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SED FOR rf Cor sbruary ORY OP SS BO THE SCHOOL nd Daugb BLLEN D. 1 1 E t "^ - S ^ -g "= 3 tC +5 Z QLA 3T DEAN OF Wife a \N and >? s ^ J § - O -"a :j ^ "S 1 o lool And U go z o ;. 76, s. 54 . 183 4 & 5 Vict. c. 57 . . 129, 134 6 Vict. c. 18, ss. 27, 48 . 64 6 Vict. c. 18, ». 79 . . . 163 6 V Ict.c. 18,s.98 . 173, 179 7 & 8 Vict. c. 101, s. 27 . . 175 PA&E 7 & 8 Vict. u. 101, s. 69 . 174 11 & 12 Vict. c. 98, a. 2 , . 134 11 & 12 Vict. c. 98, s. 55 . 241 11 & 12 Vict. c. 98, s. 68 . 125 11 & 12 Vict. c. 98, ss. 73, 75 237 11 & 12 Vict. c. 98, s. 83 20, 60, 123, 231 ll&12Vict.c.98,ss.86,87 126, 134, 155, 195, 204, 215 11 & 12 Vict. u. 98, s. 92 . 180 11 & 12 Vict. c. 98, ». 93 . 143 11 & 12 Vict. c. 110, s. 11 . 174 13 & 14 Vict. c. 68, s. 19 . 199, 202 15 & 16 Vict. c. 57 . . 185 17 & 18 Vict. c. 102, s. 2 . 183 17 & 18 Vict. c. 102, s. 3 . 126 17 & 18 Vict. c. 102, i(. 4 37, 97, 110, 200 17 & 18 Vict. c. 102, s. 5 125, 129, 136, 183 17 & 18 Vict. c. 102, s. 15 . 104 17 & 18 Vict. c. 102, s. 18 . 104 17 & 18 Vict. t. 102, ». 26 . 104 l7&18Vict.c.l02,s.36. 129,154 17 & 18 Vict. c. 125, s. 18 . 122 21 & 22 Vict. e. 29 . 29, 31, 65 26 Vict. i;. 29, s. 8 . 37, 42, 73, 104, 182 TABLE OF CASES. Year. Petition. Grounds of Petition proceeded upon. Page. 1859 1859 1864 1864 1859 1859 1859 1859 1860 1860 1859 1860 1859 1862 1860 1859 1859 1859 1859 Ashbuiton Aylesbury . Barnstaple . . Berwick-on-Tweed . Berwick-on-Tweed . Beverley . Beverley . Bury . Carlisle . Cheltenham Clare County Clare County Dartmouth Dover Gloucester Great Grimsby Great Yarmouth Huddersfield * Eingston-upon-Hull Leicestershire, North Limerick City Bribery, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating^ disquali- fication of sit'tmg mem- ber. Scrutiny . Bribery, treating. Scrutiny I Bribery, treating, undue influence. Corrupt agree- ment between candidates Brilftry, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating, undue influence . . . • Bribery, treating, undue influence .... Corruptly giving illegal fees to returning officers, agents, &c., at former election, whereby he was disqualifled . . • Bribery, treating, undue influence .... Bribery, treating, undue influence, interference of ministers , . • . Bribery, treating, undue influence .... Bribery, treating, undue influence, violence, and Intimidation . • Bribery, treating, undue influence .... Bribery, beating, undue influence. Scrutiny Bribery, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating, undue influence, violence, and intimidation . > Member duly elected C Members duly 1 ■< elected > I Member unseated J Member xmseated . Member duly elected Member duly elected (■Member duly "j < elected > (.Member unseated J Member duly elected Member duly elected Members duly elected Member duly elected Member imaeated . Member duly elected Member unseated . Members duly elected Members imseated . Member duly elected Members duly elected Member duly elected Member unseated . Members duly elected Member duly elected 161 229 187 40 90 63 191 19 121 23 218 114 28 84 48 XX TABLE OF CASES. Lisbum Lisbum I860 Londonderry . 1859 Maidstone 1859 Norwich . . . 1860 Norwich . 1860 Peterborough . 1859 Preston . 1860 Roscommon County 1859 WakeJeld . . 1860 Weymouth Grounds of Petition proceeded upon. Bribery, treating, undue influence . . . . Bribery, treating, undue influence, disqualifica- tion of sitting member through bribery at former election .... Diaqualiflcation by reason of Government contract Bribery, treating, undue influence .... Bribery, treating, undue influence .... Disqualification by reason of bribery at former election .... Bribery, treating, undue influence .... Bribery, treating, undue influence .... Bribery, treating, undue influence. Bribery after teste of writ Bribery, treating, undue influence .... Bribery, treating, undue influence .... Members unseated . No decision Member duly elected Member duly elected Members unseated . Member imseated . Member duly elected Member duly elected Member unseated Member unseated . Members duly elected Page. 234 206 55 59 144 15 7 102 7 99 CASE I. BOROUGH OF ASHBURTON. 1859. The Committee was appointed on the 22nd of Jnly, 1859, and consisted of the following Members : — Eight Hon. Edward Pleydell-Bouverie, Kilmarnock, (CJiairman.) Kichard Montesquieu Bel- ^ lew, Esq., Louth. Gilbert Greenall, Esq., War- rington. Eainald Knightley, Esq., Northamptonshire, South. Eiohard Brinsley Sheridan, Esq., Dorchester. petitioners : — Electors. f Member : — John Harvey Astell, Esq. Cormsel for Petitioners : — Mr. Phinn, Q.C., Mr. Clerk, and Mr. Saymond. Agents ; — Mr. Benett and Mr. Tucker. Counsel for Sitting Member: — Mr. Slade, Q.C., Mr. W. H. Cooke, and Mr. Bentinck. Agents : — Messrs. Baxter, Eose, and Norton, and Mr. George Caimter. The Committee agreed to the following re- jniy 26. solutions respecting the conduct of the case : — Preiimi- 1. " That counsel will not be allowed to go ^^ng. into matters not referred to in their opening statement, without a special application to the Committee for permission to do so." 2. " That if costs be demanded by either Z ELECTION CASES. PreUmi- party, under 11 & 12 Vict. c. 98, the question Sn^^"" ^'^^^ ^® raised immediately after tlie decision on that particular case, unless the Committee shall otherwise decide." 3. " That the Committee expect that, with respect to cases of bribery, or offers or promises of money, or other valuable consideration, which it is intended to bring home to the sitting member, or his agents, the counsel for the petitioners will now state the names of the electors bribed, or to whom such offers were so made, and those of the persons who actually gave the bribes, or offered so to do." 4. " The Committee, however, reserve to themselves a power, upon the special applica- tion of counsel, to proceed with any case which tends to inculpate any principal or agent, the knowledge of which case has been brought out before the Committee in the progress of the investigation, with the circumstances of which the parties could not be reasonably supposed to have been previously cognisant." 5. " That, with respect to treating, the Committee will expect counsel to state the times and places where such treating is alleged to have taken place." 6. "That, with respect to undue influence, the Committee wOl require to be furnished with a Hst of the persons who are alleged to have been subjected to such undue influence, and also with a Hst of those who are alleged to have exercised it." 7. "The Committee, however, reserve to BOROUGH OF ASHBURTON. 3 themselves a discretionary power, as in cases Preliml- of bribery." "^'"7 '^^so- mi lutions. 8. " Tnat no person shall be examined as a witness who shall have been in the room during any of the proceedings, with the exception of the agents, the sitting member, the petitioners, and the other candidates, without the special leave of the Committee." The petition, after stating that at the last Petition. election John Harvey Astell, Esq., and George Moffatt, Esq., were the candidates, and that the former was returned, alleged bribery, treat- Bribery, ing, and undue influence against Mr. Astell and and undne his agents, and prayed the House to declare '"^^sJioe. his election and return to be null and void. On the following question being put to a Agency at /-in- • -r>- ? N 1 • .• 1 forme' Witness (Mana Dicker) under examination by election no Mr. Clerk, " Do you recollect whether Mr. e^denceof *' _ agency at Astell canvassed at all in 1857 when he was a subse- there?" ^^^"* °°'- Mr. Cooke objected to the question on the ground that the Committee had nothing to do with the proceedings at the previous election. Mr. Clerk submitted that it was a question of agency ; and if he proved that the same per- sons who acted as agents for Mr. Astell in 1857 were employed for him in 1859, it was strong proof of their being his agents. The Committee decided that agency in 1857 could not be made evidence of agency in 1859. B 2 4 ELECTION CASES. July 27. The facts proved witli reference to the agency of What suffi- Mr. Henry Tozer were as follows : — That he had denee^' come down to Ashburton with Mr. Astell at the agency, previous election ia 1857 ; that he was an active supporter of his at the election in 1859 — can- vassing for him, and being seen in and out of the poll- booth at the election ; that he called most days on Mr. Astell at the London Inn, where Mr. A. was staying ; that he frequently left the London in. company with Mr. Astell on his canvass, and sometimes in the same car- riage ; that on the morning when Mr. A. came to Ashburton he, Mr. H. T., asked the landlady of the London Inn whether his rooms would be ready, and subsequently went over to Newton in a trap (which was not charged to Mr. Astell), to see if Mr. Astell had arrived ; that he can- vassed the constituency in company with Mr. Astell, and on one occasion went ia to canvass a voter alone with him ; that the jfities ordered, on Mr. Astell's behalf for the purposes of the election were ordered sometimes by him and sometimes by Mr. Gaunter, the admitted agent of Mr. Astell; but the bills were sent in to Mr. Gaunter, and Mr. Gaunter, as it appeared, objected to and did not pay for the flies ordered by Mr. Tozer. Mr. Phinn then proposed to call a witness (Mr. Joseph Turner), and submitted that Mr. Henry Tozer's agency was sufficiently estab- lished to enable him to do so. Mr. Coohe was heard to object. BOROUGH OF ASHBURTON. 5 The Committee were of opinion that a prima facie case of agency was made out. Mr. Henry Tozer, who was a solicitor in Payment Ashburton, had, it appeared, paid a judgment °^™°"^y debt of £124 ll*., due from a voter named person to Leeman, to Mr. Tucker, the agent for the peti- briber "'^ tioner, under the following circumstances : — Mr. Tucker had issued a writ of ca. sa. against Leeman for the debt, directing the sheriff's officer to arrest him before he polled. The offi- cer, accordingly, placed five or six men round the poll booth, so that the voter could not get to vote. Upon this Mr. Henry Tozer, after in vain attempting to induce the sheriff's officer to wait till after the voter had polled, asked the agent of the sitting member whether, if he paid the money for the voter, taking security, it would be a bond fide transaction, whether it would be bribery; to which the agent an- swered, No. Mr. Henry Tozer thereupon paid the money, taking the voter's bond and promis- sory note for the amount, and the voter then ^ polled. Subsequently to the election the voter had, it appeared, repaid Mr. Henry Tozer £30 of the amount. The voter swore he always meant to vote for the sitting member if he could get to the poll ; and it was not contested that he had always voted on that side at previous elections. The Committee determined that Mr. Astell juiy 29. was duly elected. ^^^^"- 1859. CASE II. BOROUaH OP WAKEFIELD. The Committee was appointed on the 22nd July, 1859, and consisted of the following Members :— Eight Hon, William Monsell, Limerick County, {ClbOA/rmom.) Sir Jas. Dalrymple Elphin- Alexander Hugh Baring, Esq., Thetford. James Caird, Esq., Stir- ling. stone, Bart., Portsmouth. Kirkman Daniel Hodgson, Esq., Bridport. FetiUoners : — ^Electors. Sitting Member : — ^WiUiam Henry Leatham, Esq. Counsel for PetiUoners :—M.T. Slade, Q.C., Mr. Pickering, Q.C., and Mr. Serle. Agents : — Messrs. Baxter, Rose, and Norton, and Mr. J. W. Westmoreland. CovMsel for Bitting Member .- — Mr. Phinn, Q.C., Mr. Power, Q.C., and Mr. Brewer. Agents : — Mr. Wyatt and Mr. Wainwright. July 26. The Committee agreed to the iisual preliminary Prelimi- resolutions (a), inserting in resolution 8, after UUoaT'' *^® '^°^^ " agents," tlie words " whose names shall be handed in." (a) Ante, p. 1. BOROUGH OF WAKEFIELD. 7 The petition, after stating that at the last Petition. election for the borough of Wakefield, William Henry Leatham and John Charlesworth Dodson Charlesworth, Esqs.^were the candidates, and that the former was returned, charged that Mr. Leatham had, by himself and his agents, been guilty of bribery, treating, and undue influence. Bribery, and prayed that his election and return might an^d undue be declared null and Toid. influence; Mr. Slade opened a case of bribery. Henry Beaumont, a voter, who was called Statement as a witness, stated that he had been taken agent rela- by one Samuel Denison to the office of Mr. ti™toaots '' ^ , ^ _ done Dy Wainwright, the agent for the sitting mem- himduring ber, when the sum of £10 was paid to him*^^®^^^" in Denison's presence ; and that about ten adnaisai- days after the election, he having voted for jj^a'de after the other candidate, Denison came to him again t^? t^r- about the £10. He was then asked, " What did of the he say to you ?" ^s^'^^y- Mr. Phinn. — Denison is not shown to have been an agent for Mr. Leatham ; but, even if it were proved that he had been so acting, his agency would have terminated with the election ; and anything said by him after his employment terminated cannot be evidence against his em- ployer. Mr, Pickering. — It is clear that Denison was an agent, because what he did was recognised by Mr. Wainwright ; and it is what was said by him. after the election, relative to an occurrence 8 ELECTION CASES. wliicli happened before the election, which is now the subject of inquiry. The Committee decided that the question might be put. Commit- Witnesses having been called who proved proceed payment of money to them by persons employed with exa- \,j the agent of the sitting mem^ber, to induce mination ,i , , after conn- them tO VOte, sel have ]y;r. Phinn, on behalf of the sitting member, case. stated that, after the evidence which had been given, he shoiild not further resist the prayer of the petition. The Chairman stated that the Committee were of opinion that they would not be fulfilling their duty if they did not make further inves- tigation into this case. Grodfrey Noble, a witness, was then recalled ; and the agent of the sitting member, and the sitting member himself, were examined. July 27. The Committee then came to the following Final reso- resolutions for report to the House : — mtious. _ ■■_ 1. " That William Henry Leatham was, by his agents, guilty of bribery at the last election." 2. " That WiUiam Henry Leatham is not duly elected a burgess to serve in this present Parliament for the borough of Wakefield." 3. " That the last election for the said borough is a void election." 4. " That it was proved to the Committee that Thomas Beaumont had been bribed with BOROUGH OF" WAKEFIKLD. the payment of £10 ; that John Jackson had been bribed with the payment of £30; that John Cousins had been bribed with the payment of £25 ; that George Senior had been bribed with the payment of £30; but that it was not proved that such bribery was committed with the knowledge and consent of the sitting member." 5. " That there is reason to believe that cor- rupt practices have extensively prevailed at the last election for the said borough of Wake- field " (a). (a) A Commission, imder 15 & 16 Vict. c. 57, was appointed upon this report ; and a criminal informa- tion was subsequently filed by tbe Attorney- General against tbe two candidates, Mr. Leatham and Mr. Oiarlesworth, and others, for bribery. B 3 10 CASE III. 1859. BOROUGH OF AYLESBURY. The Committee was appointed on the 25th July, 1859, and consisted of the following Members : — Right Hon. Sir John Trollopa, South Lincolnshire, {Chairman.) W. Patrick Adam, Esq., Captain Gladstone, Devizes. Clackmannan. Lord Lovaine, Northumber- Sir Charles Earwicke Don- land. North. glas, Bart., Banbury. Petitioners : — 1 and 2. Thomas F. C. Vernon Wentworth, Esq., doubly returned. 3. Electors, against the return of Mr. Bernard and Mr. Smith. 4. Samuel George Smith, Esq., doubly re- turned. 5. Electors, against the return of Mr. Went- worth. Counsel for 1, 2, and 3 Petitions .—Mr. Power, Q.C., Mr. Welsby, and Mr. Homersham Cox. Agents.— Mr. Darvill, Mr. H. Watson, and Mr. W. D. Cooper. Counsel for 4: and 5 Petitions .—Mr. Slade, Q.C., Mr. Clerk, and Mr. Granville Somerset. ^^e»fo .—Messrs. Baxter, Eose, and Norton, Mr. Isaac Williams, Mr. Joseph Parrott, Mr. Thomas Parrott, Mr. John Edward Barker, Mr. Frederick Sumner Irving, and Mr. Henry Griffiths. BOROUGH OF AYLESBURY. 11 The Committee agreed to the eight preliminary July 27. resolutions mentioned ante, p. 1, omitting in Preiimi- resolution 8 the words, " the sitting member, h^ng!^° petitioner, and other candidates," and adding, after the word "agents," the words "whose names shall be handed in." And also to the following : — 9. " That the Committee will only allow one counsel to address them on opening the case, and one counsel on the summing up." 10. " That if any point of law should arise requiring argument, the Committee reserve to themselves the power of only hearing one coun- sel on each side." 11. " That if the leading counsel are not prepared to sum up the case on either side when the evidence is terminated, the Com- mittee will not protract the proceedings for the convenience of counsel who may be absent." 12. " That, with respect to objected votes, the Committee expect counsel to exhaust one class of objections before proceeding to another." The first petition of Mr. Wentworth, after 1st peti- stating that at the last election Thomas Tyring- w^t- ham Bernard, Esq., Samuel George Smith, Esq., worth. and the petitioner, were candidates, and that Mr. Bernard, who had a majority of votes, was returned, together with Mr. Smith and the petitioner, there being an equality of votes for the two latter, complained of the improper reception and rejection of votes on various 12 ELECTION CASES. Bribery, grounds. It then alleged bribery, treating, ana*^due ^^^ ™ '■«=°- 4. " That the vote of Thomas "Waite is a bad vote, and be struck off the poll." 6. " That Thomas Tyringham Bernard, Esq., is didy elected a burgess to serve in this pre- sent Parliament for the Borough and Hundreds of Aylesbury." 6. " That Samuel George Smith, junior, Esq., is duly elected a burgess to serve in this pre- sent Parliament for the said Borough and Hundreds." [a] The Committee divided. Ayes,^: Sir J. TroUope, Captaia Gladstone, Lord Lovaine ; Noes, 2 : Mr. Adam, Sir 0. Douglas. (J) All the resolutions except the fourth were re- ported to the House. 18 ELECTION CASES. 7. " That Thomas Frederick Charles Vernon Wentworth, Esq., is not duly elected a burgess to serve in this present Parliament for the said Borough and Hundreds." 8. " That they had altered the poll taken at such election, by striking off the name of Thomas Waite, as not having had a right to vote at such election." 19 CASE IV. BOROUGH OF DARTMOUTH. 1859. The Committee was appointed on the 25th July, 1859, and consisted of the following Members : — Anthony Lefroy, Esq., DabUn University, {Chairman.) Hon. Charles Wentworth George Howard, Bast Cnmberlaud. Eobert Stephenson, Esq., Whitby. William Earle Welby, Esq., Grantham. Martin Tnoker Smith, Esq., Wycombe. Petitioner: — Sir Thomas Herbert, Kt., the nnsuooessfnl Candidate. Sitting Member petitioned against : — Edward Wyndham Harrington Sohenley, Esq. Covmel for Petitioner : — Mr. Slade, Q.C., Mr. Serjeant Pigott, and Mr. W. H. Cooke. Agents : — Messrs. Barter, Eose, and Norton, Mr. Gumey, and Mr. Brooking. [No Comisel appeared for the Sitting Member.] Agent for Sitting Member : — Mr. Wyatt. The Committee agreed to the first eleven of the July 27. usual prelirm'Tiary resolutions (a). Prelimi- nary reso- lutions. (a) Ante, p. IL 20 ELECTION CASES. Petition. The petition, after stating that at the last election Edward Wyndham Harrington Schen- ley, Esq., and the petitioner were candidates, and that the former was returned, alleged that the former obtained his election by means of a corrupt agreement, and also by corrupt and illegal gifts and promises, (fee, whereby he was incapacitated to serve in the present Parliament ; that the said E. W. H. Schenley, Esq., was by Bribery, himself and his agents guilty of bribery, treat- Mi^d undue ^^^' ^^^ undue influence. It then complained influence, of the improper reception of votes invalidated by reason of the voters having been bribed, treated, &c., and for other causes, and of the rejection of voters tendered for the petitioner ; Scrutiny, and it prayed a scrutiny, and the seat for the petitioner. Case must Mr. Wvatt stated that it was not the intention proceed, e i • • n /. i i • though sit- 01 the Sitting member to defend his seat. b^r^d^Une ^'^- ^^"'^^ ^^^^ ^® ^^^ *^^®^ ^J si^rprise by to defend the statement on the other side. He was pre- ■s seat, pared to proceed and to prove his case ; and he contended that the Committee were bound to inquire into the facts and report upon them. If the sitting member had reported his intention to the Speaker in the manner pointed out by the 11 & 12 Vict. c. 98, there would have been no necessity for the Committee or his appearing there. The Committee, after deliberation, directed Mr. Slade to proceed with the case. BOROUGH OF DARTMOUTH. 21 Mr. Slade was then heard to open the case, and proceeded to call witnesses in support of the allegations in the petition. At the conclusion of the case, the Committee came to the foUowiag final resolutions for report to the House : — 1. " That Edward Wyndham Harriugton Pinal reao- Schenley, Esq., is not duly elected a hurgess to l°'io"s. serve ia this present ParKament for the borough of Dartmouth." 2. " That the last election forthe said borough is a void election." ., 3. " That Edward WiUiam Harrington Schenley, Esq., was, by his agents, guilty of bribery at the last election for the said bo- rough." 4. "That it was proved to the Committee that Richard Mitchelmore received £10 from. "William Tucker (a), to induce him to abstaia from voting; that Elizabeth PhiUips received £20 from William Tucker for the hire of rooms at the Dolphin public-house, her husband beiag (a) Mr. Tucker, -who was a tailor, and was proved to have been absent from the borougli ever since the election, was one of Mr. Sohenley's committee, and was admitted by Captain Btdley to have received some of the money (£1000) that he, Captain Bulley, received " for electioneering purposes " (£900 of which was received fi-om Mr. S., and the other £100 from the candidate who had retired in Mr. S.'s favour), and distributed by order of different members of Mr. S.'s committee. 22 ELECTIOlf CASES. a voter, and Toting for Mr. Schenley half an hour afterwards " (a). 5. " That large sums of money were received by Captain BuUey {b), and distributed by him to various members of Mr. Schenley's com- mittee ; but it does not appear that the legal expenses of the election were defrayed from that source." Costs re- Mr. Slade applied for costs, and that the ^® ■ Committee should report the defence of the seat •by Mr. Schenley to be frivolous and vexatious. Mr. Wyatt was heard against the appKcation. Mr. Slade was heard m. reply. The Committee resolved, " That the defence of the seat on the part of Mr. Schenley is not frivolous and vexatious." [a) The rooms were liired for Mrs. Schenley and Mends at the nomination, to tear the speeches from ; and were, ia fact, used. But no sum was mentioned when the agreement was made ; and on the morning of the poUing the £20 was put down for the hire of the room, without Mr. Tucker asking what the charge was, or saying anything, except that it was for the hire of the room. The yearly rent of the house, it appeared, was £18. (J) Captaui BuUey was the chairman of Mr. Schen- ley's committee. 23 CASE V. CITY OF GLOUCESTER. i859. The Committee was appointed on the 25tli of Jxily, 1859, and consisted of the following Members : — Gathorne Hardy, Esq., Leominster, (Chairman.) Lord Robert Grasooigne Cecil, Stamford. Sir Henry Ferguson Davie, Bart., Haddington. James Banks Stanhope, Esq., North Lincolnshire. Walter Buchanan, Esq., Glasgow. Petitioners : — Electors. Sitting Members i — Philip WiUiani Price, Esq., and Charles James Monk, Esq. Counsel for the Petitioners : — Mr. Slade, Q.C., Mr. Huddleston, Q.C., and Mr. W. H. Cooke. Agents : — Messrs. Baxter, Bose, and Norton, and Mr. Lovegrove. Counsel for Mr. Price : — Mr. Phinn, Q.C., Mr. Powell. Agent : — Mr. ElKs. Counsel for Mr. Moni: — Mr. Eodwell, Q.C., and Mr. Clerk. Agents : — Mr. Baker and Mr. Jones. The Committee agreed to the first eight of tlie July 27. usual prelimiaary resolutions (a). Preiimi- r •' ^ ' nary reso- ^ lutione. (a) Ante, page 11. 24 ELECTION CASES. Petition. The petition, after stating that at the last election for the city of Gloucester, Sir Eobert Walter Garden, Knight, WUliam Philip Price, Esq., and Charles James Monk, Esq., were can- didates, and that the two latter were returned. Bribery, alleged bribery, treating, and undue influence and'mdue against the sitting members and their agents, influence, and prayed the House to declare their election and return to be null and void. Mr. Slade opened a case of bribery and treating. July 29. Robert BoxaU, a clerk to the telegraph com- Committee pany, was called to produce some telegraph ateiegraph messages, signed by the parties who sent them clerk to jjj ^]^q usual way ; but he declined to produce produce . '^ , ■*• them without the order of the Chairman. The ^'^fe^s''^ Committee directed them to be produced. Two sending of them were then read by Mr. Huddleston ; when ma- *^® Second, being signed with initials only, was teriai to objected to by Mr. Rodwell, and the Committee quiry." decided that there was nothing to connect such telegram with the matter before the Committee. Four other messages were then produced and read, one of which was proved to be in the handwriting of Thompson (an election agent of the sitting members). The handwriting of the other messages was not proved. Mr. Huddleston then proposed to put these messages in ; but — mente ^^- ^°^«^^^^ objected, on the ground that which none of them were identified with any persons CITY OF GLOUCESTER. 25 sought to be connected with the sitting mem- might have bers, except the one proved to be in Thompson's ^3^®^°^°^^ ^^ handwriting. the proper Mr. Huddleston urged that the objection was o^eonthe too late ; and the Committee decided that all the minutes documents were already upon the notes, except struck off. the one signed with initials. Upon the question being put to a witness, a Conversa- member of the Gloucester Reform Club, whether ^° ^'rela^ anything was said at the club relatiTe to Mr. tive to the Monk's position at the time when it was pro- t^g mem- posed to send a deputation to him, it was ^^'^ pe*i- objected to by againstare Mr. Rodwell, as the Committee were not then admissible . when acts upon a question of bribery, but one of agency; of bribery and that there was no proof that any of those ^jo^ed^^" present at the club were agents ; and further, against that as Mr. Monk could not be bound by the ^^™g ^^^ club proceedings, nothing ought to be stated by and such the witness relating thereto. present at Mr. Huddleston contended that, having proved tiie oon- , . . n -1 •■■ ■ , . ■ 1 versations. distinct acts of bribery against certam members of the club, he was at liberty to examine the witness as to what took place at a meeting of the club where such members were present, and at which it was resolved to bring forward Mr. Monk as a candidate. The Committee decided that the evidence was admissible. There hevag prima facie evidence that a great many other persons were connected with the bribery, what took place with reference 26 ELECTION CASES. to the election at tHs club, of which all such persons were members, was very important to enable the Committee to get at the truth. July 29. At the close of the petitioners' case, Mr. Sitting Rodwell, on behalf of Mr. Monk, said that after withdraw- the evidence given, which had taken him by ing oppo- surprise, Mr. Monk withdrew from further con- aition to . the peti- testing the seat. in°edbyae ^^- ^0°^ ^^ ^^^^ examined by the Chair- Comimt- man, at his own request. tee at his own re- quest. The Committee then came to the following Pmal reso- ^^g^ resolutions for report to the House : — lutions. '■ 1. " That WiUiam Philip Price, Esq., is not duly elected a citizen to serve in this present Parliament for the city of Gloucester." 2. " That Charles James Monk, Esq., is not duly elected a citizen to serve in this present Parliament for the city of Grloucester." 3. "That the last election for the said city of Gloucester is a void election." 4. " That WOHam PhiUp Price, Esq., and Charles James Monk, Esq., were, by their agents, guilty of bribery at the last election." " That it was proved to the Committee that George Welsh, Anthony Bond, "William Merritt, Thomas Evans, John Keeling, George Bowers, Thomas May, Thomas Bowers, George Huggias, John Wadley, Walter Seymour Davey, James Coates, Henry Lane, Samuel JeflFs, James Yaile, Arthur Peters, and Edwin Harris had been CITY OF GLOUCESTER. 27 bribed with." {the sums set opposite to their names) ; " but that it was not proved that such bribery was committed with the knowledge and consent of the said "William Philip Price, Esq., and Charies James Monk, Esq." 5. "That it appears to the Committee that other bribes were paid by the agents of "William Philip Price, Esq., and Charles James Monk, Esq., to persons whose names have not been proved before the Committee ; and that bribes were extensively offered to voters, and voters were colourably employed as messengers." 6. " That the Committee have reason to be- lieve that corrupt practices extensively prevailed at the last election for the city of Grloucester" (a). (a) A Commission, tmder 15 &16 Yict. c. 57,.was appointed on this report. c 2 28 1859. CASE VI. BOEOTJGH OF HUDDERSFIELD. The Committee was appointed on the 25th July, 1859, and consisted of the following Members : — The Eight Hon. Henry Arthur Herbert, Kerry, {Chairman.") Colonel Cartwright, North- amptonshire, South. Et. Hon. W. P. Cowper, Hertford. William Orme Foster, Staf- fordshire, South. John Vance, Esq., Dublin. Petitioners : — Electors. Sitting Member : — E. A. Leatham, Esq. Counsel for Petitioners : — Mr. Slade, Q.C., Mr. Pickering, Q.C., and Mr. Maule. Agents : — Messrs. Baxter, Eose, and Norton, Messrs. Brook, Freeman, and Batley, Mr. Thomas Eobinson, Mr. Samuel Henry Stocks. Cotmsel for the Sitting Member : — Mr. Phinn, Q. C, Mr. Serjeant Pigott, and Mr. Webster. Agents : — Mr. E. H. Wyatt and Mr. Clough. July 27. The Committee agreed to the twelve usual pre- Prelimi- Hiniiiarv resolutions (a). nary reso- "^ ^ ' lutions. Petition. The petition, after stating that at the last (o) Ante, p. 11. BOROUGH OF HUDnERSFIELD. 29 election for tlie borough of Huddersfield, Edward Aldam Leatham, Esq., and Edward Ackroyd, Esq., were candidates, and tliat the former was returned, complained of the impro- per reception of the votes of persons disqualified on various grounds, and also of the improper rejection of votes tendered on behalf of Mr. Ackroyd. It alleged bribery, treating, and Bribery, undue influence against Mr. Leatham and his *'^«|-'''i|' o _ and undue agents, and finally prayed a scrutiny, and the inflnenoe. seat for Mr. Ackroyd. Sorlitiny. Mr. Slade opened the case. It was proved that Benjamin Eobiason, the Payment agent for election expenses appointed by the ^^''^^^l- sitting member, had paid simis of money to penses not different out- voters as traveUing expenses. In even Yiice some cases the amount he paid was more than tlie 21 & the actual fare ; in others it was the exact 0. 87. amount, so far as it could be ascertained ; but no money had been given until after an attempt had been made to obtain passes for the voters. It further appeared that there was a sort of understanding between the agents of both can- didates that the travelling expenses of out- voters were to be paid. It was also proved that rooms had been hired Evidence at different public-houses and beer-houses in^^.^s™"? ■^ when m- the town, and placarded as Mr. Leatham's non- sufficient. electors' committee-rooms ; that at some of these places drink and refreshments had been supplied to Mr. Leatham's watchmen, and to 30 ELECTION CASES. non-electors; and that in some cases the ac- counts had been sent in to Mr. Leatham's com- mittee, but they had not been paid. Some of these houses were proved to have been hired by an elector named Jabez "Wells, who had intro- duced Mr. Leatham to a meeting at the Pack- Horse Inn, where one of Mr. Leatham's com- mittees afterwards sat, and also to a second meeting held at another inn, called the Wool- pack. At the Woolpack, Wells had hired a non-electors' committee- room, as it was called, where refreshments were supplied to different people, and the bOl sent in to Mr. Leatham's committee ; but it was not paid, and the election agent, who was present, disowned anything done by Wells. It appeared that Wells had been present at two meetings where the question was discussed whether Mr. Leatham should come forward as a candidate ; but that, at the second meeting, he had advocated the breaking'up of the meeting, and after that no further confi- dence was placed in him by Mr. Leatham, his agent or friends, nor was he ever shown to have been at any meetings of Mr. Leatham's sup- porters, or at any of his committees, or to have acted with them in any way. Mr. Eobinson, the election agent for the sitting member, fur- ther proved that he knew nothing of Edward Firth, who had engaged committee-rooms at the house of J. Crossley ; and that John Wilson, who had hired rooms at the house of Henry Partridge, was employed as a doorkeeper and BOROUGH OF HUDDEESFIELD. 31 messenger, but that notliiiig else was known of him. The Committee resolved, — " That it was not prored that the sitting August 4. member had been, either by himself or his agents, Resolu- guilty of bribery, treating, or undue influence." commft- The Chairman further stated that as this was ^e. the first decision which had been come to imder the Act 21 & 22 Vict. c. 87 (a), the Committee wished it to be understood that they considered the payment of travelling expenses, which, in this case, was proved to have been made to voters by an agent of the sitting member, was illegal ; but that it did not render the sitting member guilty of bribery within the meaning of the Corrupt Practices Prevention Act, 17 & 18 Yict. c. 102. The Committee then proceeded with the scrutiny. (a) The Act provides " that it shall not be la-wful to pay any money or give any valuable consideration to a voter, for or in respect of his travelling expenses," for the purpose of polling ; but enables a candidate or his agent, appointed under sect. 31 of the Corrupt Practices Prevention Act, 1854 (which section is now repealed, and sect. 2 of 26 Vict. c. 29 substituted) — " to provide conveyance for any votei's for the purpose of polling at an election, and not otherwise." 32 ELECTION CASES. GEOEGE MOXON'S CASE. Objected to on the ground of having been bribed. If voter The voter, as it appeared, was an innkeeper iw a pro- ^^ Huddersfield, and ■ was the jouit owner of mise to some pigs with one John Chapman. One at more Jabez Wells had asked him to vote for Mr. than their Leatham, and promised to buy the pigs at the is bad. sum of £10 above their value if he would do so ; in consequence of which he voted for Mr. Lea- tham, and obtained for Mr. Leatham the vote of Mr. Chapman, the father of John Chapman. The money was never paid. Vote bad. CHAPMAN'S CASE. Objected to on the ground of having been bribed. Vote held John Chapman, a shopkeeper in the borough, voter per- ^^^ ^^ elector, proved that he had promised to suaded by vote for Mr. Ackroyd ; but that afterwards of bribe to George Moxon had persuaded him to vote for andTs'o ^^' ^^^^^^^> telling him that Jabez WeUs had threatened offered to give £10 more than their value for rf *^astom ^°™^ P^^^ belonging to him (Moxon) and Allen by his Chapman, this witness's son. On cross-ex- emp oyers. amiaation, the witness added that a large number of his customers had threatened to leave his shop if he did not vote for Mr. Leatham, BOROUGH OF HUDDERSFIELD. 