LISBURN ELECTION. (Hansard, 4 April 1864)

§ MR. ADAIR,
as Chairman of the Committee, begged to move that Mr. Stirling be excused for non-attendance at the Committee on the 22nd of March, and that he should have leave to absent himself from any of its further sittings.

§ MR. HUNT
said that, as regarded the first part of the Motion; which was to excuse the hon. Member for Perthshire (Mr. Stirling), for non-attendance on the 22nd of March, there could be no objection; but, as regarded the latter part, he thought the House ought not to assent to it, for upon it another question arose, whether, in consequence of the adjournment which had taken place, the Lisburn Election Committee was now in existence. The proceedings of Election Committees were regulated by an Act of Parliament, the 11 & 12 Vict. c. 98, which was very strict and precise in its terms, and by which the Committee was bound at almost every step. He would suggest to the House that the Lisburn Election Committee had inadvertently transgressed the rules laid down by that Act, and had, in consequence, ceased to exist as an Election Committee. The Committee began its sittings before the House adjourned for the Easter recess; and, as it was bound to do, continued them till the 22nd of March, when it adjourned in consequence of a Member's illness. On the 22nd of March the hon. Member for Perthshire (Mr. Stirling) did not attend the Committee, who were, under the provisions of the Act, unable to continue their sittings until the excuse of the hon. Member was allowed by the House. The 73rd section stated that an Election Committee— 392 Shall meet at the time and place appointed for that purpose, and shall proceed to try the merits of the election petition so referred to them, and they shall sit from day to day, Sunday, Christmas-day and Good Friday only excepted; and shall never adjourn for a longer time than twenty-four hours, unless a Sunday, Christmas-day, or Good Friday intervene, and in such case not more than twenty-four hours, exclusive of such Sunday, Christmas-day, or Good Friday, without leave first obtained from the House, upon Motion, and special cause assigned for a longer adjournment; and if the House be sitting at the time to which such Select Committee is adjourned, then the business of the House shall be stayed, and a Motion shall be made for a further adjournment for any time to be fixed by the House; provided always that if such Select Committee have occasion to apply or report to the House, and the House be then adjourned for more than twenty-four hours, such Select Committee may also adjourn to the day appointed for the meeting of the House. Now the House, on the 22nd of March, stood adjourned for more than twenty-four hours, and therefore the Committee might adjourn for a longer period than twenty-four hours—namely, until the day of the meeting of the House, when it would be necessary for them to apply to the House in consequence of the hon. Member's illness. It appeared, however, that the Committee had adjourned until "to-morrow," and he would suggest, that the adjournment to an unlawful day was equivalent to an adjournment sine die, and that the Committee by that Act, having committed felo de se, had ceased to exist. There was only one case reported of an unlawful adjournment. That was the St. Alban's case on the 10th of April, 1851, and it appeared from the Report of Mr. John Clerk, well known for his cognizance of the duties of Election Committees, that— In a recent case the Committee on a Monday informed the parties that they should apply to the House for leave to adjourn until eleven o'clock on the following Thursday. They then adjourned until the next day, Tuesday, at eleven o'clock, in case the House did not give them power to adjourn till Thursday. The House gave the Committee power to adjourn, and the Committee omitted to meet on the Tuesday, in order formally to adjourn, thinking that the leave given by the House operated as an adjournment. The following entry was made in the Minutes:— 'The House having given the Committee power to adjourn, the Committee stands adjourned until Thursday.' The irregularity was not known to the parties at the time. Some days afterwards the counsel for the sitting Member were about to object to any further proceedings on the part of the Committee on account of the flaw in the proceedings, but the point was not discussed, for upon the application of the counsel for the petitioners for further time to procure the attendance of witnesses, the Committee refused to grant it and reported the sitting Member duly elected. 393 According to the opinion of the accomplished lawyer, Mr. Clerk— It would appear that in the case of an illegal adjournment such as that alluded to before, the Committee was dissolved by operation of law. Their powers lapsed from their not having been continued in accordance with the statutable authority. If this opinion be correct, that the powers of the Committee lapsed in consequence of the flaw in their proceedings, it seems quite clear that the House could give no relief. Their control over Election Committees is strictly defined by the Act of Parliament. They could not have appointed a second Committee, for that can only be done in the case alluded to in section 78. The House, doubtless, would be very reluctant to stop the proceedings of an Election Committee on mere technical grounds; but hon. Members must bear in mind that, supposing the present Committee to continue its sittings and its Report to be adverse to the sitting Member, it might happen that the sitting Member might, nevertheless, be advised to take his seat and to vote in that House. An action might then be brought against him for penalties, and the case taken into a Court of Law, which might decide that the powers of the Election Committee had ceased under the Act. In the meantime a new writ might have been issued to elect a new Member for Lisburn, and the sitting Member be, notwithstanding, entitled by law to retain his seat. He had brought the matter to the notice of the House, and he now left the House to deal with it as it thought best.

