HC Deb 28 March 1851 vol 115 cc722-8

On the Order of the Day for the consideration of the petition of James Cop-pock, in the matter of the St. Albans Election, and of the petition of Frederick Calvert, in the matter of the Aylesbury Election,

MR. AGLIONBY

said, that, as the point of law involved in the case of Aylesbury, and that involved in the petition in reference to St. Albans, which he (Mr. Aglionby) had presented yesterday, were nearly the same, he would be content that the decision of the House in the one case should rule the other. He did not know how many Committees had been named under similar circumstances; but he knew that the matter involved the seats of at least two Members who sat on his side of the House. The House, however, in considering the question, would discard from their minds all considerations as to who would be affected by the decision. In referring to these petitions, he would only trouble the House with a statement regarding that which he had had the honour of presenting yesterday—the St. Albans. The petition stated that "an informality had been committed; that the petition against the return of the Member for St. Albans had not been addressed to your Honourable House, nor to any court or tribunal whatever; and the conclusion, that it was intended for your Honourable House, can only be drawn from the reading of the entire petition, and is merely an inference, not a positive averment." If it had been a petition on an ordinary question, it would have been at once thrown aside. By the Act, it was required that intimation of an intention to nominate the Committee should be published with the Votes "not less than fourteen days" before such nomination. The question, then, was simply as to whether "not less than fourteen days" meant fourteen clear days, or not. The practice, he was informed, was to construe the "fourteen days" to mean one day exclusive, and the other inclusive. Assuming this to have been the practice, it would not influence the House if that practice were wrong. The question had never, however, been before the House; and the House had never, of course, expressed a decision on the point. No lawyer would tell him that the Courts of law considered "not less than fourteen days" to mean anything else than fourteen clear days. He held in his hand two pages of cases which bore out his view on the subject. To two of these only would he refer—that of "Chambers v. Smith," and that of "Young v. Higgen." He selected these two from a list of nineteen or twenty cases, in which the decision on this point of law had been uniform. In the first case, "at least one calendar month" had been held to mean not less than one clear calendar month; and, in the second, "not less than fifteen days" had been held to mean not less than fifteen clear days. He submitted, that if the proceedings were void ab initio, the Committee was at an end, and need not be sworn.

Motion made, and Question put— Thut the appointment of the Select Committee to try the matter of the St. Albans Election Petition not being in conformity with the Statute (Election Petitions Act, 1848), is void.

MR. FOX MAULE

said, the Committee on this question had not acted without having precedents for the course they had taken. In 1845, a petition for trying the election for Dartmouth had been presented, and a Committee had been appointed exactly under the same circumstances as the present one, and no objections had been made. In 1846, the Committee for trying the election for Wigan had been appointed under the same circumstances, and it was remarkable that in that case, as in the present one of St. Albans, Mr. Coppock had been the agent for the defence, and he had then taken no objection. In 1848, the Committee for trying the election for Horsham had been appointed in the same way: there had been the same agent for the defence, and no objection had been taken, nor had any complaint been made. The objection made in the present case was, that fourteen clear days had not elapsed between the intimation and the nomination of the Committee. Notwithstanding all he had heard, he was still of the opinion that the Committee had discharged their duty correctly and properly; and, moreover, he hoped he would not be out of place in saying that he considered this to be a question which should be decided rather by the good sense of the House itself than by legal opinion. On the 10th of March, previous to four o'clock, the day had been fixed and settled that the General Committee should meet on the 25th of March to name the Select Committee in the cases of St. Albans and Aylesbury. The matter had been duly intimated at the Journal Office on the 10th, and it had been intimated in the House the same evening. The Act of Parliament required that notice should he given in "the Votes" fourteen days before the nomination. Now, in the Votes delivered on the 11th of March, the precise date of the 10th of March had been placed, and he contended that the notice had been quite in accordance with the Act of Parliament. The transmission of the notice to the Journal Office within the proper time was, he held, quite sufficient. He was quite confident that the notices and the cases before the House had been properly made, and that the Committee was quite legally chosen. He would meet the Motion of the hon. and learned Member with a direct negative.

