And, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal and strongly prohibited (68). For Mr. Locke (r) ranks it among those breaches of trust in the executive magistrate, which, according to his notions, amount to a dissolution of the government, "if he employs the force, treasure, and offices of the society, to corrupt the representatives, or openly to pre-engage the electors, and prescribe what manner of persons shall be chosen. For, thus to regulate candidates and electors, and new-model the ways of election, what is it, (says he), but to cut up the government by the roots, and poison the very fountain of public security?" As soon, therefore, as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not to return till one day after the poll is ended. Riots likewise have been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members there. If any officer of the excise, customs, stamps, or certain other [ *179 ] branches of the revenue, presume to intermeddle in elections, by persuading any voter or dissuading him, he forfeits 1007., and is disabled to hold any office. Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves co-operate, by the (r) On Gov. p. 2, s. 222. (68) In support of this principle the 3 Edw. I. c. 5, is generally cited: Et pur ceo que elections deivent estres franches, le roi defende sur sa greve forfaiture, que nul haut homme n'autre per poiar des armes, ne per menaces, ne distourbe de faire franche election. The principle is good, and ought to be applied to all elections; but the elections which the legislature had then in contemplation were those of the sheriff, coroner, &c.; for the house of commons, Laws to restrain bribery and corruption. infamous practice of bribery and corruption. To prevent which it is enacted, that no candidate shall, after the date (usually called the teste) of the writs (69), or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons or to the place in general, in order to his being elected: on pain of being incapable to serve for that place in parliament (70). And if any money, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to (69) Or after the ordering of the writs; that is, after the signing of the warrant to the chancellor for issuing the writs. (Sim. 165).—CH. (70) This incapacity arises from 7 Will. III. c. 4, commonly called the treating act; which enacts that the candidate offending against that statute shall be disabled upon such election. The obvious meaning of the statute is, that treating vacates that election only; and that the candidate is no way disqualified from being reelected, and sitting upon a second return. (See the 2nd case of Norwich, 1787, 3 Lud. 455, though the contrary was determined in the case of Honiton, 1782, Id. 162). But after the general election in 1796, the return of one of the members for the borough of Southwark was declared void by a committee, because it was proved that he had treated during the election. Upon that vacancy he offered himself again a candidate, and having a majority of votes was returned as duly elected; but upon the petition of the other candidate, the next committee determined that the sitting member was ineligible, and that the petitioner ought to have been returned. And he took his seat accordingly. [See the next note.] It has been supposed, that the payment of travelling expenses, and a compensation for loss of time, were not treating or bribery within this or any other statute; and a bill passed the house of commons to sub ject such cases to the penalties imposed by 2 Geo. II. c. 24, upon persons guilty of bribery. But this bill was rejected in the house of lords by the opposition of Lord Mansfield, who strenuously maintained that the bill was superfluous; that such conduct, by the laws in being, was clearly illegal, and subject, in a court of law, to the penalties of bribery. (2 Lud. 67). Indeed, it is so repugnant both to the letter and spirit of these statutes, that it is surprising that such a notion and practice should ever have prevailed. It is certainly to be regretted, that any elector should be prevented by his poverty from exercising a valuable privilege; but the nation would have much greater cause to lament, if it were deprived of the services of all gentlemen of moderate fortune, by the legalizing of such a practice, even with the most equitable restrictions, not to mention the door that it would open to the grossest impurity and corruption. But Lord Ellenborough and Mr. Baron Thompson have held at Nisi Prius, that a reasonable compensation for the loss of time and travelling expenses is not illegal. (2 Peckw. 182). If an innkeeper furnishes provisions to the voters, contrary to the 7 Will. III. c. 4, though at the express request or order of one of the candidates, he cannot afterwards maintain an action against that candidate, as courts of justice will not enforce the performance of a contract made in direct violation of the general law of give or withhold his vote, as well he that takes as he that offers such bribe, forfeits 5007., and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence (s) (71). The first instance that occurs, of election bribery, was so early as 13 Eliz., when one Thomas Longe (being a simple man and of small capacity to serve in parliament) acknowledged that he had given the returning officer and others of the borough for which he was chosen, four pounds to be returned member, and was, for that premium, elected. But for (s) In like manner the Julian law de ambitu inflicted fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48. 14. 1. the country. (1 Bos. & Pull. 264). -CH. [It is probable, that, during the present session, (1836), the law upon this subject will be amended; a bill having that object has been introduced into the house of commons.-ED.] (71) This is enacted by 2 Geo. II. c. 24, explained and enlarged by 9 Geo. II. c. 38, and 16 Geo. II. c. 11; but these statutes do not create any incapacity of sitting in the house; that [formerly] depended solely upon the treating act mentioned in the preceding note. [But, since Mr. Christian wrote, the statute of 49 Geo. III. c. 118, has imposed further penalties on persons giving, or receiving, money or other rewards for the purpose of procuring, or endeavouring to procure, the election or return of a member of parliament. One of these additional penalties is, that if the party returned has been guilty of bribery himself, or has consented to such acts by others in his behalf, his return shall be void; and he shall be disabled from serving in that parliament for the place in respect of which he has been party or privy to such bribery.