inevitably to this conclusion. On the other hand, other cases point to the conclusion, that to give effect to the notice, the disqualification must be founded on some positive and definite fact, existing and established at the time of the polling, so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person. The committee (a), in deciding this case, have unanimously adopted the latter view, which they believe to be in accordance with the sound construction of the law, as well as with justice and reason; at the same time they cannot but feel, that the cases are so contradictory, that future committees may, as previous committees have done, come to a different conclusion on the same state of facts; and they consider it, therefore, most desirable that, as regards the elections of members of Parliament, the law should be distinctly defined by some statutory enactment. That the committee, while they do not consider it within their province to suggest the remedy which it may seem fit to the wisdom of Parliament to adopt, yet think it right to point out that, under the administration of the present law as sanctioned by some precedents, not only may injustice be done to constituencies by being represented by persons whom the majority of electors have deliberately rejected, but also that each individual voter may be placed in a position of hardship and difficulty, upon the mere assertion of an opposing party that a disqualification exists, the truth or falsehood of which

if

(a) The committee consisted of Mr. G. A. Hamilton, chairman, Mr. I. Butt, Sir J. Duke, Mr. S. Laing, and Sir T. Herbert.

he may have no means of ascertaining, he is to exercise his franchise at the risk of his vote being thrown away, if, on subsequent investigation, the existence of that disqualification should be established” (a). This resolution, which it has been thought convenient to give at length, states very accurately the present state of the law with regard to the throwing away of votes after notice of alleged disqualification. The committee adopted the same view of the law as the Cheltenham committee in 1848. The committee say, that they consider "the fact creating the disqualification ought to be positive and definite, and existing and established at the time of the polling, so as to lead to the fair inference of wilful perverseness on the part of the electors voting for the disqualified person." If this is a correct view of the law, it ought to apply not only to cases where acts of bribery and treating are alleged as the cause of disqualification, but also to cases where the incapacity is created by want of sufficient property qualification, or by the tenure of an office.

In cases where a sitting member is unseated from want of legal qualification, the facts are seldom, if ever, known to the voters, to whom the notice is given. It often happens, that when the qualification is challenged at the election, a positive answer is given as to its sufficiency, and the candidate makes the statutable declaration of its existence and value. How are electors to be satisfied of the accuracy of these statements? The facts exist, and are established, no doubt, at the time of polling; but if an elector believes the candidate who makes a "solemn

(a) Printed Minutes, and 108 Journal, 745.

and sincere declaration" as to the particulars of his qualification, in preference to the candidate or party preferring the charge, can he be said to act with "wilful perverseness" if the votes for the candidate objected to? And yet, all the modern election cases establish the principle that under such circumstances, the votes are thrown away; Cork, K. & O. 391 (a); Belfast, F. & F. 601; Tavistock, 1853, 2 P. R. & D. 5.

In like manner when the disqualification arises from the tenure of an office, can it be said that it is necessary to show that the voters were influenced by a "wilful perverseness" in voting for the candidate after notice? Here, no doubt, the fact is easily ascer tained. Does the candidate hold the office, or does he not? This is readily answered. But is the office one that disqualifies? This is often a very intricate question of law, and one upon which it would be impossible for common men, unread in acts of Parliament, to come to an accurate conclusion during the hurry and turmoil of an election. And yet, if the electors are wrong in their view of the law, they have been uniformly held to have thrown away their votes; and no one would say that such circumstances would lead to the fair inference, that they had been wilfully per

(a) In the Cork case, K. & O. it seems doubtful whether a great part of the voters, who thus were for the time disfranchised, understood the language in which the notices were published, for they were in the English language, and were not explained to the electors, many of whom could not read English. It is said in the Report (p. 393), that it was proved that they all knew the meaning of them; but the means whereby this knowledge was obtained are not stated.

verse; Fife, 1 Lud. 455; Leominster, 1827 (a); 'Wakefield, B. & Aust. 270. These cases all proceed on the principle, that every one is bound, and supposed to know the law.

In the case of Frome, 1853 (b), the question whether Col. Boyle, the member petitioned against, was disqualified or not, was a very nice question of law, depending upon the construction of several acts of Parliament. As the election had not been contested, the question did not properly arise whether the votes given for the hon. member would have been thrown away; but had such been the case, there can be no doubt that the petitioner would have been seated.

It would seem, that the only distinction to be taken between the case on which the 2nd Clitheroe made their report, and the cases of want of property qualification, is this: that in the latter it may be said, that the facts do exist even though the voters have no means of knowing them, but by the notice of them when given ; but that in cases of bribery and treating, the fact does not exist until it has been established by the decision of a competent tribunal; until that has taken place there is only the accusation of bribery or treating, and not the fact. Every man is presumed to be innocent until he is proved to be guilty. This was no doubt the view taken in the case of Penryn, C. & D. 55. On the other hand it may be said, that the incapacity to be elected at a particular election is the consequence of doing the corrupt acts themselves, and does not arise from the conviction of having done

(a) Rog. Elect. App. p. x.

(b) 2 P. R. & D. 58.

them. And that the fact of bribery or treating is often notorious though no conviction ever takes place. That the argument on the other side, that bribery is not a fact until it has been proved before a tribunal, would enable voters who had been present at, and had witnessed the corrupt acts to vote after notice of the disqualification. The question is one full of difficulty. The Legislature has not as yet thought fit to follow the suggestion of the Clitheroe committee, and to cut the knot by a positive enactment on the subject.

In no case are votes thrown away, unless there has been a poll demanded and taken. If one candidate were to object to the capacity of his opponent on the hustings, and give notice to that effect to the electors, and were then, after a show of hands in favour of such opponent to allow him to be elected, he could not afterwards come to the House and lay claim to the seat. He ought to have first demanded a poll, and then, if he had polled but ten votes to a thousand polled by his antagonist, he would, as the law now stands, have been entitled to the seat. This question was discussed in the Frome case, 1853, 2 P. R. & D. 73. It has been before pointed out, that the returning officer has no power whatever to judge of the qualification of candidates (a); and if the incapacity of Col. Boyle had been as clear, as it was doubtful, the returning officer would have been bound, under the circumstances, to have returned him. The notice distributed to the electors ought not to be held to have any effect upon the election, because the persons around the hustings are seldom voters; and it would

(a) Ante, p. 53.