§ On the motion of Mr. Ord, the Order of the Day was read for the adjourned debate respecting the Ludlow election petition.
§ On the question being put "That the order for the attendance of panels Nos. 1 and 2 on the 12th and 16th of March be discharged,"
§ The Solicitor General
observed, that he had looked into the Act of Parliament since the House last met, and it appeared to him that the proper course to pursue would be to negative the motion of the hon. Member for Newcastle, and to let the panels attend on the day named, when the general committee might pass by the Ludlow petition, and without nominating any committee for trying that petition, proceed to the nomination of the committees for the trial of the cases lower down in the list. The section of the Act to which he thought that it would be proper to refer, to justify this view of the case was the 30th section, by which it was enacted,That in case a Member declined to defend his seat, that thirty days' notice thereof should be given in the London Gazette, and in the meantime that the proceedings should' be suspended.It then declared,That in every case in which the proceedings in any petition, inserted in such list, shall be afterwards suspended, the petition shall be struck out of the list, and shall be again inserted at the bottom of the list at the end of such suspension of proceedings.In the 52d section, which regulated the proceedings of the general committee in the nomination of the special committee to 810 be appointed to try any election petition it was enacted,That the general committee shall not in any case proceed to choose a committee to try any election petition, until they have chosen a committee to try every other election petition standing higher in the list aforesaid, the order for referring which shall not be then discharged, or in which the proceedings shall not be then suspended.In the present instance they had four election petitions to take into consideration on the 12th and 16th of March. The first was that of Ludlow; the question then arose whether the proceedings were not suspended in this case under the provisions of the Act, and whether it would not be the proper course to pass that by, and to proceed to nominate the committees in the other cases. By the 47th section, it was enacted, that the general committee should give their notice in writing to all the parties petitioning, as well as to the sitting Member, before it proceeded in any case to appoint a special committee to try an election petition. When, however, the proceedings were suspended, the committee was not in a situation to proceed, under the Act, with the Ludlow election case, as the notices required by the Act had not been given. From this, it must be obvious, that the general committee was not in a situation to nominate the special committee in the Ludlow case. They were not in a situation to proceed with the Ludlow case, in consequence of the notices not having been given, and as the time had expired, so as not now to allow the notices to be served before the day appointed for the nomination of the select committee. The section of the Act, which he had just referred to made provision for a case of this kind. He conceived, then, if this view of the case was taken, that there could be no doubt that the proceedings of the Ludlow election petition had been suspended, and, for the reason given, the petitioners were not in a state to proceed. The question, then, was, whether it was necessary to suspend the nomination of all the four petitions, because the first committee was not in a situation to proceed? He had come to the conclusion that such a step was not necessary, but that the Ludlow case, coming within the exception of the 52d section, the proceedings upon it must be suspended till the proper notices had beep given. He did not believe the House was, 811 in a situation to interfere in this case, but that the general committee must, on the day appointed, pass by the nomination of the committee in the Ludlow case, and that the panels must attend in order to appoint the other committees. He saw no reason why the Order of the Day for attendance of the panels should be discharged. Therefore, if the hon. Gentleman's motion was discharged, they could, on the 12th, pass by the nomination of the Ludlow committee, and proceed with the others.
