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Les diagrammes suivants illustrent le mithode. errata i to e pelure, ;on A n 1 2 3 32X 1 2 3 4 8 6 i M t V ft \\ 1/ DIGEST OF "PRECEDENTS OR DECISIONS" «v SELECT COMMITTEES APPOINTED TO TRY THE MERITS 0» UPPER CANADA CONTESTED ELECTIONS, IKOM 1824 TO 1849. BY ALFRED P A T R I C K, CIERK OP CUMMITTKBS, LKOIftLATIVK A»8BMBLV. SHontrral: ritlNTED BY LOVELl- AND GIBSON, SAINT NICHOLAS STRKET •^ * 1840. ^ & JL P3 ii /SU:^ TO THE HONORABLE ROBERT BALDWIN, ^n J^afegtg'g motnes ffieneral for SSpper ®ana^a, A MEMBER OF THE HON. THE EXECUTIVE COUNCIL, AND ONE OF THE REPRESENTATIVES IN PARLIAMENT FOR THE CODNTT OF TORK, ' THIS COMPILATION a PRECEDENTS OR DECISIONS >» H Sn^rriielr, WITH SENTIMENTS OF THE HIGHEST RESPECT, sy HIS MOST on £ DIE NT HUMBLE SERVANT ALFRED PATRICK. ' A I I t( tl ft d( tl ir tl P< 0. sv cc 01 of be ar C. de Be PREFACE. Having observed for many years, great inconvenience to have been experienced by Committees appointed for the trial of Upper Canada Controverted Election Cases, from their having been unable to avail themselves of decisions of former Committees on points decided by them after being ably argued by Counsel: and this inconvenience being now greatly increased by the fact, that gentlemen from Lower Canada, who may not possess a full knowledge of the Cases decided in Upper Canada prior to the Union, are frequently to serve on such Committees: I have therefore applied myself in compiling, from existing original scrolls, the " Precedents or Decisions" which are hereto annexed Much difficulty presented itself at the commencement of this work, from the circumstance of such scrolls having been very indifferently preserved; which has, doubtless, arisen from the belief, that the proceedings of Election Committees were of a secret nature — and that the final decision upon a Case, was all that was worthy of pre- servation. VI PREFACE From an experience of twenty years, acting in the capacity of Clerk to these Committees, I have frequently witnessed u desii'e on their part to avail themselves of Decisions previously given by Canadian Committees upon questions argued before them ; in addition to authorities obtained from the practice of the British Parliament ; and a msh on my part, to aid in complying with this desire, is the object sought by me to be accom- plished. The almost total loss of the Minutes, or even mem- oranda^ of the proceedings of Election Committees in the Parliaments of Upper Canada, since the passing of the Grenville Act in 1824, is the cause of my inability to give more than abstracts of the Cases, prior to the Union of the Provinces ; as, throughout, I have carefully avoided noting any decision, without a record of the same appearing on the original Minutes of the Com- mittee trying the Case. ALFRED PATRICK. Committee Room, Legislative Assembly 20th April, 1849 :"'} if ig in the [•equently iselves of tees upon ithorities liament ; ing with 2 accom- 'en mem- littees in •assing of inability or to the carefully d of the he Com- ncK. TABLE OF CASES. Counties or Towns, Brockville. Carleton (1332). Carleton (1835)., Cornwall Durham Essex. Frontenac . Glemoarrt . Grenville.. Haldimand., Halton , Huron. Kekt... Lanark (1835). Lanark (1845). Leeds. Lennox and ) Addinoton.... \ Ground of Petition. Scrutiny., Location Ticket votes Conduct of Re- turning Officer.. Want of notice l)y Kcturniiig Offi- cer, of Election . Scrutiny No Return, votes equal Bribery, &c Petitioners. Result. Candidate. Electors, in inte- rest of Geo. Lyon, Esq,,... Candidate Electors . Conduct of Re turning Officer, as to Poll Indian Titles Scrutiny, and con^ duct of Return ing Officer Scrutiny Special Return., Want of qualifica- tion No Polls held in certain Town- ships Riot and violence.. Bribery . Electors, in inte- rest of C. Fo ■ thergill, Esq.. Candidate Candidate Electors.. and Candidate . Candidate . Candidate. Candidate. Electors., Electors and a Candidate.. Electors, in the interest of Wm.Buelland M.M.Howard, Esquires.... Candidate Electors., and Member duly Elected... Opposing Candidate duly Ele(!ted Election good — Peti- ti'in declared frivo- lous and vexatious... Sitting Member duly Elected Petitioner and Sitting Member have equal votes — Election void. New Writ Sitting Member duly Elected— Petition de- clared frivolous and vexatious Election void Protest laid before House by Clerk of the Crown in Chan- cery — No Petition- House refuses to act. Petitioner declared du- ly Elected Evidence rejected, ow- ing to illegal ad- journments by Com missioners Petitioner declared du- ly Elected Candidate duly Elected Election void Election void Election void — Defence frivolous and vexa- tious—Recommenda- tion that a new Writ should not issue un- til measures were adopted for securing the freedom of the Election Member duly Elected... Page. 19 V ^* i 28 i 103 \ 11 49 15 !■ 31 18 57 39 100 22 83 (. - 24 h' vm TABLE (.-i CASKS. Counties or Towns. Lincoln Lincoln (North) Biding) 3 Middlesex NiAOAUA (1838) ... Niagara (1841) ... Norfolk North osiBERLAND. Oxford (184.5) Oxford (1848) Oxford (1848)....; Prescott , t Prince Edward.., Stobhomi (1845).. Stormont (1848).. Ground of Petition. Double Return., Sittin(5 Member an Officer of the Board of Works Scrutiny, &c Candidate Electors.. Scrutiny., Scrutiny. Candidate . That qualification was not duly delivered to He- turning Officer. Scrutiny Scrutiny. Conduct of Re- turning Officer, Qualification Toronto Waterloo York (Town) York (County) ... York (2nd Riding) York (3rd Riding) Scrutiny, &c.. Conduct of Re- turning Officer, as to the Poll — of his granting a scrutiny Sitting Member disqualified at the time of Elec- tion by holding Office Want of notice of Election by Re turning (officer. Scrutiny Petitioners. Electors., Electors., and Electors, in the interest of Hon H. J. Boulton, a Candidate , Candidate and Electors Result. One of the (yandidates declared duly Elected Sitting Member de- clared duly Elected.. Evidence rejected, ow- ing to illegal ad- journments of Com- missioners Time expired fur taUin<> recognizances Mr. Boulton declared duly Eli'ctL'd Electors, in inte rest of B.E wing, Esq.aCandidate Candidate Candidate. Electors.... Candidate . Member duly Elected,. Mr. Ewing duly Elected Member duly Elected... Opposing Candidate declared duly Elected Sitting Member duly Elected Member duly Elected,.. Page, 30 67 88 30 4C, Election void., Electors, in inte- rest of A. McLean, Esq., a Candidate ... Candidate Electors.. Scrutiny Scrutiny ., Scrutiny Riot, &c Qualification., and Member duly Elected., Sitting Member duly Elected Candidate. Electors.., Candidate. Candidate, and Candidate Electors. Klectors, in the interest of Geo. Monro, Esq , a Candidate Member duly Elei-ted,, OpposingCandidatu de clared duly Elected. Member duly Elected., ::! Time expired for taking } recogniziihcus ) Election void ) Is Mr, Monro declared' duly Pllected 1*2 72 93 9.5 115 17 - 85 107 23 lit 1<> 35 6« ..I Page, indidates y Elected iber de- Elected.. 3te(l, ow- Bgal ad- of Coin- iirtakiii" 30 67 declared 1 Elected... \ /Elected Klected... ididate y Elected )er duly Elected... 93 UPPER CANADA CASES, PROM 18 24 TO 184 1. Elected... )er duly Elected.., lidatu de Klfcted lilected.. :| ir takiog } s J declared 1 I .,:, 6« m CASE I. COUNTY OF ESSEX, 1825. Committee, Hugh C. Thomson, Esquire, M. P. P. for Frontenac, {Chairman^ Thomas Coleman, Esq., M. p. p. tor Hastings. Richard Beasley, Esq., M. p. p. for Halton, John J. Lefferty, Esq., M. p. p. for Lincoln. Charles Ingersoll, Esq., M. p. p. for Oxford. Duncan McCall, Esq., M. P. P. for Norfolk. Reuben White, Esq. M. P. P. for Hastings. Francis L. Walsh, Esq., M. P. P. for Norfolk. James Atkinson, Esq., M. p. p. for Frontenac. Captain Matthews, M.P.P. for Middlesex, Nona, for P. Mr. Atty. Genl. Robinson, M. p. p. for York, Nom. for S. M. retitioner: — Francois Baby, Esq., a Candidate. In tliis case, the number of votrs polled for each Candi- date was equal, and no Return made. The Petitioner prays for a new Writ. In striking the Committee, the Returning Officer was admitted as a party, and, as such, allowed to make choice of a Member of the House, as his nominee on the Com- mittee. The Poll Book having been proved, an equal number of votes appeared as polled for onch of the Candidates, Mr. Baby and Mr. Little. A now Writ was ordered. in II ti!i hi: 12 PRECEDENTS OR DECISIONS CASE II. COUNTY OF NORTHUMBERLAND, 1825. Committee. John Beverly Robinson, Esquire, IM. P. P. for York, [Chairman.) Charles Jones, Esq., M. p. p. for Leeds, Alexr. McDonell, Esq., M. P. P. for Glengarry. P. VanKoughnet, Esq., M. p. p. for Stormont. William Morris, r]sq., M. p. p. for Liuitirk. Thomas IIornkr, Esq., M. p. p. for O.xfjrd. Richard Beasley, Esq., M. p. p. for Hal ton. George Hamilton, Esq., M. p. p. for Wentworth. Francis L. Walsh, Esq., iM. 1'. P. for Norfollt. Hamilton Walker, Ivsq., M. V. p. forOnnvillc. Noni. for P. Archibald McLean, Esq., M. 1'. P. for Stontinnf. Nom. for S. M. I m i I « Petitioners: — Electors in llie interest of Ben.i. Ewing, Esq. Sitting Memher: — James Lyons, Esq. This is a case of Scrutiny. In the course of the trial, tlie t'oniinittce decided, That the admission of a voter, subsequent to the Election, cannot be received to disqualify bis vote. And, That a Returning Officer has, in this Province, a right to grant a Scrutiny. ON CONTESTED ELECTIONS. 13 CASE III. COUNTY OF DURHAM, 1825. Committee. Makshall Spring Bidwell, Esquire, M. P. P. for Lennox and Addington, [Chairman.) James Gordon, E.^., M. p. r. for Kont. Edward McBride, Esq., ^I. i*. 1'. for Niagara. Charles Inoi:j;soll, Esq., M. J*, r. for t)xrurd, John Clark, Esq., ^\. P. P. for Lincoln. Alex. Wilkinson, Esq., iM. P. p. for Essex. Paul Peterson, J]sq., M. p. p. for Prince Edward. Wm. Scollick, Esq., M. p. p. for Halton. Peter Perry, Es(j., M. p. P, for Lunnox & Ad- dington. John Kolph, Esq., M. P. P. for Jlid.ll.sex, Nom. for P. Jonas Jones, Esq., M. 1'. p. for Leeds, Noiji. for S. M. Petitioners:— Ehdiov^ in tlie interest of Charles Fother- GILL, Esq. Sitting Memler :—Gmvm^ Stranoe Boulton, Esq. f HIS case is one of Scrutiny. The Committee, during the trial, gave the following deci- sions : — llcsoh'ed^~lha.i this Committee are not bound by tlie Resolutions of the House of Assembly, to refuse to hear evidence as to votes not named in the Lists interchanged between the parties. 14 PRECEDENTS OR DECISIONS Resolved, — That the Counsel for the Petitioner, and Sitting Member, having interchanged lists of objectionable votes, be confined, in the production of tlieir evidence, to the lists of objections so interchanged, in disqualifying votes on the Poll Book. Resolved, — That the admission of a voter, as far as it may go to disqualify such vote, may be received in evidence. The Scrutiny of the votes was proceeded in, and after it was finally concluded, The Counsel for the parties : — Doctor Baldwin, for the Petitioner, and James B. Macaulay, Esq., for the Sitting Member, laid before the Committee a statement signed by them, admiiting the Sitting Member Mr. Boulton, and the opposing Candidate Mr. Fothergill, to have an equal number of legal votes. The Election was declared void, and a new Writ ordered. ON CONTESTED ELECTIONS. 15 CAGE IV. COUNTY OF GLENGARRY, 1825. Committee. James Gordon, Esq., M. P. P. for Kent, {Chairman.) Thomas Coleman, Esq., M. P. W for Hastings. Alex. Wilkinson, Esq., M. p. p. for Essex. James Atkinson, Esq., M. P. P. for Frontenac. John J. Lefferty, Esq., M. P. P. for Lincoln. Zackeiis Burnham, Esq., M. p. p. for Nortliumberland. Richard Beasley, Esq., M. P. P. for Halton. Reuben White, Esq., M. p. P. for Hastings. Wm. Scollick, Esq., M. p. p. for Halton. George Hamilton, Esq., M. P. P. for Wentworth, Nom. for P. Mr. Atty. Genl. Robinson, M. P. P. for York, Nom, for 8. M. Petitioner and Candidate : — Alexander McMartin, Esq. Sitting Member : — Duncan Cameron, Esq. Xhis is a case in which the Returning Officer, after the Election, and before the Return, instituted a Scrutiny, and struck from the Poll a number of votes. The case was argued by the Solicitor General, Henry John Boulton, Esq. for the Petitioner, and for the Sitting Member, by Christopher A. Hauerman, Esq. After proof of the allegations in the Petition, the Com mittee Resolved, — " That the conduct of the Returning Officer, in receiving votes upon the Poll, and subsequently ordering them to bo struck off, was illegal and improper ; and report- i r i f 16 PRECEDENTS OR DECISIONS. ed to the House that, in their opinion, this conduct only arose from misconception on the part of the Returning Offi- cer, as to the proper line of his duty, and that there is no ground to impute to him a corrupt motive." The Election was declared void. . CASE V. TOWN OF YORK, 1829. Committee. Ambrose Blacklock, Esq., M. V. P. for Stormont, {Chairman.) William Buell, Esq., William Terry, Esq., M. P. p. for Leeds. M. P. P. for Lincoln. Benjamin Ewing, Esq., AVilliam Woodruff, Esq., M. P. P. for Northumberland. j^,_ ^ p f^,^. j j,,^,,,^ John Kilborn, Esq., t n i- M. P. p. for Leeds. ' ^0"^ l^^'^^"' ^^^l"' M. P. P. for Middlesex, Norn, for P. Joseph N. Lockwood, Esq., M. P. P. for HastinKS. Duncan McCall, Esq., »L P. P. for Norfolk. Donald McDonald, Esq., M.P.P. for Prescott and Russell. Archibald McLean, Esq., M. P. P. for Stormont, Noni. for S. M. . Petitioner and Candidate : — ThomAS David Morrison, Esq. Sitting Member : — JoHN Beverley ROBINSON, Esq. 1 HE Committee in this case reported to the House the following : — Resolved^ — That in the opinion of this Committee : — The Members of the Legislative Council have not a legal, or constitutional right, to vote at, or interfere with Elections. ON CONTESTED ELECTIONS. 17 CASE VI. COUNTY OF PRINCE EDWARD, 1831. Committee. 23th Ja- nuary. Hugh C. Thomson, Esq., M. P. P. for Frontenac, (Chairman.) William Chisholm, Esq., M.P.P. for Halton. Reuben White, Esq., M.P.P. for Hastings. George S. Boulton, Esq., M.P.P. for Durham. William Berczy, Esq., M.P.P. for Kent. RoswELL Mount, Esq., M.P.P. for Middlesex. John Philip Roblin, Esq., M.P.P. for Prince Edward. John Clark, Esq., m.p.p. for Lincoln. J. Baptiste MAgoN, Esq., M.P.P. for Essex. Marshall S. Bidwell, Esq., M.P.P for Lennox and Addington, Nom. for P. C. A. Hagerman, Esq., M.P.P. for Kingston, Nom. for S.M. Petitioner and Candidate : — Paul Petekson, Esq. Sitting Member : — AsA Werden, Esq. 1 HE Committee decided in this Case, that no Scrutiny of Scrutiny Votes can he made by a Returning Officer, after the expi- '^ ration of si.\ days, from the commencement of any Elec- tion. Tliis being proved, the Election was declared void. ' Note.— It must bo remembered, that by the Law of EUctionsat thatdat^, Six Days were allowed for taking the Votes. m 18 PRECEDENTS OB DECISIONS f I'll 29th Ja- nuary. CASE VII. COUNTY OF HALDIMAND, 1831. Committee. Mahlon Burwell, Esq., M.P.P. for Middlesex, (Chairman.) William B. Robinson, Esq., M.P.P. for Simcoe. P. VanKoughnett, Esq., M.P.P. for Stormont. John Willson, Esq., m.p.p. for Wentworth. John Bower Lewis, Esq., M.P.P. for Carlton. Alex. McMartin, Esq., M.P.P. for Glengarry. Edward Jessup, Esq.,M.p.p. for Grenville. William Elliott, Esq., M.P.P. for Essex. Alex. McDonell, Esq., M.P.P. for Northumberland. James H. Samson, Esq., M.P.P. for Hastings, Nom. for P. Mr. Atty. Genl. Boulton, M.P.P. for Niagara, Nom. for S.M. Petitioner and Candidate : — ^JOHN Warren, Esq. *Wt Indian Titles. Sitting Member : — ^JoHN Brant, Esq. The principal ground of contest in this Case, was, that many Votes were recorded for Mr. Brant, upon Indian Titles, — or on Indian Lands held by Leases for 999 years. The Committee, after deliberation, decided that such Titles were inadequate to give to the holders a right to vote, and upon investigation, ascertained a number of such Votes had been recorded for Mr. Brant, the Sitting I ON CONTESTED ELECTIONS. 19 Member, sufficient to give to Mr. Warren the Majority of Case vii. Legal Votes, and thereupon " Eesolvedj — That John Brant, Esq., k not duly Elected to serve as a Member, to represent the County of Haldi- inand, in this present Parliament." " Besolvedj — That John Warren, Esq., is duly Elected a Member to serve in this present Parliament." CASE VIII. TOWN OF BROCKVILLE, 1831. (Gommittee.) 2nd Feb- ruary. John Willson, Esquire, M.P. P. for Wentwortb, (Chairman.) John Clabk, Esq., m.f.p. for Lincoln. Hugh C. Thomson, Esq., M.P.P. for Frontenac. RoswELL Mount, Esq., M.F.P. for Middlesex. James Crooks, Esq., m.p.p. for Halton. John Warren, Esq., m.p.p. for Haldimand. Alex. McDonell, Esq., M.F.P. for Northumberland. Chales Duncombe, Esq., M.P.P. for Oxford. William Morris, Esq., M.P.P. for Lanark. Peter Perry, Esq., m.p.p. for Lennox and Addington, Norn, for P. Mr. Atty. Genl. Boulton, M.P.F. for Niagara, Norn, for S.M. Petition&r: — James Gray, Esq., a Candidate. Sitting Member : — Henry Jones, Esq. 1 he Petitioner prays, that a Commission may issue, to Scrutinj take evidence in the Case, and Alleges, that he is the legally 20 rilECEDENTS OR DECISIONS !iiy Petition, rteen Days 1, provided Expenses jctcd to, in he Defence )ns." CASE IX. COUNTY OF CARLETON, 1832. Petitioners .-—Electors in the interest of George Lyon, Esq. Sitting Member .•—HAUNEvr PiNHEYT, Esq. g| This Case was tried at the Bar of the House :— the Law providing for the trial of Controverted Elections by Com- mittees, having expired. The Petition in this Case, complained of Mr. Pinhey's Location Election, solely on the ground, that his Majority was ob- ^'''''**'- tained by votes on Location Tickets. The following Decision was given by the House :— Resolved,—"' That the Counsel at the Bar be directed not to argue the question of the inadmissability of Votes which depend merely on Location Tickets. The Election of Mr. Pinhey was declared Void, and Mr. Election Lyon declared duly elected. void. Ill,: 22 PRECEDENTS OB DECISIONS IF: Qualifica- tion of Member. Location Ticket. Election void. CASE X. COUNTY OF LANARK, 1832. PBtittoners : — Electors. Sitting Member : — Donald Fbazee, Esq. * »^»^_ X^^^ Case was also tried at the Bar of the House. The only Ground of complaint against the Return of the Sitting Member, was a want of Property Qualification. A Decision was given in this Case by the House on the sufficiency of a Location Ticket title for the Qualification of a Member. It was proved in Evidence, that Mr. Frazer held, at the time of the Election, under Patent, 200 acres, and under Location Ticket, 300 acres of land ; the Patent for the latter had issued on the 5th of November, being after the com- mencement of the then present Session. The House Besolvedj — " That the Possession of Land under a Loca- tion Ticket does not entitle the holder to Vote at Elections ; — ^That Donald Frazer, Esq., not being, at the time of the last Election, possessed of a Freehold Estate of the Assessed value of £80, was Ineligible to a seat in this House." A new Writ was ordered. ON COWTESTED ELECTIONS. 