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meating through the constituency to such an extent that
Anybody might have had the drink without distinction.” The election was declared void (2 O'M, & H., 7). In the Drogheda Case (21 L.T. 403, 1 O'M. & H., 252), the same principle was enunciated by Keogh, J. “Take, then,” he said, “ the case of an organised system of treating. I am speaking now of cases in which nothing could be traced to the candidate or his agents. But suppose that at the head of every street, food and drink were provided in large quantities, and places for eating and drinking opened, as to which it was known that every voter who wished to go thither, and seek for food or for drink, would receive it, provided he was on the side of a particular candidate, and that there was an organised system for the purpose of debauching the voters of a particular borough, though all the while not traceable to the member or his agents, so as to disqualify him at future elections, is it to be supposed for a moment that that organised system would not defeat the election ?” Such a case could admit of no doubt, but we think that much less bribery
or treating than the learned judge there described would be What is the equally fatal. The test must always be, has the corrupt prac
tice prevailed to such an extent as to affect the result of the election ? If it has, it is fatal. The observations of Willes J., in the Tamworth Case (1 O’M. & H., 75; 20 L.T., 181), do not contravene this proportion. The learned judge did not deny that the same rule applies to general treating as to general bribery. He only insisted that the treating should be shown to be operating upon the minds of the electors at the time of the poll. See the Norwich Case (19 L.T., 615, 1 O'M. & H., 8.) If that condition be complied with, it
seems that lavish treating by publicans themselves, without any reason for expecting payment, would be sufficient to avoid the election. (Poole, 31 L.T., 171., 2 O'M. & H., 123.) As to general intimidation, it may perhaps, in extreme cases, General
intimidation. be allowable to organize a band of stalwart persons to protect voters against the violence of strangers introduced by the other side ; but it must always be a dangerous thing to do (Longford, 2 O’M. & H., 7); such a course is always to be avoided. (Limerick, 21 L.T., 567; 1 O'M. & H., 260.) (Salisbury, 4 O’M. & H., 25; Salford, 20 L.T., 120.) And it would be an answer to a petition that all the violence and rioting was instigated by the petitioner or his agents, and that the result was not affected. But where not the unsuccessful candidate but an elector complains of general rioting, it is no answer to say that the defeated party were chiefly responsible for it. (Dudley, 2 O’M. & H., 115.) As to the amount of the violence and rioting, it is very the poli.
Its effect on material to observe the state of the poll. If it is a close poll, less violence may justify an election court in avoiding the election than would be the case if it were quite clear that the rioting and violence had not affected the result. (North Durham, 2 O’M. & H., 152, 31, L.T., 383.) It'the rioting were local and partial, and the majority large, the election would not be set aside (ibid). “ But where it is of such a general character that the result may have been affected, it is no part of the duty of a judge to enter into a kind of scrutiny to see whether possibly, or probably even, or as a matter of conclusion upon the evidence, if that intimidation had not existed, the result would have been different. What the judge has to do in that case is to say that the burden of proof is cast upon the constituency whose conduct is incriminated, and unless it can be shown that the gross amount of intimidation could not possibly have affected the result of the election, it ought to be declared void.” (Per Bramwell, B., at North Durham, ibid.) And it must be declared void if it is uncertain whether the result was affected (ibid.).
In order to affect the election, the rioting must be serious. It must be such as to deter ordinary men, of ordinary courage, from recording their votes. (Nottingham, 1 O’M. & H., 245. Galway, 2 O’M. & H., 196. Salford, 1 O’M. & H., 133; 20 L.T., 120).
The general rioting and violence in the Drogheda case were too great to allow the case to be profitably discussed. The general intimidation there went far beyond that proved in the North Durham case, infra. But the former case establishes the proposition that if voters are deterred from voting by a prevailing terror, but without undue influence being brought to bear upon them personally, the election will be declared void. It was said for the respondent in that case, that he went to voters who were opposed to him and offered to give them his escort to the poll, they being afraid to go, notwithstanding there were military and constabulary in the streets, but the Court considered that this was conclusive evidence out of the respondent's own mouth, that there was not freedom of election in the borough.
The Act of 1883 creates a new officer, the election agent, The election
agent. with difficult and important duties, upon the due fulfilment of which the validity of the election largely depends. This officer bears no resemblance to any other agent known to the law, except the agent for election expenses, created by the statute 26 & 27 Vict. c. 29, s. 2, whose duties and many others he will have to discharge. He is not to be confounded with the person who has hitherto borne the name of the election agent, meaning thereby the person to whose experience and intelligence the management and control of the election have hitherto been confided. In future, “the election agent," using the phrase in its statutory sense, may or may not be the person who plans and directs the operations of the campaign. As the election agent is to make all contracts relating to the election, and as the measure of the candidate's responsibility for his acts is greater than that for the acts of any other agent, it will be found safer, though perhaps inconvenient, to dissever these offices in future. A candidate will be at
disadvantage who imposes upon his chief counsellor and manager the
anxious and difficult duties which the Act of 1883 thrusts upon
" the election agent." If the offices should be dissevered, the person who manages the election for the candidate must do so gratuitously. He cannot be legally employed for payment. (Schedule I., Part I. and Section 17). It is proper to add that“ the election agent” Should be a need not even be a solicitor, but, in view of the direct and business immediate responsibility of the candidate for his acts and habits and omissions, it can hardly be doubted that any candidate will with the law. do well to avail himself of the professional caution and legal
training of a solicitor, if he can induce a solicitor to accept the office. If the candidate choose he may be his own election agent. In that event he will have only himself to blame for any slip on the part of the election agent. But, whether he choose to be his own election agent, or to appoint some other person, it is of urgent necessity that the election agent should be a person of business habits, and of experience in the conduct of elections, and intimately conversant with the provisions of the election
law. The object of The object aimed at by the Legislature in requiring the the legislature appointment of an election agent, through whose hands all
pass, and by whose hands all accounts shall be paid, is the regulation and diminution of election expenses. The evil of excessive expenditure at elections has been struck at hy many statutes, beginning with the 7 & 8 Will. III. c. 4, which was directed against “the excessive and exorbitant expenses, contrary to the laws and in violation of the freedom due to the election of representatives for the Commons of England in Parliament, to the great scandal of the kingdom, dishonourable, and may be destructive to the constitution of Parliament.” The statute, 17 & 18 Viet, c. 102, with the same view, provided for the appointment of election auditors; but the fruit being no sweeter than the tree, these were found useless ; and the Act of 1883 would imply a similar condemnation upon the agents for election expenses who were called into existence by the Act 26 & 27 Vict. c. 29, and through whom all payments for election expenses, other than the candidate's personal expenses, were to be made,
under pain of fine and imprisonment. When election
The appointment of the election agent is regulated by agent to be
Section 24 of the Act of 1883. The section does not prescribe any particular form of appointment, which should, however, be in writing ; but it provides that on or before the nomination day the election agent shall be named by or on behalf of the candidate. As contracts relating to the election are to be made, and polling agents and clerks appointed by the election agent (Section 27), it is obviously