§ Sir William Rae
said, that it appeared to him, that as the Ludlow petition was presented to the House last Session, it came under the operation of the 93rd clause, which enacted,That if at the close of the present Session of Parliament there shall be any election petition or petitions before the House, the order for taking which into consideration shall not have been discharged, and for trying which no committee shall have been appointed, such election petition or petitions shall be tried by a committee, to be chosen under the provisions of this Act, and such petitions shall be referred to the general committee of elections before any petition presented in the next Session, and in the order in which they were presented to the House, and shall be treated as petitions on which the examiner of recognizances has reported, &c.Under the last section the petition cannot be proceeded with, as the petition is suspended, and, at the same time, the recognizances must be considered as completed. The section, however, distinctly stated, that every petition of last Session must be taken before any petition of this Session. In the Ludlow case there were two petitions, the one against the return, and the other from certain electors, praying to defend the seat of the sitting Member, but this latter petition was not sent to the general committee, therefore the parties did not get the notices required by the Act. The section of the Act which referred to voters admitted to become a party to the defence of the seat of the sitting Member, declares,That any person or persons claiming to have had a right to vote at the election to which the petition shall relate, to petition the House of Commons, praying to be admitted as a party or parties to defend such return, or to oppose the prayer of such election petition, and such person or persons shall thereupon be admitted as a party or parties, together with the sitting Member, if he be then a party against such petition, or in the room of such Member, if he be not then a party against the 812 petition, and shall be considered as such to all intents and purposes whatever, and any such petition shall be treated as an election petition.It was very plain from this, that the petition must be treated as an election petition. If it was so, it was clear that it must be referred to the general committee before any petition of the present Session could be taken into consideration. They must, therefore, take this petition into consideration before they proceeded to the consideration of the Cambridge petition, which had been presented during the present Session. The terms of the Act had not been complied with, and in that part where it was obviously intended to tie up the hands of the House of Commons, and to make them adhere to the strictest rules. The only way in which they could proceed with safety, was to discharge the rules for taking into consideration the four petitions from Totness, Cambridge, Ipswich, and Ludlow, as well as the appointment of the committee and the other proceedings said to be irregular, but he thought that the other course, suggested both by the learned Solicitor-general and the hon. Member for Newcastle were open to objection.
§ Sir William Follett
regarded this question as one of considerable importance. He regretted that he could not take the same view of the subject as his hon. and learned Friend, the Solicitor-general, to whose opinion he attached great weight. He agreed with his right hon. Friend who spoke last, in thinking that it was a matter of some doubt as to whether the whole of these proceedings under the Act would not be irregular; at the same time he apprehended that the motion of the chairman of the general committee of electors was right, and that it should be adopted. He would shortly state his views as to the construction of this Act. Election petitions had been presented from Ludlow and Totness during the course of last Session, and from Cambridge and Ipswich, during the course of the present one. Last Session the sitting Member for Ludlow had intimated to the Speaker that it was not his intention to defend his seat, upon which certain of the electors had petitioned to be allowed to defend it. The petition then before the House was presented last Session, and, therefore, came within the operation of the 93rd section of the Act, which made provision 813 for the election petitions remaining at the close of the last Session. The House this Session had referred the petition against the return for Ludlow to the general committee, but had neglected to refer, in the first instance, the petition of the electors to defend the return. When the petitions had been referred to the general committee, they had made out their list in the following order:—Ludlow, Ipswich, Totness, Cambridge; but, in consequence of the petition of the electors not having been referred to the committee, they had given no notice to the petitioners, consequently the provisions of the 47th section had not been complied with, and the proceedings could not regularly go on until such notice had been given. The 47th clause enacted;—That the general committee of elections shall, from time to time, determine how many committees shall be chosen in each week for trying the election petitions which then stand referred to them in which the sureties shall have been reported unobjectionable, and the day or days on which they will meet for choosing such committees, which they shall choose in the same order in which the petitions stand in the list aforesaid, having