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but solely to wriSp. The other words of the act make it equally clear.
Some other learned gentlemen may perhaps think fit to argue, that the said statute is not confined to writs, because it speaks of " the Sheriff, or other officer, having the execution and return of any such writ." But the second section of the statute clearly explains who is meant by that other officer, namely, the proper officer of the Cinque Ports, to whom an additional time is allowed to issue the precepts therein mentioned, and who has the. return of a writ, as well as the Sheriff of a county.
But let it be supposed for a moment, solely for the sake of argument, that that Act of Parliament does extend t« the return of precepts, as well as to the return of writs. Then it will be answered by the High Bailiff, that a return has been made in due time, viz. a special return; therefore the High Bailiff has complied with the direction of the law, even admitting that the statute of the 10th and nth of William III. to fully extend to the cafe of the High Bailiff of Westminster, the House ought not to censure him, but ought to order him to proceed in his scrutiny, provided the High Bailiff can shew that he has granted it on good grounds.
. The statute enacts, in the first place, that in the cafe of a general election, a return shall be made to the Clerk of the Crown "on or before the day that the Parliament shall be called to meet."
It. enacts, in the next place, that, in the cafe of " any new writ," issued in the middle of a Parliament. a return shall be made to the Clerk of the Crown "with all convenient expedition, not exceeding fourteen days after the election."
[The Clerk then read the proceedings of the House in the famous cafe of the Westminster election, when Lord Trentham and Sir George Vandeput were the candidates; and which ejection was in consequence of a new writ in the middle of. a
L 3 Parliament. Pftrliaftfcnt. Sec the Journals of the House of Commons of the 22d and 23d days of February, 1749.] ,
Oft the 22d of February, "Notice is taken th3t no return had befcn made to the writ for the electing a citizen to serve in Parliament for the city of Westminster*" Upon this the Houses ordered &e High Bailiff to attend.
The next day the High Bailiff did attend, and was examined.
Did *he House commit him? No.—-Did the House order him to make a return before he had finished the scrutiny which he had granted? No.—Did the House censure him for having disobeyed the. statuteofVhe lOthand nth of William III. by not having made a return within the first fourteen days after the election? No.—The Speaker* by the direction of the _House, recommended to him some particulars of his duty J assured him that the House would support him in the discharge thereof* and hoped that he would use all possible dispatch."
The House ought therefore^ in the present instance, not to prejudge the question. They ought to db, in this instance, what the-House wisely did in the year 1749, viz. to order the High Bailiff to attend* and to hear him, before he is conflemned. If the House, after having examined the High Bair Jiff, should be of opinion that he did right to grant a scrutiny, they ought strictly to follow the excellent precedent in. the case of Trentham, by ordering the High Bailiff " to take care to expedite the election as much as possible." [Mr. Fox cried out, Hear! Hear !] I now find, fays Lord Mahon, the manner in which the right honourable gentleman, who cries hear! means to argue this question. He means to admit* thtt the case of the former Westminster election would, in substance, bfe similar to the present, if the statute of the ipth an4 I ith of Willfam III. had enacted, in the case of a oew Writ in the middle of a Parliament, that the return shall be mad© not withift fourteen days after the end of jhe election, but
witbii^ svathin fourteen days after the end of the poll. The right honourable gentleman means to ground his right to be returned uporf the distinction between the poll and the election. He means to argue, that the return in the former Westminster election was right, because, though it were made months after the poll, it was made previous to the i^dv day after the election. Why? Because the right .honourable gentleman means to contend, that the scrutiny was part of the election. That the scrutiny not being concluded, the election was not concluded; and that therefore no return could be made till the election was over.
