CHAP. V. the relation of agent and principal in other respects, the candidate will not escape the civil result of bribery-the loss of his seat, and the consequent disqualification-merely because he gave his agent no authority to bribe. This appears, at first sight, unjust; and a hardship, no doubt, it must be, when a seat is vacated for bribery of which the candidate was wholly unconscious. But the avoidance of an election, under such circumstances, is, as has been shown,1 a purely civil consequence. It is not brought about in order to punish the candidate, but to secure an unbiassed election. Were his punishment the object, of course a guilty knowledge would have to be proved against him; but, in that case, the penalty would presumably be of a graver kind, and would not be locally limited whereas, in the actual state of the law, he suffers no other penalty than the loss of his seat, and is eligible immediately for any other place. ; Perhaps, indeed, the rule may be regarded only as an extension of that old principle of respondeat superior, which is exemplified every day in actions brought against Sheriffs for the unauthorised acts of their bailiffs, and against employers for the unauthorised acts of their servants: the difference being, that, in those instances, a principal's liability is limited to injuries committed through negligence, and never includes such as are committed wilfully. In this point of view, of course, the House may be supposed to have extended the principle in election matters, for the purpose of enforcing upon candidates greater care in choosing and watching their agents. At any rate, were the rule otherwise were no seats to be vacated for bribery except where it was brought home to 1 Ante, pp. 108, 109. 2 Sharrod v. London and North Western Railway Company, 20 L. J., Ex. 185. the principal-laws to secure purity of election CHAP. V. would be futile indeed. by ance of an authorised nised by law: Nor is this particular application of the doc- The avoidtrine of agency absolutely unrecognised by election Courts of law, although it is unlikely to be ever through unacted on by them. In a case published by bribes by an Mr. Rogers, from a manuscript note by the late agent, recogMr. Harrison, Q. C., Lord Tenterden is reported courts of to have said, with reference to the words himself, or any person employed by him," in the old Bribery Act-"it is perfectly true, under 2 Geo. II. c. 24, if an agent, who may be employed for various purposes, to canvass, &c., does, without the knowledge, privity, or approbation of the principal, promise a sum of money, the principal is not liable to be sued under this Act for the penalty. No person is liable to be sued for that penalty, unless that which was improperly done was done by his authority. If an agent bribes voters with, or without, the knowledge and direction of the principal, it will void the election; the principal is to that extent liable."1 likely to be The question, however, has yet to be decided, But not whether in applying the recent statute to cases adopted by of a purely civil character, the Courts will them: adopt this principle of vicarious responsibilitywhether, that is to say, they will hold that, though the candidate is not penally responsible for such a transaction, he is yet so far affected by it that its illegality may be pleaded against him in a civil action. It may be anticipated that they will not. There would, for instance, be considerable difficulty in supporting the position, that funds, placed by a candidate in his agent's hands for lawful purposes, and spent by the latter in bribery, could not be recovered by the principal in an action at law. 1 Felton v. Easthope, Rogers, 259. CHAP. V. Who are agents for the above purposes: Yet such, of course, would be the result if, for all civil purposes, a candidate was held to participate in bribes administered, without his sanction, by his agent. The Court of Exchequer trenched very closely upon this question, in a case tried under the late Treating Act. Certain election agents had run up, without their principal's sanction, a bill at a public-house, in treating voters; and, in an action by the publican against the agent for the amount, it was urged for the defence, that the transaction was illegal, under the clause which prohibited a candidate from treating "by himself, or by others on his behalf." The Court, however, overruled the objection; and decided that treating by a candidate's agent, without the principal's authority, was not within the words of the Act;3 and this may fairly be assumed to be the view likely to be taken, under similar circumstances, by the