for the election of a mayor. (j) An information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict. (k) persons making collusive seizures or taking bribes, and on persons offering them. The statutes relating to the customs and excise impose penalties, 3 & 4 Wm. 4, as well upon officers taking bribes as upon those who offer them. c. 53. The 3 & 4 Wm. 4, c. 53, s. 33, enacts, that "if any officer or Penalty on officers of the customs or excise, or any officer or officers of the army, officers and navy, or marines, duly employed for the prevention of smuggling, and on full pay, or any other person or persons whatsoever duly employed for the prevention of smuggling, shall make any collusive seizure, or deliver up, or make any agreement to deliver up or not to seize, any vessel or boat or any goods liable to forfeiture, or shall take any bribe, gratuity, recompence, or reward for the neglect or nonperformance of his duty, every such officer or other person shall forfeit for every such offence the sum of five hundred pounds, and be rendered incapable of serving his Majesty in any office whatever, either civil or military; and every person who shall give or offer, or promise to give or procure to be given, any bribe, recompence, or reward to, or shall make any collusive agreement with, any such officer or person as aforesaid, to induce him in any way to neglect his duty, or to do, conceal, or connive at any act whereby any of the provisions of any act of parliament relating to the revenue of customs may be evaded, shall forfeit the sum of two hundred pounds. Bribery at elections for members of parliament was always a Bribery at crime at common law, and consequently punishable by indictment elections for or information: () but in order to enforce the common law, and because it had not been found sufficient to prevent the evil, considerable penalties have been imposed upon this offence by different statutes. members of parliament. procure elec ing them to forfeit 3001. money, &c., The 7 & 8 Wm. 3, c. 7, s. 4, enacts, that all contracts, promises, 7 & 8 Wm. 3, bonds, and securities to procure any return of any member to serve c. 7, s. 4. Conin parliament, or anything relating thereunto, shall be void; and tracts, &c., to that whoever makes or gives such contract, security, promise, or tion void, and bond, or any gift or reward, to procure a false or double return, shall persons makforfeit three hundred pounds. (m) The 2 Geo. 2, c. 24, s. 7, enacts, "that if any person who shall 2 Geo. 2, c. have, or claim to have, any right to vote in any election of any 24, s. 7. Permember to serve in parliament, shall ask, receive, or take any money or other reward, by way of gift, loan, or other device, or agree or contract for any money, gift, office, employment, or other reward whatsoever, to give his vote, or to refuse or forbear to give his vote in any such election; or if any person by himself or any person employed by him, shall by any gift or reward, or by any promise, agreement, or security, for any gift or reward, corrupt or procure any person or persons to give his or their vote or votes, or to forbear to give his or their vote or votes in any such election, (n) such so offending in any of the cases aforesaid, shall, for every such (j) Plympton's case, 2 Ld. Raym. 1377. (k) Young's case, cited in Rex v. Higgins, 2 East, R. 14 and 16. (1) Rex v. Pitt and another, 3 Burr. 1335, by Lord Mansfield, C. J. (m) One-third to the King, one-third to the person But if it appears to be a void election, (n) An action will lie, though the party sons taking others to vote, or forbear to vote, by any gift, &c., forfeit 5004, and are disabled to vote in any election, and to or franchise. hold any office offence forfeit five hundred pounds." And further, that such offender, after judgment against him in any action, or information, or summary action or prosecution, or being otherwise lawfully convicted thereof, shall for ever be disabled to vote in any election of any member to parliament, and to hold any office or franchise, as if such person was naturally dead. 2 Geo. 2, c. 24, s. 8. Of fenders discovering others in 12 months tion indemni fied. By sec. 8, "if any person offending against the act shall, within the space of twelve months, next after such election, discover any other person or persons offending against this act, so that such person or persons so discovered be thereupon convicted, such person so after the elec- discovering, and not having been before that time convicted of any offence against this act, shall be indemnified and discharged from all penalties and disabilities which he shall then have incurred by any offence against this act." The eleventh section provides that no person shall be liable to any incapacity, disability, forfeiture, or penalty, unless a prosecution be commenced within two years after the incapacity, &c. shall be incurred, or, in case of a prosecution, the same be carried on without wilful delay. Prosecutions must be within two years. This statute does not take away the common law crime. But the Court of King's Bench will rarely proceed by information. Construction of the statute. It has been holden that, notwithstanding this statute, bribery in elections of members to serve in parliament still remains a crime at common law; that the Legislature never meant to take away the common law crime, but to add a penal action; and that this appears by the words in the statute,-"or being otherwise lawfully convicted thereof." (o) And a conviction upon an information granted by the Court of King's Bench is just the same as if the party had been convicted upon an indictment. (p) But as the offender will be equally liable to the penalties of the statute, (q) that Court will not interpose by information until the two years are expired, in ordinary cases; though there may possibly be particular cases, founded on particular reasons, where it may be right to grant informations before the expiration of the time limited for commencing the prosecution on the statute. (r) And in one