A summary of the law relative to the election of members of parliament
By Henry John SHEPHERD
Upon a va cancy.,
the parliament. " That during the sitting of this Court " there do not at any time any writ go out for the choosing
or returning of any knight, citizen, burgess, or baron, " without the warrant of this House first directed for the
same to the clerk of the crown, according to the ancient " jurisdiction and authority of this House in that behalf " accustomed and used." (a)
The warrant is an order from the speaker to the clerk of the crown, directing a new writ to be made and issued, on notification of a vacancy by motion of a member.
Afterwards, in the reign of Charles II., when Lord Shaftesbury, the chancellor, issued writs to supply several vacancies which had occurred during a long prorogation, the House superseded the writs, declaring the right of issuing writs to supply vacancies during the continuance of parliament to be in themselves only.(b)
In the spirit of this resolution the 24th G. 3, c. 26, was passed, which provides, with certain restrictions specified in s. 4, for the issuing of writs during a recess to fill any vacancy caused either by death or promotion to the
peerage.
(9) The same statute provides also, s. 5, a means for executing this function upon the contingency of the speaker's death or absence, or his seat becoming vacant.
Delivery of the Writ.
The statute 7 8 W. 3, c. 25, s. 1, directed that the writs should be delivered to the proper officer to whom the execution belonged, and to no other person ; but not how the writs were to be delivered ; and various frauds were practised by interested persons who obtained them to deliver them to the officer, and delayed doing so till it suited their convenience that the Election should commence. Any means however might have been selected of sending them to the returning officer, except transmission by a candidate. But all difficulties are now removed by the statute 53 G. 3, c. 89, which requires the writs to be conveyed by the post, and prescribes certain regulations for their delivery at the post-office, and transmission to the proper officers, to whom they are directed.
The writs to the Sheriffs of London and Middlesex are to be delivered at their offices by the messenger of the great
Dewes,
18th March, 1580-1. 307-8.
(6) 2 Hats. 233.
( 24 G. 3, c. 26.
the writ.
rift.
seal. (9) So to any other sheriff or officer to whom writs Delivery of are to be delivered, whose office is in London, Westminster, or Southwark, or within five miles thereof. (6) Of the Duty of the Returning Officers for Counties after the
Receipt of the Writ, and before the Election. As soon as the sheriff receives the writ he should indorse Duty of shethereon the day of receiving it, (C) and give a receipt in writing to the person appointed to deliver it, specifying the day and hour of the delivery; and immediately make out the precepts; and within three days after cause them to be delivered to the proper returning officers of the boroughs and towns within his jurisdiction, without fee. (C) The officer of the Cinque Ports is allowed six days for delivering the precept after the receipt of the writ. (d)
The statutes which prescribe the delivery of the precept to the proper officer do not require it to be directed; nevertheless it ought to be directed, and the practice is to do so.(') But if directed by mistake to other persons as well as the returning officer, its validity will not be affected, and this misdirection may be obliterated after the return to the sheriff.) But when in the crown office no parol evidence can be received to impeach it.
It seems that a second precept may be sent to the returning officer of the borough, if there is any mistake in the first. If the sheriff deliver the precept to other than the proper officer, he is liable to be punished by the House. (8)
By 7 8 W. c. 25, s. 3, and 18 G. 2, c. 18, s. 10, the Election for knights of the sbire was to be holden at the county court, and provision was made for its adjournment within a limited period for that purpose. But now a special court is to be holden for such Election, and proclamation of holding it is to be made within two days after the receipt of the writ at the place where the Election is to be holden, (h) that is, at the most usual place of Election for the last forty years.(i) It must not be holden on Sunday, nor more than 16 nor less than 10 days from the day of proclamation.(i)
( 53 G. 3, c. 89, s. 1.
(6) Ibid. 69. 6) Ibid. s. 3.
(h) 25 G. 3, c. 84, s. 4. 78 W. 3, c. 25, s. 1. 53 G. 3, (6 7 8 W. 3, c. 25, s. 3. See the e. 89. 23 Hen. 6, c. 14.
case of the county of Pembroke, (2)10 11 W.3, c. 7, s. 2.
where an Election under special cirDixon v. Fisher. 4 Burr. 2267. cumstances, not at the usual place, vide Bletchingley, 2 Hey. 47, 126. was holden good. 1 Hey, 347. (v) Mineband 2 Hey. 65. 6.
Duty of sherift.
The proclamation must be made between 8 o'clock in the morning and 4 in the evening, from the 25th of October to the 25th of March, and between 8 o'clock and 6 the rest of the year.
