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O'Donovan

whether Sir Sydney Waterlow is disqualified from sitting and voting as a member of this house, under the statute 22 Geo. III. C. 45;" and on receiving the report of this committee, which declared him disqualified, a new writ was issued for the county of Dumfries. Thus the very same question which might have been determined, upon petition, by an election judge, was adjudged by the house itself. The house is, in fact, bound to take notice of any legal disabilities affecting its members, and to issue writs in the room of members adjudged to be incapable of sitting. In Case of 1870, O'Donovan Rossa, a convict then in prison, and Rossa. sentenced to penal servitude for life, for felony under the Treason-Felony Act, had been returned as member for the county of Tipperary. The house took action, and ordered the issue of a new writ.

The case of John Mitchel, in 1875, further illustrates the Case of position of the house, in relation to elections, and the legal Mitchel. disqualifications of its members. John Mitchel had been returned for the county of Tipperary without a contest. No question could, therefore, arise as to the election or return, the sole matter for determination being the qualification of the member. It was notorious that he was an escaped convict, and had not completed the term of transportation to which he had been sentenced. The facts of the case were proved; and his legal disqualification was clearly established to the satisfaction of the house. A new writ was accordingly issued; and John Mitchel was again returned. But, on this occasion, there had been a contest; and the house therefore left the merits of the election and return to be determined under the Election Petitions Act. Mr. Moore, the other candidate, having given due notice of the disqualification, proved his claim to the seat, and the return was amended accordingly. On the 28th February, 1882, the house resolved that Michael Davitt, having been adjudged guilty of felony, and sentenced to penal servitude for fifteen years, 1 124 C. J. 12. 43. 82. 88.

John

* Under 9 Geo. IV. c. 32, s. 3; 9

Geo. IV. o. 54, s. 33. 3 125 C. J. 27; 199 H. D. 3 s. 122; 5 130 C. J. 49. 52, 239; 222 H. D. and see supra, p. 34, n. 3.

3 s. 493.

? 94 ib. 48: 103 ib. 102.

XXIII.

and being then imprisoned under such sentence, was in- Chapter
capable of being elected or returned as a member. A
similar resolution was agreed to on the 20th August, 1895,
in the case of John Daly, who had been adjudged guilty of
felony and sentenced to penal servitude for life ; while on
the 2nd March, 1903, a new writ was ordered for the city
of Galway in the room of Arthur Alfred Lynch, who had
been adjudged guilty of high treason. In such cases as
these, the jurisdiction and duty of the house cannot be
questioned, as the incapacity of a felon is expressly declared
by statute.: A petition relating to an election, but not
questioning the return of the sitting member, may properly

be received.4 Proceed- Where it has been determined that the sitting member Error in ings of house upon was not duly elected, and that some other candidate was an tion of elec.

duly elected, and ought to have been returned, the Clerk of see p. 639. tion trials. the Crown is ordered to attend, and amend the return, by

substituting the name of the duly elected candidate for the
name of the other candidate. In the case of a double Double
return, the Clerk of the Crown is ordered to attend and p. 652.
amend the return, by rasing out the name of one of the
parties, and what relates to him in the return.? When the
election is void, a new writ is ordered, unless the house
shall think fit to suspend its issue. In the case of the
Wigton election, 1874, the judge reported that the Right

return

nited

determi

a return, see

1 137 C. J. 77.
· 150 ib. 353 ; 158 ib. 40.

3 33 & 34 Vict. c. 23, s. 2. See 266 H. D. 3 s. 1842, and especially the speech of the attorney-general.

* 194 ib. 1185.

• No notice can be taken of a determination until reported to the house. On the 27th April, 1866, Mr. Mills, member for Northallerton, had been declared not duly elected; but no report had been made to the house, and the division on the second reading of the Reform Bill was expected the same evening. As every vote was important, the question was canvassed whether Mr. Mills

could vote. It was admitted that
his vote could not be disallowed :
but on taking counsel with his
friends, he very properly desisted
from voting.Mr. Speaker Denison's
Diary, p. 192.

