or dissatisfied with, any decision of the revising barrister on any point of LAW material to the result of the case, may, on the day of the decision, and before the rising of the court, by himself or agent give written notice to the barrister of a desire to appeal against his decision, stating, shortly, such decision: and if he shall think it reasonable and proper that such appeal should be entertained, he will himself state in writing the facts involving such point of law, and the decision which he had given upon it-that is to say, on a matter of law, as contradistinguished to a matter of fact only, or the admissibility or effect of any evidence or admission adduced or made to establish any matter of fact only. This statement he reads aloud in open court, in the presence of the appellant, and then signs it: the appellant, or some one on his behalf, writing under his hand to the following effect-'I appeal from this decision.' Having been duly indorsed in the manner pointed out in the act, the revising barrister delivers the statement to the appellant (and a copy to the respondent, if he requires it), to be transmitted to the Court of Common Pleas. The appeal is to be dealt with by the court, as far as practicable, in the manner in which the Court of Queen's Bench deals with special cases from the Quarter Sessions; and it has power to remit the case to the revising barrister for a fuller and more sufficient statement, if such be deemed requisite. The decisions of the court, which are final and conclusive on the point of law adjudicated upon, and binding on every committee of the House of Commons appointed for the trial of any election petition,' are forthwith notified by a master of the court, in writing, to the sheriff or returning officer, specifying exactly every alteration or correction,' in order to alter or correct the register conformably to such decision. No such appeal, however, is in any way to affect the right of voting at an election taking place while the appeal is pending, but the vote may in such case be given, and be as effectual, as though no appeal were pending; nor will the decision, when pronounced, in any way alter or affect the poll, or the return, in such election. As a safeguard, moreover, against rash appeals, the court has complete control over the costs. In the nine years during which the court has been invested with this jurisdiction, it has completely settled the course of practice on appeals; and pronounced * Post, pp. 290, 298, î. + Sect. 67, post, p. 299, ▲. that series of decisions, given in the ensuing part of this volume,* * which has already contributed to give a method, consistency, and science to election law, of which it had in all time before been utterly destitute, to the grievous injury of individuals, and detriment to the public. The register, prepared thus, with such scrupulous and jealous care and anxiety, is to be deemed and taken, at every election for any county, city, or borough, to be CONCLUSIVE EVIDENCE that those named in it continue to have the qualifications which are annexed to their names in the register in force at such election: subject, however, to two provisions materially affecting county and borough voters, and which will require to be noticed hereafter, in discussing the jurisdiction of election committees. If, therefore, a voter whose name stands on the register for either a county or a borough, appears to tender his vote, and offers to give sworn answers, if duly required, to the only two questions which can there be asked him, viz. as to his personal identity, and his having already given his vote, and to take the bribery oath, if duly required,—the returning officer has no option but to receive his vote, though certain of the voter's having no right to give it, and must leave that question to be subsequently decided, if it should become necessary, by a committee of the House of Commons. The act has peremptorily prohibited any inquiry, at the time of polling, into the right of any person to vote, in respect of his retaining the qualification in virtue of which his name then stands upon the register:-enacting in express terms that 'NO SCRUTINY shall be allowed by, or before, any returning officer with regard to any vote given, or tendered, at any such election. § Such is the process, and such the result, of the existing admirable system of REGISTRATION; which is so essentially and intimately connected with the due conduct of the election, in the polling booth, and with the recently-defined jurisdiction of a committee of the House of Commons, that no one can properly exercise the functions of returning officer, or member of such a committee, without distinctly understanding that system. Post, p. 365, s. et seq. + Sections 79, 98, post, pp. 303, 310, A. Both these sections re quire careful consideration. They do not appear worded with perfect perspicuity. See the case of Pryce v. Belcher, ante, p. 126. § Section 82, post, p. 305, ▲. CHAPTER VII. INCAPACITIES TO ELECT. I. WANT OF INTELLIGENCE. II. FROM WANT OF INDEPENDENCE. * FROM what has been stated in former chapters concerning the elective franchise, it appears that the object of the law in requiring those, claiming to exercise so high and transcendent a right, to be possessed of a certain amount of property, to contribute to pecuniary municipal burdens, and to afford, by residence, an opportunity to their fellow citizens of becoming in some degree acquainted with their characters, and pretensions to have a voice in the election of representatives in the legislature, is to obtain some fair guarantee for independence and intelligence." In addition, however, to this pre-requisite of qualification, the law has anxiously striven to exclude from exercising the franchise even persons capable of satisfying such conditions, provided they be otherwise so situated