KINSALE ELECTION. (Hansard, 29 March 1848)

§ MR. GOULBURN
rose to move the appointment of— A Select Committee to inquire whether the Oaths required to be taken at the Table by Members of this House have been duly taken by Benjamin Hawes, esq., and to report their opinion thereupon to the House. He was sure the hon. Gentleman would give him credit for having brought forward the Motion, not from any personal motive, but from a sense of public duty. The course taken by the hon. Gentleman and the officers of that House had, however, raised a question as to the right of the hon. Gentleman to sit and vote in Parliament; and, as there was no strictly analogous case, he thought it extremely desirable that a Committee should be appointed to consider the circumstances of the transaction, for the purpose of laying down a rule for the guidance of the House in similar cases. It was well known, that every Member of that or the other House of Parliament ought to be sworn at the table; and the omission of any Member to be sworn involved an incapacity to sit in the House, and other penalties for which he was answerable under the general law of the land. Cases were recorded in which parties, having failed to comply with the requisite formalities, had been obliged to resign their seats. New writs had been moved for the election of Members in room of those who had failed to comply with the rules; and, in consequence of the omission on their part being a mere act of inadvertency, the House had proceeded to pass an Act of Indemnity, which freed such Members from the penalties which they had incurred. It had been suggested to him, that he ought to move for a new writ in the case of Kinsale. But there were distinctions in this case which made it different 1098 from those which had preceded it. He thought, therefore, it would be much better that all discussion upon the point should be calmly conducted in a Committee, where they would have the means of obtaining the necessary information, which could be only partially adduced in the course of a debate in that House. He had, however, preferred a course which he trusted the House would agree in adopting, viz., that of referring the case to a Select Committee, for the purpose of inquiring into the circumstances. The facts of the case were simply these:—The hon. Gentleman (Mr. Hawes) was elected for the borough of Kinsale on the 11th inst.; on the 15th he presented himself at the table of the House to be sworn as Member for that borough; and it appeared from the papers which had just been read by the Clerk, that his return was not certified by the Clerk of the Crown till the 18th, three days after the hon. Gentleman had taken the oaths at the table. Now, it might be contended on the one side, that as the hon. Gentleman had been elected by a majority of votes at Kinsale, and as he naturally believed that the returning officer had made a proper return of that election, he was, therefore, the Member for Kinsale within the view of the statute; and that by his having taken the oaths since that period he had been declared and acknowledged to be a Member of that House. But he thought that it could be equally maintained, on the other hand, that the provision of the law which required that a Member should take the oaths at the table had not been fulfilled until the House had the means of knowing and recognising the hon. Gentleman as a Member of the House. The only means the House had of recognising him was by ascertaining that the return had been transmitted to the Crown Office. The Clerk of the House had no right to administer the oath to any individual who came to the table to be sworn unless he (the Clerk of the House) had evidence that the party so presenting himself had been duly elected; and he (Mr. Goulburn) need not inform the House that an oath administered by a person incompetent to administer it, was, in the eye of the law, no oath whatever. Now what evidence had the Clerk of the House for believing that on the day the hon. Gentleman (Mr. Hawes) was sworn he was Member for Kinsale? The 7th and 8th William III. required that the return should be sent to the Crown Office; and the 1099 grounds for that requirement were, that the transmission of the return was the necessary proof of the election that had been made; and until the House was in possession of that proof, the Clerk of the House was not authorised to administer the oath. The oath, therefore, was altogether null and void. That the oath should not be taken before the return was made to the Crown Office, was established by various circumstances. In the first place, no instance had occurred from 1696, when the Act for making the return to the Crown Office was passed, until the present, of a Member having been sworn before his return had been made to the Crown Office. In 1806 Sir John Newport was debarred from taking his seat on that very account; and Mr. Fox having complained to the House of the grievance to which Sir John Newport had been subjected on account of the neglect of the returning officer, that functionary was called to the bar of the House to answer for his negligence; but it was not until the return was made that Sir John Newport was allowed to take his seat. In 1831, two Members were elected for Great Grimsby; but the returning officer having omitted for some time to make the return, they were not permitted to take their seats until the duty had been performed. His neglect was also made a subject of complaint in the House. This circumstance, occurring as it did at a period of great political excitement, showed that the oath could not be taken before the return was received at the Crown Office. Indeed, it had been always admitted that the person elected was not a Member within the purview of the statute until the return was made. Perhaps it might be said on the other hand that the transmission of the return to the Crown Office was a mere matter of form, which might be dispensed with, and that a Member might be sworn, even though that return had not been received. He (Mr. Goulburn) doubted the validity of that opinion. In the case of a double return neither of the Members were permitted to sit in the House until the House was satisfied which of them was entitled to that honour. If the opposite principle were admitted, then, in case of a double return, the person who arrived in London first and took the oath at the table, would be the Member, in spite of the resolution of the House that in such cases neither party should be admitted till the House had decided as to which of them the right of sitting belonged. The 1100 House had, in the Pomfret case, decided that if a Member was duly elected, but not properly returned, he should not sit until the return was received at the Crown Office. But it appeared that the hon Gentleman (Mr. HAWES) did not consider himself entitled to sit until the return was received. [Mr. HAWES: I did.] If so, then why did the hon. Gentleman absent himself from the House on three nights, when the important business before the House required the fullest attendance of Members of the Government? The hon. Gentleman, as he had already stated, was sworn on the 15th inst. Finding that the return had not then been received at the Crown Office, the hon. Gentleman forbore to appear in the House on the succeeding Wednesday, Thursday, and Friday, notwithstanding the importance of the business then before them, and did not appear until after the return had been received at the Crown Office. But if the hon. Gentleman was incapacitated from appearing in that House antecedently to the receipt of the return, surely the oaths ought to have been taken by him subsequently to the removal of this incapacity. He stated these facts, subject to further inquiry before a Committee; but he thought he had stated sufficient to show that further inquiry was necessary.