regard to the number of select committees which may then be sitting for trial of election petitions, and to the whole number of such committees then to be appointed; and notice in writing, of the day on which the committee will be chosen to try any election petition shall be given in writing by the general committee to all the parties herein-after mentioned, such time not being sooner than three weeks after the day on which such notice shall be given.Now, in this case, the petition of the defenders of the seat, which another clause slated was to be regarded to all intents as an election petition, had not been referred to the general committee, and consequently, the notices had not been given, and he apprehended they could not go on with the trial of this case, as the parties had not had the due notices, and could not be before the committee. Then the question arose as to the course which they should take, and whether they would proceed with the Ipswich, Totness, and Cambridge petitions, before they appointed the committee on the Ludlow election petition. On this point they must refer to the 52nd clause of the Act. The list of petitions had been made out by the general committee, and Ludlow was at the top of the list. The 52nd section of the Act provides— 814That the general committee shall not in any case proceed to choose a committee to try any election petition until they shall have chosen a committee to try every other election petition standing higher in the list aforesaid, the order for referring which shall not be then discharged, or in which the proceedings shall not be then suspended under the provisions hereinbefore contained, except in the case of choosing a committee to supply the place of a discharged committee, as hereinafter provided, which substituted committee shall be first chosen on the day on which the general committee shall meet for that purpose.Under the provision of this clause, then, they could not proceed with the Ipswich, Totness, or Cambridge petitions, before they had appointed the committee in the Ludlow petition. No order for the discharge of this petition had been made. The question, arose, then, whether it might not be considered as suspended. The 30th clause would be found to be the only one that referred to election petitions that were discharged or suspended. In that clause, it was enacted that—The general committee of elections shall suspend their proceedings in the matter of any petition referred to by any notice inserted in the Gazette as aforesaid, and shall not do anything therein until thirty days after the day on which such notice shall have been inserted in the Gazette, unless the petition of some person or persons claiming to be admitted as a party or parties in the room of such Member shall be sooner referred to them; and the general committee shall make out a list of all election petitions in which the examiner of recognizance shall have reported to the Speaker that the sureties are unobjectionable, and in which the proceedings are not suspended, in which list the petitions shall be arranged in the order in which they shall have been so reported upon; and in every case in which the proceedings in any petition inserted in such list, shall be afterwards suspended, the petition shall be struck out of the list, and shall be again inserted at the bottom of the list, at the end of such suspension of proceedings.Suppose a petition referred to the general committee against the sitting Member, and he gave notice that he did not mean to defend his seat, and notice is inserted in the Gazette, and then the general committee suspend it. He thought they would rind no other clause in the act empowering them to do so but the 32nd clause, and that they had no power to take one case before another, except it had been particularly provided for. If it occurred that a petition had been presented this Session, and referred to the general committee, 815 and the sitting Member had said he did not mean to defend his seat, and notice had been given, then the power of suspending it would have applied, but it would apply only to a case of that sort. The general committee had made out the list, and in the cases of the major part of the petitions there was clearly nothing to lead to either the suspension or the discharge of the proceedings. He entirely concurred with his learned Friend, the Solicitor-general, that they could not proceed with the Ludlow petition, because they had not given a notice of thirty days, and it was therefore virtually suspended; but he apprehended the clause applied only to the "cases hereinbefore provided for;" and that, inasmuch as they had not given the right notice to the party in the Ludlow election, it was necessary such person should have such notice before they proceeded; and as the General Committee had appointed days on which they could not proceed to the trial of the petition, and they had the power of appointing other days, they should do so, and take care that they did not take one petition before they had disposed of the other. He certainly thought, that the General Committee had full power to appoint other days for the trial of the Ludlow petition, as well as the Ipswich, Totness, and Cambridge petitions, provided the list of rotation was adhered to. He apprehended, that they could not say, that the parties were not entitled to full notice as described in the act; therefore, as far as his judgment went, they should so far alter the list, by putting down the whole of the cases in their respective order.
