That the right of election, as set forth in the said statement, is not the right of election for the said city of Rochester.

That upon the statement delivered in by the counsel for the petitioners, the said committee have determined,

That the right of election, as set forth in the said statement, is the right of election for the said city of Rochester, so far as the said right is therein described.

That the said committee having duly considered the said statements, and the evidence adduced before them, touching the right of election for the said city of Rochester, have determined,

That the right of voting of members to serve in parliament for Rochester, is in all freemen not receiving alms or charity.

That the said committee have also determined, that James Barnett, Esq. is duly elected a citizen to serve in the present parliament for the said city of Rochester.

And also, That the said committee have determined, that the said petition did not appear to the said committee to be frivolous or vexatious.

And the said determinations were ordered to be entered in the journals of the house.

*

At the general election, 1812, Sir T. B. Thompson was elected member, but having vacated his seat by accepting of an office under government, (vid. ante, p. 49, note,) Mr. Barnett became again a candidate, and was returned by a majority of two voices. Some of the voters in the interest of Sir T. B. T. petitioned against the return, and the following is the substance of the trial of that petition before the committee.

Rochester Petition, First Day, 22nd February, 1817.

The petition contained several charges both against the returning officer, and the sitting member, all of which were given up by the petitioners before it came on to be heard before the committee, except the last; viz. that the returning officer had acted contrary to his duty in closing the poll before he ought, by reason whereof several freemen intending to vote for Sir T. B. Thompson, the other candidate, were excluded from their rights of voting. The petitioners were freemen, electors of Rochester, who had voted at the election. Sir T. B. Thompson did not petition, nor did any person, who had not exercised his franchise; the counsel for the petitioners admitted the right of voting to be in the freemen.

sufficient

They also admitted, that the petitioners did not mean Closing the to charge the mayor with corrupt partiality; that the poll without only charge which the committee would have to consider, notice. was that of closing the poll without sufficient previous notice. That voters were on their road to vote for Sir T. B. Thompson, of which the mayor had notice, and and that the election was consequently void.

It was also admitted by Mr. Warren, as counsel for the petitioners, that the returning officer was not bound to keep it open for the whole 15 days; and that to justify him in delaying to close the poll when applied to for that purpose, there must be a well founded expectation, that there are such a sufficient number of voters coming in, as will create a majority*, and within such a reasonable time as the returning officer ought to allow. That if the candidate having the minority, protest against closing the poll, and it appear that if all the remaining electors unpolled, should come up and poll for such candidate, they

* Mr. Warren again recognised the principle of law, as laid down here, in the Brisol case, 1819.

could not turn the election in his favour, then the returning officer would not be justified in keeping open the poll for them; particularly where sufficient notice had been given, and time allowed for them to come in if they chose to have exercised their franchise.

It appeared in evidence, that the proclamation of the election had been made on the 15th, and that the election had commenced on Thursday, the 20th; that the poll had closed at 5 o'clock on the Thursday following; during which time, 814 persons had polled; viz.

408

For the sitting member, Mr. Barnett And for the other candidate, Sir T. B. Thompson 406 That this had been the longest contest ever remembered at Rochester, except at the election of Sir Sidney Smith, when the numbers polled were That there were unpolled at that time

- 780

110

That it appeared from the books of the corporation, that the number of freemen electors at the last election at Rochester was Of which there had polled

- 978

- 814

Remaining unpolled

164

Of the number remaining unpolled 61 were disqualified.

Resident in Rochester unpolled

9 residents,

The poll was put in by Mr. John Praul, the town

clerk, who proved that on Tuesday, the 25th, only 15 persons polled, and on Wednesday, only 8 persons polled. That on the morning of Wednesday, before going to the poll, the mayor had consulted him on the propriety of closing the poll, and that by his advice, he had come to the determination of closing the poll at 5 o'clck on the following day, viz. Thursday, and had intended to declare such to be his intention at the poll of Wednesday. That on the Wednesday, soon after the poll was opened and before any person had polled, the mayor was applied to by one of the freemen to close the poll; whereupon the mayor said he had decided on closing the poll, and only waited for a communication with the parties, which he hoped to have had before, as he thought sufficient time had been allowed for all the voters to come in. Sir T. B. Thompson protested against the mayor closing the poll, or declaring when he had decided to close it, and begged the mayor, if he had determined to declare the time, not to name that time till the following day. That the mayor, at the earnest request and solicitation of Sir T. B. Thompson, consented not to declare the time he had fixed for closing the poll till the following morning, saying, that he had consulted the town clerk, who was the law officer of the corporation, and he had advised him he was right, and that the course to be pursued was too clear to be misunderstood; that he had sent to London for an assessor to decide on some queried votes, and if the assessor arrived before the following morning, and his advice was adverse to the determination, he would abide by that advice.

Mr. Lewis, agent for Sir T. B. Thompson, proved that on the Wednesday, Sir T. B. T. had declared to the mayor, that though he had no wish unnecessarily to keep open the poll, he had some voters on the road, and till they arrived, he should protest against closing the poll, but Mr. L. admitted that Sir T. B. T. appeared satisfied when the mayor had consented to defer declaring his determination till the morning of the next day. This wit

ness and another proved that they had offered to give lists to the mayor, of the names of the voters they expected for Sir T. B. T. though as one of them was ill, they could not say certainly when they would arrive.

It was contradicted on the other side, that any list of the names of the electors who were said to be on the road, was offered to the mayor; there was also some conflicting testimony as to what the mayor had said on the Wednesday, viz. whether he had consented to defer declaring the time he had fixed for closing the poll till the next morning, or whether he had consented to defer declaring the time to be fixed, till the next morning.

It was also proved by Mr. Lewis and others, that on the morning of the last day, soon after the poll was opened, the mayor said that he was about to declare the time he had fixed the day before, and which he was then prevented from declaring at the request of Sir T. B. T.; that he had considered the subject of closing the poll, and as he conceived there had been sufficient time to give every elector an opportunity of voting, he should close the poll at five o'clock on that day. Sir T. B. T. again protested against the poll being closed, on which the mayor said he had been disappointed in not seeing the assessor before that time, but should he arrive in time, he would still alter his determination, if on consulting with him, (the assessor) it appeared that he had come to a wrong determination; "but," said he, "I have consulted the town clerk, and he says I am perfectly correct, and considering the state of the poll yesterday, I think I am right, and it is just."

It was proved that the person who had been sent, for a barrister, as assessor, did return about one o'clock, not being able to get the assistance of the gentleman applied to, and had therefore brought with him a solicitor whom the mayor did not expect, but who was, as was admitted by both sides, a gentleman of very high reputation and