The Legal Observer, DIGEST, AND JOURNAL OF JURISPRUDENCE. SATURDAY, AUGUST 7, 1847. "Quod magis ad Nos Pertinet, et nescire malum est, agitamus." HORAT. THE LAW RELATING TO THE to forbear to give his vote in any election," ELECTION OF MEMBERS OF he is guilty of bribery. Doubts having PARLIAMENT. arisen, whether payment made to voters, under particular circumstances, could be WE would fain hope that the elections deemed bribery within the meaning of the now proceeding throughout the kingdom words cited, the stat. 5 & 6 Vict. c. 102, may not furnish many instances of returns s. 20, provides, that "the payment or gift obtained by undue influence of any kind, of any sum of money, or other valuable and could have wished that the great con- consideration whatsoever, to any voter, bestitutional principle that elections shall be fore, during, or after, any election, or to free, which was recognised in the earliest any person on his behalf, or to any person periods of our parliamentary history, had related to him by kindred or affinity, and been maintained inviolably. There is too which shall be so paid or given on account much reason to suspect, however, that we of such voter having voted, or having reare no better in this respect than those frained from voting, or being about to vote who have preceded us, and that the illegal or refrain from voting, at the said election, arts and devices adopted at former general whether the same shall have been paid or elections have been resorted to on the pre- given under the name of head-money, or sent occasion, in many places, with greater any other name whatsoever, and whether or less success. such payments shall have been made in compliance with any usage or practice, or not, shall be deemed bribery." By the 2 Geo. 2, c. 24, s. 7, not only the person who takes the bribe, but any person who, by any gift, reward, or promise, procures any person to give his vote, or to forbear It is said, in Rex v. Pitt, that "bribery from voting, incurs a penalty of 500l., and at elections of members of parliament must is disabled from voting. By the 49 Geo. always have been a crime at common law." 3, c. 118, any person giving or promising In point of fact, however, there is no re- any money or reward to any person, upon cord of any action or prosecution for bribery the engagement that the person to whom, at elections, until after the passing of the or on whose behalf, the gift or promise is stat. 2 Geo. 2, c. 24, which enacts, that "if made, shall procure the return of any perany person by himself, or by any person son to parliament, shall, if not returned, employed by him, doth or shall, by any gift forfeit 1,000l. for every such gift or or reward, or by any promise, agreement, promise; and every person so giving or or security for any gift or reward, corrupt promising shall, if returned, be disabled It may not be inappropriate, therefore, to refer to the means which the law affords for preventing and punishing the exercise of undue influence at elections, either by bribery, or intimidation, or by illegal interference. or procure any person to give his vote, or a 3 Burr. 1338. VOL. XXXIV. No. 1,013. b Participants in the crime are indemnified by discovering other offenders. 334 The Law relating to the Election of Members of Parliament. from serving in that parliament. The re-lows to any person having voice or vote in ceiving person is also subject to penalties. such election, any money, meat, drink, enIrrespective of the statutes prohibiting tertainment, or provision, or makes any bribery, the House of Commons, from an gift, present, reward, or entertainment." early period, has taken cognizance of cor- And, this provision having proved inaderupt practices at elections, as an offence quate, the 5 & 6 Vict. c. 102, s. 22, incaagainst the privileges of the House. In a pacitates any candidate from sitting who great variety of cases, in which candidates, contributes to the expenses incurred for either by themselves or their agents, have any meat, drink, entertainment, or probeen guilty of bribery, the house has vision, to or for any person, at any time, passed resolutions avoiding the elections either before, during, or after such election, made in such cases, and, in some cases, for the purpose of corruptly influencing seating the rival candidate. The law and such person, or any other person, to give, statutes with respect to the discovery and or to refrain from giving, his vote in any proof of bribery will be more conveniently such election. And by the 7 & 8 Geo. 4, referred to when the practice on election c. 37, s. 3, candidates are prohibited from petitions is treated of. giving, directly or indirectly, to voters or mark of distinction, under a penalty of 101. inhabitants, any cockade, riband, or other for every offence. The illegality of candidates furnishing voters with entertainment of any description after the teste of the writ, has been discussed in various cases at law; and it has been holden, that an innkeeper cannot recover against a candidate for provisions so furnished. would appear, however, that to prevent the innkeeper from recovering, on the ground of illegality, the meat and drink must be supplied by him with a view to induce the electors to vote for a particular candidate.d It "Treating," in the present state of Election Law, is an offence distinct from bribery? There is a standing order of the House of Commons, passed so far back as the year 1677, known as the Treating Resolution: