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CASE I

BOROUGH OF WINDSOR.

BEFORE MR. JUSTICE WILLES, JANUARY 12, 1869.

Petitioner: Colonel Richardson-Gardner.

Respondent: Mr. Roger Eykyn.

Counsel for Petitioner: Mr. O'Malley, Q.C., and Mr. Murphy.
Agent: Mr. Long, Windsor.

Counsel for Respondent: Mr. Henry James, and Mr. C. Coleridge.

Agents: Mr. Darvill and Mr. Wyatt.

The petition contained the usual allegations of bribery, &c., and prayed the seat upon a scrutiny.

agent, 17 & 18

Mr. O'Malley opened the Petitioner's case. He pointed out the Bribery by view of the law with respect to agency which he understood to pre- Vict. c. 102, s. vail. He called attention to 17 & 18 Vict. c. 102, s. 2 (1), which 2 (1), 36. provides that "every person who shall directly or indirectly, by himself or by any other person in his behalf, give, lend, or agree to give or lend, or shall offer, promise, or promise to procure or endeavour to procure, any money or valuable consideration to or for any voter to induce any voter to vote or refrain from voting," should be liable to a certain punishment; and to 17 & 18 Vict. c. 102, s. 36, which says, "If any candidate at an election for any county, city, or borough, shall be declared by an Election Com

B

Bribery.
Colourable
charity.
(1) 3.

Card messenger no authority to

canvass.

mittee guilty, by himself or his agents, of bribery, treating, or undue influence at such election, such candidate shall be incapable of being elected or sitting in Parliament for such county, city, or borough during the Parliament then in existence." The construction which had been put upon those words by Election Committees was, that if either the candidate or his agents had been, directly or indirectly, guilty of bribery, the election was void; and there was not a single instance in which an election had been held to be valid where bribery had been proved to have been committed by the agents of a candidate. He was about to quote cases in support of this view, when

Mr. Justice WILLES said :-Counsel need not refer to cases in support of his view, because the section of the Act of Parliament was quite distinct upon the point.

Mr. O'Malley then called attention to cases of bribery which it was proposed to prove on the part of the Petitioner.

Evidence was then given for the Petitioner.

The following points were raised in the course of the Petitioner's

case:

It was proved that the Respondent had given one pound for a voter who had previously promised him his vote, and had afterwards applied to him for assistance in distress occasioned by the death of two children.

Mr. Justice WILLES said the giving of the sovereign was a question of degree. If a sovereign were sent to every person on the register on the occasion of a birth or a death in his family by a candidate at an election, it would be hard to come to any other conclusion than that the money was given with the view of obtaining votes. It was a very different question, whether an isolated gift of the kind in a case of great distress was to be looked upon in the same light.

Evidence was given of an attempt by William Bishop to bribe one Hall, a voter, by offering him a five-pound note. It was proved that Bishop had come to Windsor on the nomination day in consequence of a letter he had received from Nicholls, one of the

Respondent's agents; that he met Nicholls on the night before the polling, and he told him he was to act next day as a card messenger from the Clewer booth to the committee rooms. Nicholls asked him if he knew Hall, and expressed a wish that he should ascertain from him for whom he was going to vote. He did not enter the committee room where he took the cards from the polling booth, but gave them in the ante-room. He had received. no instructions from Nicholls to give or offer money to any voter. Mr. Henry James, for the Respondent, was about to comment on Hall's case, when

Mr. Justice WILLES said: "I do not think that Bishop, who was merely a card messenger, can be said to have been an agent;" I have stated that authority to canvass-and I purposely used the word 'authority' and not 'employment,' because I meant the observation to apply to persons authorised to canvass, whether paid or not for their services-would, in my opinion, constitute an agent, and that authority for the general management of an election would involve authority to canvass. I do not say that there may not be instances of agency on behalf of a candidate besides those of authority to canvass and authority for the general management of an election. As an illustration of a sort of case with which I might have to deal, I may mention that of an agent for election expenses. I do not think a mere messenger, such as Bishop was, can be regarded as an agent."

Fellows' Society benevolent not

political.

