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issued

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be ques

tioned.

Issue of

writs when election

XXIII

warrants

Mr. Speaker is ordered by the house to issue his Chapter warrant to the Clerk of the Crown for a new writ for the place represented by the member whose seat is thus Writs not vacated. But where a vacancy has occurred prior to, Issus of or immediately after, the first meeting of a new Parlia- by Mr. turns may ment, the writ will not be issued until after the time Speaker, see p. 636. limited for presenting election petitions.1 Nor will a writ be issued, if the seat which has been vacated be claimed on See Chiltern Hundreds, behalf of another candidate. In December, 1852, several &c., p. 643. members accepted office under the Crown, against whose return election petitions were pending. After much consideration, it was agreed that where a void election only was petitions alleged, a new writ should be issued; and again, in 1859, and in 1880, the same rule was adopted. But where the seat is claimed, it has been ruled that the writ should be withheld until after the trial of that claim, or until the petition has been withdrawn. In 1859, Viscount Bury accepted office under the Crown, while a petition against his return for Norwich, on the ground of bribery, was pending; and, as his seat was not claimed, a new writ was issued. Being again returned, another petition was presented against his second election, and claiming the seat for another candidate. The petition against the first election came on for trial, and the committee reported that the sitting members,

are pend

ing.

By the Election Petitions Act, 1868, sec. 6, the petition is to be presented within twenty-one days after the return has been made to the Clerk of the Crown in chancery. By sec. 49, in reckoning time for the purposes of this Act, Sunday, Christmas-day, and any day set apart for a public fast or thanksgiving, shall be excluded; and it has been held that Sundays are excluded from the computation of twenty-one days. Pease v. Norwood, 4 L. R., C. P. 235; Southampton case, 11th Jan. 1869. On the change of ministry, before the meeting of Paliament in Dec. 1868, writs were issued for several of the new ministers on the 15th; but for those

who had been returned for counties
at a somewhat later date, writs were
not issued until the 29th. And
again, in 1874, after another change
of ministry, writs were not issued
for Buckinghamshire, and some
other counties, for several days after
the issue of writs for the boroughs,
and for some counties where the
returns had been made early.

2 Southampton and Carlow writs,
29th Dec. 1852.

3 Sandwich and Norwich writs, 22nd June, 1859, 154 H. D. 3 s. 450, 454; Chester writ, 3rd May, 1880, 135 C. J. 125.

* Athlone Election, 1859.

Louth Election (Mr. Chichester
Fortescue), 1866.

XXIII.

Chapter Lord Bury and Mr. Schneider, had been guilty, by their agents, of bribery at that election. By virtue of that report, Lord Bury, under the Corrupt Practices Prevention Act, became incapable of sitting or voting in Parliament, or, in other words, ceased to be a member of the house : but as a petition against his second return, and claiming the seat, was then pending, a new writ was not issued.1 This position of affairs illustrated the propriety of issuing the writ, in the first case, on the acceptance of office by Lord Bury, as the rights of all parties were nevertheless secured. On the meeting of a new Parliament, in November, 1852, the seat of a deceased member was claimed: but the petition was withdrawn the day after the expiration of the time limited for receiving election petitions, and the writ was immediately issued. The claim of one seat for a constituency which returns two members does not interfere with the issue of a writ, on a vacancy occurring in the other seat.8

descent.

If a member becomes a peer by descent, a writ is usually Vacancy by moved soon after the death of his ancestor is known; 4 peerage. though, occasionally, some delay occurs in obtaining the writ Peer by of summons, which ought strictly to precede the issue of the writ,--that proceeding being founded upon the alleged fact that the member has been called up to the House of Peers.5 On the 15th February, 1809, the house being informed that no writ of summons had been issued to General Bertie,

2nd Aug. 1859, 155 H. D. 3

s. 865.
2 Durham Election (Mr. Grainger),
108 C. J. 161.

Lichfield writ (Sir G. Anson),
1841, 96 ib. 526. 566; First Durham
Election petition, 1852-53.

If a member on succeeding to a peerage delays to apply for a writ of summons the House of Commons will, if it thinks fit, inquire into his succession to the peerage and, on this being established, will order a new writ to be issued for the constituency of the member who has succeeded to the peerage. Case of

the Earl of Selborne, 13th May,
1895, 33 Parl. Deb. 4 s. 1058; 150
C. J. 199. 205. 223. Report of Select
Committees on House of Commons
(Vacating of Seats) and Earldom
of Selborne, Parl. Papers (Sess.
1895), No. 272, p. iii., and No. 302,
p. 3.

5 74 H. D. 3 s. 108 (Lord
Abinger); 19th April, 1844, Earl
Powis, 103 C. J. 162; Lord Panmure,
6th May, 1852, 107 ib. 193. See
also First Report of Select Com-
mittee on House of Commons
(Vacating of Seats), Parl. Paper,
No. 272 (sess. 1895), p. iii.

Peer by creation.

Precedence

of motion for new writ.

66

1

XXIII.

supersedeas

calling him to the House of Peers, as Earl of Lindsey, Chapter
though a writ had been issued for the borough of Stamford,
ordered a supersedeas of the writ. On the 10th January, See also
1811, a new writ was issued in the room of Lord Dursley, to writs,
now Earl of Berkeley," without stating, as usual, that he P. 635.
was called up to the House of Peers. His claim to the
Berkeley peerage, however, not being admitted by the Lords,
he afterwards sat as Colonel Berkeley, until created Lord
Seagrave in 1831.2 The same rule, however, does not extend
to a peer of Scotland, to whom no writ of summons is issued.
On the 21st February, 1840, a new writ was issued for Perth-
shire, in the room of Viscount Stormont, "now Earl of Mans-
field, and Viscount Stormont in the kingdom of Scotland,"
though it was allowed on all hands that no writ of summons
had then been issued to his lordship, in respect of his English
peerage. And again, in 1861, a new writ was issued for
Aberdeenshire, in the room of Lord Haddo, "now Earl of
Aberdeen in the peerage of Scotland," before he had received
his writ of summons in respect of his English peerage. If
a member be created a peer, his seat is not vacated until
the letters patent conferring the dignity have passed the
great seal. When it is advisable to issue the writ without
delay, in the case of a member created a peer, and it is
doubtful whether the seat be legally vacated, the member
accepts the Chiltern Hundreds before his patent is made
out (see p. 642).

