out (a), that this enactment cannot apply to cases, where a bargain, contract or understanding existed before the election; because these cases fall within the first division of the section. Every person who after an election receives reward, on account of his having voted or refrained from voting is guilty of bribery. This section omits the word "corruptly," which is used in the second section. The word, as has been before contended, was unnecessary, for the malus animus, the corrupt intention, is manifested by the wilful acceptance of a reward contrary to the provisions of the

statute.

The receipt of money by electors after an election was not bribery at common law, nor was it within the statute 2 Geo. 2, c. 24; Lord Huntingtower v. Gardiner, 1 B. & C. 297. In the Sudbury case, 2 Doug. 137, "the petitioners stated, that they could prove a very public distribution of money among the voters for the two sitting members, after the election, but as they did not say they had any proof either of money being given, or promises of money being made by them previous to or during the election, the committee and seemed to think this would not affect the seats; no evidence was gone into on this head." In the Cirencester case, 1 Peck. 466, the petitioners proposed to prove that an agent of the sitting members had declared to the voters near the hustings, in the presence of the sitting members, immediately after the election, that the voters might receive half a guinea each instead of a dinner. It was not pretended that this could be connected with a prior promise, and the

(a) Ante, p. 91.

committee refused to receive the evidence. A learned author says: "A distribution of money after an election, unless coupled with an act done, or a promise made before, however it may induce suspicion, will not raise a presumption in a court of justice (a).

Such continued to be the state of the law until the year 1842, when, in consequence of the report of the committee in the case of Newcastle-under-Lyme (b), the 5 & 6 Vict. c. 102, s. 20, was passed to put an end to all such distributions of money for the future. The effect of this statute has been before considered (c).

The Durham case, B. & Arn. 201, which occurred soon after the act passed, proved the determination of the committee to give full effect to the new enactments. The clause has been repealed by the Corrupt Practices Prevention Act, 1854, but it has been replaced by provisions equally stringent.

It may be as well to point out here an important change introduced by the recent statute, though it does not bear directly upon the question of bribery.

The 7 & 8 Geo. 4, c. 37, is entirely repealed by the recent statute. That act, after reciting that it was expedient to make further regulations for preventing corrupt practices at elections, and for diminishing the expense of such elections, provided, "that if any person should, either during an election, or within six calendar months previous to it, or within fourteen days after it, be employed at such election as counsel, agent, attorney, poll clerk, flagman, or in any other capacity, for the purposes of the election, and should

(a) Simeon, 198, sed vide Reg. v. Thwaites, ante, p. 104. (b) B. & Aust. 436.

(c) Ante, p. 92.

at any time either before, during or after such election accept or take from any candidate, or from any person whatsoever, for, or in consideration of or with reference to such employment, any sum or sums of money, retaining fee, office, place, or employment, &c., such person should be deemed incapable of voting at such election, and his vote if given was utterly void and of none effect."

This act was intended to forbid persons having real bona fide occupations connected with the election from voting; and great numbers of voters have been struck off the poll books by committees in consequence of their having acted as paid agents, flagmen, messengers, &c., at elections; whenever such employments were colourable only, they were struck off on the ground of bribery. The disqualification of such persons to vote at any future elections is removed by the repeal of the statute here quoted (a).

The consideration of the questions, what acts of bribery will avoid an election, and at what time bribery can be inquired into by a committee of the House of Commons, will be postponed for the present.

The same consequences being attached to treating and undue influence as to bribery, it will be better to enter upon this subject when these two offences have been defined. The principles of election agency are exactly the same in each species of corrupt practice ; and the jurisdiction of election committees is the same in each. In one circumstance only does bribery now

(a) It was proposed in the House of Commons to insert a similar provision in the new act, but after some discussion the clause was withdrawn. 109 Journ. 424.

differ from the other two species of corrupt practices, and that is in the mode, or rather order of proof before a committee. By the 4 & 5 Vict. c. 57, acts of bribery by an alleged agent may be proved before the agency has been established. This cannot be done in cases of treating. Committees still, as a general rule, require that the agency shall be proved before any illegal acts are allowed to be given in evidence to implicate the candidate. An exception to this rule is allowed, upon the representation that the facts to prove agency are so intermingled with the evidence of the illegal acts themselves, that one cannot conveniently be separated from the other (a).

2. Treating.

Treating at Common Law.] It has been stated in many works, and on several occasions that treating was always an offence at common law. Although treating, as ordinarily understood at the present day, is altogether the creation of the statute law, it may be not altogether useless to inquire how far the proposition is accurate, that treating was a common law offence.

It is observed by Mr. Rogers that "treating for the purpose of influencing an election, and procuring a return, was always an offence at common law as a species of bribery" (b). In the same way, Lord

(a) Clerk on Elect. Com. 154.

(b) Rog. on Elect. 261.

Lyndhurst, in the often cited case of Hughes v. Marshall (a), speaks of one description of treating. He there says, "another point has been made independently of the treating act; and it is said that it is not very material whether the case fall within the statute or not; for that if the plaintiff furnished the provi sions with the view to influence the election, such conduct would be illegal at common law, and no action would be maintainable; now that is true if such a case were made out; if bribery is brought home to the party, he is guilty of an offence at common law, and can maintain no action." Treating thus viewed as bribery was no doubt an offence at common law. The man who gave reward to a voter, in order to bind that voter to his interest, was guilty of bribery, in whatever form the reward was given; whether as money, or in the shape of meat and drink. Whenever such conduct can be proved it should be regarded in the light of bribery. Such, however, is not what is commonly understood by treating, which is the distributing of meat and drink at an election, without any corrupt bargain or understanding whatever with the voters. And this, probably, was not an offence at common law.

Sir B. Whitelocke, while describing the tenderness of the law of Parliament with regard to preserving the freedom and indifferency of elections, says, "As the law permits no exemptions or restraints against the freedom of electors, so it forbids solicitations, bribings, or gratifying of sheriffs, head officers, or others, by any persons, or giving money, or rewards (it were well if it extended to drink and entertainments) to free

(a) 2 C. & J. 118.