33 and that lie liad voted for Mr. Leatham mainly on account of Ms customers. Vote bad. JOSEPH HUGHES' CASE. August 5. Objected to on the ground of having been bribed. Mr. Pickering proposed to read over the evi- Evidence dence of Rowland Hoyle. ^l It/. Mr. Phinn objected, contending that the evi- witnesses dence must be given vivd voce, and that no other the note™ evidence could be read over than that of the™^y^^ voter himself, whose vote was then the subject support of inquiry («)_. _ _ ^^' The Committee decided that ia reference to such voter votes alleged to have been bad in respect of °^^ ^''™' bribery, the evidence already given before the Committee might be quoted by counsel, and that it was not necessary to recall the witnesses ; but that if the parties wished'to call any rebutting evidence, or desired to add anything to the evi- dence already given, they were at Kberty to do so. The evidence of Rowland Hoyle, and also Voter em- of the voter, which had been given previously ployed and in the case, was then read, by which it appeared messenger, that the voter had been paid a sum of 7s. 6d. by ^°^^ ^°°^- one James Hall, but that it was paid to him for acting as a messenger, and that he did so act. Vote good. (a) See Wareham case, Wolf. & Dew, 91. c 3 34 ELECTION CASES. JOE CROSSLET'S CASE. Objected to on tlie ground of liaving been bribed. , Promise of The Toter, it appeared, was an innkeeper in money for Huddersfield, and his house had been hired by one E. Frith, by a promise of £5. The walls of his house were placarded "Leatham's Non- Electors' Committee Rooms." Drink was sup- plied there to Josiah Thomas and others, which was charged by the voter to Mr. Leatham's coromittee, but which had not been paid. Vote bad. rooms bribery, and vote of owner bad. Vote of innkeeper bad on ground of bribery, when rooms are hired for no ob- ject, and refresh- ments sup plied to party hiring. GODFREY HUDSON'S CASE. Objected to on the ground of having been bribed. It appeared that rooms in Hudson's public- house in Huddersfield had been engaged by Jabez Wells as "Non-Electors' Committee Rooms," and that beer and refreshments had been provided there by the voter for forty or fifty men employed as watchers by Mr. Lea- tham's party. The house had been placarded , with bills as in the last case. It did not appear that the rooms had been used, either as com- mittee-rooms, or in any way whatever ; and Hudson swore that he had made no charge for the use of the rooms, but only for driak BOROUGH OF HUDDEESFIELD. 35 supplied to the watclmieii, who were non-elec- tors. Vote bad (a). t KENRY PARTRIDGE'S CASE. Objected to on the ground of having been bribed. It appeared that one John "Wilson had hired Hire of rooms in the Yoter's inn, as non- electors' com- ™?™f ^' ' voter s mittee-rooms for Mr. Leatham, and placards to honse, that effect were put up. vo e a . Vote bad. JOSEPH HEALEY'S CASE. Objected to on the ground of having been bribed. It appeared that Healey was a beerseller in Promise to Huddersfield, who had voted for Mr. Leatham. to house of That he had been taken to the poU by a person ^ publican named Hopkinson, who had told him that when Toters the election was over there would be some beer, f".^'^' ^°^ bribery. adding that on the Monday after there would be a good blow-out ; which Healey understood to mean that beer woidd be sent to his house to treat the voters with, and not for him to sell on his own account. Vote good. [a) The Committee divided upon the question that the vote is a good vote. Ai/e, 1 : Mr. Foster ; Noes, 4 : Colonel Cartwright, Mr. Cowper, Mr. Vance, Mr. Herbert. 36 ELECTION CASES. August 6. AQUILA PRIESTLEY'S CASE. Objected to on the ground of having been bribed. Vote bad The voter, it appeared, was the keeper of a ^.''^° - beer-house in Huddersfield, caUed the Noah's given m ' conse- Ark. He denied that he had ever had any beer proX°^ from Mr. CMe (a) except what he had paid for, of goods either in money or labour ; but it appeared that were after- ^6 had told One Joseph Driver that Cliffe had wards sent been to canvass him for Mr. Leatham, and had and not . t . /. paid for. promised him some ale if he went and voted ; that the ale was sent to him, an eighteen- gallon cask, and that he had never paid for it. Vote bad. JABEZ WELLS' CASE. Objected to on the ground of having offered a bribe. Vote of the Mr. Slade submitted that "Wells was proved of bribe*" to have promised to pay £10 more than the good. value of some pigs to a voter to induce him to vote, and therefore his vote ought to be struck off the poU ; and he cited the Wareham case, W. & D. 9 ; and the Bath case, W. & D. 153. Mr. Serjeant Pigott referred to Rogers on Election Committees, p. 192 (5th edition), and contended that the promisor of a bribe was not (a) Cliffe, it appeared, was a brewer, who regularly supplied Ms house with beer. BOROUGH or HUDDERSFIELD. 37 disqualified. The principle upon wMcli the votes of electors had been struck off the poU for bribery was, that in consequence of some pro- mise or actual receipt of a bribe, a conscientious vote had not been given; but that argument could not apply to the promisor of a bribe. Moreover, the 17 & 18 Vict. c. 102, which enacts that any person giving or promising any money or valuable consideration to a voter to induce him to vote, shall be guilty of bribery, and subjects him to certain penalties, does not say that he shall be disqualified from voting (a). Vote good (b). CHARLES COWGILL'S CASE. Objected to on the ground of having been bribed. The voter was a public-house keeper in Hud- Placarding dersfield, and his house had been placarded with of l^o'^se ' -"^ _ as corn- bills, " Mr. Leatham's Non-Electors' Committee mittee Rooms," which the voter had allowed to be ^"'^'^1^^^^ notluBg ' was done, (a) The 26 Yict. c. 29 now provides that " where ^jgn^ gyj, any person who has voted at any election is- found by dence of any committee to have been guilty of bribery or treat- bribery, ing, his vote shall be void, and may upon a scrutiiiy be payment struct off the list of voters, notwithstanding that the is made, name of such guilty person has not been included ia "°^ ^°y the Hst of voters to be objected to." (J) The Committee divided. Ai/es, 4 : Colonel Cart- wright, Mr. Cowper; Mr. Foster, Mr. Herbert ; Noe, 1 : Mr. Vance. a8 ELECTION CASES. posted up on the application of one Joseph Hopkinson ; but the voter proved that he had not asked for any payment on account of such placards upon his walls, nor had any of his rooms been used as a committee-room — the bills, as he alleged, having been put up on account of his being of Mr. Leatham's politics ; that he had received nothing for the bills, and had never had any intimation of anythiag beiug likely to be paid. Vote good. Mr. Pickering then abandoned the scrutiny. Costs re- Mr. Phinn stated that he should not go into ^^^^^- anjr recriminatory charges, Mr. Leatham re- maining in possession of the seat ; but he applied for costs, on the ground that the petition was frivolous and vexatious. The Committee decided that the petition was not frivolous and vexatious. Final reso- The Committee came to the following resolu- lutions. tions for report to the House : — 1. " That Edwa#d Aldam Leatham, Esq., is duly elected a burgess to serve in this present Parliament for the borough of Huddersfield." 2. " That it was proved to the Committee that George Moxon and John Chapman were bribed to vote for the said Edward Aldam Leatham, by Jabez "Wells, by the promise of the payment of £10 more than their value for pigs." 3. "That Joe Crossley, a publican, was bribed BOEOUGH OF HUDDEBSFIELD. 39 to vote for tlie said Edward Aldam Leatham, by- Edward Firth, by the promise of £5, under the pretence of engaging a non -electors' committee- room in his house, in which it was proved that none of the legitimate business of the election was carried on." 4. " That Godfrey Hudson, a publican, was bribed to vote for the said Edward Aldam Lea- tham, by having part of his house engaged under the same pretence, by Jabez Wells." 5. "That Henry Partridge, a publican, was bribed to vote for the said Edward Aldam Lea- tham, by having part of his house engaged under the same pretence, by John Wilson." 6. " That Joseph Ibberson, a publican, was bribed to vote for the said Edward Aldam Lea- tham, by having part of his house engaged under the same pretence, by Jabez WeUs." 7. "That Aquila Priestley, a publican, was bribed to vote for the said Edward Aldam Lea- tham, by the gift of half a barrel of beer, by Joseph Cliffe." 8. " That there was no evidence to show that the aforesaid acts of bribery, were committed with the knowledge and consent of the said Edward Aldam Leatham, or his agents." 9. "That the Committee have altered the poll taken at the last election for the borough of Huddersfield, by striking off the names of George Moxon, John Chapman, Joe Crossley, Godfrey Hudson, Henry Partridge, Joseph Ibberson, and Aquila Priestley, for the reasons aforesaid." 40 CASE VII. 1859. BOEOUGH OF BUEY. The Committee was appointed on the 27th of July, 1859, and consisted of the following Members : — Peter Blackburn, Esq., Stirlingshire, {Chairman.) Charles Salisbury Butler, Esq., Tower Hamlets. William Ewart, Esq., Dum- firies District. Sir Edward Clarence Kerri- son, Bart., Eye. George Sclater-Booth, Esq., Hants, North. Tetitionera ; — Electors. Sitting Member : — Eight Hon. Frederick Peel. Counsel for Petitioners : — Mr. Serjeant Parry, Dr. Wheeler, and Mr. Hop wood. Agents ; — Messrs. Holmes, Anton, and Co., Mr. Vallanoe, and Mr. Crossland, Counsel for Sitting Memier .• — Mr. Eodwell, Q.C., Mr. Clerk, and Mr. Millward. Agents : — Messrs. Gregory and Co. July 29. The Committee agreed to the first eight of the Prelimi- usual preliminary resolutions (a), including in futons?"' resolution 8 " the sitting member." (a) Ante, p. 11. BOROtJGH OF BURY. 41 The petition, after stating that at the last Petition, election the Eight Hon. Frederick Peel and Tho- mas Barnes, Esq., were candidates, and that the former was returned, alleged bribery, treating. Bribery, and imdue influence against the sitting member *''^?'*^''S. and his agents, and prayed the Hoxise to declare influence. his election and return to be null and void. Mr. Serjeant Parry opened the case. Upon Mr. Serjeant Parry proposing to call August 2. a witness to prove that a former witness had Evidence made a statement, viz., that he had received ^jt one's money for his vote, which he denied having made, °"'™ ^*" Mr. Clerk was heard to object to such evidence, missible. and contended that it would be mere hearsay evidence, and, moreover, be discrediting a wit- ness called by the petitioner himself. Mr. Serjeant Parry was heard in answer. The Committee decided " that the evidence was admissible." In the course of this day's examination Mr. Permia- Serjeant Parry applied to the Committee for th°\°nie Dermission to add the name of a person bribed of a briber, ,. , . , 1 ■■, ^ 1 -MT r\ r\ omitted by to the list, as havmg been bribed by Mr. O. U. mistake Walker, the chairman of the sitting member's ^^^^f^^ committee. list, re- The Chairman inquired whether the name had *''^^^'^- been alluded to in the course of the examination. Mr. Serjeant Parry stated that it had not, but that it had been inadvertently omitted from the Kst. 42 ELECTION CASES. Mr. Clerk objected to the amendment of the list. The Committee decided "that the name might not be inserted in the list" (o). What not From the evidence given in support of the sufficient petition, it appeared that a Mr. Thomas Parker evidence ^ ' '^'^ of bribery, had in four instances offered money to voters (£5 and £10), in one case taking out and lay- ing down the money, either to vote for the sit- ting member, or to abstain from voting agaiast him, or to go away from Bury during the election ; and that in one instance he came to the witness's shop after the petition was talked about, and asked him not io speak of the trans- action, as it would split their friendship. It did not appear that in any of the above instances, except one, Parker had paid any money. In that instance the witness (Robert Whittaker) stated that he told Parker that he had a debt of £3 10*., which he owed to one of the other side, and that he should not like to go against his creditor; upon which Parker put down £4, and witness gave him 10*. change. This witness, however, was rather shaken on cross-examination. It appeared also that Samuel Greenhalgh, a confectioner, who had lost custom since the previous election in 1857, by reason of exclusive dealing, mentioned this fact to Mr. John Open- shaw, an active supporter of Mr. Peel, when the (a) But see now 26 Vict. c. 29 {ante, p. 37, in notd). BOROUGH OF BURY. . 43 latter canvassed him ; Mr. Opensliaw replied that the witness must tell him about that after the election. The witness consequently wrote a letter %o Mr. Openshaw subsequently to the election, stating the above fact, and that he had suffered additional loss by having voted for Mr. Peel at the present election. "Witness subse- quently saw Mr. Openshaw, and requested him to lend him £120. Mr. Openshaw said he woidd see about it ; and subsequently a Mr. Binns called on Mr. Openshaw at witness's re- quest, when Mr. Openshaw stated that there had been a great deal of bother about the petition, and that nothing could be done for witness. But witness stiU expected that Mr.' Openshaw would fulfil his promise as a gentleman, and make him some remuneration. This Greenhalgh, it appeared, also canvassed a voter named LiUey. In the first instance he saw LiUey's wife, who complained that they had £10 worth of horse feed on hand, which they could not dispose of; and that if they did not sell it at the election they would never "get shut of it at all." Greenhalgh promised to find them customers, saying that he was authorized by Mr. John Walker to lay out £10 in horse feed. Mrs. Lilley said she supposed it was for her husband's vote, and Greenhalgh said " yes.'^ Greenhalgh subsequently mentioned to Mr. Peel's supporters, Mr. John Walker and Mr. Assheton, the vice-chairman of Mr. Peel's com- mittee, amongst others, about the horse feed, 44 , ELECTION CASES. saying that the Lilleys were inclined to support Mr. Peel ; and that, if they were encouraged, he thought they would. Subsequently to this Mr. Assheton called, and bought and paid f* three guineas' worth of the horse feed, saying he would send for it in a few days; but he did not in fact send for it till after the petition was talked about. Mr. John Walker also called, and was anxious to buy some. It also appeared that one George Furness, a hatter, had been canvassed by Mr. John Open- shaw ; and by him, and several others of Mr. Peel's supporters, promised custom if he would vote for Mr. Peel. Many of Mr. Peel's sup- porters did in fact, as the witness (Fumess) stated, buy hats of him, though they had not been his customers previously; and some of them would pay him £1 for them, though he said he would make his best for 16«. at the outside. The witness applied to Mr. R. Bridge and Mr. E. Oram during the election to lend him £100, and subsequently to John Clarke, who said he was going to the committee, and would men- tion it to Mr. H. Oram, the captain of the dis- trict ; that he had no doubt witness might have it; that they were willing to help him, but then witness must declare himself for Peel. In consequence of the above promises to sup- port him in his business, witness voted for Mr. Peel. It further appeared that a Mrs. Ellen Wyn- yard was canvassed by a Mr. Barlow, and asked BOROUGH OF BURY. 45 to put a price on lier husband's vote. She said nothing under £100 would do ; and Mr. Barlow then said he would send a Mr. Richard Hack- ing to her. Mr. Hacking (who was an active supporter of Mr. Peel's) accordingly called, and said it was too much, she must come down. He subsequently called on her husband by ap- pointment, and told him that they could not give anything before the election ; but that, if "VVynyard would trust to his (Hacking's) honour, they should not be losers, but gainers ; that he (Hacking) employed 1400 or 1500 hands ; that a word from him would go a long way; and that he would do his best to induce them to deal at "Wynyard's shop. The same Mr. Hacking, it appeared, can- vassed one Robert Lewthwaite. The witness (Lewthwaite) stated that he had had heavy losses, had been obliged to mortgage his house, and would rather remain neutral ; upon which Mr. Hacking said that if the witness was fast for money, and could find security, he would find bim money. James Hurst also deposed that he was ofiered a fat pig for nothing, by one James NuttaU, if he would vote for Mr. Peel. During this day's proceedings the Chairman Angoat 2. stated that as the counsel for the petitioners had concluded the cases of individual bribery, the Committee would be prepared to give their opinion upon this branch of the case the foUow- 46 ELECTION CASES. ing morning, wMch. might simplify and shorten the proceedings. Mr. Serjeant Parry reminded the Committee that with regard to the whole of his case he had, when the Committee directed the room to be cleared, still much evidence to offer. The Chairman stated that if the Committee had made up their minds as to the cases of bribery, the question of agency need not be gone into any further. The Committee then adjourned. August 3. Attheopening of the proceedings on thefollow- ing morning, the Committee, after deliberation, resolved, " That they are of opinion that bribery has not been proved in any of the cases brought before them so as to affect the sitting member, irrespective of the question of agency" (a).' Mr. Serjeant Parry stated that, after the decision of the Committee, it was hopeless for him to proceed further with the case of the petition ; but if the Committee were of opinion that cases of bribery were established, and that the sitting member was not affected by them. (a) It seems difficult to understand whether the Committee disbelieved the witnesses altogether as to the facts to which they deposed, or were of opinion that the facts deposed to did not amount in law to bribery. An analysis of the principal evidence is given above ; the witnesses, except in one or two instances, were not shaken in cross-examination, and most of them were confirmed by the evidence of others and by the general evidence given in the case. BOROUGH OF BURY. 47 he thouglit he could produce evidence to affect the sitting member by them. The Chairman intimated that the opinion of the Committee was, that no proof of agency as regarded the cases of bribery would affect the sitting member. Mr. Serjeant Parry said it would be useless for him, under those circum.stances, to offer the further proof of agency, which he was ia a con- dition to do. The Committee then came to the following Final reso- final resolution for report to the House : — lution. " That the Eight Hon. Frederick Peel, Esq., is duly elected a burgess to serve in this present Parliament for the borough of Bury." 48 CASE VIII. 1859. LEICESTERSHIRE, NORTH. The Committee waa appointed on the 27th of July, 1859, and conBisted of the following Members : — William Stirling, Esq., Perthshire, {Cliavrman^ Samuel Trehawke Keke- Tvitoh, Esq., Devonshire, South. James Haughton Langston, Esq., Oxford City. Petitioner : — Eev. William Astley Cave Browne Cave, an Elector. John Henry Gumey, Esq., Lynn Eegis. Sir Edmund Samuel Hayes, Bart,, Donegal. sating Members petitioned against: — Eight Hon. John James Eobert Manners and Edward Bourchier Hartopp, Esq. Counsel for Petitioner : — Mr. CMalley, Q.C., Mr. Power, Q.C., and Mr. Bell. Agents : — Messrs. Walmisley and Son, Mr. Hvmt, and Mr. Spooner. Cownselfor Siiting Members : — Mr. Rodwell, Q.C., Mr. Mundell, and Mr. C. G. Mere wether. Agents : — Messrs. Holmes, Anton, and Tumbull, and Mr. Sharkey. July ?9. The Committee agreed to the first eleven of the Prelimi- usual preliminary resolutions (a). nary reso- Intions. (a) Ante, p. H. LEICESTERSHIRE, NORTH. 49" The petition, after stating that at the last Petition, election the Right Hon. John James Eobert Manners, commonly called Lord John Manners, Charles Hay Frewen, Esq., andEdwardBourchier Hartopp, Esq., were candidates, and that Lord John Manners and E. B. Hartopp, Esq., were re- turned, allegedbribery, treating, and undue influ- Bribery, ence against Lord J. Manners and Mr. Hartopp and^^due respectively, and their respective agents, and influence, prayed the House to declare their or either of Hiheir elections and returns to be null and void. I Mr. (yMalley opened the case. ^ The evidence in the case relating to bribery ^was as follows : — It appeared that Messrs. Harris and Luck, What not J the acknowledged agents of the sitting members, evidence had 100 circulars printed previous to the elec- of bribery. ~tion, stating that there would be conveyances 1 waiting at the Pack-Horse Inn, Leicester, to take voters to Syston to poU, and requesting their attendance at the Pack-Horse Inn at 7.30 A.M. on the morning of the poll. There was a breakfast provided at the Pack-Horse Inn on that morning, of which many of the voters partook before going to the poU.. It was further proved that Messrs. Gray and Lewin had actively canvassed on behalf of the sitting members, that they distributed the above men- tioned circulars, and, in several cases, added that there would be a breakfast provided at the Pack-Horse Inn. In several instances it D so ELECTION CASES. appeared that the voters, on being canvassed by Messrs. Gray and Lewin, said that they could not vote unless they were paid for their loss of time ; to which Messrs. Gray and Lewin answered that they would be paid, or that it would be " made right." In one instance (Henry Kirk's) the witness was asked, at the same interview, whether he would be put down as a runner ; in another instance (Robert Finder's) Mr. Lewin said, in answer to the complaint that the witness could not afford to lose a day, " Very well ; we will put you down as an assistant runner." In one instance a packet of circulars was left at the voter's house, for the apparent purpose of dis- tribution, but without any specific instructions for such distribution, which, accordingly, was never made. In another case (George Smith's) the voter had, as it appeared, promised to vote for Mr. Freweu, but stated, on being canvassed, that he would not mind giving Lord J. Manners part of his vote ; to which Messrs. Gray and Lewin replied that, if he would give the rest of it for Mr. Hartopp, " it should be made right." The witness, in consequence of this, voted for the sitting members. In another case (John Palmer's) Mr. Gray canvassed the witness, who said he had promised to vote for Mr. Frewen, whose messenger he was ; upon which Gray said, " "We will make it all right, if you will only vote for Lord J. Manners and Mr. Hartopp ; you know we have the power to puU the string," tapping his pocket as he said so. LEICESTERSHIRE, NORTH. 61 About twenty or thirty voters, as it appeared, breakfasted at tbe Pack-Horse on the morning of the poll ; Mr. Luck and Messrs. Gray and Lewin were present, and circulars were given to the persons breakfasting, to distribute as they went along the road to the poU — and were, in fact, so distributed. The voters were subse- quently conveyed to Syston, and, after having refreshment at the Bull's Head there, the head-quarters of Lord John Manners and Mr. Hartopp, without paying for the same, poUed for the sitting members. Most of them remained' at Syston during the day, and returned to the Pack-Horse Inn, at Leicester, in the evening, where they again had some refreshment ; and subsequently were called into another room and there each paid 4s. for their services, by Mr. Lewin, who had previously gone into the room where they were assembled at the Pack-Horse Inn, and said, " AU those whom I have em- ployed as runners come this way, and I will pay you." The above speech was not heard by aU ; one witness (Edward Dalby) swore that, when he was paid, Mr. Lewin said it was for " his loss of time." No services were, for the most part, rendered by the people who were thus paid ; and in other cases, as it appeared, the services rendered were quite inadequate. The most performed by any one (John Bentley) was to go about thirty times between the poU-booth and the committee- rooms, a distance of about fifty yards, with the D 2 52 ELECTION CASES. state of the poll ; and some of those paid denied having been employed at all, except so far as to have received the circulars at the break- fast at the Pack-Horse Inn, for distribution, as above mentioned ; and one man (Charles Mea- sures) was so paid, who had gone with Mr. Erewen's party to Syston, and only made up his miad to vote for Lord J. Manners and Mr. Hartopp just before he polled. In another case William Rowley received the same sum, on representing to Mr. Lewin, after the election, that he had gone over to Syston in a trap at his own expense. There was no secrecy about the manner of the above payments, nor were the sums paid, as it appeared, substantially more than the persons would have earned had they been at their ordi- nary work ; but it appeared that in several in- stances Mr. Lewin had called on the witnesses after the election, and when the petition began to be talked about, and requested them to say nothing about the payment. The number who polled at Syston from Leicester was — for Lord J. Manners, 54 ; for Mr. Hartopp, 54 ; for Mr. Frewen, 157. No question was raised in the case as to the agency of Mr, Lewin or Mr. Gray, in addition to the circumstances bearing upon their agency, detailed above. It was proved that the first-mentioned cir- cular, which was in the handwriting of the admitted agent of the sitting members, was lEIOfiSTERSHIRE, NORTH. 63 ordered, called for, and paid for by Mr. Gray ; and it was also proved that Mr. Lewin acted as clieck-clerk for the sitting members at No. 1 booth at Syston, having a register with me- moranda on it in his hand, and that he had made objections to voters at the poll on their behalf. No witnesses were called on behalf of the sitting members. Mr. Power summed up the case on the part August 2. of the petitioner. Mr. Rodwell addressed the Committee on be- half of the sitting members. Mr. O'Malley was heard iu reply. The Committee remained in deliberation dur- August 3. ing this day. On the following morning they August 4. came to the following final resolution for report to the House (a) : — "That the Right Hon. John James Robert Final reso- Manners, commonly called Lord John Manners, and Edward Bourchier Hartopp, Esq., are duly elected knights of the shire to serve in this (oj) The Committee divided on the question, " That the Eight Hon. John James Robert Manners, com- monly called Lord John Manners, and Edward Botir- chier Hartopp, Esq., were, by themselves or by their agents, guilty of bribery at the last election for the Northern Division of the county of Leicester." Ai/e, 1 : Mr. Langston ; Ifoes, 4 : Mr. Gumey, Sir Edmund Hayes, Mr. Kekewich, Mr. Stirling. 54 ELECTION CASES. present ParKament for the Northern Division of the county of Leicester " (a). (a) The Oommittee divided. Ayes, 4 : Mr. Gumey, Sir Edmund Hayes, Mr. Kekewicli, Mr. Stirliag; Noe, 1 : Mr. Langston. 55 CASE IX. BOEOUGH OF MAIDSTONE. issg. The Committee was appointed on the 27th July, 1859, and consisted of the following Members :^ Alexander Murray Dunlop, Esq., Greenock, {Chairman.) Francis Bernard Beamish, Esq., Cork City. Sir James BuUer East, Bt., Winchester. George GrenfeU Glyn, Esq., Shaftesbury. George Ward Hunt, Esq., Northamptonshire, North. Petitioners : — Electors. Sitting Members : — ^William Lee, Esq., and Charles Buxton, Esq. Counsel for Petitioners.- — Mr. Slade, Q.C., Mr. Forsyth, Q.C., and Mr. Brodrick. Agents : — Messrs. Baxter, Hose, and Norton. Counsel for Sitting Members : — Mr. Phinn, Q.C., Mr. Johnson, and Mr. MiUward. Agents : — Messrs. Dyson and Co., Mr. John Case, and Mr. Thomas WeUs. The Committee agreed to the first eleven of the July 29. usual prelimiaary resolutions (a). ^^L. reso- lutions. The petition, after stating that at the last Petition. , (a) Ante, p^ 11. 56 ELECTION CASES. election 'Williain Lee, Esq., Charles Buxton, Esq., JohnWardlaw, Esq., and Egerton Yemen Harcourt, Esq., were candidates, and that the Bribery, two former were returned, alleged bribery, !™d '^lue treating, and undue influence against the sitting influence, members and their agents, and prayed the House to declare their election and return to be null and void. Mr. Forsyth opened the case. August 1. At the opening of this day's proceedings, Mr. Bribery ^orsyth applied to the Committee for permission not be to amend the bijjbery list which had been handed amended. -^^ -^^ inserting the name of Thomas Holloway as the person who had bribed James Marjoram in the place of the name of James Bromley, which now appeared in the list. Mr. Johnsonwas heard against the application. Mr. Forsyth was heard in reply. The Committee refused to allow the list to be amended. August 2. -^t the conclusion of the case, the Committee came to the following final resolutions for report to the House : — Knaireso- 1- "That "WiUiam Lee, Esq., is duly elected lutions. a burgess to serve in this present Parliament for the borough of Maidstone." 2. " That Charles Buxton, Esq., is duly elected a burgess to serve in this present Parliament for the borough of Maidstone." 3. " That Henry Smith, an elector, was BOEOUGH OF MAIDSTONE. 57 proved, on his own admission, to have been bribed by the sum of £10 ; but there was no proof that such act of bribery was committed with the knowledge or consent of the sitting members or their agents." 4. " That Richard Rose and John Honey, two other electors who voted for the sitting members, were, after having so voted, paid the sum. of 25s. each (a), as and for travelling expenses, by one Edward Mason; but that ia neither case was the payment made by the authority of the sitting members or of their agents." Mr. Phinn applied to the Committee for costs, Costs re- on the ground that the petition was frivolous ^^ ' and vexatious. The Committee decided that the petition was not frivolous and vexatious. (a) This stun did not appear to be more than the voters had expended, but it included a charge for loss of time and board. ■D 3 58 CASE X. 1859. CITY OF NORWICH. The Committee was appointed on the 27th July, 1859, and consisted of the following Members : — Thomas William Evans, Esq., South Derbyshire, (Chavrmaw^ John George, Esq., Wexford Comity. Hon. Henry George LiddeB, Northumberland. Charles Paget, Esq., Not- tingham. Christopher Eice Maunsell Talbot, Esq., Glamorgan- shire. Petitioners ; — Electors, against the return of Lord Bury and Mr. Schneider. Counsel for the Petitioners : — Mr. O'Malley, Q.C., Mr. Slade, Q.C., and Mr. Wilkmson. Agents: — Messrs. Baxter, Rose, and Norton, W. and R. Kittar, and Mr. A. J. Collins. Coimselfor the Sitting Members : — Mr. Phinn, Q.C., Mr. Welsby, and Mr. Garth. Agents : — Messrs. Biroham and Co., and Messrs. Miller, Son, and Bugg, July 29. The Committee agreed to the first eleven of Preiimi- the usual preliminary resolutions (a). nary reso- lutions. Petition. The petition, after stating that at the last election for the city of Norwich, William Henry (a) Ante, p. 11. CITY OP NOEAVICH. 59 Schneider, Esq., the Hon. W. Coutts Keppel, commonly called Viscount Bury, Sir Samuel Bignold, Knt., and Charles Manners Lushiag- ton, Esq., were candidates, and that the two former were returned, alleged bribery, treating. Bribery, and undue influence against the sitting mem- treating, bers and their agents, and prayed the House to influence"^ declare their election and return to be null and void. Mr. Slade, Q.C., opened a case of bribery, abandoning the charge of treating and undue influence. Mr. Phinn, Q.C., on behalf of Lord Bury, Jurisdic- objected, that as against him the Committee q°^^j^. had no jurisdiction to try this petition, because tee to hear the election now petitioned against had taken tion^ai-" place in April, 1859 ; and since that time Lord tiough Bury had accepted an office of profit xm.der the election Crown, whereby his seat had been vacated, and *^® ^f^" . '' , . Derretnrn- a new wnt had issued for a new election, pur- ed had va- suant to 6 Anne, c. 7, s. 26, by virtue of which gg*^ " the a new election had been held, and Lord Bury aooept- had been returned, and now sat in the House officgun-" as member for Norwich. That section directs der the a new writ to issue, as if the member accepting jj^^ been office were naturally dead; and, the seat not I'e-eiected, , . , . , . .... . and now being claimed m this petition, it becomes im- sat by material to inquire into the validity of Lord^'J^^^^^ Bray's return upon that election, inasmuch as, election whatever may be the decision of the Com- mittee, he must stiLl retain his seat. 60 ELECTION CASES. Mr. Slade. — The petition has been referred to this Committee under the powers of 11 & 12 Vict. c. 98, and by that statute they are bound to inquire into it ; they haye no power to say, "We have no jurisdiction to try the case." The same question arose in the Southampton case, 1 P. R. & D. 47, when the Committee decided that, the petition having been referred to them by the House, they were bound to proceed in the usual way. The Committee decided that they had juris- diction to try the petition. What not A voter named Eobert French proved that e^enotof^e had refused to vote for Mr. Schneider, al- bribery by leging that he had been iU-used by his (Mr. S.'s) member P^rty respecting a fire that had occurred on his personally, brother's premises ; and that Mr. Schneider then promised to send him a paper, and to lay the matter before the Committee; and that upon this condition he had voted for Mr. Schneider. Subsequently to the election, having received no letter from Mr. Schneider, and nothiag from the Committee, he wrote to Mr. Schneider, and received the following answer : — " I have not forgotten the melan- choly story you told me. I shall see Mr. Wilde (a) next week, when I will mention it to him, and forward through him my contri- (a) Mr. Wilde was the election agent for Mr. Sclineider. CITY OF NORWICH. 61 bution." Nothing, however, had been actually- paid by Mr. Schneider, either to the voter or to his brother. Other cases of bribery by the agents of the sittiag members were proved. At the meeting of the Committee on this day, juiy so.] Mr. Phinn stated, on behalf of the sitting members, that after the evidence of bribery which had been adduced, it was not their intention to defend their election. The Committee then agreed to the following Pinal reso- final resolutions for report to the House : — ntiona. 1. " That Henry William Schneider, Esq., was not duly elected a citizen to serve in this present Parliament for the said city and coimty of the city of Norwich." 2. "That the Right Honourable William Coutts Keppel, commonly called Viscount Bury, was not duly elected, by the election held upon the 30th April, 1859, a citizen to serve in this present Parliament for the said city and county of the city of Norwich." 3. "That the election held upon the 30th April, 1859, filr the said city and county of the city of Norwich, is a void election." 4. " That the said Henry William Schneider and Viscoimt Bury were (by their agents) guilty of bribery at the last-mentioned election." 5. " That it was proved to the Committee that David Storrer, James Gallant, John 62 ELECTION CASES. Parke, Eobert James Dixon, Cain Mann, James Dawson, John Walker, James Viall, Stephen Buxton, and James Steward had been bribed by the payment of" {the sums set opposite their names) ; " but that it was not proved that the above acts of bribery were committed with the knowledge and consent of the said Henry "William Schneider and Viscount Bury." 6. " That it appears to the Committee that Eobert French voted for the said Henry Wil- liam Schneider in expectation of receiving a contribution, alleged by the witness to have been {a) promised to him by the said Henry Wniiam Schneider, towards losses incurred by his brother by fire. It further appears that the said Henry William Schneider did, by a letter of the 28th of May, subsequent to the said election, undertake to forward, through his agent, a contribution; but that no contri- bution was actually paid. The Committee, however, are not satisfied, on the entire evi- dence, that this was intended as a corrupt agreement on the part of the said Henry WOliam Schneider." * {a) The Committee divided upon the question that the words " alleged by the witness to have been " stand part of the question. Ayes, 4 : Mr. Evans, Mr. Liddell, Mr. George, Mr. Talbot; Noe, 1 : Mr. Paget. The main question was then put, and carried upon a similar division. 63 CASE XI. BOEOUGH OF CHELTENHAM. 