But elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall [178] happen after the delivery of the writ. The county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and, in all such cases, ten days' public notice must be given of the time and place of the election. 57

And, as it is essential to the very being of parliament, that electior should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr. Locke (r) ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to à dissolution of the government, "if he employs the "force, treasure, and offices of the society to corrupt the representatives, or openly to pre-engage the electors, and prescribe what manner of persons "shall be chosen. For thus to regulate candidates and electors, and new"model the ways of election, what is it (says he) but to cut up the go"vernment by the roots, and poison the very fountain of public security?" As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not to return till one day after the poll is ended. 59 Riots likewise have r On Gov. p. 2. § 22 2.

(56) Com. Dig. Parliament, D. 11.

(57) This is altered by the 25 Geo. III. c. 84, which provides that the sheriff having indorsed on the writ the day on which he receives it, shall, within two days after such receipt, cause proclamation to be made at the place where the election ought to be made, of a special county court to be there held, for the purpose of such election only, on any day (Sunday excepted) not later from the day of making such proclamation than the sixteenth day, nor sooner than the tenth, and that he shall proceed at such special county court in the same manner as at an election at a county court under the former laws. See course of proceedings, Com. Dig. Parliament, D.11 Chitty.

(58) By the ancient common law of the land, and by the declaration of rights, 1 W. & M. st. 2. c. 2. The 3d Ed. I. c. 5. is also cited, but Mr. Christian observes that it related to the elec tion of sheriffs, coroners, &c. for parliamentary representation was then unknown. It has been decided that a wager between two electors upon the success of their respective candidates is illegal, because if permitted, it would manifestly corrupt the freedom of elections. 1. T. R. 55. The house of commons has also passed resolutions on the subject to the following effect. "The Bending of warrants or letters to constables or other officers to be communicated to electors when a member is to be chosen to serve in parliament, or threatening the electors, is unparliamentary, and a violation of the right of election. 9 Journals, 191.

"It is highly criminal in any minister or servant under the crown, directly or indirectly, to use the powers of office to influence the election of representatives; and any attempt at such influence will always be resented by this house, as aimed at its own honour, dignity, and independence, as an infringement of the dearest rights of every subject throughout the empire, and tending to sap the basis of this free and happy constitution." 17 Journ. 507.

It is a high infringement of the liberties and privileges of the house of commons, for any lord of parliament, or lord lieutenant of any county, to concern himself in the election of any member of parliament." This is passed at the commencement of every session.

Chitty.

(59) Except the guards in the liberty of Westminster, or in Southwark, or other place of royal residence; or in any fort or garrison in respect of such number of soldiers whereof the garrison is composed, or in respect of any soldier or officer entitled to vote at such election. 8 Geo. II. c. 30.

Chitty.

been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath

any right to interfere in the election of commoners; and, by statute, [179] the lord wardens of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, or certain other branches of the revenue, presume to intermeddle in elections, by persuading any voter, or dissuading him, he forfeits 100l. and is disabled to hold any office.

Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves cooperate, by the infamous practice of bribery and corruption. To prevent which it is enacted, that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected on pain of being incapable to serve for that place in parliament. 61 And if any money,

(60) Or after the ordering of the writs; that is, after signing the warrant to the chancellor for issuing the writs. Sim. 165. But entertainment at an antecedent time, though in contemplation of the election, seems not to be illegal. 1 Bos. and Pul. 264.

(61) This incapacity arises from the 7 W. III. c. 4. commonly called the Treating Act, and the 49 Geo. III. c. 118. passed for the better securing the independence and purity of parliament. These acts enact, that the candidate offending against these statutes shall be disabled and incapacitated to serve in that parliament for such county, &c. The obvious meaning of these words and of the rest of the statutes is, that treating vacates that election only, and that the candidate is no way disqualified from being re-elected, and sitting upon a second return. See the second case of Norwich, 1787, 3 Lud. 455. Though the contrary was determined in the case of Honiton, 1782, ib. 162.

But after the general election in 1796, the return of one of the members for the borough of Southwark was declared void by a committee, because it was proved that he had treated during the election. Upon that vacancy he offered himself again a candidate, and having a inajority of votes was returned as duly elected; but upon the petition of the other candidate, the next committee determined that the sitting member was ineligible, and that the petitioner ought to have been returned. And he took his seat accordingly.

