49 Geo. 3, c. 126, extends

6, c. 16, to Scotland and Ireland, to public offices in this country the co

and in the colonies, and to offices under

the East India Company.

good: so, if the profits be uncertain, arising from fees, if the principal make a deputation, reserving a certain sum out of the fees and profits of the office, it is good: for in these cases the deputy is not to pay unless the profits arise to so much; and though a deputy by his constitution is in place of his principal, yet he has no right to his fees, they still continuing to be the principal's; so that, as to him, it is only reserving a part of his own, and giving away the rest to another. But where the reservation or agreement is not to pay out of the profits, but to pay generally a certain sum, it must be paid at all events; and a bond for performance of such agreement is void by the statute. (b)

But this statute has been much extended by the 49 Géo. 3, c. 126, the 5 & 6 Edw. which, after reciting it, enacts, "that all the provisions therein contained shall extend to Scotland and Ireland, and to all offices in the gift of the crown, or of any office appointed by the crown; and all commissions, civil, naval, or military; and to all places and employments, and to all deputations to any such offices, commissions, places, or employments, in the respective departments or offices, or under the appointment or superintendance and control of the lord high treasurer, or commissioners of the treasury, the secretary of state, the lords commissioners for executing the office of lord high admiral, the master general and principal officers of his Majesty's ordnance, the commander in chief, the secretary at war, the paymaster-general of his Majesty's forces, the commissioners for the affairs of India, the commissioners of the excise, the treasurer of the navy, the commissioners of the navy, the commissioners for victualling, the commissioners of transports, the commissary general, the storekeeper general, and also the principal officers of any other public department or office of his Majesty's government in any part of the united kingdom, or in any of his Majesty's dominions, colonies, or plantations, which now belong or may hereafter belong to his Majesty; and also to all offices, commissions, places, and employments belonging to or under the appointment or control of the East India company, (c) in as full and ample a manner as if the provisions of the said act were repeated, and made part of this act: and the said act and this act shall be construed as one act, as if the same had been herein repeated and re-enacted.

49 Geo. 3, c. 126, s. 3. Persons buying or selling, or re

ceiving or pay

ing money or rewards for of

fices, guilty of a misdemeanor.

The third section enacts, "that if any person or persons shall sell, or bargain for the sale of, or receive, have, or take any money, fee, gratuity, loan of money, reward, or profit, directly or indirectly, or any promise, agreement, covenant, contract, bond or assurance; or shall by any way, device, or means, contract or agree to receive or have any money, fee, gratuity, loan of money, reward, or profit, directly or indirectly; and also if any person or persons shall purchase, or bargain for the purchase of, or give or pay any money, fee, gratuity, loan of money, reward, or profit, or make or enter into any promise, agreement, covenant, contract, bond, or assurance to give or pay any money, fee, gratuity, loan of money, reward, or profit;

(b) Bac. Abr. Offices and Officers (F). 1 Hawk. P. C. c. 67, s. 5. Salk. 468. 6 Mod. 234. Godolphin v. Tudor, Comb. 256, S. P.

(c) By the 33 Geo. 3, c. 52, s. 66, it was enacted that the making or entering into, or being a party to any corrupt bargain

or contract, for the giving up or obtaining, or in any other manner touching or concerning the trust and duty of any office or employment under the crown, or the East India Company, by any British subject there resident, should be deemed a misde

meanor.

or shal by any ways, means, or device, contract or agree to give or pay any money, fee, gratuity, loan of money, reward or profit, directly or indirectly, for any office, commission, place, or employment, specified or described in the said recited act (5 & 6 Edw. 6, c. 16,) or this act, or within the true intent or meaning of the said act, or this act, or for any deputation thereto, or for any part, parcel, or participation of the profits thereof, or for any appointment or nomination thereto, or resignation thereof, or for the consent or consents, or voice or voices of any person or persons, to any such appointment, nomination, or resignation; then and in every such case, every such person, and also every person who shall wilfully and knowingly aid, abet, or assist such person therein, shall be deemed and adjudged guilty of a misdemeanor."

