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Phipps?' These men did in fact all leave his employment before the election, but it was not proved that they were actually discharged on account of their political opinions, and it was suggested by Mr. Harrop that some of them were discharged on account of their untruthfulness in voting at all after promising not to vote. It was also suggested that some of them left voluntarily. Though in one sense they may have gone voluntarily, they did not go willingly, any more than a man acts willingly when he volun-. tarily takes to a small boat in the middle of the ocean when his ship is on fire. There was a compulsion upon these men which they could not resist, and I am satisfied that all these men would have remained in the employment of Harrop but for their having promised to vote for the Petitioner, or if they had changed their minds as Harrop willed and had voted for the Respondent. Two questions arise on this state of facts.

"The first is, Does this conduct of Harrop amount to undue influence or intimidation within the 17th & 18th Vict. c. 102, s. 5?

"I cannot take this conduct of Harrop with respect to any one of these individual men as standing by itself. I cannot look at his conduct as being the single act of an angry person dealing with one voter who was under his influence. I must look at the whole of it together. If he had threatened the lives or limbs of the men, there could be no doubt that that would have been within the section; but it is not mere poetry to say,

'You take my life

When you do take the means whereby I live.'

A man who is sent out to live upon the charity of his fellow workmen, or to go to the workhouse with his family, unless he does a particular thing, is intimidated; but is that an intimidation. within the section? The 5th section forbids appealing to a man's fears by means of violence or intimidation. The Act says, 'Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make use of, or threaten to make use of, any force, violence, or restraint, or inflict or threaten the infliction, by himself or by or through any other person, of any injury, damage, harm, or loss.' Upon these words a question might arise whether they are not to be understood in a direct sense, and whether you

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must not only show damage, but damage the result of some injury for which an action might be maintained at law, and it might be pleaded as to these words that the damage resulting from being dismissed from an employment when the master had a legal right to dismiss, was not a damage arising within that description, and therefore not within the statute. I need not, however, express my opinion upon that, because the following words are large enough to include every sort of intimidation, every sort of conduct which would operate upon the mind of another, and terrify or alarm him into doing what the person misconducting himself willed, against his own free will, because the words are, or in any other manner practice intimidation upon or against any person in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting.' The 17 & 18 Vict. c. 102, s. 2, (2) among other things, makes the promising to procure,' or endeavouring 'to procure any office, place, or employment to or for any voter,' bribery. And reading the 5th section by the light thrown upon it by the 2nd, I can have no doubt that that which it would be bribery to promise the enjoyment of, is (in this case at least, and with reference to these circumstances) intimidation to threaten the deprivation of.

"The second question is, What is the effect upon the election of the violation by an agent of the Respondent of the provisions of the 5th section, by intimidation?

“Here again I must observe that I do not treat this as a single case of intimidation; I must treat it as part of a system which continued throughout the time that Harrop was an agent for the Respondent for the purpose of canvassing. The question as to the effect upon the election depends first of all upon the common law of Parliament, and secondly, upon the construction of the 17th & 18th Vict. c. 102, s. 36. By the common law of Parliament a single bribe given by an agent at an election had the effect of avoiding that election. It does not fix the candidate with penal consequences, it simply says that for the public good in order that agents may be deterred from resorting to undue means for the purpose of procuring the election of the candidates employing them, an election in which an agent has so misconducted himself shall be void, not to punish the candidate, though it indirectly

so operates, but to protect the public and to prevent the like practices, if possible, for the future.

"But it has been said on behalf of the Respondent, First, that there is a distinction between bribery on the one hand, and undue influence and treating on the other, and that this distinction exists in two particulars especially.

“(1) That a single act of undue influence ought not to prevail, because it is hard that the Respondent should be liable for his agent's conduct. But the law deals in this instance with the validity of the election, and not with the penalties imposed upon the candidate.

"(2) That a single act of undue influence by an agent ought not to defeat the election. But I find no such limitation in 17 & 18 Vict. c. 102, s. 36. I find that the candidate and his agents are put upon the same footing. To take an illustration. If a candidate, who is an employer of labour, were to inform all persons in his employ either that he would discharge any man who did not vote for him, or that he would discharge any man who voted for the other candidate, inasmuch as he was his personal enemy, that would avoid the election, and it is inevitable that it must do so equally if the undue influence be exercised by an agent, because section 36 says 'or his agents.'

