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I confess I am at a loss to find any cafe that bears the least similarity to the present. Of all the election causes in which I have had the honour to be concerned, and during my practice there have been many, I declare that I cannot fay there is a single one which has the least affinity to that alluded to. According to Act of Parliament, the High Bailiff of Westminster should have made his return immediately at the final close of the poll; and should not have given a refusal, because a scrutiny had been demanded by Sir Cecil Wray. This mode of conduct was contrary to the statutes ioth and nth of King William, chap. 7th, and therefore deserved reprehension. ,-*To* convince the House of the propriety of this procedure, I beg leave to quote the very words of the Act of Parliament to which I allude. [He then read the following quotation.] "For preventing abuses in the returns of writs of summons for the calling and assembling of any Parliament for the future, or writs for the choice of any new members to serve in Parliament; and to the end such writs may, by the proper officer or his deputy, be duly returned and delivered to the Clerk of the Crown, to be by him filed, according to the ancient and legal course: Be it enacted, by the King's Most Excellent Majesty, &c. That the Sheriff or other officer, having the execution or return of any such writ, which shall be issued for the future, shall, on or before the day that any future Parliament shallbe called to meet, (and with all convenient expedition, not exceeding fourteen days after any election made by virtue of any new writ) either in person, or by his deputy, make return of the fame to the Clerk of the Crown in the High Court of Chancery, to be by him filed." It was depriving the electors of their representatives, and the nation of the exertions of two men, whose political efforts might be of service at this important crisis. I have not the honour of being intimately connected with Lord Hood, although I can boast of an intimacy with the right honourable gentleman (Mr. Fox); but surely the services of both these men should jiot at this time be lost to
their friends of Westminster, who have taken a very active part in their election. I stand up for the privileges of a member of Parliament; I stand up for the privileges of the People; I profess I know very little about the character or disposition 6F the Returning Officer for Westminster; but I am fully persuaded that his conduct, in this cafe, is highly culpable. I do riot wish to postpone the consideration of His Majesty's speech; but I feel so seriously for the .consequences, if the whim or caprice of a Returning Officer is indulged, that, with submission to the House, I apprehend an investigation into the causes for delaying the return of the members to serve for Westminster should precede every other business. Sensible of the expediency of bringing a question of such magnitude before the Ho»se, I think it a duty incumbent upon me to take the earliest opportunity to discharge the trust reposed in me by the public. Why not decide the contest in the usual manner, by petitioning the House, and appointing a Committee to examine into the merits of the different candidates? This has been the practice of all other Parliaments; and I hope the present will not deviate from the steps of their ancestors, whose maxims of policy have been wife and consistent, and agreeable to the established laws of the land. Considering all these facts, I confess that I do not approve of committing a decision of such importance to the High Bailiff of Westminster; therefore I wish to have the matter brought before the House as early as possible, as it is a constitutional question of that nature, as to demand the most serious attention of every friend to this country.
Mr. Lee, May 24, 1784.
The learned gentleman (Mr. Lee) has, in a very laboured speech, laid down a great deal of law on the subject of elections; but the learned gentleman, for reasons best known to himself, has neglected to give the House any information that is applicable to the case of the late Westminster election.
Vol. II. L The The learned gentleman has informed the House, that on a
scrutiny the High Bailiff of Westminster has no authority by law to administer an oath to aoy person to be examined as an evidence, and therefore the scrutiny had been lawfully demanded, and granted. He objects to its being permitted to go on; bat it would have been kind in the learned gentleman, if he had imparted rather more of his legal knowledge to the House, by informing this assembly of what is equally unquestionably true, namely, that it is not in the power of the High Bailiff to administer such an oath even during the poll. Yejt the learned gentleman must acknowkdge, that the law makes the H'gh Bailiff a judicial officer during the poll. lie has, then, no reason to object to his acting in the seme capacity, with the fame powers, during the polL
The learned gentleman ought to have informed tbe House, which he has neglected to do, that the Returning Officer by law is obliged to take an oath, previous to his acting in that capacity; that oath is to be found in the statute of -the ad of George II. chap. 24, sect. 3, and it contains these words, viz.
I will return such persen or persons as shall, to. the best of my judgement, appear to me to have the majori ty of legal votes.
