HC Deb 16 July 1857 vol 146 cc1557-65

presented another petition from John Patrick Somers, esq., Member for Sligo, and moved that it be read by the clerk at the table—

It stated, that in his Petition presented on the 15th instant, he alleged as fact that an Action had been brought in the Court of Queen's Bench in Ireland by Charles Sedley against John McGowan, Returning Officer of the Borough of Sligo, for unfairly rejecting the Vote of the said Charles Sedley at the last Election for that Borough; that the Petition complaining of the Return of that Election, alleges that the Mayor of Sligo did at the last Election unfairly reject Votes which ought to have been received; that he has seen a Copy of the Plaint filed in the said Court, and that it appears that the Action was brought as stated; that at the trial of the said Action the whole proceedings at the Election were made matters of discussion and evidence; that at the trial the Attorney for the Plaintiff stated that he had brought the Action at the expense of the Right honourable John Wynne, and that he had received £100 from him to cover his expenses; and that the Petitioner has this morning received information that application has been made to the Judge at Sligo for liberty to send up Bills of Indictment against the Mayor and some of the Poll Clerks for a conspiracy to procure his Return, and prays for inquiry.


said, the facts of the petition were so different from those in the petition presented the day preceding, that he would ask whether it would be right to ask the House to come to a vote on the two petitions without the second petition having been printed?


said, he did not intend to press the consideration of the second petition, but he proposed to move a preliminary Resolution that the proper officer of the Queen's Bench in Ireland should make a return of all the proceedings in the action mentioned in the petition; and he should first move that the Resolutions of the House of 1703 (26th January), be read from the Journals.

Entry in the Journal of the Proceedings of the House of the 26th day of January, 1703, in relation to the Aylesbury Election, read.


said, he now rose to move that the proper officer of the Court of Queen's Bench in Ireland, should make a return of the copies of the documents in question as regarded these actions at law, which had been commenced in the case of the Sligo election. He (Mr. Butt) was no party to the election, but about two years since he had presented a petition from the sitting Member for Sligo, which resulted in a prosecution of several persons; and felt, therefore, that he should be wrong in refusing to present the present petition. He thought, moreover, that the House would approve of the course taken by the hon. Member for Sligo, in not bringing forward his own case, In the last election, Mr. Somers was elected for the borough of Sligo, against which return Mr. Wynne petitioned. That petition was still pending; but two actions had, nevertheless, been brought in the Court of Queen's Bench in Ireland against the returning officer for not receiving certain votes, and also a criminal prosecution for conspiracy had been commenced for the same. He (Mr. Butt) therefore, as they bore upon the question now at issue, had moved that the clerk should read the Resolutions come to by the House in 1703 in what was known as the Aylesbury case. In that year a person brought an action against the Mayor of Aylesbury for refusing his vote. Three Judges thought the action did not lie; Chief Justice Holt thought otherwise, and the House of Lords was of the same opinion. Thereupon the House of Commons came to the Resolutions just read. In the next Session of Parliament, new actions having been brought by other electors against the same returning officer, the House interposed with a high hand, upon which a memorable contest ensued, ending in what might be called a drawn fight. The House of Commons committed the parties who had brought these actions. An attempt was made to release them by habeas corpus, and the Commons committed the parties who brought the writ. The House of Lords then interposed; long conferences were held between the two Houses, in which the Commons steadily maintained their privilege that no other tribunal should decide upon questions of this kind; reasons of great weight were adduced on both sides; but at last a prorogation of Parliament put an end to the imprisonment of the parties, and so far the authority of this House was defeated. From that hour to the present, however, the Commons had never surrendered the privilege which they then claimed, and had never assented to the right of any Court of law to try the claims of persons to vote at elections. If the House now assented to the principle contained in the Resolutions it was necessary that they should stop the proceedings commenced against the Mayor of Sligo. The facts were still stronger than those in the Aylesbury case. There it did not appear that any election petition was pending, while in the present instance not only was an inquiry about to be made, but the petitioner (Mr. Wynne) was the very man who had been the means of bringing the question, before another tribunal. No doubt the decision of the House of Lords in the case of "Ashby and White" established the right of a party to bring an action against a returning officer for refusing his vote. But he thought there was an analogy between this case and the injunctions of a Court of Equity. A man had an unquestionable right to bring an action in a court of law; but then Equity interposed and said, "If you bring such an action we will treat it as contempt." Again, Equity would not allow an action to be brought against its officers without its leave, because they were subject to the authority of the court which could punish them if it thought necessary. In like manner the House in 1703 justified its exclusive jurisdiction over returning officers, assuming the power of committing them to Newgate if it thought proper; but on the other hand it considered that it was bound to protect them against a multiplicity of suits and the insupportable expense to which they might thus be put. It was evident that if these questions came before other tribunals while pending in this House the most conflicting decisions might be arrived at. A jury might determine one way, and mulct a returning officer for doing one thing, while a Committee of this House might commit him to prison for not doing the very same thing. The mayor of Sligo might be a material witness for the sitting Member, and how could he come before a Committee of that House if, in the meantime, a jury sitting in the very county where this election had taken place, and where the excitement and party bitterness engendered by it still, perhaps, prevailed, branded him with the stigma of a conviction? He contended that until this petition was disposed of the proceedings taken before other tribunals were a direct interference with the privileges of that House, and an attempt to prejudge and influence the case. He should therefore move that the proper officer of the Queen's Bench in Ireland return to the House a copy of all the proceedings in the actions mentioned in the petition, and that the further consideration be postponed until Monday next, when he should propose the appointment of a Committee on the subject. Motion made, and Question proposed, "That the proper Officer of the Court of Queen's Bench in Ireland do forthwith return to this House, Copies of the Summons and Plaint, and other proceedings in the Action that now is or was lately depending in that Court, in which Charles Sedley is plaintiff and John M'Gown, mayor of the town of Sligo, is defendant; and also Copies of the same in the Action in which James Ferguson is plaintiff and the same John M'Gowan is defendant.


