Sir Thomas Freemantle
rose to bring forward a Motion, of which he had given notice, affecting the seat of the hon. member for Cambridge. In entering on this task, which he felt to be somewhat of an invidious and personal nature, he could assure the hon. Member, that he did it with great regret; but having moved for the papers, the contents of which seemed to make out a strong case, he should feel that he was justly subjecting himself to blame if he shrunk from the duty which the perusal of those papers seemed to impose upon him. He should do that duty fairly, and without exaggeration; and if in the course of what he was about to say he should state anything that was offensive to the feelings of the hon. Member, he begged the hon. Member to believe, that he did not intend it to be so. For that hon. Member he felt the greatest respect; and though their political feelings differed, nay, were wide as the poles asunder, he should be sorry to see him lose his seat, or even be put to the expense of a new election. He should now state what was the law upon this subject. The House were aware, that two Sessions ago, the whole system of the practice of bankruptcy had been altered, 598 and new officers of every kind appointed. A variety of different officers constituted the several branches of the Court The Bill thus prepared, came down to that House from the House of Lords, and the House of Commons being always watchful of their proper privileges, and anxious to provide against any increase in the influence of the Crown, introduced a clause which, in his opinion, vacated the seat of the hon. Member. That clause was to this effect:—"That no Judge, Commissioner, Registrar, or Deputy Registrar, Secretary of Bankrupts, or official Assignee, or other officer to be appointed by virtue of this Act, shall, during their respective continuance in such offices, be capable of being elected, or of sitting as a Member of the House of Commons". That this clause had been introduced solely with the view he had mentioned Gentlemen would readily conceive, when he told them that it was introduced by the present Lord Chief Justice of the Court of King's Bench, who at that time had a seat in that House. Now let them look at another clause, and see what the appointment was which the hon. Member had accepted. In the 14th clause (1 and 2 William 4th, c. 56), it was enacted, "that the Judges who go the several circuits of England and Wales, may be directed by the Lord Chancellor to return to him the name of such number as he shall think fit, to require, of Barristers, Solicitors, and Attorneys, practising in the counties to the said circuits belonging, &c. to act as Commissioners of Bankrupt, according to the districts or places for which such person shall be so returned." Then came the material proviso,—"Provided always, that it shall be lawful for the Lord Chancellor at any time to remove any person from the lists to be so returned for such cause as to him shall seem fit." He contended that the hon. Member was "an officer" under the terms of this Act, and, therefore, incapable of sitting and voting in the House of Commons. He had moved for returns of the Commissioners appointed for the Cambridge district, and from those returns he found, that the Lord Chancellor had directed his Secretary to write the following letter to the hon. Member. It was of the date of March, 1833:—SIR.—I am directed by the Lord Chancellor to inform you, that you have been returned to him by the Judges as a fit person to be named as a Quorum Commissioner in Fiats in Bankruptcy, for a district comprising Cambridge and twenty miles around it. It is his Lord- 599 ship's wish that you should be informed, that if this recommendation be adopted, it will be expected of you that you shall not act as Counsel under any Commission or Fiat in Bankruptcy in that district, and that your attention shall be given, although not exclusively, yet principally, to the duties of this appointment, so that there may be no unnecessary adjournments or delays in consequence of other engagements of the Commissioners. You will be good enough to inform me whether you are willing to accept the appointment with this understanding, and in that case a list will be formed, containing your name, to be acted upon with as little delay as possible,I am, Sir, your most obedient Servant,WM. VIZARD.To this letter the following answer was returned by Mr. Pryme:Cambridge, March 27, 1833.SIR, I am honoured with your letter, informing me that the Judges of the Norfolk Summer Circuit, have recommended me to the Lord Chancellor as a Quorum Commissioner of Bankrupt at Cambridge, and twenty miles round. I am willing to accept the appointment if