In one case, the house of commons resolved, that the candidate having refused to take the oaths as directed by the statute of Anne, though duly required so to do,

Sect. 3.

and not having at any time before the meeting of parlia- Heyw. Co. ment, taken the said oath, his election is thereby void.

368.

After the candidate has refused to take the oath, the notoriety of such refusal may probably operate as sufficient notice to the electors of his disqualification; and consequently the votes given for him be thrown away, and the candidate next upon the poll be declared duly elected by the committee. But the SHERIFF could not, without danger to himself, reject the votes of those electors who chuse to poll for him; or refuse to return Ibid. him in case he has the majority.

[61] 9 An. c. 5.

s. 2.

Except Peers' sons members for

and the

the universities and

for Scot

land.

33 G. 2.

This act, however, excepts the eldest son and heir apparent of a peer, or a person qualified to be a knight of the shire, and the burgesses chosen for the two universities; and the members for Scotland, who are not required *to produce such qualification; and by a subsequent act of parliament, every person, chosen to serve as a member of parliament, must swear to his qualification, according to the terms prescribed in the latter act, before he sits at a debate of the house, or votes, and shall give in a roll or schedule containing the particulars of his qualification, of what the same consists and where situate, or his election shall be declared void, and a new writ shall issue. swearing, Besides these statutes, there is a resolution of the house required. of commons of the year 1713, which was made a standing

With respect to a qualification to sit for the universities, it has been contended, that their members should be chosen from amongst their own body, upon the ground that the language of their respective charters, conferring upon them the right of representation, directs them to send burgesses, de seipsis, and that in consequence of the terms of their privilege being so qualified in the grant, they are thus restricted in their choice. The proposition is unsupported by any decision, and the case of the university of Dublin, 1803, strongly militates in favour of a contrary doctrine, Roe, p. 83, 84. p. 103, 104. 1 Peck. 19, 22, 48.

F

c. 20.

Giving in qualification and

thoughao

18 Journ. 629.

Sect. 3.

tion, a rental to be given in.

order on the 21st of November, 1717 (now in force,) that if the qualification of a person returned was expressly objected to by a petitioner against the election, he shall, On objec- within fifteen days after, give in a rental to the clerk of the house of commons; and the petitioner shall do the same,* if the sitting member questions his qualifications, and if the sitting member does not give in his qualification, his Colchester election is void. The sitting member's election was declared void in the Colchester case for not complying with this order; and the statement in the petition, that the sitting member was a bankrupt, and had no estate and effects at the time of election, was held an express objection to the qualification, within the meaning of the standing order, and bound the party to have given in a rental.† [62] And the same resolution and order is held to extend to cases where the electors only petition.

Ca. Lud. 416.

At the last election for Rochester, lord Binning having been returned, gave in his qualification, as the eldest son

* But where the petitioner was abroad at the time of election, and of the hearing the petition, the committee held it no objection that his qualification, though duly demanded by the sitting member, was not given in. Sim. p. 50. Colchester case. Roe, p. 55. 3 Lud. 167.

+ The counsel against Mr. Potter, stated, "that he had been a bankrupt, that he had at that time no freehold estate whatsoever, and that from his estate and effects, only 2s. 6d. in the pound had been paid to his creditors," &c. Colchester case, 1 Lud. p. 415.

The counsel for the petitioners did not insist upon the supposed disqualifi. cation by Mr. Potter's bankruptcy; probably they were aware of the fact, which was offered to be proved by the other side, viz. that he had obtained a certificate from his creditors, before the time of the election.

The committee resolved, that Christopher Potter, Esq. had not complied with ths standing order of the house, of the 1st of November, 1717, which requires "every person whose qualification is objected to within fifteen days after the petition read, to deliver in to the clerk of the house of commons, a paper signed by himself, containing a rental or particular of the land, &c. whereby he makes out his qualification." Determined also, "That the last election of members, &c. for the borough of Colchester, so far as relates to Christopher Potter, Esq. is a void election; see this case in 1 Luds, with several orders and resolutions of the house therein stated."

of a Scotch peer; major Torrens, the other candidate, petitioned, conceiving this not a sufficient qualification; and having taken the advice of council most eminent on subjects relating to election law, and received from them a favourable opinion, as a new point, yet undetermined; the case was heard before the committee appointed by the house, in March, 1819, and they declared the sitting member to be duly elected, thereby establishing the precedent, that the eldest sons of Scotch peers are qualified.

Sect. 3.

94.98.

see Roe,

86, 87.