(a) Ifa contest be expected, the returning officer should be prepared to erect convenient booths for taking the poll, as he is bound to provide them, if required by any of the candidates three days before the Election ; the expense of which is to be paid by the candidates. (6) The number of booths should correspond with the number of lathes, &c. in the county, not however in any case exceeding fifteen ; and in each booth the name of the lathe or division to which it is appropriated should be affixed ; a poll clerk is to be appointed for each booth, and lists of the towns, &c. within each division to which a particular booth is appropriated, made out, and copies taken to be delivered to the candidates upon request. (6)
He should also be provided with fit places for administering to the electors certain oaths which they may be required to take during the Election, as he is bound to provide such places on request made three days before the Election by a candidate, who must defray the expense. (C)
There are certain expenses necessarily attending Elections, whether for counties, cities which are counties of themselves, or boroughs. Of these expenses the candidate is liable to such only as the statute law casts upon him, or he takes upon himself by his express or implied consent. (d) And if he is elected without his presence, or any interference by himself or agents, though he afterwards take his seat, his consent to those expenses will not be therefore implied. (e)
Of the Duties of Returning Officers for Cities, and Towns which are Counties of themselves, after the Receipt of the Writ and before the Election.
In a city or town which is a county of itself, where the Election is holden by virtue of a writ directed immediately to the returning officer, he should, upon the receipt of the writ, after indorsing the day on which he receives it, and Duty of giving a memorandum of the receipt to the post master who othicers for
33 G. 3, c. 64. (6) 18 G. 2, c. 18, 5, 7.
34 G. 3, c. 73, s, 6.
(d) Morris v. Burdett. 1 Camp. 218, © Ibid. 2 Maule Selw. 212.
cities, &c. delivers it,(a) cause public notice to be given of the time and place of Election, which must be holden within eight days, and after three days from the receipt of the writ.(6)
The poll clerks should be sworn,") and a cheque book allowed for every poll book for each candidate, to be kept by their several inspectors at the place where the poll is taken. From this it is implied, that inspectors, as well as cheque books, should be allowed, though there is no express direction to that effect.
Regulations for the preparation of booths, or other places, where the electors oaths may be administered, are provided by several statutes, as at elections for cities, &c. which are not counties. See title--", Duties of the return. "ing officer during the election," and 34 G. 3, c. 73. 42 G, 3, c. 62, and 43 G. 3, c. 74.
Of the Duties of the Returning Officers for Boroughs and
Towns, after the Delivery of the Precept, and before the
Election.
The returning officer, as soon as the precept is delivered Duty of
returning to him, upon the back of the same precept shall indorse officers for, the day of the receipt thereof, in the presence of the party
boroughs, &c. from whom he received it, and forthwith cause public notice to be given of the time and place of Election, and proceed to Election thereupon, within the space of eight days, and give four days notice, at least, of the day appointed for the Election.(d)
The notice must be given in the most usual place or places, (between eight and four, from the 25th of March to the 25th of October, and between eight and six the rest of the year.(')
It seems the notice may be given on a Sunday. A petition was presented on the ground of notice having been improperly given on Sunday, and upon another objection untrue, in point of fact. The petition was not persevered
°) 78 W.3, c. 25. s. 1. 53 G. 3, c. 89.
(0) 19 G. 2, c. 28, s. 7.
(c) 25 G. 3, c. 84, s. 7.:
(d) 7 8 W. 3, c. 25, s. 1,
(C) 33 G. 3, c. 64.
Duty of returning officers.
in, the petitioners being advised, as the reporter beliered, that the objection to such a notice was unfounded.(a) Many ministerial acts of this kind may be done on Sun. day. Notices are given in church; arrests were lawful on Sunday before 29 Charles 2nd c. 7, and an appointment of overseers on that day has been holden legal.(6) Of the four days required for notice, one must be reckoned exclusive,(C) and the consent of the candidates will not cure an insufficient notice in that respect, but such defective notice will avoid the Election.(d) Nor can the returning officer extend the time for holding the Election beyond the eight days mentioned in the statute.(e)
In consequence of great corruption being disclosed in New Shoreham, Cricklade, and Aylesbury, three statutes were passed to extend the right of voting for those places by which the notices are respectively regulated.SS)
The returning officer must also provide places, and appoint commissioners for the administering the electors oaths, if required by any of the candidates, three days before the Election. And provisions for the erection of poll booths, &c. similar to those which relate to county Elections, were provided in respect to Westminster, by 51 G. 3, c. 126, and 53 G. 3, c. 152.* If the precept has been delivered to an improper person, the legal returning officer may, nevertheless, proceed to the Election, and his return will be considered as the legal one, (h)
Of the Duties of the Returning Officer during the Election.
On the day appointed for the Election, and at a seasonDuties of returning able hour,(i) which for counties is between eight and eleven, officer during the Election. the returning officer opens the proceedings, after proclama
tion for silence is made, by reading the writ of summons, if the Election be for a county, or city, or town which is a county of itself, or the precept, if it be for a borough, &c. where the Election is made by virtue of a precept. He
(a) Bridport, 3 Lud. 30, The petition not being tried in the first session was pot renewed.
(6) Clerkenwell, 1 Nolan, 55, n. sed quære.
(C) Chichester, 17 Journ. 137.2 Hey. 158.
(d) Seaford, 3 Lud. 3. 2 Hey. 159.
(C) Sed vid. 2 ley. 160.
(1) 11 G. 3, c. 55, s. 5. 22 G. 3, c. 31. s. 5. 44 G. 3, c. 60, s. 4.
(6) 34 G. 3, c. 73, s. 6,
* These acts have expired.
(h) Bewdley, Minehead, Wells, ? Heyw. 130.
(1) 23 Hen. 6, c. 14.