"Act as a merely technical breach of law and a practice "not being an intentional violation of the law, and not

'involving moral culpability'; and the declarations and “enactments of this section are for all purposes to be construed and to have effect from the time of the passing

of the said Revised Statutes, as if the same had been

expressed therein according to the hereby declared intention of the said enactments:"

tion of candi

This section is somewhat involved, but the effect of it Effect. would seem to be that disqualification cannot be held to No disqualificaattach to a candidate under the 161st section of the date unless corrupt intent be Election Act except in respect of a corrupt practice com- shewn, mitted with corrupt intent and involving moral culpability either by the candidate or by his agent, "with his actual knowledge or consent" (a) and then only when

joint decision of

it is found to be of that character by the joint decision of And found by the Trial Judges. For instance, the respondent in the trial judges. Muskoka case, above referred to, could not, under this section, be held to be disqualified, according to the judg ment of the Trial Judges, for they held that there was no corrupt intent in the act for which he was disqualified. Unfortunately for him, this section did not become law in time to rescue him from the effect of the judgment, though the enactment is declared to be retrospective. The 162nd section of the Election Act would now seem to be useless, as if a corrupt intent be proved either on the part of the candidate or of his agent, by or with his actual knowledge or consent, (assuming "knowledge " and "consent" to be synonymous terms) it would be idle to contend that the act was committed "without any corrupt intent and in an ignorance," etc.

(a) See Rev. Stats. Ont. c. 10, s 161.

CHAPTER II.

AGENCY.

Who is an Agent

AN AGENT is a person authorized by the candidate to act on his behalf in affairs connected with the election, and the candidate, as regards his seat, is as liable for acts committed by his agent, as if he himself had been personally concerned therein; although the agent may not only have exceeded the authority committed to him, but have acted in opposition to the express command of the candidate (b).

The liability of a candidate for the acts of others is, it will be seen, much wider than that of an ordinary principal for the acts of his agents. The reasons which led to this were stated by Blackburn, J. (c), as follows:-"The rule of Parliamentary election law, that a candidate is responsible for the corrupt act of his agent, though he himself not only did not intend it or authorize it, but bona fide did his best to hinder it, is a rule that must at all times fall with great hardship upon particular persons. But I may mention the consideration which, no doubt, led the common law, as I may call it, of Parliament to establish it. Corruption, as we all know, in practice and in fact, is seldom or never done by the hand of the can

(b) Leigh and Le Marchant's law of Elections (4th Ed.) p. 72. (c) Taunton, 1 O'M. & H. 184.

An

didate. The two modes in which it was found in practice
that corruption was carried on were these: persons were
put forward to do all the work of canvassing and con-
ducting an election, and these persons acted corruptly;
but the candidate purposely kept himself out of the know-
ledge of anything about the matter, so that he might have
the full benefit of their services; and were it not for this
rule which has been established he would not suffer for
their misdeeds. That is one of the great reasons.
other great reason would be that no doubt people were
put forward as to whom the candidate was carefully kept
from knowing they were spending any money, or doing
anything with the notion, according to the loose morality
that prevailed in election matters, that when the time
for petitioning was past, those persons might come to him
and say, I did spend that £1,000 for you upon the
election; of course I did not tell you about it or say a
word about it at the time, but now you are bound in
honor to repay me that £1,000 of which you had the
benefit, and which, in point of fact, the candidates did
feel themselves bound in honor to pay.. This, therefore,
was another reason for the parliamentary law declaring
that the candidate should be responsible for the act of
his agent" (d).

Grove, J., in the Wakefield case (e), after referring to the ordinary law of principal and agent, says: "But if that construction of agency were put upon acts done at elections, it would be almost impossible to prevent corruption. Accordingly a wider scope has been given to the term agency in election matters, and a candidate is

(d) See also Cornwall, 1 H. E. C. 547; North Ontario, Ib. 304; W. Toronto, Ib. 97; N. Ontario, Ib. 785.

(e) 2 O'M. & H. 102.

Law analagous

to that of master and servant.

responsible generally, you may say, for the deeds of those who, to his knowledge, for the purpose of promoting his election canvass and do such other acts as may tend to promote his election, provided that the candidate or his authorized agents have reasonable knowledge that these persons are so acting with that object. I think it well that I should say in this respect that here it is almost impossible for any judge to lay down such exact definitions and limits as shall meet every particular case; and it is extremely important that the public should know that, because, were it otherwise-were I, for instance, on the present occasion to pretend to lay down an exact definition of what constituted agency at one electionpossibly in some other case that particular definition might be evaded, although what came substantially to the same thing might have taken place. Happily, there is sufficient elasticity in the law to prevent that being the case; and here, again, those who think that they can evade the law by just creeping out of the words which learned judges use, or even which tribunals use, upon a matter of this sort, which is partly law and partly fact, will generally find that they are very much mistaken. It is, therefore, well that it should be understood that it rests with the judge not misapplying or straining the law, but applying the principles of the law to changed states of facts, to form his opinion as to whether there has or has not been what constitutes agency in these election matters. It is well that the public should know that they cannot evade this difficulty by merely getting, as they suppose, out of the technical meaning of certain words and phrases."

The law as to Parliamentary agency is rather analagous to that of master and servant than to that of ordinary

principal and agent; i. e., the candidate is responsible for the acts of his servant done in the course of his employment, whether lawful or not, notwithstanding a prohibition may have been given to him by his master (f):

commences.

The idea that a candidate can have no agents until when agency after nomination day is so common an error that it is well to observe here that there is no stated time when the candidate's liability begins, other than the commencement of his candidature. The close of the election ter- When agency minates the agency. A candidate is not liable for any acts committed by his agent after the election is over, unless he be personally privy to them (g).

A corrupt act, however. done after the election, may be material as throwing light on what took place before the election (h).

A candidate will be held responsible for the acts of subagents appointed by an agent, even though the candidate does not know, or is not brought into personal contact with the sub-agent (i). When a candidate puts money into the hands of his agent, and exercises no supervision over the way in which the agent is spending that money, but accredits and trusts him and leaves him the power of spending the money, although he may have given directions that none of the money should be improperly spent, there is such an agency established that the candidate is liable to the fullest extent, not only for what that agent may do, but also for what all those whom that agent em

terminates.

(ƒ) Wigan, Judgments 205; 1 O'M. & H. 191; Westbury, 1 O'M. & H. 54; also per Martin, B., Norwich, 1 O'M. & H. 10; and Boston, 2 O'M. & H. 165.

(g) Bodmin, 1 O'M & H. 118; Salford, 1 O'M. & H. 138; Norfolk, (N. Div.), 1 O'M. & H. 243; Longford, 2 O'M. & H. 11, 12; Limerick, 1 O'M. & H. 261 ; King's Lynn, Ib. 208; Brockville, 1 H. E. C. 139.

(h) Southampton, 1 O'M. & H. 222; see N. Ontario, 2 Ont. El. cases, 1.

(i) Bewdley, 10'M. & H. 19; Barnstaple, 20'M. & H. 105-6; Charlevoix, 5 Sup. Ct. 133; Welland, 1 H. E. C. 187.