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Election. (a) As in this last case the returning officer Votes thrown
away and lost. voted for the ineligible candidate, it might have been considered, that the electors ought not to lose their franchise, in deferring to his judgment upon the qualification of a candidate; but in the Southwark case, (b) (where the petitioner was seated, upon proof that the voters had notice of treating by the sitting member at the former Election), the returning officer said he would receive the votes tendered for either candidate ; that he had consulted counsel on the question of the candidate whom he after. wards returned, and they were of opinion he was eligible.
In the following case there were two points for the consideration of the Committee, and from the terms of their decision, it does not appear upon which of those points it turned. Sir W. C. Fairlie being candidate at the Election, was duly required to take the qualification oath prescribed by 9 Ann, c. 5, s. 5, which he refused to do, and notice was thereupon given to the electors that he was ineligible. The Election however was proceeded in, and during the poll, Sir W. C. F. being again required to take the oath, complied with the requisition, having in the mean time entered into the following agreement for the purpose of establishing a qualification. He agreed with a man and his wife for the purchase of an estate of the requisite value, which had been settled by the husband at the time of his marriage on his wife for life, with remainder to the children of the marriage, and default thereof to himself in fee. They had no children, and she was fifty-six. This agreement was reduced into writing, and the title deeds deposited in the hands of a third person ; at the same time Sir W. C. F. gave the husband a cheque on his banker in London, on an unstamped paper, for 8,0001., and the joint bond of himself and agent for 3,0001. more. No money passed till some months after, when the husband received the 8,0001, at the banker's. Sir W. C. Fairlie had possession of the deeds, but no conveyance was ever made, nor did any change of possession take place ; and on the day after the husband received the money, he repaid it to Sir W. C. F. at his request by a cheque, and Sir W. C. F. at the husband's request, delivered the title
(") 1 Doug. 419.
(6) Clifford, 294. See 1 Peck, 500.
away and lost.
Votes thrown deeds to the husband's attorney. No money passed after
wards, nor was any conveyance made; though the hus-
Of Violations of the Freedom of Elections.
Ist. BY BRIBERY AND TREATING.
(a) Leominster, Corb. Dan. 1.
Bribery at an Election is the creation, or the attempt to Bribery. create, an undue influence over the disposition of suffrages by a lucrative consideration; or a voluntary subjection to such influence.
“Wherever a person is bound by law to act without any “ view to his own private emolument, and another by a
corrupt contract engages such person on condition of the payment or promise of money, or other lucrative consi“ deration, to act in a manner which he shall prescribe, “ both parties are by such contract guilty of bribery.” (4)
A wager laid by two voters in opposite interests upon the event of an Election, is bribery, for they are biassed in the disposition of their votes by the hope of pecuniary compensation. (6) Though it was always an offence at common law, (“) it is thought that no prosecution for this species of bribery took place till after the Bribery Act, (a) for which the jealousy of the Commons in regard to their privileges sufficiently accounts. As soon, however, as the Commons began to rise into importance, and a seat was considered of sufficient political value to be purchased, they were not slow to discover and attempt themselves to repress the pernicious consequences of such corruption.
The first instance of bribery on the journals, is the case of Thomas Longe, in the reign of Queen Elizabeth, who was fined 201. (C) and removed.
“ The nature of the causes where questions of bribery “ arise, and are litigated by counsel, is such, that it is for “ the most part impossible to deduce from the determination of the Committee, what their opinion was upon those particular questions.” (S)
Thus where an Election was holden good, though money was given two years before under such circumstances of caution and concealment, as could leave no doubt of the intention to corrupt, yet it is impossible to infer that the Committee considered the length of time which intervened as destructive of the corrupting influence, or rebutting the corrupt intention, since it also appeared doubtful how
) 2 Doug. 400.
3 Burr. 1338.
G. 2, c. 11, s. 33, 34, as to bribery in
© May 1571. 1 Jour. 88.
far the sitting members were connected with the transaction. (a)
So in several cases, evidence of a compensation for travelling expenses and loss of time has been adduced to support a charge of bribery; but from the nature of the proceedings in those cases, the distinct question was not specifically raised and decided, being either mixed up with other circumstances sufficient in themselves to have avoided the Election, or the money being given for the loss of a longer period of time than was necessary for the voters to remain, in order to give their suffrages, -as in the Berwick case. (6)
But the payment of fees upon the admission of freemen out of a sum raised by subscription, to which the candidate had not contributed, and where no previous promise was exacted from the voter, has been holden not to be bribery. (C)
And the same as to the distribution of money after an Election. (d) But this must be unconnected with any previous promise, and after the Election is concluded.
Though treating, in most of the instances where it takes place, would fall within the description of bribery, yet as it does not necessarily amount to that offence, it was specifically provided against, first by order of the House declaring it to be bribery, if extended beyond a limited expense-and afterwards by statute. (e) The order is as follows :(f)
“ If any person, &c. after the teste or issuing out of the “ writ or writs of Election, shall by himself, or any other « in his behalf, or at his charge, at any time before the day “ of his Election, give any person or persons, having a « vote in any such Election, any meat or drink exceeding “ in the true value of 101. in the whole, in any place or “ places, but in his own dwelling-house, or habitation, “ being the usual place of his abode for six months last
() Ilchester, 1 Lud. 461.
(©) Bristol, 1 Doug. 243, 268. (6) Worcester, 3 Doug. 239. Ips. (d) Sudbury, 2 Doug. 137. Ciren* wich, 1 Lud. 21. Berwick, 1 Peck, cester, 1 Peck, 467. 401. Boston, Ibid. 434. Barnstaple, © 7 W. 3, c. 4. Ibid. 91. Durham, 2 Peck 178.
(1) 2 Doug. 404. Herefordshire, 1 Peck, 186.
past, or shall, before such Election be made and de- Treating.
clared, make any other present, gift, or reward, or pro“mise, obligation, or engagement to do the same, either “ to any such person or persons in particular, or to any $ such county, city, town, port, or borough in general ; or
to, or for the use or benefit of them, or any of them ; every such entertainment, present, gift, reward, promise,
obligation or engagement, is by this House declared to “ be bribery : and such entertainment, present, gift, re
ward, promise, obligation or engagement, being duly “proved, is and shall be sufficient ground, cause and matter, to make every such Election void, as to the
person so'offending, and to render the person so elected “ incapable to sit in Parliament by such Election; and “ hereof the Committee of Elections and Privileges is ap“pointed to take special notice and care ; and to act and - determine matters coming before them accordingly.”
Lavish entertainment after the issuing of the writ, is not only within the treating act, but is also such evidence of corruption as makes it an act of bribery ; yet there may be a species of treating falling within the words of the statute, and therefore illegal, which does not amount to bribery, either at common law or under the 2nd G. 2, c. 24. As moderate entertainment, not charged to have been given with a view of influencing voters, but merely for the necessary refreshment of such as come to the poll. (a)
It is probable a Committee would decide, if the question were brought distinctly before them, that a bona fide reasonable compensation to an out-voter for travelling expenses and loss of time, is illegal under the treating act, (o)
But where the candidate on the first day of Election, having no apprehension of a contest, and expecting to be immediately chosen without a poll, had ordered an enter. tainment to be given to his friends when the Election should be over, but finding another candidate unexpectedly appear, countermanded it, and gave orders by his agents, that no meat or drink should be given away till
() Middlesex, 2 Peck, 31.
there cited, and Ribbans and Cricket (6) See the Argument in the Dur- 1 Bos, and Pull. 264. bam case. 2 Peck, 177, the cases