49 Geo. 3, c.

126, s. 4. Persons receiving

or paying money for solitaining offices, citing or oband any negociations or pretended nego

misdemeanor.

The fourth section enacts, "that if any person or persons shall receive, have, or take, any money, fee, reward, or profit, directly, or indirectly, or take any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree to receive or have any money, fee, gratuity, loan of money, reward or profit, directly or indirectly, for any interest, solicitation, petition, request, recommendation, or negociation whatever, made or to be made, or pretended to be made, or under any pretence of making, ciations relator causing or procuring to be made, any interest, solicitation, peti- ing thereto, tion, request, recommendation, or negociation, in or about or in any- guilty of a wise touching, concerning, or relating to, any nomination, appointment, or deputation to, or resignation of, any such office, commission, place, or employment, as aforesaid, or under any pretence for using or having used any interest, solicitation, petition, request, recommendation, or negociation, in or about any such nomination, appointment, deputation, or resignation, or for the obtaining or having obtained the consent or consents, or voice or voices, of any person or persons as aforesaid to such nomination, appointment, deputation, or resignation; and also if any person or persons shall give or pay, or cause or procure to be given or paid, any money, fee, gratuity, loan of money, reward or profit, or make, or cause, or procure to be made, any promise, agreement, covenant, contract, bond, or assurance, or by any way, means, or device, contract or agree, or give or pay, or cause or procure to be given or paid, any money, fee, gratuity, loan of money, reward, or profit, for any solicitation, petition, request, recommendation, or negociation whatever, made or to be made, that shall in anywise touch, concern, or relate to any nomination, appointment, or deputation to, or resignation of, any such office, commission, place, or employment as aforesaid, or for the obtaining or having obtained, directly or indirectly, the consent or consents, or voice or voices, of any person or persons as aforesaid, to any such nomination, appointment, deputation, or resignation; and also if any person or persons shall, for or in expectation of gain, fee, gratuity, loan of money, reward, or profit, solicit, recommend, or negociate, in any manner, for any person or persons, in any matter that shall in anywise touch, concern, or relate to, any such nomination, appointment, deputation, or resignation aforesaid, or for the obtaining, directly or indirectly, the consent or consents, or voice or voices, of any person or persons to any such nomination, appointment, or deputation, or resignation aforesaid, then and in every such case every such person, and also every person who shall wilfully and

49 Geo. 3, c. 126, s. 5. Keeping any place for busi ness relating to

such traffic in

offices, a mis

demeanor.

507. penalty on

advertising,

&c.

Exceptions from this statute of certain

offices, and also of commis

sions in his

Majesty's forces at the

prices regulated by regi

mental agents.

But persons selling commissions for

knowingly aid, abet, or assist, such person therein, shall be deemed and adjudged guilty of a misdemeanor.

By the fifth section, if any person shall open or keep any house or place for the soliciting or negociating any business relating to vacancies in offices, &c. in or under any public department, or to the sale or purchase of such offices, or appointment to them, or resignation, transfer, or exchange of them, such offender, and every person aiding or assisting therein, is guilty of a misdemeanor. And by the sixth section any person advertising any office, place, &c. or the name of any person as broker, &c. or printing any advertisement or proposal for such purposes, is liable to a penalty of 50%.

There are, however, several exceptions from the provisions of this statute. It does not extend to commissions or appointments in the band of gentlemen pensioners, or in his Majesty's yeoman guard, or in the Marshalsea, or the Court of the King's Palace at Westminster; or to purchases and exchanges of commissions in his Majesty's forces, at the regulated prices; or to anything done in relation thereto by authorised regimental agents not advertising and not receiving money, &c. in that behalf. (d) But officers receiving or paying, or agreeing to pay, more than the regulated prices, or paying agents for negociating, on conviction by a court martial, are to forfeit their commissions, and be cashiered. (e)

And it is provided also, that every person who shall sell his commission in his Majesty's forces, and not continue to hold any commore than the mission, and shall upon or in relation to such sale receive, directly or indirectly, any money, &c. beyond the regulated price of the commission sold, and every person who shall aid or assist such person therein, shall be guilty of a misdemeanor.

regulated

prices, are guilty of misdemeanor. Further exceptions as to offices except

ed from 5 & 6 Edw. 6, c. 16,

and as to offices

legally saleable.

