house, or of the land, but of an incorporeal hereditament, Sect. 4. viz. of a fee farm rent, or freehold arising from or out of such house or land. Before any decision upon this question be given by a committee, probably no lawyer would say that such votes were strictly admissible. But it is a principle with committees, as has been before observed, always to lean in favour of the voter, in cases of doubt. It would therefore seem somewhat uncertain, how a committee of the house of commons might decide upon this question, and whether they might or might not consider, that the possessor of a freehold issuing out of an ancient dwelling-house, &c. was thereby sufficiently pos- [335] sessed of a freehold of, or in such house, &c. so as to enable him to give a vote. This perhaps may be urged as rather straining a point, and putting it stronger than the cases will justify. In all cases, however, where a parson, a curate, a schoolmaster, or a parish clerk, may vote in right of their freeholds, it is fair to presume that such purchasers' votes would also be admitted, aliter non.

Lastly, where by charter or otherwise, the right of election is in certain specified persons, as for instance, in the freemen, &c. or in the mayor and corporation, &c. (vide Appendix, rights determined, No. xlix.) that persons claiming to vote in right of such property, could not there be admitted, seems too clear to raise any question upon it.

The owner of property cannot directly purchase his own land-tax, nor is there any thing in the above acts to shew, that persons who have redeemed their land-tax are thereby entitled to vote; although, if the owners have neglected to redeem their land-tax, the purchase of it by a stranger to a sufficient amount would give him that right. The contracts for the redeeming and for the purchasing of land-tax are very different, one is made out

a charge on the estate, and the other declares the nd-tax purchased to be a fee-farm rent.

A A

Sect. 4.

Appendix, p. clxxxi.

pressly give the right to vote in counties, and they do not either directly or indirectly, take away the right of voting in cities and boroughs, which the established law of the land has given to freeholders. On the contrary, the preamble to the stat. 42 G. 3. declares the purpose of the act (amongst other things) to be for removing doubts respecting the rights of persons claiming to vote at elections for knights of the shire, and other members, to serve in parliament, in respect of messuages, lands, &c. the land-tax upon which shall have been redeemed or purchased. And the 51 G. 3. declares, that in order to entitle any person to vote at an election, it shall not be necessary that the contract, &c. shall be registered.

The title of persons to vote in boroughs, as being the possessors of freeholds arising from the purchase of unredeemed land-tax, may be considered under three distinct heads; first, where such title would be clear; secondly, where it would be doubtful; and lastly, where it would be evidently bad.

And 1st. In those boroughs where the right of election is in persons seised of freeholds within such boroughs, (for which see Appendix, under the rights determined, No. xlix.) it seems perfectly clear that the purchaser of a land tax, charged upon such freehold within the borough, is also seised of a freehold within the borough, and is therefore entitled to vote. No reasonable doubt

can be entertained in such a case.

But 2dly. In boroughs where the right of freeholders to vote, is restricted to some particular and defined species of freeholder, as for instance, "to the freeholders of ancient lands or dwelling-houses within the borough," (for which also see Appendix, No. xlix.) it would seem doubtful, whether the purchaser of a land-tax charged on such property, would gain a right to vote; such purchaser becoming thereby not strictly the freeholder of the

house, or of the land, but of an incorporeal hereditament, Sect. 4. viz. of a fee farm rent, or freehold arising from or out of such house or land. Before any decision upon this question be given by a committee, probably no lawyer would say that such votes were strictly admissible. But it is a principle with committees, as has been before observed, always to lean in favour of the voter, in cases of doubt. It would therefore seem somewhat uncertain, how a committee of the house of commons might decide upon this question, and whether they might or might not consider, that the possessor of a freehold issuing out of an ancient dwelling-house, &c. was thereby sufficiently possessed of a freehold of, or in such house, &c. so as to enable him to give a vote. This perhaps may be urged as rather straining a point, and putting it stronger than the cases will justify. In all cases, however, where a parson, a curate, a schoolmaster, or a parish clerk, may vote in right of their freeholds, it is fair to presume that such purchasers' votes would also be admitted, aliter non.

