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Members returned for two places.

Double returns.

elections was transferred by statute to the courts of law Chapter (see p. 654).

3

2

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bers should

At the commencement of each session, the house agrees Sessional orders, Apto resolutions dealing with the case of members who are pendix I. returned for two or more places in any part of the United Kingdom. This order regulates the manner of choosing When memfor which place a member will sit when he has been withdraw, returned for more than one, and his withdrawal from the see p. 350. house, if debate arose upon the matter of his election. When the time limited for presenting petitions to the court against his return has expired, and no petition has been presented, he is required to make his election within a week, in order that his constituents may no longer be deprived of a representative. This election may either be made by the member in his place or by a letter addressed to the Speaker. When a petition has been presented against his return for one place only, he cannot elect to serve for either. He cannot abandon the seat petitioned against, which may be proved to belong of right to another, and thus render void an election which may turn out to have been good in favour of some other candidate; neither can he abandon the other seat; because if it should be proved that he is only entitled to sit for one, he has no election to make, and cannot give up a seat without having incurred some legal disqualification, such as the acceptance of office, or bankruptcy. Upon this principle, on the 24th May, 1842, Mr. O'Connell, who had been chosen for the counties of Cork and Meath, elected to sit for the former, directly after the report of the election committee, by which he was declared to have been duly elected for that county.5

When there is a double return, there are two certificates Notice of

1 103 C. J. 99. 100.

2 Mr. O'Connell, 24th May, 1842, 97 ib. 302; Mr. Gathorne Hardy, 21st Feb. 1866, 121 ib. 104; also 141 ib. 28; 142 ib. 4.

3 Mr. C. Villiers, 8th Dec. 1847; Mr. Callan, 19th March, 1874; Mr. Parnell, 11th May, 1880, 103 ib. 99;

intention
129 ib. 12; 135 ib. 128; also 141 ib. not to de-
9. 26. 318; 142 ib. 5; 147 ib. 413; fend, &c.,
150 ib. 341; 151 ib. 4.
see p. 656.

4 Case of Mr. O'Connell, 1841, 96
ib. 564; 59 H. D. 3 s. 503; Mr.
Sexton's case, 1886, 308 ib. 168.
$97 C. J. 302.

Chapter
XXIII.

Return amended, see p. 658.

Sessional

endorsed on the writ,1 and both the names are entered in the
return books. Both members may therefore claim to be
sworn, and to take their seats: 2 but after the election of the
Speaker, neither of them can vote until the right to the seat
has been determined; because both are, of course, precluded
from voting where one only ought to vote; and neither of
them has a better claim than the other. The practice of
making such returns, though apparently prohibited in
England by the 7 & 8 Will. III. c. 7, was sanctioned by
the law and usage of Parliament. In Scotland the making
of double returns was directed by the Scotch Reform Act,
1832 (s. 33). In Ireland, on the other hand, a double
return was expressly prohibited. By sec. 2 of the Ballot
Act, 1872, 35 & 36 Vict. c. 33, the law of the United
Kingdom regarding double returns is assimilated, which
provides that where there is an equality of votes between
any candidates, and the addition of a vote would entitle a
candidate to be declared elected, the returning officer, if a
registered elector, may give such additional vote, but shall
not, in any other case, be entitled to vote at an election
for which he is returning officer.6

ference of

The house, also, agrees to resolutions in condemnation Interorders, Ap of irregular practices to influence the freedom of election peers and regarding the votes of peers, and the interference of ministers.

pendix I.

The ancient form of an indenture was abolished by the Parliamentary and Municipal Elections Act, 1872, 1st sch. s. 44.

2

In

Report, Oaths of Members, 1848,
Q. 23-25. In 1852, three members
were returned for Knaresborough.
They were all sworn at the table, 8th
Nov., and directed by Mr. Speaker
to withdraw below the bar.
1859, there were double returns for
Knaresborough and Aylesbury, when
the members were sworn in the same
way. So also in May, 1878, when
there was a double return for South
Northumberland.

