QUESTIONS. OBSERVATIONS. (Hansard, 10 July 1871)

§ MR. TOMLINE
rose, on a question of Privilege, to ask Mr. Speaker, Whether it was within his knowledge that certain hon. Gentlemen sat on both sides of the House as Knights of the Shire, who were expressly disqualified from representing those constituencies by the clear words of an Act of Parliament? Two volumes of Revised Statutes were published last year, which the right hon. Gentleman the Prime Minister, in answer to a Question he (Mr. Tomline) put to him on a late occasion, told him were now the binding statute law of the land. The words contained in those statutes to which he alluded were— That no men of the law following business in the King's Courts shall be accepted or returned as Knights of the Slave. That was a valid statute, and it was acted upon every year, for by that statute alone were sheriffs forbidden to represent their counties during the year of their shrievalty. This was not merely a question of Privilege, but it affected legislation. For instance, the noble Lord the Member for Middlesex (Lord George Hamilton) not long ago, in a division on a most important Motion affecting all classes of the country, was beaten by a majority of 2. The result of that division was to cast fresh rates and burdens on the country, and, if they examined the division list, perhaps they would find that the majority was obtained by the votes of men who were not entitled to give a vote in that House. But the matter had a wider application. There was no doubt—and the Prime Minister would not deny it—that there was great misery and discontent in England. Every year saw their taxes and rates increasing, and every year saw the 1346 means of paying them diminishing; because they took in burdens 130,000,000 in sovereigns, shillings, and pence.

§ MR. SPEAKER
In simply putting a Question the hon. Member for Great Grimsby cannot enter into a long course of argument.

§ MR. TOMLINE
said, then he had better conclude with a Motion which would enable the Law Officers of the Crown to address the House on the subject. He would, therefore, move that all Business be suspended until it had been ascertained whether any hon. Gentleman sitting and voting in that House as Knights of the Shire were expressly forbidden to represent those constituencies by the clear words of an existing Act of Parliament.

§ MR. SPEAKER
That is a Motion requiring Notice. The hon. Member for Great Grimsby can move formally the adjournment of the House.

§ MR. TOMLINE
said, he would accordingly move "That that House do now adjourn."

§ MR. SPEAKER
With regard to the substance of the hon. Member's inquiry, I should have been glad if he had informed me beforehand of his intention to ask the Question; although I do not know that at any time it would have been a proper Question to address to me, for it is rather a question of law, which might have been addressed to the Law Officers of the Government. It would have been a proper Question, perhaps, to have addressed to Lord Brougham when he represented Yorkshire; or to Sir John Rolt, when as Attorney General he sat for the county of Gloucester. The hon. Member will see that the practice has not at all run unconformity with the ancient Act of Parliament of Edward III., relating to returns to which I believe he refers. But such having been the practice of the House, if the hon. Member wishes to propose a question to the Law Officers of the Crown I will leave it to them to reply.

MR. GLADSTONE
said, he would suggest that the hon. Member for Great Grimsby should, before discussing the question, communicate with the Law Officers of the Crown; and if he then wished to go into the matter, the most 1347 convenient course would be to move for a Committee to inquire into the subject.

§ MR. G. BENTINCK
said, he thought it would have been more satisfactory if the answer which had been given by the right hon. Gentleman the Prime Minister to his hon. Friend the Member for Great Grimsby had been a little more explicit. The statement of his hon. Friend went to this extent—that a considerable number of hon. Gentlemen were sitting in that House who were disqualified from doing so by Act of Parliament. He (Mr. G. Bentinck), therefore, bogged to call the attention of the House to the condition into which it was brought by that state of things. Assuming the views of his hon. Friend were correct, every vote which was given in that House, and every measure which was passed, was invalidated.

§ SIR FRANCIS GOLDSMID
said, he rose to Order. He wished to ask, Whether it was in Order, in opposition to the provisions of the Act relating to contested elections, to question the seat of any hon. Member, except in the form of an Election Petition?

§ MR. SPEAKER
The hon. Member for Great Grimsby is not questioning a Member's seat, but he is inquiring with reference to the application of an Act of Parliament, whether it is not inconsistent that certain hon. Members should sit and vote.

§ MR. G. BENTINCK
resumed, and said he apprehended that he was in Order in addressing the House on the Motion of his hon. Friend the Member for Great Grimsby. He would only venture to suggest that that practice of rising to Order, when there was no cause for it, was simply a process of obstruction, and it should be put an end to directly. If it was a reprehensible practice, he was sorry to see hon. Members on the other side of the House freely indulging themselves in it. His hon. Friend had distinctly impugned, according to an existing Act of Parliament, the right of certain Members who occupied seats in that House. If his hon. Friend was correct in his view he (Mr. G. Bentinck) repeated that the votes of that House were at once invalidated, and he begged to ask the House in what condition it would find itself placed if they were to legislate on grave and important questions, and then find that the decision of that House was nugatory, and null and void, from the 1348 fact that certain hon. Members were not qualified to vote. The right hon. Gentleman at the head of the Government suggested that the Question should be referred to the Law Officers of the Crown. That happened be one of those exceptional cases in which the words of the Act were so clear that it did not require any great ability to understand it. He would read four or five lines of the Act to which his hon. Friend had referred. These were the words of the Act, and he would appeal to any hon. Member of that House, whether it was possible, by any process of ingenuity or sophistry, to put any other construction upon it than it was intended to have. The Act bore the date of 1372, and his hon. Friend had already told them that the Act had had the confirmation of the authority of the right hon. Gentleman at the head of the Government, and the book he held in his hand contained the law of the land as it now stood. These were the words, and the passage was very short— It is accorded and assented by this Parliament that hereafter no man of the law following business in the King's Courts, nor any sheriff for the time he is sheriff, be returned or accepted Knights of the Shire. It was impossible to put any other construction on those words, and his hon. Friend had told them that the law was practically enforced at every election. Was there any Member of that House who was prepared to say that the sheriff was bound by the provision of the Act in the case of a high sheriff, and was not bound in the case of a man of law? Was there anybody prepared to deny that? Therefore they wanted it to be ascertained which of the Members had a right to sit and which had not.