23 CASE XL isq. >use. eturn of the Qcation. )use on the Qualification CITY OF TORONTO, 1835. Committee. George Rtkert, Esquire, M. P. P. for Lincoln, (Chairman.) Nathan Cornwall, Esq., M.P.P. for Kent. Elias Moore, Esq., m.p.p. for Middlesex. John Strange, Esq., m.p.p. for Frontenac. Alex. Chisholm, Esq., M.P.P. for Glengarry. Jacob Shiblet, Esq., m.p.p. for Frontenac. David Duncombe, Esq., M.P.P. for Norfolk. John A. Wilkinson, Esq., M.P.P. for Essex. Denis Wolverton, Esq., M.P.P. for Lincoln. Hiram Norton, Esq., M.p.p. for Grenville, Nona, for S.M. Archibald McLean, Esq., M.P.P. for Cornwall. Nom. for P. the House. Petitioner and Candidate: — WilliamBotsford Jarvis, Esq. Sitting Member : — ^James Edward Small, Esq. The Committee in this Case, made a Special Report to the House, setting forth : — " That the Sitting Member objects to enter into a sera- Opinion of tiny, on the ground that the Petitioner was disqualified at the time of the Election, by being Sheriflf of the INistrict in which Toronto is situate ; and desiring the opinion of the House thereon." Whereupon the House passed the following : — Besolved, — "That this House cannot pronounce any opinion, or give any direction to the Committee appointed to try the matter of a Controverted Election, touching any matters referred to them." iv 'f '■'.■> 24 PRECEDENTS OR DECISIONS CASE XII. COUNTY OF LEEDS. The Committee was Ballotted, 2nd Fehruarif, 1835. Charles Duncombe, Esquire, M.P.P. for Oxford, fChairman.) Edward Malloch, Esq., M.P.i*. for Carleton. Henry W. Yager, Esq., M.P.P. for Hastings. William Bruce, Esq. ,m.p.p. ior Stormont. Thomas Parke, Esq., m.p.p. for Middlesex. Harmannus Smith, Esq., M.P.P. for Wentworth. John Gilchrist, Esq., M.F.F. for Northumberland. Gilbert McMicking, Esq., M.P.P. for Lincoln. James Durand, Esq., m.p.p. for Halton. Peter Perry, Esq., m.p.p. for Lennox and Addington, Nom. for P. William Morris, Esq., M.P.P. for Lanark, Nom. for S.M. Petitioners : — Electors in the interest of William Buell and Matthew M. Howard, Esquires, Candidates. Sitting Members: — Ogle Robert Gowan, and Robert Sympson Jameson, Esquires. Riot and ^ HE Petitioners complain of Riot and Violence at the Violence. Election, and Allege, that, in consequence of which, the Electors were prevented from exercising their Franchise ; and that the same was encouraged and promoted by the Sitting Members. ON CONTESTED ELECTIONS. 25 y, 1835. r Oxford, CKING, Esq., coin. I, Esq., M.p.P. Esq., M.P.P. I Addington, Nom. for P. iis, Esq., ark, >m. for S.M. .LIAM BUELL iididates. ind Robert enre at the f which, the r Franchise ; loted by the The Committee in this case, reported to the House, the Caaa xii. following Resolutions : — \st. Resolved^ — That it is the opinion of this Committee, that at the late Election for the County of Leeds, insult, in- terference, riot, force and violence were used to so great an extent as to interfere with and prevent the freedom of Election, and that the excitement had so increased by the morning of the fourth day of the said Election that it ap- pears to the Committee to have been conceived by the Returning Officer and Civil Authorities on the ground, to be beyond their control, and that the supporters of Messrs. William Buell and Matthew M. Howard, Esquires, candi- dates at the said Election, were deterred and prevented from exercising the Elective Franchise in peace and safety, and voting at the said Election. 2nd. Jiesolved, — That the Election and return of Ogle R. Election Gowan, Esq., and Robert S.Jameson, Esq., returned to serve as Representatives for the County of Leeds at the late Elec- tion, is illegal and void, and that a new writ do issue for the return of two Members for the said County. 3rd. liesolred, — That it is the opinion of this Committee, Authority that a vast deal, if not all of the said interference, violence and tra^ "' riot, might have been prevented, had the Returning Officer and the Magistrates upon the ground, exercised their lawful au- thority in a proper and prompt manner at the first commence- ment and appearance of the same, but unfortunately it ap- pears that an unhappy and mistaken view relative to their several authorities or jurisdiction existed among them ; the Returning Officer conceiving that bis jurisdiction or author- ity did not extend beyond the limits of the hustings, and on the other hand the said Justices entertained an opinion that they had no authority as Justices of the Teaoc to inter- 4 '■^' r 26 FBECEDENTS OR DECISIONS II'.. I '111 Returning Officer not partial. Case XIL fere in any way to keep the peace in the immediate vicinity of the hustings, without being directed so to do by the said Returning Officer. And we are of opinion that these mis- taken views were kept alive and continued by reason of one of the Candidates, viz : Robert S. Jameson, Esq., His Majesty's Attorney General, declining to give any legal opinion on the matter, alleging that he was there as a Candidate and not as Attorney General, and claiming to be considered in no other point of view. 4th. Resolvedj — That while the Committee are willing to acquit the Returning Officer of acting illegally or partially from corrupt motives, yet they feel themselves called upon to ex- press their surprise, that he should have continued to keep the poll open and receive votes on Thursday, the fourth day of the Election, in as much as it appears that it was his opinion as well as that of the Justices of the Peace, that the civil authority, at that time, was not sufficient to restore and maintain peace and order, and secure the freedom of the Election, and that it would have been unsafe for the supporters of Messrs. Buell and Howard to attempt to give in their votes. 5th. Resolved, — That the Petition of John Booth and others, complaining of the undue Election and Return of Ogle R. Gowan, Esq., and Robert S. Jameson, Esq., Mem- bers for the County of Leeds, is not frivolous or vexatious. 6th. Resolved, — That it is the opinion of this Committee that under all the circumstances of the case, the defence of Ogle R. Gowan, Esq., and Robert S. Jameson, Esq., the Sitting Members, was frivolous and vexatious. Jurisdiction of 'jfi. Resolved, — That in the opinion of the Committee, Returning Of- flc4>r. the authority or jurisdiction of a Returnmg Officer appoint- ed to hold an Election for a Return of a Member or Members ™ » ^ ^ iiate vicinity 9 by the said at these mis- by reason of 1, Esq., His ire any legal IS there as a 1 claiming to re willing to partially from i upon to ex- lued to keep ly, the fourth s that it was e Peace, that ent to restore le freedom of nsafe for the empt to give ON CONTESTED ELECTIONS. 27 A :. to serve in Parliament in this Province, extends to any Case xn. compass within which, improper interference, disturbance, violence or riot, would tend to disturb or interrupt the free- dom of Elections, and that it is also the duty of the Justices of the Peace and other Peace Oflicers present, so far to interfere, even within the said compass as to check and put a stop to any breach of the peace. ^th. Besolved, — That in the opinion of this Committee, Special from the great number of Electors in the County of Leeds, it is impossible for all conveniently to poll their votes, with- in the time prescribed by law for holding the Elections, and therefore recommend the immediate passage of an Act ex- tending the time for holding Elections in the said County, in order that all the Electors may have an opportunity to ex- ercise their elective franchise at future Elections. The House adopted the recommendation of the Commit- tee, and forthwith passed a Bill to extend the time for holding the Elections for that County. '. ! Booth and id Return of Esq., Mem- ir vexatious. 3 Committee le defence of )n, Esq., the i Committee, ccr appoint- or Members § t •* :i, I 28 PRECEDENTS OR DECISIONS CASE XIII. COUNTY OF CARLETON, 1835. The Committee was ballotted on 23rd February, 1835. Committee. John Philip Roblin, Esquire, M. P. P. for Prince Edward, {Chairman.) Jacob Rymal, Esq., m. p. p. Thomas McKay, Esq., for Wentworth. John Cook, Esq., m. p. p. for Dundas. William McCrae, Esq., M. p. p. for Kent. Henry W. Yager, Esq., M. P. P. for Hastings. Robert Alway, Esq., m.p.p. for Oxford. Peter Shaver, Esq., m.p.p. for Dundas. M. P. P. for RusspII. Thomas D. Morrison, Esq., M. p. p. for York. Charles Duncombe, Esq., M. p. p. for Oxford, Nom. for P. William Morris, Esq., M. p. p. for Lanark, Nom. for S. M. Petitioner and Candidate : — James Johnston, Esq. Sitting Members : — Edward Malloch and William Bower Lewis, Esqrs. ISag The Petition complains of tiie conduct of the Returning ^°"* Officer, in closing the poll before the expiration of the time allowed by law, and prays for a new Writ to issue. The Committee upon the case, after adjourning from day to day till 17th March, finally reported the following final Resolutions : — ON, Esq. i William e Returniug a of the time issue. ng from day lowing final ON CONTESTED ELECTIONS. 29 J5. uary, 1835. for Prince iY, Esq., usspII. RRISON, Esq., ork. lOMBE, Esq., xford, lom. for P. ns, Esq., anark, 1. for S. M. Eesolved, — That the Committee appointed to try the CaaeXni. merits of the return of J. B. Lewis and Edward Malloch, Esquires, Sitting Members for the County of Carleton, have, from time to time, postponed the trial, in order to afford the Petitioner, Mr. Johnson, an opportunity of substantiating the allegations contained in his Petition, and although a period of more than two months has thus been extended to him, he has not thought proper to bring a single witness before the Committee, or take any other steps, either to pro- secute the complaint contained in his Petition, or give rea- sons for not having done so, thereby treating the Committee, as well as Your Honourable House, with great disrespect. Resolved, — That the Election and Return of John B. Election good. Lewis and Edward Malloch, Esquires, to serve in this pre- sent Parliament for the County of Carleton, are good and valid, and that their defence is not frivolous or vexatious. Resolved, — That it appears to this Committee that the Petition Petition of James Johnston, complaining of the undue Elec- tion and Return of John B. Lewis and Edward Malloch, Esquires, is frivolous and vexatious. V 1 30 PRECEDENTS OR DECISIONS CASE XIV. COUNTY OF LINCOLN, 1835. (Case of a Double Return.) Petitioners : — Electors, and David Thoebuen, Esq. Candidates: — David Thoebuen, and John Johnson Lef- O FEETY, Esquires. ofTrivi- J- HE House referred this matter to a Select Committee ®^^* of Privilege, who reported as their opinion that a Peti- tion complaining of a Double Return, should be tried under the Act for the Trial of Controverted Elections. This opinion being adopted by the House, a Committee was struck for the trial of the case. At the time of striking the Committee, Mr. Leffeety did not appear. Committee The House ordered, — That an additional name be drawn struck. from the Ballot Box in the place of a Nominee for Mr. Leffeety — and that the Clerk of the House do act in his (Mr. Leffeety's) stead, as a party, to alternately strike from the list of names, until such list is reduced to the number required by the Statute, to form the Committee for trying the Petitions. The Committee proceeded to the trial of this case, and having decided, that at the time the last vote was given to Me. Leffeety, (making the Candidates equal,) it was after the hour of midnight on the last dav -''owed by Law for taking the votes at an Election ; whereupon Mr. Thoebuen was declared July elected. Mr. Thor- bum seat- fid. '^f ON CONTESTED ELEC5TI0NS. 31 CASE XV. ). JUEN, Esq. 0HN8ON LeF- ct Committee that a Peti- }uld be tried Sections, a Committee Ir. Lefferty ime be drawn inee for Mr. do act in his rnately strike iduced to the )ommittee for his case, and was given to ) it was after by Law for COUNTY OF GRENVILLE, 1836-7. Sitting Members :—UiRAM NORTON and William B. Wells, Esquires. Opposing Candidates: — Henry Burritt and Alpheus Jones, Esquires. In this case, the Clerk of the Crown in Chancery laid Papers ' transmit- before the House the following papers, which were trans- ted by Re- turning Of- mitted to him with the Writ and Return, by John L. Read, 6cer. Esquire, the Returning Officer. " Brockville, \st July^ 1836. " Sir, — Agreeably to the instructions of His Excellency the Lieutenant Governor, I herewith return to you the Writ of Election for the County of Grenville, and the Inden- ture, duly executed, by which it will appear that Hiram Norton and William B. Weils are returned as Members for the said County; as also a Protest against the said Return, made by Ephraim Jones Hubble, Ziba M. Phillips, and David Mair ; an affidavit also made by Peter Cornish, the Poll Clerk, appointed by me, shewing that the Poll Book was destroyed by persons unknown, in a riotous manner. " I have the honor to be. Sir, " Your obedient Servant, " JOHN L. READ. " To Samuel P. Jarvis, Esquire, • Clerk of the Grown in Chancery, CityofToronto.'» 32 PRECEDENTS OR DECISIONS Cfj^^y- " N. B.— The state of the Poll at the close was as fol- lows : — For Henry Burrltt, 391 " Alpheus Jones, 395 " William B. Wells, 459 " Hiram Norton, 458 Protest "We, Ephriam Jones Hubble, Ziba M. Phillips, and David Mair, Freeholders of the County of Grenville, in the District of Johnstown, hereby solemnly Protest against the Return, at the present Election, of any Candidate or Candi- dates, other than Alpheus Jones and Henry Burritt, Esquires, as Representatives for the said County of Grenville, in the next Provincial Parliament. " For, that when the supporters of Alpheus Jones and Henry Burritt, Esquires, attempted to go forward to the place of voting, they have been crowded, pushed, beaten, and pulled back, insulted and abused, by the Special Con- stables, sworn in, on the occasion, to keep peace and order. " For, that a system of intimidation has been pursued at the Hustings during the time of polling the votes, and be- fore, by the same Special Constables ; destructive of the freedom of Election. " For, that riots and violence occurred at such Election, caused by the same Special Constables, by which the friends of Alpheus Jones and Henry Burritt, Esquires, were pre- vented coming forward to vote. " For, that the Return made by John L. Read, the Return- ing Officer for the said County of Grenville, is not made from the original Poll Book, as requred by the Statute in that case made and provided. " And for divers other causes not herein specified, all ON CONTESTED ELECTIONS. 33 e was as fol- . 391 . 395 . 459 . 458 Phillips, and snville, in the it against the late or Candi- ■ritt, Esquires, enville, in the us Jones and Drward to the shed, beaten, Special Con- ice and order, en pursued at ^otes, and be- uctive of the uch Election, ch the friends !s, were pre- , the Return- is not made he Statute in specified, all which have been instrumental in destroying the freedom of Case xv. Election. " Done at Merrickville, in the County of Grenville, the thirty-first day of June, one thousand eight hundred and thirty-six. EPHRAIM JONES HUBBELL, ZIBA M. PHILLIPS, DAVID MAIR. (L.S.) (L.S.) {L.S.) " To John L. Read, Esquire, " Returniwj Ojficerfor the County of Grenville. " District of Johnstown, to wit : 3 " Peter Cornish, of the Protest of Village of Merrickville, in the District aforesaid, Gentleman, personally appeared before me, Barsil R. Church, Esquire, one of His Majesty's Justices of the Peace of Stiid Dis- trict, and deposeth on oath, and saith that he, this deponent, on Friday, the first day of J uly, instant, at the hour of three of the clock, or thereabout, was proceeding from his lodg- ings to the hustings, (the Poll having been adjourned to ' that time,) in the capacity of Poll Clerk for the Election of the County of Grenville held in the village afuresaid, and carrying the Poll Book. — This deponent further deposeth, that as lie was approaching towards, and was within about fifteen or twenty foot of the hustings aforesaid, the Poll Book, together with some other documents contained therein. Mere wrested fmni him, tliis deponent, by a man unknown to him tlie The Committee decided that the Counsel for the Petition- Decision, ers should open his whole Case, and commence with proof in support of the charges against the Returning Officer. Qth July. ' Mr. Cameron, for the Sitting Member ; objected to a Further . objectioa witness as incompetent on the ground that he signed the Petition against the Return, and is therefore liable to con- tribute to the Expenses of the contest. The Committee decided the Objection to be valid, and held good, the witness was rejected. A Question was raised by the Counsel for the Sitting Further Member, whether evidence Avould be received on the fact of the Returning Officer administering an improper oath. Mr. Ross, for tht Petitioners, was heard. The Committee decided that such evidence was ad- over-ruled. missible. M. July. Mr. Ross objected to a witness on the part of the Sitting objection Member giving Evidence in the case of the Returning Of- ^ ^' ficer, on the ground that no List of Witnesses was handed into the House on his (the Returning Officer's) behalf. f Mr. Cameron, lor the Sitting Member ; was heard in reply. The Objection was over-ruled by the Committee, as the oTor-ruled. ^ liists handed in on behalf of the Sitting Member, were suf- 44 PRECEDENTS Oft DECISIONS Returning Officer's case- Case XIX. ficient for the Case of the Returning OflScer, the Charges against whom, formed a part of the Petition against the Return. 