[Mr. Fox cried out again, Hear! Hear!] I am happy that Mr. Fox agrees to this way of stating the argument. I cannot, however, sufficiently admire the contradictions between Mr. Fox and Mr. Fox's learned friend (Mr. Lee) whose words I have just taken down in writing. Mr. Lee laid it .down as a principle, "that the end of the poll was the end of the election? That was the'law of the learned gentleman. But the law of the right honourable gentleman is, "that the end of the poll is not the end of the election." The right honourable gentleman, having undertaken to defend a bad cause, has got into the most complete dilemma possible. For, if the statute of the ioth and I ith of William III. is not applicable to precepts, that statute has nothing to do with the Westminster election. If that statute is applicable to precepts, an<l that, according to the learned gentleman, Mr. Lee, the end-of the poll is the end of the election, the precedent laid down by the House in the former Westminster election clearly proves that Mr. Fox ought not to be returned, but that the scrutiny .ought to be suffered to continue. If, on the contrary, the law of the right honourable gentleman (Mr. Fox) is right, namely, that when a scrutiny is granted, the end of the scrutiny, and not the end of the poll, is the end of the election; then, as the present scrutiny for Westminster is not over, the Wests' 4 minster minster election is not yet over; and Mr, Fox cannot be returned as duly elected until the election shall be over.
The right honourable gentleman has, however, the decency, the moderation, and the modesty, to demand of this House, that he (Mr, Fox) should be seated for Westminster, though he himself contends, that, according to law, the. election is not concluded, inasmuch as the scrutiny is not over.
Lord Mahon, May 24, 1784.
If it had been for me to have chosen, I should have put off the risk of my first attempt in the debates of this House to a much later period; because I should have thought it more prudent, as well as more becoming, to mark, by 3 silent attention^ the respect which I entertain for the first abilities of the kingdom, upon both sides of the argument — abilities enlightened by political experience, and improved by habits of political reasoning. I can say too, with equal veracity, that I would have preferred any topic to this, because it is new, of extreme delicacy in its consequences, and of immediate concern to the right honourable petitioner (Mr. Fox) whose manliness of spirit I will so far endeavour to imitate, that I will for ever disdain the surrender of my conviction, even to him; but whose figure in this country, and strenuous opposition to the Minister of the day, makes it a very unwelcome task to act, even in a judicial character, against a point which he has made with a declared view to his own political character, though in form h6 has made it as party in a suit.
But I have no choice. First principles of the government have been forced into the debate — neutrality would be cowardice to the argument, as the public opinion is engaged in it; and a vote unexplained would subject even me, insignificant as 1 am, to the odium of that prejudice which has found its way from one side of the bar to the corresponding side of the House. I may be called the desperate partisan of a measure to which no ingenious motives can be assigned, which has no principle of
law law to sustain it, and which no liberal argument can reconcile to- the feelings or the good fense of dispassionate men. I confess my ambition to lay aside the advocate here, and stand upon higher ground, in support of a Constitution which I revere, unr fettered by technical subtileties, and speakirjg with its genuine character, simplicity.
I am not, Sir, one of those grave and authoritative lawyers who have been catechised by an honourable friend of mine, (Mr. Powys) and who have to thank him for a very peculiar compliment. He tells them they speak without party views, or, as he expressed it, without a fide; as if the rest of the House, including the country gentlemen, (to which rank he belongs) were less independent. Whether I have a side ex-r pept that of truth, I will not presume to intimate; but throw myself upon the candour of the public for their opinion of my future conduct, without assurances or professions.
In a few and plain words, pointed closely to the subject, I wish to mark those broa4 principles upon which I act, against the motion first rnade.
What- is called a return has no magic in the found of the Word: it is a mode and form by which the electors convey the object of their choice into Parliament—election is the substance, and- it is no election if it is not complete. Before its completion two doubts may arise; one, as to the number of the voters for each competitor; another, as to the right.—A poll is the method used for ascertaining the number; and if, during that poll, the right has "been imperfectly canvassed, what are called scrutinies, have been received for the purpose of a more accurate search into the right. A poll, if demanded, is an essential and continuing part of an election; and while that poll is depending, the election Js not more complete than if it never ha4 begun. The fame is true of scrutinies—once admitted, they suspend the return, because they continue and keej) alive the act of election.