case, where the defendant had been convicted of bribery, and the time for bringing the penal action was not expired, the Court permitted him to enter into a recognizance to appear at the expiration of that time. (s) There is a great difference between the two parts of the seventh section of the statute. The first part which is applicable to the voter, contains the word "ask," which is not repeated in the second. From this it may be taken that, in an action against the party tendering the bribe, proof should be required of more than a mere solicitation. Then, in the first part, the words go on thus, "or agree or contract for any money," the agreement, therefore, would subject the party to the penalty. (t) In the second part the words (0) Rex v. Pitt and another, 3 Burr. 1335. S. C. 1 Blac. R. 380. (p) Rex v. Pitt and another, 3 Burr. (9) Coombe v. Pitt, 1 Blac. R. 524. (s) Rex v. Heydon, 3 Burr. 1359. But the judgment. Rex v. Haydon, 3 Burr. 1387. S. C. 1 Blac. R. 404. And the Court refused to stay judgment upon the postea where they were moved to do so on the ground that the defendant had made a discovery of another person offending against the statute, who had been convicted on his (the defendant's) evidence. Pugh v. Curgenven, 3 Wils. 35. And see the cases collected in 1 Hawk. P. C. c. 67, s. 13, note (4) where see also as to the Court of King's Bench granting a new trial. (t) Per Patteson, J. Henslow v. Fau are "corrupt or procure." As to procuring, it is necessary that the vote should be actually given, but the corruption is complete by effecting an agreement amounting to corruption, although the vote be not given. If, therefore, A. give money to B. to induce B. to vote for a candidate, and B. agree to do so, in consideration of the gift, A. is liable to the penalty, for corrupting, although B. never gives the vote, (u) and two very learned judges thought that A. would be equally liable, if B. never intended to vote according to the agreement at all, as A. had done all that lay with him; (w) and this opinion of the two learned judges has been since held to be correct by the Court of Exchequer. (x) Where a friend of the candidate gave an elector five guineas to vote, and took from him a note for that sum, but at the same time gave a counter note to deliver up the first note when the elector had voted, it was held to be an absolute gift and bribery within the act, although the elector voted for the opposite party. (y) And laying a wager with the voter that he does not vote for a particular candidate is also bribery within the act. (2) In an action upon this statute it has been held, that, before the time of election, any one is a candidate for whom a vote is asked; and that it is not competent to the defendant to dispute a man's right of voting when he has asked him for his vote; it being immaterial whether the voter bribed had a right to vote or not, if he claimed to have such right. (a) It seems that a declaration upon this statute must state what the bribe was, and specify that the defendant took money or some other particular species of reward; and where it stated generally "that the defendant did receive a gift or reward," in the disjunctive, it was held bad, and that the defect might be taken advantage of in arrest of judgment, the charge being of a criminal nature. (b) The words of section 7 are all prospective, and they have been construed as if they had been "in order to give," and "in order to forbear to give," and consequently they do not include a case where money is given to a voter after an election, for having voted for a candidate, there having been no agreement made before the election for giving such money. (c) coverer within 24, s. 8, so as to be indemnified. As to the person who shall be considered as a discoverer within Who shall be the eighth section of the statute, so as to be indemnified from its deemed a dispenalties, it has been decided that the circumstance of a party having 2 Geo. 2, C. been, within the limited time, a plaintiff in an action on the statute, and having prosecuted it to judgment, does not prove him to have been the first discoverer. Lord Mansfield, C. J., observed, that the Court had not said, nor would say, that a plaintiff cannot be the discoverer; but that the act does not make him so, or consider him as the discoverer; and that as the plaintiff could not be the witness himself in the action, some other person must have been the witness; it was not therefore to be presumed, without any evidence cett, 3 A. & E. 51. 4 N. & M. 592, S. C. (u) Henslow v. Faucett. See the form of declaration there. (1) Patteson & Coleridge, Js., ibid. (e) Harding v. Stokes, 2 M. & W. 233, S. C. T. & G. 599, post, p. 160. (y) Sulston v. Norton, 3 Burr. 1235. 1 Blac. Rep. 317. (2) 1 Hawk. P. C. c. 67, s. 10, note (4), citing Loft, 552, and referring also to (a) Combe v. Pitt, 1 Blac. R. 523. 49 Geo. 3, c. 118, s. 1, imposes penalties on persons giving or receiving money, &c., to procure the election of a member of parliament. though such money, &c., be not given to voters. 49 Geo. 3, imposes penal- offices, &c., by to procure the return of members to parliament. of it, that the plaintiff in the action was the first discoverer. (d) And where one person procured another to make an affidavit of facts amounting to bribery, and then prosecuted a third person upon those facts to conviction and judgment, it was held that the person making the affidavit was the discoverer. (e) With respect to what shall be deemed a conviction within this section, it has been held that a verdict will not be sufficient, but that there must be a judgment; but that when the judgment is obtained it will relate, for the purpose of the indemnity, to the time when the discovery was first made. (f) The 49 Geo. 3, c. 118, reciting that the giving money, &c. in order to procure the return of a member to parliament, if not given to or for the use of some person having a right, or claiming to have a right, to act as returning officer, or to vote at the election, is not bribery within the