Votes for 10. Where, after due public notice has been CHAP. IV. given at the time of election, that a candidate is ineligible, any votes given for him are lost, candidate and may afterwards be struck off on petition as of his nullities.1 If, therefore, in such a case, after deducting lost votes of this character, another candidate (for, or by, whom the seat is claimed) has the legal majority, he will obtain the seat on petition. But if, in consequence of the notice having been given after the commencement of the election, enough votes were given before the notice, to give the disqualified candidate a majority even after the subsequent lost votes are deducted— then, as the prior votes cannot be treated as lost, or nullities; the election, as regards the disputed seat, will be void, and there must be a second appeal to the constituency. And so, a fortiori, when an ineligible candidate obtains a majority, and no such notice has been given.* after notice ineligibility. ineligibility, In order, therefore, to avoid the expense and Notice of inconvenience of a second election, it is highly how given: important to the other candidates that due notice should be given of the ineligibility of any person, who may thus seek to obtain a majority at the poll. The utmost publicity should be secured for the notice. In small constituencies a printed or written notice of the objection, and its grounds, should be sent to, or served on, every elector; evidence being retained of this having been done.5 Where the electors For grounds of ineligibility, see APPENDIX, p. i: for a form of notice, (to be varied, of course, according to the grounds relied on) see ib. p. vii. 2 Leominster, C. & D. I; R. v. Munday, Cowp. 537; R. v. Boscawen, Easter, 13 Anne; R. v. Withers, 8 G. 2; Taylor v. Mayor of Bath, M. 15, G. 2. Heywood, Counties, 535; Southampton (1776); ante, p 78, note 1. 3 R. v. Hawkins, 10 East. 211; (on appeal) 2 Dowl. 138; R. v. Bridge, 1 M. & S. 76. 4 Colchester, 1 Lud. 442. 5 Wakefield, Bar. & Aust. 319. CHAP. IV. are too numerous for such a course, the notices may be sent by post; or placards may be affixed on the most prominent places near, and on the way to, the poll.1 When given: Not dis pensed with by noteriety: Notice, when effectual: It should be added, that the notice must be given at the time of the election, and is not dispensed with by the notoriety of such ineligibilty; at any rate, if that ineligibility is of a character admitting of removal before the vote is given. For, as Mr. Rogers observes, there are disqualifications, which, though notoriously existing before the poll, may have been got rid of at, or even after, its opening: it is the continuance of the disqualification which requires to be published, and not the fact that it previously existed. On the other hand, in one case where a Returning Officer decided that an ineligible candidate was eligible, this neutralized the effect of a notice, so as to make the election void where the latter had obtained a majority.3 In the 2nd Clitheroe case, decided under 5 & 6 Vict. c. 102, s. 22 (repealed), the Committee specially reported on what they termed "the unsatisfactory state of the law with regard to the effect of notice to the electors of disqualification, in the case of a candidate who is returned by a majority of votes; and they gave it as their unanimous opinion that, "to give effect to the notice, the disqualification must be 1 Belfast, Falc. & Fitzh. 603. In Cork County (K. & O. 406) notices were served on 700 electors, and this was held sufficient. Warren, 232. 2 Rogers, 224, note (b). But see the language imputed to Lord Mansfield in R. v. Blissel, Heywood, Counties; language, however, which is not to be found in the report of the case in Douglas, 398 n; and which has never been acted on or seriously supported in argument. R. v. Councillors of Derby, 7 A. & E. 419; R. v. Hiorns, 7 A. & E. 930. 3 Abingdon, 1 Doug. 419 42 P. R. & D. 279; 2d Cheltenham, 1 P. R. & D. 236; but see 2d Horsham, ib. 240. founded on some positive and definite fact, CHAP. IV. existing and established at the time of the polling, so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person." It seems doubtful, however, whether this test is reconcileable with the majority of decisions on the subject. Thus in cases of disqualification by office, and (formerly by insufficient estate), where the evidence of disqualification may be very difficult to ascertain, the electors could scarcely be accused of wilful perverseness in crediting the candidate's own assertion that he is qualified, rather than an unproved notice to the contrary. Yet, in such a case, the notice would be effectual. Nor can its sufficiency be accounted for merely by the doctrine that the electors must be presumed to know