§ MR. ADAIR
said, that the hon. Member had referred to the 73rd section of the Act, but had overlooked the 75th, which provided that when one of the Members was prevented attending on account of illness, an Election Committee was obliged to adjourn and report the Member's absence to the House; and the section further stated that the Committee should not sit again until the excuse of the Member so absenting himself was allowed by the House, when the four remaining Members of the Committee would proceed with the investigation. It therefore appeared to the Lisburn Election Committee that they were no longer a Committee for any purpose whatever, until the excuse of the hon. Member for Perthshire (Mr. Stirling), for not attending the Committee on the ground of illness, was allowed by the House; and if the Committee had adjourned till the present day, they would not then, on meeting, have been a Committee for sitting, deliberating, deciding, or even adjourning to the 394 following day. Seeing that their last act as a Committee, before they entered, as it were, into a state of trance, was to adjourn, they did not think there could be any use in meeting again at a time when, as no Report had been made to the House, they would not be a Committee for any practical purpose whatever. He might mention, incidentally, that the counsel for the petitioners had stated that if the Committee had met to-day, he should respectfully have declined to attend on behalf of his clients. Under those circumstances, believing that they were acting in accordance with the spirit, if not with the strict letter of the law, they had deemed it best to adjourn till to-morrow As to the opinion of the learned gentleman, whose works on election law commanded great respect, that was, after all, only the view of the writer, and not the decision of a Court of Law. He would not enter into the question of the further consequences which might attend the proceedings, but he believed it had been held in Courts of Law, that where words were merely directing, and were not followed by a statement that all proceedings taken in contradiction to those words would be null and void, any departure from these words would not be held sufficient to render nugatory any previous proceedings in the case.

§ SIR GEORGE GREY
said, that the question was one of considerable importance, and he felt with the hon. Member for Northamptonshire (Mr. Hunt) that it should not be hastily decided. Had it been generally known that the question would have come on for discussion that day, many hon. Members who were not present would have been in their places, and the Law Officers of the Crown also would have been in attendance. He thought the best course of proceeding would be for no discussion on the subject to take place that night, but that it be postponed till the following day, and that then the Report should be brought up by the Chairman of the Committee and printed, and then the House would have the question distinctly before it. The Motion, that the hon. Member for Perthshire (Mr. Stirling) be discharged from attendance on the Committee, should not be adopted, as it would prejudge the question to be discussed by the House.

§ MR. HUNT
observed, that the first part of the Motion, excusing the hon. Member for Perthshire (Mr. Stirling) from further attendance, might be agreed to at once.

§ MR. WALPOLE
said, he understood that the Committee stood adjourned till eleven to-morrow, and therefore they must consider the course the Committee should then take, as well as what the House should do to-day. He concurred with the right hon. Baronet (Sir George Grey), that the matter had better be postponed for the attendance of the Law Officers of the Crown, and he thought, therefore, that the question had better be deferred until to-morrow. The Motion consequent upon the Report of the Committee had better be deferred till to-morrow, and the House could then take the whole subject into its consideration. He apprehended, however, that the Committee had better meet to-morrow, or they might involve themselves in new difficulties, and then adjourn till the following day, reporting what they had done to the House.

§ SIR GEORGE GREY
begged to move that the Report brought up by the Chairman of the Committee be printed and considered to-morrow.