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*CHAPTER THE SIXTEENTH.

OF BRIBERY.

BRIBERY is the receiving or offering any undue reward by or to any person whatsoever, whose ordinary profession or business relates to the administration of public justice, in order to influence his behavior in office, and incline him to act contrary to the known rules of honesty and integrity. (a) And it seems that this offence will be committed by any person in an official situation, who shall corruptly use the power or interest of his place for rewards or promises: as in the case of one who was clerk to the agent for French prisoners of war, and indicted for taking bribes in order to procure the exchange of some of them out of their turn.() And bribery sometimes signifies the taking or giving of a reward for offices of a public nature. (c) Corrupt and illegal practices in giving rewards or making promises, in order to procure votes in the elections of members to serve in Parliament, are also denominated bribery, and punishable by common law, and by statute (d) So, giving refreshments to voters before they vote, in order to induce them to vote for a particular candidate, is bribery at common law.(e) And the attempt to influence persons serving as jurymen corruptly to one side, by gifts or promises (which, with other practices tending to influence a jury, will be considered in treating of the crime called embracery),(ƒ) may be mentioned as a species of bribery.

The law abhors the least tendency to corruption; and upon the principle which has been already mentioned, of an attempt to commit even a misdemeanor, being itself a misdemeanor(g) attempts to bribe, though unsuccessful, have in several cases been held to be criminal. Thus, it is laid down generally, that if a party offers a bribe to a judge, meaning to corrupt him in a case depending before him, and the judge takes it not; yet this is an offence punishable by law in the party that offers it.) And it has been held to be a misdemeanor to attempt to bribe a cabinet minister, and a member of the Privy Council, to give the defendant an office in the colonies.(i) And an information was granted against a man for promising money to a member of a corporation, to induce him to vote for the election *224] of a mayor.(j) An *information also appears to have been exhibited against a person for attempting by bribery to influence a juryman in giving his verdict.() Where a police officer was offered £1000 to assist a party in obtaining possession of a ward of the Court of Chancery, who had a fortune of £5000, and who afterwards married such party; Lord Eldon, C., said "the endeavor to bribe a man to commit an offence is itself a very serious offence, and the person who made that offer may not be aware of his danger."()

Bribery at elections for members of Parliament was always a crime at common law, and consequently punishable by indictment or information ;(m) but in order to enforce the common law, and because it had not been found sufficient to prevent

(a) 3 Inst. 149; 1 Hawk. P. C. c. 67, s. 2; 4 Blac. Com. 139.

(b) Rex v. Beale, E. T. 38 Geo. 3, cited in Rex v. Gibbs, 1 East R. 183; and see Rex v. Vaughan, 4 Burr. 2494, ante, 214.

(c) 1 Hawk. P. C. c. 67, s. 3. As to this species of bribery, see the preceding chapter. (d) Rex v. Pitt, 3 Burr. 1338; 2 Geo. 2, c. 24; 49 Geo. 3, c. 118.

(e) Hughes v. Marshall, 2 Tyrw. 134; s. c., 2 C. & J. 118; C. & P. 151 (24 E. C. L. R.).

(f) Post, Chap. xxi.

(9) Ante, p. 84.

(h) 3 Inst. 147; Rex v. Vaughan, 4 Burr. 2500; ante, 214.

(i) Vaughan's case, 4 Burr. 2494, ante, 214; and see Rex v. Pollman, 2 Campb. 229. (j) Plympton's case, 2 Ld. Raym. 1377.

(k) Young's case, cited in Rex v. Higgins, 2 East R. 14 and 16.

(7) Wade v. Broughton, 3 Ves. & B. 172.

(m) Rex v. Pitt, 3 Burr. 1335, by Lord Mansfield, C. J.

1 Dishon v. Smith, 10 Iowa 212; State v. Ellis, 33 N. J. (Law) 102.

the evil, considerable penalties have been imposed upon this offence by different

statutes.

The 7 & 8 Will. 3, c. 7, s. 4, enacts, that all contracts, promises, bonds, and securities to procure any return of any member to serve in Parliament, or anything relating thereunto, shall be void; and that whoever makes or gives such contract, security, promise, or bond, or any gift or reward, to procure a false or double return, shall forfeit three hundred pounds. (n)

The 17 & 18 Vict. c. 102 consolidated and amended the laws relating to bribery, treating and undue influence at elections of members of Parliament.