§ SIR GEORGE GREY
said, he regretted that this Question had been raised without notice, and without the opportunity of referring to the statute. But, having listened attentively to the words road, it did not occur to him that they made the vote of the Member void in case he belonged to the profession of the law. They merely made it a disqualification of such a candidate from being returned. Not long since it was necessary for a county Member to have a qualification in land of £600, and for a borough Member of £300 a-year, but no one ever maintained that these qualifications should not be parted with, having been required for the express purpose 1349 of the election; and no one ever pretended that the votes of Members could be questioned, or their seats challenged, on the ground of the want of such qualification not having been petitioned against. If the Act were still in force he would advise that the next gentleman of the long robe who was returned for a county should be petitioned against, and the question would be tried in the only way in which it could be tried—by reference to an Election Judge. He could not state offhand whether the statutory disqualification had been repealed, but he must say that to challenge the votes of hon. Members now sitting, who had not been petitioned against within the time allowed by law, was against both the letter and spirit of the law.

§ MR. NEWDEGATE
said, he was under the impression that those hon. Gentlemen who sat and voted without having a right to sit and vote in the House were liable to very heavy penalties.

THE ATTORNEY GENERAL
I may relieve the apprehension of the hon. Member who has last spoken (Mr. Newdegate) because no person can be liable in penalties for sitting or voting in this House, unless they are prescribed by some Act, and as the Act he has cited does not proscribe any penalties, he may keep his mind at ease. I see several hon. Members of the legal profession around me, and I think they may also be easy in their minds, because I quite agree with the right hon. Baronet the Member for Morpeth (Sir George Grey), that their seats can be only questioned before a Committee of the House of Commons. [Several hon. MEMBERS: Before an Election Judge!] I ought to say before an Election Judge, because the functions of the Election Committee are transferred to a Judge. With respect to this Act of Parliament—whether it is repealed or not I will not say—it would have been desirable to have had a quarter of an hour's notice to consider it. I will not undertake to say that it has been repealed; but I will undertake to say that it is obsolete, and it ought to be repealed. I am speaking from recollection, and I may be wrong; but my impression is that Lord Coke—no mean authority in common law—sat for a county, and from that time to this there have been numerous instances of barristers sitting for counties. Lord Brougham has been mentioned by the Speaker, and Sir John 1350 Rolt, who was Attorney General to the late Lord Derby's Government, and Sir Fitzroy Kelly both sat for counties, and I think there is another gentleman, the Solicitor General of the late Government (Sir Richard Baggallay) who now represents a county. Well, if these gentlemen are to be held as disqualified, the least thing we can do is to refer the question to a Committee. It appears to me that this Act is obsolete; it is possible it may have been repealed; if so, that will save all trouble; if not, the sooner it is repealed the better.

MR. STAVELEY HILL
said, he would remind the House that the clause had been enforced not only with reference to counties, but also with reference to boroughs, and on one occasion lawyers had been altogether excluded from that House, and that was in the Parliament which sat at Coventry, and which was called the Indoctum Parliamentum. That was the origin of the saying, when lawyers met with a foolish man—"Send him to Coventry;" he, however, thought the Act in question was repealed by a statute of one of the Georges.

§ MR. TOMLINE
said, the hon. and learned Gentleman the Attorney General had enumerated a great many instances. [Cries of "Spoke, spoke!]

§ MR. SPEAKER
When a Motion is made for the adjournment of the House, an original Motion, no other Motion being before the House, an hon. Member has the right of reply. The hon. Gentleman the Member for Great Grimsby is therefore entitled to proceed.

§ MR. TOMLINE
resumed. The only reply made by the hon. and learned Gentleman in his speech was to enumerate a great number of eminent lawyers who had broken the law as stated in clear English in the book of unrepealed statutes published only last year, and stated by the Prime Minister in his place here to be the valid and effective law of the land. The hon. and learned Gentleman complained that he (Mr. Tomline) had not given him a quarter of an hour's notice to read that book which was in possession of every hon. Member of the House. He would appeal to the House whether any other reply was given by the hon. and learned Gentleman as to the validity of the Act of Parliament, which was couched in the clearest English, and did not require the interpretation of a lawyer. It stated 1351 that no man of law following his business had a right to be accepted and returned to that House, and, consequently, that he had no right to convert a minority into a majority at the expense of the people on whom he was not entitled to cast a burden of any kind. He was curious to know how the lawyers who were now sitting in that House, in violation of the Act, would act in the division which was about to be taken—

§ MR. SPEAKER
One of my duties is to remind hon. Members that they should address their argument to the Motion before the House. The Motion now is, "That this House no now adjourn." The remarks of the hon. Gentleman the Member for Great Grimsby are not applicable to his Motion.

§ MR. TOMLINE
continued, and said he had heard hundreds of speeches made on a Motion for adjournment—and with the assent of the right hon. Gentleman in the Chair—which had no reference whatever to adjournment. No man could deny that night after night such speeches were made. He remembered the right hon. Member for Buckinghamshire (Mr. Disraeli) a very short time ago, moving an adjournment and making a very effective and eloquent speech on almost every subject, but the adjournment. He might state that he had brought that question before the notice of the right hon. Gentleman as the guardian of the independence and privileges of the House, and he should now divide on the question of the adjournment that he might see whether those lawyers, who were within the four corners of that statute, would boldly infringe the plain terms of the law and vote contrary to its clear language.