§ The Attorney-General
was unfortunately not in his place when the former discussion took place, and he had not had an opportunity of looking into the matter at present. He was sorry that he was unable to recommend any course to the House, because they had got into a dead lock. The House had now parted with the authority which had been given to it on this subject by the law. When the bill of the right hon. Member for Tamworth was brought before the House, he had ventured respectfully to state that he thought it would be better to repeal the 9th George 4th entirely, and pass an act by which Parliamentary costs might be enforced, and at the same time the House should have come to certain resolutions as to their proceedings in these matters. 816 Unfortunately, it seemed to him, the House had taken a different course, and erected a statutable tribunal, which must proceed in the course the Act of Parliament had prescribed. This was just as much a statutory tribunal as any court of conscience or borough court, and they must adhere to the rules and regulations laid down for their guidance. It seemed to him that by the 93rd section, they were restricted as to the course they should pursue. The 93rd section directly enacts,—That all petitions of last Session shall be referred to the general committee of elections before any petition presented in the next Session, and in the order in which they were presented to the House.The 20th section admitted voters to defend the seat of the sitting Member, and provided that their petition, praying to be so admitted, should be treated as an election petition. He was afraid, that under; these sections at present no legal committee could be constituted for the trial of the Ludlow election. The petition against the seat and for the defence of the seat should both have been referred to the general committee; and as the latter had not been done, he feared that all the proceedings would be regarded as coram non. He regretted exceedingly, that the House had got into a position of such difficulty, nor could he see his way out of it except by fresh legislation. He entertained the greatest respect for the opinions of his teamed Friend, the Solicitor-general, as well as for those of his hon. and learned Friend, the Member for Exeter, but he differed from both of them on this subject. The Act of Parliament only gave them the power to refer the petitions to the general committee. They had referred four petitions to that body, and he did not see what power they had to alter the arrangement of them. The House was now exercising a power which was restricted and defined by law; and he did not see how it could suspend its proceedings in this matter. If there was an indictment for perjury of any person who had given evidence before these committees, and the Court of Queen's Bench was called upon to determine whether the Committee was duly constituted or not, the court, by the power confided to it by the law, must proceed to determine in the matter; and could that tribunal say, that the House had exercised its jurisdic- 817 tion as was directed under the 93rd section of the act? They had made one reference to the general committee, and he doubted whether they could make another. He regretted the difficulty they were in, and he only felt the more strongly what he had stated on a former occasion, that that House could never satisfactorily and beneficially exercise its right to determine election petitions, until all the acts on the subject were repealed. All they wanted was the power to award costs, and then their proceedings would be rendered independent of the courts of law.
§ Sir T. Fremantle
regretted that the hon. and learned Gentleman did not approve of the suggestion of his right hon. Friend (Sir Wm. Rae), which was to consider all the previous proceedings as irregular, to discharge the order, and then to come regularly before the House again. The hon. and learned Gentleman contended that the House had not done what was required by the act of Parliament, and that this could not be undone unless by legislative enactment. He did not agree in this, although he admitted, that the House had done things in connection with these petitions in such an irregular and informal manner, that they had not complied with the provisions of the act of Parliament. It appeared to him, under all the circumstances, that the best thing they could do would be to commence de novo. On the whole, it appeared to him, considering all the difficulties of the case, that the safest course which they could pursue, was that recommended by the right hon. and learned Member for Bute, and he believed that it differed but very little from that which the chairman of the general committee proposed. He should therefore support, in the first place, the motion for the discharge of the order for the panels; and then, that all proceedings under the petition should be declared to be irregular.
§ Sir George Grey
stated, that if all the proceedings in this case were held to be irregular, some inconvenience might result, but he thought that under all the circumstances of the case, it would be sufficient if they adopted the suggestion of the chairman of the general committee. With regard to the assertions of the hon. and learned Member for Exeter, relative to the 52nd clause of the act, he did not think that that clause rendered it necessary for them to adopt that course of proceeding, 818 as the hon. and learned Member seemed to think. That clause merely prescribed that the committees should be taken as they stood on the list. But the question was, what was the order in which they then stood, and he believed, that the committees might now be considered to have changed their places. He should have thought that the notice in the Gazette was a sufficient intimation to the general committee, that the sitting Member did not intend to defend his seat, but that this would be done for him by certain electors of Ludlow. The petition had been presented to the House; and the House, in violation of the direction of the act, had neglected to refer the petition of the defenders of the seat to the general committee. If the notices could have been served in time, it would not have been necessary to have any delay, and it would be impossible to allow the parties to suffer from the negligence of the House. He should be sorry to come to the conclusion of his learned Friend the Attorney-general, and he thought that the irregularity might be got over by adopting the course proposed by the hon. chairman of the general committee.