Sec. 2. "The following persons shall be deemed guilty of bribery, and shall be punishable accordingly:

1. "Every person who shall, directly or indirectly, by himself, or by any other person on his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure or to endeavor to procure, any money, or valuable consideration, to or for any voter, or to or for any person on behalf of any voter, or to or for any other person in order to induce any voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid, on account of such voter having voted or refrained from voting at any election:

2. "Every person who shall, directly or indirectly, by himself or by any other person on his behalf, give or procure, or agree to give or procure, or offer, promise, or promise to procure or to endeavor to procure, any office, place, or employment to or for any voter, or to or for any person on behalf of any voter, or to or for any other person, in order to induce such voter to vote, or refrain from voting, or shall corruptly do any such act as aforesaid, on account of any voter having voted or refrained from voting at any election:

3. "Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make any such gift, loan, offer, promise, procurement, or agreement as aforesaid, to or for any person, in order to induce such person to procure, or endeavor to procure, the return of any person to serve in Parliament, or the vote of any voter at any election :

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*4. "Every person who shall, upon or in consequence of any such gift, loan, offer, promise, procurement, or agreement, procure or engage, promise, or endeavor to procure the return of any person to serve in Parliament, or the vote of any voter at any election:

5. "Every person who shall advance or pay, or cause to be paid, any money to or to the use of any other person with the intent that such money or any part thereof shall be expended in bribery at any election, or who shall knowingly pay or cause to be paid any money to any person in discharge or repayment of any money wholly or in part expended in bribery at any election.

"And any person so offending shall be guilty of a misdemeanor, and in Scotland of an offence punishable by fine and imprisonment, and shall also be liable to forfeit the sum of one hundred pounds to any person who shall sue for the same, together with full costs of suit; provided always, that the aforesaid enactment shall not extend or be construed to extend to any money paid or agreed to be paid for or on account of any legal expenses bona fide incurred at or concerning any election."

Sec. 3. The following persons shall also be deemed guilty of bribery, and shall be punishable accordingly:

1. "Every voter who shall, before or during any election, directly or indirectly, by himself or by any other person on his behalf, receive, agree, or contract for any money, gift, loan, or valuable consideration, office, place or employment for himself or for any other person, for voting or agreeing to vote, or for refraining or agreeing to refrain from voting, at any election:

2. "Every person who shall, after any election, directly or indirectly, by himself or by any other person on his behalf, receive any money or valuable consideration

(n) One-third to the King, one-third to the poor of the place concerned, and one-third to the informer with his costs, to be recovered by action or information. But if it appears to be a void election, an action for this penalty is not maintainable: 1 Hawk. P. C. c. 67, 8. 8, in the margin.

on account of any person having voted or refrained from voting, or having induced any other person to vote or to refrain from voting, at any election.

Any person so offending shall be guilty of a misdemeanor, and in Scotland of an offence punishable by fine and imprisonment, and shall also be liable to forfeit the sum of ten pounds to any person who shall sue for the same, together with full costs of suit."

Sec. 4. "Every candidate at an election, who shall corruptly by himself, or by or with any person, or by any other ways or means on his behalf, at any time. either before, during, or after any election, directly or indirectly, give or provide, or cause to be given or provided, or shall be accessory to the giving or providing, or shall pay, wholly or in part, any expenses incurred for any meat, drink, entertainment, or provision to or for any person, in order to be elected, or for being elected, or for the purpose of corruptly influencing such person or any other person to give or refrain from giving his vote at such election, or on account of such person having voted or refrained from voting, or being about to vote or refrain from voting, at such election, shall be deemed guilty of the offence of treating, and shall forfeit the sum of fifty pounds to any person who shall sue for the same, with full costs of suit; and every voter who shall corruptly accept or take any such meat, drink, en*226] tertainment, or provision, shall be incapable of voting at such election, and his vote, if given, shall be utterly void and of none effect." Sec. 5. "Every person who shall, directly or indirectly, by himself, or by any other person on his behalf, make use of, or threaten to make use of, any force, violence, or restraint, or inflict, or threaten the infliction by himself or by or through any other person, of any injury, damage, harm, or loss, or in any other manner practice intimidation upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting, at any election, or who shall by abduction, duress, or any fraudulent device or contrivance, impede, prevent, or otherwise interfere with the free exercise of the franchise of any voter, or shall thereby compel, induce, or prevail upon any voter, either to give or to refrain from giving his vote at any election, shall be deemed to have committed the offence of undue influence, and shall be guilty of a misdemeanor, and in Scotland of an offence punishable by fine or imprisonment, and shall also be liable to forfeit the sum of fifty pounds to any person who shall sue for the same, together with full costs of suit."

