PROCEDURE

AT TRIAL.

of points of

If on the trial of a petition, it appear to the judges (y) that any question or questions of law as to the admissibility of evidence or otherwise require further consideration by the Court (i.e., the Reservation Common Pleas Division), they may reserve any such question or law (≈). questions as at Nisi Prius, s. 12 of the Act of 1868; and the granting of the certificate to the Speaker may be postponed until the determination of such question or questions by the Court; Ibid.

It was enacted by s. 11, subsect. 13 of the 31 & 32 Vict. c. 125, Decision («). that at the conclusion of the trial, the judge who tried the petition was to determine whether the member whose return or election is complained of, or any and what other person, was duly returned or elected, or whether the election was void; and was forthwith to certify in writing such determination to the Speaker, and upon such certificate being given, such determination was to be final to all intents and purposes (b), 31 & 32 Vict. c. 125, s. 11, subsect. 13. And now by 42 & 43 Vict. c. 75, s. 2, after providing that the trial shall be before two judges, it is enacted that every certificate sent to the Speaker in pursuance of the former Act, shall be under the hands of both judges, and if they differ as to Certificat (a). there being a due return or election, they are to certify that dif ference, and the member shall be deemed to be duly elected or returned; and if the judges determine that he was not duly elected or returned, but differ as to the rest of the determination, they shall certify that difference, and the election shall be deemed to be void.

practices

If any charge of corrupt practice having been committed at the Report as to election is made in the petition, the judges are, in addition to corrupt their certificate, and at the same time, to report to the Speaker: (c). 1. Whether any corrupt practice has, or has not, been proved to have been committed by, or with the knowledge and consent of, any candidate, and the nature of such corrupt practice:

2. The names of all persons who have been proved to have been guilty of any corrupt practice :

3. Whether corrupt practices have, or whether there is reason to believe that corrupt practices have, extensively prevailed at the election.

Every report is to be under the hands of both judges, and if they

(y) See note (n), ante, p. 338.

(z) Municipal, see s. 15, sub-sect. (7) of 35 & 36 Vict. c. 60. (a) Municipal, see s. 15, sub-sect. (4). of 35 & 36 Vict. c. 60. (2) A petitioner who successfully prays a seat cannot be afterwards petitioned against; Waygood v. James, L. R. 4, C. P. 372. (c) Municipal, see s. 15, subsect. (5), of 35 & 36 Vict. c. 60.

AT TRIAL.

PROCEDURE differ as to the subject of a report to the Speaker, they are to certify that difference, and make no report on the subject on which they so differ; 31 & 32 Vict. c. 125, s. 13, subsect. 14, and 42 & 43 Vict. c. 75, s. 2.

Special report (1).

Expenses

of judges, &c. ().

Costs (f).

MUNICIPAL
PETITION 4.

They may at the same time make a special report to the Speaker as to any matters arising in the course of the trial, an account of which in their judgment ought to be submitted to the House of Commons; Ibid. On which the House may make such order as they think proper; s. 14 of 31 & 32 Vict. c. 125.

The reports of the judges, as distinguished from their certificates, are not final or conclusive; Stevens v. Tillett, L. R. 6 C. P. 147. The expenses of the judges, including the expense of providing a court, are paid by the Treasury; s. 28 of 31 & 32 Vict. c. 125, and s. 2 of 42 & 43 Vict. c. 75.

The costs of the parties are in the discretion of the Court or judges, regard being had to the disallowance of any costs, charges, or expenses which may, in the opinion of the Court or judges, have been caused by vexatious conduct, unfounded allegations, or unfounded objections on either side; and regard being had to the discouragement of any needless expense by throwing the burden of defraying it on the parties by whom it has been caused, whether such parties are or are not on the whole successful; s. 41 of 31 & 32 Vict. c. 125, and s. 2 of 42 & 43 Vict. c. 75.

66

Where there are no special circumstances, the usual rule that costs follow the event," seems to have been followed.

As to taxation of costs (g), see Rule 55 of the Act of 1868. Costs may either be recovered in the same manner as in an ordinary action, s. 41; or under Rule 55 (h).

Elections to municipal offices (i) are now questioned by petition under Part 2 of the 35 & 36 Vict. c. 60 (The Corrupt

(d) Municipal, see s. 15, sub-sect. (5) of 35 & 36 Vict. c. 60. (e) Municipal, see s. 20, sub-sects. (1) & (4), of 35 & 36 Vict. c. 60, and see s. 22 id.

(f) Municipal, see s. 19, sub-sect. (1) of 35 & 36 Vict., c. 60. (g) In Hill v. Peel, L. R. 5, C. P. 172, the subject of counsel's fees was discussed at some length by the Court; see further as to costs Hardcastle on Petitions, and Leigh & Le Marchant's Election Law.

(h) Municipal, sce s. 39, sub-sect. (2), of 35 & 36 Vict. c. 60, and Rule 55 (of 1872).

(i) Viz., the office of mayor, alderman, councillor, auditor, or assessor of a borough, or ward of a borough, s. 2 of 35 & 36 Vict. c. 60. The Act does not apply to the City of London, as to which see Pulling's Laws and Customs of London, Norton on the City of London, 3rd ed. 1869.

PETITIONS.