It was proved that the Odd Fellows' Society consisted for the Treating. Odd most part of artizans. The annual dinner was held at the Crown Tavern on the 25th of August, the Respondent being in the chair, and 95 members present. The usual course on such occasions was that those present should each pay his own score. The chairman, however, occasionally paid for the wine which was supplied. On this occasion four or five dozen of champagne were drunk. The wine was placed on table by the landlord' at the Respondent's request. Each guest had paid half-a-crown for his dinner. Twenty-seven pounds ten shillings were set down to the account of the Respondent, Mr. Jones, the vice-chairman, and Mr. Mason, for champagne, sherry, and cigars. A considerable number of persons present at the dinner were voters for Windsor, of all shades of political opinion.

Mr. Justice WILLES subsequently in his judgment said :—The Odd Fellows is not a political society. Its constitution is of a benevolent character, and party politics are as a rule excluded from it, as from other societies of a similar description. The sting of this case lies in the fact that the dinner was held on the 28th of August, within a fortnight or three weeks of the commencement of the actual canvass for the elections. Now I am impressed with the objectionable character, to say the least of it, of any transaction by which an intending candidate may seek to ingratiate himself with electors, whether of his own side in politics or not, by profuse expenditure for luxuries. I must express the opinion, for I entertain it, that this is a questionable proceeding, and that it would be well if such proceedings were refrained from in future. I am at the same time quite aware of the distinction between treating and bribing. The terms of the section of the Acts of Parliament applicable to treating are very different from those applicable to bribing. I must bear that steadily in mind in dealing with cases of this description. There is, as we know, an express enactment with respect to treating which forbids the giving of any refreshment to voters during an election under a penalty, which seems to imply that all hospitality is not struck at by the enactments as to treating. If every man at the Odd Fellows' dinner got six shillings and eightpence, or the price of the champagne which he drank, what would a Parliamentary Committee say to such a proceeding, and what must I say of it if there were not a distinction between bribing and treating? This case, however, is not, I think, altogether without precedent. Cases of a similar nature have, I find, been under the consideration of Parliamentary Committees, who have drawn a distinction between societies which have, and those which have not, a political object. I may refer to the decision in the Pontefract case, Woolferston and Dew, page 71, as bearing upon this point. The treating of Odd Fellows mentioned in that case was to a much smaller extent than in the present instance, but it was held not to amount to treating within this Act, the society not being a political society. I may also refer to the Maidstone case, Woolferston and Dew, page 104, as bearing immediately upon this point, as showing that it appears to have been taken for granted, and no doubt cor

rectly, that a similar treating of a society having a political character, if established in evidence, would have amounted to an offence within the Act of Parliament. I am not bound by the decisions of Parliamentary Committees; but I may properly refer to those decisions for my guidance. As to the case of the Odd Fellows, then, while I cannot, for the reasons I have mentioned, disabuse my mind of its importance, yet I think it well to follow the course which has been adopted by Parliamentary Committees in similar instances.

John Smith having proved that he had got a Mr. Wicks to write to the Respondent, and the letter being called for by the petitioner's counsel,

Mr. Justice WILLES :-The Respondent must say whether he will produce it or not; because unless he produces it now, he cannot produce it afterwards for the purpose of explanation.

Mr. Wicks was not called by the Petitioner as to this letter (although the Respondent asked that he might be). And upon Smith being cross-examined as to Wicks,

Mr. Justice WILLES said that if neither side called Wicks he should consider it his duty to order Wicks to come and be examined by the Court, as he thought that this was a case where the section of the Act authorising the Judge to examine a witness would apply.

Upon a witness being called to prove agency by something that the alleged agent said to him after the election, it was objected on the part of the Respondent that although it might be evidence on a scrutiny, it was not evidence against the Respondent on the question of the election being void.

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(3) 141.

Mr. Justice WILLES said that to a certain extent the question of either issue. the seat and the question as to scrutiny were to be considered as 151. one and the same, and that on that ground he should not reject the evidence, because it might, in the event of a scrutiny, become material; but that the distinction was quite clear to him between striking off a vote because the voter was proved by his own statement to be guilty of corrupt practices, and fixing a person for whom the alleged agent was said to be acting.

Upon a witness saying that a voter had made statements to him (2) 35. with reference to his vote,

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