Chiltern
Hundreds.

the people to refuse to accept, or to resign the trust conferred upon him,' a member wishing to retire accepts an office by which his seat is legally vacated. For this purpose it is customary to confer upon any member who may apply for the same the office of steward or bailiff of her Majesty's three Chiltern Hundreds, of Stoke, Desborough, and Bonenham; or, of the Manors of East Hendred, Northstead, or Hempholme; or, of Escheator of Munster." These stewardships are merely nominal offices; but they are technically sufficient for the purpose in view; and, as soon as that purpose is accomplished, they are resigned.

The appointment to the Chiltern Hundreds is vested in the chancellor of the exchequer; but he acts formally and ministerially in conferring it upon any applicant, unless there appears to be sufficient grounds to justify a refusal. The discretion of the Treasury in granting these offices to persons unworthy of the favour of the crown, and in order to enable the seat in Parliament to be vacated, has been enlarged by the omission of words and the warrant of the appointment which attached honour to these offices. Nevertheless, they would never be granted to a person in a state of mental incapacity, or where proceedings are pending whereby the applicant might be lawfully deprived of his seat, or expelled from the House."

Where a vacancy occurs in the House of Commons,

May, Parl. Prac. ed. 1883, p. 708. Members of the Canadian legislature are empowered to resign their seats at any time, except when their right to the seat is contested, or within the ordinary period for petitioning against their election: by the Consol. States of Canada (1886), c. 13, secs. 5, &c.

2 Hats. Prec. 55 n. As an office cannot be conferred twice on one day, if there be a second applicant, on the same day, for the Chiltern Hundreds, it is necessary to have

recourse to another stewardship. Peel, Hans. D. v. 83, p. 505.

709.

V

May, Parl. Prac. ed. 1883, p.

Hans. D. v. 65, p. 1102. And see the Bodmin case (Election Compromises), ib. v. 155, pp. 960, 1039, 1293. See also the Pontefract Election case, ib. pp. 1296, 1254, 1276, 1406, 1409. At the termination of this enquiry the sitting member (W. Overend) accepted the Chiltern Hundreds on February 2, 1860.

not to be

piry of

ing re

whether by death, elevation to the peerage, or acceptance New writs of office,-prior to, or shortly after, the first meeting of issued a new Parliament; or, within fourteen days after the until exreturn of a newly-elected member, a writ will not be time for issued upon any such member so vacating his seat, until questionthe expiration of the time limited for presenting election turns. petitions. Furthermore, upon any such vacancy occurring, as a general rule, no new writ can issue, if a petition has been presented against the election or return, until the petition has been finally adjudicated upon. And for the obvious reason that it might appear, as a result of such an investigation, that there had been no vacancy, for that, in fact, another person was the rightful owner of the seat.

X

there be a

issue, if

seat be

claimed.

But in 1852, the latter part of this particular rule And if was set aside, and a contrary practice established, on petition, behalf of members accepting office. In this year there no writ to was a general election, and, shortly after the meeting of Parliament, it became necessary to form a new administration. The wholesome and hitherto invariably respected rule-to delay the issue of writs upon any vacancy until the rights of the election (if called in question) had been determined-would undoubtedly have occasioned some public inconvenience at this juncture. Amongst the members who had accepted office in the new ministry, there were several whose returns had been petitioned against. Whereupon the Speaker was appealed to, and he decided, that in the case of an election petition complaining of an undue return, or of the return of a member in consequence of bribery, but not claiming the seat for another person, it was competent for the House to issue a new writ. But that in the case of a petition complaining of the undue return of a member, and claiming the seat for another

6

* See Election Petitions Act, 1868, c. 6. Clerk, Law of Elections, p. 223. Hans. D. v. 186, p. 1199.

Issue of

Writs.

Unsuc

tempts to

change

person, it was not competent for the House to issue a new writ, pending [the decision upon] the petition; inasmuch as the House in that case could not know which of the two [candidates] had been duly elected.' As it happened that in every instance but one, where petitions had been presented against the return of the newlyappointed ministers, the seat was not claimed, new writs were immediately issued. But in the Athlone case, where the seat of the sitting member (Mr. Keogh) was claimed for another person, no new writ was ordered, upon his being appointed solicitor-general for Ireland, until the petition against his return had been tried and determined."

