HL Deb 08 February 1819 vol 39 cc335-9
The Earl of Lauderdale

presented a Petition from certain Electors of Westminster against this bill. It was in substance the same as the one presented to the House of Commons by sir Francis Burdett, [see p. 208] Lord Sidmouth having moved the order of the day for the second reading of the bill,

The Earl of Lauderdale

said, he was surprised that the noble secretary of state should content himself with merely moving the second reading of this bill, and seem to consider it unnecessary to say a word upon a measure of so extraordinary a nature, perhaps the only measure of the same kind ever introduced into that house. He wished to call their lordships attention to the circumstance, that this bill was proposed to be passed at a time when persons had actually assumed the character. of candidates, and was, therefore, with respect to them, an ex post facto law. Besides, what necessity was there for such a measure? Had not the high bailiff the means of indemnifying himself by an action at common law? That there was such a remedy, had already been decided. In the action, assumpsit, brought by the high bailiff against sir Francis Burdett, the late lord Ellenborough gave it as his opinion, that a candidate who had received the use of the hustings was liable for his share of the expense. The question was afterwards solemnly argued, on a motion for a new trial, when the same opinion was given by Mr. Justice Le Blanc, and concurred in by the other judges. The late Mr. Clifford supported a very learned argument in favour of the non-liability of the candidate. If the noble lord thought that argument well founded, there might be a reason for introducing this bill; but all the judges were of quite a different opinion, and stated it to be the law, that a candidate who benefitted by the use of the hustings was liable to the expense. This being the state of the law, he should be glad to know what reasonable motive could be assigned for the interference of that House, after the writ for a new election for Westminster had been issued, and persons of course stood in the situation of candidates. The measure could only be introduced for the purpose of subjecting such persons to expenses, to which they could not be liable by an action at common law. On this ground he regarded the measure as possessing all the character of an ex post facto law, and on that ground he trusted their lordships would proceed no farther with it.

Lord Sidmouth

said, that with the construction of the present bill he had had no concern; but the bill which was for reviving and continuing an act of the 51st of the king, having, after much consideration, passed the other House, a representation was made to him, showing the expediency of such a measure; and bath as high steward of Westminster and as secretary of state, he felt himself bound to give the bill his support. He now pro- posed the second reading; and their lord-ships had to consider, first, whether it was not proper that accommodation for voting should be provided in Westminster; secondly, by whom that accommodation ought to Be provided; and, thirdly, who ought to defray the expense. Under all these points of view, he thought they could not but agree to the present bill. It would be recollected, that in the year 1811, after lord Ellenborough had given the opinion alluded to by the noble earl, a bill was introduced and passed, for extending to Westminster the act of the late king, by which the sheriffs of counties are obliged to provide hustings, poll-clerks, &c. for elections [Here, on the motion of the noble lord, the clerk read the act in question—the 51st of the king, chap. 6]. The noble lord then proceeded, and observed, that this act, which expired in 1813, was renewed for six years, and had again expired on the first of January last. The question was, with regard to the electors of Westminster, whether it was necessary that hustings should be erected, and other conveniences provided; if so, by whom they should be provided, and who was to pay the expenses of such arrangements? If this bill were not passed, all that the high bailiff was compellable by law to do with regard to an election was (and he spoke advisedly, such being the opinion of eminent lawyers), to attend himself, with a single clerk, to take the poll. Now, their lordships knew from melancholy experience, that riots frequently took place at elections for Westminster; and could they imagine, that when the high bailiff, attending thus with a single clerk, could not take the votes of more than a fourteenth part of the pensions entitled to the elective franchise for Westminster, which amounted to at least 14,000, there would not be a much greater tendency to riot than under the system upon which the elections had been hitherto Carried on? The mere anxiety of the electors to obtain a priority at the poll, in order that they might not be deprived of the exercise of their franchise, must have a direct tendency to excite riot and confusion. But was it of no light importance that a large majority of the electors of Westminster should be absolutely deprived of the means of exercising their elective franchise?—and yet, as he had already stated, such must be the case if this bill was not passed. With regard to what had been said by the noble earl re- specting the decision in 1808, he believed he was quite correct in stating that that decision did not turn upon the point stated by the noble earl, but upon this, that the attendance of an agent of sir Francis Burdett upon the hustings, was considered as an implied acceptance of the accommodation provided by the high bailiff for his share of the expenses, of which therefore sir Francis Burdett was made liable. But it should not be forgotten, that when a bill similar to the present, was in that House in 1811 and 1813, and which did not pass sub silentio, his noble friend (lord Ellenborough), now no more, in whom were united the most eminent knowledge of the law, with the greatest firmness and integrity, was then a member of the House, and saw no reason whatever, arising out of the decision in 1808, against the passing of the bill. The present bill, which was merely to revive and continue one that expired five weeks ago, he saw no reason to object to, on the ground of its being ex post facto, whilst the necessity for a measure extending the same provisions to the returning officer of Westminster, where the electors were so numerous, as to the returning officers of counties was so obvious, that he could not hesitate in moving the second reading of the bill.

The Earl of Lauderdale

contended, that the noble secretary of state had taken all erroneous view of the law. He seemed to be of opinion, that the high bailiff was only obliged to provide a single clerk to assist him in taking the poll. Such, however, was not the fact. Lord Ellenborough had laid it clearly down as the law, that the returning officer was bound to provide due accommodation for the election, and that the candidates, for whose benefit that accommodation was provided, must defray the expenses. Nothing could be more groundless than the analogy the noble lord had attempted to establish between sheriffs of counties and the high bailiff of Westminster. The office which the sheriff held was imposed upon him, while the high bailiff, on the contrary, not only took the burthen on himself voluntarily, but purchased his office from the dean and chapter of Westminster. The operation of this bill, if it should become a permanent law, would therefore, merely be that of raising the money value of the office, and enabling the dean and chapter to get a better price when it came again into the market. The noble lord spoke of disorders to be apprehended from a Westminster election; but he who had in the course of his life had a good deal of experience in scenes of that sort, had always found that measure which was the chief object of this bill to be a principal cause of tumult. Of this he was certain, that the greatest disorders he had ever seen at these elections, were occasioned by the crowd endeavouring to get possession of those hustings, for the erection of which the noble lord expressed so much anxiety.

The House divided: Contents, 13; Not Contents, 4. The bill was then read a second time.