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That fcrutinies, upon a fair cafe of doubt, are justified by the law and cuftom of Parliament, it is impoffible to deny and it is an unfinished election, after scrutinies have been granted, up to the moment of clofing them.

Let me, then, afk in general, if this Houfe can ever inter. rupt an unfinished election? If it can, one or other of these confequences muft happen-either the House will, itself, elect, by continuing, or by recommencing and closing the interrupted act, in which cafe it ceafes 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 prepofterous? And who will believe that fuch is, or can be, the comtitution of Parliament ?

That fcrutinies are bad expedients, I admit; all fcrutinies, whether fitting the Parliament, or upon a general election. They are dangerous inftruments of power on the one hand, or faction upon the other; and I fhall, with pleafure, give my fupport, as far as it goes, to any honourable member who will form a bill to abolish them, or make them innocent and ofeful.

But I cannot fupprefs my aftonifhment, that where the topic ab inconvenienti is preffed into the fervice, that another inconvenience is overlooked.-Imagine the petitioner's doctrine to be carried, and what an alarming power is given to the King or the Minifter He wants to be rid of a popular candidate. This precedent will give him a receipt for it: let him firft 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, or is not far off. Serutinies will then be of no avail; and the fervile courtier, who has not half the legal votes of his adverfary, will deter him, by the expence of a petition, from an attempt upon the feat.

But what are the admiffions of the argument? Have gentlemen weighed them as they deserve to be weighed It is admit

ted,

ted, that fitting a Parliament, scrutinies to an indefinite period, are, if a cafe be made for them, parts of an election, which the Houfe have no power to interrupt; yet there, every argument preffed in this debate against the danger of fcrutinies upon a general election, has equal force. It may there be faid, "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, fuch a grofé fallacy was never attempted, as to argue that fcrutinies interfere with it, and elude the policy of it. Scrutinies, in point of right, are just as they ftood before that bill; and I may, with founder argument, give them an obvious preference over the control of the Houfe at large. That bill improved the judgement, but left the fubject of it the fame. The Committees inherit the rights of the House, to use a good expreffion of a noble Lord who spoke early in the debate, (Lord Mulgrave;) not all the rights neither, for they have no power of decifion beyond the feat; but they have no wider jurifdiction. When I hear fuch illfounded penegyrics upon this bill, I fufpect false friends to it, and fnakes 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, if they are not built upon a real and complete election, they are no retutis at all, but abfolutely void.

Analogies of law are called into the argument on both fides; but they are analogies rather from the difference than simili» tude. In courts of law, a return, if it executes the writ in form, binds the court and the parties, who have no remedy but an action; but in Parliament, a return is wafte paper, if it is not confirmed by a real, a dûe, and a complete election.

Upon this idea, who can be returned while the election procéeds?—If the poll is depending, the condidate who stands firft upon it has no better claim to a return than his competi→ tor, who has not three votes; if the poll is checked, by a doubt

upon

upon the right, in the form of fcrutiny, and that scrutiny is depending, fhall he who ftands first upon it be returned? Juft as impoffible.-Shall both be returned? It is ridiculous to ima gine it. Nor, except that ridiculous and fhameful 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 decifion upon contefted elections? A form as old as the right: "Refolved, That A. B. was elect ed, and ought to have been returned." Can it be faid that he was elected upon half the poll or fcrutiny? And ought he to have been returned if not elected?

But now for the writ, and its exigency-a terrible word !— t muft, indeed, work miracles, if it can do what is threatened: it must have the power to inake that a complete election between an old Parliament and a new one, which is no election while the Parliament happens to be fitting-It must have the power to make that a return, confiftent with an oath, which flies in the face of it. When I am told this exigency of the writ is to carry fuch points, I fufpect the miracle; watch it narrowly, and pick all the holes in it I can. I would catch at any little feather to fave the common sense of the subject from fuch a degree of odium and ridicule. But what is the harm. of the writ? 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 cer tify 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 impoffibilities may juftify him; and if the poll is delayed by force, or fraud, or external accident, the exigency of the writ may be difobeyed. What is it but an impoffibility, that a legal part of the depending election can reain incomplete without prejudice to the return of a complete election?

As

As to the acts of Parliament, they leave the return of the writ, as accompanied by the certificate of an election, juft where they found it; except that when fuch an election has been made, and the writ can be returned, fo accompanied, the Sheriff of the county, who is a minifterial officer, in conveying that certificate home to Parliament, is to make the return upon fuch a day. The act fuppofes an election previously determined.

But poor Westminster is to be taxed, though unreprefented.

Under the tropics is our language spoke,

And part of Flanders has receiv'd our yoke.

We have loft America, 100,000,000 of money, and 100,000 lives, in oppofition to the doctrine, that representation is infeparable from taxation; but we pick it up again, to make a noble ftand for it in the Weftminster election. This may be called the art of finking in politics.-But if the ridicule could be heightened, of saving Westminster from her share in the tax while fhe is in the act of electing her own reprefentatives, we forget every cafe of a double return, and we forget the fame injured city upon every new election fitting the Parliament.

As to the real ground of scrutiny, in the cafe before us, I fhall fay a very few words. It startled me at first, when the right honourable petitioner got up and faid, "As a party, I like this; but as a judge, I think it wrong;" it ftruck me, that, even with his powers of difcernment, he might fometimes forget that he was a judge, and recollect his other fituation too well. But when he examined the Deputy Bailiff I was com forted; 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 fpecies 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 queftions, to exculpate and juftify the High Bailiff. I ask of any

man

man of honour, who heard this deputy culprit in the hands of the right honourable gentlemen, if he has a doubt under the circumftances of this poll, that a revifion of it was neceffary, and effential to justice?

What, then, is to be done?-Return me, faid the right ho nourable petitioner. That prayer is abandoned by his friend, the venerable gentleman (Mr. Ellis) converfant in the rules of Parliament, who made this motion. He fays, "Let any return be made; I don't care which." If that fhould be done, you either muft compel a judicial officer to act as the minifter 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 iffue a new writ, or direct the Bailiff to proceed? I confefs, that I fhould have my doubts upon that fubject; and fhould rather be of opinion, that a new writ fhould iffue, if I went upon the common law of Parliament, applicable to the subject of an unfinished election: but I donfider the cafe of Trentham and Vandeput as a direct precedent in point, that a legal scrutiny must proceed. By the way, this laft mode is clearly more eligible for the peti tioner 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 faid by a negative to the motion, confined, as it is, to the demand of an immediate return.

Mr. Hardinge, June 8, 1784.

HUMOUR.

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