BOOKS.
ELECTION PETITIONS.*
PERHAPS the framers of the new tribunal for trying Election Petitions were right in giving the Judge the power to decide both on the law and the facts in such cases. A jury, for one thing, would in many places have been almost impossible to get together of a quality that anybody would have trusted, for especially at the close of an election, and before the heat of the contest had passed away, party feeling would more or less tend to vitiate the judgment of almost everybody ; and even if it sometimes did not, men would readily assume that it did. When the old-fashioned Parliamentary Committee was done away with, therefore, there was probably no alternative but to give the judge the whole responsibility of the verdict. Had there been an alternative, we think the Legislature would have been bound to have taken it, for it is to be feared that the exaltation thus forced on the judge has by no means tended to the steady and uniform administration of the Statutes, and that not through any fault of his.
An election petition is perhaps one of the most difficult of all the difficult things that a Judge is called upon to deal with. So far as the law goes, it is very strict and rigid ; but it can only lay down principles, and hence of necessity there is much margin left for the common-sense view of things ; so much of the evidence is circumstantial, so many things are often done which just evade the statute, or which, when not evading it, are yet so devoid of real harm, that s the judge has to decide, doubtless on the broad lines of the law, but yet by the simple light of his own understanding, and by the general bearing of often a confused multitude of facts. A jury in such circumstances would be an invaluable aid to him, and in its absence it is almost inevitable that, with every desire to do strict justice, one man's apprehension of the weight and importance of certain events will differ from another's. Nor is the law that perfect help to the judge that it might be. In some of its provisions it is extremely strict and definite, but this very strictness is sometimes a stumbling- block in the way of the judge. Take the case of the relations between a candidate and his agents. At first sight, one would be apt to suppose that the legal status of the two would be the same as that, say, of a principal and agent in ordinary com- mercial transactions ; and that therefore if the agent were guilty of any misdemeanour without the knowledge of his prin- cipal, the former alone would bear the consequences. But this is not so, and justly not so, if it be considered that the main object of the Election law is not to protect this or that candidate, but to protect voters, and to prevent corrupt returns, in view of the interests of the commonweal. If, therefore, an agent com- mitted an act of bribery at an election, or caused one to be com- mitted, and that act be clearly established, his employer is punished for it by the loss of his seat, although he may have known nothing of it. The relation between the two, in short, is, so far as it is not from its nature sui generis, more that of master and servant, as defined by the Jules of common law, than of principal and agent. Were it not so, the flood-gates of corruption might be opened to almost any extent, for an agent might act professedly on his own responsibility, or employ others to act so, and when the storm came, take all the blame of it, and let the successful candidate go scatheless. The present penalties on direct bribery are not severe enough, nor is the act of bribing easily enough traced, to make purity of election at all safe without this strin- gency of dealing with the relations of a candidate and his agents. But then comes the question, "Who is an agent ?" And here there is almost infinite latitude for diversity of opinion, for almost any one may be held to be an agent, under the terms of the Acts of 1854 and 1868, who does anything in the name of a can- didate or of his authorised agents, whether paid for it or not, and whose acts are not repudiated. A candidate is responsible, for instance, not merely for the acts of the men he appoints, but for those of the men they in turn appoint. When a case of bribery, therefore, comes before a judge, he has to decide, not merely on the law, when the fact is proved, but upon the nuances of guilt, as it were, which are to be determined by the receding scale of responsibility dependent upon the position of the agent ; and here no two men may lay precisely the same stress on the same fact. In their subordinate positions, too, there is clear room for difference of opinion as to what actually constitutes an agent. One judge might honestly hold that a fussy meddler who got himself into the good graces of some leading supporters of a • The Eledion Manual. By L. P. Brickwood, MA., and Herbert Croft, ILA, Barriaters-at-Law. London : Virtue, Spalding, and Uo. candidate, and went about treating and bestowing small favours, was an agent within the meaning of the Act ; and another might not. Some strict opinion on a point of this nature would evi- dently appear to have influenced the recent decision at Stroud, and yet, from the reports we have seen, it does not seem that the candidates were cognisant of the indiscretions of their supporters in any shape, or that the distinct consequences of the acts held corrupt could be shown. Treating, however—the sin of Stroud —is one of the great traps of the election law. There is a corrupt treating, and there is a treating which is innocent, and it would be very difficult to say exactly where the line could be drawn with safety. "A single thimbleful of drink," according to a well-known dictum of the late Mr. Justice Wines, would be enough to avoid an election, if given with corrupt motive ; but then the motive has to be discovered, and we need not say that is not always easy. We have known effusive busy- bodies who rose to the great dignity of being chairmen of district committees at an election, and who went about, in the very happi- ness of their innocent vanity, treating friends freely to a glass, but who yet would not be called corrupters in any sense, simply because those people who drank with them would in all probability have voted straight, whether they got beer or not. It was a mere piece of good-nature, born of the generous enthusiasm of the hour, and who shall say that the " thimbleful " condemned by the judge might not be? A man may give a feast, too, on the election - day to his friends, or he may gather them to a private treat before the election, and yet not be held guilty of the crime of corrupt treating, the evidence for which ought, as many judges have wisely said, to be large and well defined before the fact is admitted. The increasing difficulty which the Ballot throws in the way of tracing the effects of these injudicious hospitalities ought to make judges more than ever cautious in laying stress on this point, but at Stroud this does not seem to have been the case. The judge followed the law, which is hard and strict, and without a jury to decide on the facts, decisions of a diverse and almost contradictory kind will for some time to come be more or less unavoidable.
