Page images



There is an order of the House, 1789, “ That for the due “ execution of an Act passed in the 28th year of the reign “ of his late Majesty, intituled, An Act for the further “ regulation of the trials of controverted Elections, or “ returns of members to serve in Parliament, as far as the said Act respects “ the recognizances thereby required “ to be entered into, by any person having presented a “ petition to this House, complaining of an undue Elec

tion, or return, or of the omission of a return, or of the “insufficiency of a return, it is expedient, that the examiners of sureties, to be appointed by virtue of the said

Act, should attend (for the purpose of examining the “sufficiency of any surety or sureties, to be named in any “ such recognizance) in one of the committee rooms be“ longing to this House, at such time or times, within the “ time limited by the said Act as shall be appointed by “ such examiners, on application made by any such peti.

tioner, or bis agent, to the clerk or clerk assistant of this

House, and that such petitioner do give due notice of “ the time and place of such intended examination, toge“ther with the names, additions, and places of abode, of “ such sureties, to the sitting member or members, whose “ Election or return is complained of by such petition, or “ their known agent or agents, and to every other person

or persons to whom the Speaker of the House of Commons shall have given notice to attend at the time when

any such petition is ordered by the House to be taken “ into consideration, or their known agent or agents.” (a)

It is a two days' notice, and the service should be veri. fied by affidavit.

The recognizances of parties, or their sureties, who reside more than forty miles from London, may be entered into before a magistrate, and the examiners may decide upon their sufficiency by affidavit. (6)

If the conditions of a recognizance are not satisfied, it will be certified unto the Exchequer by the Speaker, which certificate will have the effect of an estreat. (C)

If any difficulty arises as to the completion of the recog. nizance, the matter may be stated to the House of Commons by petition, and relief will be allowed by affording further time, if no negligence or default appear on the part

) Journals, 1789.
) 28 G.3, c. 52, s. 7

(*)28 (G. 3, c. 52, s. 9. 53 G. 3, c. 71, 58.7, 12.

of the petitioner. In one instance an act of Parliament was passed, to allow a naval officer abroad on service, thirty days after his return to enter into the recognizance, (a)

Withdrawing a Petition.

Formerly, when a petition complaining of an undue Withdrawing

the petition. Election or return, of the omission on insufficiency of a return had been presented, it could not be withdrawn, unless it related to the return of a member who had since vacated his seat ;(6) but now it may be withdrawn upon matter arising since it was presented, verified by affidavit to the House. (9)


Proceedings of the House in the Selection of the Committee.

As soon as a petition complaining of an undue Election, Committees. or return, the omission of a return, or an insufficient one is presented, (d) a day and hour is appointed by the House for taking it into consideration, which must not be within fourteen days after the commencement of the session of Parliament in which it is presented, nor within fourteen days after the return to which it relates, shall be brought into the office of the clerk of the crown. (C)

Notice of the time appointed shall be forthwith given in writing by the “ Speaker to the petitioners and sitting

members, or respective agents" (in the case of undue Elections or returns), and to the petitioners, and to the returning officer or officers by whom such return ought to have been made, or shall have been made, (in the case of insufficient or no return) accompanied by an order to attend the House at the time appointed by themselves, counsel or

( 11 G. 3, c. 42, s. 2. 25 G. 3, c. 84, s. 11.

31 G. 3, c. 3. 6) 28 G. 3, c. 52, s. 8.

53 G. 3, c. 71, s. 8. (d) 10 G. 3, c. 16, s. 1. 25 G. 3, c. 84.

3, 11.

Committees. agent, in order to the appointment of a Select Committee

according to the regulations of the above acts. (a)

As to the petition of appeal against the report of a Select Committee, the time appointed for taking it into consideration, must be after forty days from the day it was presented, and notice of the day and hour is inserted in the Gazette by order of the Speaker, and sent to the sheriff or re rning officer, who affixes a copy thereof to the door of the county, or town-hall, or parish church nearest the place of Election. (6)

On the day appointed for taking the petition into consideration, and before the order of the day is read, the sergeant at arms is directed to go with the mace to the places adjacent, and require the attendance of members; upon his return the House is to be counted, and if there are not 100 members present, to be adjourped. (C)

If 100 members are present, the parties or agents are ordered to attend, and forty-nine members selected by hallot, which number is afterwards, upon the parties withdrawing from the House, reduced to thirteen, each party striking off one alternately. (d) Each party has also a right of specially nominating a member, and these nominees being added to the reduced list, make the Select Committee of fifteen. (©) There are certain causes of excuse which exempt members from serving, if drawn upon the ballot; as having voted at the Election ; or being party upon another petition; or not having been returned fourteen days; or having served on a Select Committee in the same session, unless the number of those who have not served is insufficient; or if the petition concern the right of Election, having served on the Committee which reported the right; or being intended for a nominee; or being sixty years old. () These objections apply equally to the nominees, but they may also decline serving without any reason. Other excuses which appear sufficient to the House, if verified on oath will be allowed. (8)

“) 10 G. 3, c. 16, s. 1, 25 G. 3, C. 84. S. 10. (6) 28 G. 3, c. 52, s. 28.