his Lordship should honour me with it. The usual number of Commissions or Fiats is so small, that they cannot form the pincipal occupation of a member of the legal profession; but I engage that no other professional business shall interfere to occasion any unnecessary delay in holding the meetings under a Fiat of Bankruptcy. I also engage not to act as Counsel under any Commission or Fiat within the district.I am. Sir, your obedient Servant,GEO. PRYME.To Wm. Vizard, Esq.Absence from Cambridge prevented me from answering the letter immediately.He held in his hand a letter from an attorney practising in that county, in which he made an application to the Bankruptcy-Office, requesting, that in a Commission in which he was interested, the name of the hon. Member might not be inserted. The answer which was received, was, that he must have Mr. Pryme, and that the request could on no account be complied with. Need he offer further or more satisfactory proof that the hon. Member had bona fide accepted the office? The attorney communicated to the hon. and learned Member the day on which the first meeting was expected to take place, and what was the answer returned? That he could not possibly attend, having urgent occasion to be elsewhere at that particular time. He never once repudiated the office, or declared that he had never accepted it; all that he said was, that just at that time he could not attend to the Motion in question. It was 600 clear, then, that he had virtually and sincerely accepted the office. He also held in his hand the affidavit of a person named Adcook, filed in the Court of Review, in which he stated that Messrs. Pryme and Hunt were working a Commission of Bankrupt at St. Ives, and could not then attend for the purposes of the other Commission referred to in the affidavit; but never once had the hon. Member repudiated his connexion with the office in question, and in possession of which he remained from the mouth of April until the 6th of July. From the return of Mr. Vizard, it appeared that he declared, upon certain occasions, that he "would not act." If these words had any meaning, it was that the hon. Member might have acted if he thought proper, but that he willed not to act—that he was fully qualified and entitled to act, but that he did not choose to do so. It might be alleged that inasmuch as the hon. Member had not performed any duties, he had not done that which vacated his seat as a Member of that House. Now, so far from that being the state of the law as applicable to the subject, he was prepared to show, that it was not the performance of duties, but the mere acceptance of office which had the effect of vacating the seat of a Member. The principle of the law was, that all Members who had placed themselves under the influence of the Crown, should be sent back to their constituents; and he need not argue that that influence was as complete on the acceptance of office as at any other period. But there were other grounds upon which it must be considered that the hon. Member had done wrong in attempting to retain his seat after the acceptance of office. It was most justly looked upon as one of those situations which were incompatible with a seat in Parliament. It could not but be in their recollections, that an Act had been introduced for the purpose of preventing a Master in Chancery from sitting in the House of Commons, it being held that a Master in Chancery could not be in Dublin, and attending his duties in Parliament at the same time. The hon. Baronet referred to the 61st page of the second volume of Hatsell, for the purpose of showing that the mere acceptance of office, constituted an act which vacated the seat in that House. During the Administration of Sir Robert Walpole, a case occurred, in which it was held, certainly, that though a man had kissed hands upon an appointment, it did not amount to a vacation of the seat, because he bad done so under the impres- 601 sion that the place he accepted was in Scotland, whereas he expected to have had an appointment in England. The rule, however, was clear, that the mere acceptance of office caused a vacation of the seat, when the acceptance was bona fide. Here was a case of a Member three months in office, before he offered his resignation. He hoped the time would never arrive, when the Members of that House would feel themselves at liberty to hold office and their seats at the same time, merely on the ground that they had withdrawn before the blot was hit. He concluded by moving for a new Writ for the University of Cambridge, in the room of George Pryme, Esq.; who, since his election, had been appointed to the office of a Commissioner, under the new Bankrupt Act.
