New writs upon ele vation to the peer age. House of Commons for Preston, in the room of the Hon. E. G. Stanley, appointed Chief Secretary for Ireland. On the 25th November, a supersedeas thereto was directed to be issued, it being stated that Mr. Stanley had not accepted' the said office' with the legal technicalities necessary; and that therefore the House, in directing the issue of the writ, acted upon misinformation as to the fact of the vacancy.' This course was declared to be quite in accordance with former precedents.' Eight days afterwards the writ was again ordered, without remark." In 1835, upon the formation of the Melbourne Administration, new writs were ordered in the House of Commons on behalf of several members who had accepted office therein; but in the case of Lord Morpeth, the intended Secretary for Ireland, the writ was ordered upon his having accepted the Chiltern Hundreds ;' which was explained by 'the circumstance of sufficient time not having yet elapsed for making out his appointment as Chief Secretary for Ireland.' But he appeared at the hustings, and was re-elected in the latter capacity." The proper time for the issue of a new writ to supply a vacancy in the House of Commons may be further illustrated by reference to vacancies occasioned by elevation to the peerage. When a member of the House is created a peer of the realm, it is usual to issue the writ on his kissing hands after the warrant under the sign manual has issued, although this is but a preliminary step to the making out of the patent; but the writ is sometimes delayed until the patent has been made out, or the recepi endorsed." But where a peerage devolves by inheritance upon a member of the House of Commons, it is customary to await the issue of the writ of summons calling the heir to the other House; when the motion for a new writ of election should be in place of now summoned up to the House of Lords.' It is not because the issuing or withholding the writ of summons at all affects the rights of succession, that this practice is observed, for • Mirror of Parl. 1830, sess. 2, p. p. 139. 350. P Ibid. p. 365. a Ibid. 1835, p. 845. S Campbell, Lives of the Chancellors, vol. iv. 125. p. But see May, Parl. Prac. ed. 1868, p. 587. г Smith, Parl. of England, vol. ii. the legitimate heir is entitled to demand his writ of summons ex debito justitiâ, if it has been wilfully or inadvertently withheld; but because it affords the readiest proof to the House of Commons that one of their number has become a peer, and is no longer entitled to a seat in their chamber. The fact of the issue of a writ of summons is not indeed the only conclusive evidence in such cases, for should any unreasonable delay occur, or other cause require it, the House might institute an enquiry into the birth, parentage, and legitimacy of the claimant, he being a member of the Commons. The exceptions to the general practice,—to await the time when the mover of a new writ, upon a member inheriting a peerage, is able to assert that the summons to the Lords has been issued,-have been very rare, and have served to confirm the propriety of the rule. Thus, in 1811, a new writ was ordered for Gloucestershire, in place of Colonel Berkeley, commonly called 'Lord Dursley,' the reputed son and heir of the Earl of Berkeley, upon the announcement of his father's death. But Colonel Berkeley's right to the title was disputed, and finally disallowed by the House of Lords; so that the colonel, having been previously deprived of his seat in the Commons by the premature and wrongful issue of a new writ, was for the time altogether excluded from Parliament, though, had it not been for objections raised on other grounds, he would probably have been reinstated in his former seat. But he afterwards sat in the Commons for another constituency." In 1840, in the case of Lord Stormont, M.P. for Perthshire, who on the demise of his father succeeded to the English earldom of Mansfield and the Scotch viscounty of Stormont, the House of Commons, upon being informed of the death of the late lord, although it was admitted that no writ of summons to his eldest son, as Lord Mansfield, had issued, ordered the issue of a new writ of election. This was because, while only the representative peers of Scotland are summoned to the House of Lords, by the Scotch law, immediately upon the death of a peer his eldest son becomes a peer of Scotland, and no proceedings are required to give him all the rights thereunto 283. See Hans. Deb. vol. lxxiv. pp. 109, " Parl. Deb. vol. xviii. p. 807; vol. xx. p. 782. Lord Colchester's Diary, vol. ii. pp. 306, 340. Smith's Par liaments, vol. i. p. 113. And see Mr. Speaker's observations upon the Beeralston Writ, Mirror of Parl. 1830. sess. 2, p. 672; and on the Nottingham County Writ, ibid. 1835, p. 279. Chiltern appertaining: and, by the Act of Union, Scotch peers are made in eligible to sit in the House of Commons. But the motion for th new writ gave rise to much debate, and was agreed to by only small majority. Any statement of the law and practice concerning the Hundreds. vacation of the seat of a member of the House of Com mons upon accepting an office of profit from the crown would be incomplete without some account of the Chil tern