it is in these words :"That if any person hereafter to be elected into a place, for to sit and serve in the House of Commons, for any county, town, port, or borough, after the teste or the issuing out of the writ or writs of election, upon the calling or summoning of any parliament hereafter, or after any such place becomes vacant hereafter in the time of parliament, shall by himself, or by any other in his behalf, or at his charge, at any time before the day of his election give any person, or persons, having votes in any such The interference of peers in elections election, any meat, or drink, exceeding the true value of ten pounds in the whole, in any place for members of parliament has long been a or places but in his own dwelling-house or ha- subject on which great jealousy has been bitation, being the usual place of his abode for evinced by the House of Commons, as apsix months last past, or shall before such elec- pears by successive resolutions of the tion be made and declared, make any other house, bearing date the 10th Dec., 1641, present, gift, or reward, or promise or obliga- the 15th Feb., 1700, and the 27th April, tion or engagement to do the same, either to 1802, after the union with Ireland. The any such person or persons in particular, or to interference of ministers and officers of the any such county, city, town, port, or borough, in general; or to or for the use and benefit of Crown is also prohibited, as well by statute them or any of them, every such entertainment, as by resolution of the house. The officers present, gift, or reward, promise, obligation, or of the excise and customs are prohibited engagement, is by this house declared to be from interfering; and, as regards elections bribery, and such entertainment, present, gift, in the metropolitan districts, justices, rereward, promise, obligation, or engagement, ceivers, Thames police surveyors, and police being duly proved, is, and shall be sufficient constables are interdicted. ground, cause, and matter to make every such election void as to the person so offending, and to render the person so elected incapable to sit in parliament by such election, and hereof the committee of elections and privileges is appointed to take special notice and care, and to act and determine matters coming before them accordingly." The offence of "treating," however, is prohibited by various acts of parliament. The 7 W. 3, c. 4, disables any person from serving as a member who, after the teste of the writ of summons to parliament, "directly or indirectly gives, presents, or al The act 2 & 3 W. 4, c. 69, also prohibits the application of corporate property for election purposes, and gives an action to any two freemen, against any corporate officer or trustee offending against the provisions of the act. The presence of the military at elections Ribbons v. Crickett, 1 Bos. & P. 264. d Thomas v. Edwards, 1 Tyr. & Gr. 872. e 7 & 8 Geo. 4, c. 53. f 12 & 13 Will. 4, c. 10. 3 Will. 4, c. 19, s. 19. The Law relating to the Election of Members of Parliament. 335 is another subject on which great jealousy in each parish or district; but, according has constantly been manifested. After to the decisions of committees, a voter who successive resolutions of the House of has been permitted by the sheriff or poll Commons in reference to this subject, the stat. 8 Geo. 2, c. 30, provided, that the Secretary at War should take measures, one day at least before the election, to remove the military to the distance of at least two miles from the place of election, until one day at least after the polling concludes; and in case of his neglect, he is to lose his office, and is declared incapable of holding any office under the crown. But the city of Westminster, the borough of Southwark, and any place where her Majesty or any of the royal family reside at the time of election, is excluded from these provisions, in respect of such soldiers as shall be attendant as guards on the Queen, or any of the royal family. clerk to vote at the wrong booth, does not thereby lose his vote. It is quite clear that it is not competent for a voter entitled to vote for two candidates, first to vote for one, or as it is termed, "to plump," and afterwards at the same election to vote for a second candidate. Where a vote is improperly taken by the poll clerk, without any mistake of the voter, it ought to be set right by the returning officer. When the mistake is on the part of the voter, the case is somewhat different. As an instance of this description is stated to have occurred at the late election for Abingdon, where a vote was recorded for Sir F. Thesiger, which was intended for his opponent, General Caulfield, we copy from Mr. Riots and outrages at elections, by which Wordsworth's book on elections (p. 92) the election is prevented and voters in- two cases in which there have been contimidated, totally avoid the election. In flicting decisions of election committees, several cases, where elections were proved under circumstances somewhat similar. to have been interrupted and prevented by "In the Taunton case' John White stood on riot, the House of Commons has not only the poll as having voted for Labouchere and declared elections made under such cir- Lee, but the original entry was for Bainbridge cumstances void, but has directed the At- and Lee. It was now proved (on an applicatorney-General to prosecute the promoters tion to the committee to have the former entry of such riots. If the riots