12th July, Mr. Ross, for the Petitioners; closed that branch of his Case with reference to the Charges against the Returning Officer. Mr. Cameron proceeded with Evidence in reply ; and having concluded the same, The Committee, after deliberating on the Case against the Returning Officer, came to the following Resolutions : — Eesohedj — " That the Evidence adduced in support of the Charges against the Returning Officer, is not sufficient to void the last Election and Return of the Incorporated Counties of Lennox and Addington." Besolvedj — " That althougli, the Allegations against the conduct of the Returning Officer, contained in the Petition, are not sufficiently proved to void the Election, yet it is the opinion of this Committee, that the conduct of the said Re- turning Officer was highly reprehensible." Mr. Ross then proceeded with the Case against the Sitting Member. A witness is called to give Evidence in this Case, who was present when Evidence was given in the Case against the Returning Officer, and on that ground, was objected to by Mr. Cameron. The Committee over-ruled this Objection, and the witnesg was allowed. After the Evidence was concluded, and the parties heard, the Commitee Resolved^ — " That Treating on the part of the Sitting Mem- ber was proved, but that it is not, in the opinion of this Case against S. M. com- menced. Witness objected to. Final deci- sion. ON CONTESTED ELECTIONS. 46 , the Charges )n against the inch of his Case urning Officer, in reply ; and Case against Resolutions : — support of the t sufficient to Incorporated ns against the I the Petition, n, yet it is the f the said Re- ! against the lis Case, who Case against as objected to id the witness parties heard. Committee, a legal ground for avoiding the Election, under Case xix. the Laws in force in that part of this Province heretofore Upper Canada." ■ Besolvedy—''' That it does not appear to this Committee that the Sitting Member has, by himself or his authorised Agents, been guilty of Bribery." And, " That neither the Petition nor the defence to the same is, in the opinion of the Committee, Frivolous or Vex- atious." ! Sitting Mem- pinion of this 46 PRECEDENTS OR DECISIONS CASE XX. TOWN OF NIAGARA. The Committee was halhtted 7tk July, 1841. Edward Hale, Esquire, M. P. P. for Sherbrooke, fChairman.J Caleb Hopkins, Esq., m.p.p. for Halton. Feedk. a. Quesnel, Esq., M.p.p. for Montmorency. Joseph Woods, Esq., m.p.p. for Kent. Israel W. Powell, Esq., M.p.p. for Norfolk. Don. McDonald, Esq., M.P.P. for Prescott. Solomon Y. Chesley, Esq., M.p.p. for Cornwall. John T. Williams, Esq., M.P.P for Durham. John Gilchrist, Esq., m.p.p. for Northumberland. James Edw. Small, Esq., M.p.p. for York.— Nom. for P. David Thorburn, Esq., M.P.P. for Lincoln — Nom. for S.M. Petitioners : — Electors. Sitting Memler: — Edward Clarke Campbell, Esq. Opposing Candidate : — The HoN. Henry John Boulton. Counsel for the Petitioners: — Jno. Hillyard Cameron, Esq. The Sitting Member appeared in his own behalf. Scrntiny. Xhis Case is One of simple Scrutiny. At the close of the Poll, Mr. Campbell had a majority of two over Mr. Boulton. A Commission was issued to take the Evidence, and be- fore its return, Mr. Campbell had vacated his Seat, by the acceptance of Office. ON CONTESTED ELECTIONS. 47 The following Objections were raised on the part of the defence relative to irregularities in the proceedings of the Committee, with the view of rendering them void, and so causing the Committee to be dissolved. The first objection : — That the Records of the Committee were not full from the 20th August last. The second : — That the Committee met on three succes- sive days, with less than nine Members present. These Objections were over-ruled by the Committee, after hearing Mr. Boulton. Mr. Boulton, lor the Petitioners ; contended that the Member returned, having accepted OiFice, and thereby vacated his seat, is incompetent to be heard against the Petition. Mr. Campbell was heard in reply. The Committee Resolved, — " That inasmuch as there is no evidence before the Committee, of the Member returned having vacated his seat, and as there is no law to the con- trary, Mr. Campbell, the Member returned, be permitted to oppose the Petition." 13th September, 1842. It was contended on the part of the Return, that the Committee is dissolved by the omission to appoint a Chair- man in the place of Mr. Hale, who was absent on leave, from the House, during a number of its Sittings. The Committee decided, that inasmuch as no business was transacted at the Sittings referred to, Mr. Hale is not disqualified, nor the subsequent proceedings of the Com- mittee affected by his absence. Again it was urged that the Committee not having met on the second day of the present Session, according to the directions of the Statute (four Members being absent on Case XX. Objections over-''uled S. M. ac- cepted of- fice. Permitted to oppose Petitioner. Omission to appoint a Chairman. 48 PRECEDENTS OR DECISIONS Decision. ,, . Final Re- solutions. ^'' ^^' that day) it has become dissolved, and cannot proceed fur- ther in the Petition. The Committee decided that the proceeding cf the Com- mittee, on the occasion referred to, was legal in every par- ticular. The Evidence, as taken under the Commission ordered by the House, was laid before the Committee. The parties proceeded with the same ; and having con- cluded, the Committee passed the following as their final Resolutions : — Resolved^ — "That by the Scrutiny of votes before this Com- mittee, it appears that the Honourable Henry John Boulton, the opposing Candidate at the last Election for the Town of Niagara, has a majority of legal votes on the Poll." Resolved^ — " That Edward Clarke Campbell, Esq., was not duly elected ; that neither the Petition nor the Oppo- sition to it were Frivolous or Vexatious." In the course of this scrutiny many votes were struck IVom the Poll on the ground of objection, that the Dwelling Houses or Shanties erected a short time previous to the Election, did not qualify for a vote according to the true meaning of the Law, viz. : — Upon a Dwelling House or Shanty occupied only a week or two previous to the Election, not plastered and without a chimney. Ur>on a small building 12 x 18 ft. erected for the voter at the Expense of the Candidate, a week before the Election. And upon a building 8 x 12 ft., costing £10 or £12, finished a few minutes before the vote was given. And also, votes were held bad in this Case upon the Objection " no sufficient dwelling house," viz. : — Upon an uninclosed Acre Lot on which is a house without foundation or chimney, only clapboarded or unfit for renting. Votes held bad. 1 I II ON CONTESTED ELECTIONS. 49 CASE XXI. COUNTY OF FRONTENAC. The Committee was Balhtted 23r£? July^ 1841. AuGUSTiN NoRBERT MoRiN, Esquire, M. P. P. for Nicolet, (Chairmnn.) John Philip Roblin, Esq., M. P. r. for Prince Edward. Isaac Buchanan, Esq., M. P. P. for Toronto. David M. Armstrong, Esq., M. p. p. for Berthier. A. C. Taschereau, Esq., M. p. r. for Dorchester. J. B. IsAiE Noel, Esq., '.\. P, P. for Lotbiniere. The Hon. Charles D. Day, M. P. P. for Ottuwa. Francis Hincks, Esq., m.p.p. for Oxford. John R. Hamilton, Esq., SI. p. p. for Bonaventure. James H. Price, Esq.,M.p.p. for York. Nom. for S. M. James Johnston, Esq., M. p. p. for Carleton. Nom. for P. Petitioners: — 1. James Mathewson, Esq., a Candidate. 2. Electors. Sitting Member : — Henry Smith, Junior, Esq. Counsel for Petitioners: — Christopher Armstrong, Esq. Counsel for Sitting Memher : — JoHN A. Macdonald and John Ross, Esquires. X HE Petitions in this Case Allege : — That gross bribery. Bribery, threats, promises of favours and corruption, were practised by the Sitting Member, his Agents, Committee and Support- o 50 rRECEDENTS OR DECISIONS il ,! Conduct of Returning Officer. Case XXI. ers at the last Election for this County, and that by reason of the same, he is disqualified from being returned a Mem- ber at that Election. That the conduct of the Returning Officer was Arbitrary, Partial and Illegal, in not allowing divers Freeholders to record their votes for Mr. Mathew- son ; and contrary to usage, in not allowing him the benefit of Counsel, Scrutineer or Inspector, at the Poll ; and pray that the Return may be amended by inserting the name of James Mathewson, Esq., in lieu of that of the Sitting Member. One Peti- tion aban- doned. Opening by P. To proceed on specific charges. In the Opening by the Counsel for the Petitioners : he ex- pressed to the Committee his desire not to proceed upon the Petition of the Electors, but to confine himself to the charges in the Petition of James Mathewson, Esq., the opposing Candidate. The Committee, after hearing the Counsel for the Sitting Member, granted, that the Counsel for the Petitioners might proceed upon one Petition only, the charges and allegations in both, being the same ; subject, however, to the final de- cision of the Committee with respect to costs. Mr. Armstrono for the Petitioner, proceeded with his Opening. Mr. Macdonald for the Sitting Member ; objected to the general allegations of Bribery, and argued that those charges should be particularised, as against the Sitting Member. Parties were desired to withdraw. The Committee Resolved^ " That the Objection taken and urged by the Counsel for the Sitting Member, is good and valid, and that the Counsel for the Petitioner be directed to state specifically his charges." Mr. Armstrong proceeded accordingly and concluded. The Committee having taken into their consideration that part of the Opening of the Counsel for the Petitioner, 1 t (/ ON CONTESTED ELECTIONS. 61 ded with his in reference to the charges in the Petition, of Bribery Case xxi. against the Sitting Member — Resolved, — " That tlie fourtli charge, ' That the Sitting Decision on ' *' ' ** Bribery. Member had told several Electors, if small sums were wanting, they should not mind, and that they should be forthcoming,' is not sufficient to vacate tlie Seat of the Sitting Member, and is so vague that this Committee will not allow the Petitioner to enter into Evidence of this fact." Eewlvedy—" That the fifth charge, ' That the Sitting Mem- Treating, her stated to Electors, during the Election, * Drink as you like, my dear fellows,' ' is vague and frivolous, and that this Committee will not allow the Petitioner to enter into Evidence of the same." Eesolved,—^'' That the Committee will not allow the Pcti- Agency, tioner to proceed to Evidence to establish Bribery by the Sitting Member's Agent, of Robert Maxwell, Patrick M urphy, Valentine Stover, Ephraim Dunham, David Foot, William Sigsworth, Elias Jackson, and William Walker, the same being vague and imperfectly set forth ; and that they will admit Evidence of that fact against the Sitting Member only." Resolved^ — " That the Petitioner and his Counsel be called in and informed that he can proceed with his Evidence to establish that Spooner is the person who has been bribed by the Sitting Member, and that no other Evidence will be allowed against any other person on that specific fact." Resolved^ — " That the Petitioner be directed to enter into proof of charges against the Sitting Member, previous to entering into proof of Facts alleged against the Returning Officer." By request of the Conns 'I for tho Petitioner, a copy of the above Resolutions was ordered to be given him. 52 PllECEDENTS OR DECISIONS Case XXI. Returning Officer's case closed. Final deci- sion. Mr. Armstrong proceeded with Evidence in support of the charge of Bribery against the Sitting jNIember, and having concluded this branch of his Case ; The Committee directed that he should proceed with his Evidence against the Returning Officer. Mr. Armstrong informed the Committee that he had abandoned the same, and that the Case for the Petitioner was closed. Mr. Macdonald and Mr. Ross ; for the Sitting Member, were then heard in reply. After deliberation, the Committee came to the following final Resolutions : — Resolved^ — " That no Evidence has been adduced against the Returning Officer in support of the charges contained in the Petition." Resolved^ — " That the Sitting Member is not disqualifled to sit or vote in the Legislative Assembly, in consequence of any thing proved to have transpired during the last Election for the County of Frontenac." Resolved^ — " That it does not appear to this Committee that Henry Smith, Esq., the Sitting Member, has, by him- self or his authorised Agents, been guilty of Bribery." Resolved^ — " That the Petition of James Mathcwson, Esq., is not Frivolous or Vexatious." Resolved, — " That the Petition of Matthew Rourk and others was withdrawn by the Counsel for the Petitioners before entering into Evidence upon the same." Resolved^ — " That the said Petition is Frivolous and Vex- atious ; that the defence of the Sitting Member is not Fri- volous or Vexatious." ) I ON CONTESTED ELECTIONS. 53 CASE XXII. SECOND RIDING OF YORK. The Committee xocis Ballotted \Qth August, 1841. John Philip Roblin, Esq., M.P.P. for Prince Edward, (Chairman.) David Thompson, Esq., M.P.P. for Haldimand. Etienne P. TACiifc, Esq., M.P.P. for L'Islet. Marcus Child, E.sq., m.p.p. fur Stanstead. David M. Armstrong, Esq., M.p.p. forBerthier. William H. Merritt, Esq., M.P.P. for Lincoln. Michel Bourne, Esq. , m.p.p. fur Rimouski. Henry Smith, Esq., m.p.p. for Frontenac. Thomas Parke, Esq., m.p.p. for Middlesex. Francis IIiNCKS, Esq., M.P.P. for Oxford. — Nom. for P. Thos. C. Aylwin, Esq., M.P.P. for Portneuf.— Nom. for S. M. Petitioners: — 1. — Connel J. Baldwin, Esq., a Caudidate. 2. — Electors. Sitting Jl/e»iJer.-— Geokge Duquan, Junior, Esq. Counsel for the Petitioners : — John Ross, Esq. Coumelfor the Sitting Member: — JoHN DuGOAN, Esq. 1 HE Petitioners Allege : — That Rioting and Violence existed at the Election ; — That Rioting. tlic supporters of Mr. Baldwin were, by persons in the in- terest of Mr. Duggan, the Sitting Member, assailed and 14 PRECEDENTS OR DECISIONS Case XXII. New Writ. Members excused. Member vacated his seat. House de- clares Member ineligible. forcibly driven out of the Town where the Election was held, and thereby deterred from giving their votes for Mr. Baldwin j And pray that the Return of Mr. Duggan may be set aside, and a new Writ ordered for the County. 2nd September. The Chairman informed the Committee that Mr. Bourne and Mr. Armstrong were excused by the House from further attendance as Members of the Committee. A Commission was issued in this Case to take the Evi- dence, and not having been returned before the close of the Session, the Committee stood adjourned over the Recess. 9th September, 1842. On this day the Committee resumed its Sittings. The Hon. Mr. Hincks, Nominee for the Petitioners, having vacated his Seat in the House during the Recess, by the acceptance of Office ; and being now re-elected for the same County, a Question arose whether Mr. Hincks was disqualified to act as Member of the Committee. After deliberation on the subject, the Committee unani- mously agreed to refer the Question for the Opinion of the House thereon. 10th September. The Chairman informed the Committee th.-^t the House had passed the following Resolution, in rol'erence to the Question referred for its Opinion, at the Sitting of yesterday : Resolved, — "That the Honourable Francis Hincks, a Member of the Select Committee appointed to try the merits of the Petitions of divers Electors of the Second Riding of the County of York, and of Connel James Bald- win, Esq., complaining of the undue Election and Return of George Duggan, Esq., the Sitting Member for the said ON CONTESTED ELECTIONS. 55 Riding, and the Nominee of the Petitioners against the CaseXXii. Keturn of the said George Duggan : having vacated his seat in this House during the Recess, has, although re- elected for the same County, ceased to be a Member of the said Committee, and is legally incompetent to serve on the same, unless re-appointed." This Resolution being adopted by the Committee, Mr. Hincks was declared ineligible. The Committee, by this decision, having been reduced to less than nine members, was dissolved. On the 15th September, 1842, another Committee was struck for the trial of this Case. littee unani- pinion of the it the House rence to the jf yesterday : I Hincks, a to try the the Second James Bald- nd Return of for the said JouN Philip Roblin, Esq., M.P.P. for Prince Edward, [Chairman.) Tuakcus Child, Esq., m.p.p. fur Stanstead. Samuel Crane, Esq., m.p.p. fur Grenville. Ant. C. Tasciiereau, Esq., M. P. P. for Dorchester. William H. Merritt, Esq., M. P. P. for Lincoln. Henry Smith, Jun., Esq., M. P. F. for Frontenac. Thomas Parke, Esq., m.p.p. for Middlesex. The Hon Robert Baldwin, M. P. F. for Hastings. George M. Boswell, Esq., M. P. P. for Northumberland. Norn, for P. Tlic Hon. Tiios. C. Aylwin, M. p. p. for Portneuf. Nom. for S. M. 1 HE Evidence taken under the Commission issued durinsr EWdewe the existence of the former Committee, was laid upon the table. The Committee determined that this Evidence was not in- validated by the dissolution of the Committee, and was received, (the parties consenting ) roceired. 56 PRECEDENTS OR DECISIONS CaseXXIL Members vacate seats. I I Final Re- solutions. IGtk September. The Chaiiman stated to the Committee that the Honour- able Robert Baldwin and the Honourable Thomas C. Aylwin had vacated their seats in the House, and, conse- quently, were no longer members of the Committee. After the reading of the Evidence, and the parties being heard, the Committee came to the following Resolu- tions : — Resolved^ — " That in consequence of great violence upon the persons of several of the Electors, and intimidations held out against the supporters of the Petitioner, this Com- mittee are of opinion that many Freeholders in the Riding were deterred from offering their votes for the Petitioner." Mesolvedy — " That this Committee do, therefore, declare the Election of George Duggan, Esq., for the said Riding, to hi void." Resolved^ — " That it does not appear to this Committee that the violence and intimidation mentioned in the first Resolution, were encouraged by the Sitting Member, but were discountenanced by him." And, " That neither the Petitions nor the defence to the same were Frivolous or Vexatious." // ON COSTESTED ELECTIONS. 67 CASE XXIII. COUNTY OF HALTON. The Committee was Balhtted \%th December^ 1844. John Tucker Williams, Esq., M.P.P. for Durham, ( Chairman.) Je.\n Chabot, Esq., m.p.p. for Quebec. Benjamin Seymour, Esq., M.F. P. for Lennox & Addington. rrEORGE CHALMERS, Esq., M.P.P. for Halton. Wm. B. Robinson, Esq., M.p.p. for Simcoe. Louis Lacoste, Esq., m.p.p. for Chambly. Archibald Petrie, Esq., M.p.p. for RusselL Jacques P. Lantier, Esq., ILP.P. forVaudreuil. John McConnell, Esq., ALP.P. for Stanstead. John Prince, Esq., m.p.p. for Essex.— Nom. for P. George Duggan, Jr., Esq., M.P.P. forYork.