3

A new writ is moved as a matter of privilege, without Motion

1 64 C. J. 49.

2 66 ib. 31; 18 H. D. 1 s. 807; Lord Colchester's Diary, ii. 306, 340. 395 C. J. 105; 52 H. D. 3 s. 435. When the lord chancellor is assured of a person's succession to a peerage by proofs of the late peer's burial and of the new peer's descent, &c., a writ of summons is issued. Evidence before Select Committee on House of Commons (Vacating of Seats), Parl. Paper No. 278 (sess. 1894), pp. 18, 19.

• 116 C. J. 4.

Sir H. Vivian, 13 Parl. Deb. 4

made without notice,

s. 332. 540. In the case of Lord see p. 245.
Eddisbury, the Gazette notice that
her Majesty had directed the grant
of Letters Patent, appeared 9th May;
the new writ on his call to the
Lords was moved 15th May, 1848,
103 C. J. 513.

As to the grant of the Chiltern
Hundreds to a member, who has
succeeded to a peerage, see Reports
of Select Committees on House of
Commons (Vacating of Seats), Parl.
Papers, No. 278 (sess. 1894) and
No. 272 (sess. 1895).

see p. 272.

2

Chapter notice; though, by a resolution, 5th April, 1848, "in all
XXIII. cases where the seat of any member has been declared void
on the grounds of bribery or treating, no motion for the issue
Privilege, of a new writ shall be made without previous notice being
given in the votes ;" and when such notice was dropped, it
was required to be renewed like other dropped notices. In
1853 and 1854, it was ordered that no such motion should
be made without seven days' previous notice in the votes: 3
but according to later usage, only two clear days' previous
notice has been required; and such notices are appointed
for consideration at the commencement of public business
(see p. 256).

5

deas to

writs.

If doubts should arise concerning the fact of the vacancy, Superse the order for a new writ should be deferred until the house may be in possession of more certain information; and if, after the issue of a writ, it should be discovered that the house had acted upon false intelligence, the Speaker will be ordered to issue a warrant for a supersedeas to the writ. Thus on the 29th April, 1765, a new writ was ordered for Devizes, in the room of Mr. Willey, deceased. On the 30th it was doubted whether he was dead, and the messenger of the great seal was ordered to forbear delivering the writ until further directions. Mr. Willey proved to be alive, and on the 6th May a supersedeas to the writ was ordered to be made out. And in several more recent cases, when the house has been misinformed, or a writ has been issued

1 For instances of new writs moved after the interruption of business, see 151 C. J. 133; 157 ib. 74; 160 ib. 300. A new writ has also been moved as a matter of privilege at the conclusion of government business, although an order was in force directing the Speaker to adjourn the house without question put at the conclusion of government business each day, 36 Parl. Deb. 4 s. 766-8; 150 C. J. 230. 389. amendment to a motion for a new writ postponing the date of its issue has been ruled out of order, 36 Parl. Deb. 4 s. 768.

An

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Vacancies during the

recess.

XXIII.

through inadvertence, the error has been corrected by order- Chapter
ing the Speaker to issue his warrant to the Clerk of the
Crown to make out a supersedeas to the writ.1 A new writ
having been issued on the 6th July, 1880, for Berwick-upon-
Tweed, in the room of Mr. Strutt, who had succeeded to the
Belper peerage, a supersedeas to that writ was ordered on
the 8th, as delays had arisen in completing the formalities
incident to his being called to the upper house.2

When vacancies occur by death, by elevation to the peerage, or by the acceptance of office, the law provides for the issue of writs during a recess, by prorogation or adjournment, without the immediate authority of the house, in order that a representative may be chosen without loss of time, by the place which is deprived of its member. Speaker By the 24 Geo. III. sess. 2, c. 26, as amended by 26 & 27 warrants. Vict. c. 20, on the receipt of a certificate, under the hands

issues

8

of two members, that any member has died, or that a writ
of summons under the great seal has been issued to summon
him to Parliament as a peer, either during the recess or
previously thereto, the Speaker is required to give notice
forthwith in the London Gazette (which is to be acknow-
ledged by the publisher); and after six days from the
insertion of such notice, to issue his warrant to the Clerk
of the Crown to make out a new writ.

But the Speaker may not issue his warrant during the
recess (1) unless the return of the late member has been
brought into the office of the Clerk of the Crown fifteen days
before the end of the last sitting of the house; nor (2)
unless the application is made so long before the next
meeting of the house, for despatch of business, as that the
writ may be issued before the day of meeting;5 nor (3)

164 C. J. 48; 81 ib. 223; 86 ib. 134. 182; 106 ib. 12 (Dungarvan writ).

2 253 H. D. 3 s. 1918.

See the form of the certificate in Appendix V. No writ of summons being directed to a Scotch or Irish peer, this Act does not extend to such cases; Marquess of Tweeddale, Jan. 1879.

In the calculation of the six days, the day on which the notice appeared in the Gazette, and any intervening Sunday, are reckoned; i.e. upon notice in a Tuesday's Gazette, the writ is issued on the following Monday.

5 That is to say, the six days' provision (see note 4) must have been complied with.

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