Deputations,
49 Geo. 3,
c. 126.

Annual payments out of

the fees to any

persons for

merly holding

the office.

This act contains further exceptions; and provides, that it shall not extend to any office excepted from the 5 & 6 Edw. 6, c. 16, or to any office which was legally saleable before the passing of this act, and in the gift of any person by virtue of any office of which such person is or shall be possessed under any patent or appointment for his life; or to render invalid, or in any manner to affect, any promise, covenant, trust, &c. entered into or declared before the passing of this act, and which then was valid in law or equity. (ƒ)

With respect to deputations to offices, it is enacted, that the act shall not extend to prevent or make void any deputation to any office, in any case in which it is lawful to appoint a deputy, or any agreement, &c. lawfully made in respect of any allowance or payment to such principal or deputy respectively, out of the fees or profits of such office. (g)

Annual reservations, charges, or payments, out of fees or profits of any office, to any person who shall have held such office, in any commission, or appointment of any person succeeding to such office, and agreements, &c. for securing such reservations, charges, or payments, are also excepted; provided that the amount of the reservations, &c. and the circumstances and reasons under which they shall

(d) 49 Geo. 3, c. 126, s. 7; and the 53 Geo. 3, c. 54, excepts purchases, &c. of any commissions or appointments in the battleaxe guards in Ireland.

(e) 49 Geo. 3, c. 126, s. 8. And the commission is to be sold; and half the

produce, not exceeding 5001., to be paid to the informer, and the remainder to go to the King.

(f) Id. s. 9.

(g) 49 Geo. 3, c. 126, s. 10. And see ante, 149.

have been permitted, shall be stated in the commission or instrument of appointment of the successor. (h)

The statute contains an enactment, that when the right, estate, or interest, of any person shall be forfeited under any of its provisions, or the provisions of the 5 & 6 Edw. 6, c. 16, the right of such appointment shall vest in and belong to the King. (i)

Right of appointment

when forfeited vests in the

king.

abroad.

Offences against this act, or the 5 & 6 Edw. 6, c. 16, by any Trial of governor, lieutenant-governor, or person having the chief command, offences civil or military, in his Majesty's dominions, colonies, or plantations, committed or his secretary, may be prosecuted and determined in the Court of King's Bench at Westminster, in the same manner as any crime, &c. committed by any person holding a public employment abroad may be prosecuted under the provisions of the 42 Geo. 3, c. 85. (k)

It is enacted also, that any person who shall commit in Scotland Punishment of any misdemeanor against this act shall be liable to be punished by misdemeanors fine and imprisonment, or by the one or the other of such punish- in Scotland. ments, as the judge or judges, before whom the offender shall be committed, may direct. (1)

office, &c.,

By the 49 Geo. 3, c. 118, s. 3, if any person give or promise any 49 Geo. 3, office, place, or employment, upon any express contract or agreement c. 118, s. 3. to procure, or endeavour to procure, the return of any person to Giving any serve in Parliament, the person returned shall vacate his seat, and for election be incapacitated to serve during that Parliament for the same place; purposes. and the person receiving the office, &c. shall forfeit it, be incapacitated for holding it, and shall forfeit 500%.: and any person holding any office under his Majesty, who shall give such office, appointment, or place, upon any such express contract or agreement, shall forfeit the sum of 1000%. (m)

(h) Id. s. 11. The twelfth section contains an exception as to the masters, six clerks, and examiners of the chancery in Ireland, till after the death, &c. of the present possessors.

(i) Id. s. 2.

(k) Id. s. 14.

(7) 49 Geo. 3, c. 126, s. 13.

(m) See this act more at length in the subsequent Chapter on Bribery, p. 158.

CHAPTER THE SIXTEENTH.

Cases of

bribery.

Attempts to bribe.

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 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) 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, (f) 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. (h) 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

(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, 147.

(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.