144,
PUBLIC RECORD OFFICE
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that the returning officer was, under the circumstances, justified in then closing it.
That it is true that, by the Act in question forty days are to elapse between the teste of the writ and the return; but it is perfectly plain that it was not intended that the poll should be kept open for forty days.
First, because the Act allows the returning officer ten days from the receipt of the writ before he holds the election:
Secondly, because the Act expressly provides that the poll shall be kept open so long as is necessary to afford "a reasonable time" to every freeholder in the islands to attend for the purpose of giving his vote if he shall see fit.
This clearly shows that the returning officer is to exercise a discretion in determining what will be "a reasonable time;" and that he is by no means bound to keep the poll open till the expiration of the forty days. We think the proposition wholly untenable that, because there were two electors absent from the islands, the poll should have been kept open to await their return. The provision above referred to can only properly be construed to mean, such electors as ut the time of the election are present in the islands.
It is absurd to say that a poll is to be kept open till the expiration of forty days on account of an elector when he is absent on a voyage, if it is otherwise kept open a reasonable time with reference to the body of resident electors, and is not unfairly or prematurely closed so as to exclude electors who might be expected to arrive if the poll were kept open for the ordinary time.
We are of opinion, therefore, that the returning officer was not only titled to exercise his discretion in limiting the duration of the poll, but, in this jarticular instance, exercised (as, of course, he was bound to do) a sound discretion.
Having said this much, we are, however, bound to add, that the Assembly itself the judge of whether the law has been complied with in the election in question, and whether the returning officer has exercised such a sound discre- tion as the law requires.
If the Assembly, in deciding that question, acts without a due regard to consi- derations of justice and propriety, the only remedy is by the exercise of the power of dissolution, should the case appear to call for so extreme a course. But there rant be no doubt of the authority of the Assembly to decide on the validity of the election of any of its members; although the Assembly is, no doubt, bound, in arriving at its decision, to conduct its proceedings according to the law applicable
to the case.
This brings us to the consideration of the questions submitted to us on the proceedings of the Assembly; and we are clearly of opinion that the Assembly has altogether exceeded its powers, and acted contrary to law in recording the codes of Messrs. D. Smith and Hutchings, and seating Mr. Ingham in lieu of Mr E H. Smith.
It was competent to the Assembly, if they were of opinion that the poll had not been kept open for a reasonable time, to unseat Mr. Smith, and order a new election for Paget's parish. But they had not, according to the law of Partament, the power to record the votes of the absent electors, and amend the thereby. It is true that a vote once tendered, and rejected by the
w
ng officer, may undoubtedly, on proof that it ought to have been
be added to the poll, and the return will thereupon be amended, if but no one ever heard, even in the worst times, of votes not
at an election, being added to the poll, and the return thereon Such a proposition is an outrage both on Parliamentary law and but the absurdity of the proceeding is in this case, if possible,
ts the fact that these votes were recorded without even the formality at the voters were electors, and entitled to vote at the election. -testaan no, doubt that in going thus far, and in substituting the Me Ingham for that of Mr. Smith, the Assembly have altogether
„Constitutional powers.
Father of opinion that it was not competent to the Assembly, by a to exclude the members who had voted at the election, from gestion in the Assembly. It is the Constitutional right of every er any question on which the Assembly is called on to decide, In this
by positive enactment or Parliamentary usage.
25
voted at an election
country, members of the House of Commons are prohibited, by statutory enact Assembly has not ment, from sitting on a Committee by which the merits of an election petition the right to exclude are to be tried, if they have voted at the election about to be questioned. But members who have no such Act, has, as we understand, been passed in Bermuda, and the usage of from voting in the the Assembly, so far from being conformable to the Resolution, has, it seems, Assembly on a been just the other way. Now, it is too clear to admit of dispute that a question touching member cannot be deprived of his right to sit and vote, where that right already
such election. exists, except by positive enactment. A Resolution is insufficient for that purpose. A majority might otherwise exclude, on any question, any member who might be obnoxious to them.
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At the same time, as the Assembly has alone authority to decide on the merits of a petition relative to an election, and there is no appeal from its decision in such a matter, we are of opinion that, as regards not only the real merits of the election, but also the course of proceeding adopted by the Assembly in trying such petition, the only remedy in case of flagrant injustice committed by the Assembly, is by dissolution, if that body should refuse to re-consider its decision.
The Secretary is only a Ministerial officer, and is bound, we think, to issue his certificate according to the return as altered by the Assembly.
We are, &c.
(Signed)
The Right Hon. H. Labouchere, M.P.,
&c.
&c.
&c.
A. E. COCKBURN. RICHARD BETHELL.
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Reference -
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