HC Deb 17 December 1847 vol 95 cc1345-52

in rising to call the attention of the House to the petition of Sir W. Jones, alleging that the recognisance entered by the petitioners against his return was not in the form prescribed by law, and praying that no further proceedings may be had thereon, said, the question was one of much nicety and difficulty, and the facts were as follows: On the 26th of November a petition was presented against the return of the hon. Member for Cheltenham by six different electors. As a condition precedent to the presentation of the petition, it was required by the Act 7 and 8 Vic, c. 103, that petitioners should enter into recognisances according to the form given in the schedule. By a subsequent section it was provided that no election petition should be received unless the certificate of the examiner of recognisances was endorsed upon it to the effect that such recognisances had been entered into. In this case a recognisance had been entered into; but the recognisance required by the Act had not been entered into, and the variation between the form required by the Act and that the petitioners had entered into, was very material in point of law. The form required by the Act was, that the petitioners should pay all the costs and expenses due and payable from them, and each of them, in the event of the petition being withdrawn. The recognisance entered into by the petitioners omitted the words "and each of them," the legal consequence of which, he believed, was, that if any one petitioner died or withdrew from the petition, any costs which became due and payable by a less number than the six, could not be recovered. Having thus stated the facts, he would now call attention to the law of the case. The two points he would suggest to the House were these: first, that the recognisance not having complied with the provisions of the Act was wholly void; and, secondly, if there were any doubt on that point, that, at all events, the legal effect of the recognisance was materially altered and materially weakened. It must be remembered that the tribunal in question was a statutable tribunal, with a limited authority; the provisions of the Act must, therefore, be strictly complied with, and if any steps taken under it were void ab initio, they could not be made valid by any subsequent proceedings. Two cases had occurred under the law on this subject, but both under the late Act, and not under the present. They were the cases of "Brewer and Holtham," and "Ransom and Dundas." (The hon. Gentleman read and commented on these cases.) The first point to be decided was, whether or no the House had jurisdiction in the case. That point, however, happened to be settled in the Wigan case. The difficulty was this: under the 9th George IV. it was provided that the certificate of the Speaker should be conclusive only as to the amount of the recognisance; by the present Act, Clauses 93 and 97, it was provided that the certificate of the Speaker, with reference to the courts constituted under it, should be evidence not alone as to the title, but also as to all matters anterior to it. The decision of the point, therefore, would place the Speaker in an embarrassing position, which induced him (Mr. Walpole) to conclude that the House alone ought to decide it. It was contended that by the 10th section of the Act, the question was taken out of the jurisdiction of the House; but as there must be some jurisdiction somewhere, and as there seemed to be no jurisdiction elsewhere, that jurisdiction, he argued, was therefore in the House. There were three modes of deciding the question, cither by appeal to the Speaker, or by reference to a Select Committee, with directions to report thereon; or by Motion in the House that the order for reference to the general Committee be rescinded. But as he preferred adopting that which he deemed the most regular course in the case—namely, the second of those alternatives, he should move that a Select Committee be appointed to inquire into the allegations contained in the petition of Sir Willoughby Jones, Baronet, Member for Cheltenham, presented to the House on the 14th day of December, and to report thereon to the House.


