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tizens to ferve in parliament, having finished his poll on the 17th of May, the day before the return of the writ, be forthwith ordered to made his return."
Mr. Pelham confidered himfelf obliged, though unaccustomed to speak, on fuch important occafions, to mention fome of those reasons which induced him to give his entire affent to the motion now made. On a decifion, in which the several interefts of the country, and the very existence of the conftitution were involved, he would not content himself with giving a filent vote. From the earliest stage of this business he regarded it in an unconftitutional light, and every fubfequent proceeding went only to confirm his opinion; when the highest fpirit of party reigned, and in the moft violent rage of faction in this country, there was never found, antecedent to this, any inftance of an officer bold enough to omit that return which the terms of his writ demanded. It was an invariable rule, and a rule founded on duty, for fheriffs to make return of fuch members, as at the clofe of the poll poffeffed the greatest number of fuffrages. For the majority on their books alone was the criterion by which they were to judge of the members who fhould be returned. And any paltry diftinction between a fheriff and a high-bailiff, in this refpect, he should treat with contempt, being equally returning officers, and their duties the fame. Were this fcrutinizing fyftem to be drawn into precedent, a confequence much to be apprehended, and therefore carefully guarded against, it would be in the power of a minifter to decide how many members fhould appear in parliament; and by applying himfelf, for inftance, to the confcience and fcrupulofity of the theriff of the county of Cornwall, the prefence of fifty members may be delayed for whatever time he pleafed. If there was a man whofe abilities he dreaded, or whofe zeal and attachment to the true principles of the conftitution, and unremitting oppofition to the undue extenfion of prerogative, fhould make him an object of refentment, it was
obvious to fee how foon the means of perfecution prefented themfelves, and to what extremities of injuftice he was fure to be pursued. After a fpeech of confiderable length, delivered with much modefty, he concluded by apologizing to the Houfe, for taking up fo much of their attention; faying, he was totally incapable of doing justice to his own feelings, and lefs to the fubject on which he spoke, but felt fo ftrong a conviction of the folly of this measure, that he could not fuppress the remarks which then fuggested themfelves.
Lord Mulgrave, in a very long and elaborate fpeech, defended the conduct of the Houfe in ordering the highbailiff to proceed on the fcrutiny, and endeavoured to controvert the reasoning of the gentlemen who preceded him. When appearances he faid were unfavourable to that party at the beginning of the election, which complains now fo bitterly of a fcrutiny, they feemed to have placed all their hopes in that fingle measure; but when on the other hand, the advantage was on their fide, every effort of ingenuity was exerted to procraftinate the poll till the expiration of the writ, on a fuppofition that a fcrutiny could not, under thefe circumftances, be granted. On that fuppofition the business had been brought into this House on a former feffion, and is now renewed in this, under the fpecious and plaufible argument that there was an abfolute neceflity, in order to fulfil the purport of the writ, that the House fhould confift of 553 members. If that be the meaning and the indispensible requifite to form a parliament, it was fuch as was never yet complied with. When a confcientious returning officer finds that by manoeuvring during the poll, fuch a return could not be made, as in juftice he thought should be made; there was certainly no falvo, no magic in the number of forty days, that the bare expiration of them should do away every doubt and every opinion he before entertained. If procraftination and delay was the complaint urged, there was at prefent no remedy for it. It was not the bufi
nefs of the House of Commons to direct what choice fhould be made of a reprefentative for any place; which muft be fo if the high-bailiff was ordered to make his return immediately, as he should return the perfons foremoft on the poll, though, at the fame time, he was uncertain as to the perfon in whofe favour it ought to be made. The choice fhould always remain with the people. In this he had differed with the right honourable gentleman oppofite him (Mr. Fox) on the fubject of the Middlefex election, and on this he still differed from him. The honourable gentleman then, with all his affiduity, and all that warmth which he yet retains, contended that the Houfe fhould nominate, whereas he as uniformly infifted that it should continue in the people. Among a variety of remarks, which with great afperity he directed to Mr. Fox, he adverted to Mr. Grenville's bill, which met with all the oppofition his abilities and ingenuity could give it, who now feemed as fenfible of its merits as he was before anxious to difcover defects. But much to the honour of the noble lord who then was at the head of affairs in this country, though he poffeffed power enough to prevent any meafure going into effect, ufed, on this occafion, no other than his perfonal oppofition, which circumftance alone was the cause of its being carried. He then adverted to the arguments drawn from common law, and contended that they did not apply in this cafe. For, in the times alluded to, when the parliaments were annual, and the feffions fhort, the honour of being a reprefentative was confidered more as a burthen than an object of competition. And fo far from confidering themselves aggrieved in the delay of reprefentation, many places had, at that time, refigned their right of fending members to parliament in order to avoid the expence. Gentlemen must be hard run, when they return to fuch diftant times for the affiftance of argument; when they refort to old stubborn revolution principles, and reject the more refined ones of modern times. He then contended, that even trying the
