I confefs I am at a lofs to find any cafe that bears the least fimilarity to the prefent. Of all the election caufes 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 fingle one which has the least affinity to that alluded to. According to Act of Parliament, the High Bailiff of Westminster fhould have made his return immediately at the final close of the poll; and should not have given a refufal, because a fcrutiny had been demanded by Sir Cecil Wray. This mode of conduct was contrary to the ftatutes 10th and 11th of King William, chap. 7th, and therefore deserved reprehenfion. 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 abufes in the returns of writs of fummons for the calling and affembling of any Parliament for the future, or writs for the choice of any new members to ferve in Parliament; and to the end fuch 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 courfe: Be it enacted, by the King's Moft Excellent Majefty, &c. That the Sheriff or other officer, having the execution or return of any such writ, which fhall be iffued for the future, shall, on or before the day that any future Parliament fhall be called to meet, (and with all convenient expedition, not exceeding fourteen days after any election made by virtue of any new writ) either in perfon, 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, whofe political efforts might be of fervice at this important crifis. 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 fervices of both these men should not at this time be loft to

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their friends of Westminster, who have taken a very active part in their election. I ftand up for the privileges of a memBer of Parliament; I ftand up for the privileges of the People; profess I know very little about the character or difpofition of the Returning Officer for Westminster; but I am fully perfuaded that his conduct, in this cafe, is highly culpable. I do not wish to poftpone the confideration of His Majesty's speech; but I feel so seriously for the confequences, if the whim or caprice of a Returning Officer is indulged, that, with fubmiffion 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 bufinefs. Senfible of the expediency of bringing a question of such magnitude before the Houfe, I think it a duty incumbent upon me to take the earliest opportunity to discharge the truft repofed in me by the public. Why not decide the conteft in the ufual 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 confiftent, and agreeable to the established laws of the land. Confidering all thefe facts, I confess that I do not approve of committing a decifion of fuch importance to the High Bailiff of Westminster; therefore I wish to have the matter brought before the House as early as poffible, as it is a conftitutional 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 fpeech, laid down a great deal of law on the fubject of elections; but the learned gentleman, for reafons best known to himself, has neglected to give the Houfe any information that is applicable to the cafe of the late Weftminster election. VOL. II. L The

The learned gentleman has informed the Houfe, that on a fcrutiny the High Bailiff of Westminster has no authority by law to adminifter an oath to any perfon to be examined as an evidence, and therefore the fcrutiny had been lawfully demanded and granted. He objects to its being permitted to go on; but it would have been kind in the learned gentleman, if he had imparted rather more of his legal knowledge to the Houfe, by informing this affembly of what is equally unqueftionably true, namely, that it is not in the power of the High Bailiff to adminifter fuch an oath even during the poll. Yet the learned gentleman muft acknowledge, that the law makes the High Bailiff a judicial officer during the poll. He has, then, no reafon to object to his acting in the fame capacity, with the fame powers, during the poll.

The learned gentleman ought to have informed the Houfe, 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 ftatute of the 2d of George II. chap. 24, fect. 3, and it contains thefe words, viz.

I will return fuch perfon or perfons as fhall, to the best of my judgement, appear to me to have the majority of legal votes.

It is evident, from the nature of this oath, that the Returning Officer is by law not only a minifterial, 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 courfe enact, that he is firft to hear the caufe on which he is to decide. If he is to hear the caufe, he must evidently take fuch time as fhall be abfolutely neceffary for him to hear it. Between 12 and 13,000 perfons have polled at the late Weftminster election. The Returning Officer had it not in his power to examine the validity of all thefe votes during the poll; therefore he takes a longer time to hear the caufe; that is to fay, he grants a fcrutiny. Upon what, in his judicial capacity, is he to form a judgement? Upon the majority of legal votes. He is now going upon that inquiry, agreeable to

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the folemn oath which he has taken. After he had heard the taufe, and formed a judgement, what is he to do next? Read the oath, and it will appear, that he is then, and not before, to make his return of the perfon or perfons 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 fcrutiny, 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 perfons who had the apparent majority on the poll, had the real majority of legal votes.

The learned gentlemon has not chofen to put his law in jeopardy in this House, by maintaining the very fingular 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 fcrutiny; because, from the moment that the writ became returnable, the High Bailiff was functus officio, and was as little capable, in law, of going on with the scrutiny, or of making a return for Weftminster, 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 Weftminster could form no judgement who had the majority of legal votes. He then determined to take the neceffary time to hear the evidence on which he was to form his judgement. He has the power, nay, it is his duty as Returning Officer, after having formed his judgement, to make, agreeably to his oath, a return of members. He is therefore clearly not functus officio, but is bound to make a return; which return muft evidently follow, and not precede his forming a judgement upon the question of the majority of legal votes. If he be not funclus officio when he makes the return, it is evident that he cannot be functus officio at any anterior period; that is, he is not functus officio, as it has been afferted,

during the scrutiny. This idle idea of the Returning Officer being functus officio, pending the fcrutiny, is too abfurd almoft to deferve an answer.

The learned gentleman has quoted to the House, as an unanfwerable proof of the delinquency of the High Bailiff, the ftatute of the 10th and 11th William III. chap. 7, fect. 1. It is not a little fingular that any man, calling himself a lawyer, fhould quote that ftatute for that purpose.

By this ftatute I have no doubt in my own mind what is the proper conftruction 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 iffued 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 ftatute, it must be construed literally, and not otherwife. 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 ftatutes of the 5th of Richard II. chap. 4; of the 7th of Henry IV. chap. 15; of the 11th 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 10th and 11th of William III. does not allude to precepts, but to writs only, is farther evident, from this confideration; that it is enacted therein, that "the Sheriff, or other officer, making fuch return, fhall pay to the Clerk of the Crown the ancient and lawful fees of four fhillings," &c. Now it is evident, that the High Bailiff of Weftminster has no fees to pay to the Clerk of the Crown; and therefore this Act of Parliament does not relate to his precept,

but