said, he thought this a very proper subject for consideration by the House, but it ought to be very cautiously and solemnly considered, so that they might not commit themselves to the assertion of exclusive jurisdiction and privileges without full knowledge of all the circumstances. He was far from saying that the Resolutions of January 26, 1703, did not still embody the deliberate opinion of the House, but it should be remembered that since then several Acts of Parliament had been passed regulating the proceedings upon, controverted elections, and he was not prepared to say that the case brought under notice by the hon. and learned Gentleman might not fall within the exceptions referred to in these Resolutions, which merely affirmed the general right of the House, subject to any exceptions which might be created by special Acts of Parliament. It would be premature to assume that these actions involved a breach of privilege before a preliminary inquiry had been instituted. He should therefore move, by way of Amendment, that Mr. Somers' two petitions should be referred to a Committee, who should inquire into the facts of the case and report to the House, after looking into precedents and examining the state of the law on the subject, whether, in their opinion, the facts as ascertained by them involved any breach of privilege. At the same time, he did not propose that they should delegate to any Committee the decision of the question whether a breach of privilege had really been committed. Amendment proposed, to leave out from the words "That the" to the end of the Question, in order to add the words "Petition of John Patrick Somers, esquire, presented upon the 15th and 16th days of this instant July, be referred to a Select Committee to inquire into the matters stated therein, and to report their opinion, how far there are any circumstances in the case affecting the privileges of this House.


said, it was a most inconvenient course to encourage these applications, and he thought it desirable to deal with them at once. He entertained objections to referring a question of privilege to a Committee, as it was a matter with which the House itself ought to deal. He contended also that the Resolutions of the House in "Ashby and White" did not apply in this case, and that, even assuming them to be in accordance with the law—an opinion to which he by no means subscribed—the hon. and learned Gentleman was incorrect in stating that that House had never abandoned the principle of these Resolutions. Lord Holt laid down that every one who possessed a right of necessity had a remedy, and that therefore a person obstructing an elector in giving his vote, whether maliciously or not, was liable to an action for damages. At the same time the Resolutions were passed, there were as many kinds of franchises as there were boroughs, and the House of Commons saw that if every one had the right of action as against the returning officer, it would make the courts of law the arbiters of the return of Members of Parliament. Since then, however, the whole reason for these Resolutions had ceased, for the right was exercised under the statute law of the land, and the House had recently delegated to the Court of Common Pleas the right of determining who was entitled to vote. Moreover, for nearly a century the House of Commons had abandoned the principle of the Resolutions come to in 1703—at all events to this extent, that it would not interfere to prevent these actions being brought wherever malice on the part of the returning officer was alleged. In the case of the "Mayor of Hastings" the plaintiff obtained a verdict for £200, the defendant's malice being a part of his case. The case came on for discussion on a writ of error in Easter Term, 1786; but the Judges would not hear any objections taken to the action, declaring that the case of "Ashby and White" was conclusive on the subject. The House of Commons acquiesced in that decision, and took no steps to assert its privileges, nor, though such actions had been more than once brought since that time, had the House interfered. In the present instance, malice was of the essence of the action brought; the returning officer was declared to have acted unfairly; and there was thus no analogy between the case and that of "Ashby and White." Then, again, this very right was established by statute. The 76th section of the English Reform Act laid down that if returning officers wilfully contravened its provisions, they should be liable to an action and a penalty of £500, there being a proviso that the remedy thus given against the returning officer should not supersede any remedy or action against him according to the law heretofore in force. Here, then, was a distinct recognition of the right of action against a returning officer, and the Irish Reform Bill contained a similar provision. There was also a similarly distinct recognition of the right to institute a criminal proceeding, it being enacted that every returning officer who should by due course of aw be convicted of having acted corruptly or partially in the execution of his duty should be adjudged guilty of a high misdemeanour, and imprisoned for a period not exceeding three years. This was under the I Geo. IV., c. 11, s. 25.