1859. The Committee was appointed on the 28th Jnly, 1859, and consisted of the following Members : — Eight Hon. Lord Stanley, Lynn Regis, (C'Aairmon.) , Edward FeUowes, Esq., Hnntingdonshire. William PoUard-TJrqnhart, Esq., Westmeath. Petitioners : — Electors. Francis Charles Hastings EusseU, Esq., Beds. Charles Wynne, Esq., Car- narvon District. Sitting Member : — Colonel Francis William Pitzhardinge Berkeley. Counsel for Petitioned : — Mr. Slade, Q.C., Mr. W. H. Cooke, and Mr. H. James. Agents : — Messrs. Baxter, Bose, and Norton, Mr. Grwinnett, and Mr. G. Michelwright. Counsel for Sitting Member : — ^Mr. Phinn, Q.C., Mr. Serjeant Pigott, and Mr. J. J. Powell. Agents : — Mr. K. H. Wyatt, Mr. Chesshire, and Mr. W. Boodle. The petition, after stating that at the last Petition, election Colonel Francis WiUiam Fitzhardinge Berkeley and Charles Schreiber, Esq., were candidates, and that the former was returned, alleged the improper reception and rejection of 64 ELECTION CASES. Colourable majority for Colonel Berkeley. Bribery, treating, and undue influence. Scrutiny, votes on various grounds, and tliat tlie majority for Colonel Berkeley was only colourable, the real majority of legal votes being for Mr. Schreiber. It charged the sitting member and his agents with bribery, treating, and undue influence, and finally prayed a scrutiny, and the seat for Mr. Schreiber. July 30. Petition must be signed by two elec- tors on tbe register. Where no legal regis- ter, peti- tion witb- drawn. Where petition charging bribery is with- drawn, Commit- tee will examine agents on both sides as to the grounds of the with- drawal. On the assembling of the Committee, ■ Mr. W. H. Cooke stated that within the last few days it had been discovered that the Town- Clerk of Cheltenham had omitted to sign the register, as he was required to do by the 6th Victoria, c. 18, s. 48., This had been omitted to be done for several years ; there was, conse- quently, now no legal register for Cheltenham in existence (a). It was necessary that the petition should be signed by, two persons who were on the register — i.e., the legal register; but no legal register beiag in existence, this requi- sition of course could not be and had not been complied with. Under these circumstances, he felt it would be useless to occupy the time of the Committee ; and he would, therefore, withdraw the petition. The Committee, after deliberation, decided to examine the agents as to the groimds of the withdrawal of the petition. The petition was then read. (a) But see Bogers on Elections (9th edition), p. 486- 88. And see 6 Yict. c. 18, s. 27. BOROUGH OF CHELTENHAM. 65 Mr. Slade stated that, after having examined the evidence, he was of opiaion that the charges of bribery were not of a gross character, but resolved themselves into the payment of the travelling expenses of voters, instead of pro- viding conveyance for them, as directed by the 21 & 22 Vict. c. 87. He therefore withdrew the charges of bribery, and did not propose to prosecute the petition further. The agents of the petitioners and sitting member were then examined by the Committee, who came to the following final resolutions for report to the House : — 1. " That Colonel Francis WiUiam Fitzhar- Final reso- dinge Berkeley is duly elected a burgess to serve in this present Parliament for the borough of Cheltenham." 2. "That, having examined the agents on both sides, in order to ascertaia the circum- stances under which the petition was withdrawn, the Committee are of opinion that the circum- stances attending the forbearance to prosecute the charges contained therein do not appear to call for any special remark." 66 1859. CASE XII. CITY OF LIMEEICK. The Committee was appointed on the 28th July, 1859, and consisted of the following Members : — James Milnes Gaskell, Esq., Wenlook, {ChawmoM.) Ealph WiUiam Grey, Esq., Liskeard. Allen EUiott Lookhart, Esq., Selkirkshire. Tavemer John Miller, Esq., Colchester. Meaburn Staniland, Esq., Boston. Petitioner: — Jaa. Spaight, Esq., an rmsuooessftil candidate, against the return of Major Gavin. Coimsel .- — Mr. Slade, Q.C., Mr. Welsby, Mr. Bonrke, and Mr. Lloyd. Agents : — Messrs. Holmes, Anton, and TumbnU. CoiiMsel for Major Qomin : — ^Mr. Phinn, Q.C., Mr. Serjeant Pigott, Mr. Gordon Allen, and Mr. Barry. Agents : — Mr. Baker and Mr. O'Donnell. July 30. The Committee agreed to the first eleven of tlie Prelimi- usual preUminary resolutions (a). nary reso- lutions. Petition. The petition, after stating that at the last election for the city of Limerick, Major George Gavin, Francis W. Eussell, Esq., and the petitioner, were candidates, and that the two former were returned, alleged that the majo- (a) Ante, p. 11. CITY OF LIMERICK. 67 rity for Major Gavin was obtained by vio- Violence lent, illegal, unconstitutional, fraudulent, and ^y™'™^" outrageous means ; tbat previous to, at, and during the election, an extensive, organized, premeditated, and connected system of violence, intimidation, riot, agitation, and outrage was established, by means of armed mobs ia the city, by Major Gavin and bis agents, for the purpose of terrifying voters, and deterring them from voting in favour of the petitioner, and to compel ;fchem by fear to vote for the said Major Gavin ; that inflammatory placards were posted in and iabout the city, caUing upon all persons be- longing to the Roman CathoHc religion to unite, and for ever put down Protestant as- cendancy, the petitioner, and the orange-jury- pacMng government of Lord Derby ; that on Insulting the day of polling the approaches to the polling- bating booths were crowded by such armed, tumul- voters. tuous mobs, who offered gross insults to the electors coming to vote for the petitioner ; that the electors who voted for the petitioner were assaulted, and put in fear of their lives, whereby many other electors were deterred from voting for the petitioner; that others were violently compelled to vote for Major Gavin. That, in consequence of such violent and tumultuous proceedings, the military and police were called out; but that such force was insufficient to prevent such mobs,, instigated by Major Gavin and his friends, from setting all order and authority at defiance ; that but for this system 68 ELECTION CASES. of riot, violence, threats, and intimidation, the petitioner would have been returned. It then Bribery, alleged bribery, treating, and undue influence Ind undue against Major Gavin and his agents, and influence, prayed, the House to declare his election and return to be null and void, and to declare Major Gavin incapable of sitting in the present Parliament. August 1. Mr. Slade opened the case. The name Mr. Spaight, the petitioner, being called, aotive^u " stated that on the day of polling he saw some the eieo- of the Roman Catholic clergy, after 2 o'clock, be asked, take an active part in the proceedings of the although election. He was then asked, who they were. ne belongs ,, „ ' i • t t i to a class, Mr. Phinn objected that no clergyman was none of charged with undue influence, there being none whom are ... mentioned mentioned in the list. S peraons ^^- Bourke urged that this was a part of the who have general case, and undue in- The Committee decided that the question fluenoe. might be put. Commit- not in- The witness was then examined as to the qmre mto difficulty he had in getting witnesses to come reasons . n i ... why a m support 01 the petition, m consequence of the voter IS representations made to them of the dangers not pro- ^ . _ ° duoed as a they would incur if they gave evidence against although *^® sitting member ; and he named David Meany it may be as a person whom he was anxious to produce, of intimi- ^^^ ^^^ entreated that he might not be ia- dation. volved in it. CITY OF HMERICK. 69 Mr. Phinn objected to any inquiry into matters whicli occurred two months after the election. The Committee thought it was not desirable to go iato these details if they could be avoided, and that they could not go into the reasons why the petitioner could not produce the witness. A direct application ought to be made to them for that purpose, if his evidence were necessary. It was proved that up to 1 or 2 o'clock on what not the poUing-day everything went on quietly, ^i^ffioient but about that time the people began to coUect riot and in mobs in different quarters of the town ; and, ^^^^ ^' at a place called Matthew's Bridge, which was avoid the in the road to the principal polling-booth, a considerable disturbance took place by a crowd of persons armed with stones, who were actively pelting cars going to the poUing-booth with voters for the petitioner. The military and poKce were called out, the Riot Act was read, and the military were ordered to charge and clear the bridge, which they did. It further appeared that the sitting member was on horseback duriag the poUiag-day, visitiag the different booths, and, according to the state- ment of some of the witnesses, was accompanied by crowds of noisy and disorderly persons, whom he was encouraging; but this he distinctly denied, saying that he had not hired any mob or any leaders, and that no disorderly pro- ceedings had taken place in his presence during the hours of poUing. No application was ever 70 ELECTIOX CASES, made to the Sheriff, who was present, to ad- journ the poll, nor was any complaint made to him that voters were unable to vote. The evidence as to the amount of disturbance in and about the polling-booth was very con- flicting, some of the witnesses saying that it was the quietest election ever known at Lime- rick, and that, in fact, a larger number of voters had polled than had ever been known before ; whilst others deposed that voters could not get to the polling-booth until the way had been cleared by the military and police. August 4. The Committee came to the following reso- FinaJ reso- lutions for report to the House : — 1. " That Major Gavin is duly elected a citizen to serve in this present Parliament for the county of the city of Limerick." 2. " That certain riotous and tumultuous pro- ceedings took place at and after the last election for the said city ; but that it was not proved to the Committee that such proceedings took place at the instigation or with the sanction of Major Gavin or his agents." 3. " That no application was made to the retumiag officer for an adjournment of the poll in consequence of such proceedings, and that it was not proved to the Committee that they were of. such a duration or of such a character as to prevent the votes of the electors from being recorded," 71 CASE XIII. BOROUGH OE PEESTON. 1859. The Committee was appointed on tie 2nd day of August, 1859, and oonsisted of tke following Members : — John Henry Philipps, Esq., Haverfordwest, (Chairman,.) Hon. George Henry Charles Byng, Middlesex. Kichard Davey, Esq., West Cornwall. Abel Smith, Esq., Hert- fordshire. Lieut. -Colonel Wynn, Mont- gomeryshire. Petitioners: — 1. Electors, against the return of Mr. Grenfell. 2. Electors, against the return of Mr. Cross. Sitting Memhera petitioned against : — Charles Pascoe GrenfeU, Esq., and Eiohard Assheton Cross, Esq. for \st Petition a/nd JR. A. Cross, lEsq. : — Mr. Knowles, Q.O., and Mr. Johnson. Agents : — Messrs. Gregory and Co., Mr. Gilbertson, Mr. Watson, and Mr. Turner. Counsel for 2nd Petition and C. P. Cfrenfell, Ssq. .— Mr. Phinn, Q.C., Mr. Serjeant Pigott, and Mr. Barry. Agents: — Mr. Baier.JMr. W. J. Plant, and Mr. Goodier. The Committee agreed to tte first eleven of August 4. tlie usual preKmiaary resolutions (a). Prehmi- ^_ lutions. (a) Ante, p. 11. 72 ELECTION CASES. lat peti- The first petition (of James Carr and others), '°"" after stating that at the last election Eichard As- sheton Cross, Esq., John Talbot Clifton, Esq., and Charles Pascoe Grenfell, Esq., were candidates, and that R. A. Cross, Esq., and C. P. GrenfeE, Bribery, Esq., were returned, alleged bribery, treating, anT*undue ^^^ nndue influence against Mr. GrenfeU and influence, his agents, and prayed the House to declare his election and return to be null and Toid. 2nd peti- The second petition (of John Hawkins and others), after stating as in the first petition, Bribery, alleged bribery, treating, and undue influence and imd'ue against Mr. Cross and his agents ; that one of' influence, the booths was not open till nearly one hour later than that directed by law, and was not Poll-booth kept open the statutable time ; and that, in con- not open 1 J. 1 j_i 1 at the sequence, several voters who were there ready statutable to Tote were tmable to vote, and did not vote at the said election. It prayed the House to declare the election and return of Mr. Cross to be nuU and void. Mr. Knowles opened the case of the first petition. What not On the question of the agency of one Edward evidence of -^^^Isr, it was proved that Mr. Ambler acted agency, as the chairman of the local committee for con- ducting the election of Mr. GrenfeU in Trinity Ward. These local committees were not regu- lar executive committees, but were composed of any political friends of Mr. GrenfeU who chose BOROUGH OF PRESTON. 73 to attend the meetings ; and each Ward carried on the business of the election in its own way, appointing its own clerk, canvassers, &c., inde- pendently of the other Wards, and without any interference on the part of Mr. GrrenfeU. On the poUing-day Mr. Ambler was at the Trinity Ward committee-rooms, giving out the voting papers received from the central committee- room. He also paid the canvassers, and the clerk of the Trinity Ward committee-rooms, after the election, with money paid to him by Mr. Grrenfell's agent for election expenses, through the election auditor. But this, it ap- peared from the election auditor's evidence, was done in consequence of the election auditor suggesting to Mr. GrenfeU's agent for election expenses that the name of some person in each ward should be given to him, in whose favour he might draw the necessary cheques (a). Mr. Knowles submitted that sufficient proof of agency had now been given to admit evidence of treating [b). Mr. Serjeant Pigott was heard to contend that no sufficient evidence of agency had yet been given. Mr. Knowles was heard in reply. (as) The oflSce of election auditor is abolished by 26 Vict. c. 29. (6) Treating may now be proved before agency. 26 Vict. c. 29, s. 8. £ 74 ELECTION CASES. Mr. Phinn was further heard on the question of agency. The Chairman, after the Committee had de- liberated, stated that they were of opinion that there was not sufficient evidence of agency to admit of proof of treating («). wiiat Mr. Grenfell's agent for election expenses was evidence ^^'^^ called, and on his proving that Mr. Ambler of agency, was duly appointed in writing Mr. Grenfell's agent for the expenses incurred previous to the nomination ; that he was in communication with the chairman of the central committee from the commencement of the canvass up to the day of election ; and that he was the person in Trinity Ward to whom he (Mr. Grenfell's general agent for election expenses) looked as the re- sponsible person to incur expenses on Mr. G.'s behalf, and furnish an account of them in Trinity "Ward ; The Committee intimated that sufficient evidence of Mr. Ambler's agency had been given. Paying The evidence of bribery related principaUv canvassers , .i io i,-,, notbri- ^o ^^^ payment oi canvassers, who, although bery. bond fide employed, and having left or obtained (a) The Committee divided on the question, " That there is sufficient evidence of agency to enable the Committee to enter upon the charge of treating." Ayes, 2: Colonel Wynn, Mr. Smith; Noes, 3: Mr. Byng, Mr. Davey, Mr. Philipps. BOROUGH OF PRESTON. 75 leave from their ordinary callings for the pur- pose of canvassing, ia some cases, as it appeared, unknown to the parties employing them, ne- glected their duty, and spent the money given them as canvassers in the various public- houses. The evidence of treating related principally to What not refreshment ordered for the canvassers after their e^^eno°e*of day's work was done at different pubKc-houses, treating. there not being room for them at the committee- rooms, although it appeared that in some cases, unknown to Mr. Grrenfell's party, they had taken in their friends, who were not canvassers or otherwise employed, to partake of the same. At the conclusion of the case of the first peti- Angust 8. tion, the Committee came to the following final resolutions for report to the House : — 1. "That Charles Pascoe GrenfeU, Esq., is Final reso- duly elected a burgess to serve in this present ^"^4^),^^°' Parliament for the borough of Preston " (a). 2. " That it was proved to the satisfaction of the Committee, that an attempt was made to bribe Thomas Catterall by the offer of thirty shiUings, by Robert Constantino ; but it was not proved that this attempt was made with the (a) The Oommittee divided upon the question, " That C. P. Grenfell, Esq., was, by his agents, guilty of bribery at the last election for the borough of Preston." A:ffes, 2: Mr. Smith, Colonel Wyrm; Noes, 3 : Mr. Byng, Mr. Davey, Mr. Philipps. E 2 76 ELECTION CASES. knowledge or consent of the said Charles Pascoe Grenfell, Esq., or his agents." 3. "That a payment of one pound, in eight half-crowns, was made hy Thomas Eydings to Thomas Taylor, to induce him to record his vote for the said Charles Pascoe Grenfell, Esq. ; but it was not proved that this payment was made with the knowledge and consent of the said Charles Pascoe Grrenfell, or his agents." 4. " That it appeared to the Committee that an objectionable system of employing paid can- vassers has prevailed for many years in the borough of Preston, amongst whom persons having votes are included ; but that neither the number of the voters so employed on the present occasion, nor the circumstances under which they were engaged, lead to the conclusion of any systematic attempt to influence the elec- tion by their employment." and peti- On the parties being called in, Mr. Phinn stated that the evidence in sup- port of the petition against Mr. Cross being of a similar character to that which the Committee had already heard and decided to be insufficient, he did not propose to proceed further with the petition agdnst Mr. Cross. Final reso- The Committee then came to the following 2nd°peti. ^^^ resolution for report to the House : — tion. 5. " That Eichard Assheton Cross, Esq., is duly elected a burgess to serve in the present Parliament for the borough of Preston," 77 CASE XIV. BOROUGH OF BEVERLEY. 1859. The Committee was appointed on the 3rd August, 1859, and consisted of the following Members :— John Mqrgan Cobbett, Esq., Oldham, (^Chairman,') Charles Cavendish Clifford, Esq., Isle of Wight. William James Garnett, Esq., Lancaster. Charles Jasper Selwyn, Esq., Cambridge University. John Benjamin Smith, Esq., Stockport. PeiiUouers: — 1. Electors, against the return of Mr. Walters. 2. Electors, against the return of Mr. Edwards. 3. Edward Auchmuty Glover, an unsuccesB- fiil candidate, against both sitting mem- bers. 4. Electors, against the return of Mr. Edwards. Counsel for Mr. JSdwards hostile nor Mr. Forsyth objected, and contended that he unfair (o). could not be called to contradict the evidence given by the last witness, unless it was clear that such witness was hostile, and had given his evidence unfairly, which he contended was not the case. Mr. Serjeant Pigott. — The object of a com- mittee like the. present being to get at the truth, it is impossible strictly to apply the rules of evidence as laid down by the courts of law, and therefore the witness ought to be called to con- (a) See Bury case, ante, p. 41. 86 ELECTION CASES. tradict a former witness in an important par- ticular material to the merits of the inquiry. The Committee decided that the witness might be called to prove that the fact was not as the former witness had stated. Upon a John Biggins, a voter, proved that he had question of ggj^Q to ask for employment as a runner at the bribery by p . . employ- j oint committee-rooms of Messrs. Clay and Lewis, messeu- * ^^^ ^^^ ^^'^ *^^* *^^y were full : upon which ger.a wit- he went to one of Mr. Hoare's committee-rooms, went first ^^^ ^^^ there employed by the Committee, and to the paid £1 2s. 6d. for his attendance during the tee-rooms Week of the election. He had voted for Mr. of one Hoare. On his re-examination by Mr. E.odwell, party, and i t o • then, hav- he was asked, " Supposmg you had got employ- to^obtefn ™-®'i* ^* ^^- Clay's committee-room, should you employ- have voted for Mr. Hoare ?" Sere, to ^^- Forsyth objected to the question, on the those of the ground that Mr. RodweH was putting a hypo- side, may thetical case to the witness, and then asking him be asked }^q^ \q should vote under such circumstances, his mten- , . - . „ . tion in so which it was not competent for hmi to do. domg. jfj.^ Jiodipeii contended that, as the witness had offered his services first to Mr. Clay's com- mittee, and then, on their refusal, had offered himself to Mr. Hoare's committee, and had voted for Mr. Hoare — not having, as he said, promised his vote to any candidate, the question was admissible, with the view of ascertaining what his object was in going to Mr. Clay's com- mittee-room. BOROUGH OF KINGSTON-UPON-HTJLL. 87 - The Committee decided that the question as proposed could not be put, hut that the witness might be asked what his intentions were when he went to Mr. Clay's committee-room. The facts proved iu the case appear sufficiently August 11. in the followingfinal resolutions of the Committee I'inai re- which were reported to the House :— solutions. 1. "That Joseph Hoare, Esq., is not duly elected a burgess to serve in this present Parlia- ment for the borough of Kingston-upon-Hull." 2. " That the last election for the said borough of Kingston-upon-Hull, so far as regards the election of Joseph Hoare, Esq., is a void election." 3. " That it has been proved before the Com- Bribery by mittee, that_at the last election for the said ''"i""''^"® employ- borough as many as four hundred and eighty- ment of seven persons were employed on behalf of the ™ ^8^^"^" said Joseph Hoare, Esq., and four hundred and ninety-three persons on behalf of Messrs. Clay and Lewis, as messengers, canvassers, clerks, booth agents, and check-clerks." 4. " That of the persons so employed on behalf of the said Joseph Hoare, Esq., more than three hundred persons appear to have been voters for the said borough, and to have received from the agents of the said Joseph Hoare, Esq., in respect of such employment, sums varying in amount from 2s. 6rf. up to £3 5s." 6. " That amongst the voters so employed were the following persons, to whom the several 88 ELECTION CASES. sums were paid wliich are set opposite their names " (a) : — 6. " That some of the said voters were allowed to continue at their usual work during all the time of their employment, and to come only at their dinner-hour and in the evening, but, never- theless, were paid at the same rate as those who attended all day ; some were so old and infirm as to be incapable of rendering any efiicient service ; some were paid for a longer number of days than that for which they were engaged, or during which they were in attendance ; while none of them appear to have rendered adequate services or work for the payment which they received." 7. " That it does not appear to the Committee that any act of bribery was committed with the knowledge or consent of the said Joseph Hoare, Esq., who appears to the Committee to have always shown the greatest anxiety to check any irregular proceedings in the conduct of the election." (a) The names of the persons were Francis Smith Jackson, John Clarkson, John Robinson, John Turpin, WiUiam Shakesby, John Duncan, Thomas Duncan, John rrancis Watson, Percival Beautyman, Charles Welcome Beautyman, Thomas Goold, William Com- mander, Eichard BoUiston, James Fumiss, George Johnson, John Lankester, Robert Toung, George Newmarch, WiUiam Tait, George Lockwood, George HoUingsworth, Thomas Linsey, John Biggins, George Brown, and James Guy. BOROUGH OF KINGSTON-TJPON-HTJLL. 89 8. " THe Committee desire to draw tie atten- tion of the House to tlie circumstance that Mr. William Henry Moss, election auditor for the borough of Hull, appeared as agent for the petitioner, and that he took an active part in obtaining evidence in support of the petition : it appears to the Committee that such a course of proceeding is open to grave objections " (a). (pt suffi- as a committee-room on behalf of the sitting insert the members. If "f °f . the land- Mr. Power objected to this evidence bemg lord of given in order to establish a case of treating, '^® ^j. because only the name of Joseph Gallery was houseonly, inserted in the treating Hsts handed in; and the ^^^ ^f name of the public-house at which the treating tte inn or was alleged to have taken place was not men- house tioned as it ought to have been, the rule being ™°s* ^'^° , ,. -n • 11/ \ be given. that such lists must speciiy time and place [a). (a) See JRogers on Eleetions (9th ed.), p. 447. 92 .ELECTION CASES. Mr. Rodwell contended that the object of handing in such lists was to give information to the other side as to what instances of treat- ing it was proposed to rely upon, and, inasmuch as in this case the name of the landlord of the house was given, and the time of treating also, sufficient information was thereby afforded. Mr. Power having repHed, The Committee decided that evidence of treat- ing at the "Weavers' Arms could not be gone into, and refused to amend the lists. Payment With reference to the payment of travelling ling ex- ' expenses, it was proved that, before payment of penses and travelling expenses was promised to any voter, time not the question of the legality of such payment was bribery, raised amongst some of the supporters of the sitting members, at their committee-room, when Mr. Jackson, Mr. Mounsey, and other lawyers were present ; and the majority were of opinion that such expenses were legal payments [a). Upon this, Mr. "Wright, a solicitor at Carlisle, the conducting agent for the sitting members, who had been informed that one Thompson had promised his vote to the sitting members, and that he was then working about fifty miles off upon the railway, wrote to him the following letters : — (o) See ante, p. 31 {in nota). CITY OF CARLISUS. 93 " To Mr. Jas. Thompson, "Barrasford Post Office. " Hexham, 20 Apra, 1859. "Dear Sir, " The election at Carlisle will take place the latter end of next week. I understand you will support Sir James Graham and Mr. Lawson, the Kberal or the blue candidates. Write to say- where a letter will find you the beginning of next week, and I will write you on what day to come. We will, of course, pay your expenses. " Yours faithfully, " Thomas Wright." " CarKsle, 26 April, 1859. "Dear Sir, " You must be in Carlisle on Thursday night first, as the election will take place on Friday first; you must not fail to be here. On arrival caU upon me at the Cofiee House Hotel. " Yours tndy, " Thomas Wright." These letters were received by Thompson, who came to Carlisle and voted for the sitting members ; but his expenses had not been paid, and the letters were afterwards given up by him to Mr. John Irving, by whom they were produced before the Committee. Thompson swore that a part of the second letter had been cut off since he gave them up (a) ; and he (a) This letter was upon half a sheet of paper. 94 . ELECTION CASES. further stated that, in answer to the one he received first, he had replied, saying he should not come without beiag paid for his expenses and for loss of time, in answer to which he received the letter dated April 26. Mr. Wright swore that he had never seen any letter from Thomp- son asking for his expenses, and further, that the letters now produced were posted and sent by him in their present condition and in the order of their date. Mr. Irving also stated that he had produced the two letters before the Committee in exactly the same condition as when he received them, and that he had only obtaiaed them from Thompson to produce them to the Committee, that a different version of their contents might not be given. It further appeared that a sum of £1 had been paid by a Mr. Jackson, an agent of the sitting members (a), to a voter named M'Pher- son, under the following circumstances : — At the time of the election the voter was working as a brickmaker about thirteen miles from Carlisle, having several men and boys in his employment. Whilst there he was canvassed for his vote on behalf of the sitting members by a Mr. E. Henderson, to whom he promised his vote, and then asked whom he ought to apply to for his expenses, to which Henderson replied that he would pay them if no one else (a) It appeared lie had the management of the con- veyajioes for the use of the out-Toters. CITY OF CARLISLE. 95 did. The evidence was conflicting upon the question whether he then said anything about remuneration for the loss of time of himself and men. On the day of election M'Pherson was met at the station by Henderson, who went with him to the poll, and afterwards, when he (M'Pherson) told Henderson that he ought to be paid about 24s. for his expenses, and for the loss of time of himself and men, Henderson went to the committee-room at the Coffee House Hotel, and left the Toter with Mr. Jackson, telling him that he wanted his travelling expenses. Jack- son then asked him what his expenses were, and he (M'Pherson) made the amount from 17s. to 19s. The railway fare was foimd to be about 2s. Jackson stated that he had given the man a sovereign, he having stated that he was a strug- gling man ; and that he had given it to him more out of charity than anything else. About a week after the election, the money was got back from the voter by Mr. Jackson, he having received a letter from Mr. "Wright, raising a doubt whether the payment of travelling ex- penses to voters was in fact legal. In support of the charge of treating, it was What not proved that Mr. Jackson had invited about a evident* score out- voters to breakfast at his house on the oftreating. day of the election ; that they came, and were afterwards driven from thence direct to the poll- ing-booth, in conveyances provided for that pur- 96 ELECTION CASES. pose from Carlisle ; but it appeared that all the persons so invited had long before promised their votes to the sitting members ; that all of them lived in Jackson's neighbourhood ; that most of them were old supporters of the liberal cause ; that, as to some of them, they would have to pass Mr. Jackson's house on their way to thei poll, and, as to others, that it was about a mile out of their way to come to Oak Bank, where Mr. Jackson resided. It was further proved that Mr. Mounsey, the solicitor of Sir James Graham, but who was not paid for his services at the election, had invited four out- voters to a breakfast at his house on the way to the poll, such out-voters having all promised their votes about three weeks before the invitation was given, and all being resident in the neighbour- hood of Mr. Mounsey's house. Feb. 25. Mr. Power, on behalf of the sitting mem- bers, contended that the payment proved to have been made by Jackson to M'Pherson was made bond fide, and without any intention to contravene the Act of Parliament, either on the part of the giver or 'the receiver, and, therefore, it could not be bribery ; because, to make it so, it must have been given with the corrupt intention of inducing the elector to vote differently than he otherwise would have done ; if it was not given corruptly, then the giving the money would not be the offence of bribery within the meaning of the Corrupt Practices CITY OF CARLISLE. 97 Prevention Act, 17 & 18 Vict. c. 102, s. 4. He referred to tlie Cambridge case, "Wolf, and D. 35 ; Ipsvnch case, "Wolf, and D. 173, 177 ; Cooper V. Slade, 6 H. of L. Cas. 746 ; Rogers on Elections (9th ed.), 334, 335. Tlie witnesses for the sitting members having Feb. 27. been called and examined, and also the sitting members themselves. Sir Frederick Slade replied on behalf of the petitioners, and argued that, by the decision of the House of Lords in Cooper v. Slade, the word " corruptly " must be taken to mean what the law forbids ; and, as the giving of money by Jackson to a voter was against the meaning and intention of the Act, it was in itself an act of bribery, which rendered the election void. The Committee then came to the following Feb. 28. final resolutions : — 1. " That the Right Hon. Sir James Robert Final re- Graham, Bart., is duly elected a citizen to °° ^*^°"s- serve in this present Parliament for the city of Carlisle." 2. " That "Wilfrid Lawson, Esq., is duly elected a citizen to serve in this present Parlia- ment for the city, of Carlisle " (a). (a) The Committee divided on both these resolutions. Ayes, 3: Mr. Oobbett, Marqtiis of Hartington, Mr. Crawford ; Noes, 2 : Lord Robert Montagu, Colonel Pakenham. These two resolutions were reported to the House. F 98 ELECTION CASES. 3. " That James M'Pterson was paid the sum of £1 by "William Jackson, an agent of the sit- ting members ; but that such payment was not made from any corrupt motive " (a). {a) The Committee divided upon the question that the words " but that such payment," &c., be added. Ayes, 3 : Mr. Oobbett, Marquis of Hartington, Mr. Crawford; Noes, 2: Lord Robert Montagu, Colonel Pakenham. 99 CASE XVII. BOROUGH OF WEYMOUTH. i860. The Committee was appointed on the 21at of February, 1860, and consisted of the following Members : — Edward C. Egertou, Esq., Macclesfield, (^Chairman.) William Patrick Adam, Esq., GlEUjkmannan. John George Dodson, Esq., East Sussex. Sir Edward Gfrogan, Bart., Dublin City. Hon. Frederick Lygon, Tewkesbury. Fetitioner .- — William Lookyer Ereestun, the defeated Candidate. Coimael for the Fetitioner : — ^Mr. Phinn, Q.C., and Mr. Serjeant Pigott. Agents : — Mr. Baier, Mr. Charles, amd Mr. John Tizard. Coimselfor the Sitting Members : — Sir Frederick Slade, Q.C., Mr. Pickering, Q.C., and Mr. W. H. Cooke. !«; — Messrs. Baxter, Bose, and Norton, and Mr. Spofforth, Mr. Frederick C. SteggaU, Mr. Richard Hare, and Mr. Alfred CorneKuq. The Committee agreed to tlie first nine of the usual preliminary resolutions (a), omitting in re- solution 3 the words, " or offers or promises of money or other valuable consideration," and the words, " or to whom such offers were so made." (a) Ante, p. 11. F 2 100 ELECTION CASES. Petition. The petition, after stating that at the last election Lord Grrey de Wilton, Eobert Brooks, Esq., Robert James Eoy Campbell, Esq., and the petitioner, were candidates, and that the Bribery, two former Were returned, alleged bribery, and*undue treating, and undue influence against the sit- influence. tiug members and their agents. It complained of the improper rejection and reception of votes upon various grounds, and it prayed the House to declare the election of the ' sitting members to be null and void. Mr. Phinn opened a case of bribery. The evidence given in support of the petition was, in the main, of the most contradictory and unsatisfactory nature. In the only cases in which the evidence given of acts of bribery seemed credible, the cases either broke down or the evidence of agency was exceedingly weak, only amounting to the alleged agents being seen occasionally going in and out of the committee- room on the day of the election in common with hundreds of others, being seen occasionally can- vassiug in company with the sitting members, and being active in getting up voters to the :. poll- No witnesses were called on behalf of the sitting members. Feb. 28. At the conclusion of the case the Committee came to the foUovring final resolution for report to the House : — BOROUGH OF WEYMOUTH. 101 " That Robert Brooks, Esq., and Arthur Pinal reso- Herhert Edward HoUand Grey Grosvenor, ^''*'°"- commonly called Viscount Grey de Wilton, are duly elected burgesses to serve in this pre- sent Parliament for the borough of Weymouth and Melcombe Eegis." 102, CASE XVIII. I860. ROSCOMMON" COUNTY. The Committee was appointed on the 22nd February, 1860, and consisted of the following Members : — Alexander Murray Dunlop, Esq., Grreenook, (fihairmoM.') Hon. Gerard James Neil, Rutlandshire. Henry Pease, Esq., South Durham. John St. Anbyn, Esq., West Cornwall. Patrick Boyle Smollett, Esq., Dumbartonshire. petitioners i — Electors, complaining of the undue election and return of Captain Thomas William Goff. CovMselfor the Petitioners : — Mr. O'Malley, Q.C., Mr. Phinn, Q.C., Mr. Mundell, and Mr. O'Dowd. Agents : — Messrs. Hobnes, Anton, and Tumbull, and Mr. Sharkey. Counsel for Captain, Goff: — Sir Frederick Slade, Q.C., Mr. Forsyth, Q.C., and Mr. Burke. Agents: — Messrs. Baxter, Bose, and Norton, and Mr. Henry French. Feb. 24. The Committee agreed to the first eleven of Prelimi. nary res lutions. Prelimi. ^^ usual preliminary resolutions (a). nary reso- "■ •' ^ ' (a) Ante, p. 11. ROSCOMMON COUNTY. 103 The petition, after stating that the petitioners Petition. were registered electors for the coiinty of Ros- common, and voted at the last election, when Colonel Fitzstephen French, Captain Thomas WiUiam Goff, Edward King Tenison, and Patrick Dignam, Esqrs., were candidates, and that the two former were returned, alleged Bribery, bribery, treating, and imdue influence against and undue Captain Goff and his agents, before, at, and>^i^e°ce. during the election. It then alleged that, after Bribery the teste of the writ of summons to Parliament, ^^®/ *® . _ , teste oi by virtue whereof the said election was held, writ. Captain Goff, his friends, agents, and persons employed on his behalf, did directly and in- directly promise and give money, meat, drink, &c., to voters, in order that Captain Goff might be elected, and also for being elected. It then concluded by praying the House to declare the election and return of Captain Goff to be null and void. Mr. CfMalley opened a case of bribery against Captain Goff and his agents, by an extensive system of hiring cars from voters nominally for the purpose of bringing up country electors to the poU, but which cars were not in fact either used or required, and also by the hiring of houses for lodging the electors ; and a case of treating by providing meat, drink, and enter- tainment to electors at the houses where they were lodged in the towns of Eoscommon, Boyle, Castlereagh, and Athlone. 