Sec. 6. When it is proved before a revising barrister that any person has been convicted of bribery or undue influence, or has had judgment against him for any penal sum recovered for bribery, treating, or undue influence, the barrister is to expunge from the list of voters the name of such person, or disallow his claim to be inserted, and make a separate list of such persons.

Sec. 7. "No candidate before, during, or after any election shall in regard to such election, by himself or agent, directly or indirectly, give or provide to or for any person having a vote at such election, to or for any inhabitant of the county, city, borough, or place for which such election is had, any cockade, ribbon, or other mark of distinction; and every person so giving or providing shall for every such offence forfeit the sum of two pounds to such person as shall sue for the same, together with full costs of suit; and all payments made for on account of any chairing, or any such cockade, ribbon, or mark of distinction as aforesaid, or of any bands of music or flags or banners, shall be deemed illegal payments within this Act."

Sec. 8. No voter is to be compelled to serve as a special constable during an election unless he consents so to act, or shall be liable to any fine for refusing to act. Sec. 9 provides for the recovery of penalties imposed by the Act.

Sec. 10. "It shall be lawful for any criminal Court, before which any prosecution shall be instituted for any offence against the provisions of this Act, to order payment to the prosecutor of such costs and expenses as to the said Court shall appear to have been reasonably incurred in and about the conduct of such prosecution; provided always, that no indictment for bribery or undue influence shall be triable before any Court of quarter sessions."

Sec. 12. "In case of any indictment or information by a private prosecutor for

any offence against the provisions of this Act, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs sustained by the defendant *by reason of such indictment or information, such costs to be taxed by the proper officer of the Court in which such judgment shall be given."

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Sec. 13. "It shall not be lawful for any Court to order payment of the costs of prosecution for any offence against the provisions of this Act, unless the prosecutor shall, before or upon the finding of the indictment or the granting of the information, enter into a recognizance, with two sufficient sureties, in the sum of two hundred pounds (to be acknowledged in like manner as is now required in cases of writs of certiorari awarded at the instance of a defendant in an indictment), with the conditions following; that is to say, that the prosecutor shall conduct the prosecution with effect, and shall pay to the defendant or defendants, in case he or they shall be acquitted, his or their costs."

Sec. 14. "No person shall be liable to any penalty or forfeiture hereby enacted or imposed, unless some prosecution, action or suit for the offence committed shall be commenced against such person within the space of one year next after such offence against this Act shall be committed, and unless such person shall be summoned or otherwise served with writ or process within the same space of time, so as such summons or service of writ or process shall not be prevented by such person absconding or withdrawing out of the jurisdiction of the Court out of which such writ or other process shall have issued; and in case of any such prosecution, suit, or process as aforesaid, the same shall be proceeded with and carried on without any wilful delay."(q)

Sec. 23. "The giving or causing to be given to any voter on the day of nomination or day of polling, on account of such voter having polled or being about to poll, any meat, drink, or entertainment, by way of refreshment, or any money or ticket to enable such voter to obtain refreshment, shall be deemed an illegal act, and the person so offending shall forfeit the sum of forty shillings for each offence to any person who shall sue for the same, together with full costs of suit."(r)

Sec. 36. "If any candidate at any election for any county, city, or borough shall be declared by any election committee guilty, by himself or his agents, of bribery, treating, or undue influence at such election, such candidate shall be incapable of being elected or sitting in Parliament for such county, city, or borough during the Parliament then in existence."

Sec. 38. Throughout this Act, in the construction thereof, except there be something in the subject or context repugnant to such construction, the word "county" shall extend to and mean *any county, riding, parts, or division of a county, [*228 stewartry, or combined counties respectively returning a member or members to serve in Parliament; and the words "city or borough" shall mean any university, city, borough, town corporate, county of a city, county of a town, cinque port, district of burghs, or other place or combination of places (not being a county as hereinbefore defined), returning a member or members to serve in Parliament; and the word "election" shall mean the election of any member or members to serve in Parliament; and the words "returning officer" shall apply to any person or persons to whom, by virtue of his or their office under any law, custom, or statute, the execution of any writ or precept doth or shall belong for the election of a member or members to serve in Parliament, by whatever name or title such

(9) As to what is wilful delay within this section, see Taylor v. Vergette, 7 H. & N. 143. And the 26 & 27 Vict. c. 29, s. 5, extends this section to "a misdemeanor or to any other offence under" the 17 & 18 Vict. c. 102, 20 & 21 Vict. c. 87, and 26 & 27 Vict. c. 29, not punishable by a penalty or forfeiture, as well as to proceedings for any offence punishable by a penalty or forfeiture." This seems to have been introduced to get rid of the doubt entertained in Reg. v. Leatham, 3 Law T. 504, as to whether sec. 14 applied to an information for a misdemeanor, and not for a penalty or forfeiture: but it seems in terms only to apply to offences under the Acts; and not to common law offences.