Bribery, vain, is another most subtle form of corruption, with which a judge may well find difficulty in dealing. There are a thousand ways in which a man may bribe or be bribed, and as the compilers of the Manual before us point out, the Statute of 1868 has introduced a new element of per- plexity on this point, in that it apparently limits the time during which a candidate may be held guilty of bribery in any form to the period of the election. Hence, apparently, if a man were to " nurse " a borough for a year or two before the dissolution came, and then, on the eve of the election, come forward as a candidate and abstained from all semblance of corruption, he could not be charged with bribery, though he might really have bought the place. The Parliamentary Elections Act of 1868 defines "candidate," as "any person elected to serve in Parliament, and any person who has been nominated as or declared himself a candidate at an ekc- tion;" and as it is only " candidates " who can be accused by peti- tion of bribery, this opens the door to a good deal of evasion of the law. It appears to us that there is a disposition on the part of judges to limit their view in this way sometimes rather more than strict justice requires, although the decision given in the late Kidderminster petition afforded a wholesome lesson upon the point. Yet even here, had there not been evidence of promises of bribes given at the time of the election, it would have been very difficult, if not impossible, to oust the sitting member for what was done after the election was over. Amongst the earlier decisions after the election of 1868 there was not much direct allusion to the subject, but there was a manifest tendency, when events happened at some little distance of time, to disregard them, or at most, to blame somebody for indiscretion, as the judge blamed Mr. Gardner at Windsor. Mr. Justice Keogh, in Ireland, was the only one who laid down the distinctly opposite principle, which, although perhaps more in accordance with the older statutes, seems yet to go too far on the other side. In delivering judgment on the Sligo petition, he said :—" Any act committed previous to an election with a view to influence a voter at a coming election, no matter at what dis- tance of time, whether it is one, two, or three years before, is just as much bribery as if it was committed on the day of the election. Nay, more, if any man commits bribery in the first week of a Parliament, and if he sues for the suffrage of that constituency in the last week of the seven years which precedes the dissolution, that act, committed six years before, can be given in evidence against him, and his seat will not hold an hour." This, we sub- mit, is going just a little too far the other way,—is, in fact,
pedantic, but undoubtedly rather too little esteem is had amongst English Judges for facts that speak to "nursing."
There is an important side of the subject on which we have not touched, but which possesses, if possible, a deeper interest than any attached to the perplexity of Judges, and that is the miseries of the candidate. As one reads of the thousand ways in which he may be beset, of how his most trusted agents may hurt him worse than his bitterest foes, and his most zealous friends prove worse than traitors, it becomes more and more a wonderful thing that men can be found to undergo the ordeal at all. Some injudicious working-man, made proud by a shake of the candidate's hand, may, at the very moment of triumph, be giving the " thimbleful" of drink to a wavering " mate " that will ruin the election ; a shrewd publican, strong in his support, but also keenly disposed to steal a march on his rival on the opposite side of the street, may deem it a good stroke to spend some twenty pounds of his own in indiscriminate treats, with the same result ; or zealous clerical friends may go too far in their warnings against political apostacy. In short, the dangers are infinite, and the wonder is that men escape them as they do. There can hardly be an election which does not, on some point, offer some colourable show of a breach of the law ; and while judgments on ques- tions of fact are not more tied down by well-established rules and precedents, a successful candidate's anxieties can hardly ever be over until he knows that he is safe from a petition. The recent elections have not been so fruitful of them as those of 1868, and most of those that have come to a head have done so very quietly. In fact, with the exceptions already noticed, the public has taken small heed of them. But it would be rash to augur anything from this for the future, or to conclude that the ballot will help to purity. We owe the fewness of these petitions to the haste of the elections, and there are signs that the ballot will increase, rather than lessen, dangers and perplexities.
A study of this Electidn Manual is not very reassuring upon the point of a speedy formation of a code of 'Judge-made law,' de- fining and limiting the operation of the abstract precepts of the statutes. That is hardly to be wondered at, however, for the abstracts of judgments here given are confined, of necessity, almost exclusively to the first series of trials under the new Act. Working in quite a new field, it was natural that the Judges should feel and frequently express embarrassment, and we question whether the work of collecting their various deliverances, cutting them up under the various headings of bribery, treating, intimidation, and the like, was altogether a wise one, or likely just yet to do much good. There is re- vealed in the extracts brought together in this book both a considerable divergence of opinion and a disposition among the judges to lean on each other's judgments, which are not favourable to any attempt to deduce principles from the deci- sions. The compilers of the Manual have carefully abstained from doing so, and thus their work, although perhaps more useful and handy to the Parliamentary lawyers and agents than the Blue- books from which it is taken, is calculated rather to hinder than help the candidate or elector who wants to find out from it how to avoid breaking the law, either in himself or his friends.
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