Seaford, 1785. Argument for the fitting members. Election not void. res integra, it might reasonably have been argued, that when a lawgiver speaks, it is to command; not to give useful counfel, which may or may not be followed. It will be contended, that thefe provifions are directory; but negative words have never been held directory: "they fhall not" never can imply advice. A direction, is to do something: this is a command to abftain. The most moderate punishment is, that they who have done what is illegal, fhall be held to have done nothing: that is, that their acts fhall be void. The ft. 42 G. 3. extends the penalties and forfeitures of the ft. 34 G. 3. to the cafes comprised in the latter act: but there are no penalties or forfeitures mentioned in the 34 G. 3. The legiflature therefore, could only have contemplated the avoidance of the election as the confequence of difobedience. The cafe of Seaford, 1785, 3 Lud. 3. is an authority strongly in point to the prefent. It was there afferted by the petitioners, that four days' notice had not been given of the election, as required by ft. 7 & 8 W. 3. c. 25. and that the election was therefore void. There was no pretence to allege that any inconvenience had enfued; for the petitioning candidate had agreed to the day appointed; and the petitioning elector had voted. It was even offered to be proved, that every elector of the borough had voted, except two friends of the fitting members. In that cafe the flatute is not drawn up in negative words: and befides, there is a specific penalty of 500l. inflicted on the returning officer, if he difobeys it. It was contended to be directory: but the committee decided the election to be void, becaufe the courfe prefcribed by the law had been deviated from. The counfel for the fitting members argued thus ; The objection insisted upon by the petitioners, as a cause for avoiding the election, is merely formal; namely, that the oath against bribery has been adminiftered by one officer inftead of another. It is not pretended that any inconve nience enfred; much lefs that the particular inconvenience But fee the cafe of Orkney and Colchester, in the Appendix to this Volume. against which these statutes meant to provide, namely delay, was occafioned. It is clear that the 34 G. 3. c. 73. does not comprehend the oath against bribery; and there seems a good reafon why that oath fhould only be administered, at the very time and place of polling; which is, that a voter might take his oath before the commiffioners, and receive his bribe afterwards, and before he polled. However, probably by an overfight, it is comprised within the general terms of the ft. 42 G. 3. c. 62. It is faid that this irregularity avoids the election. If it had been fo intended, it would have been fo expreffed but it is clear that the fole aim of the legislature was, to shorten the election, and to prevent delays. It cannot be denied that the oath was effectually taken before the returning officer, nor that the voter would be fubject to the penalties of perjury if he fwore falfely, nothwithstanding the provifions of the fubfequent ftatutes. If fo, the mistake of the returning officer, in a matter of regulation, attended by no inconvenience, will not be thought by the committee to deserve such serious confequences as the avoidance of the election. Neither is the law left without force, although the election be not avoided; for, exclufively of the penal and coercive powers which the Houfe of Commons poffefs over their own officers, every law which commands, or forbids, infers a misdemeanor in the breach of it. It is faid that there is no inftance of the negative provifions of a statute being held directory: but the law of elections affords a very Directory ftriking example in the act of 1 H. 5. c. 1. concerning the refi- ftat. in nedence of perfons elected : which, though in negative words, is held by Sir E. Coke to be directory, and not conclufory. The cafe of Seaford that has been cited, involved a question, not of mere form, but of extreme importance. That a certain notice fhould be given to the electors is highly neceffary; and to have relaxed, in the fmallest degree, the ftrict rule prescribed by the law, would have been to open a door to frauds and evil practices of all kinds, ■ Cafe of Dublin, an'e, p. 35. 45 gative words. The quefThe decifion of this question was prevented, by one of tion difpofed the committee obferving that the fecond requifition to the returning officer was, not to appoint commiffioners, but of. Incidental points. Statements under ft. 28 G. 3. in, where the right to to give all oaths according to law." Therefore, there having never been any formal demand of commiffioners under the ft. 42 G. 3. the authority of the returning officer to administer the bribery oath was not, nor could have been legally delegated from him. On the 5th of May 1803, the chairman reported that the fitting members were duly elected, and that "the bailiffs of the borough of Taunton appointed at a court leet held an nually in and for the faid borough, are the legal returning officer of the faid borough." The incidental points in this cafe, were the following: By ft. 28 G. 3. c. 52. f. 25. when the merits of the petition appear to the committee wholly, or in part, to depend may be given upon a question respecting "the right of chufing, nomi, nating or appointing the returning officer or returning of make the re- ficers," the parties may be required to give in statements of turns is dif- the right "of chufing, nominating, or appointing returning puted; officers, for which they refpectively contend," It was fubmitted by the counfel for the fitting members, that this was not a cafe in which a statement could be required under the act; because there was no difpute as to the right of appointing or chufing the returning officer, the only question being, to what office the right to make the returns belonged? But the committee were of opinion that this cafe came within the provifions of the ftatute, and ordered ftatements to be delivered in, as foon as the counfel for the petitioners had finished his opening. Some of them fuggefted, that the very words of the act might be brought to apply, by confidering the queftion to be, Whether the bishop of 1 By the ft. 43 G. 3. c. 74. (4 July 1803), so much of the ftatute 42 G. 3. c. 62. as refpects the bribery oath under 2 G. 2. c. 24. is repealed, and it is directed to be taken by the voter im mediately before he is admitted to poll at the election, in the manner prescribed by the ftatute of George the Second. Winchester, or the court leet, &c. had the right of chufing the returning officer *. evidence. To prove the bishop's title to the liberty, &c. of Taunton, Copy when a very ancient register was produced by the petitioner from the bishop's muniments, containing the copy of the grant of Edw. 1. and this was offered to be fupported by evidence of actual enjoyment under the grant. It was proved that the original grant was no where to be found in the records of the fee of Winchester, but no proof was given of a search for it in any other place. It was objected that the copy was not fufficiently authenticated, and that the original had not been properly fought, or accounted for. The committee determined the evidence to be admiffible, * See the cafe of Okehampton, competent to the committee, under this I Frafer, 72., where the fame construction was put on the ftatute. In the cafe of the University of Dublin, it was at first doubted whether it was frature, to require ftatements of the CASE XXIV. THE BOROUGH OF BOSTON, IN THE COUNTY OF LINCOLN. The Committee was chofen on the 28th of April 1803, and confifted of the following Members: John Pollexfen Baftard, Efq. Chairman. John Benn Walsh, Efq. Will. Middleton, Efq. John Blackburn of Newport, Efq. Hon. John Scott. Geo. Poccck, Efq. Hon. Geo. Cranfield Berkeley. Petitioners. Electors. Hon. Edw. Finch. Lord Arch. Hamilton. Tho. Creevey, Efq. for the Peti- Hen. Joddrell, Efq. for the fitting Sitting Member. Thomas Fydell, Efq. Counsel for the Petitioners: Mr. Serjt. Vaughan; Mr. Brandling. Nominees. 2 Petition. THE petition of certain perfons "having a right to vote Right of election. Preliminary at the election of br geffes to ferve in parliament for the borough of Boston," charged Mr. Fydell with having obtained his return by means of bribery and treating; but the latter of thefe was abandoned during the course of the evidence. By the last determination of the houfe, 2d March 1719, the right of election at Bofton is "only in the mayor, aldermen, common council, and freemen, refident in the faid borough, and who pay fcot and lot, fuch freemen claiming their freedom by birth, or fervitude." Before the merits of the petition were entered upon, the objections. counfel for the fitting member took two preliminary objec tions to the validity of the petition itself. 2 Prefented 30 Nov. 18c2. 19 Journ. 290. They |