— Nom. forS.M. Petitioner and Candidate : — ^James Durand, Esq. Sitting Member : — James Webster, Esq. Counsel for Petitioner : — FRANCIS JOHNSON and VViLLlAM Bull Richards, Esquires. H Counsel for Sittinfj Member: — JoilN RoSE, Esq. The Petition, which was by a Candidate, Alleges: — That RetomiB* Officer the Returning Officer is a Partner in business with, and an active friend and supporter of, the Sitting >fomb(!r, and voted for him in the Townsiiip of Niral. }i 58 PRECEDENTS OR DECISIONS Case XXni. Deputy Returning Officers and Poll Clerks. Women Voters. Unneces- sary time. Illeeal Oaths. That the Deputy Returning Officers and Poll Clerks were generally known to be opposed to the Petitioner, and that eight of these Officers and Clerks voted for the Sitting Member. That the Deputy Returning Officer did not give notice of the time and places of taking the Polls ; and acted par- tially and unjustly, in favour of the Sitting Member. That the said Deputy Returning Officers admitted persons to vote for the Sitting Member not legally qualified ; an jected. 10th March, 1845. The Commission being returned, was this day laid be- fore the Committee, together with the Evidence taken under the same. Mr. Rose, Counsel for the Petitioners ; argued against the reception, by the Committee, of certain Evidence taken by the Commissioners, and moved the Committee to ON gONTESTED ELECTIONS. m Resolve, — "That such part of the Evidence taken under the Case XXIV. Commission, as has for its object, or tends to prove, that the Sitting Member is, or ever was, possessed of other Real Es- tate, or immovable property, than that mentioned and des- cribed by him, in his Declaration of Qualification, given to, and received by the Returning Officer, be declared to be irrelevant, illegal and inadmissible, and to have been wrongly and improperly taken ; and that the same be expunged from the IMinutes taken by the Commissioners, and held to form a part thereof; And the Petitioners further moved the Committee, that the Sitting Member mar be confined, in proof of his Qualification, to Evidence touching ci* relating to those Lands and Tenements alone, which are mentioned in his aforesaid Particular Qualification ;" And in concluding his Case, relied solely on the ground of the insufficiency of the Declaration of Qualification of the Sitting IMember ; and claimed that the Election and Reurn of Mr. Small should be declared void, and that Mr. Monro, being the only qualified Candidate, might be seated, or that a new Writ might issue. Mr. Small was heard in reply. The Room was cleared. The Committee passed the following Resolution : Resolved, — " That the Evidence taken by the Commis- Decuion. sioners, of property, other than that mentioned in the Affi- davit of Qualification of the Sitting M- ^» ' ,'r, is irrelevant, and that the same be not taken into consideration by this Committee." The Evidence upon the whok I ase being then read. It was moved to Resolve, — " That the property specified in the Qualification * f the Sitting Member, is not of the value of Five Hundred pounds of sterling money of Great 66 PRBCEDEN r.S OH DECISIONS Cmo XXIV. Britain, over ami above all Charges and Incumbrances charged upon or duo and payable out of, or affecting the same. This l)cing negatived by the Committee, it was Jiesohrd, — " Th.it notwithstanding the Ailidavit and De- claration of Qualification, made by the Sitting Meml)er, are not exactly in conformity with the form prescribed by tlie Statute, it is not of itself snflicient to invalidate the Elec- tion and Helnrn of the Sitting Member." Upon the further consideration of this Case, The following Resolution was passed : — Eesolvod, — "That Mr. Small was not duly elected, — That Mr. Monro was duly elected, and ought to have been re- turned ; and that neither the Petition nor the Opposition to it, were Frivolous or Vexatious." To this llcsolution, an amendment was moved, that the words, " That George Monro, Ksq. was duly elected, and " ought to have been returned" be erased, and the follow- 8ubstituted, " That a new Writ do issue for the Election " and lleturn of a Member to represent the Third Riding of " the County of York." Which was negatived ; and the original Resolution was ordered to be reported to the House as the Final decision of the Coinmittee, Final Re- solution. Amend- ment. ON CONTESTED BLKCTI0N8. 67 CASE XXV. NORTH HIDINr, OF LINCOLN. Tlic Coinmittrr ivas Ihflotfeddth Janum't/, 1845. JacqmkFj PiiiLtrPE Lantikk, Es((., M.P.P. for Vaudrcuil, fChairmmi.J Thy Hon. 1). R. Papinkau, M.l'.r. forOltnwa. Joseph Laurin, Esq., m.p.p. for Lotbiiiii'ro. The Hon. Jamch Smith, M.IM'. for Missisijuoi. Geok(ie Chalmers, Esq., M.p.p. for Ilalton. .loiiN MrCoNNELL, Esq., M.r.P. for Stanstcad. Etienne p. TAcnfc, Esq., m.p.p. for L'Wot Geokoe McDonell, Esq., m.p.p. for I)unila.i. John T. Willi am.s, Esq., M.p.p. for Durham. Georoe Duooan, Jun.,Esq., M.P.P. for West York.— Nom. for P. Tlio lion. lloBERT Baldwin, M.p.p. for North York.— Nom. for S. M. Pititioticm: — Electors in tho interest of George Rykert, Esquire, the opposing Candidate. Sitting Mcmher : — WiLLlAM HAMILTON MerrITT, Esqulrc. Clounselfor Pi'titionrrH : —John Rose, Es(|uiro. Mr. Merritt tppe.ired in his own behalf. 1 HE Petition alleges : — That the nomination of Candidates Petit at the last Election foi* North liincoln took place on 22nd October, 1844. That, prior to a vote being recorded ion. 68 PRECEDENTS OR DECISIONS Case XXV. on the day appointed for the Polling, a demand was made Quaiifica- of the Deputy Returning Officer, by an Elector, at the tion* Polling Place in the Township of Grantham, to know whether or not, the Candidates had severally made the De- claration of Qualification required by law, and did there, and then, require of AVilliam Hamilton Merritt, Esquire, to make the same ; t!iat IMr. Merritt protested against the demand so made, stating that the same should have been made on the day of Nomination, that it was then too late, and that he would not then comply with the requisition. That the proper Declaration of Qualification of the opposing Candidate, Mr. Rykert, was at the same time produced by the Returning Officer ; that some of the Petitioners then objected to votes being received for Mr. Merrltt, as Mr, Rykert was the only legally qualified Candidate. That Mr. Merritt is an Officer of the Board of Works, and was such at the time of the Election, and thereby was disquali- fied from being Elected. And pray that the seat of the Sitting Member may be vacated, and George Rykert, Esq., declared duly elected. lOtJt January. As a preliminary objection, Mr. Merritt protested against the legality of the Committee, on the ground, that eight of its Members were serving on other Contested Election Committees, which was, in his judgment, contrary to the spirit and intention of the Act 4tli Geo. \\. ch. 4 — against -I former precedent, and the practice of the Imperial Par- liament, as recorded in the cases of Morpeth and Shrews- bury Elections, Commons' .lonrnals, vol. .'{5, pages 74 and 17/); as ilso in the case of the Slirling Election, vol. 03, page 207. Objection to Commit* te«. /; ON CONTESTED ELECTIONS. 69 No further notice was taken of this Protest, except that Case xxv. it was ordered tn be appended to the Minutes of the Com- mittee. It must Le supposed, however, that the objection was over-ruled, as the Committee proceeded with the trial of the Case. Mr. Rose, for the Petitioners ; proposed to the Committee, Division uf to admit him to divide his Case and proceed with Evidence only, touching the allegation in the Petition, which states, that the Sitting Member was, at the time of the Election, an Officer of the Board of Works, and thereby disqualified from being elected. The Committee agreed to permit the Petitioners to divide the Case, as desired by their Counsel. Mk. Kose having been heard in his Opening; proceeded Opening, with Evidence, and, by Mr. Mittleberger, proved, that on several occasions, — viz., on the 3rd of October last, on the 24th of the same month, and on the 1st of November fol- lowing, — he had heard Mr. Mcrritt admit, that he was a gratuitous Officer of the Board of Works. The Hon. Mr. Secretary Daly produced certain Letters ; LcHer* one dated Dth May, 1844, from the Hon. Mr. Killaly, Pre- Ey"iion. sident of the Board of Works, to the Hon. Mr. Secretary ^^'- "*'^'- Daly, stating the necessity for the appointment of a person to take charge of the Public Works above the Niagara Peninsula ; one from the Hon. Mr. Secretary Daly, of the 11th .July following, to Mr. Mcrritt, oflfering to him this / uppointmont as a temporary one, at a salary of £500 cur- rency per annum ; and one from Mr. Mcrritt of the 22nd of (he same nioiilh, to the lion. Mr. Secretary Daly, accepting of the situation ; also one from Mr. .Mcrritt to the Hon. Mr. .Secretary Daly, of the 21st of October, (the day pre- vioui* to the day of Election,) resigning this oflice, and 10 PRECEDENTS OR DECISIONS Olhcr Let- tors. lion. Mr. Killaly. Case XXV. stating, that not having received any definite instructions from the Board of Works since his apppointment, he never considered himself authorized to exercise any direct powers, and therefore did not consider himself in a position to require a formal resignation. However, as he had con- sented to be nominated as a Candidate, he begged His Excellency would be pleased to accept his relinquishment of any powers or Office he may have been supposed to pos- sess ; and that it was never his intention to accept of one farthing for any temporary service, relating to the Public Works. < Several other letters were produced, shewing that Mr. Merritt had, since his appointment, signed Documents and Reports as " In charge of Western Works." The Hon. Mr. Killaly, President of the Board of Works, stated in Evidence that he did not conceive Mr. Merritt an Officer of his Department, and that Mr. Merritt received no salary ; but had performed duties under the appointment in question. 2Ath January* Mr. Rose, for the Petitioner ; was again heard, in con- cluding this branch of his Case. Mr. Meuritt was heard in reply. After deliberation, tlie Committee — Decision. Resolved^ — " That the Evidence docs not establish, with sufficient certainty, the nature and character of the employ- ment in which it was the intention of the Government to engage the Sitting Member -, to enable the Committee to pronounce him to have been, cither an Officer of the Board of Works, or to have been "Migaged by the said Board r Vice. 65. within the meaning t»f the Statute 7 Vic, ch. Gf), which, ON CONTESTED ELECTIONS. 71 involving heavy penalties for the infraction of its provisions, Case xxv. must be construed strictly, and can be applied only when the party is clearly proved to come within the letter of its enactments." " Resolved^ — " That the first ground of objection urged against the return of the Sitting Member, be dismissed, and it is hereby accordingly dismissed." The Committee ordered that a copy of the Evidence and g°PJ f^^ Documents before the Committee, together with the above ordered i Petition! Resolutions, be furnished to the Counsel for the Petitioners. 2Qth January. The Petitioners, through Mr. Duggan, their Nominee, Case aban- intimated and declared to the Committee, that they did not intend to proceed further on the Petition. The Committee then finally — Resolved^ — " That William Hamilton Merritt, Esquire, is Final deci- duly elected a Member to serve in this present Parliament, for the North Riding of the County of Lincoln." Resolved^ — " That neither the Petition, nor the Defence of the Sitting Member, appear to tills Committee, to bo Frivolous or Vexatious," sion. 72 PRECEDENTS OB DECISIONS CASE XXVI. COUNTY OF OXFORD. The Committee was Dallotted 10th Jannari/j 1845. PiEBRE Joseph 0. Cuauveau, Esq., M. P. P. for Quebec, fChaimian.J Louis Bertrand, Esq., M.F.P. for Rimouski. Louis Lacoste, Esq., m.p.p. for Chambly. John McConnell, Esq., M.P.P. for Stanstcad. Jacques P. Lantier, Esq., M.p.p. for Vaudreui!. John P. Roblin, Esq., M.p.p. for Prince Edward. George Sherwood, Esq., M.P.P. for Brockville. Benjamin Seymour, Esq., M.p.p. for Lennox & Addington. Walter 1L Dickson, Esq., M.p.p. for Niagara, The Hon. Robert Baldwin, M.P.P. for North York. Nom. for P. Henry Smith, Jun., Esq., M.p.p. for Frontenac. Nom. for S. M. Petitioner : — The Hon. Francis Hincks. Sitting Member : — Robert Riddell, Esq. Counsel for Petitioner: — William Buel Richards, Esq., Counsel for Sittincj Member : — John Rose, Esq. Scrutiny. Xhis Casc IS ono of Scnitiny. — At the close of the Poll the votes wee — For Robert Riddell, Esq., 742 For the Hon. Francis Hincks, 722 I ON CONTESTED ELECTIONS. '3 The case on behalf of the Petitioner was opened — and, Case XX VI. in conclusion, it was requested that a Commission might Opening, issue for receiving the evidence. This request being granted, the Committee adjourned. 4tJi April, 1846. The Chairman stated that Mr. Hortrand, a ^Member of Member the Committee, was excused by the House from further attendance. The evidence taken under the Commission, was laid Evidence before the Committee l)y the Chairman. Mr. Rose, for the Sittinjr Member ; Objected to the reception of the evidence, on the ground objected that the order of tlie House, directing the Petitioner to furnish the Sitting Member with a list of objected votes, had not been complied with. It was argued in behalf of the Petitioner, that the Sitting Member having ap|)eared by his Counsel, and proceeded with the case before the Commission, and a mass of evi- dence on both sides having been thereupon taken, he can- not now be permitted to revert to this objection with a view to prevent the Committee from proceeding to try and determine the case upon the merit.s. The Room was cleared, and The Committee " /I'r.sri ivv/, — That there is no evidence Decision, before the Committee that the List of Objected Votes was delivered by the Petitioner to the Agent of the Sitting Member, or left at the residence of the said Agent, pursuant fo the order of the Ibtuse." *'■ Jit'fiohrd, — That th(^ Petitioner have lime to procure the evidence which he has ojiened fo the Committee on the subject of the delivery of the Lists of Objected Voles, with a view to the establishment of his right to proceed with hi* 74 PRECEDENTS OR DECISIONS Adjourn- ment. Ca9eXXVL case ; and the Sitting Member, such as he may desire to produce in contradiction to the same, or respecting the delivery of his own List." " Resolved, — That in the opinion of this Committee the Statute does not preclude them from receiving evidence upon Collateral Points, such as the delivery of the lists of Objected Votes. The Parties being admitted, were informed by the Chair- man of the above decisions of the Committee. It was requested in behalf of the Petitioner, that the Committee would adjourn for a few days to enable him to send to Woodstock for his Agent, who would prove the Service of his List. The Committee agreed to the request, and adjourned accordingly. 22nd April. On this day the Petitioner stated to the Committee that Mr. Hendry, his Agent, had arrived, and that he was pre- pared to prove that the List of Objected Votes on his behalf, was duly served on the Agent of the Sitting Member, in conformity with the Order of the House. Mj. Hendry, one of the Agents for the Petitioner, at the last Election for the County of Oxford, being sworn, stated — that he delivered the said List of Objected Votes to a Clerk of Mr. Robertson's, at Mr. Robertson's office, at three quarters past Ten of the clock, A.M., on the 1st day of February last, the day mentioned in the order of the House of the 15th January. By desire of the Committee, Mr. Hendry laid before them a List, stated by him, to be a copy of the List referred to in his evidence. Mr. Rose, for the Sitting Member; argued, that the deli- Mr. Hen- dry ap- peared. Lists of objected votes. ON CONTESTED ELECTIONS. 75 very to the Clerk, at the Office of the Agent, was not a suf- Case XXVL ficient service, according to the order of the House, which stated, that it should be delivered to, or left at the residence of the said Agent. Mr. HiNCKS was heard in support of the service. The Room being cleared — The Committee decided that Service good. the service was good, and Resolved, — That the Petitioner is entitled to proceed with Petitioner to proceed. his case, and that he be confined, throughout the Scrutiny, to the Objections, on the List handed in by Mr. Hendry, as a copy of the one served on the Agent for the Sitting Member. The Petitioner then proceeded. The Vote of Edmund Deedes was objected to on the ground. That the voter had betted on the election. Bettirg. The Committee, after hearing arguments from the parties upon tliis principle, Resolvedy — That in the opinion of this Coniuiittee, tlic Decision, vote of Edmund Deedes is not invalidated fruin the fact of his liaving made a Wager on the last Election fur the Coun- ty of Oxford, it clearly appearing to the Cojuuilttce, from the evidence, that the said Wager had no influence on the voter. In the course of this Scrutiny, the following classes of votes were, by the Committee, held to be Bad : — Upon the objection " Value of Freehold " : On a Town Lot of half an Acre, no House or improve- Votes held ments, lies Common, value £6. On Two Town Lots, lying in Common, Voter swore to their yearly value of 40.s. Sterling. On a 50 Acre Lot, i«(»Kl for £36 os, but not paid for, ;« bad 7() I'KKCEDENTS OK DECISIONS Case XXVI. small Log House on the lot, no Barn, the person who hail bought it, would nof pay over ^6 a year for it. On a Lot of 50 Acres of Wild Land, value $2^ an Acre. On a Lot of 8 acres of Wild Land, value of the Timber sworn to at 40s. Sterling, per annum, Land no value. And upon the objection " An Alien *' : Aliens. Voter bom in the United States, came to this country in 1824, took Oath of Allegiance before Deputy Returning Officer at the? Election, has paid Alien fines. Voter born in the United States, came to this countiy in 1821, had taken tho Oath of Allegiance before the Chair- man of the Quarter Sessions Court. Voter admitted being an Alien by paying Alien fine, came to ihis country 10 years ago, took the Affirmation of Allegiance at the Poll before the Deputy Returning Officer. Votes held Good tinder the same objection of " An Alien " : — Voter admitted to the Deputy Returning Officer at the Poll, that he was born in the United States, and had not taken the Oath of. Allegiance, had resided in the Province seven years. The Oath of Allegiance was administered by Deputy Returning Officer. N'otcr admitted to Deputy Returning Officer, that he was born in the Linited States, had been in this country sixteen years, Returning Officer refused to administer the Oath of Allegiance. This oath was taken by the voter before the Deputy Register of the C'ounty, his father was an English- man. Voter was born in the United States, came to Canada in 1S18, has served in the Militia Training, and as a Constable ; IK) proof of his not having taken the Oath of Allegiance. \V»ter admitted before the Witness, he came from tho ON CONTESTED ELECTIONS. 