156 CHAPTER THE SIXTEENTH. OF BRIBERY. Cases of bribery. Attempts to bribe. : 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 behaviour 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. (b) 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) 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, (e) 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, (ƒ) 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. (g) 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. () And an information was granted against a man for (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, 148, 149. (c) 1 Hawk. P. C. c. 67. s. 3. As to this species of bribery, see the preceding Chapter. (d) Rex v. Pitt and another, 3 Burr. 1338. 2 Geo. 2. c. 24. 49 Geo. 3. c. 118. (e) Post, Chap. xxi. (f) Ante, Book 1. Chap. iii. p. 45. (g) 3 Inst. 147. Rex v. Vaughan, 4 Burr. 2500. Ante, 148. (h) Vaughan's case, 4 Burr. 2494. ante, 148, and see Rex v. Pollman and others, 2 Campb. 229. promising money to a member of a corporation, to induce him to Geo. 4. Officers taking bribes not c. 108. s. 35. to do their duty in relation to the customs and excise, and ing bribes to persons offer The statutes relating to the customs and excise impose penalties, 6 as well upon officers taking bribes as upon those who offer them The 6 Geo. 4. c. 108. s. 35. enacts, that if any officer of the customs, army, navy, or marines, duly authorized, and on full pay, or any other person employed by the commissioners of customs, shall make any collusive seizure, or shall deliver up, or agree to deliver up, or not to seize any vessel or boat, or any goods liable to forfeiture, or shall take any bribe, gratuity, recompence, or reward, for the neglect or non-performance of his duty, such officers to officer, &c. shall forfeit 5007. and be incapable of serving his neglect their Majesty in any office whatever, civil or military: and every person to penalties. who shall give, or offer, or promise to give, any bribe, recompence, or reward to, or make any collusive agreement with, any such officer as aforesaid, to induce him in any way to neglect his duty, or to do, conceal, or connive at any act, whereby any of the provisions of any act of Parliament may be evaded, shall (whether the offer be accepted or performed or not,) forfeit five hundred pounds. (1) duty, liable members of parliament. Bribery at elections for members of parliament was always a Bribery at crime at common law, and consequently punishable by indictment elections for or information :(m) but in order to enforce the common law, and because it had not been found sufficient to prevent the evil, considerable penalties have been imposed upon this offence by differ ent statutes. false a double or return, 7 & 8 W. 3. c. tracts, &c. to procure election void, and 7. s. 4. Con persons making them to forfeit 3001. The 7 & 8 W. 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 any thing relating thereunto, shall be void; and that whoever makes or gives such contract, security, promise, or bond, or any gift or reward, to procure shall forfeit three hundred pounds. (n) The statute 2 Geo. 2. c. 24. s. 7. enacts, "that if any person 2 Geo. 2. c. 24. "who shall have, or claim to have, any right to vote in any elec- s. 7. Persons "tion of any member to serve in parliament, shall ask, receive, &c. for voting taking money, or take any money or other reward, by way of gift, loan, or or forbearing "other device, or agree or contract for any money, gift, office, to vote, and ❝employment, or other reward whatsoever, to give his vote, or curing others "to refuse or forbear to give his vote in any such election; or if to vote, or forany person by himself or any person employed by him, shall by bear to vote, by any gift, &c. "any gift or reward, or by any promise, agreement, or security, forfeit 500. "for any gift or reward, corrupt or procure any person or per- and are dissons to give his or their vote or votes, or to forbear to give his abled to vote persons pro in any election, and to hold any office or franchise. 2 G. 2. c. 24. s. 8. Offenders discovering others in 12 months after the election indemnified. "or their vote or votes in any such election, (a) such person so "offending in any of the cases aforesaid, shall, for every such "offence forfeit five hundred pounds." And further, that such offender, after judgment against him in any action, or information, or summary action or prosecution, or being otherwise lawfully convicted thereof, shall for ever be disabled to vote in any election of any member to parliament, and to hold any office or franchise, as if such person was naturally dead. The eighth section enacts, "that if any person offending against "the act shall, within the space of twelve months next after such "election, discover any other person or persons offending against "this act, so that such