Voter, where not a wit nefs. Ufage evidence. at all, except only a cafting one in cafe of an equality of numbers &? of a 5. Whether the mere offer of a bribe on the part candidate difabled him from fitting in parliament ? The following incidental points were determined by the committee. One Ferguffon, who had been proved to have received a gun from an agent of Sir John Henderson, as a bribe for his vote, and had voted for Sir John, was called as a witness to contradict the fact of his having been fo bribed, and the evidence was objected to. It was answered, that a voter might be called to prove that he had not been bribed, in cafes where the object of the evidence was not to defend his own vote, but to exculpate the perfon by whom the bribe was faid to have been given. That the question here was not, whether Ferguffon's vote fhould remain, or not; but whether Sir John Henderson had or had not been guilty of fuch an act as would disable him from fitting in parliament: and Ferguffon, not being at all affected by that question, was a competent witness upon the trial of it. And the cafe of Ilchefter, 3 Ld. Gl. 165, was cited, where the voter was admitted to prove that the bribe was not given by the candidate for whom he had voted. In reply, it was infifted, that in the prefent state of the cafe the voter was called upon to establish his own vote, as well as to exculpate Sir J. H., and that the cafe of Ilchester did not apply. For there, the vote was given up and it being indifputably proved that the voter had received ten guineas from fome perfon, the only queftion was, from whom? To bring this cafe therefore within that of Ilchefter, it should first be admitted that Ferguffon having been guilty of receiving a bribe, had loft his vote. The committee refolved that the evidence was inadmiffible. 2. With respect to the fett of Stirling, the counfel for Capt. Cochrane propofed to call witneffes to fhew what had See, upon the subject of cafting votes, Heyw. 391. R. v. Dean and Canons of Chichester, T. 18 G. 3. been been the ufage. It was objected, that the ancient conftitution of the burgh, preferved of record in the books of the convention of the royal burghs of Scotland, was the law of that burgh, and could not be altered by any ufage to the contrary. This was admitted on the other fide, where the words of the law are clear: but it was anfwered, that there being here fome doubt as to the conftruction of the fentence, and the application of the word only, it was competent to refort to usage for an explanation of it, and to inquire, what in all former elections had been the practice conftantly adopted, and confidered to be confonant both to the words and meaning of the conftitution. The committee received the evidence. The first witness, the returning officer, being afked as to Agency. an offer made to him of a fum of money by one Hunt, on the part of Sir John Henderfon, if he would return Sir J. H. fingly; it was objected, that the agency of Hunt was not yet proved. The question, whether it was neceffary first to prove the agency, was argued at confiderable length: it has also been fince frequently difcuffed before other committe、s, and the fame arguments, in general, have been reforted to. What follows, is to be understood to be not only what was faid in this particular cafe, but to be the fubftance of all the arguments urged on each fide of the question in the fucceeding cafes, as far as that of the county of Radnor. It has been thought more convenient to bring the whole of the subject into one view, mentioning in future merely the decifion of each committee before which the point arofe. that agency mult be In fupport of the objection it was thus argued: The ad- Argument, miflibility of any piece of evidence that is offered, must be confidered according to the prefent ftate of the caufe, and proved first. not with respect to any facts hereafter to be established, or any poffible connection by which matters apparently foreign from the iffue may be made to apply to it. There is no reafon why either the court or the adverfe party fhould remain fatisfied with a bare intimation that fuch will be the cafe. They are not bound to foresee, that what is at prefent no evidence, will in a future ftage of the caufe become good evidence; and for the court to decide upon fuch an ex pectation or promise that it is admissible, is to affume, for the ground of their judgment, that which poffibly may never exift. For if it be true, that fuch a connection can be fhewn as to fix the perfon accufed, with the acts of others, it is fit that this connection fhould be fhewn in the first inftance. The caufe is then put into its regular order, and nothing is left to be taken de bene effe, or by conjecture. If agency can be proved at all, it may be proved at firft; and there will then be no danger that the time of the court will be confumed by the proof of facts which may turn out to be entirely irrelevant, and the detail of which can produce no other effect than to create an improper prejudice in the caufe. It is faid, that as in general the proof of agency does not confift in a fingle act, but in a variety of circumstances, more than circumftantial evidence ought not in fuch cafes to be required. This is true; but ftill, the acts from which the committee are to infer