Hundreds. It being contrary to the ancient law o Parliament for a chosen representative of the people to refuse to accept, or to resign the trust conferred upor him," a member wishing to retire accepts an office by which his seat is legally vacated. For this purpose it is customary to confer upon any member who may apply for the same, the office of steward or bailiff of Her Ma jesty's three Chiltern Hundreds, of Stoke, Desborough and Bonenham; or, of the Manors of East Hendred Northstead, or Hempholme; or, of Escheator of Munster.' These stewardships are merely nominal offices; but they are technically sufficient for the purpose in view; and, as soon as that purpose is accomplished, they are resigned.' The appointment to the Chiltern Hundreds is vested in the Chancellor of the Exchequer; but he acts formally and ministerially in conferring it upon any applicant, unless there appears to be sufficient grounds to justify a refusal. For example, it would never be granted to a person in a state of mental incapacity, or where proceedings are pending whereby the applicant might be lawfully deprived of his seat, or expelled from the House." not to be piry of ing re Where a vacancy occurs in the House of Commons,— New writs whether by death, elevation to the peerage, or acceptance issued of office, prior to, or shortly after, the first meeting of until exa new Parliament;-or, within fourteen days after the time for return of a newly-elected member,-a writ will not be questionissued upon any such member so vacating his seat, until turns. the expiration of the time limited for receiving election petitions; which, by sessional order, is fourteen days from the commencement of the session, or from the bringing in of a new return. Furthermore, upon any such vacancy occurring, as a general rule, no new writ can issue, if a petition has been presented against the election or return, until the petition has been finally adjudicated upon by an election committee. And for the obvious reason that it might appear, as a result of such an investigation, that there had been no vacancy, for that, in fact, another person was the rightful owner of the seat. But in 1852, the latter part of this general rule was disregarded, and a contrary practice established, on behalf of members accepting office. In this year there was a general election, and, shortly after the meeting of Parliament, it became necessary to form a new administration. The wholesome and hitherto invariably respected rule-to delay the issue of writs upon any vacancy until the rights of the election (if called in question) had been determined-would undoubtedly have occasioned some public inconvenience at this juncture. Amongst the members who had accepted office in the new ministry, there were several whose returns had been petitioned against. Whereupon the Speaker was appealed to, and he decided, that in the case of an election petition complaining of an undue return, or of the return of a member p. 1102. And see the Bodmin case Election Compromises), ibid. vol. elv. pp. 960, 1039, 1293. See also the Pontefract Election case, ibid. pp. 1296, 1254, 1276, 1406, 1409. At the termination of this enquiry the sitting member (W. Overend) accepted the See Clerk, Law of Elections, And if there be a no writ to seat be claimed. petition, issue, if Unsuc cessful attempts to in consequence of bribery, but not claiming the seat for another person, it was competent for the House to issue a new writ. But that in the case of a petition complaining of the undue return of a member, and claiming the seat for another person, it was not competent for the House to issue a new writ, pending [the decision upon] the petition; inasmuch as the House in that case could not know which of the two [candidates] had been duly elected.' As it happened that in every instance but one, where petitions had been presented against the return of the newly-appointed ministers, the seat was not claimed, new writs were immediately issued." But in the Athlone case, where the seat of the sitting member (Mr. Keogh) was claimed for another person, no new writ was ordered, upon his being appointed Solicitor-General for Ireland, until the petition against his return had been tried and determined. The new practice-authorising the issue of new writs upon members accepting office, directly after the expiration of the time allowed for petitioning against the return, unless the seat was claimed-was followed, under similar circumstances, in 1859. But it gave rise, in one case (that of Lord Bury), to much dispute. The decision of the Speaker in 1852 was questioned before the Election Committee, and the opinion expressed that the House ought to reconsider the matter. It must be admitted that the weight of legal authority is against the construction of the law adopted by the House of Commons, however much may be said in favour of the speedy issue of the writ on the score of convenience. In 1867, an attempt was made to get rid of the distinction drawn by the Speaker, in respect to petitions Hans. Deb. vol. cxxiii. p. 1742. с Clerk, Law of Elec. p. 218 n. May, Parl. Prac. ed. 1863, p. 582; Smith, Parl. Remembrancer, 1859, pp. 103, 105. e Hans. Deb. vol. clvii. p. 1149. See Clerk, Law of Elections, pp. 212-224. |