said, that as this was a matter involving his seat in that House, he might be excused if he felt anxious to make a brief statement of how the matter stood, and he assured them that he should render it as brief as possible. The hon. and learned Member referred, in the first place, to the 1st and 2nd of William 4th, for the purpose of showing that none but the officers of the Bankrupt Court in London could be considered as holding situations under the Crown. The Commissioners of Bankrupt were officers appointed at as early a period as the reign of James 1st; but the circumstances of their appointment had since been frequently modified—even as recently as the 6th of George 4th a material change had been made. He would contend, and he expected with the utmost confidence, that he should succeed in making it clear to the House, that his case did not come under the description of one who had taken office under the Crown. He had not been appointed a Commissioner, but had been directed by a fiat to act under the Commissioners. The Commissioners were, certainly, appointed under the Great Seal, but it was under a fiat that persons acted in the country. By law it was required, that no person practising as a Barrister should be appointed a Commissioner, whereas, it was required, that persons acting under fiats, should at the time be practising barristers or attorneys in the county to which the fiat was directed. For these reasons, as well as for many others, he contended, that the word Commissioner, according to the Act, applied only to the London Commissioners, who were really Commissioners appointed under the Great Seal, and that it did not apply to those 602 persons acting in the country, and under no Commission. Besides, there was another argument that he might use, if further argument were necessary—namely, that the London Commissioners received a fixed yearly salary, whilst those acting in the country received no salary, but simply a fee paid out of the bankrupt's estate. From the small number of fiats issued, a situation such as that he was charged with holding would not be worth any man's acceptance, if he were to be obliged to give up all his time to it. Supposing it accepted by any Member of that House, it could not affect his attendance to his duties there and he believed, that he could not be accused of neglecting those duties, since he questioned whether there was any hon. Member who, since the commencement of the Session, had been in attendance a greater number of hours than he. The first communication he had with the Lord Chancellor was on the 28th of July, The statement in the letter read by the hon. Baronet, was not correct. He never saw Mr. Adcock on the subject, and any statement asserting that he had, must likewise be incorrect. In a week after the first communication, he wrote to the Lord Chancellor, to the effect, that understanding his name had been inserted in the list of Commissioners of Bankrupty for Cambridge, he expressed his doubts whether a question might not be raised as to such an appointment; but in doing so, he also stated, that it was his own impression, that the Act only referred to London Commissioners. At the same time he begged to decline the office, and con eluded by offering his thanks to the Lord Chancellor for his kind intentions towards him. He now hoped, that he had satisfied the House, that the office was not one that came under the provisions of the Act. And besides, what ought to set the matter completely at rest, he never acted under any Commission—never was called upon—and never received any fee whatsoever. It was quite clear, that nothing in the Act could affect the writing of the first letter, and he was sure, that whatever might be the political opinions of any party, however, they might be opposed to his—if he knew that party had been incautious in writing any letter that might be construed against him, still if the party did not act under the appointment, he repeated he was quite sure that he would never bring forward such a Motion as that now before the House.
The Attorney General
, after alluding to the importance of the Motion, which was 603 not to expel a Member from his seat in that House, but which declared the seat vacant, since it was for the issuing of a new writ—said, that the hon. Baronet had not told the House on what point he considered the seat of his hon. and learned friend vacant; nor did he tell them exactly what species of office his hon. and learned friend had been appointed to. It was very doubtful if the Act looked on country Commissioners in the same light as it did on the London Commissioners. For his own part, he thought he could make out that they were not Commissioners under the Act. He could show that the oath in the 7th clause of the Act, which was to be taken by the London Commissioners, and by the Judges, was different from that which was to be taken by those who were to act as Commissioners in the country. Now, those whom the Act excluded from a seat in that House, were the persons who took the oath defined in the 7th clause. Even supposing his hon. and learned friend had accepted the appointment, he was not, therefore, a Commissioner under the Act. But his hon. and learned friend had not accepted the appointment—was never summoned—never took the oath—and never acted as a Commissioner. There was not the slightest pretence for saying that his hon. and learned friend had forfeited his seat in Parliament.
§ Mr. Herries
thought, that after what had fallen from the hon. and learned Gentleman who had just spoken, the proper course would be for the hon. Baronet not to press his Motion, but that a Committee should be appointed to inquire, particularly as it was for the first time the question was mooted, whether those acting as Commissioners in the country were like London Commissioners, and as such, came under the meaning of the Act. At any rate it was clear, that country Commissioners were appointed by the Act, as was proved by the return made to that House by the proper officer of the Commissioners appointed under it. At the head of the names in that Return stood that of George Pryme, Esq. The hon. and learned Gentleman had, undoubtedly, virtually accepted of the office, and he had declined to act merely because he was going to pursue other avocations at St. Ives. He would beg to ask, whether it were possible to say, that a gentleman having been written to, to ask if he would take a certain office if appointed, and having answered that he would, and being afterwards appointed to the office, and thereby put in a situation to act under the appointment, 604 had not virtually accepted of the office? He could not doubt for a moment, that the hon. and learned Gentleman did accept the office, and that he afterwards resigned it, because he considered it incompatible with his seat in that House. He admitted, that the clause in the Act 1st and 2nd William 4th, declared that a person holding the office of Commissioner could not sit in that House whilst he held the office. These words limited the dereliction in some measure, and he doubted, as the hon. and learned Member was neither a Commissioner at the time of his election nor at the present time, if those words applied to him. As to his having been appointed to the office, he had not the slightest doubt; and if the words of the Act should be construed so, that the very circumstance of his having accepted the office vacated his seat, then he (Mr. Herries) had no doubt of his having incurred that penalty.