104 ELECTION CASES. Feb. 27, During the progress of the first two days' When bills sittings of the Committee, it appeared by the evi- sent in to dence of the election auditor, and of persons who the agent j^ad sent in their bills to the conducting agent sitting for Captain Gofi", that none of these bills had member (,qj^q before the election auditor ; that his nave not been duly accounts Were not yet made up ; that he had to'^the not received a list of the different sums paid election directly by the conducting agent of Captain Groff the Com- to different persons ; and, further, that a great mittee will many payments made by him as auditor were order their •' f •' .-^ produc- SO made on gettmg receipts Irom ditterent par- tion (a), ^igg without the production of the bills of par- ticulars. Upon this, Mr. O'Malley asked the Committee to order all accounts not sent in to the auditor by Mr. French, the conducting agent of Captain Q-off, to- be produced and handed to the Committee- clerk, for the inspection of the petitioners, on the groimd that these accounts had been impro- perly withheld from the auditor. He cited the Lambeth case, "Wolf, and Dew, 131 ; and 17 & 18 Vict. 102, ss. 15, 18, & 26. Mr. Forsyth. — ^We have produced all the , bills sent in to the agent and auditor which have been paid ; those bills we have adopted ; but we are not called upon to produce claims made upon us for goods supplied to one (a) The office of election auditor is abolished, but the returning officer to some extent occupies his place. 26 Vict. c. 29. ROSCOMMON COUNTY. 105 person by the order of another, because they have been made out to Captain GtoS, and sent in to his agent, Mr. French. The statute 17 & 18 Yict. c. 102,. s. 16, directs all persons having any charge or claim against any candi- date, in respect of the election, to send in his bill within a month from the day of the decla- ration of the election to the authorised agent of the candidate ; and, by s. 17, such bills are within three months from the declaration of the elec- tion to be sent in to the election auditor by the candidate or his authorised agent; but this section does not make it incumbent upon a can- didate to send in bills for work done or goods supplied on the order of any person whose authority the candidate entirely disavows. Mr. O'Malley, in reply. — The 17th section directs that the candidate or his agent is to state at the time when he sends in any bills to the auditor, whether he admits the whole, or, if not the whole, what part of them he admits ; the re- pudiated bills might therefore have been marked as disallowed ; but here the evidence is that Mr. French said to the persons sending in their accounts, " Be quiet, and your biU will be paid." He does not repudiate them in any way. It is assumed on the other side that the conducting agent and the agent to receive accounts are the same ; but that is not so ; Grant v. Guinness, 17 0. B. 190, shows that the agent to receive accounts is not an agent for election expenses. It appears that receipts alone of such parts of F 3 106 ELECTION CASES. the bills as were paid were sent in to the election auditor, and we want the bills as sent in to Mr. French, in order to obtain information which we ought to have had long ago. After deliberation it was resolved : — "That the Committee are of opinion that the petitioners are entitled to be put in the same position as that in which they would have been had the 16th sect, of 17 & 18 Vict. c. 102 been complied with ; they therefore order the production of all bills and accoimts given in to any agent on be- half of the sitting member within one month of the declaration of the poll, or, in the case of a deceased party, within the time specified after probate or letters of administration have been taken out." Maroli 2. Joseph Burke, an admitted agent for the sit- An a^nt ting member, having stated that houses had have hired been hired in Roscommon by himself for the ac- h(raseB for commodation of country voters brought up to voters may the poll, and that it was necessary to bring them whetw *° *^® *°^™ over-night, lest they should be kid- he did so napped by the other side, was asked, " Did you to obtain ■■ . •it. ■ t> j? xi the own- hire a smgle house m Koscommon for the pur- er's vote, pose of obtaining the vote of the keeper of the house ?" Mr. G'Malley objected to the question, be- cause the intention of the witness in hiring these houses could not be evidence ; that was a question for the Committee to decide upon after hearing the facts of the case. ROSCOMMON COUNTY. 107 Mr. Forsyth contended tliat eTidence of the hiring of these houses had been giyen in sup- port of the charges of bribery against the house- keepers; and therefore the intention of the sitting member's agent in contracting for the houses might be inquired into when evidence had been given of the necessity for such hiring. The Committee decided that the question might be put. From the evidence adduced in support of the I'aots petition, it appeared that a number of public- jq oonati- houses, eating-houses, and private houses, had tii*^ been hired by the agents of Captaia Groff at "' Roscommon and Boyle ; some of them were used for tally houses — ^that is, places where the voters were collected together and taken up to the poll ; at others, voters who had been brought up over-night from the country districts were accommodated with lodging and supplied with refreshments upon the order of certain persons alleged to be agents of the sitting member ; the bills for the hire of the houses and the refresh- ments supplied had all been sent in to Mr. Henry French, the conducting agent for the sitting member. No part of them had been paid except charges for car-hire, but none of them had been repudiated ; and many of the witnesses swore that Mr. French had stated that the balance of their bills could not be paid un- til after the petition had been decided ; the bills themselves had been retained by Mr, French, 108 ELECTION CASES. and some of them, were produced upon the order of the Committee, whilst others were left in Ireland. It further appeared that from some of the houses ale and porter had been obtained, which were placed in the streets in barrels, and consumed by the mob. Yery considerable ex- pense, as it appeared, had beqn incurred for the hire of about 150 cars from all the car owners at Boyle, Eoscommon, and elsewhere ; some of these car owners were hotel keepers, and their charges for such hire had been sent in to Mr. French, included ia the general bills sent in by them as hotel keepers, and had been paid through the election auditor, the remainder of the bills remaining unpaid ; almost all the persons whose houses and cars had been hired on account of the sitting member had voted for him at the election. On the part of Captain Goff, some of the persons alleged to have ordered refreshments for voters at the different lodging-houses were not called ; but Mr. French and the other ad- mitted agents of Captain Goff, who were called, stated that many of the voters had to come from considerable distances, and that, as there had not been a contested election in the county of Hoscomtnon for some years, and the popxJar party were in possession of the seat, it became necessary to bring in the voters the night before the election, or else they woidd have been kid- napped by the mob ; but it appeared that the hovises had been hired some days before the ROSCOMMON COUNTY. 109 election, wlien there was no symptom of any violence, and that, in fact, no violence or intimi- dation of any kind agaiast tlie supporters of Captain Goff had been shown. They also stated that in every instance they had told the owners of the houses to lodge the voters only, and not to find them any meat, drink, or any refresh- ment; but no evidence was given as to what arrangements were made for supplying neces- saries to the voters at the houses where they were lodged ; and although it was proved that some of the persons who were stated to have ordered refreshments for voters at the different lodging-houses were in attendance, they were not called as witnesses. "With reference to the pajTQDients for hire of cars, they stated that, although they hired one hundred and fifty-five cars in the county, that number was not suf- ficient, and that they were obliged to hire others from Leitrim and Westmeath, and to employ carts and other vehicles to bring up the voters ; and yet they had not enough to bring them all up in the two days allowed for the election, as they were very much scattered over the coimtry. Mr. Phinn, on behalf of the petitioners. — The March 2, offence of treating is created by certain statutes fotmded upon the treating resolutions of 1677 (9 Com. Jour. 411). The first enactment upon the subject was the 7 Will. III. c. 11, founded upon those resolutions ; and from that Act the provisions as to treating ia 35 Greo. III. c. 29, 110 ELECTION CASES. s. 19 (Irish) were taken. This Act was repealed by 4 Q-eo. IV. c. 35 as to counties of towns, but is still in force as to counties. In the case of Ribbans v. Crickett, 1 B. & P. 264, it was decided that giving entertainment to voters, after the teste of the writ, is made illegal by 7 WiU. III. c. 35, which differs in some respects from the Irish Act; but both expressly prohibited the giving of entertainment to voters by a candidate after the teste of the writ. The 35 Geo. III. c. 29 appears to go further than the 17 & 18 Vict. c. 102 as to treating, because it forbade any candidate, his friends or agents, or any persons employed on his behalf, to give, directly or in- directly, any meat, drink, &c., to any voter; and, in the latter part of the section, it is enacted that any person so giving shall be incapable of serving in Parliament for such place. By this word so must be meant a giving directly or indirectly, either by himself, his friends or agents, in the manner pointed out in the early patt of the section. In this statute the word corruptly is omitted ; but, in the first place, the case of Cooper v. Slade, 6 H. of L. Cas. 646, shows what is meant by the word " corruptly" in the Corrupt Practices Prevention Act, viz., anything done in contravention of that Act, and forbidden by it ; and, in the second place, it is unnecessary to prove treating within the meaning of that Act at all, for the mere giving of meat, drink, &c., by a candidate, his friends or agents, is treating within the 35 Geo. III. c. 21. ROSCOMMON COUNTY. Ill But, supposing there is no e-vidence of treat- ing under the Irish Act after the teste of the writ, there is abundant evidence of bribery and treating within the Corrupt Practices Act, be- cause it is clear that admitted agents of the sitting member, and persons proved to be his agents, had hired houses and cars nominally for the lodging and conveyance of voters, but, in truth, to procure Captain Goff's election, and to obtain the votes of the persons owning the houses and cars ; and further, that refreshments had been supplied to voters at these houses. Sir F. Slade, on behalf of the sitting member. March 3. — Questions of bribery and treating are now de- fined and regulated by the 17 & 18 Vict. c. 102, which enacted, by sect. 4, that a candidate should be^uilty of treating, who, by himself or his agent, whether directly or indirectly, provided meat, drink, &c., to any person in order to be elected, or for the purpose of corruptly influencing his vote at an election ; and the vote of any person who corruptly accepts such entertainment is rendered null and void. It is therefore an essential part of the offence of treating that it should be given in order to influence the voter, or for the purpose of being elected ; but nothing of the sort is proved. Here the evidence seems rather to show that it was thought necessary to hire the houses for the accom- modation of the voters from the country, to enable them to vote at aU ; if refreshments really were given to such voters by order of the sitting member or his agents, it is necessary to prove that this 112 ELECTION CASES. was done corruptly. The decision in Cooper v. Slade shows that by corruptly is meant some- thing which the Act was meant to prohibit; and, therefore, to make a candidate guilty of treating, by himself or his agents, it must be shown that the entertainment was given con- trary to the Act of Parliament — ^that is, in order to be elected, or for being elected, or for the purpose of corruptly influencing some person to give or refrain from giving his vote ; but how can that have been the intent, if the object of the sitting member and his agents was to secure the attendance of the voters at the election, which is not forbidden by the Act ? March 4. _A^t the termination of the case, the Committee came to the following resolutions for report. to the House : — Final 1. " That Thomas "WiUiam Goff, Esq., is not tiona. duly elected a knight of the shire to serv« in this present ParKament for the county of E,os- common." 2. " That the last election for the county of Ex)scommon, as far as regards the election of Thomas "William G-off!, Esq., is a void election." 3. "That Thos. W. G-off, Esq., was, by his agents, guilty of treating at the late election' for the county of Roscommon ; but that it was not proved that such treating was committed with the consent of T. W. Goff, Esq." 4. " That the Committee deem it proper to bring under the notice of the House the contra- ROSCOMMON COUNTY. 113 ventlon in tKis case of the provisions of the Act 17 & 18 Vict. c. 102, requiring the bills and claims against a candidate to be given in to the election auditor, with a statement of the charges in such bills and claims allowed and disallowed. With the exception of the bills for printing, newspaper advertisements, and for professional agency, none of the numerous bills 'sent in to the agent of Thomas William Goff, Esq., chiefly consisting of charges for car-hire, hire of houses, and supplying meat and drink, generally included in the same bill, were lodged 'with the auditor. These were retained in the hands of the agent till the sitting of the Com- mittee, when such as had been brought over from Ireland by him were produced on the order of the Committee, receipts only of such particular items in these bills as were paid ^laving.been lodged with the auditor." 114 CASE XIX. I860. BOROUGH OP GREAT YARMOUTH. The Committee was appointed on the 22nd February, 1860, and consisted of the following Members : — John Henry PhiKpps, Esq., Haverfordwest, {CJiairmam.) RobertStaynerHolford.Esq., East Gloucestershire. Sir Henry WiUoughby, Bart., Evesham. Sir Richard Bulkeley, Bart., Anglesea. Hon. F. Dudley Portesoue, Andover, JPetitioners : — Electors. Sitting Members petitioned against s — Sir Edmund H. K. Lacon, Bart., and Sir Henry Josias Stracey, Bart. Counsel for Petitioners : — Mr. Phinn, Q.C., Mr. Power, Q.C., and Mr. Johnson. Agents : — ^Mr. Newton Finch and Mr. P. S. Oosterton. Counsel for the Sitting Members : — Mr. O'Malley, Q.C., Mr. Rodwell, Q.C., and Mr. Clerk. Agents: — Messrs. Baxter, Eoae, and Norton, and Mr. Charles Corry. Feb. 24. The Committee agreed to the first eleven of the Prelimi- naiy resO' lutions. ^ usual prelimmary resolutions (a). (a) Ante, p. 11. BOROUGH OF GREAT YARMOUTH. 115 The petition, after stating that at the last Petition, election for the borough of Great Yarmouth Sir Edmund H. K. Lacon, Bart., Sir Henry J. Stracey, Bart., Edward William "Watkins, Esq., and Adolphus William Young, Esq., were can- didates, and that the two former were returned, alleged bribery, treating, and undue influence Bribery, against the sitting members and their agents, ^g^ ^^ue and prayed the House to declare their election ™fli^enoe. and return to be null and void. Mr. Phinn opened a case of bribery against the sitting members, by the payment (through their agents) of money to voters ; and a case of treating, by the giving refreshments to voters at meetings of the Conservative party, at some of which the sitting members were present. Alfred Alexander, a witness, having sworn Evidence that one J. J. Savage had given him £15 to^grsSiou vote for the sitting members, and that he had with sup- seen Mr. Savage since receiving a Speaker's agent after warrant to attend the Committee, was asked *?'™™^-. . tion of his what passed upon that occasion. agency in- Mr. O'Malley objected to the question, con- admissible, tending that, even if the agency of Savage had been proved, which was not the fact, his agency terminated with the election ; and nothing said by biTn afterwards to the witness could be evidence. Mr. Johnson urged that, if he could show, as he proposed to do, that Savage had been tam- pering with. the witness after the election, such evidence would be admissible. 116 ELECTION CASES. The Committee decided that the question could not be put. Feb. 25. In the hribery Hst, Alfred Harpley, a voter, Evidence -^^g alleged to have received the sum of £10 as may be a bribe from John Cooper, Harpley, being called tb[ou\the ^^ ^ witness, proved that, being confined to his person house by an affection of the eyes, he had been have^ ° canvassed by the sitting members, who came to bribed be his house in conipany with several persons whom tified with ^^ ^^ T^*^^ know ; that he then promised them any one i^jg yote ; and that, just before the election, he the bribery was called upon by a person whom he did not ^^^- know and should not recognise again, but whom he described as a tall, stout man. He was then asked what that person had said or done on that occasion. Mr. Rodwell objected to this question, because the name of this person, whatever it was, had not been proved, nor had his identity been established with any of the persons whose names had been handed in to the Committee as having offered bribes. Mr. Johnson contended that, as several per- sons had come to the voter's house with the sitting members to canvass for his vote, and as some person had afterwards visited him there, he ought to be at liberty to pursue the inquiry, and prove by the evidence of the witness what had passed between himself and the person spoken of. The Committee decided that they would not stop the inquiry at this stage. BOROUGH OF GREAT YARMOUTH. 117 The witness tlien proved that the person, whoever it was, gave him £10, and that he voted for the sitting members. Mr. Rodwell then applied to the Committee to strike off the evidence of this witness from the notes of the short-hand writer, because it was not proved that this payment of £10 had been made by any person named in the bribery Hst. Mr. Power contended that the evidence ought to be retained. The Committee decided that, for the present, the evidence should remain upon the notes. W. Grooch, a witness, swore that, in conse- Feb. 27. quence of some conversation at Sir E. Lacon's Converaa- office, more than twelve months before the elec- 8^^^™? a tion, he had promised his vote to Sir E. Lacon's ™te, oo- party if Sir E. L. should put up again. He was iragbefore then asked, "Whatwas this conversation about?" *^^ ®l^- Mr. O'Malley objected to the question, con- any Vaoan- tending that, as this conversation had taken "^L^""* place between the witness and other personable, not shown to be in any way connected with either of the sitting members, and had occurred long before the election, or any vacancy in th-e representation, it could not be admissible evi- dence upon this inquiry, Mr. Johnson contended that, as the conver- sation, whatever it was, had induced the witness to promise his vote to the sitting member, he ought to be allowed to proceed with the exami- nation. 118 ELECTION CASES. The Committee decided that the evidence was not admissible. Facts not I* '^as proved that sums of money had been sufficient paid to different voters by John Thomas Savage, stitute John Cooper, William Spilling, W. Beales, and agency, jg^a^ Shuckford. To establish the agency of these persons, it was proved that Savage, who was the kndlord of the Fish Stall House, in Yarmouth, was seen with Sir E. Lacon on his canvass; that he assisted in hiring men to watch the committee-rooms of the sittiag mem- bers ; that he was seen at the committee-rooms ; and that a meeting was held at his house ; but Sir E. Lacon, the sitting member, being called, distinctly denied ever having seen him at the committee-room devoted to his more im- mediate friends, and disavowed any knowledge of Savage having hired any one on his behalf (a). John Cooper, who was the publisher of the Norfolk Standard, was sworn to have been seen goiag out canvassing during the election, start- ing from the Conservative committee-room in the morning, with Shuckford, Reynolds, Spilling, and others ; and was also seen coming out of the committee-rooms on several occasions. William Spilling, a carpenter, living at South {a) The Committee divided upon the question of Savage's agency. Ayes, 2 : Sir R. Bulkeley, Mr. For- tescue; Noes, 3: Mr. Holford, Sir H. Willoughby, Mr. Philipps. BOKOUGH OF GREAT YAEMOUTH. 119 Town, -within the borough, was also seen at the committee-rooms, and going out canvassing ; and he was visited by Sir E. Lacon at his own house on the day of the election. The evidence as to Shuckford's agency was the same as Cooper's. Mr. Power having summed up, Feb. 29. Mr. O'MaUey opened the case on behalf of the sitting members, and called Sir Henry Lacon as a witness to rebut certain charges of bribery made against him by one Henry Fayer- man. At the termination of the case, the Committee March 30. came to the following resolutions for report to the House : — 1. " That Sir Edmund Henry Knowles Lacon, Final reso- Bart., and Sir Henry Josias Stracey, Bart., are ^^^^°^^- duly elected burgesses to serve in this present Parliament for the borough of Great Yar- mouth" (a). 2. " That the sum of fifteen sovereigns was paid to Charles Botwright by John Cooper, to induce him to vote for Sir E. H. K. Lacon and SirH. J. Stracey" (b). (a) The Committee divided. Ai/es, 3 -. Mr. Holford, Sii- Hemy WiUougliby, Mr. Philipps; Noes, 2 : Sir E. Bulkeley, Mr. Fortescue. (J) The Committee divided. Ai/es, 4 : Sir R. Bul- keley, Mr. Fortescue, Mr. Holford, Mi-. PhUippS; Noe, 1 : Sir Henry WiUoughby. 120 ELECTION CASES. 3. "THat "William Spilling endeavoured to bribe Henry Pratt Cane by tbe offer of eigh.t sovereigns." 4. " That Alfred Alexander was bribed by John Thomas Savage with the simi of £16." 5. " That Robert Earl was bribed by "William Beales with the sum of £13 to vote for Sir E. H. K. Lacon and Sir H, J. Stracey." 6. "That Greorge Howlett was bribed by Isaac Shuckford with the sum of £13 to vote for Sir E. H. K. Lacon and Sir H. J. Stracey." 7. " That it is not proved that the aforesaid acts of bribery were committed with the know- ledge and consent of Sir E. H. K. Lacon and Sir H. J. Stracey, or their agents." 8. " That it is the opinion of this Committee that there are strong grounds for believing that Henry Fayerman, in giving his evidence before the Committee, has been guilty of wilful and corrupt perjury." 121 CASE XX. BOEOUGH OF DOYEE. i860. The Committee was appointed on the 29th February, 1860, and consisted of the following Members : — James Milnes Gaskell, Esq., Wenlock, (Chairman.) Sir Arthnr William Buller, Devonport. Sir John Hanmer, Bart., nint District. Edward Howes, Esq., East Norfolk. Arthnr Mills, Esq., Taxmton. Petitioner: — Sir William Enssell, a defeated Candidate. Sitting Members : — Admiral Sir Henry John Leeke and William Nicol, Esq. Counsel for the 'Petition : — Mr. Phinn, Q.C., and Mr. Serjeant Pigott. Agents : — Mr. Wyatt and Mr. Eenshaw. Coimselfor the Sitting Members : — Sir Frederick Slade, Q.C., and Mr. W. H. Cooke. Agents : — Messrs. Baxter, Rose, Norton, and Spofforth, and Messrs. Wilkinson, Stevens, and WiUdnson. The Committee agreed to tlie eleyeii usual pre- March 2. liminary resolutions (a), and also to the foUow- ^^^ re'go- jjj™ . lutions. 12. " That the practice of courts of law, as (a) Ante, p. 11. 122 ELECTION CASES. to speeches, as laid down in tlie 17 & 18 Vict, c. 125, s. 18, be foUowed ia tMs case." Petition. The petition, after statiag that at the last election. Sir H. J. Leeke, W. Nicol, Esq., Ralph Bernal Osborne, Esq., and the petitioner, were candidates, and that the two former were Bribery, returned, charged bribery, treating, and undue treating, iiiflugnce against the sitting members and their and nndue ° ° i • <> t. influence, agents. It then set out the resolution of the House respecting the interference of ministers, passed 10th December, 1779 (a), and averred that, in contravention of such resolution, divers Inter- miuisters and servants of the Crown used the ministers po^^^^ of office to influence and control the votes of voters, and to procure the return of Sir H. J. Leeke and "W. Nicol, and that by such iafluence the return of the said Sir H. J. Leeke and W. Nicol were obtained, and that by reason thereof the said election and return were wholly void. The petition concluded by praying the House to declare the election and return of the sitting members to be null and void, and also that they were disqualified and incapable to sit for the borough in the present Parliament. ndtt'ewiu ^^' ^^^"''"' opened the case, and applied to not order the Committee for an order upon the Treasury the pro- , duotion of documents (a) 37 Com. Joum. 507. See Bogers on Mections, fef" (9tlied.),p.370. ments. BOROUGH OF DOVER. 123 and the Admiralty, for the production of certain documents, alleged to be material, in support of the allegations in the petition as to the iater- ference of ministers in the election. Sir F. Slade opposed the application, con- tending that as the sitting members were no parties to the documents prayed for, they coidd not in any way be affected by the transactions to which they related. The Committee resolved, after deliberation, " that they declined to make an order upon any pubKc department for the production of the documents called for." At the sitting of the Committee this day, Mr. March 3. Phinn applied for a subpoena under the 11 & 12 But they Vict. c. 98, s. 83, for the attendance of Mr. Ste- the ii & 12 phenson, the head of the contract department of ^^''*- 9- ^^' the Ireasury, m order to produce a certain con- a subpoena tract alleged to have been made with a Mr. '^"^^^ *«■ ° _ _ cum to any Churchward, for the extension of his contract ofScer of a for the Dover Mail Packet Service, which they S^tment alleged to be material to the petitioner's case, that the The Committee suggested that the petitioner ^^g^g^to ought to connect the sitting members with the call. contract, before the Committee coidd be asked to summon a witness to produce it. Mr. Phinn. — ^We ask for the production of certain witnesses and papers to make out our case ; this being analogous to a case of bribery, which may always be proved before the agency of the briber is established. G 2 124 ELECTION CASES. Sir F. Slade. — This is, in fact, only a renewal of the application made yesterday, and which the Committee declined to accede to. After deliberation it was resolved : — " That the Committee are ready to make an order for the attendance of any witness whom counsel think it necessary to call ; but they express no opinion as to the admissibility of any documents which it may be desired to put in." March 6. Captain the Honorable Swinfen Thomas Car- ■ ^^® *^°™.' negie, one of the Lords of the Admiralty in inquire 1859, being called as a witness, was asked : — SteecTin- " ^° y°^ remember at any time being at the terference Admiralty, in Mr. Murray's room ?" (a), ters of the ^^^ ^- ^^cide objected to this course of exami- Crown in nation, on the ground that it was in support of the elec- ,, i , m ," • ,i ,•,• \ tion, at aU the last allegation m the petition, as to the m- events if terference of ministers, but such allegation was it la pro- . 1 „ . . posed to entirely foreign to the issue, and there could be the'eitting ^° §^°°'^ reason why the Committee should go member into it. In a court of law such an allegation might be met by a demurrer, but no such pro- ceediag is allowed before a Committee, and no cause can be shown why the allegation should be amended or expunged. If the statements contained in it be true, ministers ought to be. (a) Mr. Murray, it appeared, was tlie private secre- tary to the First Lord of tte Admiralty ; and Mr. Churcli-ward, it also appeared, was present in the room at tlie time. BOROUGH OP DOVER. 125 impeaclied ; but the sitting members are not affected by them, if proved. Section 5 of 17 & 13 Vict. c. 102, defines what is meant by undue influence, and enacts what shall be the punish- ment for the offence ; but even if ministers were guilty of undue influence, it would not be a ground for impeaching the validity of the elec- tion. In the Stamford and Gloucester cases (1848), conmiittees were specially appointed to inquire into the conduct of Peers at an election, and report thereon. In the Worcester case, 3 Dougl. 254, where the petitioner complained of the interference of a Peer in the election, the Committee, it is true, decided that they were bound by the words of their oath to hear the evidence, as they were sworn to try the matter of the petition ; but now, by 11 & 12 Vict. c. 98, s. 68, Committees are sworn well and truly to try the petition, &c., and are to be taken to be a select Committee, to try and determine the merits of the election, and return referred to them. That being so, are they bound to hear evidence that cannot affect the return ? Clerk's Election Law, 382. In the Peterborough case (1848), it was desired to go into the question of undue iafluence exercised by the FitzwiUiam family ; but the Committee refused to hear the evidence, and the House appointed a Committee to inquire into it. But even if it be proved that Churchward was influenced unduly, by whom was he in- fluenced ? Certainly not by either of the sit- 126 ELECTION CASES. ting members ; and the Committee has only th6 power to unseat a member for bribery, treating, or undue influence, when committed by the sitting members or their agents. Mr. Phinn.— The 17 & 18 Yict. c. 102, s. 3, enacts that every voter who shall receive any money, valuable consideration, office, or employment, for himself or for any other person, for voting or agreeing to vote, is to be deemed guilty of bribery; and it is as a link in the chain of evidence in proof of such bribery, that the question objected to is put. Section 2 of the 11 & 12 Vict. c. 98, which defines what is meant by an election petition, enacts that the petition may complain of the undue election or return of a member, or that no return has been made according to the requisition of the writ, or of special matters contained in the return ; and by s. 86, the Committee to whom the peti- tion is referred, is to try the merits of the elec- tion or return complained of in such petition. The Chairman here inquired if the petitioner proposed to prove the agency of Churchward ; and, this question being answered in the affirm- ative, the question was allowed. Where^a Mr. Phinn then asked the witness, what ugreement Churchward said to him to return A. is Sir F. Slade objected to the question, as in- aiieged, admissible, because the sitting members were events. ^ ^°* *^^^ ™ *^® field, and therefore the conver- becomes sation, whatever it was, could not affect them. a candi- BOEOUGH OF DOVER. 127 Mr. Phinn.- — ^If Cliurchward entered into date in the a corrupt contract to return one person, and, \^^. tliat person not coming forward, he returns an- dence of other under the same arrangement, is not such agreement other person answerable ? If Mr. Murray had "^^ ^^ agreed with Churchward to get 100 voters at fore the Dover, ready to vote for a man to be named at oandida- a future time, would not such a corrupt contract com- be evidence against the person when named, ^^^^^ • although he were not actually a candidate when the contract was made ? We propose to prove that Churchward was not only a briber,, but was bribed himself. In the Worcester case, 3 Dougl. 255, it was objected that the Committee could not go iuto evidence concerning the iaterference of a peer ia the election, because that was a matter of privilege not essential to the merits of the elec- tion ; but the Committee considered they were bound to hear the evidence. Again, in the Hert- ford case, P. & K. 546, the interference of Lord Salisbury was one of the grounds of the petition, and evidence in support of it was heard. There is, therefore, nothing in the objection that, at the time when the conversation ia question took place, the sitting members were not in the field. Sir F. Slade, in reply. — If a member returned be petitioned against for bribery, and the briber telis another candidate to start, because such member wUl be unseated on the ground of bribery, which afterwards happens, can it be said that such candidate could be unseated, he having had no connection whatever with the 128 ELECTION CASES- previous bribery ? Clearly not. So here, the sitting members not being candidates at the time when this conversation took place, it can- not be gone into as against them. The Committee resolved — " That the question might be put." Where the Captain Carnegie was then further examined renc'f^of ^J ^^- 'P^^^^> ^nd was asked— ministers " Had Mr. Churchward ever been referred to Crown in ^^ a person of influence at Dover P" the eieo- gir F. Slade objected to this line of examina- aiieged, tion, because if any conversation with Mr. conversa- jjtfurray was to be gone into against the sitting tween the members, Mr. Murray ought to be called, that ^d'the ^^ opportunity of cross-examining him might private be afforded. of°Jn/^ Mr. Phinn. — I say that the acts and declara- the minis- tions of Murray are admissible as part of the admissible '"«* ffestcB, being in the nature of evidence to in evidence pj-gye not only the briberv of Churchward, but &s p&rt 01 - n t * the res also a part of the arrangement by which the gestiB. return of the sitting members was to be procured. The petition contains three propositions, and in support of either of them this evidence is admis- sible. Ist. That the Government unduly exer- cised its influence to return the sitting members; if this be proved, there is no occasion to prove agency, to render the election of the sitting members void. 2ndly. That Churchward him- self was bribed, and bribed to bribe others ; and Jiere, no doubt, agency must be proved at some BOROUGH OF DOVER. 129 time, but not in the first instance, 4 & 5 Vict. 0. 57. 3rdly. To establish a case of statutory undue influence ; and here again we must prove agency, pursuant to 17 & 18 Vict. c. 102, ss. 5 and 36. If the election were proved to be void by reason of the undue influence of Govern- ment, it would not disqualify the sitting mem- ber. Worcester, 3 Dougl. 239 ; Hertford, P. & K., 541 ; Dublin, a.d. 1831. Sir F. Slade. — Those cases were all decided upon the principle that what was done was done at the election itself; but that is not the case here, where the matter complained of took place before the election, and, therefore, before the petitioners can give in evidence any act of Mr. Murray, they must prove agency ; and, more- over, his acts and declarations in the absence of Churchward are inadmissible. The Committee decided that the examiuation might proceed (a). The witness was then asked whether he had where a letter from Mr. Murray of the 5th of AprH. '^^^fl^' Sir F. Slade objected to the production of miniaters any private letter from Mr. Murray, consider- g^gctfon ing that the letter was written when the witness is aUeged, was a candidate for Dover, and before the time from the when the sitting members became candidates. pri™te of one of {a) The Committee divided upon this question, ^^^s are'^' Ayes, 4 : Sii* J. Hanmer, Sir A. Buller, Mr. Gaskell, admis- Mr. Mills ; Noe, 1 : Mr. Howes. sjble, al- q thongh 130 ELECTION CASES. written Mr. PUnn contended tliat tlie letter ouglit to c^n^dal"^ be produced, on the same principle as the ex- ture of the amination of the witness had been allowed. me*mlfers. The witness stated that he would only pro- duce these letters under the authority of the Committee. He then stated, in answer to ques- tions by the Committee, that he had already produced these letters before the Select Com- mittee on Public Contracts; so that, in fact, publicity had been given to the letters now sought to be produced. The Committee were of opinion that the letters should be produced (a). March 7. On John James Bishop, alleged to hare been Where bribed by Gr. Baker, beins' called and examined, name of _ -^ . . briber on Sir F. Slade objected, during the cross-ex- bery Ust is aniination, to the Committee proceeding with stated as this case, as the witness had not been bribed by denoe of ^' Baker, but by some person not on the list, bribery by. and no application had been made to have the B. will not,. ^/^ , be allowed, list amended. Sembie, jyjj. pfii^n contra. — The 4th preHminarv re- where a . . case of solution contemplates cases which may arise cS^e7out 'i^^ig' t^e progress of the inquiry, with which in the the parties could not be reasonably supposed the inves- *° ^® previously cognisant. Such a case as the tigation, present may fairly be said to fall within this an applica- tion to the Com- mittee (a) Tlie Committee divided, Ayes, 4 : Sir J. Hanmer, should be Sir A, Buller, Mr. GaskeU, Mr. MOls: Noe, 1: Mr. made at jj^^^^ once. BOROUGH OF DOVER. 