as to negative their being able safely and advantageously to exercise the franchise. In all the three kingdoms that franchise is now vested only in those 'NOT SUBJECT TO ANY LEGAL INCAPACITY:' the statutes for England and Ireland super-adding that such persons must also be MALE persons of FULL AGE.'t The rights conferred or reserved in 1832 were subject, moreover, to the provisions in the respective acts then passed, declaring in force, and reenacting, statutes, laws, and usages then in force, where not repealed, altered by, or inconsistent with, those acts; and all reserved rights in England were, also, to be subject to the possessors of them being qualified on the 31st July in each year, in Ante, pp. 9, 91, note. Post, pp. 12, a. et seq. (Scotland); 66, ^. (Ireland); 237, ▲. (England). such manner as would entitle them then to vote, if such day were the day of election, and this act had not been passed.* In order, therefore, to ascertain what constitutes the legal incapacity mentioned in these statutes, where it exists independently of certain express declarations in those statutes of what shall incapacitate from being registered, or voting, it is necessary to recur to laws, statutes, and usages,' in force at the time when these statutes were passed. In the second chapter† a general account has been given of the 'legal incapacities' now existing in Scotland, most of them substantially identical with those in England and Ireland. The present chapter will be devoted to those in England; with which those in Ireland are substantially identical. Legal incapacities appear generally to range themselves under three heads those respectively founded on the want of INTELLIGENCE, INDEPENDENCE, and INTEGRITY; and under this division the subject will be treated. Those cases of incapacity, which do not fall obviously under any of these divisions, will be found disposed under one or two others, at the close of the chapter. In stating these various instances of incapacity, the reader will find occasional conflict between the decisions of election committees; in which cases, and indeed in all decisions of those tribunals, though entitled to the utmost respect and consideration, it is open to subsequent committees to decide according to their own view of the law of parliament. In one or two of the ensuing cases, however, this will be found otherwise; namely, in those decided by the Court of Common Pleas whose decisions, we have seen, are conclusively binding upon both revising barristers and committees. Questions of incapacity fall exclusively within the province of these three tribunals, the Court of the Revising Barrister, of the Common Pleas, and a Committee of the House of Commons, to which they have been withdrawn, from the polling-booths. It has been seen, and will presently be proved, that the returning officer's duty has become now entirely ministerial,§ greatly to the relief of that functionary. Provided a voter tender himself to give his vote, and be willing to answer the only two questions which can be asked of him, and to take the bribery oath if properly required to do so, it will be the duty of the returning officer to Post, p. 242, A. et seq. + Ante, p. 41. § Ante, p. 130. record the vote; even though he may know to an absolute certainty that the voter has lost his qualification. Nay, even in the extreme case of an impostor personating a registered voter, the returning officer is expressly required† not to reject the vote, if such person answer the two questions in the affirmative, and take the bribery oath; but must record the vote, writing opposite to it the words 'protested against for personation:' and then instantly giving the offender into custody. It is, therefore plain, that even if the returning officer were to be absolutely certain that a tendering voter had incurred any kind of legal incapacity since his name was last placed or retained on the register, the vote must be received, to be afterwards removed from the poll by a committee of the House of Commons. Cases may, nevertheless, arise in the polling booth, demanding the exercise of firmness and discretion on the part of the returning officer at the time of polling. If, for instance, a voter were to tender himself, or be brought for that purpose before the polling clerk, in a state of incapacitating intoxication, so that he really was not aware of what he was doing, did not know, for instance, or could not utter, the name of the candidate, but yet could apparently answer the two questions, and take the bribery oath ; however unsatisfactory it may be, if the tendered voter's name really stood on the register, it will be for the returning officer to consider whether he can wisely incur the responsibility of rejecting the vote, instead of devolving upon a committee the duty of removing that vote, if required. If such tendered voter were not on the register, it would be also a case of personation; and it has been seen what is then the duty of the returning officer. Whether, if the returning officer think proper to reject a vote under such circumstances, a jury would give damages to the party aggrieved, or the Court of Queen's Bench would inflict a serious punishment, are questions hardly likely to be entertained by a discreet returning officer. Similar observations present themselves in the case of a voter brought up to the polling booth plainly in a state of lunacy, fallen upon him subsequently to the date of his name being last placed or retained on the register. If he answer the two questions, and take the bribery oath, however nugatory the act may be, it is not clear how the returning Ante, p. 126; Pryce v. Belcher, ibid. + Stat. 6 Vict. c. 18, s. 86, post, p. 306 A. Stat. 6 Vict. c. 18, s. 98, post, p. 310, A. This subject will be discussed hereafter when treating on the jurisdiction of Committees. |