MR. HEADLAM

thought that hon. Gentlemen who were not lawyers could not have the slightest difficulty in forming as good an opinion on this subject as lawyers could. The fifty-first section stated, that notice of the time that the Committee would be sworn, should be published in the Votes not less than fourteen days before the day on which such Committee was appointed to be sworn. They were appointed to be sworn on the 25th of March; but the notice was not published till the morning of the 11th of March. It appeared by the Votes that the House did not rise till three in the morning on the 11th of March, and the Votes, therefore, of the 10th could not be in a state to be published till the morning of the 11th, and therefore fourteen days' notice was not given. He thought the matter might be referred to a Committee to consider what was the best course to adopt.

MR. ARMSTRONG

said, he presented a petition from Aylesbury in which the same point arose. The expression in the Act was, not less than fourteen days, and authorities had been cited that that was fourteen clear days. Notice had been given on the 11th, and therefore fourteen clear days' notice had not been given.

SIR R. H. INGLIS

said, that a wrong act done in former years could not justify a similar act at the present time, and they must be entirely guided by the construction of the Act of Parliament. He would limit himself to the question whether the requirement of the Act, as to publication, had or had not been fulfilled. Now could there be a publication more complete than the statement made in the House by the Chairman of the Committee of Selection, that he and his colleagues had fixed the Committee? If that was done, and an entry was made in the Journal Office, the letter as well as the spirit of the Act had been complied with, and fourteen complete days, from four o'clock on the 10th March, had expired before the meeting of the Committee on the 25th. He certainly felt inclined to support the view taken by the Committee.

MR. C. ANSTEY

said, that the Act required publication, and publication did not consist in the mere printing. What the Act required was publication with the Votes, and it recognised our existing method of printing with the Votes; and the real question was, whether or no the practice of the Courts of Common Law and Equity was identical with the practice of that House in regard to Election Committees; for if that were so, he had no hesitation in saying that the statute was exhausted in the present instance, and they had no power to proceed, not having reserved to themselves by Act of Parliament for the trial of election petitions, any of those powers once inherent in this House.

MR. WALPOLE

believed it was the rule of the House of Commons that technical objections, through slip or mistake, should not interfere with justice. The parties in this case were the sitting Member and the petitioner; the judges were the House of Commons; and if the General Committee appointed to select a Committee to try the petition had made a slip or mistake, which was not absolutely fatal according to the Act of Parliament, it became the House to rectify the slip or mistake, so that no injustice should be done to either of the parties. The Act required the notice to be "not less than fourteen days" before the time when the Committee was selected. His opinion was, according to the decision of the Courts of Law, that fourteen days meant fourteen clear days. If" the Act was exhausted in consequence of the fourteen clear days' notice not having been given, no further proceedings could be taken; but he was of opinion that the Act was not exhausted. The clause respecting the notice was merely directory. The appointment of the Committee was not made to depend on the validity or invalidity of the notice. The notice was required to be given to the sitting Member, in order that no injustice might be done him; and that being so, on the day appointed for the selection of the Committee he or his agents ought to have objected to the appointment of the Committee; but having neglected to do so, the objection was waived. If that view was correct, the next question was, what ought now to be done, and whether the Members selected to serve on the Committee ought not to be sworn? By the 68th section it was provided that upon the Members being brought to the table to be sworn, and then having been sworn, it should be taken to be a Select Committee legally appointed, and the legality of such appointment should not be called in question on any ground whatever. If, therefore, the sitting Member could not allege any substantial objection to the Members being now sworn, his (Mr. Walpole's) opinion was that they could not do justice to the petitioner as well as to the sitting Member, without allowing the Members to be sworn. If an objection could be taken in consequence of irregularity of notice, objection ought to be taken to their being sworn; and, under the 73rd section, the Committee should be discharged, and another Committee appointed.