131 resolution, even alttougli it was known yester- day who was the person alleged to have bribed Bishop (a). The Committee resolved, that further evidence in this case was inadmissible, and that the evidence already given should be struck off the notes. TJpon the allegations of bribery, it was proved what not that the persons, whose names are reported in sufficient the second final resolution of the Committee, had of bribery each received the money therein mentioned from ^7 agents a publican in Dover, one Bromley, or his wife, in sitting his house. Mrs. Bromley had gone away, and ^^'^'^<^'^^- could not be found. Bromley himself denied all knowledge of any such payments ; and a Mr. Wilkinson, the election agent for Mr. Nicol, one of the sitting members, stated that no money had been paid to Bromley on account of the alleged payments to the voters, nor had any claim whatever been made by him ; and further, that he, as such agent, was never told that the men alleged to be bribed, who were Folkestone men, would not vote imless they were paid. It was proved that the sitting members had held a meet- ing at Bromley's house, called by advertisement, but it was not proved that anybody paid for the vise of the room. (a) It appeared that the petitioner's counsel knew on the previous day by -whom Bishop had been bribed. 132 ELECTION CASES. Whatnot In support of tlie allegation of ministerial sufficient influence, it was proved that a Mr. Chvircliward, evidenoe '■ , o of inter- who had for some years been the contractor tor ferenoe by ^^ -q -^^^ Packet Service, had had his con- mimsters _ ' loce of the _ tract renewed for eight years, from June 1855 ; the eieo™ ^'^^' ^^ ^^^ Contract would thus expire in Jime, tion. 1863, he had, early in 1859, applied to the Trea- sury for a further extension of his contract. The Treasury had called upon the Admiralty to elicit from Churchward what he wanted; and on the 24th of February they had reported in favour of an extension of the contract, whilst the Postmaster- General, to whom the Treasury had referred the matter for information, reported against its extension. On the 4th of April a dissolution of Parlia- ment was annoimced. Between the 1st and the 4th of that month Sir W. Joliffe, one of the Secretaries to the Treasury, called upon Sir S. Northcote, the Financial Secretary, and said that, as an election was likely soon to take place, the application of Mr. Churchward, who was a man of great influence at Dover, had better be dis- posed of before the election, or kept till after/ Subsequently to that interview Sir S. North- cote made a minute on the papers that it should stand over for the present. The matter, how- ever, was eventually decided in Mr. Church- ward's favour, pending the election, with Sir S. Northcote's sanction, and after he (Sir S. N.) knew of a letter from the private secretary of the First Lord of the Admiralty to the Assistant BOROUGH OF DOVER. 133 Secretary of the Treasury, to the effect that they were anxious to expedite Churchward's matter, that he might go down to canvass at Dover. Churchward himself, it appeared, was at the Treasury before the 15th of April, the day on which the extension of the contract was granted, and had an interview with Sir S. Northcote ; but the letter from the private secretary of the First Lord was not referred to at that interview. It appeared by the evidence of Captain Car- negie, one of the Lords of the Admiralty, that at an interview he had -with Mr. Murray, the Secretary to the First Lord, on or about the 4th of April, when Mr. Churchward was present, Churchward addressed him, apparently on th^ assumption that the witness was going to Dover as a candidate, saying that he would give him every assistance in his power, and then added, that he wanted his contract renewing ; that he had been told that he ought to return two members for Dover ; and that the Admiralty had wished to defer signing the renewal of the contract until some arrangement was made about returning two members for Dover. It appeared further, that on the 5th and 6th of April, 1859, letters had been received by Captain Carnegie from the First Lord of the Admiralty and Mr. Murray, urging him to start as a candidate for Dover ; but that he had only entertained the idea for a very short time, and quite abandoned it after the above conversation with Churchward. It was proved that Mr. Nicol went down to 134 ELECTION CASES. Dover about the 7th of April, having been asked to come forward at a meeting held on the 5th or 6th. At the same meeting a resolution was passed, asking Captain Carnegie to come forward, but he declined ; and then, at another meeting. Admiral Leeke, who was also a Lord of the Admiralty, was invited to stand, but i,t was not proved at what time or at whose suggestion Admiral Leeke came forward as a candidate. At the close of the petitioner's case. Sir F. Slade stated that, on the part of the sitting members, he should not call witnesses. Mr. Phinn for the petitioner. — In this case some questions have been raised as to what are the duties of an Election Committee. The 11 & 12 Vict. c. 98, s. 2, defines what is to be deemed an election petition, and s. 86 states what the Committee is to decide, and what they are to report to the House ; by s. 87, they may report their decision upon any matter that they think proper to be noticed by the House. Then, by 4 & 5 Vict. c. 57, the Committee are in cases of bribery to receive evidence, and ascertain the fact of bribery, and whether it was committed with the consent of the sitting member. There- fore the Committee here have to report — ^first, upon the merits of the case; secondly, upon any subject they may think proper to report upon ; thirdly, upon the fact of bribery. Now what are the acts of Churchward ? It was most important for him to obtaiu an BOROUGH OF DOVER. 135 extension of his contract for the Dover Mail Service. On tlie 31st March the Grovernment is defeated, and on the 4th of April a dissolu- tion of Parliament is announced ; on that day- Churchward, knowing his influence at Dover, stood out for an extension of his contract, and wrote about it to the Admiralty. Sir Stafford Northcote, being pressed by Sir. W. Joliffe, alters his endorsement as to the question stand- ing over, and extends the contract, which is signed on the 15th, and thereupon Churchward tiirns over all his votes through Dodd ; and from all this the conclusion may fairly be drawn as to the meaning of these transactions. If the Committee decide that the sitting members are responsible for the acts of Churchward, the allegations in the petition as to the ministers exercising the powers of office become unim- portant. The precedents of the Hertford, Dub- lin, and Worcester cases aU show that any direct use of the powers of office is against the constitution of this country. There is also the Act of 2 "W. & M. sess. 1, c. 7, a sequence to 3 Ed. I. c. 5, which declares that a nomination of a person to serve as a Member of Parliament for the Cinque Ports by the Lord Warden is con- trary to the laws and constitution of this realm. There is a;lso a note in Hallam's Constitutional History, vol. i. 285, upon this subject, showing how constantly these powers have been exercised by Government. But is this allegation as to the use of the 136 ELECTION CASES. powers of office sufficient, if proved, to vitiate the election and return, although it would not render the sitting member ineligible at an- other election ? That is the important ques- tion. Influence, direct and indirect, has been proved on the part of the Board of Admi- ralty ; of that board Sir H. Leeke, one of the sitting members, was a member. By the Board the extension of the contract was signed with Churchward ; and for that act Sir H. Leeke is responsible, together with his colleagues. Now we say that this extension of his contract caused Churchward to alter his original intention as to voting, and induced him to do his best to return the sitting members, instead of giving his support to Mr. Osborne ; and Sir Henry Leeke, being a party to this contract, and being one of the Board signing the contract, his election and return are void. Sir F, Slade, for the sitting members. — If there had been any undue influence on the part of Government, there is the 17 & 18 Vict. c. 102, to which recourse might have been had ; but I am not counsel for the Admiralty or the Trea* sury, only for the sitting members; and as to them, the other side might easily have called Churchward or Mr. Murray, had they thought proper, but they have not done so. If Captain Carnegie had gone down to Dover, the case might, perhaps, have borne a different aspect ; but Churchward was no agent of the sitting members, and is not shewn to have been impli- BOROUGH OF DOVER. 137 cated with them in any way. The charge of Chief Justice Monaghan, in ^i/wiar^imv. fValsh, tried at Dublin in 1858, shows that, if a person chooses out of his own money to give a bribe to a voter, that will not affect the sitting member, unless some complicity be shewn ; and here none whatever is shewn between Churchward and either of the sitting members. Churchward was no agent of theirs in any way ; and, there- fore, nothing that was done by bim can affect them. The Committee then came to the following Maxoh 8. resolutions for report to the House : — 1. " That Admiral Sir Henry John Leeke and Knal reso- William Nicol, Esq., are duly elected barons to "*'°"^- serve in this present Parliament for the town and port of Dover." 2. " That Charles Thomson Stokes Barton, Joseph Menpes, Daniel Allen, William Stephen Whitnall, WiUiam Southey, and Richard Pledge were bribed by the payment of 30$. each ; but that it was not proved that such bribery was committed with the knowledge or consent of the sitting members, or their agents." ' 3. " That the allegation contained in the said petition concerning the interference of the min- isters, and other servants of the Crown, was not proved to the satisfaction of the Committee," 138 CASE XXI. CLARE COUNTY. I860. The Committee was appointed on tte 6th of March, 1860, and consisted of the following Members : — Eight Hon. Lord Stanley, Lynn, (Chairman.) Charles Buxton, Esq., Maid- stone. Sir Philip do Malpas Grey Egerton, Bart., Cheshire South. George Sclater-Booth, Esq., Hants North. John Walter, Esq., Berk- shire. JPeiitioners : — Electors, against the return of Colonel White. Sitting Members : — Colonel Luke White and Colonel Crofton Moore Vandeleur. Coimsel for Petitioners : — Mr. Wordsworth, Q.C., and Mr. Mnndell. Agents ; — Mr. Baker and Mr. Coffey. ■ Counsel for Col. White .—Sir P. Slade, Q.C., Mr. Phinn, Q.C., and Mr. Welsby. Agents: — Messrs. Holmes and Co. March 8. The Committee agreed to the first eiglit of the nar/Teao- ^^'^^ preliminary resolutions (a). lutions. Petition. The petition (of Nicholas Butler and John Barrymore Macnamara), after stating that they (a) Ante, p. 11. CLARE COUNTY. 139 were registered electors, &c., that at tlie last election for the county of Clare, Colonel Yande- leur. Colonel White, and Mr. Francis Mac- namara Calcutt were candidates, and that the two former were returned, alleged bribery, treating, undue influence, and intimidation Bribery, against Colonel White and his agents. It^^^^f;. alleged the improper reception and rejection flnenoe, of Totes on various grounds, that the majority ^dation. for Colonel White was colourable, and that the majority of legal votes were given for Mr. Cal- cutt. Finally, it prayed the House to declare Colonel White's election to be null and void, and to amend the return by substituting Mr. Calcutt's name. Mr. Wordsworth opened a case of bribery and treating, abandoning the charge of undue influence and intimidation, and the claim of the seat on behalf of Mr. Calcutt. During the examination of a witness, Michael March 9. Grady, whilst he was giving evidence of the E^dence distribution of £125 among twenty-five people, ment of by one Cangley, and upon its appearing that ^^^^^ra none of the twenty- five were voters, isinad- Mr. Phinn objected, under the circumstances, ^eas ft to the course of the examiaation, as irrele- <=an be proved Vant. that voters Mr. Wordsworth was heard in reply. hritTd The Committee decided, that counsel could thereby, not go into the question of distributing money amongst non- voters, unless it could be proved 140 ELECTION CASES. that some particular voter was bribed by that means. What suffi- The cases of bribery were distinctly proved, oieut evi- g^^ ^Iso the agency of Mr. Michael Macnamara, bribery, the gentleman referred to in the 5th resolution of the Committee. He was, it appeared, the conducting agent of Colonel "White ia the Ennis district, as Mr. C. B. Maloney was in the district of Tulla. Much evidence of reck- less expenditure on the part of Colonel White's agents was also given, e.g., the pajmient by them of £1000 to Mr. C. B. Maloney, also an agent, which he subsequently distributed amongst various persons in sums of £60, £100, and £160, on their simply representing that they "wanted it for the election," and of which no accoimt had been subsequently ren- dered by such persons ; £100 of it was paid to a Rev. Mr. Grieeson, who subsequently distri- buted it in small sums to a party of voters assembled at a public-house, kept by a Mr. White, ia the manner referred to in the 11th resolution of the Committee. It was farther proved that no accoimts had been furnished to Mr. William Kenney, the agent for election expenses of Colonel White ; but that accounts to the amount of £2500 had been sent ia to the election auditor on Colonel White's behalf, by a Mr. Joynt, who, although proved to be lodging in London at a house in Craven Street, Strand, evaded service of the summons issued CLAKE COUNTT. 141 by the Cliairmaii of the Committee for his at- tendance, and was in consequence not examined. On the question of treating, it appeared that What enffi- Mr. C. B. Maloney ordered Mr. S. Shanks to ^^"*/^" have some mutton and hams prepared the night treating. before the election, and also got in some meat and wine himself. Eventually refreshments to the amount of £93, some of the items of which consisted of 19 flitches of bacon, 15 gallons of spirits, 43 gallons of ale, 31 gallons of porter, 11 dozen of porter, 9 dozen of ale, &c., were con- sumed on the two polling-days in Mr. Shanks's house by voters and others. Mr. Shanks stated that he spoke to Mr. Maloney about it on the second day of the poll, and said there was a great consumption of drink goiag on ; to which Mr. M. answered, " that it made no matter, it was all right." Mr. M. subsequently, it ap- peared, asked Mr. S. for his bOl, saying it was the only bill in TuUa he cared about. At the conclusion of the case, the Committee March 14. came to the following final resolutions for report to the House : — 1. "That Colonel Luke White is not duly Final reso- elected a knight of the shire to serve in this ^ '°"^' present Parliament for the coimty of Clare." 2. " That the last election for the said county, so far as regards the return of Colonel Luke White, is a void election." 3. " That Colonel Luke White was, by his 142 ELECTION CASES. agents, guilty of bribery and treating at the last election." 4. " That Michael O'Dea and Patrick Lynch were bribed with the sum of £6 each, by Francis Coffey and Michael Houlihan, to vote for Colonel Luke White." 5. " That Michael Lynch was bribed with £6 by Michael Macnamara." 6. " That Malachi Foley was induced to vote for Colonel White by a promise of £6 made to him by Francis Coffey." 7. " That Connor Howard was bribed with £10 by Thomas Mineter." 8. " That Arthur O'Donnell and John O'Don- nell were induced to vote for Colonel White by a promise of money made to them by another Michael Macnamara, a solicitor." 9. " That John Gorman, Peter Sexton, James Sexton, and Patrick D'Arcy were bribed with £3 each by John Cangley." 10. " That treating of voters was largely carried on in the house of Stephen Shanks, with the knowledge and consent of Charteris Brew Maloney." 11. " That numerous voters received sums, varying from £1 upwards, for travelling ex- penses, without due inquiry as to the amount actually expended by the said voters." 12. " That it was not proved that such bribery and treating were committed with the knowledge and consent of the said Colonel Luke White." CLARE COTJNTY. 143 Mr. Wordsworth applied for costs imder the Coats re- 11 & 12 Vict. c. 98, s. 90, on the ground that ^"'^'^• the opposition to the petition was friTolous and vexatious. The Committee, without hearing counsel in answer, refused the application. Sir F. Slade then stated that he would adduce Reorimi- recriminatory evidence against Mr. Calcutt, as '^'^"^ ^7'" _ I -1 T T ■ 0.GI1C6 S.Q.' the seat had been claimed. missible Mr. Wordsworth.— We have abandoned our J^Z^ll, claim to the seat. although Sir F. Slade. — That makes no difference. It ig ^th.™ is the universal rule, whenever a claim of the ^awn. seat is made, that the person against whom the petition is presented is entitled to go into re- criminatory evidence to disqualify the claimant on a subsequent election. Mr. Wordsworth withdrew his objection. The evidence of Mr. Calcutt, previously given in the case, was then read over, and Mr. C. B. Maloney was called and examined; at the termination of which, The Committee came to the following reso- lution : — " That it is not proved to the satisfaction of the Committee that Mr. Prancis Macnamara Calcutt is disqualified as a candidate for the representation of the county of Clare" {a). (a) See 2iid Clare case, poit. 144 CASE XXII. I860. NOEWICH. The Committee wag appointed on the 7th day of March, 1860, and consisted of the following Members : — Eight Hon. Sir William Somerville, Canterbury, {CTiairmcm^ Napier Sturt, Esq., Dor- chester. Admiral Sir Michael Sey- mour, Devonport. Alfred Rhodes Bristowe, Esq., Greenwich. George William Hope, Esq., Windsor. Petitioners : — 1. Electors, against the return of Lord Bury, and praying for the return of Colonel Boldero. 2. Electors, against the return of Lord Bury, and praying for the return of Colonel Boldero. 3. Electors, against the return of Lord Bury, and praying for the return of Sir Samuel Bignold. Sitting Member petitioned against : — Lord Bury. Counsel for the 2nd and Zrd Petitions : — Sir F. Slade,, Q.C., and Mr. Clerk. Agents : — ^Messrs. Baxter, Eose, Norton, and Spofforth. Counsel for Sitting Member, Lord Bvsry : — Mr. Fhinn, Q.C., and Mr. D. Keane. Agent : — Mr. P. Gale. [No person appeared ia support of the First Petition.] CITY OF NORWICH. 145 The Committee agreed to the usual prelimi- nary resolutions. The first petition, after stating that at the ut peti- previous election for Norwich, held in April, *i°"- 1859, Lord Bury, H. ^Y. Schneider, Esq., Sir S. Bignold, and C. M. Lushington, Esq., were candidates, and that Lord Bury and Mr. Schnei- der were returned, alleged that Lord Bury and Sir S. Bignold were, by themselves and their agents, guilty of bribery, treating, and undue influence, whereby they were disqualified and rendered incapable of being elected for the city of I^orwich during the present Parliament. It then recited that a petition had been presented Disqualifi- against the return of Lord Bury at the above- LOTd's^ mentioned election, and that in June, 1859, and Sir S. Lord Bury, whilst such petition was still pend- *^° " ing, had accepted an office of profit under the Crown, whereupon a new writ was issued, and at such election Lord Bury, Sir S. Bignold, and Colonel Boldero were candidates ; that the fol- lowing notice of the disqualification of Lord Bury had been signed by Arthur Preston and Josiah Buttivant, and had been extensively pla- carded and circulated, and made known to the electors generally : — " To Henry Staniforth Patteson, Esq., the Notice of returning officer for the city of Norwich and ^^^^^^^^' county of the same city, and to the electors of electors. the same city entitled to vote at the election of members to serve in Parliament. H 146 ELECTION CASES. " We, the undersigned electors of tlie city of Norwich and county of the same city, do here- by give you notice that WiHiam Ooutts Keppel, commonly called Viscount Bury, was at the last election for the said city, holden in the month of April last, guilty by himself and his agents of bribery, treating, and undue influence. That on the 17th day of June, instant, a petition, signed by John Wright, Greorge "William Minns, and other electors of the said city, was duly presented to the House of Commons against the return of Yiscount Bury, and also against that of Henry William Schneider, Esq., alleging that the said Viscount Bury and the said Henry William Schneider had been guilty, by them- selves and their agents, of bribery, treating, and undue influence at the said election for the said city, and such petition is now pending in the House of Commons, and will be duly prosecuted by the said petitioners. And we do hereby give you notice that the said Viscount Bury is, by reason of the said bribery, treating, and undue inifluence so committed by him, and his agents at the said election in April last, now ineligible and iacapable of being elected or returned on the present vacancy to represent the said city in Parliament. We do therefore protest against the nomination of the said Viscount Bury as a candidate at the present election, and against his being elected and returned to represent the said city. And we do give you further notice that all votes given at this election in favour of CITY OF NORWICH. 147 the said Viscount Bury, will on account of his said ineligibility and incapacity, be entirely lost and tbrown away. Dated this 28tli day of June, 1859." That the followiug notice of Sir Samuel Big- nold's disqualification had been made known to the electors generally : — ■ " Take notice that we, whose names are here- unto subscribed, William Coutts Keppel, com- monly called Viscount Bury, a candidate at the present election to represent the city and county of the city of Norwich in Parliament, and Osbom Springfield and "William "Wilde, registered elec- tors and Toters in and for the said city and county of the city of Norwich, do give you and each of you, the said registered electors and voters for the said city and county, notice, that Sir Samuel Bignold, knight, a candidate to re- present the said city and coimty at the present election, is ineligible, disqualified, and incapa- ble of being elected or of sitting in the present Parliament for the said city and coimty of the city of Norwich, inasmuch as he the said Sir Samuel Bignold, knight, was a candidate to re- present the said city and county at a certain election holden on the 30th day of April iu the present year, for the election of two citizens to serve in the present Parliament for the said city and coimty of the city of Norwich, and was as such candidate by himself and his agents guilty of bribery, treating, and imdue influence within the true intent and meaning of ' The H 2 148 ELECTION CASES. Corrupt Practices Act, 1864/ and of divers corrupt practices at the said election, and there- by became, and was, and is utterly ineligible, disqualified, and incapable of being elected on the present vacancy to serve in Parliament for the said city and county, or of sitting in the present Parliament for the said city and county, and that all votes given or recorded by you, or any of you, for the said Sir Samuel Bignold, as such candidate on the present vacancy, will be utterly thrown away; Dated, Norwich, this 28th day of June, 1859." Signed, &c. That Lord Bury was returned at such elec- tion, the number of votes being, for Lord Bury, 1922; for Sir Samuel Bignold, 1561; and for Colonel Boldero, 39. The petition con- cluded by praying the House to declare that Lord Bury and Sir Samuel Bignold were each of them disqualified to sit for the city of Nor- wich, in June, 1859 ; that the election of Lord Bury was null and void ; and that the return might be amended by substituting the name of Colonel Boldero for that of Lord Bnry. 2nd peti- The second petition recited the petition pre- *'°°- sented against the return of Lord Bury and Mr. Schneider at the previous election, held in April, 1859, and alleged that at such election Lord Bury and Sir S. Bignold were, by them- selves and their agents, guilty of bribery, &c., whereby they were disqualified ; that public notices (as in the first petition) of such disqua- CITY OF NORWICH. 149 lification were given, and copies of the notices delivered at tlie house of every voter, and handed to every voter as he came to poU; that the largest number of valid votes at the election in June were given for Colonel Boldero; and concluded by praying the seat for Colonel Boldero. The third petition recited, as before, that Lord 3ra peti- Bury was, by himself and his agents, guilty of ^^°^- bribery at the previous election in April, 1859; that he was thereby disqualified at the election held in June, 1859 ; that notice of such disquali- fication was duly given (as in the second peti- tion) ; that by reason of such disqualification, a larger number of valid votes were given for Sir S. Bignold than for Lord Bury; that Lord Bury was, by himself and his agents, guilty of bribery, treating, and undue iafluence at the election held in June, 1859 ; and concluded by praying the seat for Sir Samuel Bignold. The petitions were read in their order from March 9. the Journals of the House. Upon the second being read, — Petitiona It was objected by Sir F. Slade, that the third ^^^ te ^ petition ought to be taken before the second, cording to because it was reported upon before the second jj^^^J"' ^'' by the examiner of election recognisances. Journals. Mr. Phinn. — The order observed by the exa- miner does not affect the proceedings before this Committee. The Journals of the House are 150 ELECTION CASES. the rule, Drogheda, W. & D. 207; Warwick, P. & K. 536. The Committee resolved — " That the petitions be read in the order in which they appear in the Journals of the House." The second petition was then withdrawn. If a mem- Sir F. Slade opened the case, and contended ^Uty by *^^* liovd. Bury was disqualified as a candidate by himself or reason of the resolutions of the Committee ap- of brfbery' pointed to try the petition against his return for at an eieo- Norwich in April, 1859 (a). In the Southampton against case, 2 P. E. & D. 47, Sir A. Cockburn having ^^^°^ ^ . accepted the office of Attorney- General, a new petition IS -l^ _ 1 o ci 1. presented, writ was issued for the borough of oouth- Iitimately amptoi"* wMlst a petition was pending against decided bis return for Southampton at the previous hfm™heis election in July, 1852. "When the writ was incapable moved for, the Speaker stated (123 Hansard, elected 1742), that in the case of an election petition, agam for complaining of an undue return, but not claim- the same . . place, ai- ing the seat for another person, it was com- befor^ the Patent to the House to issue a new writ pend- petition ing the petition ; but in the case of a petition he accepts claiming the seat, it was not competent. When an office the first petition in that case came on for hear- Crown, ing before the Committee, the Attomey-Gene- T^t^V^' ^^^ ^^^^ ■^' Cockburn) appeared before the Com- upon a mittee under protest, but the Committee decided res writ. ^-^^^ ^j^^y j^^^g^ proceed in the usual way, the (a) Ante, p. 58, CITY or NORWICH. 151 petition having been referred to tliem by the House ; and they declared the sitting member. Sir A, Cockbum, to have been duly elected. A petition was also presented against the second return of Sir A. Cockburn, on the ground that he was disqualified by reason of bribery upon the occasion of the previous election. In this case the Committee appointed to try the peti- tion against Lord Bury's return at the former election, in April, 1859, declared he had not been duly elected, and that, by his agents, he was guilty of bribery at such election ; he was therefore clearly disquaHfied at the second elec- tion ; and, if so, the votes given to him were thrown away, just as if they had been given to a minor; Tavistock, 2 P. R. & D. 5. If the votes be of no avail, and the opposing candidate has given proper notice of his opponent's dis- qualification, then he would be entitled to the seat, because he has the majority of legal votes ; and on that ground the seat is prayed for Sir S. Bignold. The writ and return for the two elections of April and June, 1859, were then put in. Mr. PMnn objected that the Committee had no jurisdiction to try this petition, so far as it affected Lord Bury; but the Committee over- ruled the objection. The petition against the return of Mr. Schneider and Lord Bury in April, 1859, was then put in, together with the Journals and the report of the Committee to the House, 152 ELECTION CASES. of 1st August, 1859. The publication of the notice as to Lord Bury's disqualification, as alleged in the petition, and the notice itself, were then proved. Mr. Clerk. — Two points arise upon this peti- tion : first, was Lord Bury disqualified ? and, secondly, was ample notice of his disqualifica- tion given ? As to the first point, the Committee upon the previous election reported that Lord teury was not duly, elected, and that by his agents he was guilty of bribery at such election. Now the 17 & 18 Yict. c. 102, s. 36, says that any candidate at an election for a county or city, who shall be declared by an election Committee guilty of bribery, treating, or undue influence, by himself or his agents, shall be incapable of sitting for such county or city during the Par- liament then in existence. By the common law of Parliament this was the ride, Stockbridge, 10 Journ. 286. In the Horsham case, 1 P. E,. & D. 256, the Committee decided that a candi- date who was guilty of treating, by himself and his agents, at a former election, was disqualified at a subsequent election for the same place ; and, it having been proved that notice of such dis- qualification had been given, the Committee struck oflf the votes given for such member, although at the time of the second election such disqualification- had not been found. This is analogous to the effect of an attainder at Com- mon Law, which takes place on a conviction or CITY Of- NORWICH. 163 judgment ; but the forfeiture of the lands dates back to the time of the commission of the offence. — Steph. Comm., vol. iv. p. 451. If Lord Bury was disqualified, and due notice of such disqualification were proved to have been given, then all votes given for him were thrown away, 2nd Clitheroe, 2 P. E. & D. 285 ; Cork, K. & 0. 391 ; Belfast, ¥. and F. 601 ; and Sir Samuel Bignold, who had the next largest number of votes, ought to have the seat which he prays for. Mr. Phinn. — The question is, whether Lord Bury was disqualified at the time of the last election for Norwich, or whether his dis- qualification has arisen since ? The finding of the Committee in July is, that he was guilty of bribery by his agents, but not by himself; and this at common law was no disqualification. Up to the passing of the Grrenville Act, the Conmaittees deciding upon all questions of con- troverted elections were Committees of elections and privileges ; and there could be no disqualifi- cation until judgment was given. ' Before the 7 & 8 Wm. III. c. 4 (the Treatiag Act), there was no statutable disqualification for treatiag. The cases of Longe, a.d. 1571 ; Bletchingly, Glanv. 39 ; and Stockbridge {supra), do not go beyond sayiag that bribery, when committed by the candidate himself, renders his election void at common law; therefore the oflence of bribery, for which a member could be unseated, must have been committed by himself, and not H 3 154 ELECTION CASES. by his agents. All the statutes upon the sub- ject of corrupt practices at elections were re- pealed by 17 & 18 Vict. c. 102, which enacts (s. 36) that a candidate declared by an election Committee to be guilty of bribery, by himself or his agents, is incapable of being elected (for such county, city, or borough,) during the then existing Parliament. But Lord Bury had not, at the time of the election and return petitioned against, been declared to be incapable of being elected, or of sitting in this Parliament. There- fore he was not then proved to have been inca- pable by himself or his agents. Then as to the effect of an attainder, the forfeiture goes back only to the time of the conviction, unless there has been any fraud, Whitaker v. Wisby, 21 L. J. C. P. 116 ; but whatever may be the law of forfeiture upon conviction, it can have no bearing upon the law and practice of Parliament as to bribery at elections by an agent, because forfeiture of lands followed upon the committal of an offence, which is a guilty act, whereas there can be no guilt chargeable agaiost a sitting member who is utterly ignorant of any act of bribery com- mitted by his agents. Here Lord Bury could not be found guilty of the offence of bribery in a court of law. In truth, 17 & 18 Vict. c. 102, s. 36, introduces a new constructive law of agency which was unknown before ; according to that section, if an Election Committee find a candidate guQty of bribery, by himself or his CITY OF NORWICH. 155 agents, sucli candidate is to be incapable of being elected for the same place during the existing Parliament ; but at the time of the election now petitioned against, Lord Bury was capable of being elected, — the report of the Com- mittee was subsequent to his election. The statute 11 & 12 Yict. c. 98, s. 86, defines the duties of an Election Committee, and enacts that the Committee is to say whether the sitting member is duly elected ; but it is not within the powers of a Committee to decide whether the sitting member is incapable of sitting in Parlia- ment or not, — ^that is a question for the House, alone to deal with. The Southampton case {supra) was decided before the Corrupt Prac- tices Act, which repealed the old statutes ; but now the Committee is governed by that Act. The Committee may report that the sitting member is duly elected, but yet that he is inca- pable of sitting in Parliament, and then it would be for the House to act in the matter. The Committee came to the following final ^arch 12. resolutions for report to the House : — 1. " That the Hon. WiUiam Coutts Keppel, ^ii^ai 'eso- TT- -n • 11 lutiona. commonly called v iscount xJury, is not duly elected a citizen to serve in this present Parlia- ment for the city and county of the city of Norwich." 2. " That the last election for the said city and county of the city of Norwich is a void election." 156 CASE XXIII. I860. CITY OF PETEEBOEOUGH. The Committee was appointed on the 7th March, 1860, and consisted of the following Members : — John George, Esq., Wexford County, Colonel Hon. James Lindsay, Wigan. Francis William Eussell, Esq., Limerick City. Stephen Cave, Esq., Shore- ham. Monntstuart Elphinstone Grant-Duff, Esq., Elgiu District. Petitioners : — Electors. Sitting Member petitioned against.- — George Hammond Whalley, Esq. Counsel for Petitioners ;^Mr. Phirai, Q.C., Mr. Serjeant Pigott, and Mr. W. H. Cooke. Agents .- — Mr. T. Baker, Messrs. Deacon and Taylor. Counsel for Mr. Whalley : — Mr. Forsyth, Q.C., and Mr. Tindal Atkinson. Agent : — Mr. D. Cooper. March 9. The Committee agreed to tlie first twelve of iiary™e'so- *^^ usual preliminary resolutions (a). lutions. (a) Ante, p, 121. CITY OF PETERBOROUGH. 