It has been supposed, that the payment of travelling expenses, and a compensation for loss of time, were not treating or bribery within this or any other statute: and a bill passed the house of commons to subject such cases to the penalties imposed by 2 Geo. II. c. 24. upon persons guilty of bribery. But this bill was rejected in the house of lords by the opposition of lord Mansfield, who strenuously maintained that the bill was superfluous; that such conduct, by the laws in be ing, was clearly illegal, and subject, in a court of law, to the penalties of bribery. (2 Lud. 67.) Mr. Christian has observed, "that it is so repugnant both to the letter and spirit of these statutes, that it is surprising that such a notion and practice should ever have prevailed and that though it is certainly to be regretted that any elector should be prevented by his poverty from exercising a valuable privilege; yet it probably would be a much greater injury to the country at large if it were deprived of the services of all gentlemen of moderate fortune, by the legalizing of such a practice, even with the most equitable restrictions, not to mention the door that it might open to the grossest impurity and corruption." However the 49 Geo. III. c. 118. s. 2. provides that nothing in that act contained shall extend or be construed to extend to any money paid or agreed to be paid to or by any person for any legal expense bona fide incurred at or concerning any election. And lord Ellenborough and Mr. Baron Thompson have held at nisi prius, that a reasona. ble compensation for the loss of time and travelling expenses is not illegal. 2 Peckw. 182.

In the sessions of 1806, Mr. Tierney brought in a bill to prevent the candidates from conveying the electors at their expense. That excellent bill was opposed by Mr. Fox, who argued that it would be injurious to the popular part of the government by reducing the number of elec

tors.

But, as observed by Mr. Christian, surely the popular part of the government sustains an infinitely greater loss rom the diminution of the number of the eligible; for many, by the present practice, are totally precluded from serving their country in parliament, whom the resident electors, those who are best acquainted with their merits, would think the fittest objects of their choice.

If an innkeeper furnishes provisions to the voters, contrary to the 7 W. III. c. 4. though at the express request or order of one of the candidates, he cannot afterwards maintain an action against

62

gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, as well he that takes as he that offers such bribe, forfeits 500., 6 and is for ever disabled from voting and holding any office in any corporation, s unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence. (s) The first instance that occurs, of election bribery, was so early as 13 Eliz. when one Thomas Longe (being a simple man and of small capacity to serve in parliament) acknowledged that he had given the returning officer and others of the borough for which he was chosen four pounds to be returned member, and was for that premium elected; but for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned. (t) But, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution.

65

Undue influence being thus (I wish the depravity of mankind [180] would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. The candidates likewise, if required, 5 must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration and that against bribery and corruption. And it might not be amiss, if the members elected were bound to take the latter oath, as well as the forIn like manner the Julian law de ambitu inflicted fines and infamy upon all who were guilty of corruption at elections; but if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1. t 4 Inst 28. Hale of parl. 112. Com. Journ. 10 & 11 May, 157:.

that candidate, as courts of justice will not enforce the performance of a contract made in direct violation of the general law of the country. 1 Bos. & Pull. 264. And according to the judgment of Eyre, Ch. J, in that case and the decision in Lofhouse v. Wharton, 1 Campb. 550. the acts made no difference between resident and non-resident voters, and the candidate cannot legally defray the travelling or other expenses of voters. Chitty

(62) By 49 Geo. III c. 118 s. 1. the party giving or promising forfeits 10007.

(63) The offender is also punishable criminally (notwithstanding the penalty inflicted by the statute) by fine and imprisonment. (See 3 Burr. 1335. 1359.) But this is not allowed except under peculiar circumstances until two years have expired, when the liability to the action ceases. (64) This is enacted by 2 Geo II. c. 24 explained and enlarged by 9 Geo. II. c. 38. and 16 Geo. II. c. 11.; but these statutes do not create any incapacity of sitting in the house, that depends solely upon the treating act mentioned in the note ante 179. n. 60.

It has been held that it is bribery if a candidate gives an elector money to vote for him, though he afterwards votes for another (3 Burr 1235.) And it has been decided that such vote will not be available to the person to whom it may afterwards be given gratuitously. But the propriety of that decision has been questioned by respectable authority. (2 Doug. 416.) Besides the penalties imposed by the legislature, bribery is a crime at common law, and punishable by indictment or information, though the court of king's bench will not in ordinary cases grant an information within two years, the time within which an action may be brought for the penalties under the statute. (3 Burr. 1335. 1359) But this rule does not affect a prosecution by an indictment, or by an information by the attorney-general, who in one case was ordered by the house to prosecute two gentlemen who had procured themselves to be returned by bribery; they were convicted, and sentenced by the court of king's bench to pay each a fine of 1000 marks, and to be imprisoned six months. 4 Doug 292. In an action for bribery, a person may be a witness to prove the bribery, although he admits that he intends to avail himself of the conviction in that action to protect himself as the first discoverer, in an action brought against him for the same offence. 4 East, 180.