be of a serious restored) that the voter came to the poll and nature, the Riot Act may be read, though the poll-clerk entered accordingly. The voter said he voted for Bainbridge and Lee, which not unnecessarily; and persons rioting may then turned from the table, as if going away, be committed to custody forthwith by the but suddenly turned round towards the table returning officer, without warrant. By the again, and said, I beg pardon, I meant Lastatute 5 & 6 W. 4, c. 36, where the bouchere and Lee.' The poll-clerk said to election proceedings are interrupted at any him that he had recorded the vote for Bainstage, the returning officer is authorsed to bridge and Lee,' but they both went to the readjourn until the tumult has ceased, and turning officer, who ordered the entry to be altered into Labouchere and Lee.' The com-then to resume the business so interrupted. mittee directed the vote to be entered for BainSome of the circumstances under which bridge." votes may be said to be lost, or recorded "In the Reading case there were two incontrary to the intention of the voter, are stances in which the committee came to a desaid to have arisen in certain cases during termination opposed to that mentioned in the the present general election, and may, Clift, who, upon coming to the poll, was asked preceding case. The first was that of Thomas therefore be considered not undeserving of for whom he voted; he said, Russell and consideration. As a general rule, votes Palmer,' and upon this the agent of Mr. Palmer given for a candidate who is ineligible, gave him a card of thanks. Upon receiving the after notice being given of his ineligibility, card he turned round as he was in the act of going are to be looked upon as of no avail. The away, and said that he did not mean to vote for notice may be given at any time, but the Mr. Russell, he meant to vote for Mr. Serjeant. effect will be confined to votes subsequently Talfourd.' This he said before he left the front given. A vote may be thrown away municated with any person, but after he had of the polling place, and before he had comthrough an error at the time of polling. moved a slight distance from the spot where As already stated, (ante, p. 307,) it is expressly enacted, that particular polling places shall be appropriated for the voters h Spillesbury v. Mickelthwaite, 1 Taunt. 146. i Rex v. Hawkins, 10 East, 211; S. C. 2 Dow. 124; Claridge v. Evelyn, 5 B. & A. 81. . * Middlesex case, 2 Peck. 57; Gloucestershire case, id. 259. Falc. & Fitz. Elec. R. 299. There was a 336 Exemption of Members of Parliament from Arrest. he stood when he voted. The matter was re-mons of Great Britain for the time being, ferred to the mayor, and the poll was altered. to be arrested or imprisoned upon any The other instance was that of Henry Corderoy, such suit or proceedings." There is a who came to the polling place and voted for similar reservation in the Uniformity of 'Russell and Talfourd.' Having done this, a Process Act, (2 Will. 4, c. 39.) Mr. Evans who polled at the same time took him back about three feet from the polling place, and made some remark to him, when the voter came back to the polling place and said that he had made a mistake in polling for Russell and Talfourd, and that he meant to have voted for Palmer and Talfourd.' It was stated that the poll could not be altered; but upon Mr. Weeden, an agent of Mr. Palmer, saying it was allowable to alter the poll if the party had not left the booth, the polling-clerk, in the absence of the mayor, altered the poll. The poll-clerk in his evidence represented the vote given for Russell to have been recalled almost instantaneously, but admitted it to have been entered on the poll. In both these instances the committee refused to alter the poll, thus giving effect to the alterations that had been made by the poll-clerks. As usual at a general election where the contests have been numerous and severe, an appeal to the house is threatened in several instances. We shall, therefore, endeavour to furnish our readers with a short summary of the law and practice in regard to election petitions at the earliest opportunity. EXEMPTION OF MEMBERS OF time." n Blackstone states somewhat vaguely, that a commoner is privileged "for forty days after every prorogation, and forty days before the next appointed meeting; which is now in effect as long as the parliament subsists, it seldom being prorogued for more than fourscore days at a Tidd cites this passage from Blackstone, and introduces it thus:-" By the law and custom of parliament, members of the House of Commons are privileged from arrest, not only during the actual sitting of parliament, but for a con, venient time, sufficient to enable them to come from and return to any part of the kingdom before the first meeting, and after the final dissolution." We are not aware that it has ever been expressly determined how long the privilege endures after a dissolution, but the existence of the privilege was distinctly recognized in Holiday v. Pitto In that case it appears the parliament was prorogued on the 16th day of the month, and dissolved on the 17th. The defendant, Colonel Pitt, was arrested on the 20th, and applied to the King's Bench for his discharge, on the ground that members had a privilege redeundo after the dissolution, and that the arrest was within such time of privilege. In argument, it was suggested that the privilege subsisted for forty days after the parliament; but it was admitted, that