said, he believed that in the present instance the indictment for a conspiracy against the Mayor of Sligo was a proceeding at common law.


replied that the Legislature at all events recognized the right of bringing these actions. There was, then, no pretence for the assertion that the privileges of the House were in jeopardy; and as to the statement that these proceedings were taken while a petition was pending, there was no limitation in the Act as to the time of instituting such actions.


said, he thought the speech of the hon. and learned Gentleman had only confirmed him in the impression that the course proposed by the right hon. Baronet (Sir G. Grey) was the best course to be pursued in this case. He, therefore, should give his assent to that coarse, always on the understanding that the House, in referring the question to the Committee, was not relinquishing its right in the matter.


said, he hoped the House would agree with the suggestion of the hon. and learned Member for White-haven and decide the matter at once. All the Committee could do would be to ascertain the fact of actions having been brought, which, was sufficiently known to the House. Unless malice was alleged and proved as the ground-work of the action, the verdict against the returning officer might be act aside in the courts of law. Why then should the House interfere? The proceedings at law would not at all affect the decision of the Election Committee; for the indictment against the mayor could not be tried till the next spring assizes. In 1847, an action was brought against the mayor of Abingdon for refusing a vote ("Price v. Fletcher," 3 and 4 C. P. Rep.); the most eminent counsel were engaged; the case went from one court to another; but it was never once suggested that such an action was stopped by the Resolutions of that House in "Ashby v. White." The so-called privilege of the House was one which every right-thinking man would be glad to get rid of, instead of raking up a string of Resolutions of 1703 to support it. The public would never tolerate the re-enforcement of those Resolutions, whereby parties might be sheltered from the due punishment of their crimes. Had the defendant in this case chosen to do so, he might have applied for a postponement of the action, on the ground that the matter was about to be inquired into by a Committee of that House. Most likely he had wished to take the advantage of a verdict in his favour, if he got one.


said, that the question decided in the action, and the one to be decided by the Committee, were essentially different. On that and other grounds he thought it desirable not to proceed further in the House, but to refer the matter to a Committee.


said, he should offer no objection to the reference, but thought it most desirable that the proceedings of the proposed Select Committee should not clash with those of the Sligo Election Committee, but ought to be concluded before the latter sat. He acquiesced entirely in the suggestion of the right hon. Baronet the Secretary of State for the Home Department. He might remind the House, however, that if a Committee were appointed, they would still require copies of the proceedings in the Irish Courts. He also would beg to ask the hon. and learned Attorney General for Ireland whether the statement was true that the Crown would proceed by indictment against those concerned in the election for the borough of Sligo?


observed, that he had no official knowledge of the matter to which the hon. and learned Gentleman alluded. All his information was derived from what appeared in the Irish correspondence of the papers of that morning. In the papers which had been laid before him regarding the Sligo election he directed that there should be no prosecution by the Crown pending the election petition, and had so directed the Crown Solicitor, except in breaches of the peace. He did not think the statement in the papers was correct that prosecutions were instituted by the Crown Solicitor; but, probably, indictments had been preferred by private parties. In reference to the general question, he thought the house was about to take the proper course in following the recommendation of his right hon. Friend (Sir G. Grey), and in abstaining altogether from discussing the merits of the case. As to the criminal prosecution, it raised some grave and important questions; as, for instance; first, whether, pending an election petition, such an indictment could be prosecuted, and whether persons who would be witnesses before the Committee could be the subject of that prosecution. That was a question for the grave and serious consideration of the House. He hoped his hon. and learned Friend the Member for Youghal would agree at once to the course recommended by his right hon. Friend the Member for Morpeth.


remarked that he hoped the Amendment of Sir G. Grey would be acceded to, and that the discussion might for the present be allowed to drop.

Question, "That the words proposed to be left out stand part of the Question," put, and negatived; Words added.

Main Question, as amended, put, and agreed to. Ordered, That the Petition of John Patrick Somers, esquire, presented upon the 15th and 16th days of this instant July, be referred to a Select Committee to inquire into the matters stated therein, and to report their opinion, how far there are any circumstances in the case affecting the privileges of this House.