was much mistaken if a larger and a more important inquiry than that proposed by his hon. and learned Friend was not involved in the petition before the House, namely, whether the House could entertain, or ought to entertain, after the passing of the Act of Parliament, charges of this kind, and whether it had any jurisdiction in the matter. He submitted to the House that it was not such a court as could entertain the question, and it had no jurisdiction in the case either by way of appeal or by way of review. Moreover, without meaning the slightest disrespect to the House or to any individual Member, he was hound to state that he considered the House a very had tribunal for the trial of intricate and doubtful points of law. The object of the Act of Parliament was to withdraw from the jurisdiction of the House those questions of intricate and doubtful law which could be best settled elsewhere; and the object of the appointment of an examiner of recognisances—an officer new to Parliament—was, that these questions might be more calmly, simply, and directly considered as points of law in his chambers than they could be in that House. By that Act of Parliament the Speaker was to appoint a fit person to certify as to the sufficiency of the recognisances. [Interruption.] Now he could not give a better illustration than that interruption of the unfitness of that House to decide upon difficult and intricate points of law. The 5th section ordained that the Speaker was to appoint a fit and proper person, and that every person so appointed should hold his office during the pleasure of the Speaker. He was to examine into the recognisances, and not to take them for granted—he was to look into affidavits, and see that they corresponded in point of law with the requisitions of the Act of Parliament; and this requisition would be found in the third section. He was to decide upon matters of fact, and the law steps in and says, "Your decision shall be final; whatever you decide, right, or wrong, it is final." But then his hon. Friend said that there were no such words in the clause which desired the examiner to inspect the recognisances. On this point he would beg his hon. Friend's pardon—they were there by implication. He would take the case of an arbitrator. If he was ever so wrong in his law, yet his decision was final. The case was exactly similar: they appointed a fit and competent person to examine into difficult and intricate questions of law, and they left it for him to decide; and for these reasons, he humbly submitted, that they ought to entertain no appeal. In the case of the Wigan election, the House refused to interfere. In the case of the Galway election, otherwise that of the Irish Solicitor General, Mr. Monahan, the following decision was made. By the Act of Parliament an affidavit must be made by the sureties of what they were possessed, and in the affidavit it was stated what they were worth. The examiner rejected the affidavit. There was an appeal made; but the House refused to interfere, and the right hon. Baronet the Member for Tamworth agreed in that decision. [Sir F. THESIGER: The petition in that case was only to extend time.] Yes, but it was refused on the principle that he had already stated. In the case of the Carnarvon election, the House had acted in a similar manner. Lord William Paget presented a petition that he might be permitted to have proper recognisances. They had come up to London, and had them there completed before a magistrate who had not authority; and the examiner of certificates would not permit him to pass his certificate. The petition in the present case had gone out of the House; it was referred to the general Committee for the consideration of election petitions, and they had nothing more to do with it. He suggested to the House to pause before they assumed to themselves a jurisdiction, the consequences of which might be fatal to the interests of the petitioners.


had endeavoured to form an impartial judgment on the present matter; and he would explain to the House the ground on which he supported the view of the question taken by the hon. and learned Gentleman who made the Motion. It would be proper for the House to recollect that they must be governed by the statute relating to the proceeding. He would first recite the terms of the Act. Now there could be no compromise with an Act of Parliament—we must be imperatively bound by its meaning and terms. He contended, therefore, that the form required for the recognisance must be substantially followed; and if that form was not followed, there was in effect no recognisance at all. Now he believed that the recognisance varied materially in form and substance from that which was laid down in the schedule. The question for the House to decide was, whether under the 10th section the examiner had the power to amend the defect in the Act stated by his hon. and learned Friend the Member for Midhurst (Mr. Walpole). His hon. and learned Friend the Solicitor General said that the certificate of the examiner of recognisances was final and conclusive. This was the question at issue; and he would point attention to the 14th Clause, which said nothing whatever to the effect that the certificate of the examiner should be final. How, then, was this question to be decided, and at what stage? Because they had allowed defective recognisances to pass, contrary to the Act of Parliament, were they therefore to be completely precluded from going into further inquiry, though everybody was satisfied that those recognisances were not good in law? It was the duty of the examiner, when he found that the recognisances were not according to the Act, to refuse to certify, as had been done in the Galway case. He called upon the House to be cautious how they proceeded, because whatever their determination might be, it might hereafter be questioned in a court of law; and in what position would the House stand if such an unfortunate state of things should arise? Suppose a witness before an Election Committee should commit wilful and corrupt perjury, he might be indicted; but if the proceedings were invalid from the first, he would appeal to any man, whether, if an objection were taken to such a verdict, that objection would not be fatal. Surely the House were not to be told that because they were wrong in the outset they were not to retrace their steps. Why should they perpetuate vicious proceedings?


thought that the House should first decide whether they were competent to consider the question at all, before they proceeded to determine in what way they would treat it. The best course, in his opinion, would be to refer it to a Committee, who should report all the facts of the case to the House. The report of the examiner of recognisances was not understood to be final and conclusive in every case; but his decision with respect to the sufficiency of them was considered in that light; and the only cases in which a Committee once appointed could be released were, where the petition was withdrawn, or where the sitting Member did not wish to defend his seat. He thought it a most dangerous doctrine to introduce in reference to a discharged order of the House; for the majority could at any time abrogate the statute by voting for the discharge of an order, whereas it was clearly intended that they should part with their jurisdiction altogether, except in the cases to which he referred.


said, the right hon. Baronet the Member for Tamworth, when the Act in question was under discussion, was reported to have said that the object of the Act was to make the decision of the examiner of recognisances final and conclusive, except as to the two cases provided for in the Act.


