« AnteriorContinuar »
That scrutinies, upon a fair ease of doubt, are justified by the law and custom of Parliament, it is impossible to deny: and it is an unfinished election, after scrutinies have been granted, up to the moment of closing them.
T.et me, then, ask. m general, if this House can ever interrupt an unfinished election ? If it can, One or other of these consequences must happen—either the House will, itself, elect, by continuing, Ot by recommencing and closing the interrupted act, in which cafe it ceases to be a court of appeal—or the feat will precede the choice, or the appeal precede the judgement. Who can form an idea more preposterous? And who will believe that such is, or can be, the constitution of Parliament r
That scrutinies are bad expedients, I admit; all scrutinies, whether sitting the Parliament, or upon a general election. They are dangerous instruments of power on the one hand, or faction npon the other; attd I shall, with pleasure, give roy support, as far as it goes, to any honourable member who will form a bill to abolish them, or make them innocent and nsefuf.
But I cannot suppress my astonishment, that where the topic ah bieonvenieritl is pressed into the service, that another inconvenience is overlooked.—Imagine the petitioner's doctrine to be carried, and what an alarming power is given to the King *>t the Minister !—He wants to be rid of a popular candidate. This precedent will give him a receipt for it: let him first cram the poll; pour into it all the bad votes that a lane or a hedge can furnish; then feed it (the words are become technical) by two or three votes in an hour, till the return day arrives, Ot is not far off. Scrutinies will then be of no avail j and the servile courtier, who has not half the legal votes of his adversary, will deter him, by the expence of a petition^ from an attempt upon the seat.
But what are the admissions of the argument? Have gehtlernen weighed them as they deserve to be weighed? It is admitted, ted, that sitting a Parliament, scrutinies to an indefinite period, are, if a cafe be made for them, parts of an election, which the House have no power to interrupt; yet there, every argument pressed in this debate against the danger of scrutinies upon a general election, has equal force. It may there belaid, "the House is not full; Mr. Grenville's judicature is delayed; the popular candidate is excluded; and the city or county is taxed, though unrepresented."
As to Mr. Grenville's bill, such a grose fallacy was never attempted, as to argue that scrutinies interfere with it, and elude the policy of it. Scrutinies, in point of right, are just as they stood before that bill; and I may, with sounder argument, give them an obvious preference over the control of the House at large. That bill improved the judgement, but lest the subject of it the s^me. The Committees inherit the rights of the House, to use a good expression of a noble Lord who spoke early in the debate, (Lord Mulgrave;) not all the rights neither, for they have no power of decision beyond the feat; but they have no wider jurisdiction. When I hear such illfounded penegyrics up6n this bill, I suspect false friends to ir> and snakes in the grafs.
"But a return !—You forget a return !"—As to returns, I know this of them in general, that by the law of Parliament, jf they are not built upon a real and complete election, they jtfe no retuths at all, but absolutely YQsd.
Analogies of law are called into the argument oh both sides; but they are analogies rather from the difference than similitude. In courts of law, a return, if it executes the writ in form, binds the court and the parties, who have no remedy but ah action; but in Parliament, a return is waste paper, if "ft is not confirmed by a real, a due> and a complete election.
Upon this idea, who can be returned while the election proceeds ?—If the poll is depending, the condidate who stands first Upon it has no better claim to a return than his competitor, yrbo h^s not three votes; if the poll is checked, by a doubt
upon upon the right, in the form of scrutiny, and that scrutiny is depending, shall he who stands first upon it be returned? Just as impossible.—Shall both be returned? It is ridiculous to imagine it. Nor, except that ridiculous and shameful party job, the Oxfordshire election, will any double return of this kind be found upon the journals of Parliament.
What is the form of your decision upon contested elections? 'A form as old as the right: ** Resolved, That A. B. was elect-ed, and ought to have been returned." Can it be said that he was elected upon half the poll or scrutiny? And ought he to have been returned if not elected?
