Personal disqualifications of electors are the same as in counties, chap. 1, sect. 4, p. 163. SECT. 5. Of Votes given to a disqualified or THE same as in counties, vid. ante, p. 170. SECT. 6. Of Closing, Casting up the Poll, and the Case of Equality of Numbers. THE same as in counties, ante, p. 172. Sect. 5. There have been some recent decisions respecting the time when the returning officer ought to close the poll; the leading case upon that point, which has lately been determined by the committees of the house, has been that of Rochester in February 1817, (at which the author Ante, attended for the purpose of taking votes,) a report of 174. Appen. which is given in the Appendix. The law upon this p. cxxxix. subject, which was agreed to by the counsel in that case, has been acted upon in every subsequent case. It is true, that the committee upon the Newcastle under Line case, in 1807, upon nearly the same kind of evidence, came to a different conclusion to the Rochester committee, who (as will be seen) divided eight against seven; Appen. but the same principle of law was acted upon in both. p. cxlvi. The committee on the late Bristol case, 1819, decided, that the returning officer was, under the circumstances proved, justified in closing the poll, although it was opposed by the friends of one of the candidates; and the law as laid down in the Rochester case was then quoted, and not disputed. As to the custody of the poll books, and the evidence necessary to prove them before a committee in case of a petition. Vid. post. 3d part, p. 233. Sect. 5. The returning officer must, immediately, or on the day next after the final close of the poll, declare the majority, unless he deem it necessary, on a scrutiny being demanded, to grant the same. As to the proceedings upon a scrutiny after the close of the poll, vid. post, 3d part, chap. 3. PART III. CHAP. I. PROCEEDINGS AFTER THE POLL IN COUNTY ELECTIONS. Sect. 1. THE poll being taken, closed, and declared, the returning officer must make his return of the persons duly chosen, according to the mode prescribed by the writ and statutes relating thereto. And by the 25 G. 3. c. 84, Vid. ante, it is provided, that, upon the day, or the next day after the final close of the poll, he shall publish and declare the name of the person, or persons, having the majority, and shall make a return forthwith, unless he deem it necessary to grant a scrutiny. The returning officer must grant a copy of the poll to 7 & 8 W.3. any person demanding it, under a penalty of £.500 to c. 25, s. 6. the party aggrieved. SECT. 1. Scrutiny. A POLL has been treated throughout as the original Definition taking of the votes in writing; a scrutiny may be defined of scrutiny. to mean, a general reconsideration, by the returning officer, or others by him appointed, either of the poll altogether, or the scrutinizing and maturely examining the validity of particular votes so taken; or the grounds of certain claims which have been respectively received Q Sect. 1. Origin of scrutiny. 4 Inst. 48. Ante, p. 104. 12 Jour. 350-353. H. C. p. 625. 2d ed. 10 Jour. 521. or rejected at the poll, and amending the same, by correcting or establishing the decisions so made, as they may prove to have been erroneous or right. How far the returning officer, having completed the election by poll, may afterwards, upon a general writ, protract the return by a scrutiny, depended, till the 25 G. 3. c. 84. upon the legal principles of the scrutiny itself, and the power of continuing it beyond the return day. It is taken for granted, upon the reasoning subsequently given, that a return must be made of the writ on or before the day limited for that return; the question can only arise, therefore, on the return of the writ. It is not easy to say, exactly, when the practice of granting a scruty commenced. It seems not to have existed in Lord Coke's time, for he uses "poll" and "scrutiny" as synonimous terms;* we must, therefore, consider it as having clearly arisen at a more recent period. Mr. Serjeant Heywood supposes that scrutinies were introduced about the time of the Restoration. In the early instances, it did not always take place before the returning officer, other persons being, sometimes, agreed upon to take the examination, as in the case of Devizes, 22d December, 1690, where the poll was, by agreement of the candidates, scrutinized by two of the council and two gentlemen.† Whitelocke also uses these terms as synonimous:- "If (says he) any party in competition, or the freeholders electors do, upon the election, demaund the polle, the sheriffe cannot deny it, and though the demaunders of it doe afterwards waive it, yet the sheriffe must proceed in the scrutiny; so tender of the freedom and indifferency of elections is the law of parliaments." See 1 Whitel. p. 387, and afterwards, in p. 391, he adds, "sometime a way of election hath bin used by a kind of scrutiny, in writing the names of the persons whom they would have to be chosen, in several papers, and none to know who wrote the paper, but they who were written most often carried the election." * See the mode of proceeding in scrutinies fully entered into, Heywood's Counties, 418, 446, 1st edit. 13 Jour. S27, 650. 15 Jour. p. 9-10. 408, 410. 16 Jour. Ibid. 17 Jour. 26, 481, 485. There are frequent complaints in the 10th year of King Sect. 1. William, and after that period, of petitions, stating the refusal of a scrutiny as a grievance to the petitioner; from 334, 353, whence we must conclude, that they were considered as legal at that time; but that they are probably not of older date than the 7 and 8 W.3. whereby a written poll was established at county elections, under the regulations of poll clerks and inspectors. A scrutiny seems, indeed, to be the natural consequence of such an establishment, being but an accurate investigation of the truth of those facts reduced to writing, which were to entitle the voter to poll, or of the legal result of them. Before the preservation of those facts by a poll-book, which is first provided for by the statute of W. 3. there could be nothing to review but the mere number of votes given. The very provision of inspectors, implies a power in the Sim. 177. sheriff to review and rectify; they would be useless if the poll-book were conclusive, and partial if they were absolutely to over-rule the poll-book; but under the controul and opinion of the returning officer, they check and rectify each other. If a scrutiny were legal in itself, the inconveniencies Legality of arising from it, could not make it illegal, though they scrutiny. might furnish a good reason for prohibiting or modifying the scrutiny, with some restrictions.* If, as some contend, it exceeded the legal authority of the sheriff, then, however expedient it might have been, it must have been confessed illegal. Whether the scrutiny was an illegal extent of the sheriff's authority, must, in a great measure have depended upon the nature of his office. ministerial. The sheriff in this as in other respects, is both a judi- Sheriff both cial and ministerial officer. He first judges on the good- judicial and ness of the vote, and then ministerially takes and records it. If he does not exercise his judgment at all, but takes * Mayor justified in granting a scrutiny, Sudbury case. Philips, 137. |