157 The petition, after stating that at the last Petition, election for the city of Peterborough, Thomson Hankey, Esq., George Hammond Whalley, Esq., John Harry Lee Wiagfield, Esq., and James Plaisted WUde, Esq., were candidates, and that the two former were returned, alleged Bribery, bribery, treating, and undue influence agaiast *''^^*™&' --^ ■ ■ ■ ■ ^^ ^ and undue Mr. Whalley and his agents, and prayed the influence. Hoxise to declare his election and return to be nuU and void. Mr. Serjeant Pigott opened the case. The evidence with regard to the agency of what not John Millar was to the effect, that he had accom- sufficient panied Mr. Whalley, with five or six others, on agency. the first day of Mr. WhaUey's canvass ; that he had been an active supporter of Mr. WhaUey at previous elections ; and that he had been seen in and about the committee-room on one or two occasions. But it appeared from the evidence given on behalf of Mr. Whalley, that the com- mittee-room was thrown open to the general public during the evening, for the purpose of speechifying, &c., and that 100 or 200 people were in the habit of attending there ; that Mr. MiUar, who was a clothier in Peterborough, was expressly excluded from the committee- room during the day, when the business of the committee was proceeding ; that he was never recognised in any way by Mr. Whalley or his party as acting on their behalf, but, on the contrary, that he had acted as the agent 158 ELECTION CASES, for Mr. "Wingfield, the Conservative candidate, on several occasions during the election, with reference to a proposed coalition between the Conservatives and Mr. Whalley's supporters. This coalition, it appeared, had been repudiated by Mr. "Whalley and his committee, in conse- quence of which some ill-feeling had arisen between the two parties, who, although opposed to each other in politics — Mr. WhaUey being a Liberal — both represented the independent in- terest, as opposed to the influence exercised in the borough by the Fitzwilliam family. The evidence with regard to the agency of Mr. Johnson Reed was to some extent similar to the above; but he, it appeared, had never accompanied Mr. Whalley on his canvass, or been seen in or about Mr. Whalley's com- mittee-room. Whatnot Most of the cases of bribery adduced on ^^°^^*^f behalf of the petitioners failed, or were con- bribery, tradicted by the evidence given on behalf of Mr. WhaUey. It appeared, however, that a Mr. William Vergitt, an active supporter of Mr. Whalley's, who had seconded him at the nomi- nation, and was chairman of his committee, wrote the following letter to a Mrs. Turner, with whom one R. Kelly, a voter, who was' residing at Manchester at the time of the election, had left his address : — CITY OF PETERBOROUGH. 159 " Peterborough, April 27tli, '59. " Mrs. Turner, Mr. Peacli's yard. " If you will be so good as let Mr. Ricbard KeUy know tbat this election will take place on Saturday, and tbat as be bas promised to vote for Mr. Wballey, I hereby promise on behalf of the committee of Mr. W. to pay his expenses if be will fulfil such arrangement. " Yours obediently, " WiUiam Vergitt." Mr. Yergitt was called as a witness on behalf of Mr. Wballey, and upon cross-examination admitted tbat be would not have paid Kelly bis expenses if he bad plumped for Mr. Wingfield, and that bis letter meant, "If you come and vote for Mr. Wballey, you shall have your expenses." On re-examination, he stated that he only intended to promise Kelly bis legal expenses, viz., such expenses as the law allowed him to pay. At the conclusion of the case, the Committee came to the following final resolutions for report to the House : — 1. " That George Hammond Wballey, Esq., March 13. is duly elected a citizen to serve in this present j^'^ong^^"" Parliament for the city of Peterborough." 2. "Tbat it was proved to the Committee tbat Richard Kelly had been bribed with the payment of £1 by Johnson Reed, and with the further payment of £10 by John Millar. John 160 teLECTION CASES. Norman witli tlie payment of £4 by Jolin Millar. Charles Pirti with the payment of £8 10*. by Johnson Reed. That £5 were given by John Millar to Ann Stimson, the wife of James Stimson, a voter, with the corrupt inten- tion of influencing his vote." 3. " That it appeared to the Committee that Johnson Reed and John Millar were not the agents of George Hammond Whalley, the sitting member." Costs re- Mr. Forsyth applied for costs under the 11 & fused. j2 Vict. c. 98, but, The Committee refused the application. 161 CASE XXIV. BOEOUGH OF BEEWICK-ON-TWEED. i860. The Committee was appointed on the 14tli March, 1860, and consisted of the following Members : — Eight Hon. Frederick Peel, Bury, (JChairman.) Lord Eohert Cecil, Stam- ford. Grosvenor HodgVinaon, Esq., Newaj-k. Eichard Penruddooke Long, Esq., Chippenham. Sir John OgUvy, Bart., Dundee. Petitioner: — Eichard Hodgson, the defeated candidate. Sitting Member petitioned against : — Dudley Coutts Maqoribanks, Esq. CovMsel for Petitioner: — Sir Erederidk Slade, Q.C., and Mr. Clerk. Agents : — Messrs. Lyons, Barnes, and EUis, and Mr. E. B. "Weatherhead. Counsel for the Sitting Member : — Mr. Phinn, Q.C., Mr. Wordsworth, Q.C., and Mr. Melville. Agents : — Mr. Baker, Messrs. Shum and Grossman, and Mr. E. Douglas. The Committee agreed to the thirteen usual Preiimi- ... , ,. / % nary reso- prehmmary resolutions (a). lutions. (a) Ante, pp. 11 and 121. 162 ELECTION CASES. Petition. The petition, after stating that at the last election for Berwick, in August, 1859, Mr. Marjoribanks and the petitioner were candidates, and that the numbers were, for Marjoribanks 305, and for the petitioner 304, complained of the improper return of Mr. Marjoribanks, on the ground that many of the electors -poting for Mr. Marjoribanks had been disqualified by reason of non-residence, or on the ground of some statutable incapacity, or in consequence of having received parochial relief, or from having no legal qualification to be on the register, or through having given or taken bribes, or been guilty of offences within the meaning of the Bribeiy Corrupt Practice Act. The petition then alleged treating, bribery and treating by the sitting member and his agents ; payment of expenses other than Sitting through the election auditor ; that the sitting diaqnaii. member was at the last election disqualified, fied by because he had by himself and his agents been bribery at .. jy , •■, ■, -,. , . p preceding guilty 01 bribery at the preceding election tor election. Berwick, in April, 1859. It concluded by pray- Sorutiny. ing a scrutiny, and the seat for the petitioner. March 16. Sir F. Slade, for the petitioner, abandoned the charges of bribery, and stated that the peti- tioner's ease would be confined to the scrutiny. Mr. Clerk stated that he proposed to proceed in the first instance with the scrutiny of non- resident voters. BOROUGH OF BEEWICK-ON-TWEEn. 163 GEOEGE HOOD'S CASE. Objected to on the ground of non-residence. It was proved tliat this voter had for some wiat years occupied a house within the borough, at sufficient the yearly rent of £10 ; that he entered at 0^11-^8^ Martinmas, and that on the 22nd of June, 1859, '^^'''=^- he went to Leith to commence the business of a grocer there, which he had carried on ever since. On first going to Leith, the voter and his wife took lodgings, where they remained about six weeks, leaving their furniture and household goods in the house at Tweedmouth ; six months notice to quit this house was given by the voter at Whitsuntide, which would expire at Martinmas ; and in September the rent was paid by him up to that time. On or about the 22nd of July the voter removed all his furniture, with the exception of a barrel and a press, and gave the key of the house to a sister-in-law, who had charge of it until Martinmas. He had never lived in the house since he left it in June, his niece having the charge of the furniture, whilst the voter and his wife lived in lodgings at Leith ; and the press, which was the ,only thing left worth taking away when the furniture was re- moved, was taken away during the following August. Mr. Clerk summed up the evidence against the vote :— By the 6 & 7 Vict. c. 18, s. 79, the register is to be conclusive evidence that the persons named therein continue to have the 164 ELECTION CASES. qualification annexed to their names ; but, by the 2nd proviso, no person is to be entitled to vote at any future election, unless he shall, ever since the 31st of July in the year in which his name was inserted in the register, have resided, and at the time of voting shall continue to reside within the borough or place for which he claims to vote. In the Bath case, W. & D. 145, the vote of W. H. Walmsley was held bad where it was proved that he had left his house on the 5th of December, and given up possession to the house agent, although he had removed his fur- niture to a warehouse withia the city, and had, after giving up the house, been at Bath for his own private affairs and not for the purpose of voting. In this case the voter had given up possession of his house long before the election, and had actually taken a house and gone into busiaess elsewhere, to which place the whole of his furniture had been removed. He there- fore was no longer residing at Berwick up to the time of the election ; and therefore his vote must be struck off. In Whithorn v. Thomas, 7 M. & G-. 1, the Court held, that a person sleeping occasionally within a borough where he carried on his business, did not reside within the borough so as to be qualified to vote. Mr. Wordsworth, contra. — The voter was the tenant of the house until Martiamas, 1859, and until that time he had a free right of coming there whenever he pleased. The words "residing within the borough " are referred to in Eager s BOROUGH OF BERWICK-OX- TWEED. 165 on Elections, 85 (9tli ed.), where it is suggested, that absence, coupled with the power to return, and an intention to return, whenever it may suit the person's convenience, is a constructive legal residence. In the case of Whithorn v. Thomas, the voter never did actually reside at Tewkes- hvocy under any circumstances ; and, therefore, that case does not bear upon the question now before the Committee. Vote bad. JOHN BIERELL'S CASE. Objected to on the ground of non-residence. The voter occupied a house in Berwick up to What November, 1858, when he went to Newcastle, sufficient ,,,,., ,.,. eviaenceof where he had obtained work m his trade of a non-resi- currier ; he left his wife behind him at the '^^'"'®- house in Berwick, but she followed him to Newcastle in May, 1859. During all this time the voter had been working at Newcastle, living in lodgings the greater part of the time ; but a few weeks before his wife joined him, he had taken a house in Newcastle, to which the fur- niture was brought from Berwick, when his wife and famih' came to Newcastle. After they had left Berwick the house was to be let, and it actually was taken by a person, who, however, never occupied it, and in October, 1859, the voter returned again to the same house in Berwick ; but he stated that, had he continued to get suitable work at Newcastle, he had no 166 ELECTION CASES. intention of returning to Berwick, and tliat he only did return because he was not satisfied with his employment at Newcastle, and because, in October, 1859, he had the o£Per of work at Berwick before he left Newcastle. It appeared that the voter had never been at Berwick, after his wife left in May, 1859, except for the pur- pose of voting at the election, when he went to a friend's house, and not to his own, in which there was then no furniture. whatever. Vote bad. In soni- Mr. Phinn, on behalf of the sitting member, sufficient'^ stated that the petitioner being now in a number of majority of one, he should proceed with the given for cases of voters objected to in classes 5 and 1, sitting oil the ground of non-residence and bribery. are struck Two votes given for the petitioner having then off poll to \jQQxi struck off by the Committee, on the ground givepeti- . •' o tioner a 01 non-residence, majority, ]y[j.. Qlerk, on behalf of the petitioner, stated member's that he would proceed with the cases of non- ITt^^ residence, be pro- ceeded with, and vice verai. SAMUEL FISH'S CASE. What The voter had for some years carried on the evidence husiness of a boot and shoe maker at Berwick, res^den ^^ September, 1858, he went to Jedburgh, and opened another shop there, his wife and family continuing to live in the house and shop occu- pied by him at Berwick, until May, 1859, when BOROUGH OF BERWICK-ON-TWEED. 167 tHey came to live at Jedburgli, and had con- tinued to reside there ever since. After his family left Berwick, ia May. 1859, an alteration was made in the premises occupied by the voter, by dividing off the shop from the dwelling- house, the voter continuing to occupy the shop, keeping his name over the door, and carrying on his business there, but the house was let to a new tenant. After the above alteration was made, there was no communication whatever between the house and the shop, which was always fastened on the outside by the voter's assistant on shutting up for the night, and quitting the premises. The voter himself, when his health permitted, used to go to Berwick on Saturdays to look after the business, returning generally the same day to Jedburgh, but occa- sionally remaining until Sunday morning. Mr. Clerk summed up against the vote. March l7. Whithorn v. Thomas, 7 M. & Gr. 1, shows that occupation alone wiU not confer a vote : there must be continual residence up to the time of the election. So also 6 Yict. c. 18, s. 79, enacts that a voter must have resided within the borough up to the time of polling, to entitle him to vote ; whereas here the voter resided at Jedburgh, and only came to Berwick occasion- ally ia the way of his business. Mr. Phinn, in support of the vote. — The voter is upon the register for 1858, his qualification being a house at Berwick ; and no evidence has been produced to show that he did not often 168 ELECTION CASES. sleep in Berwick after Ms family had gone to Jedburgh. It is not necessary that he should sleep in the same house where his business was carried on ; if he slept within the borough of ■ Berwick that would be sufficient. Whithorn V. Thomas is no authority in this case, because there the revising barrister had found, as a fact, that Thomas, the voter, did not reside at Tewkesbury. Vote bad. THOMAS BOWHILL'S CASE. What not Objected to on the ground of non-residence, sufficient "Jiie voter was a freeman of the borough. In ofnon- the month of May, 1859, whilst living with residence, j^^ father in Berwick, he accepted an employ- ment as clerk to a Mr. WOliam Lowrey, a land agent living at Barmoor, within seven miles of Berwick, at the salary of £65 a year, but no- thing was said about any notice to quit being given ; and in August, 1859, with his master's permission, he left to better himself, and took a situation as clerk in an office at Mile End, near London. Whilst in Mr. Lowrey's service the voter took lodgings at Barmoor, beyond the limits of the borough ; but he kept the room at his father's house, where he used to sleep before he went to Mr. Lowrey's, and always went there on Saturday, remaining until Monday. Ultimately he left Mr. Lowrey's service four days before the election, and returned to his father's house, BOEOUGH OF BER-^VICK-ON-TWEED. 169 wlience he went to Ms new situation at Mile End, on tlie 22nd of August. Mr. Clerk, against tlie vote. — The voter claims to vote as a freeman, under s. 32 of the 2 & 3 "Will. IV. c. 45, and not as a householder, under s. 27; he would not, therefore, be entitled to vote unless he had resided for six months previous to the 31st of Jiily, 1859, within the borough of Berwick, or within seven miles from the polling-place. Now here the voter took lodgings beyond that distance, and therefore, although he may have come to his father's house every Saturday and remained till Monday, yet he would be resident at the place where he took lodgings, with a view to being near the place of his employment ; and if his residence were there, by s. 79 of 6 Vict. c. 18, his vote ought not to be allowed, because he did not reside within the borough up to the time of voting. Mr. Phinn, in support of the vote. — By s. 76 of the 6 Vict. c. 18, the seven miles mentioned in 2 & 3 Will. IV. c. 45, s. 32, are to be "mea- sured in a straight line on the horizontal plane, from the point within the borough sharing in the election therewith, from which such distance is to be measured according to the directions" contained in the said 32nd section. Taking these two sections together, the distance is to be measured as the crow flies, and not by the road ; and even if it were by the road it appears that the place where the voter carried on his business was within the seven nules by a foot- I 170 ELECTION CASES. path. But, further, the voter kept up his residence at his father's house without any in- tention of relinquishing it, although he may have had a lodging beyond the seven miles, for his own convenience, on the days when he could not return to his father's. Vote good. EDWAED DIXON'S CASE. What Objected to on the ground of non-residence. sufficient Tj^g ^Qter, up to June, 1859, carried on the evidence . ■■• . . . ofnon- busmess of a grocer m Berwick, but durmg residence. ^-^^^^ month, faUing into difficulties in conse- quence of the failure of the Northumberland and Durham Bank, he sold off his stock and went to Edinburgh, where he carried on the business of a grocer in Northumberland Street, for a Mr. Laurie, at weekly wages. The house he had occupied in Berwick was given up at Martinmas, 1859, but all the furniture had been removed by the voter's sister into another house in Berwick, which she had hired, in July of the same year. The voter stated that this furniture belonged to him and his sister jointly ; that he went to his sister's house at the time of the election ; and that he always looked upon Ber- wick as his home, considering his residence at Edinburgh as a temporary matter during his difficulties. Mr. Clerk summed up the evidence against the vote. BOROtTGH OF BERWICK-05r-TWEED. 171 Mr. Phinn, in support of the vote, cited the 2nd Lancaster case, 2 P. R. and D. 168 ; Cooke's case, "W. and D. 149 ; and Crisp's case, W. and D. 153. Vote struck off. ADAM EOBISON'S CASE. Objected to on the ground of non-residence, what not The voter was a plumber in Berwick, and sufficient •31 T -1 ■ TTT- evidence occupied a nouse and shop in Western Lane, of non- Berwick, up to May, 1859, when he gave it up residence. and took lodgings for himself and family whilst he got the best employment he could as a jour- neyman ; but, business being slack, he applied for and obtained a situation as porter at the Pensher station of the North Eastern Eailway, about eighty miles from Berwick, where he went on the 8th of August. There he hired lodgings at a fortnight's notice, such being the terms of his engagement with the Company. On the 14th of November, 1859, he removed his wife and children from the lodging he had taken in Berwick during the months of May, and brought them to Pensher, where they had since lived. The voter stated that he could always have gone to the lodgings in Berwick when he pleased, and that if the situation at Pensher had not suited him, or if he had not suited the Company, he should have done so. Vote good. I 2 172 ELECTTIOIf CASES. JOSEPH HENRY DAELING'S CASE. Objected to on the groimd of non-residence. Wliatnot The name of this voter appeared No. 460 an express upon the register, which had been made out in the revis- the regular way by the town clerk of Berwick. ing bar- j^ appeared that a claim to be placed upon the register was made out on his behalf by Mr. Sanderson, one of the Conservative agents for the borough, and that when the names of claim- ants were called over in their order before the revising barrister, no evidence being given in support of the claim., the revising barrister, ac- cording to his usual practice, was about to strike his pen through the voter's name, when Mr. Sanderson interposed, and gave some evidence as to the voter's qualification, with which the opposite agent expressed himseK satisfied. The original claim itself was produced before the Committee, when it appeared that the voter's name was in fact struck through, but that the initials of the revising barrister were also against the name ; and it was proved that this, according to his practice, was an admission of the claim ; whereupon the town clerk inserted the name upon the register. March 19, Mr. Clerk, for the petitioner, objected that before the Committee could inquire into the objection to this vote, they must be satisfied that there had been an express decision of the re- vising barrister, 2nd Lancaster, 1 P. R. and D. BOROUGH OF BER-WICK-ON-TWEED. 173 169 ; Bath, W. and D. 152 ; and 1st Harwich, 1 P. E. and D. 303, Cobbold's case. He then called a witness, a solicitor of Berwick, who attended the court of the revising barrister on behalf of the Conservative party with Mr. San- derson, who stated that there was no argument whatever before the revising barrister as to the voter's qualification, nor any evidence whatever given against his right to be placed upon the re- gister. The voter himself was also called, when, Where an Mr. Wordsworth proposed, on cross-examina- ol>jeotion tion, to ask him of whom he hired the warehouse before the which appeared upon the claim to be the nature Conmiit. 01 nis quaimcation. there has Mr. Clerk obiected, that the examination must ^^^^ ^° •> . express be confined to the question, whether or no the decision revising barrister had given an express decision, i,^!^i^„ inasmuch as by the 6 Vict. c. 18, s. 98, the barrister register was conclusive as to the qualification of claim a voter whose name appeared upon the register. ^^ ^^■ Mr. Wordsworth was heard against the ob- caJied to je^tio^- • . . ^^: The Committee allowed the objection. the cross- examina- tion must After hearing the arguments of counsel on be con- the main question, the Committee decided, ^he ques- " That there was not an express decision of *i°'' ^^s- the revising barrister for the insertion in the has been register of the name of Joseph Henry Darling." ^ express not. 174 ELECTION CASES. WILLIAM GRAY'S CASE (a). Objected to on the ground that he had re- ceived parochial relief. A eertifi. ^^- Wordsworth proposed to put in evidence cate of a certificate, under 7 & 8 Vict. c. 101, s. 69, and signed by Chairman of the Board of Guardians for the man of the Poor Law Union of Berwick, showing that Board of j},achael Gray, the voter's wife, had become Guaraians •" _ • under 11 & chargeable to the parish on the 24th December, iio7s*ii; 18^^' citing Taylor on Evidence, p. 1297 (3rd is admis- ed.), S. 1441. evidence ^^- Clerk. — This evidence is not admissible. of the The persons giving the relief ought to be called parochial to prove the fact. The 11th section of 11 & 12 rehef. Vict. c. 110, makes such a certificate sufficient evidence of chargeability for the purpose of making an order of removal withia twenty-one days from the date of it ; but it cannot be used here so as to render it unnecessary to produce the persons who actually gave the relief relied on. The Committee decided that the dociunent was admissible in evidence. A voter The identity of the voter, and Rachael, his whose ^^e, having been proved, and the certificate been put in, a Wi" ^^- ^^^^^' ™ support of the vote.— By the (a) It was admitted tiat in this case there had been an express decision by the reyising barrister. BOKOTJGH OF BERWICK-ON-TWEED, 175 7 & 8 Vict. c. 101, s. 27, tlie overseers of a asylum at parish are enabled to recover tlie costs of the pgng^e^of maintenance of a lunatic, where such lunatic tiie parish, has an estate sufficient for the purpose ; and, ufied from therefore, it becomes a mere debt from the ■^o*™g> ^ person liable to pay, and is not in any sense a received receipt of parochial relief; and, therefore, if it P^"?'?' be proved that the voter has been called upon thongh he to pay, and actually has paid, all that the parish ^^^tjy charged him in respect of his wife's confine- repay the ment in the lunatic asylum, there would be no ™™^y* ground for saying that the voter had been in the receipt of parish relief. The voter himself, and the' assistant-overseer, were then called; when it appeared that the voter's wife was removed to a lunatic asylum ia December, 1857, and remaiaed there untH June, 1858, when she returned home, and had since Kved with her husband. On the 7th January, 1858, he had signed an agreement with the overseers to pay them £12 a year towards his wife's maintenance whilst ia the asylum, and he had actually paid to them the sum of £3 15s. on her account, with which the overseers were satisfied, they haviag agreed, by the recom- mendation of the Poor Law Guardians, to reduce the payment agreed to be made by the voter, from £12 a year to £8. It was also proved that at the asylum £30 was the usual amount charged to the parish on account of pauper patients, but it was not proved what was the charge made on accoimt of Eachael Gray. 176 ELECTION CASES. Mr. Wordsworth, against the vote. — This ob- jection is taken under s. 36 of the 2 & 3 "Will. IV. c. 45, whereby the receipt, within a year of 31st July, of parochial relief, which, by the then law of Parliament, disqualified a voter from voting, disentitles the voter to be upon the register. "Whether such parochial relief has been repaid afterwards is immaterial ; if the parish pay the money the relief is granted. March 20. The Committee decided " that "William Gray had not a right to vote" (a). VA"[JGHAN CTJREY'S CASE. Objected to on the groimd of having received parochial relief. Payment It was proved that at the Revising Barrister's by the Court, held in October, 1859, this voter was officer to a objected to on the ground of chargeabiHty. The medical yoter not appearing, his name was struck out, certificate upon the evidence of the relieving-officer of lunloy not Berwick that he had received parochial relief, a receipt The relieving-officer being called, stated that chiai ^^ li^( CASE XXVI. CLARE COUNTY (Secokd). iseo. The Committee was appointed on the 5th day of June, 1860, and consisted of the following Members : — John Mellor, Esq., Nottingham, {Chairman.) James "WaHington Percy Earl of GifEbrd, Tot- WaUington, Esq., South ness. Essex. • John Thomas Norris, Viscount Emlyn, Pembroke- Esq., Abingdon. shire. Petitioner : — Charles White, the defeated Candidate. Sitting Memher petitioned against : — Francis Macnamara Caloutt, Esq. Counsel for the Petitioner : — Sir ib-ederick Slade, Q.C., Mr. Phinn, Q.C., and Mr. Welsby. Agents : — Messrs. Holmes and Co. Cow,nselfor Sitting Member : — Mr. J. Clerk and Mr. J. B. Karslake. Agents : — Mr. Baker. O 1 The Conunittee agreed to the twelve usual pre- June 7. limiQary resolutions (a). The petition stated that at the election for Petition, the county of Clare, held iu May, 1859, Colonel {a) Ante, p. 11 & 121. 192 ELECTION CASES. Vandeleur, Colonel White, and Mr. Calcutt were candidates, and that the two former were returned. That a petition of electors was pre- sented against the return of Colonel "White, which was heard by a select committee, who de- clared his election and return to be void. That on the 21st of March, 1860, a new writ was is- sued for a new election for the said county, which election took place on the 7th of April, 1860. " That before, during, or after the said eleetion in May, 1859, the said Francis Mac- namara Calcutt, Esq., by himself, his friends, ' or agents, or by a person or persons employed Corruptly in his behalf, unlawfully, secretly, and corruptly fe^™&o S^^^ certain fees and rewards, and made certain to sheriff, payments of money by way of compliment and gratuity to the sheriff and under-sheriff of the said county of Clare, or to either of them, by reason of the giving of which fees and rewards, and also by reason of the making of which pay- ments of money by way of compliment and gratuity as aforesaid, the said Francis Mac- namara Calcutt, Esq., became and was wholly disabled, incapacitated, disqualified, and ineli- gible to become a candidate, or to be elected and returned, or to sit or serve in this present Parliament for the said county of Clare, upon such election holden in April, 1860, or upon the vacancy occasioned by the setting aside of the said former election and return of the said Colonel Luke "White, by virtue of the statute in such case made and provided." CLAllE COUNTY. 193 " That before, during, or after the said election Diaquali- in May, 1859, the said Francis Macnamara br^*^°y ""^ Calcutt, Esq., by himself, his friends or agents, &o.,andby or by some person or persons employed by himf^f feea or them, directly or indirectly gave eertain *» agents, n J, 1 , • • p , inspectors, sums 01 money, lees, and retammg tees, to cer- &o., than taia agents, inspectors, and clerks, for doing allowed by somethmg of and concerning matters relating previous to such election ia May, 1859, over and above ^1^°''°"- the sum and sums set forth to be paid in the Schedule to the Act in that case made and pro- vided to agents, inspectors, and clerks ; by reason of the giving of which sum or sums of money, fees, and retaining fees, as last aforesaid, the said Francis Macnamara Calcutt, Esq., became and was wholly disabled, incapacitated, dis- qualified, and ineligible to become a candidate, or to be elected and returned, or to sit or serve in this present Parliament for the said county upon such election in April, 1860, or upon the vacancy occasioned by the setting aside of the said former election and return of the said Colonel Luke White, by virtue of the statute in such case made and provided." That at the new election on the 7th of April, the said F. M. Calcutt, notwithstanding his dis- ability as aforesaid, became again a candidate. That before the nomination a notice of such Due notice disquaUfication, under the hands of two duly ^^^^^2' qualified electors, was publicly given to the said given. F. M. Calcutt, and to the returning officer of the county, in the presence of the electors. That K 194 ELECTION CASES. the said F. M. Calcutt was put in nomination and was returned. That the disability o£ the said F. M. Oalcutt was notorious to the electors. That ia addition to the puhHc notice so given as aforesaid, printed notices of such disability were also given to the persons appointed to preside at the different polling-booths, and were printed and distributed to the voters. The petition then set out a copy of the notice of disability. Finally, it prayed the House to declare Mr. Calcutt's election and return to be null and void, and that the return should be amended by sub- stituting the name of the petitioner in the place of the said F. M. Calcutt. Where a Sir F. Slade was about to open the case on wh^^sar fcehalf of the petitioner, when, upon a Mr. Clerk objected, that the only material elTotiou^ allegation in the petition was the disqualification has de- of Mr. Calcutt, on the ground that he had made cidod (upon re- illegal payments to the under-sheriff and agents crimina- ^^ ^j^g election in 1859, and that this matter tory evi- . . - . denoe) had been inquired into on a former occasion (a). n^of dt".'^ Sir F. Slade.— The Committee which inquired quaiifledto into the previous election, after hearing recrimi- plaoe^ and^ natory eAridence against Mr. Calcutt, resolved A. stands that it was not proved, to their satisfaction, that place at a Mr. Calcutt was disqualified as a candidate for subse- the representation of the county of Clare. This quenteleo- ,i , n i i n^ ■ shows that they had not sumcient evidence (a) See 1st Clare case, {ante, p. 143). CLARE COUNTY. 195 before them to report that Mr. Calcutt was dis- tion.andis qualified ; and, as the resolution was not reported the'X!^' to the House, pursuant to s. 87 of the 11 & 12 oision of Vict. c. 98, it is merely an obiter dictum, and not vioua^om. a judgment that Mr. Calcutt was duly quali- mittee is fied. At all events, the illegal payment to the taken as under-sheriff, alleged in this petition, was not ooiusluBive known when the former one was tried, and is quaHfioa- new matter, which this Committee may go into. ^°^gf?J. The present petition is by a stranger to the pel to a former proceeding ; and it complains of Mr. ^einK°sulD- Calcutt's election upon the vacancy caused by sequentiy the unseating of Colonel White, upon the ground against that at the election in 1859 he violated the^i^fof.^ dasqualiii- 1 & 2 Greo. IV. c. 58, by givmg a gratuity to cation at the under-sheriff, and payments to his ^g^nts ^^^^J?^"*^ beyond what that Act authorizes, whereby he reason of was disqualified jfrom again becoming a candi- ^g ^r^gt.^* date. It is a rule, that the conduct of a candi- date at one election may be questioned upon a second election arising out of the former ; and, therefore, if he is shown to have made illegal payments both to the sheriff and to his agents in 1859, then he was disqualified at the last election. Even if upon the former inquiry there had been a judicial decision respecting Mr. Cal- cutt, which is not the case, it could not affect this petitioner, because an estoppel is only bind- ing between the parties. The decision of the former Committee, by the 11 & 12 Vict. c. 98, s. 86, is to be final between the parties ; but Mr. Charles "White is a stranger to that pro- K 2 196 ELECTION CASES. ceeding, and, tlierefore, is at Kberty to prove tliat Mr. Calcutt was not a qualified candidate, and that he is entitled to the seat. The Committee determined, that it was neces- sary to go into the facts of the case before they coiild decide the objection. Payments It appeared that at the general election in election to May, 1859, Colonel Yandeleur, Colonel Luke the Under- -^j^ite, and Mr. Calcutt were candidates for the Bheriffand ' others in county of Clare, and that Colonel Vandeleur and thrsums Colonel White were returned. A petition, by allowed by electors, coinplaining of the return of Colonel Geo.rv. White, and claiming the seat for Mr. Calcutt, c. 58, if -w^as afterwards presented, and heard in March corruptly, l^^t, when it was resolved that Colonel White do not dis- j^^d not been duly elected ; and, further, that it person was not proved to the satisfaction of the Com- makinff mittee that Mr. Calcutt was disqualified as a them irona . , ^ standing candidate for the representation of the county qnent dec- ^^ ^^^^® («)• ^^ ^"^^ P^0^®*1 *^^t ^^- Calcutt tion, or had, on the occasion of the election in 1859, avoid the P^^*^ ^^ ^^- ^^^^Jt ^^^ principal agent, the election at exact sum authorized by the 1 & 2 Geo. IV. are made. c. 68 ; that Colonel White having engaged all the agents in the country, he had been obliged to get solicitors from Dublin to act as his agents, to one of whom he had paid £25, and to four others £20 each. By the 1 & 2 Geo. IV. c. 58, the conducting agent is to receive the sum of faj Ante, p. 143. CLARE COUNTY. 197 £100, and the other agents six guineas for the first day's polling, and three guineas for every other day. It was also proved that the under- sheriff, Mr. Henry Green, had been paid the sum of £120 by Mr. Calcutt, which was in excess of the legal demand. Mr. Green, who was called as a witness for the petitioner, stated that this sum was paid to him absolutely as his fee, and to cover all expenses of booths, polling clerks, &c., and that it was customary to get something in addition to the legal demand at elections; whilst Mr. Calcutt's conducting agent stated that Mr. Green asked him for that sum, and that it was paid to him on account of expenses only, he to repay any surplus that might remain in hand after aU expenses were paid. It appeared that a meeting had been held at the under-sheriff's to arrange about the expenses; that Colonel White was not repre- sented at that meeting, and that it was the con- ducting agent of Colonel Vandeleur who pro- posed that the agents should give the under- sheriff £120 each, which was agreed to. Mr. Clerk, onbehalf of the sitting member (a). — First, this is a matter already decided. The previous Committee resolved that Mr. Calcutt was not proved to be disqualified from becoming a candidate at a subsequent election. Had they (a) It -was agreed that the question of notice should stand over until the decision of the Committee had been taken upon the question of qualification. 198 ELECTION CASES. decided that Mr. Calcutt was disqualified, we should have had no answer to this petition. It is true that on that occasion the claim of the seat was withdrawn ; but the petitioner having claimed the seat, the whole conduct of the claimant was in issue ; and although the claim was withdrawn, the other side could not by that be deprived of their right to recriminate. Rogers on Elections (9th Ed.), 470, et seg. ; Warren on Election Comm. 485 ; Galway case, P. & K. 118 ; Ennis case, K. & 0. 485. And although the minutes of the former Committee show that a part only of the present cause of complaint was before the former Committee, and although it is said that the petitioner did not then know of the alleged illegal payment to the sheriff, yet they might have known it, and therefore they are not entitled to bring it forward now. It is said that this is not an inquiry between the same parties ; but suppose the former Committee had resolved that Mr. Calcutt was disqualified, coidd he have said that the present petitioner could not have taken advantage of it ? This is not a question inter partes, it is a judgment in rem, and is in the nature of a criminal inquiry. It has been argued that the resolution of the former Com-, mittee is not binding because it was not reported to the House ; but s. 86 of the 11 & 12 Vict. c. 98 relates to the determination of the Select Committee whether A. or B. is duly elected, and shows what is to be final between the parties ; CLARE COUNTY. 