1878 v. LAFLAMME. extent in view of the election." In the present, we only have that position by presumption, from the fact of his SOMERVILLE being an ardent supporter of the Respondent. Of the two, the former is the stronger case, because there can be no doubt of the feeling of the Respondent, who himself admits it. If, indeed, the Respondent in the case cited had but the one motive, and that the corrupt one mentioned, he would have been unseated; and so, if Robert had but the motive of aiding the Respondent the latter should be unseated, if Robert were his agent. It is the mind of the alleged briber that is to control. See Westminster case (1), where Baron Martin says: The question is not what is the motive that operated upon the mind of the voter. The mind of the voter has nothing to do with it; the question is, the intention of the person who furnished the board. And why, then, if Robert did what would be harmless, but for the assumption that he was also actuated by the motive to assist the Respondent in his election, should he not have the benefit of the same principle as the learned Baron, in the Windsor case (1), so unequivocally and unreservedly laid down. Every one must admit that if Robert, when suggesting the propriety of the Parés abstaining from voting, was actuated solely by the motive to benefit his brother-in-law, or, if he were wholly indifferent about the result of the election, there would be no harm in his making that suggestion. The case of Robert is, therefore, exactly that of the Respondent in the Windsor case. I have sought in vain for a dividing principle between them; and I do not feel justified in setting up a decision of mine against that of the learned Baron which I have cited. In the Warrington case (1), Baron Martin is reported as saying: I adhere to what Mr. Justice Willes said at Lichfield, that a Judge, (1) 10. & H. 95. (3) 2 O. & H. 88. (2) 10. & H. 44. 1878 SOMERVILLE v. LAFLAMME. to upset the election, ought to be satisfied beyond all doubt that the election was void, and that the return of a member is a serious matter, and not lightly to be set aside. Mr. Justice O'Brien in the Londonderry case (1), after quoting, approvingly, the above words of Baron Martin, says: Mere suspicion, therefore, will notbe sufficient to establisha charge of bribery; and a Judge, in discharging the duty imposed upon him by the Statute, acting in the double capacity of judge and juror, should not hold that charge established upon evidence, which, in his opinion, would not be sufficient to warrant a jury in finding the charge proved. Adopting this decision, I think the evidence here would not warrant a jury in finding that Robert had not the motive of befriending his brother-in-law when telling the Parés "they might do as they liked, but he thought it better they should not vote." Independently of the principle mentioned, the case, to satisfy the requirements of law and evidence, is not by any means a strong one. It is not suggested that Robert made an attempt to exercise corrupt influence with any other party; and stronger evidence of a corrupt intention is therefore necessary. I will now proceed to give briefly my views on the question of the agency of Robert. Mr. Justice Blackburn, in the Bridgewater case (2), says: It has never yet been distinctly and precisely defined what degree of evidence is required to establish such a relation between the sitting member and the person guilty of corruption, as should constitute agency. I do not pretend to be able to define it certainly. No one has yet been able to go further than to say, as to some cases, enough has been established; as to others, enough has not been established to vacate the seat. This case i on the right side of the line, that is on the wrong, but the line itself has never been definitely drawn, and I profess myself unable accurately to draw it." Grove, J., in the Taunton case (3), said: (1) 10. & H. 279. (2) 1 O. & H. 115 (3) 20. & H. 74. 1878 SOMERVILLE All agree, that the relation is not the common law one of principal and agent. I am of opinion that to establish agency for which the candidate would be responsible he must be proved v. by himself or by his authorized agent to have employed the persons LAFLAMME. whose conduct is impugned, to act on his behalf; or to have, to some extent, put himself in their hands, or to have made common cause with them for the purpose of promoting his election. To what extent such relation may be sufficient to fix the candidate must, it seems to me, be a question of degree and of evidence to be adjudged of by the Election Petition tribunal. Mere non-interference with persons, who, feeling interested in the success of a candidate, may act in support of his canvass, is not sufficient, in my judgment, to saddle the candidate with any unlawful acts of theirs of which the tribunal is satisfied he or his authorized agent is ignorant. In the Windsor case (1) it was proved that one Pantling wrote a letter to a voter named Juniper, who, at the time of the election, was away from the borough, offering to pay his travelling expenses, if he would come and vote; and it was admitted that this offer, if made by the Respondent, or an agent of his, would have unseated him. The only evidence of Pantling being an agent was that he was a member of a committee which had been formed for the purpose of promoting the Respondent's election. It was not proved who put him on the