10 G. 3, c. 16, ss. 1, 4. (d) Ibid. ss. 5, 13.

© Ibid. ss. 11, 13.

(1) 10 G. 3, c. 16, ss. 6, 7, 8, 9, 11, 12, 15. 53 G. 3, c. 71, s. 20.

(6) 10 G. 3, c. 16, s. 10.

Where there are more than two parties in distinct interests, the list of 49 is reduced by each party alternately striking off one, till 13 remain, who appoint two nominees to be added to their number. (a) If at the day and time appointed, no party appears to oppose the petition, the clerk of the House and the petitioner reduce the list to 13, the petitioner nominates one of the nominees and the 13 members the other; the same mode is pursued where a party opposing the petition waves his right to nominate. (6) -If the petitioner does not appear within an hour after the time fixed for selecting the Committee, the petition is discharged. (C)

When the 15 members are thus respectively selected and nominated, they are to be sworn at the table, (d) and are then deemed to be legally appointed, (C) and are directed by the House to meet at a time within 24 hours (d), but they usually meet immediately to elect their chairman and ad. journ to the following day.


Form of Proceeding before the Committee.


When the Committee is assembled to proceed upon the Trial of petitrial of the case, the clerk reads the petition or petitions, the last determination upon the right of Election, if there be any, and the standing order of the House, prohibiting the offer of evidence upon the legality of votes contrary to such determination. Jan. 16, 1735-6.

If there be a double return, the resolution of the House, directing the counsel of the person first named in the return, or whose return shall be immediately annexed to the writ, to proceed in the first instance, is then read. March, 1727-8.

11 G, 3, c. 42, ss. 6, 7. (0) 28 G.3, c. 52, ss. 14, 15. (9) 28 G. 3, c. 52, s. 13.

(d) 10 G. 3. c. 16, s. 13.

53 G, 3, c. 71, s. 18. () Orme, 355.

Trial of petitions.

If there be two persons claiming to be returning officers, the resolution of the House relating thereto, if any, is

If the case be within 28 G. 3, c. 52, s. 25, that in the opi. nion of the Committee the merits of the petition turn wholly or in part upon the right of Election, or the right of appointing the returning officer, written statements of such right of Election or appointment must next be delivered to the clerk by the parties or their counsel. And although it cannot appear that such rights will be disputed by the sitting member till his case be opened, yet the statement must be delivered in the first instance; (b) and the statement of the right should coincide with the claim of right in the petition. (C)

But if at variance with it, a new one may be substituted adapted to the claim in the petition. (d)

It seems however that the Committee are not confined in their decision upon the right of Election by the statements of the parties, but may determine the right according to the proof, though varying from that contained in either of the statements. (e)

Where the statements turn upon the right to make the return conferred by different offices upon the respectire holders, as whether the mayor or portreeve has the right of return, the question as to the legal mode of electing individuals to those offices is not raised. ()

Before the case of the petitioner is opened, facts extrinsic to the matter of the petition, whether apparent upon the face of it or not, may be advanced on the other side as preliminary objections to the petitioner's right of proceeding in his case.

Tbese objections relate either to the forms of presenting and signing the petition, or to the right of the voter or candidate to subscribe it, or to the capacity of the latter to sit.

Thus where a petition was referred to the Select Committee as a renewed petition, the sitting member was allowed to go into evidence of irregularity in signing or presenting the second petition. The evidence however failed.(5)

Where the petitioning elector described himself“ a free

Preliminary objections.

“) Orme, 359.
(0)1 Peck, 111, n. Vid. 2 Peck, 279, n.
(9) Liskeard, 2 Peck, 278.
(d) Ibid. 279.

Ibid. and n. g.
(1) Vide Okehampton, 1 Fras. 71.
Taunton, 1 Peck, 432.

($) Honiton, 3 Lud. 143, 155.

« PreviousContinue »