"I have CHAP. VI.

election will not be affected thereby.'
found," said Blackburn, J.,2 “that the notion has
prevailed that for a candidate to give anything in
the way of meat or drink was fatal to an election.
That is a salutary notion, and acts as a protective
machinery to the candidate, but I cannot lay down
the law to the full extent that that goes. But I
can say that whenever a candidate or agent gives
any meat or drink he does what is a foolish and
imprudent thing, because it becomes a question
what the intention was in doing such a thing, and
if the judge finds that the intention was to influ-
ence and affect voters, it vacates the election."

3

who treats

A candidate who treats is liable to a penalty of Candidate fifty pounds, and on judgment against him in a liable to court of law, to perpetual disfranchisement.*

If penalty.

the offence is proved before an election judge, he loses his seat, and becomes subject to the same parliamentary disqualification as in the case of bribery.5

6

treated

A voter, who corruptly accepts any meat, drink, Vote of entertainment, or provision, is thereby rendered voter void. incapable of voting at that election; and where a candidate on the trial of a petition claiming the seat for any person is proved to have treated, either by himself or his agent, any person who voted at such election, there may, on a scrutiny, be struck off from the number of votes given to such candidate, one vote for every person who voted at such election, and is proved to have been

give on the nomination or polling day any meat, drink, or refreshment, or a ticket for the same to any voter on account of such voter having polled or being about to poll. In Hargreaves v. Simpson, L. R. 4 Q. B. D. 403, it was held that the provisions of this section are applicable in the case of a municipal election as well as a parliamentary election.

1 Wallingford case, ib. 58.

2 Norfolk, ib. 243.

3 17 & 18 Vict. c. 102, s. 4; App. liii.

4 Id. s. 6; App. liv.

5 Id. s. 36; and Parl. El. Act, 1868, s. 46. 6 17 & 18 Vict. c. 102, s. 4; App. liii.

Ante, p. 159.

CHAP. VI. treated.1 No disfranchisement, however, or other penalty is imposed on a person who has been found guilty of treating.

At Common
Law.

What influence is undue.

Undue influence.] Intimidating or in any way unduly influencing a voter is not an indictable offence at common law,2 but it has been long held by the common law that an election may be vitiated by an organised system of undue influence of any kind, just the same as by an organised system of bribery or treating.3

It must be borne in mind that all influences which may be brought to bear upon electors are not necessarily undue or improper influences.* "The mere fact," said Willes, J., "of a man having influence and intentionally retaining it, is not alone evidence of unduly exercising that influence." 5 And again," "the law cannot strike at the existence of influence. It is the abuse of influence with which alone the law can deal. Influence cannot be said to be abused, because it exists and operates." So too with regard to spiritual influence, it has never been held illegal for the clergy of any particular denomination to exercise a legitimate influence, and it is only when it has appeared that spiritual intimidation has been resorted to that elections have

8

1 Ballot Act, s. 25, App. xcix., and see Malcolm v. Parry, L. R. 9 C. P. 610.

2 See 3 Edwd. I. c. 5; App. p. i.

3 Bradford case, 1 O. & H. 40; Drogheda case, ib. 259; Galway County case, 2 O. & H. 56.

4 Bradford case, ib. 40.

5 Windsor case, ib. 6.

6 Lichfield case, ib. 28.

7 In the Galway case, 1 O. & H. 306, Keogh, J., said: “It is right and becoming that a landlord should use his influence with his tenants, so long as he does not exercise that influence illegitimately. Are, then, the only persons in the community who are not to be at liberty to exercise their legitimate influence, the clergy of the Catholic Church? meet with a positive negative any such assumption." See also Longford case, 2 O. & H. 13, 16; Galway County case, 2 O. & H. 56.

8 As to what amounts to spiritual intimidation, Keogh, J. (a Catholic judge) said as follows in the Galway case, 1 0. & H.

been held to be void. Again, with respect to CHAP. VI. riots and disturbances on the polling day, it is not sufficient to avoid an election to prove that roughs had been hired (although that is a proceeding very much to be reprobated') and that rioting went on, but it must be shown that the rioting was to such an extent as to deter a man of ordinary and reasonable nerve from going to the poll.2

By the Corrupt Practices Prevention Act, 1854, By statute. s. 5, undue influence is elaborately defined, and is made an offence. By that section it is forbidden "to use any violence, or threaten any damage, or resort to any fraudulent contrivance to restrain the liberty of a voter so as either to compel or frighten him into voting or abstaining from voting otherwise than he freely wills." It will be seen that this section not only prohibits the infliction or the threat of loss or damage by acts that are clearly illegal and unjustifiable in any event, such as actual personal violence, but also that it applies to acts which a person has a perfect right to do, so long as he does not do them for the purpose of influencing a vote. For instance, where a tenant holds his land from year to year, a landlord has a perfect