judicature in construing the corresponding words in the Corrupt Practices Act, 1854. As, however, apart from all question of the consequences at law, elections are clearly liable to be avoided, on petition, by the unauthorised bribes of agents, it is essential to ascertain who will be regarded as agents by Parliamentary Committees. Of course, there can be no doubt as to the term including persons formally appointed under the 2nd section of 26 Vic. c. 29,4 but such persons are very unlikely to be employed in corrupting voters. Perhaps, it may be safely laid down, that any one will be deemed an agent to whom the Persons en- candidate delegates discretionary powers in Agents for election expenses: trusted with discretionary powers: 1 Ante, p. 106. 27 Will. III. c. 4, s. 1 (repealed). 3 Hughes v. Marshall, 2 C. & J. 118. See, however, some ingenious criticisms on this decision in Mr. Clerk's excellent Treatise on the Law of Elections, pp. 161, 162. ▲ Ante, p. 70. Canvassing agency: regard to expenditure at the election; or even CHAP. V. in regard to any special department of it. Lord Tenterden, in the judgment already cited, seems, only partial indeed, to suggest that a person employed "to evidence of canvass, &c." would be taken to be an agent. But the "&c." here must be construed comprehensively. Many Committees have decided that the mere fact of canvassing, even in company with the candidate, does not establish agency; though, no doubt, it might conduce to do so, in connexion with other evidence. Thus, where a person, who had been so employed, paid a bill for beer consumed in the candidate's interest, the two indicia together established agency.3 Acting as the candidate's Solicitor. solicitor has been held sufficient to establish agency. But this will not necessarily extend to a partner of the solicitor;5 nor to his managing clerk. Acting as chairman of the can- Committee, didate's committee has been held to be proof of agency, where the candidate had authorised the committee to order chaises, and to give general orders respecting the election. And in another similar case, Lord Kenyon told the jury that every member of the committee might be regarded as an agent. But it would certainly be otherwise where a committee was self-constituted, and had not been recognised by the candidate. Moreover, as in future the expenses of elections in what cases: 1 Ante, p. 113. 2 Mitchell, 1 Lud. 83; Norwich, P. & K. 576; Wareham, 1857, Minutes (Pike's case), post, p. 116. But see Yarmouth, P. R. & D. 4; 2nd Sligo, ib. 212; Cockermouth, 2 ib. 328. 3 Norwich, P. & K. 576; Cirencester, 1 Peck. 466; Ipswich, K. & O. 343–345. 4 2nd Horsham, 1 P. R. & D. 253. 5 Norwich, P. & K. 565. 6 New Windsor, 1853, Min. 109. 7 Honeywood v. Geary, 6 Esp. 119. 8 Ridler v. Moore, Cliff 371. CHAP. V. are to be exclusively managed by the agents named for that purpose to the Returning Officer, the fact of being on a committee will no longer raise so strong a presumption of agency as heretofore; and independent evidence will probably be required, that the candidate has identified himself with their proceedings, or has entrusted them with general powers.1 Thus, where a committeeman canvassed for, and seconded, the candidate, brought up voters, took an active part in the election, was member of a committee for defending the seat, and had, for four or five years past, looked after the registration, these facts together were held not to establish Special pay- agency. The same regulation will, if obeyed, exclude the attempts sometimes made (though hitherto without success) to attribute agency to persons merely on account of their having been employed to make special payments with regard to the election. But it will, probably, be otherwise, where the authority to pay is not specially limited.4 Clubs will come under the same principles as apply to committees.5 Where two candidates make common cause as to committees and management, proof of agency in respect to one of them may be extended to the other.6 masters: Clubs, in what cases: Where agent of one can didate deemed agent of the other. Bribery by stranger does not On the other hand, if agency is not established by particular acts, the return will not necessarily be affected by the unauthorised bribes of third parties, though given in a candidate's interest, unless the majority depends on votes so obtained, or unless such bribes have occasioned affect can didate: 1 Cirencester, 1 Peck. 466; Oxford, P. & K. 61; ante, p. 70. 2 Wareham, 1857, Minutes (Pike's case). 3 Durham, 2 Peck. 185 (citing Fenn v. Harrison, 3 T. R. 5 Newry, P. & K. 151; Bristol, ib. 574. Ipswich, K. & O. 371. |