the House of Commons had always avoided answering the question, and had left it at large to a convenient time of which themselves were the judges. Therefore, in the case of Mr. Martin in 1586, who was arrested twenty days before the meeting of parliament, the house resolved they Before the 12 & 13 Will. 3, c. 3, mem- would not limit the time, but that the bers of parliament held themselves to be twenty days were within a convenient time, privileged not merely from arrest, but and that therefore Mr. Martin should be from being sued. By that statute, par- discharged. Colonel Pitt's case was ties were enabled to sue peers and mem- argued at great length, before all the bers of parliament while the parliament judges at Serjeants' Inn, and they deterwas not actually sitting; but a reserva-mined that he was entitled to privilege retion was made of their right to immunity deundo for a convenient time, and that withfrom personal arrest. The stat. 10 Geo. in that time he was arrested. He was 3, 50, allows suits against members therefore discharged out of custody. whilst the house is sitting, as well as The only authority cited for the sugduring the recess of parliament, but expressly provides, that nothing therein contained shall extend to subject the person of any member " of the House of Com THE privilege of members and ex-members of parliament from arrest in civil actions is a subject on which some misunderstanding exists, and which is a good deal canvassed, in more than one part of the united kingdom. The exemption is clearly and expressly recognised by several statutes, but the extent of the privilege is not very clearly defined in any case. 1 Blac. Com. p. 165. 2 Stra. 985; Cas. Tun. Hard. 28, 37; 2 Comyn's R. 444. Exemption of Members of Parliament from Arrest-Common Law Practice. 337 gestion, that the privilege continues for Court of Common Pleas, in a case very reforty days after a dissolution, is a case of cently reported. The Earl of Athol v. The Earl of Derby, The plaintiff, (Walbank,) an officer of touching the privilege of peers, and how the Sheriffs of London, claimed from the long it lasts. It appears, that by two defendant, who is an attorney, three orders of the House of Lords, dated re- guineas, the amount of certain fees alspectively the 28th May, 1624, and the leged to be due to him for the execution of 27th Jan., 1628, they declare their privi- three warrants from the Sheriffs of London, lege commences from the teste of their which were directed to the plaintiff at the writ of summons to parliament; and that defendant's instance. The question was, upon every session and prorogation, their whether the defendant was personally reprivilege is for twenty days before, and sponsible for those fees? twenty days after each session, which the order says is time enough for them to come from all parts of the realm, and to return. The reporter adds :-" But it is said the Commons never assented to this, but claim forty days after and before each decision of the Court of Exchequer, in sessions." So in the Cot. Records, 704, Robins v. Bridge,' was relied upon in supit is said, that "the Commons claim privi- port of this view. In that case it was said, lege forty days before and forty days after by Abinger, C. B., that "the attorney does every session; but the Commons never not make himself liable for anything, unless have ascertained the time of their privilege." For the defendant, it was submitted, that the action should have been brought against the client, and not against the attorney, who was merely the agent of the principal directed by the principal himself. The it is for those charges which he is himself bound to pay, and for which he makes a charge ;" and it was expressly holden in that case, that the attorney was not responsible to a witness for expenses, for it was said, that the witness had no dealing with the attorney, but gave his evidence for the party to whom and by whom the obligation was incurred. But The case in Levinz was determined so far back as Michaelmas Term, 24 Car. 2; and it will be observed that Colonel Pitt's case was heard in Michaelmas Term, 7 Geo. 2, long before the passing of the stat. 10 Geo. 3, c. 50, above cited, which restricts the exemption from arrest to members of the House of Commons "for the The court thought the case of a bailiff time being." It may be deserving of con- resembled much more that of an officer of sideration, therefore, whether a member of the court than that of a witness. the late parliament has any privilege from authorities were not wanting to show that arrest since the dissolution? The privi- the attorney was liable. In Townshend v. lege of newly elected members, for forty Carpenter, a sheriff's officer, employed by days before the day appointed for the an attorney to make arrests on mesne prositting of parliament, stands upon a some- cess, was allowed to recover against the what differeut footing; but, as already ob- attorney; and in Forster v. Blakelock, served, the authority for this proposition is Abbott, C. J., expressly laid it down, that by no means satisfactory. the officer was entitled to claim the sum usually allowed from the attorney by whom he is employed, and was not bound to look to the party of whom he knew nothing. Upon these grounds, a verdict taken for the plaintiff was sustained. As most of our readers are aware, the new parliament is summoned for Tuesday, the 21st of September next, which is forty days from Thursday the 12th August. |