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facias for the trial of any issue in any action or suit, in the king's courts of record at Westminster, should be awarded out of the body of the county, but with a proviso that nothing in the said act should extend to any action or information upon any penal statute, and that such a proviso had been found inconvenient,) it is enacted, that every venire facias for the trial of any issue in any action or information upon any penal statute, in the king's courts of record at Westminster, in the counties palatine of Lancaster, Chester, and Durham, and Wales, shall be awarded of the body of the proper county where such issue is triable. The proviso in the stat. 16 & 17 Car. 2. c. 8. s. 2. that this act shall not extendo to any action or information on any penal statute, must be understood of popular actions and informations, and not of remedies given by statute to the parties grieved. In an action on a penal statute P, it was moved by the defendant that the plaintiff should give security to pay the costs, upon affidavit that he was a poor man.
But the court refused the motion ; for the statute having given him power to sue, it is a debt due to him ; but if it appeared that the action was brought in a feigned name, they would oblige the real prosecutor to give security. The court will grant a new trial, after verdict for defendant, in a penal action, on account of a mistake or misdirection of the judget; but where the case is properly left to a jury, although they should draw a wrong conclusion, the court will incline against disturbing the verdict.
XI. Debt on Stat. 2 G. 2. c. 24.-Bribery at Elections
Provisions of the Statute-Stat. 49 G. 3. c. 118.-
Wherever a person is bound by law to act without any view to his own private emolument, and another, by a corrupt contract, engages such person, on condition of the payment or promise of money, or other lucrative situation, to act in a manner which he shall prescribe, both parties are, by such contract, guilty of bribery s. There are not any traces either n See the 7th section of 4 Ann. c. 16. p Shinley v. Roberts, Bul). N. P. 196,7. o Sewel v. Edmonton Hundred, E. ? r Wilson v. Rastall, 4 T. R. 753. Cal
G. 1. C. B. Bull. N. P. 197. Lord craft v. Gibbs, 5 T. R. 19. S. P. King's MS. 231. S. C.
S. 2 Doug. Controv. Elections, 400.
of action or prosecution for bribery in elections of members of parliament, in the annals of Westminster-hallt, until after the legislature inflicted particular penalties for this kind of bribery by stat. 2 G. 2. c. 24. Informations for this offence were not granted until about the time of the general election in 1754; and the first case, in which an information at common law for this offence was prosecuted with effect, was the case of R. v. Pitt, T. 2 G. 3 B. R. 3 Burr. 1336. 1 Bl. R. 380. S. C. (114). From the nature of this work, the following remarks will necessarily be confined to stat. 2 G. 2. c. 24.
By the 7th section “, “ If any person having or claiming to have a right to vote in the election of any member or members to serve for the commons in parliament, shall ask, receive, or take any money, or other reward, by way of gift,
u Stat. 2 G. 2. c. 24. 8. 7.
(114) In this case, the defendant having been convicted and brought up for judgment, a doubt was raised as to the judgment which the court could or ought to give; the time limited for prosecution, by stat. 2 G. 2. c. 24. s. 11. (viz. two years) not having expired. The court (after consideration) ordered the defendant to be imprisoned for a short term, observing, that in inflicting this punishment they had paid regard to the circumstance of the limited time for prosecuting upon the statute not being expired. The definitions on the subject of bribery in Sir E. Coke, Hawkins, and other writers, on the pleas of the crown, extend to the corruption of persons in judicial offices only. Mr. Douglas ascribes the silence of these writers on the subject of bribery at elections of members of parliament, to fear, on the part of the judges (at the time when this species of bribery first prevailed,) that by exercising a jurisdiction over this offence, they should invade the privileges and judicial powers of the House of Commons. It was, however, remarked by Lord Mansfield, C. J. delivering the opinion of the court in R. v. Pitt, 1 Bl. R. 383. that bribery at elections, taken generally, was and still is punishable at common law; that the statute itself (2 G. 2. c. 24. s. 7.) supposed it to remain punishable at common law by the words,
or any otherwise lawfully convicted.” But it did not follow of course, that the court was obliged, ex debito justitiæ, to grant informations for bribery at elections of members, since the stat. 2 G. 2. which inflicts such very severe penalties. He added, that whether the court would ever hereafter grant informations for this offence until the time of limitation was expired, would be a matter of future consideration. In R. v. Heydon, E. 3 Burr. 1387. 1 Bl. R. 404. S. C. the judgment was respited until the limited time was expired, and then the court imposed a fine upon the defendant, and ordered him to be imprisoned.
loan, or other device; or agree or contract for any money, gift, office, employment, or other reward to give his vote, or to refuse or to 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 to give or to forbear to give his vote in any such election, such person shall for every offence forfeit the sum of 500l., to be recovered, with costs, by action of debt in any of the king's courts of record at Westminster.” By s. 8. “ If any person offending against this act shall, within twelve months next after the election, discover any other offender, so that he be thereupon convicted, the discoverer (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 (115).” If a person give or promise money or other reward to a voter, in order to procure his vote for one candidate, although the voter afterwards vote for another candidate, the penalties of the statute are incurred by the corrupter. In an action of debt on this statute, the declaration charged that the defendant corrupted one M. to vote for Lord V. and Sir R. B. (two of the candidates,) by giving him a sum of money. The fact was, that M. did not vote for Lord V. and Sir R. B., but for their opponents; whereupon it was objected, that the defendant, as he did not by any corrupt agreement procure M. to vote for Lord V. and Sir R. B. could not be said to have corrupted him so to do; but the court overruled the objection, on the authority of Bush v. Rawlins (116), observing, “ that the offence was
x Sulston v. Norton, 3 Burr 1235.