77 United States when a tliild, in 1813, and had never taiien CuseXXVL the Oath of Allegiance, has trained as a Militia man. The admissions made about the time this Scrutiny was demanded. Voter admitted to the Witness since the Election, that he was born in the United States, and that the Americans were Ills countrymen. The Scrutiny was proceeded in from day to day, and Fortv votes were struck from the Poll Book ; Twelve of Votts struck which were polled for Mr. Hincks, and twenty-eight for Mr. rrom Puii. Kiddle, leaving on the gross Poll, Four votes in favour of Mr. Riddle. 26th May. The Chairman stated that Mr. Itoblin, a member of the Mimber . . . . 11. , vaciitrs I)}- C'ommittec had, smce its last sitting, vacated Ins seat, by acceptin}; the acceptance of Oftice. The reading of the evidence upon the Objected Votes being resumed, Mr. IIiNCKS addressed the Committee, and stated that he Scrutiny abandoned. had abandoned the Scrutiny ; and expressed a wish to pro- ceed with evidence to vitiate the Election. Mr. Rose, for the Sitting Member ; objected to any further proceedings, except on the Scrutiny, on the ground, that there was no prayer in the Petition for that purpose. Ft was argued on behalf of the Petitioner, that he is com- Lofraiit} of |)ctenl, upon his Petition to proceed on that part of his case ,io,i. opened by him to the Committee, affecting the legality of the I Election and Return of the Sitting Member, notwith- standing his having abandoned the Scrutiny. The Committee : — Resolved^ — That in their opinion, the Petitioner, having abandoned the Scrutiny, is precluded from entering into evidence to violate the Election, there being no specified 78 PRECSDENTS OB DECISIONS GueXXVL ground of objectioi or prayer to thai « ;• .^ot iioat^od in the Petition. Caaeaban- The Petitioner then abandoned his case, and the Com- nuttee : — Final Be- Besolvedy — ^That the Sitting Member was duly Elected, solution. ^^ neither the Petition, nor the opposition to it, were frivol- ous or vexatious. ON CONTESTED ELECTIONS. 79 CaM XXVII. CASE XXVII. COUNTY OF NORFOLK. TJie Committee was BaUotted on the \Qth January ^ 1845. William Dunlop, Esquire, M. P. P. for Huron, {Chairman.) Robert N. Watts, Ksq., M. F. P. for Drummond. James Cumminos, Esq., M. P. P. for Lincoln. John T. Williams, Esq., M. P. P. for Durham. The Hon. D. B. Papineau, M. p. p. for Ottawa. Jean Chabot, Esq., M. p. p. for Quebec. Benjamin Seymour, Esq., M. P. p. for Lenox & Addingtoii. George Sherwood, Esq., M. p. p. for Brockville. Louis Guillet, Esq., M. p. p. for Champlain. The Hon. Hy. Sherwood, M. p. p. for Toronto. Norn, for P. The Hon. Aua. N. Morin, M. P. p. for Bellechasse. Norn, for 8. M. Petitioners : — Electors, and David Duncombe, Esquire, a Candidate. Bitting Member: — Israel W. Powell, Esquire. Counsel for Petitioners: — MURDOCH MoRiSON, Esquire. Counsel for Sitting Memher : — John Rose, Esquire. Agent for Petitioners : — Mr. Walker, Mb. Wilson, and Mr. McKelan. Agent for Sitting Memher : — Mr. CroUBE. 1 HE Petition was by a Candidate and Electors ; — and Quaiifica- states— that the qualification of the Sitting Member was 80 PRECEDENTS OR DECISIONS Titus Williams. Case xxvil. demanded by an Elector at tlie Polling place, in the Town- ship ol' Walsinjrham. That no declaration, or copy of a declaration, was j)res- ent at the said rolling place. That in conscqnence thereof, the Deputy Returning Olli- cer, Mr. Til us Williams, refused to receive jiny more votes for either of the Candidates. That Mr. I'owelTs majority over Mr. Diincomhe, on tin- gross poll, was Four. It also slatcil, tli:it the Sitting Memiicr had not, accord- ing to the provisions of the Statute 4 and ."), N'ict. cap. .52 : delivered to the Returning OlHcer any declaration of his ((ualliiciition. And therefore |)rays that Mr. Diincoiiibo may be declar- ed the Sitting Mend)er— or thai a new NVrit may issue. Before the Counsel for the IVtitioners wuo called on to «»l)en his case, (Mij.'ctions. Mr. RoSK, Counsel on behalf of the Sitting Member, sub- nntted two preliminary objections, vi': : — First. — That the IVlition against the return of the Sit- ting Member, is insutHcient, even if the allegations therein are proved, to void the l.lection. Sccoiul. — That evitlence should not be received with refer- ence to the declaration (tf ((uaiilication l)eing demanded at the Poll in the Township of Walsingham. Mr. Muuisox, for the Petitioners ; was heard in reply, After deliberating upon the above (d)jections, the Com- mittee passed the fullowing Residution : — licjiolrtd, — That the IVtitioners be re(piired to go into evidence to substantiate the allegations in their Petition, >vith the exception of that part of it, which alleges that the Occhu-alion of (Qualification of the Sitting Member was de- r)«cisian. ON CONTESTED ELECTIONS. 81 he Town- was pres- •niii;x Ofli- lurc voti's be, on tin- it, ixcenrd- . Clip. ')2 ; ition of his be (leclar- • issuo. iilloil oil to nibcr, siib- of tho Sit- jns thcivin with rcfer- uiaiuh'il nt in roply- , Iho Coni- t(i ;;o iiitct ir IVtition, [OS that the )i'r was lU'- Case closod. irtahded at the Poll at the Township ol' Walsihghahi, and Case xxvii. not given. The Chairman having informed the parties of the above decision. Mr. MoRisoN, Counsel for the I'otitioneh' ; pt'bc6edcd to petitiou- open his Case, and concluded, by requesting that a Com- f,[g/'^''"' mission might issue for taking the evidence. The Chairman sv.is instructed to move the House for tbc Commis- appointment of the Cctiumissioncrs, as rejpiested ; and the Committee adjourned. 15/// Miirch. This day the Chairuian laid before the Committee the Evidenw. Evidence taken under the Commission, The Evidence was read. Mr. .MouisoN, for the Tetitioners, closed his case. Mr. KosK, for the Sitting Member, was heard in reply ; and urged that the iVtitinn, and all Proceedings thereon, had been frivolous and vexatious. To this proposition, Mr. Mouison was heard in reply. The Room was cleared, and The Committee agreed t' 'he following resohui^ns : — hmoJinL- '\\\i\i Israel >N ».od INtwell, Esfi., was dnlv E'nal Ke- solutions. Elected as Member for the County of Norfolk, at the last election. And the Committee, by a further resolution, informed the House that in their opinion, Titus Williams, Esij., Deputy Returning Oflicer for the Townsliip of Walsinghaui, has been guilty of an infraction of duty, in closing the Poll without sufficient cause, before the hour e Townships from the aliove causes, is not, in itself, sullicienl f <« .^• CascXXVlIl. to avoid the Klection, find that before the Sitting Member can be called upon to enter upon his del'ence, the Petition- ers shouUI proceed to shew that the probable number of votes in such Townships, was sullicicnt, had they all polled for the unsuccessful Candidate, to have given him a majority on the aggregate I'cdl of such Election. A Resolution to this effect was proposed and negatived, by the Conuuitlee. It was then moved to Resolve, — That certain Town- ships belonging to the C«)unty of Lanark, having i'cen left out by the Ueturning Oflicer at the last (jeneral Elccti^'n, it is clear that the Returning (Mlicer has not !";llov«^ed the directions of the Statute in that behalf, and that such omis- sion ought to avoid the Klectlon of the Sitting Member, un- less he shews, that notwithstanding such departure from the Statute, he(h)es still represent the ninjority of the Electors; and therefore, it is the opinion of this ("onmiittee, that the Sitting Member may go into proof of that fac' if it L^ so. This Resolution was also negatived. After deliberation, the Committee passed the following Resolutions : licsolvcdy — That in conseciucnce of a Poll not being held in the Townships of Wi'^tmcath and Koss, and the United Townships of Penibroki' nnd Stafford, for the County of l-anark, at the last Election for the said County, the said Election is void. That neither tlio Petition, nor thf defence fire frivolous or vexatious. risiun. ON CONTESTED ELECTIONS. 86 CASE XXIX. COUNTY OF 8T0RM0NT. The Comriittee was hcUIotted on the Ibtk January^ 1845. Antoink i*HOSpfeRE M^TiioT, Ksq., M. P. P., for Nicolel, ( Chairman.) BiiNJ. 11. Li:MoiNK, Ksij., M. r. 1'. for Uuntingdun. KoFKRT N. Watts, Esq., M. r. r. for DnimnKind, LoL'ia Laco.ste, Lsq., M. p. p. for Chambly. r.HWAHl) flllElVK, Ksq., M. 1', v. for Throe Kivurs. John McConnkll, Esq., M. )'. 1\ for Siiinst.ad. William Ditnlop, Esq., M. p. p. for Huron. (jiEOKCiK McDoNKLi-, Ksq., M. P. P. for Dundas. Bknja.min Skymouh, Esq., M. P. P. for Li-ruix & Addington EiJMirNi) MiiKNEY, Esq., M.P.l'.forllaHtings,— Nom. for I'. John A. Macdonald, Esq., M.P.P.forKinnsliiii, — Noiii.forS.M. VctUioners : — EI ctors. SUtiiK] Mauler: — DoNaLU /Eneas Macdonell, Esq. livoluiis Opposiiiif (^mdidaic: — Alfa, MlJ.EAN, Esq. CoHHsii for IVtit'oners : ll<>nERT80N, Esquire. Coumd fof Sittovj Mrmher:— ion's fiOSE, Esquiro. ^t^ The rolilior in (hi!< cnsc allc, and also, that the siid Sitting 4 •I 86 PRECEDENTS OR DECISIONS i ^' ur's open- ing. Quaiifica- tiuii. Casexxrx. Member was disqualiticd for being elected on the ground ; that at the time of the Election, he held the Office of, Agent for the sale of Crown Lands, — and that ^[r. McLean, the opposing Candidate, has a majority of legal votes on the Poll; and prays that Mr. McLean might be declared duly elected, or that a new Writ might issue. This case was opened by Mr. Jlobertsou, Counsel on behalf of the Petitioners — who abandoned the charge of Bribery, and rested his case solely on the following points : Firsty — That the Sitting RFember was dis(iualified, at the time of the Klection, by holuing the (/dice of Resident Crown Land /Vgcnt, lor the liasterii District. Second, — That such dis(|ualilication was notorious at the time of the Llectii-n, and was made known to the Reiurn- iug Otlicer. Thinlf — Th it Mr. McLean has a majority of legal votes on the Poll Books. The evidence given before the Connnittee was to the fol- lowing effect. That the day for the nonunation of Candidates for this ('ounty,took jdace on the 12th October. A Letter was pro- duced, dated on that day, signed by Mr. McDonell, to the Hon. Commissioner of Crown Lands, resigning his olllcc of Agent for the sale of Crown Lands in the Ivistern Dis- trict. This Letter is proved to have been mailed at Corn wall on ihf 1 4th or ir>th, and to have been received at the Crown Lanii Ollicc on the IGth of the same month. That Mr. Ml Donell oontiniit\s io perform the vluties of the (HUce, by the request of the Head of the Department, until a Suc- cessor shall be appointed. Mr. RosK, Counsel for the Sitting Memi»ri ; then address- ed the Committee iu reply, and having closed, 1-. tide nee. Leller prwluued. ON CONTESTED ELECTIONS. 87 for tills vjis pro- to the s ollicc II Dis" Coin- iil tin- riml ( UUci', a Suc- The Committee came to the following Resolutions : Case XXIX. cision. ilesokeiL— Thai on the 11th day of October last, the !■'>'.'*' ^^' Sitting Member was District Agent for the sale of Crown Lands for the Eastern District. Resolwd, — That on the 16th day of the same month, the Sitting Member ceased to be Resident Agent for the sale of Crown Lands for the Eastern District. Resolved^ — That there having been three Candidates nominated, and a Pull demanded on the 12th October, 1844, and the Sitting Member having ceased to be Resident Agent on the IGtli October, and subsequently, to be voted for, elected and returned as Member for the County of Stormont ; Resolved^ — That Donald ^^neas Macdoncll, Esq., was duly elected a Member to represent the County of Stor- mont, in the present Parliament^ — and that neither the Petition, nor the defence of the Sitting Member, is frivolous or vexatious. V?*^^^^^, T" dd PBECfiDBtJTS Oft DECISIONS CAS J: XXX. COUNTY OF MlDDLtlSEX. The Committee icas JSaUotted on the \(Sth January, 1845. Walter Hamilton Dickson, Esquire, JI. 1*. I*, for Nia- gara, {Cliairman.) Francois Desauniers, Esq., M. P, P. for St. Maurice. Neil Stewart, Esq,, M. P. P. for Prescott. Benjamin Seymour, Esq., M. p. p. for Lennox & Add. Louis Lacoste, Esq., M. p. p. fof Chambly. John A. McDonald, Esq., M. P. P. for Kingston. flTiENNE 1*. Tacii^, Esq., M. P. r. for L'Islet, John McConnell, E^q., M. p. p. for Stansteftd. John T. Williams, Esq., AI. P. P. for Durliam. The Hon. T. C. Aylwin, M. P. P. for (Juebec. Nom. P. The Hon. Hiinry ShekWood, M.P.P. for Toronto. Nom. S.M. Petitioners: — 1. Electors. 2. William Notman, Esq., a Candidate. Sitting Member : — Edward Ermatinger, Esq. Counsel for the Petitioners : — Wm. Buel Richards, Esq. Mr. Notman appeared in bis own behalf. Mr. Ermatinger appeared in his own behalf. X HE Petitions in this case state : — That at the last Election for the County of Middlesex, William Notman, Esq., and the Sitting Member were Can- by ON CONTESTED ELECTIONS. 89 1845. for Nia- Esq., Esq., id. I. .WIN, . Nom. P. Koin. 8.M. [ididate. sq. )s, Esq. Ilf. [iddlescx, ere Can- didates ;--Th.'it .lolin Wilson, Escj., of London, was the Cuso xxx. |{efurnin£^ Ofliccr ; And aMcj^-e : — That tlie Ketiirning OfficRr for tlic Township of .Mahihide Ermr in adding the liad made an error in the adding the Votes for tiuit Town- votes. fihip, of two, in favour of the Sittin'j Member. That tlierc was irreijnhuity and niiseondnet iii iiia:>y of Trotost. the proceedings during the said Election, which are set forth in the Protest accompanying the i{eturn of the Sitting Member. That the majority of l^egal Votes were polled for Mr. Notman. That the Election was lield in the Town of London, which is Incorporated, and not within the County, as the Law directs. And that the several lleturning OlBcers and Poll Clerks Returning o 1 .1 .1 Officers were not Sworn at the respective and proper times and not s«orn. places, as directed by the Statute. And prayed, that the Keturn niig'it be amended by eras- ing the name of Mr. Ermatinger, and inserting the name of Mr. Notman in lieu thereof. At the close of the Poll, the Number of Votes, reported by the Iktnrning Ollicern to have been polled, were — For Mr. Ermatinger 1000 For Mr. Notman 993 Shewing a Majority in favour of Mr. Ermatinger itf Seven ^'otes, On the 20th January, a Commission was issued for taking the Evidence in this Case ; which, not being returned before the I'rorogation, the Conunittee stood adjourned to the Second day of the Ensuing Session, M I'oll. Conimis- sIdu not returned. 90 PRECEDENTS OK I^ECiSIONS '1 -I Special Keport. m Case XXX. 22wJ March, \S4(j. The Committee met pursuant to the Statute, and the Commission not haviu\ it- 1 for the lad made cstcrday, urned. made to Town of )f llamil- ^Q of St. the l^vl- iMiddle- {etiirn to to them ittce, the ar at the and that ly to day that Mr. ON CONTESTED ELECTIONS. 91 iiniission, the Corn- returning umission- ers, jHid himself, wore of Opinion that tliey would be or- Case XXX. dered again to proceed in taking fiirtlicr Evidence in conse- quence of liaving received th<' Mviilence only in part. This Letter was, by a Special Itcport, laid before the House. The I'KTiTiONEU was called upon to proceed with his Case. The Sitting Mi:mui:u objected to the evidence taken by Adjoum- the Commissioners being received; on the (j round of an "'^'"'^" Adjournment on the ovd March to the oOth .June, which was extremely prejudicial to his Interests, and having been advised professionally that it was '' jral, he entered a Pro- test before the Conunissioners aeci liiigly. The rKTiTiONKR was heard in Opposition to the Objection ; and stated, That the reason wh}- the Commissioners had so Adjourned their Sittings was, that the state of Ihe lloadsat that time rendered it impossible for either Summonses to be served, or Witnesses to attend. That the Adjournment was agreed to by all Parties, and that no Protest was olVered at the time ; but that on the i]Oth June, an Entry was made on the Proceedings of iJrd March, Protesting, on the part of the Sitting Member, against the Adjournment. The SiTTixci MinmEii was again heard ; and stated that, although the Condition of the Koads at the time of the Ad- journment was bad, it was not the reason of such Adjourn- ment, inasmuch as several Witnesses were then on or near the spot where the Sittings of the Committee were held. He stated also, with regard to the protest not being entered on the ;)rd March, when it was made ; that his authorized Agent, Mr. lucks, was not i)resent on that day, but that on discitvering thai the Protest given by Mr. Bur- well, whom he had deputed to act for Idni, was not enter- <'d, he desired, on the follow ing da\ , that it might be entered ..■^.y. 3MAGE EVALUATION TEST TARGET (MT-S) &c ^/ ^.