merits of this election by a committee under Mr. Grenville's bill, would not accelerate its decifion, as it must unavoidably lie over till the next feffions, and even then have a late hearing. Befides the number of witnesses to be examined would prolong it confiderably, as the committee would have to determine on the legality of these votes, which have already been difpofed of by the forutiny. Were the party petitioning feriously difpofed to bring the affair to a speedy issue, the means were eafy; for often it was declared by the friends of Sir Cecil Wray, that their principal objections lay in the two parishes of Saint John and Saint Margaret. The language of an ingenuous and candid man would be, Begin, try thefe places, and if after getting through them the majority is still againft you, you fhall give it up. If this had been the cafe, the contest 'ere this would have been decided. But in going on with thofe parishes in which a very few objections were made, the bufinefs was of courfe delayed. His lordfhip concluded by moving an amendment, that all the words be left out from the word that, and in their room he moved in fubftance, that the high-bailiff be directed to proceed in the fcrutiny, and adopt whatever plan may feem to him beft calculated to fhorten the procefs of it without reference to the confent of either party.
Mr. F. Montague faid, that whatever opinions gentlemen may seem to entertain infide the walls of this House, there was but one opinion out of it, and that was the most complete condemnation of fo infignificant and abfurd a measure. A learned gentleman, Sir Lloyd Kenyon, had, on the laft night, declared that the high-hailiff had authority to fummon witneffes to attend; but as far as he understood, fo far was the high-bailiff from being able to enforce this attendance, that he believed the learned gentlemen in a court where he prefided, experienced a want of this authority.-While party was fo much attended to, we can feldom expect to hear the language of, truth, or to know, on public occafions, the real fentiments of gentlemen in
the learned profeffion, for he was convinced that talking with any of thofe gentlemen privately, they would not hold fuch abfurd tenets as a juftification to the fcrutiny. Of this, there was no doubt; for confult all the lawyers who are not members of the Houfe, and when in Weftminster-hall they will unite in fentiments ef condemnation.
Sir Lloyd Kenyon could not conceive how any public man could think of ufing fuch language to those whom it by no means applied to. For his part, when he found himfelf accufed of giving opinions in that Houfe different from thofe he really profeffed, he was at a lofs to account for the grounds which could justify fuch a charge, except it was gleaned from private converfation, as this was an opinion founded on the immorality and bafenefs of his private character. But as none of thefe, he trufted, were the cafe, he would beg the attention of the Houfe while he ftated the reafons which induced him to maintain thefe opinions. He fet out with fhewing, that in the court of the high-bailiff, as well as every other, any perfon prevaricating is liable to punishments; that enforcing the attendance of witneffes by arreft was not admitted, except in courts of more ample judicature, but that the non-attendance of witneffes had not yet been affigned as a caufe of the delay of the fcrutiny: that the intention of the legislature was not in iffuing writs, that members fhould meet to their full number, nor that the returning officer fhould actually make his return previous to the expiration of the forty days; for if the theriff fhould die on the laft day of the poll, the under-fheriff muft proceed to take the poll over a fecond time, and the return of the writ must be of course interrupted. He would not allow that the bufinefs would be expedited, by referring it to a committee under Mr. Grenville's bill; befides, that it was against all practice, to proceed to a court of appeal before a decifion took place in the inferior court, from which the appeal must be made. In confidering the queftion,
the House should bear in mind, that their business was not then to make a new law, but to explain thofe already made. Legem dicere, non legem dare. He then concluded, by recapitulating his arguments on the ftate of the law, as it now ftands, and gave his affent to the amendment,
Mr. M. A. Taylor faid he did not rife to oppofe the arguments of the learned gentleman, but wished to exprefs his fentiments on this occafion. He wished to speak before the learned gentleman arofe, not meaning to contend with him on points of law, in which he was but a chicken; but on this occafion he was led by reafon alone, of which no greater proof could be given, than that he now fhould vote with gentlemen, with whom he was not accustomed on any former occafion to vote, and with whom he probably never may vote again. When he confidered the wretched progrefs the fcrutiny had made, and the little probability there was of its proceeding with more expedition; when he confidered the infignificance of the court, in which the bufinefs was transacted, and its incompetency to accomplish the object to which it was directed, he did not hesitate to give his hearty affent to the original motion.