agency must be the acts of the perfon charged with the crime, and not of others. A variety of circumftances, each, fingly, weak and inefficient, may by their combined effect amount to full and complete proof: but whatever the effect of each may be, it is neceflary that in their nature every one should be matter of legal and admiffible evidence. The acts of an agent are admitted in evidence against the principal, because they are confidered to be the acts of the principal himself. Qui facit per alium, facit per fe. Therefore whether agency be proved or not is no flight matter. And as in this cafe the confequences of its being eftablished may be very ferious, it ought not to be taken upon prefumption, or inference, but fhould be made out by the strongest evidence poffible. Much less is agency to be proved by the declaration of the fuppofed agent. To this, in the first place, there lies the objection, that it is hearfay; and, in the second, that it would be most dangerous, to admit of fuch a mode of proof as would put it into the power of every man to make himself an agent, and affect his pretended principal with acts acts of the most penal nature. Any enemy might do this. The words of Mr. Juftice Buller, in his charge to the jury, in one of the Cricklade cafes, may be applied to this part of the fubject. "This part of the cafe" (bribery by means of an agent)" must depend upon the defendant's ewn acts; for you have been truly told, that a man cannot be charged with the offence of another, because that man has thought fit to call himself the agent of another. You have been likewife told, very properly, that no man can make himself agent for one who does not employ him. The criminal acts of one man cannot affect another, unless he, by his own act, approves of them and adopts them." Cricklade Cafes, p. 152. There arifes, therefore, a further argument, from the nature of these acts and their confequences; and a distinction between crimes committed, and innocent acts performed through the medium of agents. Here the acts are in their nature highly criminal; and the confequences that enfue are the lofs of a feat in the Houfe of Commons; an incapacity to fit there; and, befides the infamy that attends fuch crimes, very fevere penalties to be recovered in other courts. Nor are there wanting frequent inftances where the Houfe of Commons has visited fuch offences with exemplary pu nishment. In deciding what fhall conftitute agency, all thefe circumstances are to be taken into confideration. Whether it be constituted or not, is an iffue arifing from the facts of every case. And though it is impoffible to define what shall amount to a complete proof, a few general principles may be fuggefted to fhew within what bounds we are to confine ourselves while we are advancing to this conclufion. Firft, Agency is not established by the affiftance which a candidate may receive from his friends during an election. Though he may be accompanied by them throughout his canvafs, and at the huftings, and though he may leave the greatest part of the business relating to his election to be conducted by them, it does not follow that a corrupt act, Cricklade Cafes, by Petrie, p. 372. committed committed by one of them, fhall, for this, be imputed to him, unless it can be further fhewn, either that he commanded it, or confented to it, or knew it, and did not difapprove of it. It would be unjust to make him criminally anfwerable for their imprudent zeal: it frequently happens, likewife, that a third perfon has a stronger interest in the fuccefs of a particular caufe than the candidate himself. Secondly, Similar to this is the cafe of a committee for the purposes of an election. Where a number of perfons are collected on fuch an occafion, it may happen that members of it, without confulting the body at large, or the perfons whose intereft they fupport, with a view of furthering the common object, may be guilty of bribery. Such an act, either of an individual member or the collective body, could not be imputed to the candidate, without fome fuch proof as has been before mentioned. Committees, when once appointed, act at their own difcretion; the fact of their being appointed by the candidate, to do lawful acts in his name, and to lay out his money for lawful purposes, cannot make him anfwerable for their crimes; ftill lefs for the crimes of any individual among them. Thirdly, in the cafe of individual agents, employed and paid. An employment to every lawful purpose does not, of itself, conftitute an employment to any unlawful one. Where the place to be reprefented is of large extent, and the voters numerous, it is neceffary that the candidate should have many agents. That the mere employment of them fhould make him anfwerable for the integrity of them all, would be an enormous refponfibility. Now in all thefe cafes it is evident that the candidate would be answerable civilly for debts incurred by any of thefe three defcriptions of perfons, who could be proved to be invefted by him with a general authority to make use of his credit, and to act in his name. But it would be monftrous to fay, that if any one of them fhould be imprudent enough to give or to offer a bribe to a fingle elector, this, without farther proof of a direction, confent, or adoption i Cafe of Southw. 372. of |