Practices (Municipal Elections) Act. 1872), and the General Rules MUNICIPAL made pursuant thereto. The procedure by petition is in substitution for that by information in the nature of a writ of quo warranto, which was the only means by which municipal elections could be questioned until the passing of the above Act.

The petition is tried before a barrister of not less than fifteen years' standing, appointed by the judges on the rota for the trial of election petitions, who reports the result to the Common Pleas Division of the High Court, and the whole procedure is modelled on that of Parliamentary election petitions. The Act and Rules will be found in the Appendix, and it is unnecessary to go through all their provisions here, as the preceding portion of this Chapter will be found for the most part applicable, the necessary modifications being kept in mind.

The 21st section, subsect. (2) of the Act just mentioned, provides that, so far as the Act and the Rules made in pursuance thereof do not extend, the principles, practice, and Rules, which are for the time being observed in the case of parliamentary election petitions, shall be observed in the case of municipal election petitions. And subsect. (4) of the same section further enacts that the Rules and principles with regard to agency and evidence, and with regard to a scrutiny, etc., which are applicable in the case of parliamentary election petitions, shall be applied so far as they are applicable in the case of municipal petitions.

In order to facilitate the application of the earlier part of this Chapter to the case of a municipal petition, references have been given under each head, to the appropriate sections and Rules of the 35 & 36 Vict. c. 60.

It may be well to call attention here to one provision, which applies to municipal but not to parliamentary petitions: if in the opinion of the Court (k) a petition is frivolous or vexatious, the petitioner can be made to pay all or any part of the expenses of the inquiry (7) (otherwise payable by the borough), in addition to costs in the ordinary way; and in the same way, a respondent who, in the opinion of the Court has been personally guilty of corrupt practices, may be ordered to pay these additional costs; s. 22 of 35 & 36 Vict. c. 60.

(k) i.e., the election court for trying a municipal petition. (1) Including the remuneration of the barrister who tries the petition, and of the officers, clerks, &c., employed at the trial, together with the expenses incurred in providing a court, &c.

AT COMMON
LAW.

to induce roter to vote 356-357

THOUGH bribery at parliamentary elections must always have been a crime at common law, and punishable by indictment or information (5), yet there are no traces of any prosecution for the offence till after the Legislature inflicted particular penalties upon it by 2 Geo. 2, c. 24. In Lord Coke, Hawkins, and others, the definitions of bribery extend only to the corruption of men in judicial offices.

It is not difficult to account for the silence of the books of common law on the subject of election bribery. At the same time

(a) The law as to corrupt practices (which include bribery) at municipal elections, has been assimilated to that at parliamentary elections by 35 & 36 Vict. c. 60, s. 3.

(b) R. v. Pitt, Burr. 1335; 1 W. Bl. 382.

LAW.

that the increase of money, and the growing importance of a seat AT COMMON in the House of Commons, gave rise to the offence, the House itself began to assert its exclusive judicial power in whatever concerned the elections of its members (c), and took cognizance of bribery affecting the freedom of election, punishing both the electors (d) and elected (e). Such inquiries having thus become matter of privilege, it would have been dangerous for a prosecutor to have carried his complaint to any other tribunal, and the judges would have probably said, as Mr. Justice Powis did, when another matter touching elections was for the first time brought before a court of common law, "The determination of this is particularly reserved to the Parliament; we are not acquainted with the learning of elections, and there is a particular cunning in it not known to us." Ld. Raym. 994; Carew, 168.

In the reign of Charles II. corruption at elections generally prevailed. But the evil principally took the grosser form of treating; i.c., "corruption by the giving of meat and drink." Burnett, Own Times, iii. 286. The first effort to put an end to these corrupt practices was the Treating Resolution in 1677 (ƒ), Treating which aimed at little more than limiting the enormous expense incurred at elections; and the breach of the prohibitions contained in it against the giving of money or entertainment was termed bribery.

Resolution.

of.

Lord Glenbervie's definition of bribery at common law is as Definition follows:-"Wherever a person is bound by law to act without any view to his private emolument, and another, by a corrupt contract engages such person, on condition of the payment or promise of money or other lucrative consideration, to act in a manner which he shall prescribe, both parties are by such contract guilty of bribery." 2 Doug. 400. So Lord Mansfield, in R. v. Vaughan, 4 Burr. 2501, says, "Wherever it is a crime to take, it is a crime to give they are reciprocal. And in many cases,

(e) In the reign of Elizabeth one Long gave the returning officer and others of the borough of Westbury four pounds to be returned member. For this offence the borough was amerced, the member removed, and the returning officer fined and imprisoned.__ 4 Inst. 23. Lord Mansfield, in R. v. Pitt, doubts whether the House of Commons could have exercised such powers over persons not being members, the prerogative in such a case properly belonging to the Star Chamber; but there seems to be no doubt of the facts as above related, wherever the power, de jure, lay. 2 Dougl. 400. (d) Stockbridge, x. Journ. 286.

(e) It having been resolved, Blechingly, Glanv. 39 (A.D. 1623), "that some money, though very little, had been given on Mr. L.'s behalf to gain him voices," Mr. L. was sent to the Tower for this and other misconduct.

(f) See Evesham, F. & F. 520; Maidstone, ibid., 776; 2nd Southwark, Cliff. 232.