Mr. Lee, in a most able and judicious fpeech, attacked all the pofitions in favour of the fcrutiny, as a legal meafure. He expofed in terms of the highest ridicule, the condefcenfion of the Houfe in accommodating the highbailiff's confcience, but he did not fee in what all that delicacy of confcience confifted, when he furrendered the entire afe and government of it to his affeffor. It was proved at the bar, that he had been abfent for feveral days together, in which time he knew nothing of the tranfactions in the veftry, and in his opinion things would go on much better, if they did not trouble the old gentleman with any part of the bufinefs, and if the lawyers were not fuffered to speak fo often: as an honourable gentleman remarks, that little inconvenience was felt from the non-attendance of witneffes, he would go farther, and fay, it were much bet
ter if there were no witneffes at all. He was fo little curious on this bufinefs, that he did not know in which of the parishes the fcrutiny was now conducted but he must confefs it appeared ftrange to him, that when the voters on Mr. Fox's fide were reprefented as men in the moon, Spital-fields weavers, &c. it fhould come out in evidence at the bar, that where he took exceptions to the votes of his adverfary, thirty and forty at a time, he was able to fubftantiate them all, except about five or fix, and at the fame time gain a majority over thofe who demanded the fcrutiny. He then went into the legal part of the argument, and challenged any gentleman to tell him of an inftance when difobedience in a sheriff or other officer in making due return of his writ, was not punished, unless he fhewed fome reafonable caufe. He afterwards dwelt on the incompetency of the court of the high-bailiff, drawing all his argument from the depofitions which were made at the bar; during which the House had feveral laughs at his frequently, by way of miftake, mention ing the old bailiff. After a minute and accurate difcuffion of the queftion, Mr. Lee concluded with giving his approbation to the original motion.
Mr. Bearcroft said there was no gentleman for whom, as an elector of Westminster, he would fooner give his vote, were he difpofed to vote at all, than to the right honourable gentleman oppofite him (Mr. Fox) if he were led by motives of perfonal refpect. His abilities were fo fupremely eminent, his conceptions fo ready, and at the fame time fo clear, that he never knew a man whom he could put in competition with him. His manly, open, and fpirited difpofition made him fit for the greateft enterprifes, but unhappily thefe abilities may be perverted, and in the apprehenfion of that, he is the man of whom he would be particularly cautious. He made fome remarks on the procrastination made ufe of on the poll, in order to prevent any time being left for the bufinefs of a fcrutiny. That among half a dozen bad votes, whofe examination took up
much of the time, there would be a good one occafionally thrown in; and in that manner was the delay continued. He remarked on the expreffions of Mr. Montague, with regard to the private opinion of lawyers on this occafion, and especially those who walked in Westminster-hall, who were not, in his opinion, the gentlemen that were the most remarkable for their profeffional abilities. Indeed the principal ingenuity in this bufinefs was exerted by thofe entirely out of the profeffion; and more ingenuity was yet to be expected; for they were only introductory of the great fpeakers→→ "like the poor player that struts awhile upon the ftage, and then is feen no more."