^. ^-^ /. i z 1.0 IA£12.8 ■ 2.2 H* MA ■■■ lit lU 2.0 IL25 III 1.4 I 1.6 I^otographic _Scmces Corporalion it'' V ;\ \ ^^^<» 93 WIST MAIN STRUT WIUTH.N.Y. MSM (7U)l79-4»03 ;\ A<^ S d^ PRECEDENTS OR DECISIONS t. I' Resolu- tions. Case XXX. forthwith ; but was told by the Commissioners that it could not be so entered until the next Meeting, which was to be on the 30th June. The Parties were then directed to withdraw ; and the Committee Resolved^ — " That the Mode of Proceeding on the part of the Commissioners appointed to take Evidence in the Matter of the Controverted Election for the County of Middlesex, in adjourning several Months on different occasions, without any reason assigned, was Illegal." Resolved, — " That the Evidence taken tinder the Commis- sion so Illegally executed, cannot be received or read as Evidence before the Committee." • It was ordered, that the Chairman do report the last resolution to the House; and the Committee adjourned. bth May. On this day the Petitioner, Mr. Notman, addressed the Committee ; and concluded by stating, that owing to the Decision of the Committee, Rejecting the Evidence taken by the Commissioners ; he abandoned the Contest, And having retired, The Committee Itfsolved, — " That the Sitting Member for the County of Middlesex has been duly Elected and Returned. And, That neither the Petition, or the Opposition to it, were Frivolous or Vexatious." final de- cision. ON CONTESTED ELECTIONS. m ; it could ras to be and the e part of c Matter iddlesex, , without Commis- read as the last rned. Essed the g to the ice taken 'ounty of And, it, Wer(J CASE XXXL COUNTY OF OXFORD. Sitting Member: — Peter Carroll, Esq. 1 HE Proceedings in this Case were commenced, by the roll House directing that the Clerk of the Crown in Chancery do kid on the forthwith produce and lay upon the Table, the last Return ^ ^' for the County of Oxford, together with the Poll Books transmitted to him by the Returning Officer for that County. Upon this Order being complied with, the following Reso* Resoiu- lutions were passed by the House : — Hesolvedy—"^ That in Obedience to a Writ of Election duly issued, and returnable on the 24th day of January in the present year, an Election was held for the County of Ox- ford on the 28th day of December, 1847." liesolvedy — "That Francis Hincks, Esquire, and Peter Carroll, Esquire, were Proposed and Seconded, and were Candidates at the said Election." Itesolvedj—^^ That a Poll was Demanded and Allowed by iho Returning Officer, according to Law, and that the said Poll was taken in the several Townships comprised within the said County." i^p-WtvY/,— " That by the said Poll Books Returned to th^^ Clerk of the Crown in Cli.uiccry, with the said Writ of Election, it appears that Eight lluuchcd and Thirteen votes were taken for the siid Fraiuis llincks, and Four Hundred and Scvcnty-cight votes for the t«aid Peter Carroll ; and 94 PRECEDENTS OR Di'^.CISIONS mi ^i r Case XXXI. that, therefore, so far as the Facts appear from the said Poll Books, the said Francis Hincks should have been re- turned, duly Elected." Resolved, — " That notwithstanding the said Majority of Votes appearing in favour of the said Francis Hincks, the lleturning Officer who held the said Election, returned the said Peter Carroll duly Elected ; and the said Peter Carroll has taken a Seat in this House, in pursuance of such Return." Resolved, — "That a due regard for the Rights of Electors, and for the Privileges of this House, requires that the said Return should be amended according to the Facts apparent upon the said Poll Books." Resolved, — " That the Clerk of the Crown in Chan ^ery do attend this House forthwith, and amend the Return for the said County of Oxford, by erasing the name of Peter Car- roll, and inserting therein the name of the said Francis Hincks ; and that the said Francis Hincks do take his Seat in the House forthwith, in place of the said Peter Carroll ; reserving to the said Peter Carroll, and to all others whom it may concern, all Rights of Petition and other proceedings for Controverting and Obtaining a Final Decision on the Legality of the said Election and Return." Whereupon the Honourable Francis Hincks took his Scat in the House, as the Sitting Member for this County. A Petition was subsequently presented to the House by Peter Carroll, Kscjuire, upon which a Committee was struck for the Trial of the Case. ON CONTESTED ELECTIONS. 95 the said 1 been re- ajority of neks, the irned the er Carroll of such Electors, t the said apparent lucery do rn for the etcr Car- l Francis 5 his Seat Carroll ; rs whom )ceedings m on the his Seat ty. louse by as struck The Committee was hallotted itiih March, 1848. Case XXXI. Jean Chabot, Esq., M.P.P. for the County of Quebec, Commit- f Chairman.) Joseph C. Morrison, Esq., M.P.P. for West York. Colonel Duchesnay, M.P.P. for Portneuf. Joseph C. TachiS, Esq., M.P.P. for Kimouski. Joseph Laurin, Esq., m.p.p. for Lotbiniere. David Thompson, Esq., M.P.P. for Haldinmnfl. Michel Fourquin, Esq., M.P.P. for Yamaska. Robert Bell, Esq., m.p.p. for Lanark. Thomas Boutillier, Esq., M.P.P. for St. Hyacinthe. Colonel Prince, m.p.p. for Essex. — Nona, for P. Lewis T. Drummond, Esq., M.P.P. for Shefford. Nom.forS.M. Petitioner: — Peter Carroll, Esq. Sitting Member : — The Honourable Francis Hincks. Counsel for the Petitioner : — JoiiN KosE, Esq. Counsel for the Sitting Memher : — Henry Judah, Esq. cation. The Petitioner alleges : — that on the Day of the Nomina- Quaiifi- tion at the last Election for this County, the Property Qual- ification of the Honourable Francis Hincks was duly demand- ed by an Elector, and the said Francis Hincks not being personally present, there was presented to the Returning Officer, alleged to bo on his behalf, a Paper purporting to be a Declaration of Qualification, according to Law, but taken and subscribed long before the Dissolution of the last Parlia- ment. 96 PRECEDENTS OK DECISIONS Case XXXI. That the retitioiier then, and still, believing the De- claration to be of no Validity, Protested against the same, and on the Polling Days, in the several Townships, gave Notice that the said Francis Hincks had not given in his Qualification according to Law ; and that all Votes polled for him would be thrown away. That the said Declaration of Qualification is insufficient and worthless, on the further ground that the said Francis Hincks was not prevented from attending the said Election by Sickness or any other Unavoidable cause, and ought, therefore, according to the terms of the Act of Union, to have bocn Personally present at the said Election. That the said Declaration is not such, as that any Indictment for Perjury or Misdemeanor could be preferredthereon,if Untrue; that it is not Direct and Positive, but in the Alternative ; and that the Property on which the Bald Francis Hincks so pretended to qualify is not of the value of Five Hundred Pounds Sterling, over and above all Incumbrances — and Prays the House to enquire into the matter, and grant to the Petitioner the Seat. The Hon. Mr. Hincks, the Sitting Member, having va- cated his Seat by the acceptance of Office, was, by a Resolu- tion of the House, admitted as a party to oppose the Petition in this Case. The Clerk of the Crown in Chancery laid before the Com- mittee the Qualification of Mr. Hincks as produced before the Returning Officer at the Election. Mr. Rose, for the Petitioner ; proceeded with his Open- ing and concluded. George Brown, Esq., was called, and Sworn. Mr. Rose proposed the following Question : " Were you the person by whom the Paper Writing styled ' Qualification ON CONTESTED ELECTIONS. 97 of Mr. Hincks,' was delivered to the Returning Officer; Caae xxxi. From whom did you receive it ?" Mr. Judah Objected to the latter part of the Question being put to the Witness. Objection held good ; and the words " From whom did you receive it," struck out. The Witness answered, that he was the Person mention- ed in the question. Another Question was proposed by Mr. Rose, and ob- jected to by Mr. Judah. Objection held good ; and the Question withdrawn. Mr. Judah, for the Hon. Mr. Hincks ; admitted that Mr. Hincks arrived in the Province on or about the 18th or 19th of December last, and was about his Ordinary Bu- siness in Montreal from that date to the time of the Elec- tion, on the 28th of the same Month. Mr. Rose, for the Petitioner, was again heard ; and having declared his Case closed, Mr. Judah then addressed the Committee, and concluded the Defence. Mr. Rose was heard in explanation. The Parties were directed to withdraw. 18th March, The Committee, after deliberation, came to the following as their Final Resolutions : — Resolvedy — " That the Alegations contained in the Peti- tion of Peter Carroll, Esquire, touching the sufficiency of the Declaration of Qualification produced at the late Election for the County of Oxford, in behalf of the Hon. Francis Hincks, are not sustained by Evidence adduced before this 98 PRECEDENTS OB DECISIONS CflseXXXL Committee on the part of Peter Carroll, the said Peti- tioner." " ^eso?re(f,— "That the Declaration of Qualification of the said Hon. Francis Hincks was Duly and Legally made at • the said Election for the County of Oxford." ■ < Resolved^ — "That the said Hon. Francis Hincks was Duly Elected a Member to serve in the present Parliament, and ought to have been Returned as such, by the Returning Officer at the said Election for the County of Oxford." Resolved^ — " That neither the Petition nor the Defence by the Hon. Francis Hincks are Frivolous or Vexatious." By Order of the House, the Returning Officer, John George Vansittart, Esquire, appeared at the Bar, and hav- ing been heard by himself, and Witnesses ; touching his con- duct at this Election, the House passed the following Re- solutions : — Resolvedy — " That this House, having heard the Evidence ' adduced on the part of John George Vansittart, Esquire, in * defence of his conduct as Returning Officer for the County * of Oxford at the last General Election, adheres to its Re- ' solution of the 21st March last, 'That the said John ' * George Vansittart, Esquire, having taken upon himself ' * to return Peter Carroll, Esquire, as Member for the * said County, to serve in the present Parliament, contrary * * to the Majority of Votes received by him on the Poll * * Books in favour of the Hon. Francis Hincks, who ought * * therefore to have been returned, acted illegally, in defi- * * ance of Law, in Manifest Violation of the Rights of the ' ' Freeholders of the said County, and in Breach of the * * Privileges of this House.' " ON CONTESTED ELECTIONS. , Resolved^ — " That an Humble Address be presented to His Case xxxi. " Excellency the Governor General, praying that His Excel- " lency may be pleased to remove the said John George Van- " sittart, Esquire, from being Inspector of Licenses for the " District of Brock, as a Warning to others who shall " hereafter fill the very Responsible Office of Returning "Officer." * 100 TRKCEDENTS OK DECISIONS CASE XXXII. COUNTY OF KENT. 1st Session, Brd Parliament^ 1848. {A Special Return.) Candidates'. — Malcolm Cameron, Esquire, and the Honourable John Hillyard Cameron. Returning In this cEse, a Communication is made by the Returning Return^to Officer, and laid before the House, as a Return to the Writ "'■ of Election, in the following words, viz. : — " By virtue of the Writ by which I am appointed Return- ing Officer for the County of Kent, I do declare and make Quaiifica- " That Malcolm Cameron, Esquire, and the Honourable Candidate. John Hillyard Cameron, were the Candidates for the Repre- sentation of the said County. That on the First and Second days of polling Votes during the said Election, as will ap- pear by reference to the Poll Books for the said County, the Qualification of the said Malcolm Cameron, Esquire, (qualifying to sit as a Member for Kent, should be Elected according to the Statute in such Case made and provided) was demanded by Electors of the said County, in several Townships of the said County, of the Deputy Returning Officers of such Townships respectively, as will appear by reference to the said Poll Books, and that no Qualification according to the Statute was handed to any of the Deputy Returning Officers for the said County, or to myself, the Returning Officer, by the said Malcolm Cameron, or by any ON CONTESTED ELECTIONS. 101 one on his behalf, until the Third Day after the several Polls Case XXXII. for the said County had closed, to wit, on the 22d instant. I, therefore, feeling doubtful whether Malcolm Cameron is Elected for the said County, his Qualification having been demanded at the several Polling places as aforesaid, and not being put in, or forthcoming when so demanded, or du- ring the said Polling, do hereby Declare that I cannot return him, the said Malcolm Cameron, to be the Member Elect for the said County, but leave it to the Honourable the House of Assembly to decide who, under the circum- stances, is the Member Elect for Kent." "January 24th, 1848." By order of the House, the Clerk of the Crown in Chan- Poll Books, eery laid upon the Table the last Writ of Election for the table.*" County of Kent, together with the Poll Books returned therewith to him, by the Returning Officer for the said County, at the said Election. Whereupon the House Resolved^ — " That in obedience to a Writ of Election duly Resolu- Issued, and Returnable on the Twenty-fourth Day of Ja- HTse.*^''''' nuary in the present Year, an Election was held for the Kent, on the 18th day of January last." Resolved^ — " That Malcolm Cameron, Esquire, and the Honourable John Hillyard Cameron, were Proposed and Seconded, and were Candidates at such Election." Resolved. — " That a Poll was demanded and allowed bv the Returning Officer, according to Law, and that the said Poll was taken in the several Townships comprised within the said County." Resolved^ — ^" That it appears, by the Poll Books returned , to the Clerk of the Crown in Chancerv with the said Writ 102 PRECEDENTS OB DECISIONS Kesolu- tiuns. Case XXXII. of Election, that One Thousand and Seventy-nine Votes were recorded for the said Malcolm Cameron, and Five Hundred and Fifty Votes for the said Hon. John Hillyard Cameron, and, therefore, that the said Malcolm Cameron had a Ma- jority of Votes ; and that notwithstanding this, the said Re- turning Officer, George Wade Foote, Esquire, did not de- clare the said Malcolm Came" on as duly Elected." Hesolved, — " That the said Malcolm Cameron ought to have been Duly Returned as Knight Representative for the County of Kent, in the present Parliament." 1 Resolved^ — " That the said Malcolm Cameron has a Right to take his Seat in this House as Representative for the said County of Kent ; saving, however, to all Candidates and Electors their Right of Contesting, if they think proper, in such manner as may appertain in Law and Justice, accord- ing to the usage of Parliament." i' ON CONTESTED ELECTIONS. 103 CASE XXXIII. TOWN OF CORNWALL. Committee was Ballotted on the 17 th Marchj 1848. Lewis Thomas Deummond, Esquire, M. P. P. for Sheflford, (Chairman.) NORBERT Dumas,, Esq., M. P. P. for Leiiister. John Egan, Esq., m. p. p. for Ottawa. Jean Bte. MoNGENAiT,Esq., M. p. p. for Vaudreuil. John aicCoNNELL, Esq., M. p. p. for Stanstead. Tanceede Sau vageau, Esq., M. P, p. for Huntingdon. David B. Stlvknson, Esq., M. p. p. for Pnnce Edward. Colonel Duchesna y, m.p.p. for Port Neuf. Pierre C. Marquis, Esq., M. P. P. for Kamouraska. Wm. Duel Richards, Esq., M. P. p. for Leeds, Nom. for P. Pierre J.C. Chauveau, Esq. M. P. P. for Quebec, Nom. for S. M. Petitioners : — Electors. Sitting Member: — The Honourable John Hill yard Cameron. Counsel for Petitioners: — Henry Judah, Esquire. The Sitting Member appeared in his own behalf. The Petition Alleges :— that the Notice of Eight Days re- ^i hi quired by Law, to be given previously to the Election, was ^^y^' ' notice. not given ; the tune between its Publication and the Elec- tion, being Seven Days only. That the Return of the Ho- nourable John Hillyard Cameron, the Sitting Member, was 104 PRECEDKNTS OR DECISIONS I'm'' Case XXXIII. effected partly through means of Bribery, Corruption and Intimidation. That a number of illegal Votes were polled in his favour. That a Member of the Legislative Council was allowed to record his Vote in favour of the Sitting Member. That the Qualification of the Sitting Member was made before a Magistrate, and not before the Re turning Officer ; and Prays for Relief in the premises. Bribery. Qualifica- tion. Objections by S. M. S I. Decision. Petition- er's Open- ing. Returning Officer's Evidence. Notice. As a Preliminary Proceeding, Mr. Cameron submitted to the Committee, several Objections to the reception of the Petition. Mr. Judah, for the Petioners ; was heard in reply. After considerable discussion, the Committee Resolved, — " That in the opinion of this Committee, the Allegations in the Petition, and the Prayer of the Peti- tioners, are sufficient to require further Investigation of the matters therein complained of." 22nd March. Mr. Judah, for the Petitioners; proceeded with the Opening of his Case ; and in Conclusion, stated ; that he rested the same, solely upon that part of the Petition which Alleges that Eight Days' Notice of the Election was not given by the Returning Officer. Dunbar Pringle, Esq., the Returning Officer at the last Election for Cornwall, was called, on the part of the Peti- tioners, who being Sworn, stated, that he received the Writ on Thursday, the 8th December last, and forthwith gave Notice to the Electors by Proclamation, that he would hold the Election on the Thursday following ; was request- ed to fix that day by the Sitting Member, the Opposing Candidate consenting, — the Election was held accordingly. The Polling commenced on the Wednesday following the / ON CONTESTED ELECTIONS. 105 day of Election: there was no Protest made during the CtwXXXin. Election of any kind ; there was much time at the diffe- rent Polls in which no Votes were takeii ; does not think the short Notice prevented any Person from voting ; some Voters came from a distance. This being all the Evidence adduced in the Case, The Counsel for the Parties Mere then heard ; and the ro(mi being cleared, The Committee proceeded with the consideration of the I'roroga- ^ tion. Case ; and not having finally decided the same before the Prorogation, — it stood adjourned, pursuant to the Statute, to the second day of the ensuing Session. Idth January^ 1849. This day the Committee resumed its sittings. Mr. Duummond, the Chairman of the Committee, having, Chairman ' > b> vacated his during the Recess, vacated his Seat in the House by the seat, acceptance of the office of Solicitor General, was thereby disqualified from being a Member of the Committee, al- though re-elected for the same Constituency. Whcrcuf on NoiiBEKT Dumas, Esquire, M.P.P. for Leinster, was unanimously chosen Chairman of the Committee, in the room of Mr. Drunimond. The Committee proceeded with the deliberation of the Final De- Case for several Days, and finally agreed to the following Resolutions : — JRcsolvrd, — '-That, in the opinion of this Committee, Eight clear days' Notice of the time and place of holding an Election, is required by the Provincial Statute 6 Vic. chap. 1." cis.on. I !• r ' -■ 1 • . t 106 PRECEDENTS OR DECISIONS CaseXXXin. Resolved^ — " That such Notice was not given for the hold- ing of the Election of a Memher to represent the Town of Cornwall in the present Parliament." Resolved, — " That this Committee have no reason to be- lieve that the Result of the said Election has been affected by such Irregularity." Resolved, — " That, in the opinion of this Committee, the conduct of the Returning Officer, at the said Election, in giving the Notice thereof, was not in accordance with the said Act." ' Resolved, — "That the Honourable John Hillyard Cameron was Duly Elected to serve as a Member to Represent the said Town of Cornwall in this present Parliament." Resolved, — " That neither the Petition, nor the Defence to the same by the Sitting Member, are Frivolous or Vex- atious." ON CONTESTED ELECTIONS. 