On a general election; In other cases. CHAPTER II. THE WRIT: HOW DIRECTED: HOW FORWARDED: NOTICE TO WAR OFFICE. The Writ.] By the Ballot Act, 1872, Sch. II., the ancient form of writ is altered, and a new and shorter form substituted. When a general election takes place, the writ appoints a day on which Parliament is to meet, specifies the number of representatives to be elected, and concludes by enjoining the officer to whom it is addressed to cause the names of the member or members when elected to be certified to the Crown in Chancery without delay. A new writ is much to the same effect; except that it omits the preamble and explains, in addition, how the vacancy occurred which is to be supplied.3 Writ, how directed.] The person to whom the 1 It may be observed that the words "of the most fit and discreet," which occurred in the old form of writ, and were relied on by Lord Coke (4 Inst. 47, 48) as his reason for holding that a man attainted of treason or felony could not be elected, are now omitted. Also what was called the "nolumus" clause is omitted in this new form of writ. That clause was as follows: "We are willing nevertheless that neither you or any other sheriff of our said United Kingdom be in anywise elected." As to the history and effect of this clause, see Rogers on Elections, ed. 12, p. 232, note (y). 2 By 15 & 16 Vict. c. 23, App. xlvii. whenever a new parliament is summoned there are to be not less than thirty-five days between the date of the proclamation and the day appointed for the meeting thereof. By s. 15 of the Ballot Act, 1872, App. xc., the word proclamation is to be deemed to include a public notice given in pursuance of the Ballot Act. By the schedule to the Ballot Act, App. cxxviii., 31 & 32 Vict. c. 58, s. 11, which shortened the time to twentyeight days, is repealed. 3 See form, App. cxvi. writ is directed is the Sheriff or other Returning CHAP. II. Officer.1 We must therefore now consider the rules which Returning Officer: determine who may be Returning Officer.2 In counties, the Returning Officers have been In counties: from ancient times the Sheriffs." which are themselves, In such cities, or towns, being counties of them- Incities, &c., selves, as are not provided for by the various counties of statutory provisions which will presently be noticed, and not prothe Sheriffs of such cities or towns are generally, vided for by but not always, the Returning Officers.* Statute: boroughs vided for. In other boroughs or towns not so provided In other for, the office generally devolves on the principal not so profunctionary of the place, but may be found in the possession of a variety of persons; such as stewards; mayors; bailiffs; port-reeves; constables; and the like; according to the customs of the place concerned.5 The statutory provisions as to who is to act as Returning Officer in boroughs are as follows: In boroughs enumerated In a large proportion of boroughs in England the Returning Officers have been specially desig- in Schedules nated by the Reform Act, 1832, and the Municipal Reform Act, 1 See Ballot Act, 1872, sch. ii. label or direction of writ, App. cxvi. and Rule i. App. cii. Also as to England, 16 & 17 Vict. c. 68, s. 1, App. li. and 17 & 18 Vict. c. 57, App. lii. As to Scotland, 2 & 3 Will. IV. c. 65, s. 28, App. xxv.; and as to Ireland, 25 & 26 Vict. c. 92, s. 3, App. lxiv. 2 For definitions of this title, see 2 Will. IV. c. 45, s. 79, App. xxii.; 6 Vict. c. 18, s. 101, App. xxxvii. There is no definition of this title in the Ballot Act, 1872, neither is there any alteration made by that act as to the person who is to perform the duties of returning officer. commons a writ goeth out 3 In 4 Inst. 6, Lord Coke says; For summoning of the to every sheriff of fifty-two counties of England and Wales for the choice and election of knights within every one of their counties respectively." See also as to England, 16 & 17 Vict. c. 68, s. 1, App. 1., and as to Scotland, 2 & 3 Will. IV. c. 65, s. 28, App. xxv.; and May's Parl. Pract., ed. 7, pp. 19-21. 4 Roe on Elections, I. 437. 5 Id., 438a. In some places, lords, and even ladies, of manors have been the Returning Officers; Heywood on Borough Elections, 54, 437. C or D of 1832. CHAP. II. Or where no provision made and since incorporated: Or where no provision made and not since in Corporation Acts; the general effect of which may thus be stated : For some of the boroughs named in Schedules C and D of the Reform Act, 1832, Returning Officers are therein expressly provided.' In any other borough named in those Schedules, and which has been incorporated since the passing of the Reform Act of 1832 by any royal charter authorising the election of a Mayor, or other chief municipal officer, such Mayor or other chief municipal officer for the time being acts as the Returning Officer for such borough. And, as regards the rest of the boroughs named in those Schedules, the Act1 provides that the Recorporated: turning Officer shall be appointed by the Sheriff of the county, subject to the following rules:-The appointment must be made in March (except when made to fill up a vacancy occasioned by death or incapacity), by writing under the Sheriff's hand; which writing must be delivered to the Clerk of the Peace of the County, and by him be filed and preserved among the records of his office. The qualification required by the Act is that the person appointed should be " a fit person resident in the borough." He must not be in holy orders, nor be a churchwarden, or overseer of the poor, nor can one who has been thus appointed assume either of the two latter functions during the period of his office. His appointment is to last till the ensuing March so that he would appear to have no power of resigning at pleasure. But no person can be compelled to accept the appointment who has served before, or is qualified to be elected as a member of Parliament; provided that, within a week of his receiving notice of such appointment, he makes Qualifica tion of Returning Officers in such borough: 1 2 Will. IV. c. 45, s. 11, App. xvii. 25 & 6 Will. IV. c. 76, s. 57, App. xxx. 3 Wakefield, Bar. & Aust. 271; Rogers on Elections, ed. 12, p. 280. This word "qualified" probably refers to the qualification of estate required by 1 & 2 Vict. c. 48, which is now repealed. As to this see Rogers on Elections, ed. 12, p. 279. oath of such qualification before a Justice of the CHAP. II. Peace, and forthwith notifies that he has done so to the Sheriff. If the Returning Officer dies, or becomes incapacitated, the Sheriff is to forthwith appoint (subject to the same rules, and for the unexpired residue of the year of office) a successor.1 In boroughs In every borough under the Municipal Corpo- under the rations Act, other than cities, or towns, being Municipal counties of themselves, and other than the town Act. Corporations of Berwick-upon-Tweed, the Mayor is Returning Officer; and if at any time when he is required to act as such, he is absent, or incapacitated, by death, or otherwise, the council of the borough must forthwith elect an alderman to act in his stead. If there are two mayors in the borough, the one to whom the writ is directed is to be Returning Officer. mentioned in B and C of In any borough named in Schedules B and C In boroughs of 30 & 31 Vict. c. 102, which is, or includes, a Schedule municipal borough, the Mayor of such municipal Reform Act, borough is the Returning Officer; and in the 1867. other boroughs so named, the Returning Officer is to be appointed in the same way as if they were included among the boroughs named in Schedules C and D of 2 Will. IV. c. 45, for which no persons are mentioned in such Schedules as Returning Officers, provided that if any of these last-mentioned boroughs become municipal boroughs the Mayor shall become Returning Officer in that borough.* 3 head and For the borough of Birkenhead the Sheriff of For BirkenCheshire is to appoint a fit person in accordance Thirsk. with the provisions of 2 Will. IV. c. 45, s. 11,5 and for the borough of Thirsk a Returning Officer is to be annually provided in accordance with the same provisions. 1 2 Will. IV. c. 45, s. 11, App. xvii. CHAP. II. Returning Statutory Writ, how directed when the post is vacant; In an Eng In Scotland, writs for the election of members to serve for shires, or for any city, burgh, or town entitled to send a member or members for itself, shall be directed as heretofore to the Sheriff of the shire, and where the election is for a district of cities, burghs, or towns, a writ shall be directed to the Sheriff specified in Schedule L of the Scotch Reform Act, 1832.1 It is specially enacted by the Scotch Reform Act, 1868, that for the Hawick burghs the writ is to be addressed to the Sheriff of Roxburghshire, to the Sheriff of the county of Peebles for the counties of Peebles and Selkirk, and to the Sheriffs of the counties enumerated in Schedule B to that Act for such counties.2 In Ireland, the Returning Officer for counties is the Sheriff. For boroughs the Mayor for the time being is Returning Officer, and if there is no Mayor, then the Sheriff of the county in which the whole or greater part of such borough shall be situate." It has next to be considered how the writ is to be directed in those cases where it is ordinarily directed to the Returning Officer, but where, at the time of its issue, his post is vacant. 4 If this should happen in an English county, and lish county: the vacancy is occasioned by death, the Under, or Deputy, Sheriff, who is the person appointed by statute to fulfil ad interim the deceased Returning Officer's duties, would seem to be the proper person to whom to direct the writ. A vacancy from any other cause than death does not appear to be expressly provided for; but the Crown might possibly be advised to solve the difficulty by wielding its often questioned, but never abandoned, prerogative of making a Pocket Sheriff to supply the vacancy. 1 2 & 3 Will. IV. c. 65, s. 28, App. xxv. 4 3 Geo. I. c. 15, s. 8, App. iii. And so, if the Sheriff is absent on militia service; 2 & 3 Vict. c. 59, s. 2, App. xxxii. 5 Bacon Ab., Sheriff; 1 Bl. Com. 340; 2 Steph. Com, 647. |