(115) A verdict having been found at the assizes against the defendant, upon the 7th section of this statute, for corrupting certain voters : the defendant at the beginning of the term next following the assizes, moved, that judgment upon the postea might be stayed, on the ground of his having entitled himself to the benefit of the 8th section, by having made a discovery of another person offending against the statute, why had been convicted thereof on his (the defendant's) evidence; but the court rejected the application, observing, that this was not a case wherein they ought to interpose at all upon motion. Pugh v. Curgenven, 3 Wils. 35.
(116) In which case it was resolved, that the giving a bribe to a person to forbear voting was an offence, although such person did completely committed by the corrupter, whether the party bribed should afterwards perform his promise or break it (117).” And according to the opinion of two judges in Henslow v. Fawcett, 3 Ad. & Ell. 51. the offence is completely committed by the corrupter, although the party bribed never intended to vote for the person, on whose behalf the money was given, if the money was given and professedly accepted on the terms that he should so vote.
If a person, without any previous agreementy, takes a sum of money,
after the election is over, for having given his vote for a particular candidate, this is not an offence within the foregoing statute. To an action of debt on the statute the defendant pleaded nil debet ?; after verdict for the plaintiff, the defendant applied to the court to stay further proceedings. The grounds of the application will appear from a statement of the case, which was as follows: The defendant, on the 16th of March, had received a bribe from one Earle : and on the same day made a discovery of Earle to J. S. (an attorney and commissioner to take affidavits) accompanied with an affidavit of the fact; whereupon an action was brought by one Bingley against Earle, and he was served with the writ in that action on the 19th of March. Two months afterwards the present action was commenced, and the defendant was served with process therein on the 18th of May. The two causes of Bingley v. Earle and Sutton v. Bishop were set down for trial, at the assizes, on the same day; but, the cause of Sutton v. Bishop standing first, the judge would not invert the order, and try the cause of Bingley v. Earle first, although that action was commenced first. The consequence was, that Sutton obtained a verdict against Bishop. Bingley, on the other hand, had a verdict against Earle, upon the evidence of Bishop; but this verdict came too late for Bishop to avail himself of it at the trial, for a verdict had already been given against him. The court were of opinion that, under the circumstances of this case, Bishop was to be deemed a discoverer, within the meaning of the 8th
y Lord Huntingtower v. Gardiner, 1 B.
and C. 297.
z Sution v. Bishop, 4 Burr. 2283.
not forbear to vote, but actually voted for the opposite candidate. See the case in Sayer's Rep. 289, by the name of Bush v. Ralling.
(117) See remarks on this case in Simeon's Law of Elections, 2nd edit. p. 207, 208. Sulston v. Norton was recognized in Henslow v. Fawcett, 3 Ad. & Ell. 57, 8.
section ; for it was not intended that the discoverer should be plaintiff in the cause wherein the discovery was made; because, if no other witness, there could not be a verdict. It was agreed, however, by Yates, Aston, and Willes, Js. (118) that there could not be a new trial, the verdict being right: and that judgment could not be arrested, there not being error on the record. At all events, the party must proceed to enter up judgment in Bingley v. Earle, before any thing could be done by the court; for the term convicted
did not mean convicted by verdict only, but by verdict followed up by judgment. At length it was resolved, that further proceedings should be staid by a special rule, stating the particular circumstances of the case (119).
The giving or promising money or office in order to procure the return of members, if not given to some person having a right, or claiming to have a right, to act as returning officer, or to vote at such election, not having been deemed bribery within the meaning of the preceding statute, such gifts being contrary to the freedom of elections, it was, by stat. 49 G. 3. (19th June, 1809,) c. 118, for the better securing the independence and purity of parliament, enacted and declared, that any person giving, or causing to be given, directly or indirectly, or agreeing to give any sum of money, gift, or reward, to any person, upon any agreement, that such person, to whom such gift or promise should be made, should, by himself, or by any other person at his solicitation or command, procure, or endeavour to procure, the return of any person to serve in parliament for any county, &c. or place, should, if not returned himself to parliament for such county, &c. for every such gift or promise, forfeit one thousand pounds; and the person so returned, and so having given, or so having promised to give, or knowing of and consenting to such gifts or promises, upon any such agreement, should be disabled and incapacitated to serve in that parliament for such county, &c. and deemed and taken to be no member of parliament, and enacted to be, to all intents and purposes, as if he had never been returned or elected; and any person re
(118) Lord Mansfield, C. J. was attending the House of Lords in the Douglas cause.
(119) Similar difficulties arose in the case of Petrie v. White, 3 T. R. 5, and post, p. 640, where an application was made for relief, founded on the 11th section of this statute, the plaintiff having been guilty of wilful delay. The court, on the authority of Sutton v. Bishop, stayed the proceedings by rule.