It is evident, from the nature of this- oath, that the Returning Officer is by law not only a ministerial, but a judicial officer. He is ordered to form a judgement before he makes his return. The law which enacts, that any man is to judge, does of course enact, that he is first to hear the cause on which he is to decide. If he is, to. hear the cause, he must evidently take such time as shall be absolutely necessary for him to hear it. Between 12 and 15,000 persons have polled at the late Westminster election. The Returning Officer had it not in his power to examine the validity of all these votes during the poll * therefore he takes a longer time to hear the cause; that is to fayr he grants a scrutiny. Upon what, in his judicial capacity, is he to form a judgement? Upon the majority of legal vote?. Me is«ow going upon that inquiry, agreeabse to
ne solemn oath which he has taken. After he had heard the tause, and formed a judgement, what is lie to do next* Read the oath, and it will appear, that he is then, and not before, to make his return of the person or persons who shall appear to him to have the majority of legal votes. Nothing therefore can be more clear, than that the Returning Officer, having taken that oath, did right, to grant a scrutiny, if legally and. duly demanded; provided that he had it not in his power to have scrutinized all the votes during the poll, and provided he had good reason to doubt (after the poll was concluded) whether both or either of the persons who had the apparent majority on the pdll, had the real majority of legal votes.
The learned gentlemon has not chosen to put his law in jeopardy in this House, by maintaining the very singular argument, which the newspapers inform us, was made use of out of this House; not by a learned, but by an ingenious and right honourable gentleman (Mr. Fox), who was pleased to say, that the High Bailiff could not proceed in this scrutiny; because, from the moment that the writ became returnable, the High Bailiff was funtlus officio, and was as little capable, in law, of going on with the scrutiny, or of making a return for Westminster, as if he were merely the High Bailiff of any other city, or as if he were the Sheriff of Cumberland.
On the day the writ became returnable, the Returning Officer for Westminster could form no judgement who had the majority of legal votes. He then determined to take the neceflary time to hear the evidence on which he was to form, his judgements He has the power, nay, it is his duty as Returning Officer, after having formed his judgement, t;o make, agreeably to his oath, a return of members. He is therefore clearly not funtlus officio, but is bound to make a return; which return must evidently follow, and not precede his forming a judgement upon the question of the majority of legal votes. If he be aot fun&us qfficio when he makes the return, it is evident that he cannot be fnniiut officio at any anterior period.,- that is, he is not funclus officio, as it has been asserted,
during the scrutiny. This idle idea of the Returning Offices being funflus ojficio, pending the scrutiny, is too absurd almost to deserve an answer.
The learned gentleman has quoted to the House, as an unanswerable proof of the delinquency of the High Bailiff, the statute of the ioth and I ith William III. chap. 7, sect. x. It is not a little Angular that any man, calling himself a lawyer, should quote that statute for that purpose.
By this statute I have no doubt in my own mind what is the proper construction of it. In the first place, I would be bold to maintain, that that law relates to writs, and writs only, and has nothing whatsoever to do with precepts; and gentlemen well know, that a writ had been issued from the Clerk of the Crown to the Sheriff of the county of Middlesex, and that the Sheriff of Middlesex did then deliver, not a writ, but a precept, to the High Bailiff of the city of Westminster. It is evident, from a variety of circumstances, that that statute does not relate to precepts.
The act never mentions the word precept. The penalty of 500l. that it inflicts, is relative to the return of writs; and as it is a penal statute, it must be construed literally, and not otherwise. The reason why it alludes to writs only, will appear evident from an attentive examination of the principle of the law of elections, as contained in the statutes of the 5th of Richard II. chap. 4; of the 7th of Henry IV. chap. 15; of the 1 ith of Henry IV. chap. 1; of the 23d of Henry VI. chap. 14; and of the 7th and 8th of William III. chap. 7.
That this statute of the ioth and 1 ith of William III. does not allude to precepts, but to writs only, is farther evident, from this consideration; that it is enacted therein, that <c the Sheriff, or other officer, making such return, shall pay to the Clerk os the Crown the ancient and lawful fees of four mil-lings," &c. Now it is evident, thatthe High Bailiff of West-' minster has no fees to pay to the Clerk of the Crown; and therefore this Act of Parliament does not relate to his precept, - .-- 3- :. but