199 s. 87 only enables the Committee to come to re- solutions which they may report to the House or not, such as whether a witness has prevaricated, or that certaia persons should he prosecuted for perjury. The question of Mr. Calcutt's dis- qualification, was before the last Committee ; they decided upon it, and as there is no Act authoriziag another Committee to re-open the question, their decision is final. But, secondly, was Mr. Calcutt in fact dis- qualified ? Even supposing the payment to the under-sheriff to have been made absolutely, such payment is only illegal by the 1 & 2 Greo. IV. 0. 58. There is no suggestion that it was paid corruptly so as to influence the return. Moreover, the Act is impliedly repealed. The 2 &3 WiU. IV. c. 88, s. 48 (Irish Eeform Act), makes new arrangements respecting poUiag- booths and the expense of candidates at elections, which are inconsistent with the 1 & 2 Geo. IV. c. 58. It enables the candidates to contract for the erection of polling-booths, or to pay the under-sheriff for them. Then the 13 & 14 Vict. c. 68, by s. 19 limits the amount to be charged by the returning officer for the poUiag- booths, but does not make it illegal to pay a larger sum. Can this Act be read with 1 & 2 Geo. IV. c. 58 so as to make such a payment illegal ? Then, as to the payments to agents, the 1 & 2 Geo. IV. c. 58, s. 6, and Schedule B, point out what is to be paid to them ; but at that time county elections lasted for fifteen days. 200 ELECTION CASES. and the schedule of fees in that Act Is drawn up with reference to that fact. The 13 & 14 Yict. c. 68 reduced the time to two days ; and it by no means follows that what was a fair remunera- tion for fifteen days would be so for two days. Again, an agent in that Act means a person on the spot ; and if one candidate secures them aU, other candidates must be allowed to pay the expenses of bringing agents from a distance, and if they are professional men, the candidate must pay their charges beyond the fees allowed by the 1 & 2 Geo. IV. c. 58. It is said that that Act only allows one conducting agent to each candidate ; but the final paragraph in Schedule B shows that one conducting agent and a barrister might have been employed at each place of polling; and as the Act does not define a conducting agent, aU the agents paid by Mr. Calcutt may be considered as conducting agents, and there- fore they have not been paid more than what the Act authorized. But even if the 1 & 2 Geo. IV. c. 58 be not repealed by other Acts, it clearly is by the 17 & 18 Vict. c. 102, which applies to Ireland, and was passed to consolidate the laws relating to elections, and provides for a new class of agents, not limited either in number or remuneration ; s. 31 clearly contem- plates the appointment of several agents, and also of an agent for election expenses, who is not the same person as the conducting agent. In fact, this Act alters the whole state of the CLAEE COUNTY. 201 law, and makes the 1 & 2 Geo. IV. c. 58 entirely- inapplicable. Evidence having been adduced on bebalf of the sitting member as to the circumstances under which the money was paid to the under-sherifiF, Mr. Karslake summed up. — It is necessary to show that the extra sum paid to the under- sheriff was paid as a gratuity ; if it were paid on the understanding that everything beyond the proper charges was to be repaid, there is no offence within the 1 & 2 Geo. IV. c. 58, suppos- ing it to be in force ; but it is clearly repealed as to the sheriff; and even supposing it to be in force as to agents, Mr. Calcutt has not infringed it. What was meant by an inspector, as distinguished from a conducting agent, at that time was, that inspectors were to be paid so much a day during the polling ; but if the inspector were a professional man he would be entitled to be paid extra for his services, the clause at the end of the schedule clearly showing that the fees allowed were to cover all other petty expenses of > a similar character to those referred to. This is a penal Act, and Mr. Cal- cutt must be brought within it by showing that, if 1 & 2 Geo. IV. c. 58 is in force, those payments were not made bond fide. Mr. Phinn, in reply. — If the 1 & 2 Geo. IV. c. 58 is repealed, no doubt this petition is at an end. But the rule is, that an express enactment in an earlier statute is repealed by a later one K 3 202 ELECTION CASES, only if it cannot co-exist with it ; but, if it can, then the latter qualifies the former, and so much as is not inconsistent with the latter remains. Then, is there anything that repeals this Act by implication, for it is not contended that it is expressly repealed ? The object of the 13 & 14 Vict. c. 68 was to limit the expenses of candi- dates at elections ; and whereas candidates were then at liberty to contract for the erection of booths with the sheriff, s. 19 limits the ex- penses of such booths to be paid by the candi- dates ; but how can that section repeal a former Act, which directs that no compliment or gra- tuity shall be given to any sheriff or returning ofiicer ? It is said that Mr. Calcutt has been already acquitted of this charge; and that, although the payment to the sheriff was no part of the former charge, yet, as it might have been gone into, the decision of the former Committee is a bar to this petition. But the Cheltenham case, 2 P. R. D. 224, shows that where a matter which might have been inquired into upon a former petition was not proceeded with, there is no bar. Again, how can the proceedings of a former Committee be an estoppel between the parties to this petition? That Committee decided, upon the evidence before them as to the particular question of extra payments to agents, that Mr. Calcutt was not proved to be disqualified ; but how can that resolution be binding upon a petition between different parties ? If the Committee had decided that CLARE COTJNTT. 203 Mr. Calcutt was disqualified, tliat would have been a judgment against a party to the petition; but they having found him not guilty, it is not conclusive against all the world ; because a stranger to the former proceeding is not pre- cluded from going into a question of disqualifi- cation, which was not in issue, and could not have been decided upon the former occasion. Then, as to the payments to agents, the statute clearly contemplates only a conducting agent ; all other agents were to have six guineas for the first day, and three for every other. It is said that, according to the last clause of Schedule B, all these agents might have been paid as conducting agents ; but it is quite clear, looking at the clause and the whole schedule, that one barrister and conducting agent for the whole election is meant, and one check clerk for each polling place ; otherwise, the clause is inconsistent with the schedule. Then, is this part of the schedule repealed by the altered state of circumstances ? The 17 & 18 Yict. c. 102 introduces new officers, but it does not interfere with existing ones ; and it cannot be said that by this creation of new officers all provisions as to existing officers are repealed : no statute has ever been held to be thus repealed by implica- tion. Supposiag the disqualification to have existed, are the proceedings before the former Committee a bar to this branch of the present petition ? That Committee resolved, that Mr. Calcutt was 204 ELECTION CASES. not proved to be disqualified ; and this resolu- tion was not reported to the House. By the 11 & 12 Vict. 0. 98, s. 86, every Select Committee is to determine on certain issues referred to them by the House, which determination is to be final between the parties to all intents and purposes ; but by s. 87, if the Committee come to a resolu- tion other than the determination above men- tioned, they may in their discretion report it to the House, who may either confirm it or disagree with it ; therefore, on particular ques- tions the determination of the Committee is final, but any resolution other than such deter- mination may be dealt with by the House. If this resolution had been reported to the House, it might have been referred back to the Com- mittee ; and as it was not reported, can it be considered as a binding determination when the House might have affirmed it or not ? By the GrenviUe Act, the House surrendered some of its powers in reference to election petitions ; but it retained its former rights in other questions not provided for by the Act. Again, the Com- mittee, by not reporting their resolutions to the House, show that they did not consider it a final decision. The payments complained of are clearly withia the mischief intended to be remedied by the statute. The cases of 2nd Peter^ boro, 2 P. R. & D. 291 ; Honiton, 3 Lud. 162 ; Clitheroe, 2 P. R. D. 276, are all distinguishable from this case, which depends entirely upon the words of the statutes referred to. CLARE COUNTY 205 The Committee came to the following final June 8. resolution for report to the House : — " That Francis Macnamara Calcutt is duly Final reso- elected a knight of the shire to serve in this l"*^™- present Parliament for the county of Clare." Mr. Clerk applied for costs, but Costs The Committee refused the application. ^^ ^^ ' 206 CASE XXVII. I860. CITY OF LONDONDERRY. The Committee waa appointed on the 5th of June, 1860, and consisted of the following Members : — Wm. Robert Seymour Vesey Fitzgerald, Esq., Horsham, (Chonrmcm.) Hon. George Denman, Tiver- ton. Montagu Edward Smith, Esq., Truro. Petitioner : — Samuel Maourdy Greer, Esq., a defeated Candidate. Eight Hon. Charles Bowyer Adderley, North Stafford- shire. James Clay, Esq., Hull. Sitting Member petitioned agaAnst : — William McCormiok, Esq. Cov/nsel for Petitioner : — Mr. Phinn, Q.C., and Mr. McCuUagh. Agents : — Messrs. Marohant and Pead. Counsel for the Sitting Member : — Sir Frederick Slade, Q.C., Mr. Seijeant Cross, and Mr. Clerk. Agents : — Mr. Camsew and Mr. Crawford. June 7. The Committee agreed to the l;;t, 2iid, and 8tli of the usual preliminary resolutions (a). {a) Ante, p. 11. CITY OF LONDONDEKKY. 207 Tlie petition, after stating tliat at tlie last Petition, election Williain McCormick, Esq., Greorge Skipton, Esq., and tlie petitioner, were candi- dates, and tliat tlie former was returned, alleged tliat the said William. McCormick, previous to and at the time of his declaring himself a can- didate, and at and during the whole period of the election, and at the time of the return, had directly and indirectly himself, or by some person in trust for him, or for his use and benefit, or on his account, undertaken, executed, held or enjoyed, in whole or in part, a certain Contract contract, agreement, or commission made or "? j^°°°^* entered into with, under, or from the Commis- lie service, sioners of Her Majesty's Treasury, or with, under, or from the Postmaster-General, for and on account of the public service in Ireland, and also certaia benefit and emolument arising there- from ; and had also knowingly and willingly furnished or provided, in pursuance of such agreement, contract, or commission, money to be remitted abroad, or wares or merchandise to be used or employed in the service of the public; by reason of which contract, agreement, and commission, and also by reason of the said furnishing and providing as aforesaid, the said William McCormick was, during all the time aforesaid, then iacapable of being elected at the said election, or of sitting or voting as a member of the House of Commons by virtue of the statute in such case made and provided. 308 ELECTION CASES. It further alleged that the said William McCormick, before, at, and during the said elec- tion, and at the time of the said return, directly and indirectly himself, and by other and others in trust for him, or for his use, benefit, or ac- count, had undertaken, executed, held, and en- joyed, and continued to execute, hold, and enjoy, in the whole or in part, a contract or com- m.ission made and entered into for and on Lease of account of the public service in Ireland ; to wit, railway j^ certain indenture of lease, made on the 10th lio Works of April, 1858, between the PubKc Works Loan Loan Com- Commissioners of the one part, and the said mission- _ _ . ^ ' firs. WOliam. McCormick of the other part, whereby a certain line of railway, called the Londonderry and Goleraine Railway, and a branch to Limavady, then vested in the said Commissioners, under and by virtue of the statutes in that behalf made and provided, was, subject to the conditions and provisions in the said lease specified, by them demised to the said WiUiam McCormick ; which lease was, at the time of the said election, a valid and subsisting and continuing contract between the said William McCormick and the said Commissioners ; and thereby the said William McCormick was, at the time of the said election and return, incapable of being elected, or sitting in the Commons House of Parliament. It further alleged that, by virtue of the 41 Geo. III. c. 62, intituled, &c., the said William McCormick, as such contractor, &c., was inca- pable of being elected, or of sitting or voting as Cirr OF LONDONDERRY. 209 a member of the united ParKament of Great Britain and Ireland. It then alleged that due notice of Mr. McCor- Notice of mick's disquaMcation was given to the electors; c^ti^to" that the majority of legal votes was given for voters. the petitioner ; and finally prayed the amend- ment of the return by the substitution of the name of the petitioner for that of Mr. McCor- mick. The facts of the case sufficiently appear from The lessee the allegations iu the petition above given, and °^ ^ ^' , . „ a ' yfgjy from tne arguments which follow. the Public Mr. Phinn, for the petitioner.— The London- ^°^com. derry and Coleraine Railway was incorporated in missioners 1848. Shortly afber the formation of the line ^^^t^t the Company got iato difficulties, and appHed qualified to the Exchequer Loan Commissioners, who, iu eieSed a"^ 1852, advanced them money upon a mortgage °ieniber of of the line. Ultimately the Company made aa a con- default in payment, and the Commissioners *^ff'°'"' -^ •' / either by entered into possession as mortgagees, and, iu reason of 1858, demised the line to Mr. McCormick, who ^'ue^Je, was working the same at the time of the election, orbyreason Under these circumstances, the money lent°g^ °°°" being public money, Mr. McCormick was clearly mails on a contractor within the Act. But, further, on mfder & ^ the 13th January, 1857, the Postmaster- General contract . , ■1 X J J 1 with the made a contract with the Londonderry and Postmas- Coleraine Railway Company for the conveyance ter-Gene- of the mails ; under which Mr. McCormick, as lessee, conveyed the mails, and received the 210 ELECTION CASES. money for sucli conveyance up to the time of the election. Both under the loan from the Exchequer Loan Commissioners, and under the contract with the Postmaster- General, Mr. McOormick was clearly within the statute. The 1st section of the 22 Geo. III. c. 45 pro- vides that any person who shall, directly or in- directly, undertake, execute, hold, or enjoy any contract, &c., on account of the public service, shall be incapable, &c., whilst he shall execute, &c., such contract, or enjoy any benefit or emolu- ment arising from the same. The 3rd section provides that the Act is not to extend to con- tracts entered into by any Incorporated Trading Company ia its corporate capacity ; and the 10th section provides that in every such contract a condition shall be inserted that no member of the House of Commons shall be admitted to any share of such contract. But it is to be observed that the corresponding section of the Irish Act, 41 Geo. III. c. 52, s. 4, differs from the 3rd sec- tion of the English Act above quoted. There is no similar exception as to Trading Companies in the Irish Act. The latter Act (s. 4) only excepts " persons," members of Trading Com- panies, and does not except the contracts made by the Companies, as the English Act does; moreover, it refers only to members of Com- panies then existing. And the effect of these statutes is this : — ^that in England every con- tract with a Trading Company, either then or thereafter existing, is exempted ; whereas in CITY OF LONDONDERRY. 211 Ireland the members only of sucli Companies are exempted, and, further, the members of those Companies only which existed at the time of the passing of the Act. But is this such a contract as the Act con- templates ? Is it " on account of the public service?" Clearly it is. The 57 Geo. III. c. 34 constitutes the Commissioners for PubKc Works. That Act recites that it would be ad- vantageous to advance money for the employ- ment of the labouring classes in Great Britain and Ireland on " works of a public nature." By s. 6, the Lord-Lieutenant is to appoint Commissioners for Ireland. The money is to be advanced by the Treasury, and an account of the sum advanced laid before Parliament (s. 12) ; and section 25 defines to what purposes the advance is to be limited, viz., "in aid of any public work." By the 1 Geo. IV. c. 60, the powers of the Commissioners were extended ; and by s. 19 of that Act they are enabled, in default of payment, to take possession of the property on which they had advanced the money, and to sell or mortgage the same. The 3 Geo. IV. c. 86, s. 17, still further extended their powers as to mortgages ; and by s. 25 of that Act, all the rights, title, iaterest, authority, powers, &c., of the Companies by whom the mortgages are executed is vested in the Com- missioners. Then, by 1 & 2 Will. IV. c. 24, s. 21, the Commissioners have power to lease property which they have thus acquired. Under 212 ELECTION CASES. these Acts tlie Commissioners have — 1st, power to advance puhlic money in aid of public works ; 2ndly, to take a mortgage of the undertaking ; 3rdly, on default of payment of the mortgage money, to enter into possession, with all the rights incident thereto ; 4thly, to lease such undertaking. In R. V. York, 2 Q. B. 847, it was held, imder a very similar Act (5 & 6 WiU. IV. c. 76, s. 28), that a lessee of premises under the cor- poration of a borough was disqualified for being a councillor of the borough as a contractor vrith them. And the House of Commons has always been exceedingly jealous in cases of places of profit under the Crown; Frame, 2 P. R. & D. 58. The Dartmouth (B. & Arn. 460), and Maidstone (Rogers App., 9th ed., 305) cases, turned on the question whether the member had been released from his contract ; but in the former case it was assumed throughout that, if he had not been released, he would have been disqualified. The Leominster case (Rogers App., 9th ed., 302), when closely looked at, will be found to be in favour of the petitioner. On this head I sub- mit — 1st, that the lease is a contract ; 2ndly, that it is a contract for the public service entered into with Commissioners using public money. 2ndly. With regard to the conveyance of the mails. By the statutes above quoted, all the rights of the Londonderry and Coleraine Rail- Vay Company are completely vested in the Com m issioners, and those of the Commissioners CITY OF LONDONDEEKT. 213 in their lessee, Mr. McCormick. The Railway- Company contracted to carry the maik on 13th January, 1857. This is a continuous and still subsisting contract. Mr. McCormick was aware of this provision when he took the lease of the E,ailway ; and, further, it is only on a certificate of the due performance of the contract being deposited at the Post Office that each quarterly payment can be made. Without doubt, Mr. McCormick executes, if he does not undertake ; and enjoys, in the very words of the Act, " the benefit and emolument arising from the same." A question may arise whether such a contract as this is merely personal, or runs with the land. Keppel v. Bailey, 2 My. & K., p. 317 is not decisive on this point. The cases on the subject are reviewed in Tulk\. Moxhay, 2 Phill. 774, and are all collected ia the notes to Spencer's case in Smith's Leading Cases, 4th ed., p. 42. But here is a contract which can only be per- formed by a person in possession of certain land ; and Mr. McCormick is clearly bound to execute it. I submit, therefore, that the contract, and all the benefit thereof, passes to Mr. McCormick by the terms of the lease. At aU events, he has performed the work, and has received the benefit and emolument for it. The 1 & 2 Vict. c. 98 brings Mr. McCormick into privity with the Postmaster-Greneral. The Postmaster-General may, by the provisions of sects. 1 & 12, call on the EaUway Company to carry the mails, leaving the amount of compensation to arbitration (sect. 16), 214 ELECTION CASES. in fact, he may compel the Company to carry the mails; and the word "Company," by s. 19, in- cludes the proprietor of the Railway for the time being. By s. 6 the Company is declared to be entitled to reasonable remuneration for such conveyance. That the conveyance of mails is for the public service cannot be disputed, and the words of the Contractor's Act refer not only to those who have personally contracted, but who have adopted, held, or enjoyed any contract. The words " benefit or emolument " override the whole section. At law, the authorities on the Municipal Acts are in point ; LefevreY. Lancaster, 3 E. & B. 530.- The cases are collected in. Ratv- Unson's Corporation Acts by Welsby, p. 51. A person Sir F. Slade, for the sitting member, objected himself to i^ ^he first instance that Mr. Grreer was not be a oandi- entitled to petition, inasmuch as he was a share- titled to holder in the Dublin Steam Packet Company, petition, ^iiich had a contract with Q-overnment. Beine unless his . . . , ° disqualifi- disqualified, therefore, as a candidate, he is not be*a'oandi- ^^^titled to petition in that character, (a). date is ob- Mr. McCullagh, contra. — In the case quoted incontest- ^7 ^^ ^- Slade, the disqualification of the peti- abie. tioner was incontestable ; but here it is a mere assertion that Mr. Greer is disqualified ; the truth of the assertion depends on facts which are not yet proved, and which we contest. Sir F. Slade, in reply, submitted that the words, " signed by a person alleging himself (a) See Rogers on Elections, (9t]i ed.) 419. CITY OF LONDONDERRY. 215 to be a candidate," in the 72nd section of tlie 11 & 12 Vict. c. 98, must mean a person legally qualified to be a candidate. They would not, for instance, include a woman or a foreigner simply because they alleged themselves to have been candidates. He proposed to call Mr. Greer to prove the facts. The Committee overruled the objection. Sir F. Slade then proceeded to argue the main questions urged on behalf of the peti- tioner — ^If the argument of the petitioner on the first point be correct, all persons who hold houses or crown land as lessees of the Commissioners of Woods and Forests would be disqualified. Such persons have, it is true, made a contract in one sense of the word, but not a contract within either the meaning or the mischief of the Con- tractor's Act. That Act is a penal one, and must be construed strictly. [The Conmiittee intimated that Sir F. Slade need not continue his argument on that poiat. j Then, on the second point, at common law no member of a corporate body is liable, either criminally or civilly, for the acts of the corpo- rate body ; a corporation is a separate entity ; if this were not so, every shareholder ia every railway company in Ireland would be disquali- fied. But a corporation cannot be a public con- tractor within the Act; the Act is directed against persons, and has no meaning as applied to cor- porations. 216 ELECTION CASES. But, further, there can be no contract unless there are two bargaining parties. The very- essence of a contract is that it is voluntary. In this case the contract, so far as Mr. McCormick is concerned, is compulsory (1 & 2 Vict. c. 98). The conveyance of the mails is a burthen im- posed upon him, as lessee of the line, not a bene- fit. The very form of the contract shows that it is not such a contract as the Act contemplated. It is, in fact, an enlarged bond with a penalty. The case of the Commissioners who have power by statute to take houses for the purpose of mak- ing the approaches to Westminster Bridge, is analogous. Could it be said that a person whose house was so taken by the Commissioners, although he was remunerated in accordance with the provi- sions of the Act, was a contractor within th e mean- ing of the Contractor's Act ? Or suppose a man's land taken by a railway company under the compulsory clauses of the Lands Clauses Consolidation Act — Is that a contract ? This is the same case. But another essential of a contract is privity between the two contracting parties. But there is no privity between Mr. McCormick and the Postmaster-General. Could they sue each other on the bond ? Clearly not. Nor is there any privity between Mr. McCormick and the Lon- donderry and Coleraine Railway Company. He comes in under other parties. What remedy, for instance, -would Mr. McCormick have, either at law or equity, against the railway company CITY OF LONDONDERRY. 217 Clearly none. Nor is Mr. McCormick brouglit into personal contact with GrOTernment, which is what the Act meant to provide against ; Thomp- son V. Pearce, Rogers on Elections (9th ed.), 208. Then, does Mr. McCormick execute, di- rectly or indirectly, any contract, &c., made with any person or persons, for or on account of the public service ? This must mean such a contract as could be enforced by either party at law or equity. That is not the case here. The case of Mr. Somes, Dartmouth, B. & Am., 460, Rogers on Elections (9th ed.), p. 208, shows what the word "indirectly" means. Mr. Phinn having been heard in reply, The Committee came to the following final June 8. resolution for report to the House : — "That "William McCormick, Esq., is duly Final reso- i T> T lution. elected a citizen to serve m this present Parlia- ment for the city of Londonderry." 218 CASE XXVIII. 1862. BOEOUGH OF GEEAT GEIMSBY. The Committee was appointed on the 2nd of April, 1862, and consisted of the following Members : — Edward Christopher Egerton, Esq., Macclesfield, ^Chairman.) Sir Arthur William Bnller, Hon. Henry George Liddell, Northumberland South. Robert Longfield, Esq., Mal- low. Bart., Devonport. George Grenfell Glyn, Esq., Shaftesbury, Petitioners : — Electors. Sitting Member : — John Chapman, Esq. Counsel for Petitioners : — Mr.Phinn, Q.C., Mr. Welsby, and Mr. Vernon Haroourt. Agents: — Messrs. Bircham, Dalrymple, and Drake, and Messrs. Grange and Winteringham. Counsel/or the Sitting Member : — Sir P. Slade, Q.C., Mr. Forsyth, Q.C., and Mr. W. H. Cooke. Agents : — ^Messrs. Baxter, Eose, and Co., and Mr. W. H. Daubney. April 4. The Committee agreed to tlie first eleven of the Prelimi- xisual prelimiiiary resolutions (a), and also to hitioii^^'' tlie following, numbering it as the 11th, and (a) Ante, pp. 11 & 121. BOROUGH OF GREAT GRIMSBY. 219 numbering tlie one as to absent Counsel as the 12th:— "That the Committee will foUow the practice of the Courts of Law with regard to speeches, as laid down in Section 18 of the Common Law Procedure Act, 1854." The petition, after stating that at the last Petition. election for the borough of Great Grrimsby, John Chapman, Esq., and George Fieschi Heneage, Esq., were candidates, and that the former was returned, alleged bribery, treating, Bribery, and undue influence against Mr. Chapman and treating, ° . ^ and undue his agents, and also an organized system of influence, violence and intimidation by means of tumul- Tumul- tuous mobs, armed with hammers, sticks, stones, led'by^he^ &c., and hired, encouraged, and led by Mr. sitting Chapman himself. It concluded by praying the House to declare Mr. Chapman's election to be null and void. Mr. Phinn opened the case. The witnesses called in support of the peti- tion, besides being in many cases much shaken on cross-examination, were contradicted on all material points by the evidence called on behalf of the sitting member. At the conclusion of the case the Committee April lo. came to the following resolution for report to the House : — " That John Chapman, Esq., is duly elected Final reso- ^ n lution. L 2 220 ELECTION CASES. a burgess to serve in this present Parliament for the borough of Great Grimsby" (a). Coats Sir F. Slade, on behalf of the sitting member, refused, applied for costs, under the 11 & 12 Vict. c. 98, s. 93 ; but, The Committee refused the appKcation. {a) The Committee furtlier expressed their regrejt that charges should have been put into the petition as to Mr. Chapman's leading a mob and creating a riot, inasmuch as it appeared from the evidence that he, on the contrary, quelled the riot. 221 CASE XXIX. BOROUGH OF LISBURN. ises. The Committee was appointed on the 2nd of Jime, 1863, and consisted of the following Members : — Thomas WiUiam Evans, Esq., South Derbyshire, {Chairman.) Viscount Curzon, Leicester- shire South. Viscount Enfield, Middlesex. WiUiam Edward Forster Esq., Bradford. George Solater Booth, Esq., Hants North. Petitioners : — Electors. sating Member : — John Doherty Barbour, Esq. Counsel for Petitioners .—Sir F. Slade, Q.C., and Mr. W. H. Cooke. Agents i — Messrs. Baxter, Eose, and Norton, and Mr. W, H. Moore. Counsel for the Sitting Member : — Mr. Phinn, Q.C., and Mr. Coleridge, Q.C. Agents : — Messrs. Wyatt and Co. The Committee agreed to the twelve usual pre- June 4. Uminarv resolutions (a). Prehmi- J ^ ' nary reso- . lutions. (a) Ante, p. 218. 222 ELECTION CASES. Petition. The petition, whicli bore date the 11th day of March, 1863, after stating, that at the last elec- tion, John Doherty Barbour, Esq., and Edward Wingfield Vemer, Esq., were candidates, and that the former was returned, alleged bribery, treating, and undue iufluence against the sit- ing member and his agents, and prayed the House to declare his election and return to be null and void. Sir F. Slade opened a case of bribery, treat- ing, and undue influence, by payments and offers of money, and by the personal imprison- ment and detention, for many days, of voters and others at the sitting member's factory near Eisbum. The right After the production and proof of the writ, tioner/to' retum, and poU books, petition Mr. Phinn objected to the petitioners pro- must be , . .... ., . -"^ proved in ceeoing With their case untu it was proved i*nstan^' *^^* *^® petition had been signed by the parties whose names were affixed, and that such per- sons were electors, entitled to petition. Mr. Cooke, contra. — It appears from the poll-books, which have been produced from the proper custody, that, at the last election, two persons of the same name as the petitioners voted, without objection, for Mr. Vemer. That is sufficient primd facie evidence of their right. Mr. Phinn, in reply, was contending that BOROUGH OP LISBUKN. 223 the Committee ought to require strict proof on this objection, which was advisedly taken, and which had been frequently decided by Elec- tion Committees to be a valid one, when, Mr. Cooke said that he would call a witness to identify the persons who voted with those who had signed the petition — ^which was ac- cordingly done. Mr. Phinn then objected that the petition What a was not- a bond fide one, within the meaninff *?"'*/<'« /> 1 -ni • T. Signature of the Election Petitions Act, 11 & 12 Vict, of petition 0. 98, s. 2. It was in evidence before the Gene- ^^^"11^ ral Committee of Elections, to whom the matter ti\o n * 12 had been referred by the House, and of whose report, as it had been printed and presented to the House, the Committee were boimd to take judicial notice, that at the same time that the petition had been signed, the petitioners had also signed a notice of withdrawal, which, with the petition, they had intrusted to their solici- tor, Mr. Moore. A petition signed under such circumstances was not a bond fide one within the meaning of the Act, or such a one as the Committee would inquire into. At the very time the petitioners had signed the petition, they had signed a cotemporaneous dociunent of withdrawal, and had entrusted that document to a third person, and so had put the carrying on or withdrawal of the petition entirely out of their own power. Such documents might be used, not for inquiry, which was the object of 224 ELECTION CASES. every bond fide petition, but for tte purpose of ex- torting money, or for other fraudulent purposes. If the objection was vaM, this was the proper time to take it. Eogers on Elections, 455 (9th ed.) Sir F. Slade, contra. — The whole matter has been inquired into by the Greneral Com- mittee of Elections, who have decided that there was no withdrawal of the petition {a). This petition has been duly referred by the House to the Committee under the Act, and they must go on with it, and not allow the inquiry to be stifled on a preliminary point. Mr. Phinn, in reply. — The withdrawal reported on by the General Committee was a second withdrawal, presented to the Speaker, and made on the 24th of March. This, the petitioners asserted, they had been inveigled into making by a Mr. M'Cann, and the General Committee took that view. But the notice of withdrawal we rely on is another document altogether. It was made on the day the peti- tion was signed, and entrusted, not to Mr. M'Cann, but to the petitioners' own solicitor, Mr. Moore, whose acts the petitioners could not disclaim. But I do not contend that even this amounts to a withdrawal. I say it totally de- stroys the bona fides of the petition. It is ob- (a) See tteir Report to the House. Comm. Joum. 8 May, 1863. BOROUGH OF LISBURN. '225 vious that into this question the General Com- mittee never entered. It was not before them. The Committee decided that the petitioners should proceed. Upon Samuel Thomas Corry being called as Bribery by a witness, ^^^^J' ' oi money Mr. Phinn objected that evidence of briberv *° ™c'°p«' , ■, . 11,1 . -r ' ^ ™^™ to m tms case could not be gone mto. It was personate admitted that the witness was not himself a ^ ^''*^'"- voter, and it was only alleged that he was bribed to personate a voter. This was not bribery withia the second section of the 17 & 18 Vict. c. 102. There was a difference be- tween payments made to induce an elector to vote or to refrain from, voting, and giving money to a party not entitled to vote. Gene- ral evidence given by the witness would be admissible, but money paid to him could not be treated as a case of bribery for which the sitting member was responsible. It might be a casus omissus, but the statute did not apply to such a case. Sir F. Slade, contra. — This is clearly a case of bribery within, the Act. It m.ay not be within the first or second clauses of the second section, which seem to refer to voters only, but it is clearly withia the third clause of the sec- tion, as a gift of money to the witness in order to induce him to procure, or endeavour to pro- cure — by personating his father — the return of the sitting member ; and had the contest been L 3 . 226 ELECTION CASES. decided by one Tote, and had sucli vote been obtained by personation, tbe provisions of tbe statute would have been fully realised. It was not, moreover, competent for the sitting mem- ber to treat this witness as a non-elector after corruptly endeavouring to induce him to be- come, although illegally, a voter. Mr. Phinn, in reply. — The third clause of the second section was passed to meet a wholly different state of things. It was directed against proprietors of pocket boroughs, or parties pos- sessing extensive influence, who undertook, for a large sum, to secure a seat for a candidate, and not against the bribery of non-electors. It was, in fact, merely a re-enactment of the 49 Geo. III. c. 118, which was repealed by the statute now under discussion. The Committee decided, " That, inasmuch as money was given to the witness in order to induce hiTn to personate his father (himself not being a voter), the Com- mittee is of opinion that this constitutes such a corrupt intention as to bring the case within the meaning of the third section (a) of the Act 17 & 18 Vict. c. 102, by which bribery is defined and explained." Several witnesses were then called and ex- amined on behalf of the petitioners. (a) Probably a mistake for the 3rd clause of tlie 2iid section. BOROUGH OF LISBTJEN. 227 At tte opening of the proceedings this day, June 5. Mr. Phinn stated that, in consequence of the decision, arrived at by the Committee on the previous day, the sitting member would not fiirther defend his seat. The Committee then, came to the following final resolutions for report to the House : — 1. " That John Doherty Barbour, Esq., is not Final reao- duly elected a burgess to serve in this present ^*'°"^* Parliament for the borough of Lisburn." 2. " That the last election for the said borough is a void election." 