« PreviousContinue »
should then take and subscribe the bribery oath, which may Duty of be administered by a justice of the peace of the county, if. at a county election, of the borough, if at a borough election, or in the absence of a justice of the peace by any three electors,(") and read, or cause to be read, the Bribery Act. 2 G. 2, c. 24.
If the Election is for a place where the franchise is in the whole, or in part in freemen, the Durham Act, as it is called, "An Act to prevent occasional freemen from voting" must be read next.). And at New Shoreham, Cricklade, and Aylesbury, the statutes particularly relating to those places. (d)
He is then to call upon the electors to name the candidates. After the candidates are nominated, each may be called upon by the other, or by two electors, to take the qualification oath, unless it is rendered unnecessary by any of the exceptions in the statute of Ann, c. 5. (ƒ) It has not been decided whether a returning officer is Candidate's warranted in refusing to return a candidate who persists in objecting to take this oath at the poll. The Committee of Elections in the case of Malden,() construed the requisition of the statute in the alternative, viz. that the oath might be taken at the choice of the candidate, either at the Election, or at any time before the meeting of Parliament. The words of the statute are, "And if any of the said "candidates or persons proposed to be elected as afore"said, shall wilfully refuse upon reasonable request to be "made at the time of the Election, or at any time before "the day upon which such Parliament, &c. is to meet to "take the oath hereby required, then the Election, &c. "shall be void." These words may possibly be open to the above construction, but the intention seems rather to have been, that the request "may be made either at the "Election, or at any time before the meeting, &c." and if made at a reasonable time, ought at that time to be complied with; and this construction may be inferred from the second resolution in the Leominster case,(h) reported by Corbett and Daniel.
Duty of returning officers.
Granting a poll.
If no more candidates are named than the legal number of representatives, the returning officer has no authority to open a poll to allow time for the appearance of another candidate,(") but should return those nominated as duly elected.
Where more are proposed than the number to be returned, the Election is decided either by the view, the poll, or a scrutiny.) If a poll be duly demanded, that is, either by a candidate or elector, and refused, the Election will be avoided, and the returning officer censured.()
The consent of candidates will not cure any infringement of the elector's rights. The right of Election was " in all men inhabitants, householders, resiants, within the "borough," but by the consent of the candidates under a mistaken notion of the right, it was agreed, that the Election should be made by the freeholders, and a poll was demanded by one of the candidates, a freeholder, on behalf of the freeholders only, the freeholders alone voted, but the rest of the inhabitants, &c. were present, and assented to the return of the candidates chosen by the majority of the freeholders. The Election was holden good, the demand on behalf of the freeeholders alone being a void demand, but if a poll of all the inhabitants had been refused, a new writ must have gone.(d)
It appears, from the earlier cases, that the sheriff was not bound to grant a poll, unless a real doubt arose as to the majority of the persons then present, but it being now established, that the voters need not be present at the reading of the writ, it is necessarily settled also, that he must grant a poll when duly demanded, because nothing can be inferred as to the majority of votes from the few usually present,() and as the sheriff may now declare the majority, upon view, after the statuteable hours, so a poll may be demanded at any time before that declaration, or within a reasonable time after. (f)
When once the poll has been granted, the sheriff must proceed with it, though the party who demanded it should
(") Nottingam, 1 Peck, 81, 5.
() Newcastle under Line, Cam
bridgeshire, Glanv. 76, 81. 4 Inst. 48.
(1) Ibid. 369.
wave it, or disturb the proceedings, otherwise the Election Duty of will be void.(")
But if, after such demand, no votes are tendered within a reasonable time, he may return according to the view.
In Westminster, 1661, the high bailiff waited above half an hour after the appointment of poll clerks to take the poll which had been demanded, but no votes being tendered, he returned the candidates with the majority on the view, and it was resolved that they were duly elected. (b)
A fresh candidate may be proposed at any time during the poll, and his election will be good.()
The poll must commence on the day it is demanded, or the day after, unless that be a Sunday, and be continued daily, with the exception of the Sundays. It may not be kept open more days than fifteen, and if kept open on the fifteenth day, it must close at three o'olock.(d) It should be kept open seven hours, between eight o'clock and four, in each day subsequent to the first. (d)
At the Election for the county of Southampton, the sheriff, at the request of a candidate, is bound to adjourn the poll after its close at Winchester, to Newport, in the Isle of Wight.()
Formerly a voter was not required to mention his name Tendering when he voted, but now it must be stated to the poll clerk, that it may be properly entered. And a mere declaration in the booth for whom the voter gives his suffrage is not sufficient, it must be regularly tendered to the poll clerk,(ƒ) and in the proper booth.(5)
It is very material that the vote should be regularly tendered, for if it be subsequently disputed upon a petition, the Committee will require proof of a proper tender, before they will admit evidence to establish the right of voting.(4)
A county voter should state correctly to the poll clerk the kind of estate for which he votes, its situation, and where assessed, the name of the tenant if there be one, and his own residence. And one who polls in a different
() 1 Whitelock, 387. Glan. 133, 141. 4 Inst. 48.