307 "The Catholic clergy are charged with having refused the rites of the Church in order to influence votes. If that had been proved in a single instance I would have avoided the election. It has, however, been proved that in various churches the celebration of the Mass was suspended in order to lecture the people upon the conflicting claims of the different candidates. I think it would be well that the House of God should not be made a place for delivering political discourses in, but I pass that by as a matter of trifling importance. I recognise the full right of the Catholic clergy to address their congregations, to tell them that one man is for the country and another man against the country; nay, more, I would not hold a very hard and fast line as to the language which in excited times may be used by Catholic ecclesiastics."

1 Salford case, 1 O. & H. 140; Wigan, ib. 192.

2 Nottingham case, ib. 246; North Durham, 2 O. & H.

3 Per Willes, J., Lichfield case, ib. 25.

CHA VI. right to give that tenant notice to quit at the end of any year; but if the landlord threatens to inflict, or does inflict, that turning out of his tenant on account of his vote, that is inflicting harm or loss within the meaning of the Act.1 So, also, where a person employs a servant, and the servant is continuing in his employment, and would, in all probability, continue so in the ordinary course of things, the master may dismiss him at pleasure, giving him proper notice, and he commits no wrong in doing so; but if he does it on account of the vote and for the purpose of coercing the voter, the statute intends to make that an infliction of loss which is to be punished. So also is to threaten to give up renting a pew in a chapel if the minister will not vote according to the pew holder's views. As to contravening the Act by a "fraudulent contrivance," it seems that to induce a person to pair, and then to play him false and vote is an offence within this section, although the notion of voters pairing with each other does not appear to be recognised by the law, but to be merely an honourable engagement between the parties. the first case tried since the passing of the Ballot Act it was proved that cards were issued having a mark on them put opposite to the name of one particular candidate, and it was stated on the cards that if any voter marked his ballot paper otherwise than in the way in which the cards were marked his vote would be void. As to this, Blackburn, J., who tried the case, said, "I agree that where there is a fraudulent device of any sort to prevent a voter from voting in a certain way that would come within the intention of the Act. Therefore if I came to the conclusion that these

5

In

1 Norfolk case, 1 O. & H. 240; Windsor, 2 O. & H. 91. 2 Blackburn case, ib. 204; Westbury case, ib. 51; Norfolk case, ib. 240..

cards were intended to produce the effect suggested, Chap. VI. I should say that the Act had been contravened."

1

precarious.

But in order to bring a case within this sec- Loss inflicted or tion it must be shown that the loss or damage threatened inflicted or threatened is of a substantial nature. must be substantial, and What may be called a mere precarious loss would not merely not necessarily be sufficient. Thus, if a person who is in the habit, at intervals, of frequenting a shop and giving the tradesman some custom threatens to take away the custom, and go elsewhere, would that be a loss or damage within the meaning of the section? Clearly it would, if the loss proposed to be inflicted in that way were to such an extent as would seriously affect the saleable value of the goodwill of the tradesman's business, but not otherwise. Such a matter, therefore, must be weighed as a question of degree."

addressed

be deli

It must also be shown that the intimidation was It must be addressed to some one or more specific individuals, to particular otherwise it will not be intimidation within the individuals. meaning of the Corrupt Practices Act, but will come under the head of general intimidation." Also, if the loss was merely threatened to be inflicted, Threat must but not actually inflicted, the question will always berate, and arise whether the threat was a serious and deliberate to particular one, and was meant to affect the vote, or whether it was merely angry words, not meaning anything.* And further, it is necessary to prove in all cases, Effect of where a threat has been made, that its effect was be continucontinuing and operative at the time of the election. ing. Therefore, where a candidate, immediately after one election, evicted all tenants who had voted against

1 It was held in Walton's case, Leigh and Cave's Crim. Cas. 298, that a "menace to be within the meaning of 24 & 25 Vict. c. 96, s. 45, must be "of a nature and extent to unsettle the mind of the person on whom it operates, and take away from his acts that element of free voluntary action which alone eonstitutes consent.'

2 Per Blackburn, J., North Norfolk case, 10. & H. 241, and see observations of Bramwell, B., North Durham, 20. & H. 158. 3 Per Bramwell, B., North Durham, 2 0. & H. 156.

4 1 0. & H. 242.

person.

threat must