HC Deb 16 February 1842 vol 60 cc531-8

The general committee of elections was sworn at the Table.

The Speaker read over the list of election petitions to be referred to this committee. On his corning to the Belfast petition,

Mr. Thesiger

rose and said, that he Wished to call the attention of the House to a subject, respecting which he had given notice, respecting the right of a Peer to interfere with the return of a Member to that House. He would first move that the petition be read. [Petition read accordingly.] He would next move that the sessional order relative to Peers not interfering with elections be read. [It was read accordingly.] The point in the present case involved a matter of great interest, as connected with the privileges of that House. It was whether it was competent to a Peer of Parliament to interfere with elections, by becoming a petitioner against the return of a Member of that House. The question arose upon two petitions presented against the late return for the borough of Belfast. The first of these petitions was from Lord Ennishowen, and the other from the same noble Lord and Archibald Hamilton, one of the electors of Belfast; but the noble Lord was the only person who had entered into recognizances to proceed with that petition. The circumstances of the case were new; he had not been able to find, upon inquiry, or by his own research, anything like it. Cases of the present kind were to be decided by principles which were familiar to them, and little doubt could be entertained as to the course it was necessary to pursue. At the late election for Belfast, the Earl of Belfast, then a commoner, and the eldest son of a Peer, was the unsuccessful candidate. There was no doubt it was competent to the noble Lord to come to the House and petition either that the return be amended, or that the election be voided. But, in the present instance, immediately after the return, and before any election petition was presented, the noble Lord was called to the House of Peers by the tide of Baron Ennishowen and Carrickfergus. It was clear that when the Earl of Belfast was called to the Upper House, he was entirely disqualified from being an elector, and he could have no personal interest in elections, and any interference would be a breach of their privileges. They were all familiar with the sessional orders which were passed every session, and which were the same now as at the time of the act of William. The order which had been just read, stated, That it is a high infringement of the liberties and privileges of the Commons of the United Kingdom for any Lord of Parliament, or other Peer or Prelate, not being a Peer of Ireland at the time elected, and not having declined to serve for any county, city, or borough of Great Britain, to concern himself in the election of Members to serve for the Commons in Parliament, except only any peer of Ireland, at such elections in Great Britain respectively, where such peer shall appear as a candidate, or by himself, or any others, be proposed to be elected. There might be some doubt as to the correct interpretation of that order; whether it referred merely to the period of election. But if hon. Members would look to the circumstances of the present case, they would see, that the order applied to it; for it was plain, that if a party applied to that House for the purpose of avoiding an election, what did he, but concern himself in that election? Lord Belfast, having been a candidate, could no doubt have petitioned against the return before he became a Peer, but he had little doubt, that he could not pe- tition, now that he had become a Peer, for it would be an infringement of their privileges. The moment he was made a Peer, the ground was cut from under him. This appeared to him to be a matter of importance to the House, and it was necessary, that it should be determined, and he was anxious, that the House should come to a decision on the point without delay. He thought it right to say, that the decision of the House could make no difference whatever with respect to the inquiry into the last election, because there was another petition presented from the electors, which was a good and valid petition, and, therefore, there was not the least necessity for Lord Belfast, now created an English Peer, to come forward with his petition, for an investigation must take place. He had felt himself called upon to direct the attention of the House to the subject, as he had often been connected with proceedings before election committees of that House, and had devoted much attention to the rules and privileges of that House, and he could not help thinking, that this was a subject well worthy of consideration, but he did not desire to press the subject more than the House might think the case required. The House could not be too jealous of its privileges, which were granted, not for the benefit of the Members themselves, but for that of the country. He should conclude with proposing, that the petition of Lord Ennishowen, and the second petition of Lord Ennishowen and Archibald Hamilton, for with regard to this petition, the noble Lord was the only person who had entered into a security, should not be referred to the General Committee of Elections.

Mr. Rigby Wason

thought, that this was peculiarly a case for the determination of the general committee, for if the House was to take up questions of this kind, its time would be too much occupied to attend to much other business. He believed, that he knew a case which went pan passu with the case alluded to by the hon. and learned Member. In that case, the petitioners had entered into recognizances, and had paid witnesses for their attendance. He considered it would be extremely inconvenient if the House were to take cognizance of these cases. He repeated, that the proper place for considering them was in committee, and he considered it would be extremely irregular for the House to interfere in the present instance. If the petition were referred to the committee, and that committee found, that the petitioner was not qualified to present a petition, the committee would report, that there was no valid petition against the return, and the sitting Members would be declared duly elected.

Mr. M. J. O'Connell

considered, that if there was anything informal in the proceeding, it would be better to refer it to the general committee. As some doubt seemed to be entertained on this point, he would suggest, that the debate be adjourned.