person or persons so discovered be there upon convicted, such person so discovering, and not having "been before that time convicted of any offence against this act, "shall be indemnified and discharged from all penalties and dis"abilities which he shall then have incurred by any offence against "this act." The eleventh section provides that no person shall must be with- be liable to any incapacity, disability, forfeiture, or penalty, unless a prosecution be commenced within two years after the incapacity, &c. shall be incurred, or, in case of a prosecution, the same be carried on without wilful delay. Prosecutions in two years. This statute does not take away the com mon law crime. But the Court of King's Bench will rarely proceed by information. It has been holden that, notwithstanding this statute, bribery in elections of members to serve in parliament still remains a crime at common law; that the Legislature never meant to take away the common law crime, but to add a penal action; and that this appears by the words in the statute," or being otherwise lawfully convicted thereof." (o) And a conviction upon an information granted by the Court of King's Bench is just the same as if the party had been convicted upon an indictment. (p) But as the offender will be equally liable to the penalties of the statute, (q) that court will not interpose by information until the two years are expired, in ordinary cases; though there may possibly be particular cases, founded on particular reasons, where it may be right to grant informations before the expiration of the time limited for commencing the prosecution on the statute. (r) And in one case, where the defendant had been convicted of bribery, and the time for bringing the penal action was not expired, the court permitted him to enter into a recognizance to appear at the expiration of that time. (s) (a) An action will lie though the party bribed does not vote according to the bribe. Tulston v. Norton, 1 Blac. R. 817. and Orme, 296, note. (0) Rex v. Pitt and another, 3 Burr. 1835. S. C. 1 Blac. R. 380. (p) Rex v. Pitt and another, 3 Burr. 1339. (q) Coombe v. Pitt, 1 Blac. R. 524. (r) Rex v.Pitt & another, 3Burr.1340. (s) Rex v. Heydon, S Burr. 1359. But where that time had expired, the Court held that the circumstance of the witness, by whose evidence the defendant was convicted of bribery, being under prosecution for perjury, was no ground for postponing the judgment. Rex v. Haydon, 3 Burr. 1387. S. C. 1 Blac. R. 404. And the Court refused to stay judgment upon the postea where they were moved to do so on the ground that the defendant had made a discovery of another person offending against the statute, who had been convicted on his (the defendant's) evidence. Pugh v. Curgenven, 3 Wils. 35. And see the cases collected in 1 Hawk. P. C. c. 67. s. 10. note (4) where see also as to the Court of King's Bench granting a new trial. Where a friend of the candidate gave an elector five guineas to Construction vote, and took from him a note for that sum, but at the same time of the statute. gave a counter note to deliver up the first note when the elector had voted, it was held to be an absolute gift and bribery within the act, although the elector voted for the opposite party. (t) And laying a wager with the voter that he does not vote for a particular candidate is also bribery within the act. (u) In an action upon this statute it has been held, that, before the time of election, any one is a candidate for whom a vote is asked; and that it is not competent to the defendant to dispute a man's right of voting when he has asked him for his vote; it being immaterial whether the voter bribed had a right to vote or not, if he claimed to have such right. (w) It seems that a declaration upon this statute must state what the bribe was, and specify that the defendant took money or some other particular species of reward; and where it stated generally "that the defendant did receive a gift or reward," in the disjunctive, it was held bad, and that the defect might be taken advantage of in arrest of judgment, the charge being of a criminal nature. (x) coverer within the eighth section of the G0:20. indemnified. 