begged the House would remember that they had to perform judicial functions of the highest importance, and that their decision would affect in a very high degree the rights of the House, as well as of a Gentleman still more deeply interested in it—the sitting Member. Very nice questions of law had been brought forward by two hon. Gentlemen of high legal authority on one side of the House, which were opposed by two hon. and learned Members equally eminent on the other. As for himself, he was inclined to think the House could not feel itself in a position to decide this question judicially; and, looking to the whole case, it appeared the less of two evils to appoint a Committee to report as to the facts of the case. No doubt the intention of the House had been to make the decisions of the examiners of recognisances conclusive, where the proper forms were observed. But here a mistake was made by the officers of the House; and that mistake affected not only the petitioners but the sitting Member, who was deprived of his security against frivolous petitions, inasmuch as the omission of the words from the recognisance would clearly exempt the sureties in case one of them died before the case came on. The error was not merely literal, it was a substantial omission, which would render the recognisance for the payment of the expenses of the petition void, and the officer of the House had certified that to be correct which was not correct. A double injury would be inflicted by the House allowing this case to stand without inquiry—first, the petitioner would be permitted to have the benefit of his own wrong; and next, the sitting Member was deprived by the act of their officer of the protection which the House intended he should receive. All his own impressions were certainly in favour of the finality of the decision of the examiner; but if they insisted on it here, they would act in opposition to the plain dictates of equity, and place themselves in a position wherein they might find themselves met by the decision of a court of justice. He recommended the House to appoint a Committee to make a simple report of the facts of the case.


observed, that if a Committee were appointed to report before the 7th of February, they would have to sit during the vacation, which would cause great inconvenience.


said, before the House came to a decision on the question, he wished to guard himself with respect to any future occasion of the same nature, if the House thought fit to go into Committee. After the statement and able arguments of the hon. and learned Gentleman opposite, it seemed difficult for the House not to agree to appoint a Committee. But supposing that it sat, and made a report, there would be then the further question, with respect to which he wished to guard himself against being supposed to give any implied consent to further proceedings. Let the House observe the dangers into which they might be drawn by acting on the principle of the right hon. Baronet and the hon. and learned Gentlemen who had addressed them, and declared that the defect in the recognisance was formal and technical. Any hon. Member could bring forward an omission of a word in the recognisance, and say it was a defect, and upon such a question the House would have to decide a matter which affected the seats of Members belonging to different political parties. He certainly had thought the great advantage of the Act of the right hon. Baronet was, that it excluded all questions of the kind before the House. There might be some difficulty in certain cases as to the exact meaning of the Statute, but it was a very great benefit to be ruled in such a case as the present by the Statute; and if it should please the House to appoint a Committee, and that they should report to the House in favour of taking any course in favour of interference with the existing law, his impression was, that the House should allow the Act to be carried into effect, and should not interfere with any decision resting on the positive directions it contained.


regretted that the discussion seemed to have assumed a party complexion. He believed he had not received the protection which the law meant should be extended to him, and he thought it would have been only fair in the Ministry to consent to his being placed in the position which he had lost through no fault of his, but by the act of the officers of the House.

The House divided:—Ayes 134; Noes 125: Majority 9.

