they were not grants from the Crown, but appointments from great offices under the Crown? and this was the distinction he was anxious to press upon the House, not for his own sake—not to maintain any interest of his or to secure any gain to himself (for he had resigned his office and a successor had been appointed), but for the sake of illustrating to the House how necessary it was, that the law upon a point of this kind—important in many respects—should be clearly and distinctly defined. But he was one of those who thought, that the same might be said of this House as of the courts of law, namely, that there was "one law for the rich and another for the poor." He thought, that in that House there was one law for those who were connected with and powerfully sustained by party, and another law for those who were not so connected and not so sustained. He had no doubt, that if the 460 office of registrar of hackney carriages had been given to a second or third class gentleman connected with party and power in that House, no matter by whom the office was conferred, his seat would have been perfectly safe, the question of disqualification would not have been agitated at all, or if it were it would have been passed slightly over, with some such observations as these—"Oh! it is no great matter—the question is not worth mooting—he is doing his duty to the public—he is giving as much labour as he receives salary for, and he is as independent of the Government as the Government is of him." But it was not so when the question related to him, who stood aloof from all party, and whose conduct was governed only by that which his conscience told him to be right. He did not believe, that his case would he worth the tithe of a farthing if submitted to that House merely as a party question; and his experience confirmed that impression, not in one instance, but in many. He would mention only one: the right hon. Gentleman was kind enough, some ten years ago, under the guidance of the same feeling which remained intact in the party to which he belonged to move, that no individual Member of the House should be concerned in the business of the House. Now, although the right hon. Gentleman did not mean anything personal in that motion, it had a personal application; but applying to a Gentleman immediately connected by party with the Gentlemen who now sat on the opposite side of the House, nothing was said about it. It was this impression—this conviction strongly impressed upon his mind, which led him to proclaim to the public what he really and honestly felt—that there was no justice in that House to any man not connected in some way or other with one of the great parties in it. How had the House acted? There was a committee appointed some years ago, of which by the by the right hon. Gentleman was a Member, to inquire into one of the most monstrous usurpations that ever disgraced the country, and which operated most powerfully and most prejudicially against him individually. The committee held its meetings, instituted its inquiries, and finally submitted a report to the House. But was anything ever done in consequence of that report? Again, there was another committee; a committee more recently appointed—a close com- 461 mittee—a committee which came to a resolution expressly excluding the public—a committee which delayed its report, and from which some Gentlemen at last retired, in consequence of the secret manner in which it conducted its inquiries. At length the report was made, and four-and-twenty hours afterwards the gallant individual, the subject of the inquiry, was decorated with orders, clothed with military honours, and promoted in the service to which he belonged. Instances such as these confirmed him in the impression, that there was often great personal feeling and great injustice in the proceedings of that House. It might be asked, "why with this strong sentiment in your mind, did you not retain your office and take the chance of a re-election?" He would tell the House why he did not take that course. If he had retained the office, vacated his seat, and gone to his constituents, some Gentlemen might have stood forward and said, "I know I have no chance in this borough; all I know is, that some fifty or one hundred electors will give me their votes. I shall proclaim upon the hustings, that all votes given to Mr. Harvey are thrown away; he may have thousands of votes whilst I have but a hundred. I shall present a petition to the House stating, that he has accepted a disqualifying office; I shall obtain a committee, and I will take the chance whether that committee will not declare him to be disqualified." It was impossible that he could have taken that course and have allowed his constituency to be thrown into hands which he knew to be most abhorrent to them. It was, therefore, of great importance, that this question should be set at rest; for although, as he had already observed, he had no personal feeling upon it, although he would as soon, that the writ were issued that night as not (for he knew on whom he could rely, and his constituency knew by whom they could be best represented), yet the matter required consideration and ought to receive it. If, therefore, the Attorney-General should move, as he understood he was inclined to do, that the precedents should be searched, and a committee appointed to consider the question, he (Mr. Harvey) should not dissent from such a proposition. He would neither assent nor dissent, but if the House took the matter up at all, let it do so in the fair spirit of inquiry—let it not limit its investigations to mere technicali- 462 ties, but let it come to a distinct and definite resolution as to whether the acceptance of an office paid out of the general revenues of the country should or should not vacate a seat in Parliament? Meanwhile he asked the House not to come to a decision upon the subject until they had given it further attention, unless, indeed, they were prepared to come to an unanimous decision, because the right hon. Gentleman (Mr. Wynn) had intimated that the sitting in that House and taking part in its discussions, under the circumstances in which he (Mr. Harvey) sat there, exposed the party so doing to heavy penalties. This was a great matter, although he did not apprehend that it would affect him, even if the right hon. Gentleman's law were correct, because he lid not sit there holding office. But these Wings were sometimes readily seized, and might lead to personal inconveniences, which he was sure the right hon. Gentleman would not wish to impose upon any Member of that House. He hoped, therefore that a committee of privileges would be appointed to consider and report fully upon the question. If such a committee were appointed, it would be in duty bound to consider not merely whether the circumstances under which he was placed acted as a disqualification, but whether the office itself was a disqualification. He apprehended it was not. He had taken the opinion of an eminent counsel upon the point, and he would state to the House what that opinion was. The counsel whom be had consulted was Mr. Rogers, a gentleman whom he was sure all the members of the legal profession in that House would at once acknowledge as no mean authority upon a question of this kind. Mr. Rogers gave his opinion in these terms:—"I am of opinion that although the registrar of metropolitan public carriages may be and is a new office, yet that it is not under the Crown within the provisions of the statute of Anne, so as to render Mr. Harvey incapable of sitting and voting as a Member of the house of Commons, nor incapable