XXIII.

Chapter may he issue a warrant in respect of any seat that has been vacated by a member against whose election or return a petition was depending at the last prorogation or adjournment (see p. 632).

Offices under the Crown, see

p. 640.

Chiltern

Hundreds,

c., office excepted, see p. 643.

of office

recess.

And, subject to the same provision, by the 21 & 22 Vict. Acceptance C. 110, as amended by 26 & 27 Vict. c. 20, the Speaker is during the required, on the receipt of a certificate from two members, together with a copy of the Gazette containing the appointment, and a notification from the member himself, to issue his warrant for a new writ, during the recess, in the room of any member who, since the adjournment or prorogation, has accepted any office whereby he has, either by the express provision of any Act of Parliament, or by any previous determination of the House of Commons, vacated his seat.1 If, however, it should appear doubtful whether such office has the effect of vacating the seat, the Speaker may reserve the question for the decision of the house.

ruptcy.

By the Bankruptcy Act, 1883, s. 33, similar powers are Bankgiven to the Speaker, in the event of a seat having become vacant by the bankruptcy of a member, upon the issue of the certificate of the court, stating that the disqualification inflicted by the Act had not been removed (see p. 32).

By the Lunacy (Vacating of Seats) Act, 1886, if a mem- Lunacy. ber is placed in a lunatic asylum, the duty of sending a certificate of the fact to the Speaker, is laid upon every person on whose order or certificate the member was received, committed, or detained; or any two members may certify to the Speaker that they are credibly informed that the member has been placed in an asylum.

The Speaker, upon the receipt of such certificate, forthwith transmits it to the commissioners in lunacy, who, without delay, will examine the member to whom the certificate relates, and report to the Speaker whether he is of unsound mind. The Speaker, at the expiration of six months from the date of such report, requires the commissioners to re-examine the member in question, and on their report that he is still of unsound mind, the seat of the

1 See the form of the certificate in Appendix V.

Speaker's appointment of members.

To whom warrants directed.

writs.

XXIII.

member becomes vacant, and the Speaker lays that report Chapter
upon the table, and issues his warrant to the Clerk of the
Crown to make out a new writ for the election of a member
to supply the vacant seat. Apparently, under this pro-
vision, the issue of a writ could not arise during a recess.

At the beginning of each Parliament, the Speaker is re-
quired to appoint a certain number of members, not exceed-
ing seven, and not less than three, to execute his duties in
reference to the issue of writs, in case of his own death, the
vacation of his seat, or his absence from the realm.' This
appointment stands good for the entire Parliament, unless
the number should be reduced to less than three; in which
case the Speaker is required to make a new appointment,
in the same manner as before. This appointment is ordered
to be entered in the journals, and published in the London
Gazette; and the instrument is to be preserved by the
Clerk of the house, and a duplicate by the Clerk of the
Crown.

For any place in Great Britain, the Speaker's warrant is directed to the Clerk of the Crown in Chancery: and for any place in Ireland, to the Clerk of the Crown and Hanaper, in Ireland. On the receipt of the Speaker's warrant, the writ Delivery of is issued by the Clerk of the Crown, and transmitted through the post-office in pursuance of the provisions of the 53 Geo. III. c. 89. Neglect or delay in the delivery of the writ, or any other violation of the Act, is a misdemeanour; and in the event of any complaint being made, the house will also inquire into the circumstances.5 In 1840, two writs were issued for Perthshire, instead of one, and the Clerk of the Crown was examined in relation to the occurrence."

At the end of the session in 1894 two writs were issued on the same day for the borough of Leicester, a constituency returning two members, as the sitting members had accepted the Chiltern Hundreds and Manor of Northstead. The

XXIII.

Chapter returning officer held a single election to fill the vacancies. His action and the validity of the returns made by him were raised as a matter of privilege at the commencement of the next session, and a select committee was appointed to inquire into the matter. The committee reported that the course pursued by the returning officer was erroneous in point of procedure, and that the election was not duly held, but recommended that the house should take no action in the matter as the returning officer had acted in the exercise of an honest judgment for the convenience, and with the consent, of all the parties directly concerned in the election, and without any intention of influencing the result.1

return.

If any error should appear in the return to a writ, such as Error in a mistake in the name of the member returned,2 or in the date of the return,3 or in the division of the county for which the return is made, evidence is given of the nature of the error, either by a member of the house, or some other person who was present at the election, or is otherwise able to afford information; and the Clerk of the Crown is ordered to attend and amend the return. On the 18th August, 1854, the Mayor Return of Barnstaple annexed to the writ, which he returned to the amended. trials, &c., Clerk of the Crown, a certificate instead of an indenture; and on being made aware of his error, he forwarded, on the 25th

Return

amended, election

see p. 658.