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Secondly, it has been said that it is left in the discretion of the judge to say how much undue influence shall or shall not affect an election. But that is impossible. By the Parliamentary Elections Act, 1868, s. 11, I have no discretion one way or the other. I must pronounce for the truth as I believe it upon the facts, and for the law as I best know it upon questions of law.

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"Thirdly, it has been said that to put the construction upon 17 & 18 Vict. c. 102, s. 36, that this election which is gone by is avoided, would be begging the question, because section 36 means that if any candidate at an election shall be declared guilty of bribery, &c., at such election, such candidate shall in futuro be incapable of being elected or sitting in Parliament . . . . during the Parliament then in existence. The argument, no doubt, is a plausible one, but the answer to it is this. It is in truth a begging of the question to say that it is a begging of the question. Because the question here is not merely whether the Respondent

shall in futuro be capable of being elected, but whether he shall in futuro be capable of sitting in Parliament in respect of what took place at the election which has gone by. Therefore the inquiry must be in respect of what took place at the election which has gone by, and to say that it is begging the question, therefore, is only another form of that mode of begging the question which is forbidden by the legal maxim, Non debet adduci exceptio ejusdem rei cujus petitur dissolutio. It is quite obvious, therefore, that the begging of the question would be in not treating that section as applicable to the election in question.

Fourthly, it is said that the influence to defeat the election must be influence operating as a kind of terror, and that that did not exist here. But there was terror, whether it be more or less, still a terror amounting to intimidation at Harrop's factory for some time before the election, and a strong feeling that men would be dealt with differently according as they voted one way or the other, which feeling, produced by illegitimate means, is to be prevented, and the persons who are likely to feel it are to be protected by law.

“Fifthly, it was said that although Harrop was an agent of the Respondent, and did intimidate under 17 & 18 Vict. c. 102, s. 5, he did not intimidate as an agent, and that therefore his principal is not bound; and it was said, by way of illustration of that view, that although a master is answerable for a negligent act of his servant in the course of his employment, he is not answerable for his wilful and spiteful act for his own purpose, not in the course of his employment; and that might be carried further, because a master would not be liable to some person run over by his carriage driven by his coachman upon some errand of his own, entirely out of the scope of the employment of the master. There can be no doubt of that; but I might put, on the other hand, a variety of cases in which a principal is held liable, even civilly, for an act of his agent, which he never intended, and at which he is exceedingly displeased; the case of a bank held liable for the fraud of a manager or clerk, the case of a person who employs a man to navigate his boat for hire, held liable for the infringement of a ferry by the boatman without his authority and against his will; and a case which occurred in London in the rivalry between

the omnibuses, where the proprietor of an omnibus was held liable for the wilful act of his coachman in cutting in before another omnibus and injuring the vehicle and the horses, and I think one of the passengers, for the purpose of getting a fare, having in his mind at the time the compound motive of effecting his own spiteful desire, and at the same time of getting before the other omnibus to get a fare for his master. This case was very much considered in the Exchequer Chamber, and was held by a large majority of the judges to be a case of liability; or I might put even the more apposite case of a man employing another to steer and assist in the management of his vessel in a race, where by the act of one of the crew wholly unauthorised by the employer, a foul took place in wrong of a rival, and the employer's vessel wins; in such a case, even if it were proved to demonstration that notwithstanding the foul, the race would have been won by the vessel on board of which the misconduct took place, it would surprise one if, by any rule either of honour or of law, the prize was given to the vessel which was in fault; no innocence of the employer could have any effect upon his loss.

Here, if Harrop did what he did out of hostility to the Petitioner, that certainly cannot add merit to his act; the question is, whether the act was done with the object of assisting the Respondent in the course of his canvass. I have no doubt that was the object, though it was to serve him at the expense of the Petitioner; the object was to get the Respondent returned, though the motive was to spite the Petitioner, and to prevent him from being elected."

procurement of

respondent, no

creates agency.

matter how,

As to the agency of Harrop, he said: "It was proved that Canvassing by Harrop was a large employer of labour, and was desirous of canvassing his own workmen for the Respondent. The Respondent not only desired Harrop to canvass for him, but he also (whether expressly or impliedly, whether by words or actions, it is immaterial) conveyed that desire to him. Accordingly Harrop did canvass for the Respondent, and in so doing I come to the conclusion that he acted as his agent. For an agent to bind another it is not necessary that there should be any payment, it is only necessary that the act done by the agent upon which the question arises whether it is to bind the principal should be an act done by the procurement of the principal."

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