of being elected a Member in case of a dissolution of the present Parliament. Having come to this conclusion, I am still more strongly of opinion that the acceptance of the above office is not under the 26th section of the statute of Anne an acceptance of office which renders the election void." Now, that was rather an 463 unusal opinion for a lawyer to give, from its excessive clearness. There was no ambiguity about it. But it would be asked, "if you had such confidence in Mr. Rogers's opinion, why not act upon it?" He would tell the House why. When he submitted his case to Mr. Rogers, and obtained his opinion upon it, he proposed this additional question, "Supposing Mr. Harvey to vacate his seat, and go his constituency, would you advise a candidate opposing him, but not successful at the poll, to present a petition against his return upon the distinct ground that he holds the office in question?" He felt it necessary to put that additional question, because although he knew he should have many thousand electors in his favour, whilst his opponent might have only a very few, yet if the latter came before the House with a petition—calling to mind what he had so frequently witnessed during the last Session—how the benches of the House were crowded when there was to be a ballot for an Election Committee; with what shouts of delight a favourite name was hailed, and with what shrinking terror a hostile face was viewed—he could not help thinking that his chance of favour was altogether contingent. Mr. Rogers, whose political opinions were opposed to those which he entertained, had had much experience upon such matters, and in reply to the additional question put to him said, "Although I have expressed an opinion rather too elaborately, I am afraid, upon the law of the case, I am not prepared to say that if Mr. Harvey should go to the poll I should advise a candidate not to give notice of his disqualification and take the chance of a committee." He had thus vindicated himself from being too hasty, because, although he had this opinion so decidedly in his favour, he remembered how the great body of Gentlemen on the opposite side of the House could double their numbers on occasion—how, ever ready to be doing mischief and preventing good, they could, when the occasion demanded, come down as one man to secure their object. He remembered, too—it was a thing not to be forgotten—a thing not easily escaping the recess of memory—how many Gentlemen on that (the ministerial) side of the House said to him as they passed him on his seat, "Good God! Harvey, surely it is not true—we hear that Government intend to refuse to place your name upon the pension 464 committee. It never can be true." When the day came, he found that a great many of the Gentlemen whose sympathy and commiseration had thus been poured into his ear, went out into the lobby to vote against his being placed upon the Committee. He was sorry to have troubled the House at so much length. He would now leave the case in the hands of the House—himself he placed in the hands of his constituents. (The hon. Gentleman immediately left his seat and quitted the House.)
§ The Attorney-Generalnotwithstanding the taunts and sarcasms in which the hon. Gentleman had indulged, was satisfied that this would not be viewed nor dealt with as a party question. It was a matter upon which it was highly desirable that the House should proceed with great deliberation. There was a difference of opinion upon the question, although the majority of lawyers certainly entertained a strong opinion different from that given by Mr. Rogers. It was the more necessary that the House should not proceed hastily to a decision, because it was a matter which might come before a court of justice; and it was very desirable to guard against the possibility of a collision of opinion between that House and the courts of Westminster Hall. The question was whether the office held by Mr. Harvey was a disqualifying office. In his opinion it was. Another question arose as to whether it made any difference in the case, that no salary was assigned; in his opinion it made no difference; because the party holding the office might go to the minister of the Crown and say, "assign me a salary," and if the minister refused, he could go to the Court of Queen's Bench and procure a mandamus to compel an assignment of salary. There was another point of great importance connected with the case upon which he (the Attorney General) entertained a serious doubt; it was, whether this was an office which de facto vacated a seat in Parliament. If hon. Gentlemen would refer to the statute of Anne and the statute of George III., both of which related to matters of this kind, they would find that there were two classes of cases which were held to be of a disqualifying nature. The first statute declared, that if a member of Parliament accepted an office under the Crown, he should not sit nor vote in the House of Commons; and if he did, that he should be liable to a 465 penalty. But there was another class of offices which were said to be immediately and directly from the Crown. Now, in the 41st George 3rd it was said, that if any person, being a Member of Parliament, should accept any office of profit whatever immediately and directly from the Crown, then his seat should become vacant and a new writ be issued. Now, although the office of Mr. Harvey appeared to him to be an office under the Crown, so as to come within the scope of the statute of Anne, yet, being an office appointed by the Secretary of State for the Home Department, he could not say that it was an office held immediately and directly from the Crown. This was a point which deserved great consideration. It was entirely new, and one upon which no decision had yet been given. Under all the circumstances, what he would suggest would be the appointment of a select Committee to investigate the subject and to report upon it; and if he might venture so far, he would farther suggest that the right hon. Baronet, the Member for Tam-worth (Sir R. Peel), who on all occasions was ready to devote himself to the public service, should be a member of the Committee. He should conclude these few observations, therefore, by moving that the papers relative to the appointment of Mr. Harvey to the office of registrar of hackney coaches be referred to a select Committee, and that the Committee be directed to report its opinion, whether Mr. Harvey had vacated his seat in the House by accepting the said office.
§ Sir R. Peelsaid, that his advice, or rather his opinion (for he would not presume to give his advice), was, that the proposition of the Attorney-General should be at once adopted. That being his opinion, he would not say one word upon the case; but he was bound to say, in justice to his right hon. Friend (Mr. Wynn), that he intimated to him (Sir R. Peel) before the debate began, that if any other person proposed a select Committee, he should at once accede to the proposition; but that his own opinion upon the case was so strong, that no alternative was left to him but to move the issuing of a new writ. If it were the opinion of the House that a Committee should be appointed for the purpose of searching precedents, it would be much better that all discussions should cease at one, so that the members of the Committee might enter upon the consider- 466 ation of the question with perfectly unprejudiced minds. As far as he was himself concerned, he would much rather that the hon. and learned Attorney-General would excuse him from serving upon the Committee. Original motion withdrawn.
§ Committee to be appointed.