List of the AYES.
Adderley, C. B. Hood, Sir A.
Arbuthnott, hon. H. Hope, H. T.
Archdall, Capt. M. Hope, A.
Arundel and Surrey, Ingestre, Visct.
Earl of Keogh, W.
Ashley, Lord Knox, Col.
Bagot, hon. W. Law, hon. C. E.
Baldock, E. H. Lennox, Lord A.
Bankes, G. Lennox, Lord H. G.
Barrington, Visct. Lewis, rt. hn. Sir T.P.
Bateson, T. Lincoln, Earl of
Benbow, J. Lindsay, hon. Col.
Bentinck, Lord G. Lockhart, A. E.
Beresford, W. Lowther, hon. Col.
Berkeley, hon. G. Lowther, H.
Blackstone, W. S. Mackenzie, W. F.
Blakemore, R. March, Earl of
Boyd, J. Masterman, J.
Bramston, T. W. Meux, Sir H.
Bremridge, R. Monsell, W.
Bruce, Lord E. Muntz, G. F.
Buck, L. W. Neeld, J.
Burghley, Lord Newdegate, C.N,
Cabbell, B. B. O'Brien, Sir L.
Cardwell, E. Ossulston, Lord
Carew, W. H. P. Packe, C. W.
Clive, Visct. Pakington, Sir J.
Clive, H. B. Palmer, R.
Cobbold, J. C. Palmer, R.
Cochrane, A. D. E. W. B. Patten, J. W.
Codrington, Sir W. Peel, rt. hon. Sir R.
Coles, H. B. Peel, Col.
Compton, H. C. Pennant, hon. Col.
Corry, rt. hon. H. L. Plowden, W. H. C.
Cotton, hon. W. H. S. Prime, R.
Cubitt, W. Repton, G. W. J.
Deedes, W. Richards, R.
Deering, J. Rufford, F.
Disraeli, B. Scholefleld, W.
Drumlanrig, Visct. Scott, hon. F.
Drummond, H. Seymer, H. K.
Duncombe, hon. O. Shirley, E. J.
Duncuft, J. Sibthorp, Col.
Dundas, G. Sidney, T.
East, Sir J. B. Smith, J. B.
Farnham, E. B. Somerset, Lord G.
Farrer, J. Sotheron, T. H. S.
Fitzroy, hon. H. Spooner, R.
Floyer, J. Stafford, A.
Forbes, W. Talfourd, Serj.
Forester, hon. G. C. W. Taylor, T. E.
Fox, S. W. L. Thesiger, Sir F.
Fuller, A. E. Thornhill, G.
Gaskell, J. M. Tollemache, J.
Gladstone, rt. hn. W. E. Trollope, Sir J.
Gore, W. R. O. Turner, E.
Goring, C. Turner, G. J.
Grogan, E. Villiers, Visct.
Gwyn, H. Vyse, R. H. R. H.
Haggitt, F. R. Waddington, D.
Halford, Sir H. Waddington, H. S.
Hall, Col. Wall, C. B.
Hamilton, G. A. Walmsley, Sir J.
Heald, J. Whitmore, T. C.
Heneage, G. H. W. Willoughby, Sir H.
Henley, J. W. Wortley, rt. hn. J. S.
Hervey, Lord A. TELLERS.
Hildyard, R. C. Cripps, W.
Hogg, Sir J. W. Walpole, S. H.
List of the NOES.
Abdy, T. N. King, hon. P. J. L.
Aglionby, H. A. Labouchere, rt. hon. H.
Alcock, T. Langston, J. H.
Anson, Visct. Lascelles, hon. W. S.
Bagshaw, J. Lewis, G. C.
Bailey, J. Macnamara, Maj.
Baines, M. T. M'Taggart, Sir J.
Baring, rt. hon. F. T. M'Tavish, C. C.
Barnard, E. G. Mahon, The O'Gorman
Bellew, R. M. Maitland, T.
Berkeley, hon. Capt. Martin, J.
Bernal, R. Milnes, R. M.
Birch, Sir T. B. Mitchell, T. A.
Blackall, S. W. Moffatt, G.
Boyle, hon. Col. Molesworth, Sir W.
Bright, J. Moore, G. H.
Brockman, E. D. Morpeth, Visct.
Brotherton, J. Morison, Gen.
Brown, H. Mowatt, F.
Busfeild, W. Mulgrave, Earl of
Callaghan, D. Nugent, Lord
Campbell, hon. W. F. O'Brien, J.
Carter, J. B. O'Connell, J.
Clay, J. Palmerston, Visct.
Cobden, R. Parker, J.
Coke, hon. E. K. Pigott, F.
Colebrooke, Sir T. E. Raphael, A.
Collins, W. Rendlesham, Lord
Cowper, hon. W. F. Reynolds, J.
Craig, W. G. Ricardo, O.
Divett, E. Rich, H.
Duff, J. Russell, Lord J.
Duncan, G. Russell, hon. E. S.
Dundas, Adm. Salwey, Col.
Dundas, Sir D. Scully, F.
Dunne, F. P. Sheil, rt. hon. R. L.
Ebrington, Visct. Simeon, J.
Enfield, Visct. Smith, M. T.
Evans, Sir De L. Stansfield, W. R. C.
Evans, J. Strickland, Sir G.
Fagan, W. Strutt, rt. hon. E.
Forster, M. Stuart, Lord D.
Fortescue, hon. J. W. Tenison, E. K.
Fox, R. M. Tennent, R. J.
Fox, W. J. Thicknesse, R. A.
Gibson, rt. hon. T. M. Thompson, Col.
Gower, hon. F. L. Thornely, T.
Grace, O. D. J. Tollemache, hon. F. J.
Granger, T. C. Tufnell, H.
Grattan, H. Verney, Sir H.
Greene, J. Villiers, hon. C.
Gregson, S. Wakley, T.
Grey, rt. hon. Sir G. Ward, H. G.
Hall, Sir B. Wawn, J. T.
Hardcastle, J. A. Westhead, J. P.
Hastie, A. Williams, J.
Hayter, W. G. Wilson, M.
Headlam, T. E. Wood, rt. hon. Sir C.
Heathcote, Sir W. Wood, W. P.
Howard, hon. C. W. G. Wyvill, M.
Jervis, Sir J.
Jervis, J. TELLERS.
Keating, R. Greene, T.
Keppel, hon. G. T. Romilly, J.
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