(r) Sec. 35 renders parties in actions competent and compellable to give evidence as under the 14 & 15 Vict. c. 99, and "The Evidence Amendment Act, 1853;" but "any such evidence shall not thereafter be used in any indictment or criminal proceeding under this Act against the party giving it."

person or persons may be called; and the words "revising barrister" shall extend to and include an assistant barrister and chairman, presiding in any Court held for the revision of the list of voters, or his deputy in Ireland, and a sheriff or Sheriff's Court of Appeal in Scotland, and every other person whose duty it may be to hold a court for the revision and correction of the lists or registers of voters in any part of the United Kingdom; and the word "voter" shall mean any person who has or claims to have a right to vote in the election of a member or members to serve in Parliament; and the words "candidate at an election" shall include all persons elected as members to serve in Parliament at such election, and all persons nominated as candidates, or who shall have declared themselves candidates at or before such election; and the words "personal expenses," as used herein with respect to the expenditure of any candidate in relation to any election, shall include the reasonable travelling expenses of such candidate, and the reasonable expenses of his living at hotels or elsewhere for the purposes of and in relation to such election." The 21 & 22 Vict. c. 87, s. 3, repeals so much of this section as defines “candidates at an election," and enacts that these words "shall include all persons elected to serve in Parliament at such election, and all persons nominated as candidates at such election, or who shall have declared themselves candidates on or after the day of the issuing of the writ for such election, or after the dissolution or vacancy in consequence of which such writ shall have been issued: provided that nothing herein contained shall be construed to impose any liability on any person nominated without his consent." (s)

The 17 & 18 Vict. c. 102, was amended by the 21 & 22 Vict. c. 87.

Sec. 1. "It shall be lawful for any candidate, or his agent by him appointed in writing according to the provisions of the first-mentioned Act, to provide conveyance for any voter for the purpose of polling at an election and not otherwise, but it shall not be lawful to pay any money or give any valuable consideration to a voter for or in respect of his travelling expenses for such purpose." (t)

The 26 & 27 Vict. c. 29, further amends the law on these subjects.

on

*229] Sec. 2. "No payment (except in respect of the personal expenses *of a candidate),(u) and no advance, loan, or deposit, shall be made by or on behalf of any candidate at an election, before, or during, or after such election, account of or in respect of such election, otherwise than through an agent or agents() whose name and address or names and addresses have been declared in writing to the returning officer on or before the day of nomination, or through an agent or agents to be appointed in his or their place as herein provided; and any person making any such payment, advance, loan, or deposit, otherwise than through such agent or agents, shall be guilty of a misdemeanor, or in Scotland of an offence punishable by fine and imprisonment." The section adds: "It shall be the duty of the returning officer to publish, on or before the day of nomination, the name and address or the names and addresses of the agent or agents appointed in pursuance of this section. In the event of the death or legal incapacity of any agent appointed in pursuance of this section, the candidate shall forthwith appoint another agent in his place on giving notice to the returning officer of the name and address of the person so appointed, which shall be forthwith published by the returning officer."

Sec. 3. All persons who have any bills, charges, or claims upon any candidate for or in respect of any election shall send in such bills, charges, or claims within one month from the day of the declaration of the election to such agent or agents as aforesaid, otherwise such persons shall be barred of their right to recover such claims, and every or any part thereof: provided always, that in case of the death (8) See Edwards v. Whitehurst, 5 H. & N. 131.

(t) The rest of this section is repealed by the 26 & 27 Vict. c. 29.

(u) Personal expense of the candidate, such as hotel bills, railway fares, and the like, were not within the 17 & 18 Vict. c. 102, s. 16, which required bills to be sent in within a month Grant v. Gwinness, 17 C. B. 190 (84 E. C. L. R.).

(v) Where articles connected with an election were supplied upon orders of a candidate given personally, the right of the creditor to maintain an action for the price was not affected by either sec. 18, or sec. 31, of the 17 & 18 Vict. c. 102: Nurton v. Dickson, 5 H. & N. 637.