CHAPTER V. OF THE APPOINTMENT OF, AND MODE OF PROCEDURE AT, THE MEETING FOR ELECTING THE REPRESENTATIVE OF A COUNTY. WHEN a new Parliament has been summoned by royal proclamation, the Lord Chancellor immediately after sends his warrant to the Clerk of the Crown, to issue writs to the Sheriffs of the several counties, for the election of representatives of these counties. When there is no Chancellor, the Lord Keeper, or Commissioners, of the Great Seal for the time, grant the warrant. When a vacancy takes place during the sitting of Parliament, the warrant is given by the Speaker of the House of Commons, by order of the House. During a recess for more than twenty days, whether by prorogation or adjournment, the Speaker is authorized, by 10th Geo. III. c. 41, to grant warrants to issue writs for supplying vacancies which happen by death during such recess, provided the deaths be certified to him by a writing under the hands of two members of the House, and notice of such certificate be inserted in the London Gazette fourteen days before the warrant be issued; and provided the return of the writ, by virtue of which the deceased member was elected, has been brought into the office of the Clerk of the Crown fifteen days at least before the end of the session of Parliament, immediately preceding the death of such member. When the vacancy, however, takes place, in consequence of a member accepting an office during a recess, no new election can be made till the next meeting of 1 For the form of the writ, see Appendix, No. 9. Parliament, when the Speaker grants warrant to the Clerk of the Crown to issue a new writ1. Sheriffs have the privilege of appointing the day of election; but, by the act 1681, c. 21, it is provided, that the diet must be at least twelve days before the meeting of Parliament. With respect to the filling up a vacancy occurring during the sitting of Parliament, it is generally understood that the election in such a case must be within forty days from the date of the writ, although there is no enactment on the subject 2. The act 1681 also directs, that the sheriff shall make publication of the diet of election at the head burgh of the shire upon a market-day, and at each parish-church on Sunday immediately thereafter. If there was no divine service at the church on that day, the execution of the officer ought to bear that fact, and that a copy of the precept for intimation issued by the sheriff was affixed to the church-door. By the act 33d Geo. III. c. 64, it is provided, that all notices to be given of the time and place of any election, shall be publicly given at the usual places, within the hours of 'eight of the clock in the forenoon, and four of the clock in 'the afternoon, from the 25th day of October to the 25th of March inclusive, and within the hours of eight of the 'clock in the forenoon, and six of the clock in the afternoon, 'from the 25th day of March to the 25th day of October inclusive, and not otherwise.' By the act 35th Geo. III. c. 65, it is provided, that the sheriff depute, or substitute, shall, within six free days after receiving the writ, direct the notices required by law to be given as to the time and place of election; and that the day of election shall not be sooner than six days, nor later than 1 Wight, p. 303. 2 Wight, p. 304. 3 For the forms of the sheriff's precept for intimation, and of the execution of that precept, see Appendix, Nos. 10. & 11. fifteen, after the day of publication at the church-doors; all under the penalty of L. 500 sterling for every contravention of these provisions. The same act declares, that if the principal or high sheriff, or steward, or any person other than the sheriff, or steward depute, or substitute, shall presume in any respect 'to interfere, or take upon himself the execution of writs of ' election,' he shall forfeit L. 1000 sterling for every offence; and, on conviction in any suit, shall be incapable of ever bearing any office of trust under the King. By the same act it is provided, that, with respect to Orkney and Zetland, publication at the town of Kirkwall, and at the twelve parish churches in the Island of Pomona, or the mainland of Orkney, shall be sufficient. At the meeting of freeholders, held between mid-day and two afternoon of the day appointed for election, the sheriff produces and reads the writ, and produces executions of the different notices. Should these executions be informal, Spottiswood and Wight are of opinion that a new precept must be issued by the sheriff1; but, since their time, the act 35th Geo. III. has required that the notices shall be issued by the sheriff within six days of receiving the writ; and the question therefore arises, Whether, after having complied with this regulation, if it has turned out that the executions are defective, a new precept, ordering fresh notices, can be issued after the lapse of the six days? The acts 1681, and 12th Anne, c. 6, do not prescribe any time within which, after receiving the writ, the sheriff must appoint the notices to be made; and the writs merely order, generally, that immediatè, post debitam notitiam prius inde dandam,' he shall cause a member to be elected. The ob ject of the act 35th Geo. III. seems merely to have been to take away this latitude, and to order the sheriff to direct the 1 Spottiswood, p. 19, first edition; Wight, p. 305. notices to be given within a limited time; and if the sheriff observes this rule, he thus far complies with the act; and it does not seem to have been the intention of the legislature to prescribe, that, in case the evidence of the after steps of publication should be informal, no new order for notice could be issued, if six free days are still allowed to elapse between the publication and the day of election. But it must be confessed, that the letter of the statute is against any new order for intimation, and, if the question were to arise, it would be attended with some difficulty 1. Should it so happen, that six days have not elapsed between the publication of the new precept and the day of election, it seems quite clear that the election must be held as void. The act 2d Geo. II. c. 24, relating to bribery, must next be read, in obedience to the directions of that act. The 38th section of 16th Geo. II. dispensing with the preceding act, in so far as it prescribes an oath to be taken by the sheriff, or other returning officer, is also read. The sheriff-clerk then produces the book in which the roll of freeholders and the minutes of their proceedings are inserted, together with copies of the oaths of allegiance, abjuration and assurance, and of the trust-oath. The commissioner last elected, if present, now takes the chair, and qualifies, by taking the oath of allegiance, and signing the assurance, and by taking the oath of abjuration, if required. The commissioner last elected, or, in his absence, the sheriff-clerk, administers the oaths of allegiance and assurance to the freeholders; and likewise the oath of abjuration, if required; and then calls the roll for the election of preses and clerk. The rule, as to the casting vote, in case of equality of voices in electing these officers, is the same with that which 'The Wigton case, Douglas Election Cases, ii. p. 181, and Wight, p. 375, in some degree illustrates this question. has been already explained with respect to Michaelmas meetings1. Before the act 37th Geo. III. c. 138, it was not competent to put the oath of possession to any freeholder before the election of preses and clerk, either at an election or at a Michaelmas meeting. By that act, however, the law is altered with respect to an election meeting; for it is provided, 'That if any person, at an election for a member to serve in Parliament for any county, shall offer to vote in the election of 'preses and clerk, it shall and may be lawful for any free' holder to put the oath of trust and possession to him before 'giving his vote, in the same manner as is now practised, af'ter the preses and clerk are chosen.' By the act 16th Geo. II. c. 11, sect. 13, it is declared, that, at every election-meeting, if the commissioner last elected, or, in his absence, the sheriff-clerk, shall, in the choice of preses or clerk, receive the vote of any one who does not stand on the roll, he shall for every offence forfeit L. 300 sterling to every candidate for the office of preses or clerk respectively, for whom such person shall not have given his vote. A like penalty is incurred for not calling or refusing the vote of any person on the roll, to be recovered by that person, or his executors. These penalties are to be recovered by summary process before the Court of Session 2. In a case where the commissioner last elected refused to receive the vote of a person who tendered it, being convinced, from a variety of circumstances, that the name on the roll was not applicable to the individual who claimed the vote, but to his father, who had borne the same name, the Court of Session refused to impose the statutory penalty. In another instance, where the valuation of a person on the roll had been 1 See p. 22. 2 Sect. 43. 5 Sir James Stewart's election, 1744; Wight, p. 310, |