6 Tipperary Election, 27th March,
1875, 130 C. J. 236; Evesham Elec-
tion, 1881, 136 ib. 5, &c.

? 97 ib. 203; 124 ib. 173; Montgomery Election, 1848, 103 ib. 218; Dumbartonshire Election, 1866, 121 ib. 156; South Northumberland Election, 1878, 133 ib. 333; Saint Andrew's District of Burghs Election, 1885, 141 ib. 46.

orts,

hand

note

Chapter Hon. John Young was duly elected: but it appearing that
XXIII.

since his election he had been appointed a judge of the
Court of Session, in Scotland, a new writ was issued.

Where there have been special reports concerning bribery,: Special
or riots at elections ; 8 the conduct of returning officers ; 4
undue influence, and spiritual intimidation ; 5 the altera-
tion of the poll ; 6 the absence, misconduct, or perjury of
witnesses ;? defects or uncertainty in the law ; 8 the pro-
priety of suspending the writ; 9 or any other exceptional
circumstances ; 10—the house has taken such measures as

were required by law or usage, or as appeared suitable to The shortthe occasion. It has been usual, in such cases, to order a writer's copy of the judgment delivered by the judge, and the

si see, minutes of evidence, to be laid before the house. p. 655, n. 2. The penalties inflicted for corrupt practices at elections Penalties

for corrupt may have the following effect upon the composition of the practices. House of Commons. “A person may, at an election, be disqualified for being elected by reason of corrupt practices committed at an election previous thereto. So also a person not disqualified before an election may, during the election, become disqualified by reason of corrupt practices being committed at such election: but the latter disqualification can only arise ex post facto upon an investigation into such election. This disqualification always existed at common law," and the statutory provisions to which reference will be made are“ intended only to give fuller effect to the common law of Parliament."]1 Under sec. 4 of the Corrupt and Illegal

Practices Prevention Act, 1883, a candidate for parliaReports mentary election who is reported by an election court as from election courts personally guilty of corrupt practices, is incapacitated, to the Speaker, see p. 655. 1 129 O. J. 187. 195.

o 114 ib. 330. 350 ; 115 ib, 167. : Peterborough, 1853, 108 ib. 826. 115 ib. 94. 167, &c.

3 Drogheda petition, 1857, 112 ib. 893 ib. 275; 97 ib. 198; 98 ib. 383; Limerick city petition, 1859, 133; 103 ib. 511. 965. 114 ib. 338.

9 Beverley case, 1859, 114 ib 359. * Helston Election, 1866, 121 ib. 20 112 ib. 292, 295. 369, 385: 114 436.

ib. 369; 121 ib. 288. s Mayo petition, 1857, 112 ib. 307; 11 Rogers on Elections, part ii. Galway County Election, 1872, 127 17th ed. (revised 1900), p. 32. ib. 258.

Extensive corrupt practices.

during seven years from the date of the report, from being Chapter
elected for any constituency, and for ever from sitting for
the constituency where the corrupt practice took place.
Under sec. 5, a candidate who is reported as guilty by his
agent is incapacitated, during seven years from the date of
the report, from being elected for the constituency where
the corrupt practice took place. Under secs. 6 and 38, any
person who is convicted on indictment, or who is reported
by an election court, or by election commissioners to have
been guilty of a corrupt practice, is incapacitated for being
elected to any constituency, during seven years from the
date of the conviction, if convicted, or, if reported, from the
date of the election. These incapacities are imposed in
addition to the election being avoided.

By the Corrupt Practices Act, 1863, election committees
were required to report whether corrupt practices had
extensively prevailed, and consequent provision was made
for the institution of prosecutions by the attorney-general.
This duty is now laid upon the public prosecutor by sec. 45
of the Corrupt and Illegal Practices Act, 1883, who, when
informed that corrupt or illegal practices have prevailed in
any election, shall, subject to the regulations under the
Prosecution of Offences Act, 1879, make such inquiries and
institute such prosecutions as the circumstances of the case
appear to him to require ; and thus the intervention of the
house, in such cases, is rendered unnecessary by the direct
operation of the law.