§ MR. HAWES
did not rise to oppose the Motion of the right hon. Gentleman. On the contrary, he quite assented to his general opinion that an inquiry should be instituted in the case; and he had not the smallest fear of the result. He thanked the right hon. Gentleman for having given him previous notice of the Motion he had now made; and he assured him at the same time that he entertained no idea that he had been actuated by any personal or party feeling in bringing it forward. He had a very plain statement to make to the House. He admitted that on the 11th instant he was duly returned and declared a burgess to serve in the present Parliament for the borough of Kinsale; that on the 15th he had presented himself at the table of the House, in order to be sworn and take his seat, as he believed he was bound to do at the earliest possible period after his election. He had never previously been elected during a Session of Parliament, nor was he aware there was any difference in the practice as regarded the swearing in of Members during the Session of Parliament from that which prevailed at a general election; and, certainly, though 1101 he had several times been sworn in after a general election, he had never been called upon to produce a certificate of his return, or to prove that he was a Member of the House by a reference to the Crown Office. He had acted on the recent occasion precisely as he had acted on all former occasions. He had been introduced according to the forms of the House, and had taken the oaths and his seat in the usual way; and he contended, in opposition to the right hon. Gentleman, that upon these forms being complied with, he was entitled to all the rights and privileges, whatever they were, of a Member of that House. He admitted, moreover, that the return was not received at the Crown Office until the 18th. He left these facts entirely to the decision of the House. He would interfere no further. At the same time, he begged the House distinctly to understand that, in absenting himself, as he intended to do, while this matter, which affected himself personally, was pending, he waived no right, he abandoned no privilege; that he should feel it to be his duty to assert by every fair and proper means all the rights of those constituents who had sent him to Parliament, whatever might be the consequences. The hon. Member then left the House.

§ SIR G. GREY
said, it appeared to him that, though there had undoubtedly been a departure from the ordinary, although not the universal, practice of the House—for he had just had his attention called to a case somewhat similar—no actual illegality had occurred in the mode of taking the oaths in this instance. His hon. Friend (Mr. Hawes), finding that a departure from the ordinary practice had occurred, had abstained from voting during the three days between his taking the oaths and the arrival of the return at the Crown Office, not under any legal advice, but simply out of deference to that House. Without entering into the question which had been raised by the right hon. Gentleman (Mr. Goulburn), he admitted it was right that a Committee should be appointed in order to inquire into the subject, thinking it was very desirable that the practice should be, ascertained, and one general and uniform system adopted. In consenting to the Committee, however, he did not wish to be understood as prejudging the question.