former statute, (2 Geo. 2, c. 24.) enacts, that if any person shall give, or cause to be given, directly or indirectly, or promise, or agree to give, any money, gift, or reward, upon any engagement or agreement that the person to whom, to whose use, or on whose behalf, such gift or promise shall be made, shall by himself, or by any other at his request or command, procure, or endeavour to procure, the return of any person to parliament for any place, he shall, if not returned himself to parliament for such place, for every such gift or promise forfeit one thousand pounds; and if returned, and having given, or promised to give, or knowing of and consenting to such gifts or promises, shall be disabled and incapacitated to serve in that parliament for such place, and shall be as if he had never been returned or elected a member of parliament. And it enacts also, that any person who shall receive or accept of by himself, or by any other, to his use or on his behalf, any such money, gift, or reward, or any promise upon any such engagement, contract, or agreement, shall forfeit the value and amount of such money, gift, or reward, over and above the sum of five hundred pounds. (g) any By sec. 3, "if any person shall by himself, or by any other, give or procure to be given, or promise to give or procure to be given, any office, place, or employment, upon any express contract or agreement that the person to whom, or to whose use, or on whose behalf, such gift or promise shall be made, shall by himself, or by other at his request or command, procure, or endeavour to procure, the return of any person to parliament for any place, such person so returned, and so having given or procured to be given, or so having promised to give or procure to be given, or knowing of and consenting to such gift or promise upon any such express contract or agreement, shall be disabled and incapacitated to serve in that parliament for such place, and be deemed no member of parliament, and as if he had never been returned; and any person who shall receive or accept of by himself or by any other, to his use or on his behalf, any such office, place, or employment, upon such express contract or agreement, shall forfeit such office, &c. and be incapacitated for (d) Curgenven v. Cuming, 4 Burr. 2504. (e) Sibly v. Cuming, 4 Burr. 2464. that the act shall not extend to any money paid, or agreed to be paid, to or by any person, for any legal expense, bona fide incurred at or concerning any election. holding the same, and shall forfeit five hundred pounds. And it further enacts, that any person holding any office under his Majesty, who shall give such office, appointment, or place, upon any such express contract or agreement that the person to whom, or for whose use, such office, &c., shall have been given, shall so procure, or endeavour to procure, the return of any person to Parliament, shall forfeit one thousand pounds. By sec. 4, no person shall be liable to any forfeiture or penalty imposed by the act, unless some prosecution, action, or suit for the offence committed, shall be actually and legally commenced against such person within two years next after the offence committed, and unless such person shall be arrested, summoned, or otherwise served with the writ or process within the same space of time, so as such arrest, summons, or service, shall not be prevented by such person absconding or withdrawing out of the jurisdiction of the Court; and in case of any prosecution, suit, or process, the same shall be proceeded in and carried on without any wilful delay. 49 Geo. 3, limits prosecu offence. expenses of Where voters for a member of Parliament have only been paid Payment of their actual travelling expenses, a difference of opinion has existed the travelling as to the legality of such payments; some committees of the House voters. of Commons having held that such payments are legal, others (and probably theirs is the more correct opinion) that such payments are not legal, for it is obvious that such a mode of proceeding, if allowed, would lead to great abuses. (g) And it seems, at all events, that where the same sum is given to every voter coming from the same place to an election, for his travelling expenses, it is bribery; and it is not the less so though all the candidates agree in the payment of the same amount. But where an action is brought by an agent of a candidate, to recover from him the amount so paid, it is for the jury to say whether the sums were paid for travelling expenses, and travelling expenses only, or to induce the voters to give their votes. (h) But payment of the expense of taking up the freedom of voters is clearly illegal. (i) It has been held that a declaration under the 2 Geo. 2, c. 24, s. 7, for corrupting a voter by corruptly giving the voter the sum of 104, as a reward to him to give his vote, is supported by evidence that the defendant gave the voter a card in one room, which the voter presented to a person in another room, who thereupon gave him the money. (j) And it was held in the same case that the plaintiff might prove that the defendant on the same day, and at the same place, gave cards to other persons, who also obtained money by presenting them to the person in the other room. (k) a What is giving the 2 Geo. 2, convicted of The 5 & 6 Wm. 4, c. 76, s. 54, enacts, "that if any person who 5 & 6 Wm. 4, shall have or claim to have any right to vote in any election of mayor, c. 76. Persons or of a councillor, auditor, or assessor of any borough, shall, after bribery disqua the passing of this act, ask or take any money or other reward by lified from way of gift, loan, or other device, or agree or contract for any money, voting at any election in any gift, office, employment, or other reward whatsoever, to give or forborough. bear to give his vote in any such election, or if any person, by (g) Per Alderson, B. Bayntun v. Cattle, 1 M. & Rob. 265, March, 1833. (h) Bremridge v. Campbell, 5 C. & P. 186. VOL. I. (i) Bayntun v. Cattle, 1 M. & Rob. (j) Webb v. Smith, 4 Bing. N. C. 373. |