107 CASE XXXIV. COUNTY OF STORMONT. The Committee was ballotted 17th Marchf 1848. AndriS Jobin, Esquire, M.P.P. for the County of Montreal} (Chairman.) David Thompson, Esq., M.P.P. for Haldiraand. Robert Bell, Esq., m.p.p. for Lunurk. Colonel DUCHESNAY, M.P.P. for Portneuf. Joseph C. Tach^, Esq., M.P.P. for RimousUi. Thomas Boutillier, Esq., M.P.P. for St. Hyiicinthc. Joseph C. Morrison, Esq., M.P.P. for West York. The Hon. Hy. J. Boulton, M.P.P. for Norfolk. James Hall, Esq., m.p.p. for Ptitorborough. Lewis T. Drummond, Esq., M.P.P. for SheffonL— Norn, for P. The Hon. J. A. Macdonald, M.P.P. for Kingston.— Nona. forS.M. Petitioners ;— DoNALD ujEneas Macdonell, Esq., a Candi- date, and others, Electors. i Citting Member: — Alexander McLean, Esq. Mr. Macdonell appeared as Agent for the Petitioners. The Allegations of the Petition in this Case, are mate- rially the same as in the last, with the addition of the fol- lowing Charges : — That the Deputy Returning Officer for the Township of Countj Cornwall received Votes upon Property within the Town of Town Pro- Cornwall; the Voters having also voted for a Member to ^"*" Represent the said Town. IQS PRECEDENTS OB DECISIONS Case XXXIV. And that the Returning Officer was not a Freeholder of the Returning Countv of Stormont, nor had he resided therein for twelve Officer not *' ' Free- holder. Opening by Teli- tioners. Witness objected to. months prior to the Election, as required by the Statute. Objection good. Verbal Evidence. Isolated Froclama- mations. Notic*. Cas* clgwdi The Case for the Petitioners being opened by Mr. McDoNELL, he proceeded with that part of the Petition which alleges the insufficiency of the Notice by the Return- ing Officer, of the time of holding the Election. A Witness for the Petitioners being sworn, was objected to on the part of the Sitting Member, on the ground that he had signed the Petition against the Return, and was there- fore liable for the Costs, if Costs should be awarded to the Sitting Member. The Objection was held good. It was decided by the Committee, that the Petitioners can- nut be entitled to establish, by verbal Evidence, the contents of the Proclamations, unless they previously prove that the Proclamations have been destroyed, or have disappeared from the places where they were affixed. And, That the proof of isolated Proclamations having been put up, is no Proof that other Proclamations may not have been put up. By the Returning Officer, it was proved that the Procla- mation giving Notice for the holding of the Election was issued by him on Thursday the 9th of December last, and the Election was held on the Thursday following. That he owned no Property in the County of Stormont except that lying within the Limits of the Town of Cornwall. That he allowed Votes to be received on Property situate within the Town of Cornwall, upon which they were not qual- ified to vote in the said Town. The Case for the Petitioners, being closed, r ON CONTESTED ELECTIONS. 109 The Sitting Member was heard in reply. Case XXXIV. The Deliberations of the Committee not having been con- Proroga- tion. eluded before the Prorogation, it stood adjourned till the Second day of the ensuing Session. 19th January^ 1849. This being the second day of the Session, the Committee resumed its Sittings. The Chairman laid before the Committee, a Letter from J-et^er ' from Mr. Mr. McDoiicll, Agent for the Petitioners, stating, that should McDowell, the Committee deem the want of sufficient Time, between the Proclamation and the day of Nomination, insufficient to in- validate the Election, he was prepared to enter upon proof upon the other points in the Petition. The Committee Besolved. — " That by the words of the Resolu- tions. 6th Vic. chap. 1, (regulating the Election of Members of the Legislative Assembly,) " at least Eight Daysy'' are Imper- ative, with regard to the Returning Officer, but cannot have the effect of rendering the Election Void, when the In- sufficiency of Notice has not deprived any Elector of his right to Vote." Besolved, — " That an opportunity should be afforded to the Petitioners, to prove that the result of the Election was affected by the insufficiency of the said Notice ; and that a certain delay be afforded them for that purpose." Reaolvedy — " That the 20th day of February next, at 10 o'clock, p. M., is hereby appointed to hear the Parties, and take any Evidence that may be offijred by them." The Committee directed a copy of the above Resolutions to be transmitted to each Petitioner, respectively ; and adjourned their Sitting until the 20th February following. 110 PRECEDENTS OB DECISIONS CaseXXXIV. % ) FinalDe- cision. ; % lv :c 20«^ Februari/. No further Evidence being adduced before the Committee touching the Allegations in thePetition ; The Committee, after deliberation, agreed to the following Resolutions, as their final decision upon the Case : — Resolvedj — " That in the Opinion of this Committee, Eight clear Days' notice of the Time and Place of holding an Elec- tion, are required by the Provincial Statute, 6th Vic. ch.l." Besolved, — " That such Notice was not given for the hold- ing of the Election of a Member to Represent the County of Stormont, in the present Parliament." Besolved, — " That this Committee have no reason to be- lieve that the result of the said Election has been affected by such irregularity." Resolved^ — " That in the Opinion of this Committee, the conduct of the Returning Officer at the said Election, in giving the Notice thereof, was not in accordance with the said Act." Resolved, — " That Alexander McLean, Esquire, was Duly Elected to serve a. Member to represent the said County of Stormont in this present Parliament." Resolvedf — " That neither the Petition, nor the Defence to the same, by the Sitting Member, aie Frivolous or Vexa- Uous." ■(.> ', ,:. ., ,;^ ■A ON CONTESTED ELKCTIONS. Ill CASE XXXV. COUNTY OF WATERLOO. The Committee was BaUotted 5th February, 1849. Robert Nugent Watts, Esquire, M.P.P. for Drummond, The Hon. Mr. Atty. Gen. LaFontaine, M.P.P. for Montreal, The Hon.MALCOLMCAMERON, ^ M.P.P. for Kent. Tancr^de Sauvageau, Esq. M.P.P. for Huntingdon, WoLFRED Nelson, Esq., M.P.P. for Richelieu. Joseph C. Morrison, Esq., M.P.P. for West York. {Chairman.) The Hon. James H. Price, M.P.P. for South York. Duncan McFarland, Esq., M.P.P for Welland. Mr. Sol. Gen. Blake, m.p.p. for East York. William Notman, Esq., M.P.P. for Middlesex, Nom. for P. John Wilson, Esq., m.p.p. for London. Nom. for S.M. Petitioners :—Adau Johnston Fergusson, Esq., a Can- ' didate, and others. Electors. ^'«% JlfmJer.-— James Webster, Esq. Mb. Fergusson appeared on behalf of the Petitioners. The Petition Alleges : — That the Majority of Votes appearing on the Poll Books, is composed of Persons not entitled to the Franchise. That Polls were held in the Townships of Arthur, Nor- Owen', manby, Egremont, Bentinck, Glenelg, Sullivan, Holland, Trilct 112 PBECEDENTS OB DECISIONS Votprs not Free- holders. Outrage. Agents. Cas e XXXV. Derby and Sydenham, situated in the territory of the Owen's SouHd, Tract. That a very great Proportion of the Persons who voted in these Townships were not Freeholders ; that the Lands on which they voted were vested in the Crown, no Patents having ever issued therefor. That in the said Townships, no free or orderly Election was held ; but a general scene of Outrage and Intimidation prevailed. That the Agents of Adam Johnston Fergusson, Esquire, were, in some of these Townships, forcibly carried off and were therefore unable to be present to represent Mr. Fergusson thereat. That the Deputy Returning OflScers for the said Town- ships admitted Persons to vote for Mr. Webster, indiscri- minately, and without regard to their Property Qualifica- tion. And Unneces- That the PoU for the Township of Waterloo was not sary Ques- tions, kept open a sufficient time for the Electors to record Oaths and ^ r , . . Entries, their Votcs, and that much time was wasted in putting unnecessary questions to Voters, in favor of Mr. Fergus- son, and making unnecessary entries in the Poll Book, greatly to his prejudice. And Prays that the Election of Mr. Webster may be declared void, and that Mr. Fergusson may be declared duly elected. Petition The Petition in this Case was not taken into considera- dered dur- tlon during the Session in which it was first presented ; felssion! the Prorogation having taken place before the day ap- pointed by the House for striking the Committee, had ar- rived. The Petition was renerred at the ensuing Session, ON COXTBSTED ELKCTIONS. 113 upon which, a Committee was appointed for trying the Caae xxxv. Case. • .* '• 1 6th Februari/. The Clerk of the Crown in Chancery, by order of the Committee, produced the Poll Books, which were laid upon the Table. Mil. Fergusson, for the Petitioners, proceeded with the Petitioners' opening of his Case, and called Mr. Jones, a Clerk in the Crown Lands Office, who produced Lists containing the whole number of Patents issued up to the 1st February, 1848, ' (being subsequent to the Election,) for Lands in the Town- ships of Bentinck, Egremont, Glenelg, Holland, Norraanby, Sullivan, and Arthur. 7th Februarif. Me. Webster not appearing, to defend the Seat, and no s. M. did not defend. further Evidence being adduced, — the Committee came to the following as their final Resolutions in this Case : — Eesolvedj — " That at the last Election for the County of Final lie- solutious. Waterloo, 1409 votes were polled and recorded for James Webster, Esquire, and 1107 for Adam Johnston Fergusson, Esquire, and that thereupon, the said James Webster was, by Alexander Dingwall Fordyce, Esquire, the Returning Officer, proclaimed as being duly elected." Reaolvedf-^'' That of 688 Votes polled for Mr. Webster in the Townships of Bentinck, Glenelg, Holland, Sullivan, Normanby, Egremont, and Arthur, in the said County, 165 only were valid, — the remaining 523 votes recorded for Mr. Webster, were invalid ; the Parties tendering the votes so declared invalid, had no title to the property upon which they proposed to vote, and this fact in 69 instances, appears on the face of the Poll Books." 114 PRECEDENTS OR DECISIONS f Final Re- 8olutioDS. 11 CaseXXXV. Besolvedj — "That the Petitioner, Adam Johnston Fer- gusson, Esquire, having a majority of legal Votes on the Poll Books at the last Election for the County of Waterloo, was duly elected." Besolvedj — "That the facts connected with the last Election for the County of Waterloo, especially the conduct of the Deputy Returning Officers for the Townships of Waterloo, Holland, Sullivan, and Arthur, are such as de- mand the serious consideration of the House." Besolved, — " That the Petition of Adam Johnston Fer- gusson. Esquire, is not Frivolous or Vexatious." Besolvedj — " That the Defence of the Sitting Member is not Frivolous or Vexatious." The House subsequently ordered the Returning Officers mentioned in the above Resolutions, to attend at the Bar. 1 fo» k 1 ■:!.-•_ fSI^JV « ....,,, ,,,ivf.- v'-F'H. •••I ON CONTESTED ELECTIONS. 115 J*. t*h'-i -':''>[ 1 CASE XXX VL . COUNTY OF PRESCOTT. I%e Committee was BalloUed, 27th FSrmri/j 1849. Jean Chabot, Esq., M.P.P. for the County of Quebec, '^ 1 (Chairman.) » . George Et. Cartier, Esq., I Billa Flint, Esq., m.p.p. M.P.P. for VereWres. The Hon. Louis M. Viger, M.P.P. for Terrebonne. Charles F. Fournier, Esq. M.P.P. for L'lslet Pierre Beaubien, Esq., M.P.P. for Chambly. James Smith, Esq., m.p.p. for Durham. Thomas Fortier, Esq., M.P.P. for Nicolet. for Hastings. Antoine Polette, Esq., M.P.P. for Three Rivers. Jos. CuRRAN Morrison, Esq. M.p.p. for West York. Nom. for P. George Byron Lyon, Esq., M.P.P. for RusselL Nom. for S.M. PeftlfMwer.'— William Kenneth Mackenzie, Esq. 5i«% ilfe»»ier.-— Thomas Hall Johnston, Esq. Mb. Mackenzie appeared in bis own behalf. Mr. Johnston appeared, to defend the Seat. The Petition Alleges : — That votes are recorded for the Sitting Member on Votes re- Property not situate within the Township in which the fn t^wS"' votes were received. »•>>?• I, :k'i| 116 FRECEDEirrS OB DECISIONS :i Case XXXVI. Scrutiny. Property not descri- bed in Foil Book. Open Houses and Treating. BriUery, &c. New Writ. That several persons voted for the Sitting Member, who were not possessed of the rcqnisite Qualification to entitle them to vote. That in the Township of West Hawkesbury many Votes were Polled for the said Sitting Member, without a De- scription of the Property, in right of which such Votes were given, being entered on the Poll Book. That an Open House was kept in the said Township of West Hawkesbury, on the days of the said Election, within a few acres of the Hustings, where many of the Voters of the Sitting Member were entertained with Liquor, Food and Beds at his expense. That Bribery, Corruption, and Intimidation were resorted to by the Sitting Member, and that promises of Place were made by him to persons who voted for him. And prays that the Return may be cancelled, and that a new Writ may issue. 2Sth February. Poll Books. The Clerk of the Crown in Chancery, by order, laid before the Committee, the Poll Books taken at the last Election for the County of Prescott. Mr. Mackenzie proceeded with his Opening, and Alleged: — 1st. That two Votes were received in one Township upon land situated in another, — contrary to the provisions of the Act 5 Vic. Ch. 1, Sec. 7. -t - ^ :. ^^ 2nd. That many Votes were received upon the Poll Books of the Townships of West Hawkesbury and Lon- gueuil, without a description of the property upon which the votes were so received, being described upon the said Poll Books. Petitioner's opening. Allega- tions. i^tJ4»V ON CONTESTED ELECTIONS. 117 3rd. That Bribery, Corruption, Intimidation and pro- Oasexxxvi. mises of Place were resorted to, on behalf of tuc Sitting Member. And concluded, by urging the Committee to vitiate the conciosion. Election upon the two first allegations. Mb. Johnston was beard in reply. The Committee decided that they would not give judg- Decision. ment upon any of the allegations in the Petition, until the Evidence was produced upon the whole Case. Whereupon the Petitioner desired that a Commission might be issued for taking the Evidence upon the last allegation, as well as npon the Scrutiny. The Committee then adjourned for a fortnight. Commis- siuu. Adjourn- ment. 28th March, The Commission issued in this Case, being returned, the Chairman laid ihc sanie, with the Evidence, before the Committee. Mr. Mackenzie was heard, and requested leave to ex- amine before the Committee, the Honourable James H. Price, Commissioner of Crown Lands ; to shew that no Pa- tents had issued, up to the date of the last Election, for cer- tain Lots of Land situate in the Township of Plantaga- net, in the County of Prescott, — and upon which'. Votes were recorded upon the Poll Book taken for that Township. It was urged on behalf of this request, that although the name of Mr. Price was not on the List of Witnesses handed in to the House, it was con^etent for the Committee to re- ceive it, before the Evidence taken under the Commission, was read ; and maintained, that the List of Witnesses landed in, was (mly for the guidance of tiie Commit* sioners. . . u __k Commis- sion re- turned. Additional Witness desired. Not on the List. 1 i I 118 PRECEDENTS OB DECISIONS Case XXXVI. s! M. heard in Objection. Prece- dents. Halton Case. Oxford Case. Votes ob- jected to, not on List. Decision. Applica- tion to House. Adjourn- ment Applica- tion reject- ed by Uie House. Bribery,&o. abandoned. Mr. Johnston was heard in opposition to this request, and stated, that there was no precedent for Witnesses being examined upon the merits of the Petition, after the Evi- dence had been closed by the Commissioners, and cited the only Canadian Cases in which Evidence was received after the Return of a Commission, viz. : Halton Case, 1845, in which the Commissioners were called to prove that cer- tain Oaths had been duly administered in pursuance of the Statute, previous to their assuming their duties under the Commission ; and the Oxford Case, 1845, where the Agent for the Petitioner was called to prove the delivery of the List of Objected Votes, pursuant to the Order of the House. Mb. Mackenzie admitted that the Votes now sought to be struck from the Poll, were not upon his exchanged List of Objected Votes. The Room was cleared. The Committee decided against the request of the Peti- tioner. Mr. Mackenzie then requested the Committee to adjourn, that an application might be made to the House, on his be- half, for leave to add to his List of Witnesses the name of the Hon. Mr. Price, as also to add certain names to his List of Objected Votes. ; The Committee then adjourned for twenty-four hours. 29th March. , At the meeting of the Committee, this day, Mr. Mac* kenzie stated, that his Application had been made to the House, and rejected ; whereupon he proceeded with his Case ; and stated, that he abandoned the allegations of Bri- bery, Intimidation, promise of Place, Treating, and, that the Sitting Member had not a majority of legal Votes 3 and ON CONTESTED ELECTIONS. 119 rested his Case solely upon the two allegations as first Case XX X VI. opened to the Committee, viz. : — That the Election was a Election sought to void Election, on the ground that two Votes were recorded be avoid- ed on two in the Township of Plantaganet upon property situated in first the Township of Alfred. And 2nd. That the property on *'°"° *" which Votes were Polled in West Hawkesbury and Lon- gueuil was not described in the Poll Books, as contemplated by the Act of Upper Canada providing the form for record- ing the Votes. The Evidence proving these Facts, appear upon the face of those Books, which were laid before the Committee by the CleA of Crown in Chancery. Mr. Johnston was heard in reply, and stated, in refe- s. m. heard— rence to the allegation, " that two Votes were received in Plantaganet upon property in Alfred ;" — That they were the Votes of his Agents, and were received by consent of all JJj^ire ^u parties. And with respect to the allegation in the Peti- tion, " that a number of Votes were received in West Hawkesbury, and the property voted upon, not described in the Poll Books ;" — ^That such only were received in this way as were undisputed as to Qualification, and that if any in- Undispu- jury was done by this irregularity, it fell upon his (the Sitting Member's) interests, as the majority of the Votes so received were polled for the Opposing Candidate, Mr. Stewart. Mr. Johnston concluded by urging upon the Com- Petition mittee that the Petition should be declared Frivolous and b?Frito. Vexatious, on the ground that the Election is not proved v!!iIS«w. to have been affected by the irregularities complained of* and the Evidence taken under the Commission is aban- doned by the Petitioner ; although issued at his instance, and contrary to his (Mr. Johnston's) desire. Mr. Mackenzie was again heard. 