"The Catholic priest has, and he ought to have, great influence. In the proper exercise of that influence on electors, the priest may counsel, advise, recommend, entreat and point out the true line of moral duty, and explain why one candidate should be preferred to another, and may, if he think fit, throw the whole weight of his character into the scale; but he may not appeal to the fears or terrors or superstition of those he addresses. He must not hold out hopes of reward here or hereafter, and he must not use threats of temporal injury, or of disadvantage, or of punishment hereafter. He must not, for instance, threaten to excommunicate, or to withhold the Sacraments, or to expose the party to any other religious disability, or denounce the voting for any particular candidate as a sin or as an offence involving punishment here or hereafter. If he does so with a view to influence a voter or to affect an election, the law considers him guilty of undue influence." * (Pr. Fitzgerald, J., Longford, 2 O. & H. 16; cp. Galway, ib. 57; Tipperary, ib. 31.) (f) "To induce or compel such person," &c.-The undue influence of whatever kind must be exercised against the elector himself. It would not be enough to show that indirect intimidation had been brought to bear against him by trying to influence his family or relatives, &c. (g) "Abduction, duress."-The case of forcible abduction has been already referred to (supra, p. 47). Instances of abduction, &c., falling under the present head, are such as occurred in the Staleybridge * Cp. the language of Sir S. Romilly in Huguenin v. Baseley, 14 Ves. 288. Sec. 2. Sec. 2. Fraudulent device. Down case. case (20 L. T. 78), where voters were made drunk and kept out of the way in order to prevent them from voting (cp. Cockermouth, 2 P. R. & D. 166; Lisburn, W. & B. 227). (h) "Any fraudulent device or contrivance."-In the Coventry case (1 O. & H. 105), a case occurred where one, B., had been induced to personate and vote in the name of D., as to which Willes, J., said that, "It might be laid in the petition that an agent of the member had got voters personated, and that that, if established, would be sufficient fraud at Common Law to set aside the election." But the act must be knowingly and wilfully committed by the agent, so that if the agent, bona fide, believes that the person he induces, in fact, to personate another, is really the voter whom he personates, it will not affect the election (Gloucester, 2 O. & H. 62). And so, where voters' cards, printed just like ballot papers, and having a mark after respondent's name, were sent out with an intimation that if the ballot papers were not marked in the same manner, the vote would be void, the Judge refused to declare it a fraudulent device, because he could not believe it was done with a fraudulent intention (ib.). In the Northallerton case (1 O. & H. 169), where two voters had agreed to pair, and not to vote, and subsequently one of them did vote, acting upon information he had received that the other had also broken his promise, Willes, J., held, in the absence of any mala fides being shown, that the vote was good. In the Down election (3 O. & H. 115), it appeared that a Mr. F., who was one of the respondent's principal agents, had publicly declared that he had discovered a plan for defeating the secrecy of the ballot. An article on the subject afterwards appeared in the "Belfast News Letter," containing the following remark, "We were previously aware that the Ballot Act did not afford perfect security, and this opinion has been strengthened by the clear and convincing statement made in our presence by Mr. F." It was proved that Mr. F. ordered and distributed, at the respondent's expense, 10,000 copies of the newspaper issue containing this article. On the question whether it was a fraudulent device within the section, Baron Fitzgerald held that it was not, on the ground that no individuals had been specified or ascertained as having been affected thereby. He also refused to avoid the election under the common law, on the ground that having endeavoured to determine the extent of the effect produced by the article, and after having made a fair deduction from the only class of voters with which he thought it possible that a device of this kind could obtain credence, the residuum appeared to be wholly inappreciable. Sec. 2. Barry, J., on the other hand, held that the Down case. election ought to be avoided on the following grounds :-(1.) The Ballot Act having for its prime object the conferring upon voters the right of voting in secret, any device calculated to mislead voters into the belief that the Act of Parliament is abortive, is unconstitutional and illegal, and sufficient to avoid any election. (2.) If, owing to the more recent introduction of the Ballot Act, it were not possible to range such a device under any of the Sec. 2. Down case. Undue influence by well-known heads of electoral corruption, a precedent should be made. (3.) But it is clearly an instance of undue influence, and we are to consider whether in this particular case we have reasonable grounds for supposing that it existed to such an extent as to have prevented the election from being a free one, and with a majority of only 20 out of 11,500 votes polled, it is impossible to believe that, considering the "gigantic scale" of the device, a larger number were not influenced. (4.) But, in any case, the rule laid down by Lord Bramwell in the N. Durham case (2 0. & H. 157), applies, that where the practice has been so general that the result may have been affected, it is no part of the Judge's duty to enter into a kind of scrutiny. The latter opinion seems to be most in accordance with the principles already shown to be established law. The section, it is true, requires proof of undue influence in particular cases. But that general intimidation avoids an election at common law is beyond a doubt, and that such intimidation is none the less effective because in the form of a fraudulent device cannot be seriously questioned. Indeed, Fitzgerald, J., admitted that its consequence "would or might create alarm in the minds of persons who believed it." Then, it being proved that 10,000 copies had been distributed in a constituency numbering 13,000, of whom 11,500 only voted, there was sufficient prima facie evidence of general intimidation at common law; in which case the rule laid down by Lord Bramwell, and cited by Barry, J., should, it is submitted, have been followed. There remains to be considered the case of those whose position or office may enable them to exercise Sec. 2. the Commons ference in peers; an undue influence over the electors. Although not persons in included in the above section, such interference has high office, &c. been at all times severely denounced and prohibited by resolutions of the House of Commons, and many Acts have been passed, directed specifically against the several classes of persons from whom such undue influence may proceed. Thus, in 1641, a resolution was passed, declaring that, "whereas the House of Resolutions of Commons has received information, that letters from against interpeers are directed to boroughs that now are to make elections by election of members to serve in this Parliament, they conceive that all letters of that nature from any peers of this realm do necessarily tend to the violation of the privileges of Parliament and the freedom of elections, &c." And by the 2nd Wm. & Mary, c. 7, the nomination of members for the Cinque Ports, claimed by the Lord Wardens as of right, was pronounced to be contrary to the laws and constitution of this realm and void. It also appears from the Westminster Case 1775 (1 Doug. 160), that a resolution to the effect that "it is a high infringement of the liberties and privileges of the Commons of Great Britain, for any Lord of Parliament, or any Lord Lieutenant of any County, to concern themselves in the election of Members to serve for the Commons in Parliament," was renewed at the beginning of every session ever since the 3rd January, 1701. A similar resolution was passed in 1802, on the Union with Ireland, which has been adopted as a Sessional resolution ever since. Still stronger was the resolution of the 10th Ministers; December, 1779, against the interference of Ministers. |