mer elec tion had been de ney the other candidate, had repeatedly given notice to the whose forreturning officer and to the electors, of the ineligibility of Mr. Thelluson, Mr. Tierney petitioned the house, setting forth the above resolutions of the former committee, and proved notices to the returning officer and to the electors, that Mr. Thelluson was ineligible, and that all votes given to him would be thrown away; the committe determined that Mr. Thelluson was not duly elected, but that Mr. Tierney ought to have been returned, and they further seated, & determined that Mr. Tierney was duly elected. The the votes committee also determined, "That the votes given for G. W. Thelluson, Esq. at the last election for the borough were of Southwark, were thrown away." didate was given to the person re turned thrown away. [ 358 ] Bl. Com. vol. 1. p. 178. Mr. Justice Blackstone, from the extent and labour of his plan, has so far overlooked the minutiae of the statute, as to lay it down generally, without any limitation of time, that "a candidate, guilty of bribery, is incapable of serv ing for that place in parliament;" which, when compared with the statute, is plainly an inaccuracy. To look for Sim. minute exactness in every part of so comprehensive a P. 207. work, would be to expect a perfection more than human. ; The subsequent act of G. 2. seems to have had a more rigorous interpretation than the statute of King Willium for the offence of corruption has been deemed complete, so as to subject the giver or promiser to the penalty, though the person who takes it, votes afterwards for another. And giving money to forbear to vote, though the party has not forborne to vote, has also been adjudged bribery. The words are, "do corrupt or procure any So a wager between two voters, with respect to the event of an elec. tion, laid before the poll begin, is illegal and amounts to bribery. This was settled by the Court of King's Bench, in the case of Allen v. Hearn, 1 T. R. p. 56. In that case, the plaintiff and defendant were voters and partizans of the respective candidates, and had canvassed and taken decided parts, on opposite sides. Vid. 1 Hawk. P. C. c. 67. s. 10. citing Lloft. p. 552. person to give or forbear his vote." In such case he is said" to corrupt the voter to give his vote," though the voter in fact does not give his vote; and yet it is difficult to conceive how, in strictness, a man can be said to " corrupt" another, if the other is not, according to the same idea,"corrupted." It may be said the giving of his vote against the intended bias, leaves the stigma of fraud upon the receiver, in having taken a gift under the pretence of being corrupted. If, however, he took the gift with a corrupt intention, which it is proved he did (for the act of the party affords that proof), then no subsequent altera[359] tion of disposition, from whatever motive, can undo the corruption" once complete; for certainly the performance of the service, though it is necessary to complete the "contract," is only external evidence of the act of the mind, which consisted in the agreement. The construction therefore, though it seems severe, is strictly right, and shews the sclid foundation on which a great law lord opposed a new bill against bribery, which, though well intended under the notion of modifying election expences, would have justified acts which by Sim. p. 208. the letter of the statute of King William, if properly enforced, are clearly illegal. Ante, p. 350. n. Vid. Lud. 68. The other question put by Mr. Douglas, how far the gratuitous vote of a voter so corrupted, is good, if given to another, depends upon the words of the oath prescribed by the statute, which are, that he has not taken any gift, &c. " in order to give his vote at such election," and states the idea to be, that as he could not take the oath without being perjured, according to the strict meaning of the words, the vote ought not to be allowed, and it is said to have been so held in the St. Ives and Shaftesbury cases. But his observations on the other side of the question, are very strong, and though the point has been determined, would incline one to doubt the soundness of the determination. The next question he puts on the vote of an agent who has bribed others, but has not been bribed himself, seems clearly to be resolved by the statute, as a man cannot bribe without offending against it. Put a Sulton v. stronger case therefore, that he had corrupted others to give their votes to A. and that they afterwards gratui- 3 Lud. 114. tously voted for B.; such agent, if convicted, could have no right to vote, because, by the construction of the act, by the judges of the king's bench, in the case before alluded to, he would have been guilty of the offence within the act, to which the perpetual disability of voting is annexed. If such agent, being an elector, and authorized to bribe, use only justifiable means of persuading the voters, without corrupting them, their votes are said to have been held bad by a majority of one in the court of session, upon the Stirling case; upon what principle, it is difficult to say, as it does not fall within Doug. 418. any positive statute, and the freedom of election, in the very statement of the case, appears not to have been violated. Norton. 3 Burr. 1235. [360] Vid. 2 THESE are the principal causes of avoiding an Election, all of which are but corollaries flowing from one great principle, "That Elections should be Free." Upon the preservation of this vital principle, not only the prosperity, but the very existence of the State, as a free state, depends. The violation of this, even in the earliest days of Representation, called forth the spirited, though feeble, voice of the people, who stamped 3 E. 1. c. 5. upon record this maxim, "That Elections should be Free." To this principle, and the due exertion of that spirit which it produces, we owe the signal triumph of having seen, in the reign of H. 6. the infamous pro- 39 H. 6. receedings of a parliament garbled by the crown without acts of the the suffrages of the people, swept away by the first preceding parliament breath of the succeeding parliament, and the Freedom at Coof Election restored, and strengthened by the most open ventry. C c 5 v. Parl. Hist. p. 4. and unequivocal declaration of the legislature. To this principle we owe a successful opposition to the proclamations of James the First, who would have overawed the free voice of the people by restraining edicts, founded in the very spirit of despotism. To a laudable anxiety for preserving the Freedom of Elections, we owe the continuation of those chartered liberties, which the sacrilegious hand of Charles the Second would have ravished from us. The firm and well directed spirit of the 2. sessions, Revolution, steering between the extremes of republican licentiousness and servile obedience, again recorded the principle, as one of the conditions of loyalty, and has fixed this natural and chartered right upon an imperishable foundation. Prec. v. 2. p. 31. 1 W. & M. c. 2. APPENDIX. |