committee, or how he got there; what his duties were, or what he did; but his own statement as to this was that he "understood that his duties were to do the best he could for the Respondent." Mr. Baron Bramwell, in his judgment, said as to this: I am invited to believe that, in some way or other, a man who has given no description of himself except that he was on a committee, was an agent, so that his act, in writing this letter, should unseat the Respondent. It appears to me really impossible to hold that he was an agent. I think that according to the authorities (citing Staleybridge, vol. I, 67; Westminster, ib. 92; Blackburn, ib. 200; Dublin, ib. 272; Taunton, ib. 183; Wigan, ib. 189; Galway, vol. II. 53. See also Newry, P. &. K. 151; Bristol, P. & K. 574), and according to the good sense of the matter, he was not an agent. He (1) 2 O. & H. 88. 1878 ~ SOMERVILLE has given us no account of how he came to write this letter to Juniper, he having told him where he had gone to, and having told him to write upon the occasion of an election. I cannot help agreeing with LAFLAMME. Mr. Giffard that if we were to hold this man to be an agent it would make the law of agency, as applicable to candidates, positively hateful and ludicrous. v. In the Bolton case (1), Mr. Justice Mellor said : Of course the production of the canvass-books proves nothing except that certain ticks appear on it. If you want to go further call the canvasser; because the mere fact of a man having a canvass-book and canvassing, cannot affect the principal unless I know by whom the man was employed. There is nothing more difficult or more delicate than the question of agency; but if there be evidence which might satisfy a Judge, and if he be conscientiously satisfied that the man was employed to canvass, then it must be held that his acts bind his principal. Again, I should not, as at present advised, hold that the acts of a man, who was known to be a volunteer canvasser without any authority from the candidate or any of his agents, bound the principal. You must show me various things. You must show me that he was in company with one of the principal agents, who saw him canvassing or was present when he was canvassing; or that, in the committee room, he was in the presence of some body or other acting as a man would act who was authorized to act. If putting all these things together, you satisfied me that the man was a canvasser with the authority of the candidate's agents, then I do not look with nicety at the precise steps, but there must be something of that character. Where a sitting member is not acquainted with the illegality of the act for which he subsequently repays the person who originally made the payment, that is not sufficient to make such a person an agent by adoption. Bewdly (2). If therefore the Respondent subsequently was informed of Robert having canvassed a voter and thanked him for obtaining a voter, he would not in regard thereof be answerable for Robert's illegal act, unless made acquainted therewith; but there is no evidence even of any such adoption. There is no evidence whatever that the Respondent knew he was canvassing or had canvassed. A (2) 1 0. & H. 18. (1) 20. & H. 141. member of a self constituted committee is not an agent (1). Rogers on Elections (2) says: The rules which apply to a committee being agents obviously apply with less force to clubs or associations which not unfrequently constitute themselves committees for the purpose of promoting an election, but the members of which are not thereby constituted agents, though the sitting member may contribute to their funds, unless they are in fact his committee, and have undertaken the prac tical conduct of the election. For similar reasons a mere volunteer is not an agent. In the Windsor case (3), Mr. Justice Willes says: I have stated that authority to canvass, and I purposely used the word authority and not employment, because I meant the observation to apply to persons authorized to canvass, whether paid or not for their services, would in my opinion constitute an agent. After quoting this Mr. Justice O'Brien in the Londonderry case (4), adds: I cannot concur in the opinion that any supporter of a candidate who chooses to ask others for their votes and to make speeches in his favor can force himself upon the candidate as an agent, or that a candidate should be held responsible for the acts of one from whom he actually endeavors to dissociate himself. In the Hastings case (5) Mr. Justice Blackburn says: But I cannot but feel where the case is a small isolated, solitary case it requires much more evidence to satisfy one of the agency than would otherwise be necessary. If a small thing is done by a person who is the head agent I think that would have upset the election. And if small things were done to a great extent by a subordinate person comparatively slight evidence of agency would probably have induced one to find that he was an agent. But when you come to a single case of one man telling another, whom he was inducing to go to the polls, that he would be paid afterwards for what he might spend in drink, to make that single case upset the election would require considerable evidence of agency. I take, then, this single case of Robert's, and applying (1) Drogheda, W. & D. 209; Staleybridge, 10. & H. 67; Wareham, W. & D. 95. (2) 12th Ed. 1876, 437. (3) 1 0. & H. 3. (4) 1 O. & H. 278. 1878 SOMERVILLE v. LAFLAMME. |