§ The Solicitor General
said, that if he had the slightest doubt upon the question, he would at once agree to an inquiry either by a Select Committee, as had been suggested by the hon. Member or in any other way. But there appeared to him to be no reason for the inquiry. He contended that the hon. and learned Member had never been in this office, and if he had been in office, he would not have vacated his seat. The question did not come under the Act by which the seat of any Member accepting of office under the Crown became vacated, but as to the construction of the Act 1st and 2nd William 4th. which applied exclusively to this subject, the first question was, whether or not the hon. and learned Member was a Commissioner of Bankrupts, or officer of the Bankruptcy Court.? He was decidedly of opinion that he was no commissioner. There were two sets of commissioners. The one set (which consisted of six members) held their offices under the Crown, and had a fixed salary of 1,500l. a year, which clearly disqualified them from sitting in that House, and to them the provisions of the Act were clearly intended to apply. The other set were not apppointed by the Crown, and had no fixed salaries. They were merely appointed on the recommendation of the Judges, and placed on a list made out by the Lord Chancellor. These were not employed, perhaps, above once or twice in the course of a year. The first set of commissioners were not allowed to practise as barristers; and is was to them that the clause of the Act which prohibited 605 sitting in Parliament applied. The others were neither prevented from practising as barristers, nor from sitting in the House. It was clear, that the hon. Member was not an officer, for if he was so, he must be the officer of some Court. Now the officers were the clerics, &c, of the Court of Review, who were under the directions of the Judges, and could be dismissed by them, and to that class he certainly did not belong. But in order to disqualify a Member, he must have been in office; and he contended that the hon. and learned member for Cambridge had never been in office. The Lord Chancellor had made out the list without giving notice to the hon. Member, but as soon as he heard of the appointment, he repudiated it. If the hon. and learned Member had even resigned the office, there might be a shadow of an argument; but the fact was, that he refused to accept it.
§ Mr. Harvey
had looked into the Act, and he did not think that there was any ground for the Motion of the hon. Baronet. He thought, however, that there was nothing clearer than that the hon. and learned Gentleman had accepted the office; and he would deal with the question as if the hon. Gentleman were actually in office at that moment. The hon. and learned Member according to his view of the case, had not been appointed to the office under the Act of the 1st and 2nd William 4th. He merely continued to hold an office which he had held before that Act was in existence—namely, that of Commissioner of Bankrupt in the country, and the only object of the Act was, to regulate the mode of appointment. When he entered the House, he thought there could be no case clearer than that of the hon. and learned Member; but he admitted, that the learned Gentleman who hàd spoken in his behalf had contrived to raise some doubts in his mind. Notwithstanding that, however, he still contended, that in this case the hon. and learned Member had not incurred the penalty of vacating his seat.
§ Mr. Hardy
was of opinion, that the 8th section of the Act applied only to those who accepted office for the first time. He could not doubt that the hon. and learned Gentleman was a commissioner from the moment that a fiat was issued with his name included in it, as every fiat was a Commission of Bankrupt under the Great Seal. But he was also clear, that the circumstance of his having held the office did not disqualify the hon. Member from 606 keeping his seat. The hon. and learned Member was not now a commissioner; and he (Mr. Hardy) would ask if the House could decide that they were to deprive Cambridge of their Member, after he had restored himself to the capacity of holding a seat in the House? He was decidedly of opinion, that since the hon. and learned Member had resigned his seat before the writ was moved for, he was entitled to retain his seat.
Sir Thomas Freemantle
observed, that all those who had spoken on the opposite side of the question were lawyers; and with every respect for their opinions outside of the House, he had no great respect for them inside its walls. They were too much accustomed to the strict and legal mode of considering statutes, and considered too little the privileges of that House. He thought that to them might be applied the observation of Mr. Speaker Onslow to a lawyer, a Member of that House, that the Gentlemen of the Common-Law did not sufficiently consider the dignity and privileges of that House, but were too much bound by strictly technical rules; and that if a common-lawyer should be elected to the Chair of that House, the authority and dignity of the House would be materially lessened. He assured their right hon. Speaker, that no allusion was intended to be made to him, for though he had been a common-lawyer, yet he had not been long acquainted with the practice of the Courts.
§ The Motion negatived.