The task, therefore, which the Legislature has expressly set the Court in such a case is to require, before avoiding an election on the ground of official error, proof that the error actually affected the return of the candidate. The error of refusing a vote to a qualified elector, if it is to have any weight at all, must be accompanied with proof as to how the elector intended to vote. In England, the mere refusal to permit qualified electors to vote would - if the numbers were sufficient - raise a possibility enabling the Court to act (Rogers, 19th ed., p. 109). I do not assume to say how the Court there would feel itself called upon to decide if evidence of intention negativing that possibility were offered. But with respect to our own Act it is plain that, unless some paramount purpose of the Legislature to exclude evidence of the elector's intention can be deduced by implication from the Act, sec. 194 requires the Court to receive that evidence. The case of Bridge v. Bowen[7] shows that, in view of the onus, unless the fact of intention is proved, the election, so far as it depends on the refusals I have mentioned, cannot be disputed. The matter must be determined on principle. The fundamental common law principle is that "elections ought to be free." That basic principle was reaffirmed and enforced by the Statute 3 Edw. I. c. 5. It lies at the root of all election law. For centuries parliamentary elections were conducted by open voting. Freedom of election was sought to be protected against intimidation, riots, duress, bribery, and undue influence of every sort. Nevertheless it was found necessary to introduce the ballot system of voting. The essential point to bear in mind in this connection is that the ballot itself is only a means to an end, and not the end itself. It is a method adopted in order to guard the franchise against external influences, and the end aimed at is the free election of a representative by a majority of those entitled to vote. Secrecy is provided to guard that freedom of election. It is common ground, however, that in some cases, which need not be particularized, the Court is at liberty to inquire how a person voted. Sec. 190 provides that "the Court ... may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the roll to be correct." Reading that section with sec. 194 (already quoted), it cannot be doubted that in some instances of actual voting it is proper for the Court to ascertain how a person voted. It is, in my opinion, impossible to contend that a person who was refused a ballot-paper altogether is in a worse position to defend his right of voting than if he had received a ballot-paper and his vote had been wrongly disallowed. And in such a case how is he to protect his right of franchise, which is the most important of all his public rights as a member of a self-governing community? The ballot, being a means of protecting the franchise, must not be made an instrument to defeat it. When a vote is recorded in writing, no doubt the writing itself is the proper evidence of the way the elector intended to vote. When it is not recorded, the only means of establishing that intention is the evidence of the elector himself. That is the only mode of protecting the right which an elector has endeavoured to exercise and has been prevented by official error from exercising. That the right of voting is a legal right sustainable in a Court of law is beyond doubt (Ashby v. White[8] and Pryce v. Belcher[9]). But, though technically remediable at law, not only is the remedy there for malicious refusal alone, but it is in any case practically worthless. It gives no real or effective protection to the elector's right politically: it gives no security that his political opinions will not be disregarded. A shilling damages is no compensation for improper representation in Parliament. This Court of Disputed Returns is the only tribunal that can afford real and effective protection to electors in maintaining their right of franchise. The Legislature has provided, by sec. 185, that the petition may be signed - as it is in the present case - by a "person who was qualified to vote" at the election. This indicates that the elector is afforded a means of protecting his right of franchise and representation. It was the common law doctrine that a voter whose vote was at issue was regarded for the purposes of evidence as a party, and at a period in our law when interested persons were incompetent witnesses on their own behalf, such a voter was precluded from substantiating his vote by his evidence (Rogers on Law and Practice of Election Committees (1852), 4th ed., p. 91). His declarations or admissions against himself, however, made before the election were admissible (ibid.). And see The Middlesex Case[10]), and per Keogh J. in the Tipperary County Case[11]. The importance of that allusion is that it shows how strongly the law regards the issue of a challenged vote as affecting directly the right of the elector himself. And as the Legislature has required by sec. 194 proof of actual affecting of the result as a condition of protection of the right of voting, it appears to me to be an inescapable conclusion that the elector may prove his intention, where he has been prevented from voting altogether. By no other means can he, or those who think with him, if in the majority, be protected against representation by the votes of the minority. If, for instance, candidate A be re-returned by a majority of 10 votes, while 50 persons who desired to vote for candidate B are refused ballot-papers, how are the majority, consistently with sec. 194, to be protected in their acknowledged right to elect the representative of the constituency if the intentions of the 50 are not to be proved? In the absence of express prohibition of such evidence I think it is admissible because its admission is in accordance with the general, well recognized principles of evidence, with which the Legislature must be presumed to be acquainted; because it supports the central principle of the Act, namely, representation by free votes of the majority of the electors; because it does not violate any ballot actually cast; and because to exclude the evidence on a supposed analogy to maintaining the secrecy of the ballot would be to proceed, not upon a real analogy, but on a contradiction. Its exclusion would exalt the means above the end; it would defeat the franchise instead of protecting it. I therefore decide that the evidence is admissible.