2 Geo. 2. c. 24. As to the person who shall be considered as a discoverer within Who shall be the eighth section of the statute, so as to be indemnified from deemed a disits penalties, it has been decided that the circumstance of a party having been, within the limited time, a plaintiff in an action on the statute, and having prosecuted it to judgment, does not prove him to have been the first discoverer. Lord Mansfield, C. J. observed, that the Court had not said, nor would say, that a plaintiff cannot be the discoverer; but that the act does not make him so, or consider him as the discoverer; and that as the plaintiff could not be the witness himself in the action, some other person must have been the witness; it was not therefore to be presumed, without any evidence of it, that the plaintiff in the action was the first discoverer. (y) And where one person procured another to make an affidavit of facts amounting to bribery, and then prosecuted a third person upon those facts to conviction and judgment, it was held that the person making the affidavit was the discoverer. (*) With respect to what shall be deemed a conviction within this section, it has been held that a verdict will not be sufficient, and that there must be a judgment; but that when the judgment is obtained it will relate, for the purpose of the indemnity, to the time when the discovery was first made. (a) A recent statute, 49 Geo. 3. c. 118. reciting that the giving money, &c. in order to procure the return of a member to Parliament, if not given to or for the use of some person having a right, (t) Sulston v. Norton, 3 Burr. 1235. 1 Blac. Rep. 317. (u) 1 Hawk. P. C. c. 67. s. 10. note (4), citing Lloft 552. and referring also to Allen v. Hearne, I T. R. 56. where a wager between two voters, with respect to the event of an election, laid before the poll began, was held to be illegal. (w) Combe v. Pitt, 1 Blac. R. 523. (z) Sibly v. Cuming, 4 Burr. 2464. 665. 49 Geo. 3. imposes pe sons giving or receiving money, &c. to procure the election of a member to Parliament, though such money, &c. be not given to voters. 49 Geo. 3. c. 118. s. 3. imposes penal way of bribes to procure the return of members to Parliament. or claiming to have a right, to act as returning officer, or to vote at the election, is not bribery within the former statute, (2 Geo. 2. c. 24.) enacts, that if any person shall give, or cause to be given, directly or indirectly, or promise, or agree to give, any money, gift, or reward, upon any engagement or agreement that the person to whom, to whose use, or on whose behalf, such gift or promise shall be made, shall by himself, or by any other at his request or command, procure, or endeavour to procure, the return of any person to Parliament for any place, he shall, if not returned himself to Parliament for such place, for every such gift or promise forfeit one thousand pounds; and if returned, and having given, or promised to give, or knowing of and consenting to such gifts or promises, shall be disabled and incapacitated to serve in that Parliament for such place, and shall be as if he had never been returned or elected a member of Parliament. And it enacts also, that any person who shall receive or accept of by himself, or by any other, to his use or on his behalf, any such money, gift, or reward, or any promise upon any such engagement, contract, or agreement, shall forfeit the value and amount of such money, gift, or reward, over and above the sum of five hundred pounds. (b) The third section of this statute enacts, that if any person shall by himself, or by any other, give or procure to be given, ties upon per- or promise to give or procure to be given, any office, place, sons giving or employment, upon any express contract or agreement that or receiving the offices, &c. by person to whom, or to whose use, or on whose behalf, such gift or promise shall be made, shall by himself, or by any other at his request or command, procure, or endeavour to procure, the return of any person to Parliament for any place, such person so returned, and so having given or procured to be given, or so promised to give or procure to be given, or knowing of and consenting to such gift or promise upon any such express contract or agreement, shall be disabled and incapacitated to serve in that Parliament for such place, and be deemed no member of Parliament, and as if he had never been returned; and any person who shall receive or accept of by himself or by any other, to his use or on his behalf, any such office, place, or employment, upon such express contract or agreement, shall forfeit such office, &c. and be incapacitated for holding the same, and shall forfeit five hundred pounds. And it further enacts, that any person holding any office under his Majesty, who shall give such office, appointment, or place, upon any such express contract or agreement that the person to whom, or for whose use, such office, &c. shall have been given, shall so procure, or endeavour to procure, the return of any person to Parliament, shall forfeit one thousand pounds. 49 Geo. 3. c. The fourth section of the statute enacts, that no person shall 118.8.4. limits be liable to any forfeiture or penalty imposed by the act, unless prosecutions, some prosecution, action, or suit for the offence committed, shall &c. to two years after to or by any person, for any legal expense bona fide incurred at or concerning any election. the offence. (b) S. 1. The second section provides that the act shall not extend to any money paid, or agreed to be paid, |