3. " That John Doherty Barbour was, by himself and his agents, guilty of bribery and treating at the last election." 4. " That Samuel Thomas Corry, a non- elector, was bribed by agents of the said John Doherty Barbour, ia order to induce him to personate his late father (who died in No- vember last, and who had been an elector), and to vote for the said John Doherty Barbour." 6. " That the said John Doherty Barbour did himself endeavour to corrupt James Bannister, a voter, and that James Bannister was subsequently ofiered the sums of £50 and £60 by agents of the said John Doherty Barbour, to induce him to vote for the said John Doherty Barbour." 6. " That several of the voters were forcibly detained, and guarded by armed men, in a room belonging to the said John Doherty Barbour and his partners, for several days previous to the election, and during that time were subjected 2~;8 ELECTION CASES. to undue influence and treating, with the view of inducing them to vote for the said John Doherty Barbour" (a). Costs gip p Slade appKed for costs, on the ground refused. .. .. /••i that the opposition to the petition was involous and vexatious. Mr. Coleridge was heard in answer. Sir F. Slade was heard in. reply. The Committee decided that the opposition to the petition was not frivolous and vexatious (6). (a) In consequence of tMs repoi-t, the Attorney- General was directed by the House to prosecute J. D. Barbour, Esq. See now 26 Vict. c. 29, s. 9. (h) The Committee divided on the question, " That 'the opposition to the petition was frivolous and vexa- tious." Ayes, 2 : Viscount Curzon ; Mr. Sclater- Booth. Noes, 3 : Mr. Torster ; Mr. Evans ; Viscouat Enfield. 229 CASE XXX. BOROUGH OF BERWICK-ON-TWEED. 1864. The Committee was appointed on tlie 9th of March, 1864, and consisted of the following Members :^ Robert Longfield, Esq., Q.C., Mallow, {Chairman.\ The Hon. B. F. Leveson Gower, Bodmin. William Pollard TJrqnhart, Esq., Weatmeath. James Banks Stanhope,Esq. , North Lincolnshire, Charles Turner, Esq., Sonth Lancashire. Petitioner: — Alexander Mitchell, Esq., the defeated Can- didate. Sitbing Member ; — "W illia-m Walter Cargill, Esq. Cownsel for Petitioner : — Mr. Phinn, Q.C., Mr. Welsby, and Mr. Davison. Agents ; — Messrs. Biroham, Dalrymple, Drake, and Ward. Counsel for Sitbing Member : — Mr. Cooke, Q-C, Mr. Stuart, and Mr. Clerk. Agents : — Messrs. Wilkinson, Stevens, and Wilkinson, and Mr. B, B. Weatherhead. The Committee agreed to the twelve preliminary March il. resolutions mentioned ante, p. 11. 230 ELECTION CASES. Petition. The petition, after statiag, that at the last election for Berwick, William "Walter CargiU, Esq., and the petitioner, were candidates, and Bribeiy, that the former was returned, charged bribery, and undue treating, and other illegal and corrupt practices, influence, against Mr. Cargill and his agents, by reason of which he was disqualified to serve in Parliament, and his return void. It then alleged that the Scrutiny, majority for Mr. Cargill was a colourable one only ; that the votes given for him were bad on various grounds, and ought to have been re- jected, and that votes tendered for the petitioner ought to have been received. Finally, it prayed a scrutiny and the seat for the petitioner. Commit- tee will dot allow scrutiny to be taken first, on thegronud that mate- rial wit- nesses for the peti- tioner have ab- sconded. Mr. Welsby opened the case, and proposed, with the permission of the Committee, to go into the scrutiny iu the first instance, on the ground that two witnesses, named "William McGaU and Selby LockweU, had absconded {a), in conse- quence of which the petitioner had not been able to serve them with the Speaker's warrant. He cited the 1st Harwich case, 1 P. R. & D. 300. Mr. Cooke, contra. — Such a course is unpre- cedented. Committees have always required each party to complete their general case ia the first instance, by which means, if either sitting (a) It was admitted ttat one of these persons, at all events, was a material witness for the petitioner. BOROUGH OF BEEWICK-ON-TWEED. 231 member or petitioiier is disqualified, a scrutiny- is avoided. If this application is acceded to, after several days' or weeks' inquiry into the validity of the votes, the parties may be ren- dered ineligible, and the time of the Committee, and the expense incurred by parties, rendered useless. In the Lyme Regis case, 1 P. R. & D. 26, a similar request to that now made was unani- mously refused, and the charge of bribery against the sitting member and his agents di- rected to be proceeded with before the scrutiny. The Harwich case relied upon by the other side is really an authority against the appKcation. In that case the sitting member was declared ineligible on the preliminary inquiry as to his qualification, and a scrutiny having commenced, and several votes been decided upon, the Com- . mittee refused to compel the petitioner to pro- ceed with the charge of bribery, which they evidently considered to have been according to usage abandoned when the scrutiny commenced. Mr. Welsby having been heard in reply, The Committee decided not to take the case of scrutiny first. Mr. Phinn then applied to the Committee for where a summons for the above-named witnesses, and, ^^*^o^ in the event of their non-attendance, that the been Committee should report to the House imder^^t^the 11 & 12 Yict. C. 98, S. 83. Speaker's The Chairman stated that these persons, not the Com- having been summoned by the Speaker's warrant, ™ittee has 232 ELECTION CASES. no power the Committee had no power to report their their non- refusal to attend to the House; they wereavoid- attend- jjjg process, not disobeying any order. But the House Committee were ready to grant the ordinary ofaiell& summons for their attendance, if required. 12 Viot. After several witnesses had been examined on behalf of the petitioner, Mr. Phinn renewed his application to the Committee to report to the House the absence of the above-named witnesses, to avoid service of the Speaker's warrant, citing the ;Si^. Albans case, 1851, Print. Min. p, 8; Penrhyn, 82, Journ. 297; Ipswich, K. & 0. 377 (23 July, 1835) ; but. The Committee, after deliberation, resolved, " That section 83 does not give the Committee power to make such a report, as the witnesses in question have not been summoned." March 12. After other witnesses had been on this day examined on behalf of the petitioner. Commit- Mr. Phinn applied to the Committee to make tee will . not ask a special report to the House for leave to ad- House°to J°^™ vmtH after the Easter holidays, in order adjourn to enable the petitioner to procure the attendance Easter °^ *^® above -mentioned witnesses. hoUdaya Evidence was then given of the unsuccessful the'' p^eti- efforts made by the agents of the petitioner to tioner to serve the witnesses with the Speaker's warrant ■ obtam at- , „ . i i . tendance "ut no prooi was given that their absence was of wit- attributable to any act of the sittinff member or nesseawho , . •' o i".v/±iiucj ui have ab- his agents. Bcouded. BOKOTJGH OF BERWICK-ON-TWEED. 233 The Committee, after hearing covmsel for and against the application, refused to comply with it (a). On the assembling of the Committee this day, March 14. Mr. Phinn stated, that after the aboTe decision, he felt it would be useless for him to proceed further with the prosecution of the case. The Committee then came to the following Pinal reso- final resolutions for report to the House:— liitio>is. 1. "That WilKam Walter CargiU, Esq., is duly elected a burgess to serve in this present Parliament for the borough of Berwick-upon- Tweed." 2. " That no case of bribery was proved." 3. "That it was not proved that corrupt practices prevailed at the said election " (b). 4. " That there was no evidence laid before the Committee from which they had reason to believe that corrupt practices extensively pre- vailed at the said election " (b). 5. " That the petition of Alexander Mitchell was not frivolous and vexatious." (a) The Committee divided on the question, " That Mr. Phinn's appKcation he refased." Ayes, 3 : Mr. Longfield, Mr. Turner, Mr. Stanhope. Noes, 2 : Mr. Pollard TJrguhart, Mr. Leveson Gower. (5) See 26 & 27 Yict. e. 29. 234 CASE XXXI. 1864. BOROUGH OF LISBTJEN (Second). The Committee was appointed on the 9th of March, 1864, and consisted of the following Members : — Hugh Edward Adair, Esq., Ipswich, (ChaArmcm.) Wm. Edward Forster, Esq., Bradford. Frederick North, Esq., Hastings. Henry Paull, Esq., St. Ives. WiUiam Stirling, Esq., Perthshire. Petiiyioners : — ^1. Jonathan Joseph Richardson, Esq., an unsuccessful Candidate. 2. Electors. SitUnff Member : — Edward Wingfield Vomer, Esq. Counsel for FeUUoners : — Mr. Phinn, Q.C., Mr. Eodwell, Q.C., and Mr. J. Clerk. Agents : — Messrs.Wyatt and Metcalfe, and Mr. Thos. Wilson. Cownsel for Sittmff Member : — Mr. O'MaUey, Q.C., Mr. Cooke, Q.C., and Hon. K. Bourke. Agents : — Messrs. Baxter, Rose, Norton, and Spofforth, and Mr. Barlow. March 11. The Cominittee agreed to the twelve usual pre- liminary resolutions (a). 1st Peti- The first petition (of Mr. E,ichardson), after tion. {a) Ante, p. 218. BOROUGH OF LISBUEN. 235 stating that at the last election for Lisbum, in June, 1863, Edward "Wingfield Verner, Esq., Robert Barbour, Esq., and the petitioner, were candidates, and that the former was returned, alleged that the said E. W. Yerner was guilty Disquali- of bribery, treating, and undue influence, at the trfberv at previous election for Lisburn, held in February, previous 1863, which election had been duly avoided by an Election Committee (a), and that the said E. W. Yerner was thereby incapacitated to serve in the present Parliament for the said borough ; that his incapacity was notorious ; that due notice had been given to each elector, before he polled, of such incapacity ; and that the votes given for the said E. W. Yerner were in con- sequence thrown away, and that the true majo- rity of legal votes were given for the petitioner. It then alleged bribery, treating, and undue in- Bribery, fluence, against Mr. Yerner and his agents, at *'[fd*^|'^^ the last election in June, and concluded by influence, praying the House to declare his election and return to be null and void, and to amend the return by substituting the name of the petitioner for that of Mr. Yerner. The second petition (of electors), after stating 2ud Petl- that the petitioners were registered electors, and *"'°' voted at the last election, contained allegations similar to those contained in the first petition. (a) See ante, p. 227. 236 ELECTION CASES. Mr. Phinn opened the case. March 22. After the inquiry had continued for several teJ^not days, and all the evidence, both against and for adjourn, the sitting member, had been received, and a^^ufn- ^ counsel for the sitting member had summed up ment of jjjg (.^se, the further sitting of the Committee the House, tiii jj -j- to the day was abruptly suspended by the sudden moispo- ra wW^h ^^*^°^ °^ ^^- Stirling, one of the members of the House the Committee. Under these circumstances the ^aliu If question arose what course the Committee would they do, pursue, the House being then adjourned for the the ad- i-, joumment Jiaster recess. is illegal. After some discussion, and the • i j jurisdic- The Committee ultimately detemuned to ad- ^'°^^J^^ journ till Tuesday, the 5th of April, that being tee at an the day after the day appointed for the meeting ^^ ' of the House, in order to report to the House the illness of Mr. Stirling. April 5. The Committee met this day, and further adjourned till the following day, Mr. Stirling's excuse not having yet been allowed by the House. April 6. At the meeting of the Committee this day (a) no counsel for the sitting member were pre- sent, but the agent for the sitting member stated, that the sitting member had been advised that the Committee had acted ultra vires in adjourning to the day following that of the meeting of the House, and had therefore now (a) The counsel for the Speaker was in attendance. BOROXTGH OF LISBUEN. 237 no legal existence. He therefore protested, on behalf of the sitting memher, against the Com- mittee taking any further proceedings in the matter. Mr. Phinn, on behalf of the petitioners, con- tended that the 73rd section of the 11 & 12 Vict. c. 98, only applied to some exceptional incident that had occurred dehors the tribimal, such as the abduction of a material witness, &c., and of which incident the House was to judge whether it afforded sufficient ground for a longer adjournment than twenty-four hours ; and not to the ordinary constitution of an Election Com- mittee. The greatest care had been taken by the Act that there should always be the full number of members of the Committee present, if possible ; and the 73rd section only applied to cases where all five members were present, and not to such cases as the present, where the Committee was crippled in its functions by the absence of one of its members, and was not in effect a Committee for any purpose at aU till the excuse of the member whose indisposition had caused the adjournment was allowed by the House. For such a state of circumstances as the present, howeyer, the 75th section pro- vided, and that section expressly enacts, that such select Committee, i.e., a Committee so crippled as aforesaid, shall never sit until all the members to whom such leave has not been granted, or excuse allowed by the House, are present. 238 ELECTION CASES. Again, it is clear, that if the proviso at the end of section 73, as to the Committee adjourning to the day appointed for the meeting of the House, and that day only, applies to such cases as the iUness or death of a member of the Com- mittee, the previous part of the section must apply to such a state of circumstances also ; but the previous part of the 73rd section provides for the Committee never adjourning for more than twenty-four hours; so that according to this construction the Committee must, in case of the Ulness or death of a member during the recess, adjourn de die in diem tOl the meeting of the House, the very thiug -which the 75th section expressly prohibits them from doiug. Commit- Mr. Clerk followed on the same side; the 1^ thd/^' Committee having, on the application of Mr. prelimi- Phinn, consented to waive their preliminary lutionas" resolution as to hearing only one counsel, in to hearing consequence of the importance of the point, and counsel in the attention which the learned counsel Mr. ^ Tort-"^ ^^^^ ^^ P^^*^ *° *^ branch of Parliamentary import- ance Law. Pinal reso- The Chairman, after deliberation, announced that the Committee were of opinion that they were not ia a position to continue the inquiry. 239 CASE XXXII. BOEOUGH OF BARNSTAPLE. 1864. The Committee was appointed on the 12th of April, 1864, and consisted of the following Members : — Edward Howes, Esq., East Norfolk, (Chcmman.) Alexander Murray Dtmlop, Esq., Greenock. George Solater-Booth, Esq., „ North Hants. Sir ¥. H. Goldsmid, Bart., Beading. William John Humphrey, Esq., Andover. PeHUoners : — Electors. ;Sitti7ig Member ; — Thomas Lloyd, Esq. Counsel for PeUttoners .- — Mr. O'MaEey, Q.C., Mr. Cooke, Q.C., and Mr. Yorke. Agents : — Messrs. Baxter, Kose, & Co., and Mr. Bremridge. Covmsel for Sitting Member : — Mr. Coleridge, Q.C., Mr. Welsby, and Mr. McNamara. Agents : — ^Messrs. Fearon and Clabon, Mr. Clay, and Mr. Matthews. The Committee agreed to the twelve prelimi- April 14. nary resolutions mentioned ante, p. 11. The petition, after stating that at the last elec- 240 ELECTION CASES. tion for Barnstaple, Richard Breroridge, Esq., and Thomas Lloyd, Esq., were candidates, and that the latter was returned, alleged that the Bribery, majority for Mr. Lloyd was a colourable one and undue o^J> the real majority of legal votes being for influence. ]y[r_ Bremridge. It then alleged the disqualifi- cation of voters, and the improper reception and rejection of votes on various grounds, charged bribery, treating, and undue influence, against Scrutiny. Mr. Lloyd and his agents, and finally prayed scrutiny and the seat for Mr. Bremridge. Commit- tee win not avoid seat on ground of bribery, without some evi- dence of bribery being given, be- Mr. O'Malley was proceeding to open the case when, Mr. Coleridge stated that Mr. Lloyd had, within the last few days, ascertained that cer- tain persons, in whom he had previously put the greatest confidence, had done acts which would undoubtedly compromise his seat. On behalf of Mr. Lloyd, therefore, he now begged to withdraw from further contesting the prayer of the petition. Mr. Lloyd, however, wished to be examined, to disclaim, all knowledge of the illegal proceedings. The Chairman stated, that without some evi- dence of bribery, beyond the admission of the counsel for the sitting member, the Committee were of opinion that they could not avoid the seat. Such evidence was then given, and Mr. Lloyd having then been examined, and his counsel having withdrawn. BOROUGH OF BARNSTAPLE. 241 The Committee resolved, y°»4 ''V'^ " That Thomas Lloyd, Esq., is not duly elected of counsel a burgess to serve ia this present Parliament °.^*'^^ ^'*" for the borough of Barnstaple." ber. The Committee then proceeded with the scru- tiny. EDWIN LEY'S CASE. It appeared there were two persons of the Commit- name of Ley on the register, WiUiam and^^^"°' Edwin. Both were intended to be objected to, into the and imder the same head of objection. "WUliam EdwinLey Ley was objected to imder his right name and objected number on the register ; but Edwin Ley was the name objected to under the name of WilEam Ley; so of William that the name of William Ley appeared twice on the list of voters objected to, only with a dif- ferent number set opposite the name in each case. The number of Edwin Ley on the register was correctly stated in the list of voters objected, to; the only mistake was in the Christian name. Mr. Cooke submitted that this was a mere clerical error, quoting Bridgnorth, 2 P. E. & D. 21, and that by the common law of Parlia- ment, delegated by the House to the Committee, the Committee had even power to go into a case not included in the list at all. The 55th section of the 11 & 12 Vict. c. 98 was not passed to fetter the jurisdiction of the Committee ; it was only that the parties might be informed of the voters intended to be objected to ; besides, in M- 242 ELECTION CASES. this case both the Leys were objected to, and under the same head of objection. Rogers on Elections (9th ed.), p. 541, in noiis. The chairman referred to the 74th section of the 11 & 12 Yict. c. 98, and to Rogers on Elections (9th ed.), p. 539. The Committee, after deliberation, resolved, " That the petitioners are not at liberty to go into the case of Edwin Ley " (a). April 15. After a sufficient number of votes to give bribe" ^^- Bremridge a majority had been struck off struck off the poll on various grounds, including the votes of several persons who were proved to have given bribes, which were struck off in accordance with the 26 & 27 Vict. c. 29, s. 8, Final reso- The Committee came to the following final ^ '™^' resolutions for report to the House, in addition to the one above mentioned, p. 241 : — 2. " That Richard Bremridge is duly elected, and ought to have been returned a burgess to serve in this present Parliament for the borough of Barnstaple." (a) The vote of Edwin Ley was subsequently struck off, under tlie power given to Committees by tie 26 & 27 Vict. c. 29, s. 8, of striking off tte poll voters guilty of bribery, thongli not included in the list of voters objected to, evidence to iucidpate him having come out in the course of the inquiry into another person's vote. BOROUGH OF BARNSTAPLE. 243 3. " That tlie Committee had altered the poll at such election by striking off the names of" {here followed eight names), "as not having had a right to vote at such election. Also of Bichard Garnsey Adams, Francis Bowden, Henry Lewis, Edwin Ley, John Tinson Turner, Arthur Turner, Charles Hancock, and William Harris, it hav- ing been proved that they had received money for the purpose of influencing their votes at such election. Also of Benjamin Williams, Ed- mund Darke, Samuel Griyde, Bichard Bencraft, Charles Snow, and William Verney Sanders, it having been proved that they have been guilty of bribery at such election." 4. "That Thomas Lloyd, Esq., was by his agents guilty of bribery at the last election." 5. "That it was proved to the Committee that" (the eight persons mentioned in the second part of the third resolution) " had been bribed with the payment of the sum of £5 respectively, biit that it was not proved that such bribery was committed with the knowledge and consent of the sitting member." 6. " That they have not reason to beKeve that corrupt practices have extensively prevailed at the said election for Barnstaple." M 2 INDEX. A. ABAXDONMENT of opposition will not prevent Committee proceeding, 8. of petition, 17, 46, 65, 76, 233. of defence of seat, 8. 26, 61, 227, 240. ACCOUNTS, see Pkactice, ordered to be produced when not sent in to election auditor, 106. ADJOURNMENT OF COMMITTEE ' asked for to obtain attendance of witness, and refused, 232. unlawful when the House has adjourned, 236. ADMISSION of bribery on behalf of sitting member not sufficient evidence of, 240. AGENCY, facts held insufficient to establish, 29, 72,. 118, 157, 189. facts held sufficient, 74, 79. facts held sufficient to fToyeprimd facie agency, 4. to be proved before evidence of undue influence can be given, at former election not evidence of agency at subsequent election, 3. statement of agent after termination of agency held admissible, 7. statement of agent after termination of agency held not admissible, 13. AGENT examined when petition withdrawn, 65. ALTERATION OF POLL, voters bribed and struck off, 32, 33, 34, 35, 36, 185. voters not having had the right to vote, 186. 246 INDEX. ATTORNEY-GENERAL directed to prosecute for bribery, 228, B. BARRISTER. See Revising BAnRiSTEu. BONA FIDES of petition questioned, 223. BRIBER, vote of, bad, 37, 182. BRIBERY, see Hire of House, Messenger, Canvasser, Tra- velling Expenses, case contained in list may be inquired into, though not mentioned in opening speech, 14. by promises to hire vehicles, 15, 107. travelling expenses, when payment of, is not, 29. travelling expenses, when it is, 142, 189. promise to buy goods beyond value, 32, 36. promise of money for hire of house, 34. promise to hire house of voter though the money is not paid, 34, 35. Hiring of house not used for any purpose, 34, 106. promise to send beer to publican's house to treat voters, when not bribery, 35. promise of goods which were sent and not paid for, 36. promise of a bribe, vote good before 26 Vict. c. 29, 37. not since, 37. by colourable employment of messengers, &c., 87. what not sufficient evidence of bribery, 37, 42, 49, 62, 98, 131, 158. what sufficient evidence of, 140. when evidence of, may be given, though briber not identified with any one named in list, 116. by payment to personate voter, 225. alleged by minister of Crown, 135. by agents at former election vacates second election upon acceptance of office under Crown, 150. giving of money without compensation not bribery, 98. prosecution for, recommended by Committee, 83. INBEX. 247 c. CANVASSERS, payment and employment of, not bribery, if not done to influence election, 76. CERTIFICATE OF CHARGEABILITY. See Parochial Relief. evidence of receipt of parochial relief, 174. of lunacy, payment for, is not receipt of parochial relief, 1 77. COLOURABLE E.MPLOYMENT. See Messengers, Bribery. COMMITTEE, PROCEEDINGS OF, see Admission, Adjournment, will proceed with inquiry when sitting member withdraws, 8. when sitting member declines to defend his seat, 20. will try a petition, although member petitioned against has vacated his seat, and been re-elected, 60. may examine agents as to withdrawal of petition, although petition not legally signed, 64. when, will order production of bills and claims sent in to sitting member, 104. will not order production of documents by public departments, 123. will grant subpoena duces tecum to officers of any public depart- ment, 124. will inquire into alleged interference of ministers, if proposed to connect it with sitting member, 126. direct letter of minister's private secretary to be produced, 130. will not inquire into vote where statutable incapacity at time of revision, and no objections taken, 179. will not inquire into vote of person objected to in wrong name, 242. will, on conclusion of evidence as to bribery, give their opinion upon it before question of agency is gone into, 46. decline to report non-attendance of witness not summoned by warrant of speaker, 232. COMMISSION OF INQUIRY, under 15 & 16 Vict. c. 57, appointed, 9, 27, 185. COMPENSATION. See Agency. CONTRACT. See Elector, Evidence, DisauALiFicATioN, Peti- tion, Kegister, Undue Influence. 248 INDEX. CONVEYANCE OF VOTERS, when, may be provided, 31. when, evidence of bribery, 109. COSTS refused, 14, 22, 38, 57, 143, 160, 181, 205, 220, 228. on scrutiny vfhcn not made at the close of the inquiry in each case, 181. COUNSEL not confined to cases of bribery alluded to in opening speech, 14. CUSTOMS AND EXCISE. -See Incapacity Statutable. D. DECLARATION OF AGENTS AFTER ELECTION. See Evidence. DISQUALIFICATION, *ee Sherife, Petition, lease of railway from Public Works Loan Commissioners is not, 209. carrying mails on railway leased by sitting member is not, 209. payments to sheriff, agents, &c., beyond amount according to 1 & 2 Geo. IV. 0. 58, is not, when not given corruptly, 192. candidate not disqualified from petitioning unless his disability is obvious, 214. notice of, 145, 149. bribery by agent is disqualification for the same place and same Parliament, 152. DECISION OF COMMITTEE, what is final, 204. DEFENCE OF SEAT abandoned before evidence given, 240. . E. ELECTION AUDITOR abolished by 26 Vict. c. 29. bills not sent into, ordered to be produced, 104. ELECTION AGENT. See Agent. ELECTOR. See Voter. INDEX. 249 EMPLOYMENT OF MESSENGERS. See Messengers, Bribery. EVIDENCE, see Non-residence, Treating, Bribery, Undue Influence in Agency, when inadmissible, 13, 115. statement by agent after election, except as to acts during election, 7. such statement not admissible to prove agency, 13. conversation at a club as to election, where some of the members, being proved to have bribed, are admissible upon question of agency, 25. of voter and other witnesses on the notes may be read in support of objection to such voter on a scrutiny, 33. placarding walls of a public-house at request of agent of sitting member is of itself no evidence of bribery, 38. to discredit one's own witness, when admissible, 41 , 85. may be given of corrupt agreement to return a candidate, though another candidate afterwards comes forward, 127. what evidence admissible against ministers, 128. as to undue influence by particular persons admissible when part of the general case, though name not in list, 68 . inadmissible as to matters occurring two months after election, 69. of payment of money to rich voters inadmissible, unless voters thereby bribed, 130. F. FREEMAN, residence of, 169. FURNITURE, removal of, by voter, 163, 170. G. GENERAL COMMITTEE OF ELECTIONS, report of, noticed by Committee, 223. H. HIRING of cars and carriages, 15, 108. HIRE of house, when bribery. See Bribery. M 3 259 INDEX. HOUSEHOLDER. See Residence. I. ILLNESS of member of Committee puts an end to the inquiry, 238. INCAPACITY STATUTABLE, employment in Excise or Customs, will not be inquired into by Committee, if it exists at time of revision, and no objection taken, 179. by receipt of a loan. See Parochial Relief. INDUCEMENT to personate voter. See Bribery. INFLUENCE. See Undue Influence. INNKEEPERS, vote of, bad, when house hired by a promise of money, 34, 35. vote of, bad, when hired for no object, and refreshments supplied to hirer, 34. vote of, good, when house is placarded, but no payment asked for or made, 37. INTENTION of voter to return, 163, 165, 170, 171. INTIMIDATION AND VIOLENCE, allegation of, in petition, 67, 219. insufficient evidence of, 69, 219. J. JURISDICTION OF COMMITTEE. See Practice, Illness. L. LISTS, see Agency, Bribery, need not include names of persons offering bribes, 37. will not be amended by adding name of a briber, omitted inadver- tently, 41. cases included in, will be gone into, though not mentioned in opening speech, 14. INDEX. 251 LISTS — continued. will not be amended by substituting one name for anotber, 56. must contain name of public-house at which alleged treating took place, 91. will not be amended by changing name of bribers, 130. whether application ought to be made at once when case of bribery is proved during investigation, 131. LODGINGS, hire of, as evidence of bribery, 107. hire of, by voter beyond limits, when does not disqualify, 165, 109, 171. LOSS OF TIME, payment for, not bribery, if not made from corrupt motive, 98. LUNACY, payment for certificate of, not receipt of parochial relief, 177. maintenance of daughter, aged 22, during lunacy is not parochial relief, 178. M. MAILS, conveyance of, upon a railway not Government contract Ijy lessee of the railway, 217. MEASUREMENT, mode of, for residence, 169. MESSENGER, vote of, if employed and paid, good, 33, 80. colourable employment of, is bribery, 87. MINISTERS, INTERFERENCE OF, evidence of, when admissible in support of allegation of bribery by , alleged agent, 126. See Undue Influence. MOTIVE, CORRUPT. See Bribery, Personating Voter. N. NAME. See Objection to Voter. NON-RESIDENCE. See Residence. 252 INDEX. o. OBJECTION not taken before revising barrister not allowed before Committee, 172, 179, 181. to voter in vfrong name, Committee will not inquire into vote, 242. See Lists, Bbibery. OFFICE OF PROFIT UNDER CROWN, acceptance of, by member petitioned against will not take away jurisdiction to try petition, 60. election under writ, or from acceptance of, is void if petition against bribery be pending, and afterwards member be unseated on ground of bribery by agents, 150. OUT-VOTERS, travelling expenses of. See Travelling Expenses. conveyance of, 31. P. PAROCHIAL RELIEF, maintenance of lunatic wife at parish expense is receipt of, although repaid, 175. payment by relieving officer to medical man for certificate of voter's insanity not a receipt of, 176. maintenance of lunatic emancipated daughter in asylum is not receipt of, 177. See Certificate. PAYMENT TO AGENTS, whether disqualification, 200. PERSONATING OF VOTER, payment to induce a person to be guilty of, is bribery, 226. PETITION read in order upon. Journals, 149. alleging disqualification by reason of contract on account of public service, 207. alleging disqualification by reason of lease of railway from Public Works Loan Commissioners, 208. alleging disqualification by reason of corruptly giving fees to sheriff and under-sheriff, agents, &c., or at former election, 192, 193. alleging bribery after teste of writ, 103. INDEX. 253 PETITION— oontinued. withdrawal of, when no legal register, 64. alleging riotous and disorderly proceedings, 67. ' alleging undue interference of ministers of the Crown, 122. alleging disqualification of sitting member, and notice thereof, 145, 148, 162, 235. bond fides of, 223. withdrawal of, 149. notice of withdrawal of, 223. must be signed by two electors on register, 64. read in order in which appear on Journals of House, 149. may be presented by candidate where disqualification is not obvious, 214. PETITIONERS, identity of, proved, 223. ^ POLLING BOOTH, alleges in petition that, not opened in proper time, 72. allegation that, not kept open for legal time, 72. PRACTICE, see Costs, Scrdtiny, Evidence, Petition, Committee, on objection that no express decision of revising barrister, cross- examination must be confined to that point, 173. Committee will not inquire into vote where statutable incapacity existed at time of revision, and no objection was taken, 179. Committee not bound by finding of former Committee, that the sitting member, then the petitioner, was not disqualified, 194. Committee will go into alleged cases of bribery contained in bribery list, though not alluded to in opening speech, 14. Committee will proceed with inquiry, although at the opening the sitting member decline to defend his seat, 20. evidence, once on the notes, will not be struck off if not objected to at the proper time, 24. evidence on the notes may be read in support of objection to the vahdity of a vote on a scrutiny, 33. will examine agents on both sides when petition charging bribery is withdrawn, 64. recriminatory evidence may be given against candidate claiming seat by the petition, although claim be abandoned, 143. 254 INDEX. PRACTICE— continued. petitions read in order from Journals of House, 149. PRELIMINARY RESOLUTIONS, what not within, 130. waiver of, 238. PROSECUTION recommended by Committee, 83. directed by order of the House, 228. PUBLIC DEPARTMENTS, see Committee, Committee will not order production of documents from, 123. Committee will direct attendance of officer from, 123. Q- QUALIFICATION. See Disqualification. R. REFRESHMENTS, giving of, not treating, when not done with corrupt motive, 49, 96. RECRIMINATORY EVIDENCE, see Practice, right of, is not lost by petitioner abandoning claim to seat, 143. finding of Committee upon evidence of, not conclusive on subsequent petition against same person, 194. REGISTER for borongh must be signed by town-clerk, 64. RESIDENCE, voter disqualified by reason of non-residence, 163, 165, 166, 170. what insufficient evidence of non-residence, 166, 171. beyond limits of borough before and at the time of revision, but no objection taken at revision, vote allowed, 181. RESOLUTION not reported to House, 204. REVISING BARRISTER, what not express decision of, 172. when vote will not be inquired into by Committee, where no objec- tion taken before, 172, 180, 181. INDEX. 255 RIOT. See Intimidation. RUNNERS, employment of, 51, 79, 80, 82. colourable employment of, bribery, 87. S. SCRUTINY, see Bribery, Agency, evidence of voter on notes may be read in support of objection to such voter, 33. will not be gone into Hrst, though material witness on other branch of petition absent, 230. cases of, 32, 163. Committee will proceed alternately, 166. SHERIFF, payment to, at an Irish election, beyond sum allowed by 1 & 2 Geo. IV. c. 58, no disqualification, if not corruptly made, 196. application not made to adjourn poll, 70. SIGNATURE OF PETITION, what is bond fide signature, 223. SITTING MEMBER examined, 8, 26, 65, 68, 80, 97, 1 19. bribery by, proved, 227. SPECIAL REPORT OF COMMITTEE asked for, and refused, 232. SPEAKER'S WARRANT, vritness not served with, absence of, cannot be reported to House, 232. SUMMONS for witness applied for, 231. T. TIDE-WAITER. See Incapacity Statutable. 256 INDEX. THREATS of loBS of custom when render vote invalid; 32. TREATING, see Agency, Evidence, what not sufficient evidence of, 13, 49, 75, 95, 108. what sufficient evidence of, 107, 141. lists must contain name of the inn at which the alleged treating took place, 91. TRAVELLING EXPENSES, payment of, when not bribery^ 29, 92, 96, 159. payment of, when bribery, 189. payment of, does not render sitting member guilty of bribery within 17 & 18 Vict. c. 102, 31. U. UNDUE INFLUENCE, threats of loss of custom, 32. violence and intimidation, 69. names of persons charged with, may be inquired into if part of general case, though not named in lists, 68. allegation as to, by ministers, 122. evidence as to, 132. what evidence admissible against ministers, 128. what not sufficient evidence of, by ministers, 132, 137. V. VIOLENCE. See Intimidation. VOTE, good, though travelling expenses paid to voter, 29. bad, if influenced by promise to buy goods beyond their value, 32. bad, if voter is influenced by threats of loss of custom, 32. bad, if voter have bribed, 182. good, where voter employed and paid as messenger, 30. bad, where voter's house is hired by a promise of payment, 34, 35. bad, where rooms in voter's house are hired for no purpose, 34. bad, where voters receive money to influence votes, 243. INDEX. 257 VOTE— continued. good, where beer promised to be sent to voter's house to treat voters, but not for sale, 35. bad, where voter influenced by promise of goods afterwards sent and not paid for, 36. good, before 26 Vict. u. 29, where voter promises bribe, 37. good, where voter's house or inn is placarded, but no payment made, and none asked for, 37. conversation respecting vote inadmissible when it occurred before vacancy, 117. struck off even when proved to be inculpated, 242. W. WITHDRAWAL of petition. See Petition, Abandonment. of defence of seat. See Abandonment. WITNESS, unwillingness of, not a matter for the Committee, 69. non-attendance of, not reported when not summoned on speaker's warrant, 232. WRIT recommended not to issue until evidence of proceedings be printed, 83. Printed by William Stevens, 37, Bell Yard, Lincoln's Inn. I*'/. .i.,_. ^yV^^js m fwuuvy^*^ f |1M4»J^ ^iSiwwyWwWWw^^^ ^^-Ot /■vVv^^VV^ ^V-'v^^'^^^.^