Lastly, where by charter or otherwise, the right of election is in certain specified persons, as for instance, in the freemen, &c. or in the mayor and corporation, &c. (vide Appendix, rights determined, No. xlix.) that persons claiming to vote in right of such property, could not there be admitted, seems too clear to raise any question upon it.

The owner of property cannot directly purchase his own land-tax, nor is there any thing in the above acts to shew, that persons who have redeemed their land-tax are thereby entitled to vote; although, if the owners have neglected to redeem their land-tax, the purchase of it by a stranger to a sufficient amount would give him that right. The contracts for the redeeming and for the purchasing of land-tax are very different, one is made out as a charge on the estate, and the other declares the land-tax purchased to be a fee-farm rent.

A A

[335]

53.60.

22 Jour.819

Sim. 186. et

seq.

Ante p. 54.

60. 170.

Kirkcud

bright ca.

Feb. 1782.

CHAP. V.

HOW THE ELECTION MAY BE AVOIDED OF BRIBERY,

TREATING, &c.

20 Jour. p. IF the election is made of a person or persons ineligible, such election is void either in toto, or of one only, according as the ineligibility applies to all, or one only. Where that ineligibility is clear, and pointed out to the electors at the poll, it has been held that the votes given to such ineligible candidate, after notice, are thrown away, and a competitor, though chosen by the smaller number of electors, has, in such case, been held duly elected. But such ineligibility ought to be clear, and grounded upon some known and settled rule of law. For it would be hard to say, that the electors, who might probably act upon their real sentiments, have thrown away their votes, because by a determination ex post facto, upon a matter not before settled, it should appear they had formed a 1Doug.417. wrong opinion. It was upon this ground, probably, that, in the Abingdon case, though the person returned was held ineligible, as being sheriff of the county wherein Cowp. 530. the borough lay for which he was returned; yet the Rex v. Mon committee only declared the election void, but did not day, Taylor v. Mayor of determine the other candidate duly elected. The same doctrine holds at law in the election to offices, in which, 3 Lud. 324. after notice of the ineligibility of any particular candidate, the votes given to him are held to be thrown away.

Bath, 15

G. 2. vid.

258. 264.

So also, if the right of election has been mistaken, though there be no competitor, if the electors petition against the election, it may be avoided.

If the original writ, which is the foundation of election, has issued improperly, every thing done under it, is void.

8 Jour. 271, Thus, where the writ for a second election issued, before the former election was avoided, the subsequent avoidance of the first election was held not to cure the defect;

439.

but the second election was declared void. So where the gJour. 354. writ has miscarried, or has been improperly detained, or 8 Jour. 106. due notice has not been given of the election, or where 9 Jour. 30%, the poll has not been duly taken, or the proper and legal 9 Jour. 439. officer does not execute the writ, the election has been avoided. So where illegal commissions have issued to 24 Jour.104 the delegates in Scotland, the elections made under them were held ineffectual.

5 W. & M.

c. 20.

These decisions have been briefly adverted to, merely Ante, p. 25. to shew with what jealousy the house always watched over the freedom of election; for the time, the place, and the mode of election, as we have before seen, having been for the most part settled, by various acts of parliament, any variation from them would, of course, invalidate the election. Nothing can more strongly shew the anxiety of the legislature to preserve the freedom of election, than forbidding under penalties, even the solicitation of votes, by any person employed in managing any part of the excise or customs. There is a resolution also, of the house of commons, that it is a high infringement of the liberties and privileges of the commons of Great Britain, for any Ante, p. 64, lord of parliament, or any lord lieutenant of a county, 1701-2. to concern themselves in the elections of members to serve for the commons in parliament.* As it is almost impossible that an act of parliament should enumerate every particular regulation for preserving the spirit of the law entire, and enforcing the execution of it, such matters must stand upon the common principles of reason and justice.

12&13W.3.

c. 10.

248.

14 Jour.25.

From these, therefore, we learn, that the poll should be Riots. peaceably conducted, that the voters and returning officer Glanv. 143. should not be intimidated; and if there be riots, it will be 20 Jour. 60. a good ground to avoid the election, and the principal Ante, 125.

*They are also excluded from voting by a resolution of the house, made at the commencement of every session, viz. "That no peer of this realm hath any right to give his vote in the election of any member to serve in parliament." Vid, ante, 65, Orme, 2d ed. p. 109.