Sir George Clerk

observed, that the act of Parliament declared, that the petitions should be taken in the order in which they stood on the list; therefore, the petitioners, who were electors, would still have their case taken in the regular order. The present, however, was a perfectly novel case. He believed, that on a reference to the journals, no case could be found in which an unsuccessful candidate at an election, who had presented a petition against the return to the House, had been called up to the House a Peers, in the interim between the presentation and the trial of the petition. Bet there were several instances of the qualifications of candidates having been under the consideration of the House and the committee, which, though not exactly the same, bore a strong analogy to the present case. In the Honiton case, the election having been declared void, and no special report having been made to the House, the candidate returned at the previous election, went down to the second election, and was defeated; he then became a petitioner. There was nothing on the face of the petition which would disqualify him from being a petitioner; but the House inquired whether he was disqualified or no. In the same way, in another election; notice was given, that the qualifications should be the question, and the committee went into the merits of the case, before they allowed him to go before the House. That applied to cases where nothing appeared on the face of the petition. In the Carmarthen election in 1803, there were three petitioners, stated to be freeholders in the county of Carmarthen, but it did not appear, on the face of the petition, that they were entitled to vote; the House had, however; referred the petition to the committee, and, in other cases, the House considered whether the disqualification of the electors was sufficient, showing, that the character of the petitioner should be declared by the House. Could there be any doubt, that George Chichester, Earl of Belfast, Baron Ennishowen, had been a Candidate for the representation of Belfast, being then a commoner? Was it possible, that Lord Ennishowen could appear before the House in the character of a petitioner? He would ask the House what course it would adopt, when a person had petitioned against a Peer? Would the House allow that Peer to go before them and defend himself? Certainly not. If the per. son petitioned against, is called to the other House, he was not allowed to appear before the committee; and if this objection appears on the face of the petition itself, it was clear that it could not be referred to the committee. If there was no other petition, except that signed by the noble Lord and the elector, it could only be taken as the petition of that individual elector himself. He, therefore, thought that this was an entirely new case, and that the House would be establishing a very dangerous precedent, if it, for the first time, referred to the committee a petition that bore on the face of it that it was signed by, and was the petition of a Member of the other House of Parliament. He should certainly vote for the motion of his hon. and learned Friend, that the petition be not referred to the committee.

Mr. Roebuck

wished to have the petition again read, that they might see how the case really stood. No one in that House had hitherto declared that he knew that the petitioner, Lord Ennishowen, was a Member of the other House of Parliament,

Petition read.

Mr. Roebuck

would put it to his hon. and learned Friend who had brought forward the motion, whether there was anything in the words of that petition which ought not to go before the committee. He wanted to know what there was in that petition to show that the petitioner was a Peer of the realm. It was stated, in the petition that he was a commoner, and there was nothing in the petition to show that he was not a commoner still. As there was no evidence of that kind, there was no reason yet shown why the petition should not be referred to the committee.

Sir G. Clerk

said, that that House was cognisant of the journals of the House of Lords, and of the Gazette, both of which showed that Lord Ennishowen had been called to the Peerage.

Mr. Roebuck

said, that in that case the proper course would be to adjourn the discussion until the journals of the House of Lords or the Gazette had been consulted.

An Hon. Member,

wished to put it to the Speaker whether the point at issue might not be decided by the committee.

The Speaker

said, the question for the House to decide was, whether the petition of Lord Ennishowen and Carrickfergus, was such a breach of the privileges of the House as to prevent its being received. He apprehended that being a question of privilege, the House ought to decide it, and that a question of privilege could not be referred to a committee. He wished to call the attention of the House to a clause in the act which had reference to this subject. That clause provided, that no election petition should be received by the House, unless signed by some person claiming the right to vote at the election, to have been elected thereat, or alleging himself to have been a candidate.

Mr. Watson

said, this case required the most serious consideration, because they were about to establish a precedent, and he would therefore suggest that a search be made for precedents, in order that they might proceed upon safe ground. There were two classes who had a right to petition the House — one, the rejected candidate at the election, or the person who described himself to have been a candidate, the other, the electors. According to the petition, Lord Ennishowen had a right to present himself as a candidate, and had a right to be elected and returned, and the case fell distinctly within the Act of Parliament. The question then arose, whether, by being removed to the upper House, he had lost the right to dispute what the petition described as an improper return. The present motion had certainly taken many hon. Members by surprise, and he had been told, not more than half an hour ago, by Mr. Cockburn, one of the counsel in the Case, that the matter would not come on for a fortnight. He wished to make one suggestion to the House. Lord Ennishowen was a petitioner, and was within the clause of the Act of Parliament, Ought he not, therefore, to be heard by counsel at the Bar? Amongst other things bribery was alleged, and might be proved. It the matter was to be fairly investigated, he thought the noble Earl ought to have some notice on the point. At all events, further time ought to be given for the consideration of the question.

Sir R. Peel

thought the House could not come to any satisfactory decision at the present moment. The time of hon. Members had been so much occupied with other subjects, that many of them had not paid sufficient attention to this subject, and he freely admitted that he could not at present give a vote with ally satisfaction to his own mind. Recollecting that the great object of the election law, was to keep questions relating to elections out of the House, he certainly should feel considerable anxiety in voting on this matter. Considering that this was the first question of this nature which had arisen since the passing of the act which the House had been called upon to decide by a majority, he hoped the hon. and learned Member would postpone the motion, to afford an opportunity of ascertaining whether any precedents could be found bearing on the subject, or whether there were any analogous cases.

Mr. V. Smith

said, that there existed an additional reason for the postponement of the question, for, in point of fact, no notice of it had been given. So little was known of the matter, that even one of the hon. Gentlemen who was to have been sworn on the committee was absent when the others were sworn. It was quite impossible that the House could come to a just conclusion at present, and it appeared to him (Mr. Smith) that no person except the learned Member who had brought forward the question, and the Secretary to the Treasury, with whom no doubt there was a communication upon the subject, knew of the course taken upon the present occasion.

Mr. Thesiger

had no wish to press the matter too hastily on the attention of the House, because it was of great importance, and ought to be seriously and gravely considered. Some hon. Gentlemen stated that the House had been taken by surprise, and, therefore, he (Mr. Thesiger) thought it necessary to state that on Monday last he distinctly gave notice that at the time of referring the petition to the general committee on elections, he should call the attention of the House to two petitions which had been presented by a Peer of Parliament, in violation of the privileges of the House.

Debate adjourned.