Sec. 2.

Bishops;

The military

Government officials.

Galway case.

"It is highly criminal in any Minister or Ministers, or other servants under the Crown, directly or indirectly, to use the powers of office in the election of representatives to serve in Parliament, and an attempt at such influence will at all times be resented by this House, as aimed at its own honour, dignity and independence, as an infringement of the dearest rights of every subject throughout the Empire, and tending to sap the basis of this free and happy Constitution" (37 Journ. 507.) The Dover petition (W. & B. 132) turned upon a question of such interference.

Similar resolutions have been adopted against the interference of Bishops (14 Journ. 37, 16 ib. 548), and the Military (4 ib. 346 and 24 ib. 37.) And now by the 10 and 11 Vic. c. 21, provision is made for confining the troops to barracks on the day of election. A variety of Acts, moreover, prohibit Government officials in the Excise, Customs, Postoffice, and Police services from endeavouring" by word, message, or writing, or in any other manner whatsoever, to persuade any elector to give, or dissuade him from giving his vote." (See also May's "Law of Parliament," p. 719.)

In the Galway (county) case (2 O. & H. 54), where it was sought to upset the election on the ground that a peer had illegally contravened a resolution of the House of Commons by canvassing his tenants, the judge refused to avoid the election, on the grounds that (1) the Resolution had not the force of a Statute; and (2) such resolution was not intended to deprive peers who are landlords of their legitimate influence, which, in this case, had not been exceeded. Of course, where no more than the legitimate influ

ence attaching to any person of whatever class has Secs. 2, 3. been exercised, no question of undue influence could

arise. For "the law cannot strike at the existence

influence.

of influence. The law can no more take away from a man who has property, or who can give employment, the insensible but powerful influence he has over those whom, if he has a heart, he can benefit by the Legitimate proper use of his wealth, than the law can take away his honesty, his good feeling, or any other qualities which give a man influence with his fellows. It is the abuse of influence with which alone the law can deal, and influence cannot be said to be abused, because it exists and operates" (pr. Willes, J., Lichfield, 1 O. & H. 28; cp. Windsor, ib. 6). But the ruling of Keogh, J. (in the Galway case, ubi sup.), that undue influence, if proved, would not affect an election, because it is merely contrary to a resolution of the Commons, which has not the force of law, can not now be sustained, inasmuch as s. 3 together with the definition of Corrupt Practices in the P. E. Act, 1868, declares undue influence, as "recognised by the common law of Parliament," to be an offence within the Act. And it is submitted that such resolutions as the above constitute a portion of the common law of Parliament.

Undue influence avoids the votes so influenced, which should therefore be struck off on a scrutiny (Bradford, 1 O. & H. 40; Oldham, ib. 161; and Ballot Act, s. 25).

3. The expression "corrupt practice as used in this Act What is corrupt means any of the following offences; namely, treating and practice. undue influence, as defined by this Act, and bribery, and personation, as defined by the enactments set forth in Part III. of the Third Schedule to this Act, and aiding, abetting, counselling, and procuring the commission of the offence of

Sec. 3.

31 & 32 Vic. c. 125.

P. E. Act, 1868, 8.3.

personation, and every offence which is a corrupt practice within the meaning of this Act shall be a corrupt practice within the meaning of the Parliamentary Elections Act, 1868.

This section declares (1) that corrupt practices shall include treating and undue influence (as defined by this Act), as well as bribery and personation (or aiding, abetting, &c., of the same), as defined by the sections of previous Acts set forth in Schedule 3; (2) that the same offences shall be corrupt practices within this Act and the P. E. Act, 1868.

Treating and undue influence have been considered above. Bribery and personation next claim attention; but first it may be convenient here to notice the definition of Corrupt Practice in the P. E. Act, 1868:

"The Parliamentary Elections Act, 1868."-The unrepealed definition of corrupt practices contained in s. 3 of this Act is as follows:

"Corrupt Practices or Corrupt Practice shall mean "bribery, treating and undue influence, or any of "such offences, as defined by Act of Parliament, or "recognised by the common law of Parliament."

Personation was thus not included in the above definition, and was therefore not a ground for a petition under the Parliamentary Elections Act, 1868. By virtue, however, of the present section of the new Act, both personation, and the aiding, abetting, &c., of the same is a corrupt practice, for which an election may be avoided. The same may be said of the offence of a candidate or election agent knowingly making a false declaration as to expenses, which is declared to be a corrupt practice by s. 33 (7).

"The Common Law of Parliament."-The Law and Custom of Parliament (Lex et Consuetudo Parlia

menti) is admitted to be part of the unwritten law of the land, and as such is only to be collected, according to the words of Sir E. Coke, "out of the rolls of Parliament and other records, and by precedents and continued experience;" to which it is added that, "whatever matter arises concerning either House of Parliament ought to be discussed and adjudged in that House to which it relates, and not elsewhere." (4 Inst. 15.) Hence, originally, all questions of controverted elections were tried and determined by the whole House of Commons, but under that system the perversion of justice was so notorious, that in 1770 the House consented to submit the exercise of its privileges to a tribunal constituted by law, in the form of election committees, the jurisdiction of which was in turn transferred by the P. E. Act, 1868, to the Courts of Law, where, by the Parliamentary Elections and Corrupt Practices Act, 1879, all such trials are now conducted by two Judges instead of one. The House has, however, no cognizance of these proceedings until their termination, when the Judges certify their decision in writing to the Speaker, which is final to all intents and purposes. (May's "Law of Parliament," 721.)

I.-BRIBERY.

Sec. 3.

common law

At the Common Law.-" Bribery at elections, taken Bribery, at generally, was always, and still is, punishable at common law" (pr. Lord Mansfield, in R. v. Pitt, 1 Wm. Bl., 383); and Willes, J., in the Lichfield case (1 O. & H., 26), said, “Bribery at common law, equally as by Act of Parliament, avoided any election at which it occurred,"

F

Sec. 3.

Common law definitions of bribery.

Offer to sell vote.

Similarly, the preamble of the 49 Geo. III. c. 118, runs—“ Whereas the giving or procuring to be given, or promising to give or to procure to be given, any sum of money, gift, or reward, or any office, place, employment, or gratuity, in order to procure the return of any member to serve in Parliament

is contrary to the ancient usage, right and freedom of elections, and contrary to the laws and constitution of this realm," &c.

The following common law definitions of bribery which are found in the books, form the foundation of the statutory enactments on the subject:--

"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" (Lord Glenbervie, 2 Doug. 400). "Wherever it is a crime to take, it is a crime to give; they are reciprocal, and in many cases, especially in bribery at elections to Parliament, the attempt is a crime; it is complete on his side who offers it" (Lord Mansfield, in R. v. Vaughan, 4 Burr. 2,501).

Hence it has been argued that an offer by an elector to sell his vote was also bribery; but in the Mallow case (2 O. & H. 21), Morris, J., refused to strike off the votes of men who had offered, but without success, to sell their votes to either candidate, on the ground that no precedent for such a course had been cited. The asking for a bribe was constituted an offence by statute, 2 Geo. II. c. 24; but that Act was repealed by the C. P. Act, 1854.