Lord North faid, he did not know but he himself was one of the unfortunate beings, who having fretted and ftrutted his hour on the ftage, ought to retire, and make way for others. However, with the learned gentleman's favour, he would venture to take fome fhare in the debate, and speak to the queftion before the Houfe, or rather to the queftions, for there were two of them, one moved by his right honourable friend, the other by the noble lord; for though his lordship feemed only to confider the latter as an amendment of the former, yet he could not be fo far misled by the word
THAT,' " which was all that the noble lord would leave of the original motion, as to debate it merely as an amendment. With refpect to the first queftion, the noble lord had very prudently paffed it over in filence, as if it contained nothing that called for an argument; or as if it was fo felf-evidently abfurd as that the House would reject it of courfe, without calling for any reafon that should induce it to give a preference to the amendment. He wished the noble lord had faid fomething to prove that the high-bailiff, having taken, and finally closed the poll on the 17th of May, was not bound to make a return; in proving this, the noble lord would fhew caufe why the Houfe fhould reject the mo tion of his right honourable friend. The noble lord was the declared friend
of Mr. Grenville's bill; and he had taken pains to imprefs it deeply on the memory of the Houfe, that he (Lord North) and his right honourable friend (Mr. Fox) had oppofed it, to the utmost of their power, in its progrefs through the Houfe: the noble lord extolled the judicature of the committees under that bill to the fkies; he looked upon it to be the beft public judicature that human wisdom could devife for the trial of contefted elections. And yet the noble lord was now endeavouring to keep from the jurifdiction of one of thofe committees, a cafe that no where could be tried fo well. And to what tribunal did he want to fend it? to one in every respect incompetent to bring it to a legal, juft, or equitable decifion-to a tribunal, the prefiding judge of which could not compel the attendance of witneffes, could not adminifter an oath to them if they attended voluntarily; could not imprifon them if they behaved difrefpectfully to him, and could not punish them if they prevaricated. The noble lord indeed had obviated thefe difficulties, by faying, that whenever the high-bailiff fhould fee caufe for it, he might apply to that Houfe for affiftance, and no doubt, upon fhewing proper grounds for its interpofition, would receive it: this was very true, and this might anfwer fome end during the fitting of parliament; but he would be glad to be informed what the high-bailiff was to do during a recefs. The noble lord, by keeping the right honcurable gentleman from a committee of the Houfe of Commons, and fending him to a tribunal, from which he could not expect a decifion founded in law or equity, placed the right honourable gentleman and his friends in a very aukward fi tuation; for his lordship argued this way; "the Houfe had given up its jurifdiction in deciding upon the merits of contefted elections; and has delegated to a committee; therefore, in the House you cannot have your caufe tried; a committee you fhall not have, because you were originally enemies to Mr. Grenville's bill; but you fhall go to a tribunal which cannot do you
juftice." Surely from this mode of reafoning, one might conclude that the noble lord was the enemy, and not the friend of Mr. Grenville's bill, or he would, according to the spirit and principle of it, fend it to the court best conftituted, and moft competent to decide in fuch cafes. But the noble lord, in proving himself the enemy to this bill, did not ftop there; he went a great deal further; for he put a case, in which Mr. Grenville's bill would not answer the end for which it was framed; for he supposed that the committee might fit fo long, that the feffion would be at an end before the feat in difpute could be adjudged to any The noble lord had attempted, in one inftance, to prove that the King's writ was not fo abfolute, but there might be cafes in which it might be difobeyed, at least in which it could not be obeyed: he fuppofed the sheriff fhould die on the day on which the writ was returnable; or a little time before; and he exclaimed, "What would then become of this mighty charm of the King's writ?" For his part, he believed that many would not listen to the voice of the charmer, charmed he ever fo fweetly; but the act of God was not to be adduced as a proof that the King's writ, when commanding a poffibility, might be difobeyed. The law, however, had forefeen that a fheriff might die, before he had concluded his poll; for it had provided that in fuch a cafe the subfheriff fhould continue the poll, and not begin it over again; fo that it was clear the law did not require that the returning officer fhould have any other evidence than that of the poll, in forming his opinion, what return he fhould make; for were it otherwise, the fub-sheriff not being bound by the votes taken by his deceafed principal, would begin the whole de novo; but this was not the cafe; he was by law to begin where the sheriff left off; and according to the ftate of the poll, partly taken by another, partly by himself, make out his return. His lordship ufed a variety of folid arguments in fupport of the original motion, which we have not room to mention.