(65) If any candidate, upon a reasonable request from another candidate, or by two of the elec tors, either at the election, or at any time before the return of the writ, shall refuse to swear to his qualification, his election shall be void. (9 Ann. c. 5.)

VOL. 1.

18

mer which in all probability would be much more effectual, than administering it only to the electors. 66

The election being closed, the returning officer in boroughs returns his precept to the sheriff, with the persons elected by the majority; and the sheriff returns the whole, together with the writ for the county and the knights elected thereupon, to the clerk of the crown in chancery: before the day of meeting, if it be a new parliament, or within fourteen days after the election, if it be an occasional vacancy; and this under penalty of 5001. If the sheriff does not return such knights only as are duly elected, he forfeits, by the old statutes of Henry VI. 100l.; and the returning officer in boroughs for a like false return 401.; and they are besides liable to an action, in which double damages shall be recovered, by the later statutes of king William and any person bribing the returning officer shall also forfeit 3001. But the members returned by him are the sitting members, until the house of commons, upon petition, shall adjudge the return to be false and illegal. 67 The form and manner of proceeding upon such petition are now regulated by statute 68 10 Geo. III. c. 16. (amended by 11

(66) All electors are compellable, before they vote, to take the oaths of allegiance and supremacy, 7 & 8 W. III. c. 27. But as these oaths were frequently required from the electors by one of the candidates for the purpose of delay, it was enacted by the 34 Geo. III. c. 73. that when a poll is demanded at any election, the returning officer may, at the request of any candidate, appoint two persons (or a sufficient number), at proper places, to administer the oaths of allegiance and supremacy, the declaration of fidelity, the oath of abjuration, and the declaration or affirmation of the effect thereof, to each elector before he tenders his vote. The 42 Geo. III. c. 62. empowers these persons to administer all the oaths, and to take all the affirmations in the case of quakers, required by any law or statute, and to certify the names of the electors who have taken such oaths or made such affirmations. The expense thereby incurred is to be borne equally by all the candidates. And by the 25 Geo. III. c. 84. all electors for cities and boroughs shall swear to their name, addition, or profession, and place of abode : and also, like freeholders in counties, that they believe they are of the age of 21, and that they have not been polled before at that election. And by the same statute it is enacted, that if a poll is demanded at any election for any county or place in England or Wales, it shall commence either that day, or at the farthest upon the next, and shall be continued from day to day (Sundays excepted) until it be finished; and it shall be kept open seven hours at the least each day, between eight in the morning and eight at night; but if it should be continued till the 15th day, then the returning officer shall close the poll at or before three in the afternoon, and shall immediately, or on the next day, publicly declare the names of the persons who have a majority of votes; and he shall forthwith make a return accordingly, unless a scrutiny is demanded by any candidate, or by two or more of the electors, and he shall deem it necessary to grant the same, in which case it shall be lawful for him to proceed thereupon; but so as that, in all cases of a general election, if he has the return of the writ, he shall cause a return of the members to be filed in the crown office on or before the day on which the writ is returnable. If he is a returning otcer acting under a precept, he shall make a return of the members at least six days before the day of the return of the writ: but if it is not a general election, then, in case of a scrutiny, a return of the member shall be made within thirty days after the close of the poll. Upon a scrutiny, the returning officer cannot compel any witness to be sworn, though the statute gives him power to administer an oath to those who consent to take it. Chitty

(67) In case of a double return, the same remedy may be had by the party aggrieved, as in the case of a false return. See 7 & 8 W. III. c. 7. and 25 Geo. III. c. 81.

(68) This statute is better known by the name of Grenville's act, and it has justly conferred immortal honour upon its author. The select committees appointed pursuant to this statute, have examined and decided the important rights of election with a degree of purity and judicial discri mination highly honourable to themselves; and which were still more satisfactory to the public, from the recollection of the very different manner in which these questions, prior to 1770, had been treated by the house at large.

But this act has been much improved by 25 Geo. III. c. 84. and 28 Geo. III. c. 52. $2 Geo. III. c. 1. 36 Geo. III. c. 59. 42 Geo. III. c. 84. all which provisions are made perpetual by 47 Geo. III. stat. 1. c. 1. By these statutes any person may present a petition complaining of an undue election; but one subscriber of the petition must enter into a recognizance, himself in 2001. with two sureties in 100%. each, to appear and support his petition; and then the house shall ap point some day beyond fourteen days after the commencement of the session, or the return of the writ, and shall give notice to the petitioners and the sitting members to attend the bar of the house on that day by themselves, their counselor agents; this day, however, inay be altered, but notice shall be given of the new day appointed. On the day fixed, if 100 members do not attend, the house shall adjourn from day to day, except over Sundays, and for any number of days over

Geo. III. c. 42. and made perpetual by 14 Geo. III. c. 15.) which directs the method of choosing by lot a select committee of fifteen members, who are sworn well and truly to try the same, and a true judgment to give according to the evidence. And this abstract of the proceedings at elections of knights, citizens, and burgesses, concludes our inqui- [181] ries into the laws and customs more peculiarly relative to the house of commons.