MR. BERNAL

quite agreed with the hon. and learned Member for Midhurst, that when the Committee was sworn, their appointment must remain unquestioned; but there was a difficulty. These five Gentlemen should have been sworn yesterday. [No, no!"] Well, then, to-day; and they could not be sworn after four o'clock. The Act provided that they should be sworn on the first business day after their appointment, and yesterday was the first day the House had met after their appointment on the 25th. However, the point was, were they in the habit of subscribing to the doctrine of the Court of Queen's Bench or Common Pleas in its construction of legal technicalities? He remembered a case—the name of which he could not at that moment call to mind—in which the House had held that in calculating the days one day should be inclusive and the other exclusive, and it was curious that with respect to private Bills the order said seven clear days.

SIR G. GREY

said, he regretted this case had been brought before the House, because he did not think that House was the best tribunal for settling a nice point of law. This question of reckoning fourteen days' notice had come before the Courts of Law, and he believed there had been conflicting decisions upon it. At the same time they were bound to decide the question that had come before them. He agreed with his hon. and learned Friend (the Member for Midhurst) that the party petitioning the House and asking the House to interpose to prevent the swearing of the Committee had really suffered no wrong; he had substantially all that the Bill gave him. The question, therefore, was, were there distinct grounds for interference, and were they justified in interfering? In his mind there was some doubt of that, and he should, therefore, not vote for the resolution.

MR. AGLIONBY

, who rose amid cries of "Withdraw," said he should not withdraw the Motion, as he thought it well to take the decision of the House. The right hon. Gentleman the Chairman of the Committee had quoted three precedents; but the House would be surprised to learn that out of 36 nominations by the General Committee, 27 were free from this objection. He apprehended that in common law and common sense the House were bound to vote for this Motion.

MR. HOBHOUSE

wished to warn the House that whatever decision they might come to might be overruled by the Courts of Law, and this circumstance conferred great importance upon the decision at which they might arrive. He should suggest, therefore, that his hon. and learned Friend should withdraw his Motion, and consent to refer the matter to a Select Committee. He had no political bias on this matter, but he would not consent to sacrifice their rights. Ever since Sir Robert Peel's Act, controverted elections had been determined with an impartiality that had never been known before, and he had no other object in view but that they should avoid the difficulty which he foresaw of coming possibly into collision with the Courts of Law.

SIR D. DUNDAS

advised the House to be afraid of nothing that might befall them from the Courts of Law. He had not a doubt that the legality of the appointment of a Committee when once sworn could not be called in question upon any ground whatever. But he was not of the same opinion with the right hon. Baronet the Secretary for the Home Department, or with the hon. and learned Member for Midhurst; for, having looked into the Act of Parliament, he considered that the words to which the hon. and learned Gentleman referred were not in that enactment by way of directory language, but that they were imperative upon that House, and described a rule which was as clear as the words of an Act of Parliament could make it. The hon. and learned Member had avoided all allusion to the publication "in the Votes," and this was where he erred. The hon. and learned Gentleman said that fourteen days were, in his opinion, fourteen clear days, and in that opinion he (Sir D. Dundas) concurred, but it should be from the publication in the Votes. No one could doubt that the word "clear" was co-equivalent, and of the same quality, as "not less than so many days." There were no decisions in the Courts of Law as to the construction to be put upon the words "not less," but there was a decision as to the value of the words "at least," and he had no doubt, if the words had been "at least" instead of "not less," they could not have given a decision other than that fourteen clear and absolute days were intended. They were acting judicially upon this question, and though he always regretted to vote in opposition to his hon. and right hon. Friends, it was his clear conviction that, upon the point of law, he must do so in this case.

The House divided:—Ayes 79; Noes 204: Majority 125.

Committee sworn.

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