120 pnECEDENTS OB DECISIONS i Ikfiaion, Cane XXXVI. The Room was cleared; and, after »ome deliberation, Adjuurii- the Committee (upon leave first obtained from the House) meat. adjourned for eight days. ^ 5th April. The Committee decided, that the mere Facts apparent upon the Poll Books, of Votes being Polled without the property being described upon the Poll Books ; and of two persona having Voted out of the Township where the pro- perty on which they Voted was situated, — are not sufficient grounds upon which to avoid the Election. And Itesolvedj — "That Thomas Hall Johnston, Esqnirc, the Hitting Member, was duly Elected to represent the County of Prescott at the last Election for that County." BeHolved, — " That the Petition in this Case is not Frivo- lous or Vexatious." Beaolved^—^^ That the Defence of the »Sitting Member is not Frivolous or Vexatious." Final R«- bulutiuiiB. ,,», ■ I •#- INDEX. AUENA : 1. Where entitled to vote — Various cases (Oxford Election, 1844-5), 76. 2. Where not entitled to vote — Various cases (Oxford Election, 1844-5), 76. BsTTiNO on the Election, not suflicicDt to invalidate a vote (Oxford case, 1844-5), 75. Candidati:: 1. Qualiiicatinn of, upon property held under a Location Ticket, insufficient, and election declared void (Lanark case, 1832-.3), 22. 2. Sitting member objects to enter into a Scrutiny, on the ground that the Petitioner was distjualKled from being a Candidate by being Sheriff of the IJistriut ; Special Report from Committee, desiring opinion of the House tliifreoii ; Resolution of the House, iwrn con., That the House cannot pronounce an opinion oi give any direction to a Com- mittee upon a Controverted Election, touching any matters referred to thtni ('I'oronfo case, 1835), 23. (The Scrutiny being subse- quently proceeded with, it umst be presumed that the objection was over-ruled by the Committee.) 3. Having resigned a disqualifying office, is not disqualified by continuing to fulfil the duties of such ofhce until the appointment ofusuccea- Bor (Stormont ease, 1844-5), 85. See Office-holders. PitlUioner. Qualification. Sitting Member. Commission (For taking evidence): 1. Desired by Conmiittee to be issued (and issued accordingly), 46, 64, 59,04,73, 81,89, 117. 2. Proceedings of CommisNiotiers not vitiated in consequence of the omis* bioii to attach a Jurat to the oaths taken by the Conniiissioners or their Clerk, proof being given that they were actually sworn accord- ing to the prescribed form (Halton case, 1844-5), 60. Comiuii- ■ionerii examined touching the taking of such oath, ib. n INDEX. 1 ii M^ Commission — (continued.) 3. Proceedings vitiated in consequence of several illegal Adjoorntnents by the Commissioners ; the evidence taken by them rejected by the Com- mittee, and Petitioner abandons his case {ih.), 61. Prayer of Petitioner thiit the costs under the Commission may be repaid to him, not entertained, ib. — A similar case (Middlesex Election, 1844-5), 91. 4. So much of evidence taken underCommiss ion as relates to Sitting Member being possessed of a sufficient property qualification, other than that stated in his declaration at the poll, declared irrelevant by the Committee (York case, 1844-5), 65. See Qualification (3.) 5. Commissioners declared guilty of neglect, for delaying to make a Return to the Commission within a reasonable time : recommendation that they be summoned to appear at the Bar of the House, to answer therefor (Middlesex case, 1844-5), 90. (Summoned accordingly.) Committee : ^ ,- 1. Returning Officer admitted as a party (in a case of No Return) in the choice of a Nominee (^Essex case, 1825), 11. 2. Case of a double Return, referred to a Committee of Privilege, upon whose recommendation an Election Committee was appointed in the usual way (Lincoln case, 1835), 30. 3. One of the parties being absent at the ballot, an additional name was drawn fi-om the ballot box, to serve as his nominee, and the Clerk of the House was directed to act in the stead of the absent party in striking for the Committee {ib.'), 80. 4. Preliminary objection to formation of a Committee, on the ground that the refusal of a member to serve (he being over 60 years of age) was accepted without requiring the oath.^Objection over-ruled, on the ground that it ought to haVe been made in the House, and pot in the Committee (Huron rase, 1841), 40. 6. Reduced, by members vacating their seats in the House, 54, 56, 58, 77, 105. A member excused from serving longer, 73. 6. A member of a Committee having vacated his seat in the House, and having been re-elected (durinpj the recess,) ceases to be a member of the Committee (York case, 1 .s41), 54."(Cornwall case, 1849), 105. 7. Reduced to less than nine members, and consequently dissolved, and a new Committee struck (York case, 1841), 55. Evidence taken under a Commission for the former Committee, laid before tke new Committee, (parties consenting), (i6.), 55. INDEX. ftl Committee — (continued. J ' - ? « ^ Members thereof have not a legbl of constitutional tigtit to vote at or iDterfere with etectiOns (York «a«e, 1829), 16. I I9TS or Objected Votes : — See Objected Votes. INDEX. VII Location Tickets : , 1. Election of a candidate upon a majority obtained by votes upon location tickets, declared void, and the opposing candidate declared duly elected (Carleton case, 1832), 21. 2. Election of a candidate upon a qualification based, in part, on property held under a location ticket, declared void, and a new writ ordered (Lanark case, ] 832), 22. Members of Committees :— See Comnattee. Members or the House : May not appear as Counsel before a Committee (Lennox and Addington case, 1841), 42. I ■ ' '' Nominee ;— See ComwiYfee. Notice of Day of Election : Being less than the time required by law, not sufficient to avoid the election unless the result thereof has been affected thereby (Cornwall case, 1848), 105.— (Stormont case, 1848), 110. (A delay was allowed ;^. in the latter case, to afford the Petitioners an opportunity of proving that the result of the election was affected, each petitioner being notified of the same.) Qath : Of Members declining to eerve on Committees,--Se6 Committee (4.) Of Commissioners, — See Comrnissmt (2.y Of Electors, — See Evidence (4.) Objected Votes : v t, , 1. Committee not bound by a Resolution of the House, to refuse evldftnce 80 to votes not earned io. the fets interchanged between the parties (Durham case, 192fi), 13^— The parties eqoSQQd to the said Hats, 14i. 2. Committee decline to strike off votes which appear to have been given by women, and other votes claimed to be illegal, on the mere jorima Jbcie evidence of the poll book (Halton case, 1844-5), 59. 8. Evidence received by Committee in proof of delivery qf lists of objected votes by agent of petitioner (Oxford case, 1844-5), 73.— Delivery thereof to the Clerk of the Agent for Sitting Member, at the said Agent's Office, decided to be sufficient service, and confined petitioner to such list, 76. VIII INDEX. I 1 Objected Votes — (continued J 4. Petitioner not allowed to bring evidence respecting objected votes not in his exchanged list (after Return of Commission), (Prescott case, 1 849), 1 18. — Not allowed by the House to add to his list of objected votes (lb), 118. Office- noLBEES, Disqualification of : 1. A candidate having resigned a disqualifying office, not disqualified by continuing to fulfil the duties of such office until the appointment of a successor (Stormont case, 1844*5), 85. 2. What constitutes a disqualifying office, — See Lincolacase, 1844-5, p. 70. See Candidate (3.) Electors, Freeholders. Legislative Coun- cil. Location Tickets. Voters. Petition : 1. Declared frivolous and vexatious (Carleton case, 1835), 29. — (Frontenac case, 1841), 52. 2. An unsuccessful candidate allowed to petition after the expiration of the time for receiving petitions ; application for a further extension of time, refused (York case, 1836-7), 35. 3. Order for consideration of a petition discharged, petitioner having failed to enter into recognizances ; Petition for an extension of time, which is refused by the House (Niagara case, 1836-7), 36. 4. Petition of Electors abandoned by Counsel for Petitioners, and that of opposing candidate at same election proceeded with ''Frontenac case, 1841), 50. 5. Petition not having been taken into consideration (on account of the shortness of the Session), renewed at the next Session (Waterloo case, 1849), 112. See Protest. Pbtitiomeb: 1. Having neglected to produce the Poll Book before the Committee, has failed to give the best evidence of his having been a Candidate at the Election ; Petition accordingly dismissed, but leave given to pre- sent a new petition at the ensuing Session, upon paying the costs od the present petition (Brockville case, 1831), 20. 2. Furnished with a copy of Special Resolutions passed by the Commit- tee (Frontenac case, 1841), 51. — Copy of Evidence (Lincoln case, 1844-5), 71. 3. Prays to have hia costs under a Commission refunded, the evidence taken under the same having been rejected for an informality ; Prayer not entertained (Halton case, 1844-5), 61. Cost repaid to the Petitioner ia this case by a Resolution of the Bouse, 62. INDEX. m^ Petitioner — (continued.) 4. Having abandoned a scrutiny, not permitted to proceed with that part of his case (as opened by him) affecting the legality of the election, there being no specific ground of objection to that effect in the petition (Oxford case, 1845), 77. 5. Abandons his case (Halton case, 1844-5), 61. — (Lincoln case, 1844-5), 71.— (Oxford case, 1844-5), 78.— (Middlesex case, 1844-5), 92.— Petition of Electors abandoned, and case proceeded with on petition of opposing candidate (Frontenac case, 1841), 50. 6. Not permitted to go into evidence upon one of the allegations contained in the petition (Norfolk case, 1844-5), 80. 7. Abandons all that part of his case on which evidence had been taken un- der Commission, and rests his case on facts to be proved on the face of the Poll Books (Prescott case, 1849), 118. 8. Petitioners not required to prove themselves to be qualified electors (York case, 1844-5), 64. Poll : 1. Not having been opened in some of the Townships, deemed sufficient to avoid the election, and Petitioner not required to prove that the pro- bable number of votes in such Townships was sufficient to change the result of the election ("Lanark case, 1844-5), 84. See Sitting Member (3.) 2. For a Township, being closed by Deputy Returning Officer before the proper time, in consequence of a declaration of qualification having been demanded and not given, not sufficient to avoid the election (Norfolk case, 1844-5), 80. — Deputy Returning Officer declared guilty of an infraction of duty, 81. Poll Books: 1. Ordered by the House to be laid on the table (Oxford case, 1848), 93. — (Kent case, 1848), 101. 2. Are the best evidence of the facts therein stated, and in their absence no secondary evidence can be admitted to supply the deficiency (Brockville case, 1831), 20. See Objected Votes (2.) Votes (3, 4.) ' Fboclahations (of time of Election) : Relative to proof of their contents, &c. — See Stormont Case, 1848, p. 108. ii Fbotest : From an unsuccessful candidate, transmitted to the House by the Clerk of the Crown in Chancery : House refuses to proceed thereon in the absence of a petition complaining of the election (Grcnvillc Case, 1836-7), 31. INDKX. ^! Qualification 1. Petitioner not required to go into evidence respecting the demand of a declaration at one of the polls, alleged not to have been complied with, and in consequence of which the poll was closed (Norfolk case, 1844-5), 80. 2. Deputjr Returning Officer declared guilty of an infraction of duty in closing the poll without sufficient cause (li.), 81. 3. Evidence taken under commission, not received, in relation to Sitting Members being possessed of sufficient real estate to qualify him, ^ other than that mentioned in his declaration of qualification at the poll ; Qualification according to such declaration declared insuffi* cient, and opposing candidate declared duly elected (York case, 1844-5), 65. 4. Form of declaration not being in exact conformity to the statute, not in itself sufficient to avoid the election 0'&.)« ^6. 5. As to declaration of qualification prepared some time previous to the Election, — See Oxford Case, 93. G. Declaration of, not having been produced till afler the close of the Poll, not sufficient to prevent the Return of a Candidate having the majority of votes (Kent case, 1848), 100. ;• See Candidate. Commission (4.) Returning Officer (7.) Recognizances : — See Petition, (3.) Return : 1. No Return ; new writ ordered (Essex case, 1825), 11. 2. Amended, by striking out the name of one of the candidates, and insert- ing that of another, 19. 3. Amended by the House, on it appearing on the face of the Poll Book, that the other candidate had a majority of votes (Oxford case, 1848), 93. — Petition presented by the candidate who had been un- seated, 94. Returning Officer declared guilty of a breach of privi- lege, &c., 98. — On a Special Return, — by inserting the name of the candidate at the head of the Poll (Kent case, 1848), 101. 4. Double Return ; Committee of Privilege appointed, upon whose recom- mendation, a Grenville Committee was appointed to try the merits of the election ; Report one of the candidates duly elected, (Lin- coln case, 1835,) 30. 5. Special Return, that the candidate at the head of the poll had not pro- duced a declaration of Qualification until afler the close of the Elec- tion ; Returning Officer leaves it to the House to decide on the Elec- tion (Kent case, 1848), 100. Clerk of Crown in Chancery ordered to lay the Poll Books before the House ; Resolution, declaring can- didate at head of the Poll duly elected, 101. INDEX. XI Returning Officer : 1. lias a right to grant a scrutiny of votes, if demanded (Nortbuinberland case, 182j), 12. 2. Conduct of, in ordering certain votes to be struck off from the poll- book, declared illegal and improper (Glengarry case, 1825), 15. — Electio void, 1(5. 3. May not grant a scrutiny after the expiration of six days from commence- ment of the election ; election declared void in consequence of such a scrutiny (Prince Edward case, 1831), 17. 4. Authority of, extends to any compass within which riot or improper interference would tend to disturb the freedom of election (Leeds case, 1835), 26. 5. Conduct declared to have been hig'hly reprehensible, but allegations against him not suflicieutiy proved to avoid the election (Lennox and Addington case, 1841), 44. 6. Conduct of a Deputy, in closing the (township) poll, in consequence a declaration of qualification having been demanded, and not given, declared an infraction of duty (Norfolk case, 1844-5), 81. 7. Conduct of, in returning the candidate second on the poll, on account ot alleged disqualification of the candidate having the majority of votes, declared illegal, &c. ; Address to His Excellency to dcpriv* him of a certain office, as a warning to Returning Officers generall\ (Oxford case, 1848), 98. 8. Conduct of, in giving a shorter notice of the day of nomination than the law requires, declared to be not in accordance with the Statute (Cornwall case, 1848), 105.— (Stormont case, 1848), 1 10. 9. Attention of the House drawn to the conduct of certain Deputy Re- turning Officers, in taking votes in many instances, on property to which the parties had no title (Waterloo case, 1849), 114. (They were subsequently summoned to appear at the Bar.J See Committee (1, 10.) . ScHUTiNy: — See Returning Officer. Sheriff : Question of ineligibility of a candidate, on the ground of his being Sheriff of the District, raised, — See Candidate (2.) Sitting Member : , 1. Defence declared frivolous and vexatious (Leeds case, 1><.35), 26. 2. Allowed to defend against the petition, notwithstanding vacation of his seat by acceptance of ottice (Niagara case, 1841), 47. — (Oxford case, 1848), 96. ■t. I mm INDEX. K>\ r! ■'•'. SiTTiNo Member — (continued.) 3. May not go into proof (upon no poll having been held in certain town- ships) that he still represents the majority of the electors ; Election declared void (Lanark case, 1844-5), 84. 4. Confined to his declaration of qualification at the poll (York case, 1844-5), 64. Thereon declared disqualified ; Petitioner (opposing candidate) declared duly elected, G6. 5. Does not appear to defend the seat (Waterloo case, 1849), 113. Special Returns : — See Return. Timber : Annual receipts from sale of timber on wild land, not to be estimated in valuing a freehold for giving a right to vote (Oxford case, 1844-5), 75. Tbeatino : • By Sitting Member, does not avoid the election (Lennox and Addington case, 1841), 44. Votes : 1. On Location Tickets, declared to be bad, — See Locution Tickets. 2. Of Aliens,— See Oxford case, 1844-5, p. 7(5. a. Proved to have been given on property to which the parties had no title, ' by cunipnring the Poll Hooks with a list of all the patents issued in the locality in ({uestion (Waterloo case, 1849), 113. 4. On property not described in the Poll Douk, admitted (Prcscott case 1«49), 119. 5. On property situate in another Township, admitted (ib.), 119 Sec Ei/uality of Votes. Freeholders. Objected Votes. Returning Officer. VoTKK.'t : An ndniixsion by a voter, subsequent to the election, that the vote given * by him was illegal, cannot disqualify such vote (Northumberland case, 1825), 12. Ah udiiiission of a voter, so far as it may go to disqualify his vote, may be received in evidence (Durham case, 1825), 14. WiTNKSS : I. Uejocted as incompetent, on account of his having Migncd the petition (Lennox and .Vddington case, I k4 I ), 4.'J.— (Storuiont case, 1 848), 108. 2 Admitted to giv evidence upon one of the charges, though present when evidence was receivtd upon another charge (Lennox and Ad- dington case, 1841), 44. i. INDEX. XIII WiTKESs— {continued.) 3. Petitioner not allowed (after Return of the Commission) to bring a witness not in his list (Prescott case, 1849), 118.— Not allowed by the House to add to his list of witnesses and objected votes, ib. See Evidence. Whit : 1. Issued, on it appearing that each of the candidates had an equal number of votes, 11, 14. 2. on election being declared void, 16, 17, 21, 22, 56, 84. 3. Recoiimieiidation by a committee, (that before the issuing of a new writ for the County of Leeds, on the election having been declared void), nirasures be adopted for securing the freedom of election in th" County : Recommendation adopted, and Bill passed by the House for the purpose (Leeds case, 1835), 27.