See Helston Election Petition
Report, 1866, 121 C. J. 436, 486.

4 35 Geo. III. c. 29, s. 13, and

4 Geo. IV. c. 55, s. 68, repealed by
the Ballot Act, 1872.

5 Rogers on Elections, part i.
p. 207 (16th ed.).

In the South Northumberland election, 1878, the sheriff declined to give his casting vote, and made a double return.

See debates in the Lords, 27th June, 1853, 128 H. D. 3 s. 791: 5th July, 1858, 151 ib. 926. 927. Opinion of attorney-general, 24th Nov. 1882, 275 ib. 121. In 1872, the legal question of the right of peers to vote, or to be entered upon the register of voters, was conclusively decided by the Court of Common Pleas. The Earl of Beauchamp and the Marquess of Salisbury, having had their

Election Petitions, &c., Act, 1868, and

peers and lord-lieutenants1 and bribery at parliamentary Chapter elections.

On the 10th December, 1779, the Commons resolved that it was "highly criminal in any minister or ministers, or other servants under the Crown of Great Britain, directly or indirectly to use the powers of office in the election of representatives to serve in Parliament, &c." 2

By the Election Petitions and Corrupt Practices at Elections Act, 1868, the Parliamentary Elections and later at Corrupt Practices Act, 1879, and the statute 44 & 45 Vict. c. 68, the trial of controverted elections is confided to two judges, selected, as regards England, from the King's Bench Division of the High Court of Justice; as regards Ireland, from the Court of Common Pleas at Dublin; and

names struck off the register by the
revising barrister, appealed to the
Court of Common Pleas. The court
unanimously decided that, in law,
as derived from authorities and from
the determination of election com-
mittees, as well as by resolutions of
the House of Commons, peers had
no right to vote: and the appeal
was accordingly dismissed with
costs, 15th Nov. 1872, 8 L. R. C. P.,
pp. 245-255.

1 In February, 1868, two bishops
(one not being a lord of Parliament)
were on the committee of one of the
candidates for the University of
Cambridge; but on notice being
taken of the circumstance, they
withdrew. (Question of Mr. Whit-
bread, and Sir W. Stirling Maxwell's
answer, 18th Feb.) Doubts were
raised whether the resolution em-
braced a bishop not being a lord of
Parliament: but it is clear that,
having been agreed to in its present
form in 1801 and 1802, it was in-
tended to apply to the Irish peers
and bishops not having seats in
Parliament, under the Act of
Union; and now extends to English
bishops not yet summoned to the
Lords, by later statutes, 56 C. J. 25;
57 ib. 376. See cases of Bishop of
Carlisle, 16 ib. 548; of Duke of Leeds,

68 ib. 844; 26 H. D. 796. 989, &c.
Debate, 14th Dec. 1847 (West
Gloucester election), and precedents
cited by the attorney-general in
regard to proceedings of the house
against peers who have interfered
in elections, 95 H. D. 3 s. 1071; and
Debate, 19th Feb. 1846, 83 ib. 1167;
Stamford borough case, 1848, 98 ib.
932. 976; Earl of Cadogan, 23rd
Feb. 1880, 250 ib. 1198; Lord
Rosebery, 19th March 1894, 22
Parl. Deb. 4 s. 588; Duke of Bed-
ford and Lord Carington, 14th Feb.
1899, 66 ib. 872; Lord Chancellor,
2nd May, 1899, 70 ib. 1125; Duke of
Devonshire, 5th June, 1899, 72 ib.
311; Lord Alington, 14th Feb. 1905,
141 ib. 71. For complaints made of
lord-lieutenants interfering in elec-
tions, see Duke of Chandos, Lord-
Lieutenant of Southampton, 37
C. J. 507. 513. 538. 557; Duke of
Bolton, a peer of Parliament, in the
same election, 37 ib. 530. Use of
peers' carriages at elections, 142 ib.
358; Report of Commons' Select
Committee, Parl. Paper, sess. 1887,
No. 50; of Lords' Committee, Parl.
Paper, sess. 1888, No. 204; 11th
and 20th July, 1887, 317 H. D. 3 s.
363. 1489.