§ Mr. Kelly
said, that whatever difference of opinion might exist as to the questions raised on the occasion, they would all admit, that it was of the last importance that a correct decision should be arrived at on the case then before the House. If there should be any deviation from the statute, all the proceedings of the committee would be void, and the most injurious and inconvenient consequences would follow. He differed in one point from his hon. and learned Friend the Attorney-general, and that he did not think that the least difficulty could be created by the operation of the 93d section of the act, which referred to the election petitions remaining over from last Session. He thought that the provisions of that section had been strictly as well as substantially complied with, and that therefore the proceedings were not, in any degree, irregular in that regard. That section merely required that petitions pending in the then Session of Parliament should be referred to the House in the order that had been pointed out—that is, before any petitions presented in the present Session. That he believed had been done in the case then under their consideration. He contended that the 93d 819 section had been complied with, because the Ludlow election petition was referred to the committee before the Cambridge; and the section which required the petition of the electors to be referred to the committee, had also been complied with. No difficulty, therefore, arose from the 92d section, as to the legality of the proceedings of the committee. To proceed to appoint the different select committees in the order in which they appeared on the list, would be nugatory and erroneous. The question, therefore was, what could now be done, consistently with the provisions of this statute; and he thought the House must consider, not what it might have been expedient to do at the time the act passed, but what had been prescribed by the terms and provisions of the act; and he held it was clear that the jurisdiction which formerly existed in that House to rescind and alter orders made from time to time, was now, by the operation of the act, transferred exclusively to the general committee appointed under the act. It was not competent for that House to rescind any order which it had made for referring this matter to the general committee. He thought it would be the best course to propose some amendment, under which the House should, in reality, take no course whatever, but leave it to the general committee to adopt that course which they might think fit, and that course, he apprehended, would be to rescind the present order.
§ Lord John Russell
did not conceive, that under the act, the order of the petitions could be altered; but he was disposed to agree with the hon. and learned Gentleman who had just sat down, that, under the 47th section of the act, the general committee had power, from time to time, to appoint the weeks, and determine how many committees should sit, and the days on which they should sit, and he imagined that it was within their power to make an alteration as to time. That being the case, the learned Gentleman who had last spoken asked, was it necessary the House should interfere? He did not think it was. But as he viewed the motion of the hon. chairman of the committee, it was not proposed that the House should in any way interfere or direct anything to be done by the general committee, but only to interfere in regard to an order made by themselves. The chairman of the committee having stated 820 in the House that if there were no notice given other than the twenty-four or forty-eight hours directed by the act, the first and second panels might not be in attendance when the committees were chosen. It was therefore desirable that the House should so far interfere as to direct the attendance of the first and second panels on particular days. He thought the House had the most perfect right to make such an order, and it therefore appeared to him that the course proposed by the committee was the right course to take. It was not proposed to interfere with the general powers of the committee under the act. He thought it most desirable that these powers should be left to their own discretion, anxious as they doubtless would be, to conform to the provisions of the act of Parliament.
§ Sir R. Peel
was confident of this, that if a new act were necessary to do effectual justice, that act would cheerfully be passed. He apprehended that it was clearly the intention of the House that the petition of the electors should have been referred at the time to the general committee. But by some accident that reference had not taken place. He quite agreed with the noble Lord, that it was a point of prudence and policy to interfere as little as possible with the general committee. The hon. and learned Solicitor-general should remember that the House had intended by the act to take away from itself the temptation to such discussions, involving as they did party and political contests. He thought it, in point of law, much more probable that the general committee had the power to give directions in this case, than that the House had it. He was inclined to think that the committee had the power not to alter the order in which the petitions stood, but to postpone the whole proceedings to such a period as would enable the notices to be given in the case of the first. He thought the wisest course for the House to pursue, would be to remove all obstruction to the free action of the general committee; and if the general committee, on further consideration of the subject, should find the intervention of Parliament necessary to remove the difficulty, they might make a special report to the House on the subject. He should support the motion of the hon. Gentleman, which, he thought ought to be complied with in order to give the general committee an opportunity of 821 seeing if they could not provide a remedy for the evil; if they could not do so, they might make a special report, calling for the intervention of Parliament for the purpose of obtaining that which he was convinced was the object they all had in view, substantial justice to all parties.
§ Original motion agreed to.