The new practice-authorising the issue of new writs upon members accepting office, directly after the expiration of the time allowed for petitioning against the return, unless the seat was claimed-was followed, under similar circumstances, in 1859. But it gave rise, in one case (that of Lord Bury), to much dispute. The decision of the speaker in 1852 was questioned before an election committee, and the opinion expressed that the House ought to reconsider the matter. It must be admitted that the weight of legal authority is against the construction of the law adopted by the House of Commons, however much may be said in favour of the speedy issue of the writ on the score of convenience.

b

In 1867, an attempt was made to get rid of the discessful at tinction drawn by the Speaker, in respect to petitions claiming the seat for another candidate. On April 5, this prac- 1867, a member called the attention of the House to the practice that, when a petition praying for the seat was presented against any person who had been appointed

tice.

to an office of profit under the crown, no writ could issue until the petition had been decided.' He pointed out a recent example of the vexatious operation of the existing usage, whereby a minister of the crown had been kept out of the House of Commons by reason of a petition claiming his seat, which was afterwards withdrawn; and he moved, that whenever a member of this House shall accept an office of profit under the crown, a writ for a new election may issue, notwithstanding that the time limited for presenting a petition may not have expired, or that a petition praying for the seat may have been presented.' A technical objection prevented the debate on this motion from proceeding; but it was remarked by an old and experienced member, that the mover had made out no case for altering the rules of the House' in this matter. For that which might turn out to be the property of one person ought not to be given to another. In the very rare case of cabinet ministers not being able to take their seats for a fortnight or three weeks . . . the secretary to the treasury, or some of the subordinate officers of the government who did not vacate their seats, might very well discharge the necessary business in their absence.d

e

By a discussion which took place in the House of Commons in 1868, it appears that the House continues to adhere to the practice explained in the text, notwithstanding the altered mode of trying election petitions. In Canada the proposed change has been adopted since 1857. By the Consolidated Statutes of Canada (c. 13, sec. 9) it is provided that a new writ may be issued for the election of a member of the Commons to fill up any vacancy arising subsequently to a general election, and before the first meeting of Parliament thereafter, by reason of the death or acceptance of office of any member, and such writ may [also] issue at any time after such death or acceptance of office; but the election to be held thereunder shall not in any manner affect the rights of any person entitled to contest the previous election, who, if afterwards proved to have been entitled to the seat, shall take the same as if no such subsequent election had been held.

d Hans. D. v. 186, pp. 1199-1201. VOL. II.

• Ib. v. 194,

p.
17.

A A

When no legal return is

made.

Where there has been no legal return made to the writ-as by the election of a person who is incapable of being chosen, the House of Commons will proceed to enquire into the matter, and to order a new writ to be issued, without any delay. For, except in the trial of election petitions, questioning returns to writs of election (which are now tried by the judges, under the Act of 1868), the House still retains its ancient jurisdiction, to determine all questions affecting the seats of its members, not arising out of controverted elections.

II. The Functions of Ministers of the Crown in relation to Parliament.

Thus far our attention has been mainly directed to the mode in which ministers of the crown find entrance into Parliament, for the general purpose of representing therein the authority of the crown, and the conduct of the several branches of the executive government, and in order to enable them to administer the affairs of state which have been assigned to their control, in harmony with the opinions of that powerful and august assembly.

We must now point out the functions appertaining to ministers in connection with Parliament, defining those which belong to the administration collectively, and those for which particular ministers are accountable.

1. THE PARLIAMENTARY DUTIES OF MINISTERS

COLLECTIVELY.

Our observations on this subject may be suitably arranged under the following heads :-(a) The Speech from the Throne and the reply thereto. (b) The introduction of public Bills and the control of legislation. (c) The oversight and control of business generaily. (d) The necessity for unanimity and co-operation amongst

May, Parl. Prac. 1883, pp. 59, 722; case of O'Donovan Rossa, Hans. D. v. 199, p. 122.