. But now for the writ, and its exigency—a terrible word !— t must, indeed, work miracles, if it can do what is threatened: it must have the power to make that a complete election between an old Parliament and a new one, which is no election while the Parliament happens to be sitting—It must have the power to make that a return, consistent with an oath, which flies in the face of it. When I am told this exigency of the writ is to carry such points, I suspect the miracle; watch it narrowly, and pick all the holes in it I can. I would catch at any little feather to save the common sense of the subject from, such a degree of odium and ridicule. But what is the harm of the writ r It orders a (return upon a particular day; but of what kind? A return, accompanied by the certificate of an •election. What fays the Returning Officer here ?" I can certify no election, because I have no election to certify."—If it was half a poll he would give the fame answer; and the degree in which the election is incomplete, makes no difference in the. -argument, or effect of his plea. . / - :.
It is admitted, that impossibilities may justify him; and if the poll is delayed by force, or fraud, or external accident, the exigency of the writ may be disobeyed. What is it but an impossibility, that a legal part of the depending election can revar.in incomplete without prejudice to the return of a complete election?
As to the acts of Parliament, they leave the return of the Writ, as accompanied by the certificate of an election, just where they found it; except that when such an election has been made, and the writ can be returned, so accompanied, the Sheriff of the county, who is a ministerial officer, in conveying that certificate home to Parliament, is to make the return upon such a day. The act supposes an election previously determined. .
But poor Westminster is to be taxed, though unrepresented.—
Under the tropics is our language spoke,
"We have lost America, 100,000,000 of money, and 100,000 lives, in opposition to the .doctrine, that representation is inseparable from taxation; but we pick it up again, to make a noble stand for it in the Westminster election. This may he called the art of sinking in politics.—But if the ridicule could be heightened, of saving Westminster from her share in the tax while she is in the act of electing her own representatives, we forget every cafe of a double return, and we forget the fame injured city upon every new election sitting the Parliament.
As to the real ground of scrutiny, in the case before us, I shall fay a very few words. It startled me at first, when the right honourable petitioner got up and said, " As a party, I like this ; but as a judge, I think it wrong;" it struck me, that, even with his powers of discernment, he might sometimes for-* get that he was a judge, and recollect his other situation too well. But when he examined the Deputy Bailiff I was comforted ; for there, it must be owned, he forgot that he was a party, and most accurately remembered that he was a judge; nay, he proved himself that species of judge whom our law, by one of its most popular fictions, calls a counsel for the prisoner; for it was the tendency, as well as effect of his questions, t© exculpate and justify the High Bailiff. I ask of any
man of honour, who heard this deputy culprit in the hands of tho right honourable gentlemen, if he has a doubt under the circumstances of this poll, that a revision of it was necessary* and essential to justice?
What, then, is to be done ?—Return me, laid the right honourable petitioner. That prayer is abandoned by his friend, the venerable gentleman (Mr. Ellis) conversant in the rules of Parliament, who made this motion. He fays, "Let any return be made; I don't care which." If that should he done, you either must compel a judicial officer to act as the minister of your will, and return that which you call an election, but he calls none; or you compel him to judge, when he can form no judgement at all. Are we, then, to issue a new writ, or direct the Bailiff to proceed? I confess, that I should have my doubts upon that subject; and should rather be of opinion, that a new writ should issue, if I went upon the common law of Parliament, applicable to the subject of an unfinished election: but I donsider the case of Trentham and Vandeput as a direct precedent in point, that a legal scrutiny must proceed. By the way, this last mode is clearly more eligible for the petitioner than to make the entire election begin again; though his counsel, by a logic unfathomable to me, have pressed for a new writ, as the better expedient of the two. However, that point is not before us; and I shall close what I have said by a negative to the motion, confined, as it is, to the demand of an immediate return.
Mr. Harding?, June 8, 1784.