August, an indenture dated on that day. As this date differed
from that of the return, the Clerk of the Crown felt unable
to annex the indenture to the writ, but made a special cer-
tificate to the house of the facts. This was considered, 13th
December, when, by the order of the house, the members

When no return is made.

Offices

under the Crown;

holders

re-election.

for Barnstaple were called to the table, and took the Chapter oath.1

XXIII

If no return be made to a writ in due course, the Clerk of Certificate the Crown is ordered to attend and explain the omission; see p. 169. of return, when, if it should appear that the returning officer, or any other person, has been concerned in the delay, he will be See also summoned to attend the house; and such other proceedings delayed, p. will be adopted as the house may think fit."

return

169, n. 5.

without

see p. 30.

By the 25th sec. of the Act 6 Anne, c. 41, if any member Offices "shall accept of any office of profit from the Crown, during salary, see old offices; such time as he shall continue a member, his election shall be P. 650. capable of and is hereby declared to be void, and a new writ shall issue Disqualifi for a new election, as if such person, so accepting, was holders of cation of naturally dead; provided, nevertheless, that such person new offices, shall be capable of being again elected." By virtue of this provision, whenever a member accepts an office of profit from the Crown, a new writ is ordered; and it is the usual practice to move the new writ when the member has kissed hands, instead of waiting for the completion of the formal appointment. On the 18th April, 1864, a writ being moved for Merthyr Tydvil, in the room of Mr. Bruce, who had accepted the office of vice-president of the committee of council for education, it was objected that not see also having been sworn a privy councillor, he was not qualified not vacated, to hold the office but it was conclusively shown by the P. 645. attorney-general that his seat had been vacated by the acceptance of office, and that the writ ought to be issued, as in the case of Mr. Lowe, who had accepted the same office, and of Mr. Hutt, who had accepted the office of

1 110 C. J. 4. 7, Sess. Paper, 185455 (2).

2 Waterford writ, 1806, 61 C. J. 169. 175; 6 H. D. 536. 562. 751; Great Grimsby, 1831, 86 C. J. 758. 762, &c.; 6 H. D. 3 s. 95. 159. 294. 460.

It is pointed out, in Rogers on Elections, part ii. 17th ed. (revised 1900), pp. 10. 44, that, although sec. 25 applies in terms to offices generally, old as well as new, its effect

must of necessity be limited to old
offices, as otherwise it would act as
a partial repeal of sec. 24, by enabling
holders of new offices within that
section to be re-elected, who are by
that section rendered incapable of
being elected, and of sitting in the
house; and the effect of the words
in the definition of the offices,
"from the Crown'
" and
"under
the Crown," is also explained.

when seats

Chapter vice-president of the board of trade, before they had been sworn of the privy council.1

XXIII.

den of the

ports.

In 1861, Viscount Palmerston, while first lord of the Lord wartreasury, accepted the honorary offices of Constable of Dover cinque Castle and Lord Warden of the Cinque Ports, from which the salary formerly payable by the Crown had been withdrawn. Lord North and Mr. Pitt had vacated their seats on accepting these offices, together with the salary attached to them: but doubts were now entertained whether they could any longer be regarded as offices of profit. It appeared, however, that the warrant granted "all manner of wrecks," and of "fees, rewards, commodities, emoluments, profits, perquisites, and other advantages whatsoever, to the said offices belonging," including the occupation of Walmer Castle; and, after full consideration, it was determined that a new writ should be issued.2

cations

membership.

Upon the union of Great Britain and Ireland, in 1801, by Disqualifi41 Geo. III. c. 52, s. 1, disqualifications before applicable from to the British Parliament are extended to members sitting in the United Parliament for places in Great Britain; by sec. 2, disqualifications applicable to the Irish Parliament were similarly extended to members sitting in the United Parliament for places in Ireland; and by sec. 9, it is declared that offices accepted immediately or directly from the Crown of the United Kingdom, or by the appointment and nomination, or by any other appointment subject to the approbation of the Lord-Lieutenant of Ireland, shall vacate seats in Parliament.3

governors

Another class of offices the acceptance of which vacates a Colonial seat is that of colonial governors or deputy-governors, who, and officers. by the Act of Anne, c. 41, s. 24, are incapable of being elected, or of sitting and voting; and cannot, therefore, be re-elected. In 1878, a new writ was moved for the county

1174 H. D. 3 s. 1196. 1287.

116 C. J. 126; 1891, Mr. W. H. Smith, 146 ib. 269; 353 H. D. 3 s. 340.

Rogers on Elections, part ii. 17th ed. (revised 1900), pp. 19 n.o,

and 47.

Sir A. Leith Hay, Governor of Bermuda, 1838; Sir J. R. Carnac, Lieutenant-governor of Bombay, and Mr. Poulett Thomson, Governorgeneral of Canada, 1839; Sir H.