Christmasday, Whitsunday, and Good Friday; and when 100 or more members are present, the house shall proceed to no other business except swearing in members, receiving reports from committees, amending a return, or attending his majesty or commissioners in the house of lords. And by the 32 Geo. III. c. 1. the house is enabled to receive a message from the lords, and to proceed to any business that may be necessary for the prosecution of an impeachment on the days appointed for the trial. Then the names of all the members belonging to the house are put into six boxes or glasses in equal numbers, and the clerk shall draw a name from each of the glasses in rotation, which name shall be read by the speaker, and if the person is present, and not disqualified, it is put down and in this manner they proceed, till forty-nine such names are collected. But besides these forty-nine, each party shall select, out of the whole number present, one person, who shall be the nominee of that party. Members who have voted at that election, or who are petitioners, or petitioned against, cannot serve; and persons who are sixty years of age, or who have served before, are excused if they require it; and others who can shew any materal reason may also be excused by the indulgence of the house. After 49 names are so drawn, lists of them shall be given to the respective parties, who shall withdraw, and shall alternately strike off one (the petitioners beginning) till they are reduced to 13; and these 13, with the two nominees, constitute the select committee. If there are three parties, they shall alternately strike off one; and in that case the 13 shall choose the two nominees.

The members of the committee shall then be ordered by the house to meet within 24 hours, and they cannot adjourn for more than 24 hours, except over Sunday, Christmasday, and Good Friday, without leave of the house; and no member of the committee shall absent himself without the permission of the house. The committee shall not in any case proceed to business with fewer than 13 members; and they are dissolved if for three successive days of sitting their number is less than that, unless they have sat 14 days, and then they may proceed, though reduced to 12; and if 25 days to 11; and they continue to sit notwithstanding a prorogation of the parliament. All the fifteen members of the committee take a solemn oath in the house, that they will give a true judgment according to the evidence, and every question is determined by a majority. The committee may send for witnesses and examine them upon oath, a power which the house of commons does not possess; and if they report that the petition or defence is frivolous or vexatious, the party aggrieved shall recover costs. For their mode of reporting the right of election, see note (36), p. 174.

By the 11 Geo. III. c. 52. if 100 or more members are present, but if, upon the drawing by lot, 49 not set aside nor excused cannot be completed, the house shall then adjourn, as if 100 had not attended. And to prevent the public business being delayed by the want of a sufficient attend. ance to form a select committee, the 36 Geo. III. c. 59. has provided, that when a sufficient num. ber of members are not present for that purpose, the house, before they adjourn, may proceed to the order for the call of the house, if it has been previously fixed for that day, or they may adjourn such call, or they may order it to be called on any future day, and may make such order relative thereto as they think fit for enforcing a sufficient attendance of the members. Chitty. (69) For further information upon the laws and customs, and proceedings, relative to the house of commons, see Comyn's Digest, tit. Parliament, and Adolphus's Political State British Empire, 1 vol. 232 to 301.

Since the commencement of the present reign, the state of the laws for the regulation of elections in Ireland, has frequently occupied the attention of parliament. By the 1 & 2 Geo. IV. c. 44. all judicial officers, from the lord chancellor down to masters in chancery, are declared incapable of sitting as members in the house of commons. This measure was induced by the circumstance of a master in chancery (Ellis) being returned as one of the representatives of the city of Dublin. The incompatability of the senatorial and judicial duties, especially as the former were to be performed in England, and the latter in Ireland, was too obvious not to excite an animated desire to correct the evil, or at least to prevent its recurrence. The act does not operate retrospectively; but it will in future circumscribe the official zeal of Irish masters in chancery, for the public welfare, within the limits of their legal functions.

The 1 & 2 Geo. IV. c. 58. was passed to limit the expenses, and the 60 Geo. III. and 1 Geo. IV. c. 11. for the better regulation of polls at elections; but the whole system became the subject of legislative revision in the 4 Geo. IV. c. 55. by which the several acts are consolidated and amended.

The general provisions for the suppression of corrupt practices, are much the same as those which previously existed with relation to elections in Great Britain. The act also provides, that all freeholders, before they can be admitted to vote at elections, shall register their freeholds in a book kept by the clerk of the peace or deputy-sheriff of each county, before whom they shall produce the instruments, duly stamped, under which their freeholds arise. Free