Nottingham case,

1 Peck. 77.

A person may become a candidate at any time during 15 Journ. the election; but if there be no opposition candidates proposed within a reasonable time, the returning officer must return those who offer themselves, or he will incur the censure of the house. It seems from the Westminster 1805. case, that if the sheriff attend at the proper place, in proper time to take the poll, and no electors come forward within a reasonable time, he may after such interval, 280. treat the demand of the poll as a nullity, and make the return forthwith.

26th June,

1661.

8 Journ.

though proposed after election be

In the Bristol case, the election was held on the 7th of Eligible October, and Mr. Burke first named a candidate on the 8th of October; the committee on petition, resolved that Mr. Burke was eligible.

gan.

1 Doug. 244. 258.

In the case of Wathen v. Sandys and Lord Berkeley, Appendix, Mr. Justice Lawrence held that candidates were liable P. lx. to pay the expences of the sheriff in retaining an assessor, and all other necessary expences incurred at the election. And in the two cases of Morris v. Burdett, lord Appendix, Ellenborough held that a person would be liable to pay his share of the necessary expences of an election, if he did any act, whereby he made himself a candidate; these decisions of his lordship were afterwards by the court of king's bench held to be the law.

Sect. 3.

Jury must decide the question whether candidate or not.

Need not be nominated. 3 Luds. 19 argu.

[ *63 ]

1 Peck. 83.

By Lord

In an action for the expences of an election, it is a question for the jury, whether the party ever adopted the character of candidate.*

Every elector may vote for whom he pleases to be his representative, whether he be a candidate or not.

* In one or two cases, it has become a question,What sort of nomination makes a person a candidate? It was said in the case of Nottingham, 18c2-3, "as to the time when a candidate may be proposed; there are no authorities to say that he may not be proposed at any time before the return is made." This was not contradicted.

Candidate is a vague term: no certain idea is fixed Manshield, by law to it. Surely asking a vote for a man is enough to make him a candidate. †

Combe v.

Pitt, 4 Bar.

1590.

18 March. 1786.

Sim. p. 52.

In the Bristol case, objection was taken, that the qualification of Mr. Cruger, who was elected, was executed during the poll; but the objection was over-ruled. The earliest period at which the statute of 9 Anne requires the party chosen to be duly qualified, is at the election; but there being no election till the poll is finished, the decision seems clearly right, so far as depends upon the time.

However the qualification itself is now, or may be, in a great measure, evaded; for in the same case, though the conveyance was made during the poll to a trustee (Cruger himself being in America at the time) in consi

The two cases of Morris v. Sir F. Burdett, and Wathen v. Sandys and Berkeley, being frequently referred to, are stated at some length in the Appendix.

In the case of Sir W. Lewis in 1804, it was resolved by the committee, that a person is by no means protected from arrest in consequence of his being a candidate. Nor does the arrest of such person in any way affect the election of his opponents. 2 Peck, 268.

deration of 10,000 7. not a farthing of which was paid at or after the time of conveyance, but was secured only by a subsequent mortgage of the estate pretended to be sold, and though it appeared to have been the same estate formerly conveyed to Mr. Cruger to give him a qualification on a former election, yet the committee must, by confirming the election, have determined this a sufficient qualification.

* All persons, free from disqualification, are eligible against their inclination; and, after their election, cannot renounce their return, but must serve in the trust conferred upon them, it being a trust not for their own, but for the public benefit, and for the same reason it is, that the king cannot grant to a subject an exemption from serving as representative of the people.

Sect. 4.

[64] Sir Humphry Hook's case.

vid. 1 Doug. 281.

Glanv. 101.

4 Inst. 49.

sion. 4 Inst.

p. 31. Ruff.

In the infant state of representation indeed, patents of Sim. 53. Prynne's exemption were sometimes granted, as well to individuals veranimadveras to boroughs. The effects of the latter still operate on many places; it is our happiness, however, no longer to consider such grant as the release of an obligation, but as the privation of a right.

SECT. 4. Of undue Interference at Elections.

after reciting,

THE stat. 1. W. & M. sess. 2. c. 2. s. 1. as one of the grounds of the abdication of James," the "violating the freedom of election of members to serve "in parliament," declares" that elections of members "of parliament ought to be free," this heing one of the undoubted rights and liberties therein claimed and recognized.

The freedom of election thus solemnly confirmed, the law will not suffer to be endangered either by seduction

There is no other way of avoiding the seat, but not taking the oaths, or neglecting to give in a qualification, pursuant to the statute of G. 2. unless by getting some office, which vacates the seat.

. Pref. to

stat.