[h] 4 Inst. 48.
3. The third point regarding elections, is the method of proceeding therein. This is also regulated by the law of parliament, and the several statutes referred to in the margin[]; all which I shall endeavour to blend together, and extract out of them a summary account of the method of proceeding to elections.
[] 7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 15. 1 W. & M. st. 1. c. 2. 2 W. & M. st. 1. c. 7. 5 & 6 W. & M. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. c. 7. 12 & 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19. and c. 23. 2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 Geo. II. c. 18. 19 Geo. II. c. 28.
As soon as the parliament is summoned, the lord chancellor, (or if a vacancy happens during parliament, the speaker, by order of the house) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. Within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members; and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days notice of the same; and to return the persons chosen, together with the precept, to the sheriff.
But elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen after the delivery of the writ. The county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire, it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and in all such cases ten days public notice must be given of the time and place of the election.
And, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr Locke[k] ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, "if he employs the force, treasure, and offices of the society to corrupt the representatives, or openly to preingage the electors, and prescribe what manner of persons shall be chosen. For thus to regulate candidates and electors, and new model the ways of election, what is it, says he, but to cut up the government by the roots, and poison the very fountain of public security?" As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not return till one day after the poll is ended. Riots likewise have been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, or certain other branches of the revenue, presumes to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 100l, and is disabled to hold any office.
[k] on Gov. part. 2. §. 222.
Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves co-operate, by the infamous practice of bribery and corruption. To prevent which it is enacted that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected; on pain of being incapable to serve for that place in parliament. And if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, both he that takes and he that offers such bribe forfeits 500l, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence[l]. The first instance that occurs of election bribery, was so early as 13 Eliz. when one Thomas Longe (being a simple man and of small capacity to serve in parliament) acknowleged that he had given the returning officer and others of the borough of Westbury four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned[m]. But, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution.
[l] In like manner the Julian law de ambitu inflicts fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1.
[m] 4 Inst. 23. Hale of parl. 112. Com. Journ. 10 & 11 May 1571.