237 C. J. 507.

XXIII

Chapter as regards Scotland, from the Court of Session.

XXIII.

Petitions Election

petitions presented be tried

judges.

election

complaining of undue elections and returns are
to these courts instead of to the House of Commons, as by two
formerly, within twenty-one days after the returns to which
they relate, and are tried by two judges of those courts,
within the county or borough concerned. The house has Trial of
no cognizance of these proceedings until their termination: petitions.
when the judges certify their determination, in writing, to
the Speaker, which is final to all intents and purposes.1
The judges are also to report whether any corrupt practices
have been committed with the knowledge and consent of
any candidate; the names of any persons proved guilty of
corrupt practices; and whether corrupt practices have
extensively prevailed at the election.2 They may also
make a special report as to other matters which, in their
judgment, ought to be submitted to the house. Provision
is also made for the trial of a special case, when required,
by the court itself, which is to certify its determination to
the Speaker. By sec. 5 of the Corrupt and Illegal Practices
Prevention Act, 1883, the election court is directed also
to report to the Speaker whether candidates at elections
have been guilty by their agents of corrupt practices.

The judges are also to report the withdrawal of an election
petition to the Speaker, with their opinion whether the
withdrawal was the result of any corrupt arrangement. All
such certificates and reports are communicated to the house
by the Speaker, and are treated like the reports of election
committees under the former system. They are entered in
the journals; and orders are made for carrying the deter-
minations of the judges into execution. A report that

On the 1st June, 1874, Mr. O'Donnell (lately member for Galway) appeared at the bar and claimed to make a statement before the certificate of the judge, by which he was unseated, was read: but the Speaker informed him that it appeared from the judge's certificate that he was disqualified from sitting, and that he therefore was not entitled to be heard, 129 C. J. 184.

ment,
see p. 199.

2 The Election Petitions Act, Shorthand 1868, s. 24, directs that notes of writer of Parlia evidence given at an election trial shall be taken by the shorthand writer of the House of Commons, whose transcript shall be sent to the Speaker with the judge's certificate. The shorthand writer does not report proceedings on the withdrawal of a petition.

Commissions.

Proceed

in

election.

XXIII

corrupt practices have extensively prevailed is equivalent Chapter
to the like report from an election committee, for all the
purposes of the 15 & 16 Vict. c. 57, for further inquiry into
such corrupt practices. Where there is a double return (see
p. 652), and notice is given by one of the parties that he
does not intend to defend his return, a report is made to the
Speaker, and the return is amended accordingly. This Act
also makes further provision for the punishment of corrupt
practices at elections.

In addition to these inquiries by election judges, if upon
a petition to the House of Commons, presented within
twenty-one days after the return, alleging the prevalence of
corrupt practices at an election, an address of both houses
for inquiry is presented, a commission is appointed under
the 15 & 16 Vict. c. 57.

A few words will suffice to explain the proceedings of the ings of the house, so far as its judicature is still exercised in matters of matters of election. It being enacted by sec. 50 of the Election Petitions, &c., Act, 1868, that "no election or return to Parliament shall be questioned except in accordance with the provisions of this Act," doubts were expressed whether this provision would not supersede the jurisdiction of the house, in determining questions affecting the seats of its own members, not arising out of controverted elections. It is plain, however, that this section applied to the questioning of returns by election petitions only. Under the procedure in force before the Election Petition Act, 1868, when returns were questioned, by petition, the matter was determined by the statutory tribunal; otherwise the house uniformly exercised its constitutional jurisdiction. And such continues to be the position of the house, after the judicature of its election committees had been transferred to the judges.

In the autumn of 1868, an election petition had been presented to the Court of Session in Scotland, complaining of the election of Sir Sydney Waterlow for the county of Dumfries, on the ground of his holding a government contract. In the ensuing session, however, the petition having been withdrawn, a select committee was appointed to" consider

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