—ED.] It has been held that it is bribery if a candidate gives an elector money to vote for him, though he afterwards votes for another; (3 Burr. 1235); and there can be no doubt but it would also be bribery in the voter; for the words of the statute clearly make the offence mutual. And it has been decided that such vote will not be available to the person to whom it may afterwards be given gratuitously: for an election ought not to depend upon a vote so contaminated with bribery and treachery; and the voter's previous conduct must raise a strong suspicion that he gives his vote rather from the inducement of a higher bribe, than from the conviction of his conscience. But the propriety of this decision has been questioned by respectable authority. (2 Doug. 416). An instance is given in 4 Doug. 366, of an action, in which twenty-two penalties, 11,000. were recovered against one defendant. But besides the penalties imposed by the legislature, bribery is a crime at common law, and punishable by indictment or information, though the court of King's Bench will not in ordinary cases grant an information within two years, the time within which an [ *180 ] this offence the borough was amerced (72), the member was removed, and the officer fined and imprisoned (t). But, as this practice hath since taken much deeper and more universal root, it hath occasioned the making of these wholesome statutes; to complete the efficacy of which, there is nothing wanting but resolution and integrity to put them in strict execution. *Undue influence being thus (I wish the depravity of mankind would permit me to say, effectually) guarded against, the election is to be proceeded to on the day appointed; the sheriff or other returning officer first taking an oath against bribery, and for the due execution of his office. The candidates likewise, if required (73), must swear to their qualification; and the electors in counties to theirs; and the electors both in counties and boroughs are also compellable to take the oath of abjuration (74) and that against bribery and corruption. And it might not be amiss, if the members elected were bound (t) 4 Inst. 23; Hale of Parl. 112; Com. Journ. 10 & 11. May, 1571. action may be brought for the penal- (72) Lord Mansfield observed upon is ordered by this house that a fine of twenty pounds be assessed upon the corporation for their said lewd and slanderous attempt.-CH. (73) If any candidate, upon a reasonable request from another candidate, or by two of the electors, either at the election, or at any time before the return of the writ, shall refuse to swear to his qualification, his election shall be void. (9 Ann. c. 5).—CH. (74) But now, by the statute of 10 Geo. IV. c. 7, s. 5, Roman catholics (against whom only the oath of abjuration was directed) are enabled to vote without taking that oath, upon taking the substituted oath set forth in the said act. And the number of oaths (and consequently the extent of perjury) at the times of election is curtailed by the statute of 2 Gul. IV. c. 45, s. 58, as to England; by the statute of 2 & 3 Gul. IV. c. 65, s. 56, as to Scotland; and by the statute of 2 & 3 Gul. IV. c. 88, s. 64, as to Ireland. to take the latter oath, as well as the former; which in all probability would be much more effectual, than administering it only to the electors (75). The election being closed, the returning officer in boroughs Return. returns his precept to the sheriff, with the persons elected by the majority (76); and the sheriff returns the whole, together with the writ for the county, and the knights elected there (75) By the statute of 2 Gul. IV. c. 45, s. 62, it is enacted, that if a poll is demanded at any election for any county in England or Wales, it shall commence on the next day but two after the day fixed for the election, unless such day shall be Saturday or Sunday, and then on the Monday following; and the polling shall continue for two days only. Nearly similar regulations are made by the 67th section of the said statute, as to polling for boroughs. A corresponding limitation of the time allowed for polling in Scotland, is enacted by the statute of 2 & 3 Gul. IV. c. 65, s. 32. But by the 52nd and 53rd sections of the stat. of 2 & 3 Gul. IV. c. 88, the returning officers in Ireland are empowered to keep the poll open for five days; or, in case force or violence is used towards the electors, for as much longer a period as they may deem necessary. By the statute of 5 & 6 Gul. IV. c. 36, the period of polling in any city, borough, or town in England or Wales, is limited to one day, between the hours of eight in the morning and four in the afternoon, and is to take place on the day next following that fixed for nomination; the act also directs that there shall be at least one polling booth or separate compartment for every 300 electors; and if any candidate, or the proposer or seconder of any candidate, requires it, and will pay the expenses incident upon a further division and arrangement, the returning officer is directed so to divide and arrange the booths or compartments of each polling place, that not more than 100 electors shall be allotted to poll in each such booth or compartment. If this last provision should ever be acted upon in some of the larger boroughs, 120 substitutes for the sheriffs, or other returning officers, 120 poll-clerks, and 120 check-clerks for each of the several candidates, will be required and to select these, and make the prescribed arrangement and division of the polling-places, upon a very few hours' notice, may be found extremely difficult. If the provision was a proper one, it should have been enacted positively, so that the means necessary to carry it into effect might, in all cases, be duly provided. The act does not extend to Ireland or Scotland; where the duration of polls for cities, boroughs, and towns, is the same as that fixed for counties, as above mentioned. (76) See the 65th section of the statute of 2 Gul. IV. c. 45, and the 32nd and 34th sections of the statute of 2 & 3 Gul. IV. c. 65, as to the custody of the poll-books, and the final declaration of the poll, at elections in England and in Scotland, respectively; which declaration must be made, and the members returned proclaimed on the day next but one after the close of the poll, unless that day should be a Sunday, in which case the proclamation must be made on the Monday following. In Ireland, the returning officer is directed by the 52nd section of the statute 2 & 3 Gul. IV. c. 88, to make his return immediately after the close of the poll. Aliteral compliance with this enactment must be impossible, where there are several polling places distant from each other, but which all close at the same time. |