HC Deb 09 December 1852 vol 123 cc1199-202
MR. MILNER GIBSON,

on presenting a petition from the gentlemen who had signed the recognisances in the petition of Mr. Torrens M'Cullagh against the sitting Members for Great Yarmouth, said that they believed they had bound themselves by the recognisances they had signed, regretting that the sureties had been declared insufficient, and praying the House to redress the grievance under which they laboured, and to take means for preventing that recurrence in future. He wished to call the attention of the House to the petition presented by Mr. M'Cullagh, who claimed to have been elected for Great Yarmouth, and who disputed the return. He did not ask the House to review the decision of the examiner of recognisances, or to pass any opinion of its validity, or in any way to sit as a court of appeal. He was well aware that the decision of the examiner in these matters was final and conclusive. His object was to show that, on the face of these proceedings, circumstances had arisen which rendered it necessary for Parliament to consider whether it might not be necessary to amend the Act itself under which proceedings were taken in reference to the trial of election petitions. The reason of the decision was, that the words "sitting Members" were used instead of "sitting Member." On the same day the examiner had reported that a similar recognisance in the case of the Bridgenorth election petition, in which the words "sitting Members" were also used, was unobjectionable. But, the objection being taken in the case of Great Yarmouth, he decided that that objection was valid, and therefore fatal to any further proceedings with the petition. He did not mean to reflect, in the sightest degree, upon the examiner of recognisances; no doubt he had endeavoured to discharge his duty conscientiously, in reference to what he believed to be the requirements of the Act of Parliament. But lie (Mr. Gibson) found fault with the Act itself, and asked that it should be amended. Petitioners would be placed in a great difficulty if there was no power of amending technical objections to recognisances. In this case the petitioner had found his sureties; nobody contended for a moment that they were not good and substantial sureties, and capable of undertaking all the liabilities required by the Act. The fifth clause of the Act gave the form of the recognisance, and added, "With such alterations as may be necessary to adapt such form to the circumstances of each case," clearly showing that the Act contemplated necessary alterations. There ought to have been a power in the Act to enable the examiner to amend, and to call on the sureties to sign the amended form, so that they might still be liable for costs, if the decision were against them. The Motion he had to submit was in the following terms:— That a Select Committee be appointed to inquire into the operation of the Act 11 & 12 Vic, cap. 98, as regards Recognisances, and to report their opinion whether it is expedient to amend that Act. The fourteen days having expired, it was out of Mr. M'Cullagh's power to present a new petition. Another circumstance in this case was, that the hearing of the objection was taken at an earlier period than the stipulated three days after notice of the objection. He (Mr. Gibson) brought forward this matter solely on. public grounds, in order that technicalities might not be allowed to stand in the way of justice.

MR. HUME

seconded the Motion.

MR. WALPOLE

said, that if the right hon. Gentleman had made a Motion in conformity with the prayer of the petition, it would have had the effect of doing away with a rule that the House had expressly established, with regard to election recognisances. But that question had not been raised. Four years ago a question arising out of election recognisances had come before that House. A discussion then took place respecting the propriety of considering whether those recognisances should be amended. and the petition allowed to go on or not. It was contended, on the one hand, that the petitioner ought not to be deprived of his right to petition against the sitting Member, and, on the other hand, that the sitting Member had a right to take advantage of every legal objection. A Committee was appointed, and soon after an Act was passed consolidating and amending the laws relating to election petitions and recognisances, which provided that the decision of the examiner with reference to recognisances should be final and conclusive. Such being the law, it seemed clear that the last thing the House ought to do would be to repeal what it had taken such pains to establish, that these matters should be settled out of the House, and not give rise to party discussions in the House. The right hon. Gentleman had alluded to the cases of the Bridgenorth election petition, but there was a distinction between those two cases. In the Bridgenorth case, the question which was raised was not brought before the examiner, and he had not an opportunity of giving an opinion one way or the other with regard to the recognisances. But when the Great Yarmouth case was brought before the examiner, the agents of the sitting Member specifically brought this objection to his notice; it was his duty to decide upon it, and he held that it was fatal. With regard to the point of the three days, the right hon. Gentleman would find that the Act did not give three clear days; and as the notice was given on the 23rd, and the objection entertained on the 26th, it could not be said that the examiner had exceeded his duty. The proposition the right hon. Gentleman now made was, that a Committee should be appointed to see whether any amendments could be introduced into the Act, giving the examiner power to amend recognisances by correcting technical and clerical errors. He (Mr. Walpole) had no objection to such a Committee being appointed, but he wished to make two observations upon it. The first was, that as there were several election petitions then depending, he thought it would be undesirable that a Committee should be appointed on this subject, till all those petitions had been reported upon to the House. The second observation he wished to make, was to guard himself against the infringement of an important rule. The great object of throwing upon the sitting Member the duty of entering into recognisances, was, that he should not take advantage of any default or neglect of his own, in having imperfect recognisances, and to ensure the payment of costs which could not be recovered, unless the recognisances were valid in form and law. There was another object: not only to provide against the default or neglect of the petitioner in not making his recognisances perfect, but also to prevent frauds which might otherwise be practised in putting the recognisance in a defective form, so that the sitting Member, in consequence of such defects, would not be entitled to recover the costs to which he was entitled. The right hon. Gentleman would have to consider these points, and also whether he ought not to draw a line between technical and substantial errors. He (Mr. Walpole) should not object to the appointment of a Committee; but he ought to add, that the appointment of the Committee must not be considered as having any effect on existing petitions.

SIR HENRY WILLOUGHBY

begged to ask if the right hon. Gentleman (Mr. M. Gibson) intended his Committee to have a retrospective operation?

MR. MILNER GIBSON

did not contemplate anything more than was contained in the order of reference. It might be necessary to inquire into particular cases to discover the abuses that existed, and their remedy; but he could not foresee what course the Committee would decide upon.

Motion agreed to.