the law; for the disqualification may depend on intricate facts, as well as intricate law. It is, therefore, submitted that the true rule in such cases is unconnected with the moral character of the act of disregarding the notice; and that the latter is effectual, if true, and duly given, whenever there is no legal presumption against its truth requiring to be rebutted by evidence. Thus the presumption of innocence was held to warrant the voters in disregarding a notice that a candidate had been guilty of bribery, because he had not then been convicted of it by a competent tribunal. And if the Abingdon case, above adverted to, be sound law, it might, consistently with this view, be supported on the ground that the Returning Officer is, during the election, an officer of competent jurisdiction to decide the question of 1 Cork, K. & O. 391; Belfast, F. & F. 601; Tavistock, 2 P. R. & D. 5. 2 Fife, 1 Lud. 455; Leominster, C. & D. 1; Wakefield, B. & Aust. 270; Frome, 2 P. & D. 58; Clerk, 239. 3 Penryn, C. & D. 55; 1819, the candidate was, however unseated. Ante, p. 90. 4 CHAP. IV. eligibility, so as to raise a legal presumption ́ in favour of his decision until reversed by a higher tribunal. No votes lost at an elec tion by the view. Lost votes for persons known to be No votes can be treated as lost, where a poll has not been taken; perhaps, indeed, in an election by the view, votes can scarcely be said to be given; at any rate, though one of two candidates for a seat may be ineligible, and though due notice may be given beforehand to the electors of his ineligibility, yet if, on his obtaining a show of hands in his favour, his rival retires without going to the poll, the latter cannot afterwards obtain the seat; but the election will simply be a nullity. It would, indeed, be hard in such a such a case to foist upon a constituency a candidate who, whatever hands may have been held up for him by the crowd of non-electors at the nomination, might possibly have failed to obtain the support of a single voter.2 1 9. An elector also is said to lose his vote, where he votes for a person whom he knows, even withineligible by out notice, to be at the time ineligible; e. g., for one whom he, of his personal knowledge, knows to be dead, or an infant.3 The vote, however, must be entered.4 the voter. Votes void or undue influence. 10. Finally, all votes given under corrupt or from corrupt undue influence, or by persons who have bribed, or (being candidates) have treated, at the election, are void, but must, nevertheless, be entered, and be left to be struck out on petition.6 Riot: The course to be pursued, in case of riot or violence during the poll, is the same as when the nomination is disturbed in the like manner.7 1 Frome, 2 P. R. & D. 73; ante, p. 67. 2 Clerk's Pr. Tr. 240. By Lord Eldon, Hawkins v. R., 2 Dowl. 133, Warren, 230. 4 As to England and Wales, 6 Vic. c. 18, s. 86; Scotland, 2 & 3 Will. IV. c. 65, s. 26; Ireland, 13 & 14 Vic. c. 69, s. 89. 5 Post, pp. 108, 129, 131, 134–136. 6 Supra, note 4. 7 Ante, p. 71-73. The poll-books ought to be delivered (sealed, CHAP. IV. and enclosed), on adjournments from this cause, by the poll-clerk to the Deputies, who ought to give a receipt for the poll-books, and to return them in the like condition when the poll is resumed.1 State of poll declared. votes. When the poll has been closed at the end of the period prescribed for its continuance, the Returning Officer, or Under Sheriff, is required to cast up the allowed entries on the poll-books, and proclaim the member, or members, chosen, unconditionally, according to the majority of votes, and irrespectively of any personal knowledge he may have of the ineligibility of the candidates.2 If the votes are equal, in any Equality of English or Scotch Election, he must make proclamation accordingly; but, in Ireland, whether he is, or is not, entitled to vote, and whether he has, or has not, voted, he must, in every case of an equality of votes, give a casting vote, and proclaim the member chosen for whom he so votes.5 In counties of cities, or of towns, it is provided that, if there are two Returning Officers, he whose name stands first in the appointment is to give the casting vote; and, if he be not present, the junior officer must do so instead.6 Declaration The time and modes of going through these of poll, when forms differ according to the locality of the made: constituency. 1 Clerk's Pr. Tr. 49. 2 Heywood, Counties, 353; but see Rogers, 274, where the Sheriff's obligation to disregard anything but the allowed votes is doubted; 1 Bl. Com. 343; Leominster, C & D. 19; Mallow, P. & K. 206; Tiverton, ib. 269; Clerk's Pr. Tr. 53 3 11 & 12 Vic c 98, s 21; Knaresborough (where there was a treble return), 1852. 42 & 3 Will IV. c 65, s. 33 |