When general and notorious bribery and corruption have been proved to prevail in parliamentary boroughs, the house has suspended the issue of writs, with a view to further

Writs suspended.

i Rogers on Elections, part ii. 17th ed. (revised 1900), p. 33. For the proofs of agency in election inquiries and its results, see ib. pp. 152. 360.

2 Liverpool, 1831, 86 O. J. 458. 493; Warwick, 1833, 88 ib. 611; 89 ib. 9. 579; Carrickfergus, 1833, 88 ib. 531. 599; Hertford, 1833, ib. 578. 649. In the three last cases, the writs were suspended until the dis.

solution in Dec. 1834. Meanwhile bills of disfranchisement, or for preventing bribery in these boroughs, were pending. Stafford, 1835; writ suspended until 1837, until there was no prospect of passing a disfranchisement bill; see debate, 13th Feb, 1837, on issue of writ, 90 ib. 262; 91 ib. 792. Sudbury; writ suspended from 14th April, 1842, till 1st Aug. 1843, 97 ib. 188. 467, &c.;

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Chapter inquiry, and proceedings for the ultimate disfranchisement 1. of the corrupt constituencies by Act of Parliament. An effectual mode of investigating corrupt practices at Commis.

o sions of elections was also established by 15 & 16 Vict. c. 57, ingu which provided for the appointment of a royal commission of inquiry, upon a joint address of both houses of Parliament, or in consequence of a report from the election judges.2 Addresses were agreed to in the cases of Canterbury, Cambridge, Maldon, Barnstaple, Kingston-upon-Hull, and Tynemouth, in 1853; Galway, in 1857; Gloucester and Wakefield, in 1859 ; Lancaster, Great Yarmouth, Reigate, and Totnes, in 1866 ; Beverley, Bridgwater, Cashel, Sligo, Dublin, and Norwich, in 1869; Norwich and Boston, in 1874 ; Boston, Canterbury, Chester, Gloucester, Knares. borough, Macclesfield, Oxford, and Sandwich, in 1880; and Worcester, in 1906; and in 1869, commissioners were appointed, by statute, to inquire into corrupt practices reported, by an election judge, to have been committed by the freemen of Dublin.

In pursuance of the reports of election commissioners, Bills by the Reform Act of 1867, the four corrupt boroughs of reports of

founded on Lancaster, Great Yarmouth, Reigate, and Totnes were commis

es.

sioners.

Disfranchisement Act, 7 & 8 Vict.c. 53. Ipswich, 1842; writ suspended from 25th April until 1st Aug. 1842, 97 C. J. 221. 554. Yarmouth, 1848; writ suspended from 14th Feb. until 30th June, 103 ib. 213; freemen disfranchised by 11 & 12 Vict. c. 24. Harwich, 1848, 103 ib. 330. 702. In 1851, an Act was passed for inquiring into bribery at St. Albans, 14 & 15 Vict. c. 106; and the borough was disfranchised by 15 & 16 Vict. c. 9. Barnstaple; writ suspended from 22nd April, 1853, until 11th Aug 1854. Cambridge; writ suspended from 3rd March, 1853, until 11th Aug. 1854. Canterbury; writ sus. pended from 22nd Feb. 1853, until 11th Aug. 1854. Wakefield and Gloucester; writs suspended from July, 1859, until 20th Feb. 1862. See 156 H. D. 3 s. 771; 157 ib. 1637;

161 ib. 247; 163 ib. 1070, &c. Norwich; writ suspended in 1875, 130 C. J. 247; Act passed in 1876, forbidding any election during the Parliament, 39 & 40 Vict. c. 72. Wigan Election, 1880; writ suspended until Nov. 1881. On several other occasions, writs have been suspended for shorter periods until the printing of evidence; e.g. Nottingham, 1843 ; Harwich, 1848; and Clitheroe, 1853.

Copies of disfranchisement bills are served upon the returning officer before the second reading, 99 C. J. 443 ; 103 ib. 366. Lancaster, Great Yarmouth, Reigate, and Totnes, 1866; Bridgwater and Beverley, Sligo and Cashel, 1870; Norwich and Boston, 1876, 131 ib. 325.

: See Rogers on Elections, part ii. 17th ed. (revised 1900), p. 251.

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