(6) 8 Jour. 280. 1 Hey. 370.
(*) Bristol, 1 Doug. 245, Montgomery, 15 Jour. 94. 1 Hey. 376. See arg. 1 Peck, 83.
(4) 25 G. 3, c. 84, s. 1. 7. 8 Wm. 3, e. 25, s. 5.
() 25 G. 3, c. 84, s. 16.
Ibid. 401. But if the vote is
(4) Gloster, 30. Horsham. 2 Fras. 35. Orme, 423.
Closing the poll.
right from that which really gives him the franchise, will upon petition be struck off the poll.(") A person entitled to a double vote must poll for both candidates at the same time() If the poll continue open fifteen days, it must close, we have seen, at three o'clock on the last day; yet voters who have tendered their suffrages, which being objected to, have been entered in the poll books before that hour, as votes reserved for discussion, may be examined after; and it has been decided, that the requisite oaths being administered to them in the presence of the under sheriff and assessor, may be added to the poll. (©)
But Mr. Serjeant Heywood says, it may not be safe to consider the above decision "as having settled the point, "the best advice that can be given to the sheriff, is not "to allow a single question with respect to the admission "of voters, to be undecided at the moment when by law "the poll is to be closed." (d)
Where the returning officer having reserved certain votes for discussion, closed the poll after it had been kept open the full time allowed by law, and made his return without deciding upon the votes reserved, the Election was not thereby avoided, there being no proof of partial and illegal conduct in the officer. (e)
In elections for counties, poll clerks are to be appointed and sworn at the expense of the candidates, and inspectors allowed with a cheque book for each poll book, (ƒ) and the same for the city of Westminster. (8)
The poll clerks in county Elections are to set down the name of each freeholder, the situation of his freehold, and for whom he polls, () the place of his abode, () and to poll no one who is not sworn, if required to be sworn, by a candidate, and to enter jurat against the names of such as are sworn. (i)
Nor can he receive votes for any freehold out of the district in his list, unless it lies in some district not mentioned in any of the lists. ()
In Elections for cities and towns, being counties of themselves, cheque books are allowed, but no mention is made of inspectors. (")
In Elections for boroughs and towns, there is no provision by statute for either cheque books, or inspectors, but the poll clerks are to be sworn (b) to the performance of their duty, which is to set down the name of each voter, his addition, profession, &c. the place of his abode, for whom he shall poll, and to poll only such as have taken the oath or affirmation required by any statute.
As there are certain oaths and declarations which elec- Oaths. tors may be required to take previous to their polling, and much inconvenience was found to arise from the time consumed in administering them, the returning officer is authorised by several statutes, 34 Geo. 3, c. 73. 42 Geo, 3, c. 62. 43 Geo. 3, c. 74, after a poll shall be demanded, to appoint at the request in writing of a candidate, commissioners who are to administer all, except the bribery oath, at a separate place or places whilst the Election is proceeding, giving to each elector who shall have taken the oath, a certificate thereof to be produced to the officer or clerk taking the poll.
As this request, if made three days previous to the Election, obliges the returning officer to provide numerous booths for this purpose, particularly described in the statute, 34 Geo. 3, c. 73, s. 6, where a contest is expected he should be provided for such a demand.
The bribery oath must be taken at the poll before the returning officer, () but it may be taken at any time during the Election: a refusal at one period does not preclude a voter from taking it subsequently. (d)
The other oaths are of allegiance or supremacy.( abjuration. (ƒ) The freeholders qualification oath for counties, () for cities, and for towns being counties of themselves. (h) And where, from the nature of the right of Election, no oath of qualification by estate can be taken,