CHAPTER X

[201:1]39-40 Geo. III., c. 67, Art. 4.

[201:2]Ibid., Art. 5.

[202:1]8 Hen. VI., c. 7.

[203:1]In Scotland the value of the land, if not of "old extent," had to be £400 a year. In Ireland an Act of 1829 had raised the limit of annual value to £10, to restrain the practice of manufacturing fagot voters on the eve of an election.

[203:2]In Ireland the borough franchise was multifarious as in England. In Scotland it was wholly in the hands of the councils of the royal burghs.

[203:3]2-3 Will. IV., c. 45, § 26.

[203:4]Ibid., § 18.

[204:1]2-3 Will. IV., c. 45, §§ 19, 20. The last provision was added during the passage of the bill, and is known from its proposer as the Chandos Clause.

[204:2]Ibid., § 33.

[204:3]Ibid., § 32; but freemen thereafter admitted could vote only if made such by birth or servitude.

[204:4]Ibid., § 33. By § 31, 40s.freeholders retained the franchise in boroughs that are counties by themselves.

[204:5]2-3 Will. IV., c. 65.

[204:6]Ibid., c. 88.

[205:1]Com. Papers, 1831-1832, XXXVI., 489.

[205:2]It is interesting to observe that of these, 108,219, or nearly two fifths were freemen, scot and lot voters, potwallopers and other persons whose ancient rights had been preserved. They belonged, of course, only to the old boroughs. Election Returns (Boroughs and Counties), Com. Papers, 1866, LVII., 215, p. 8.

[206:1]These figures, about the proportion of electors and members to population, are taken from a Report on Electoral Expenses, Com. Papers, 1834, IX., 263, App. A.

[206:2]Pp. 47et seq.

[206:3]13-14 Vic., c. 69.

[206:4]In reading the debates on these bills a foreigner is often puzzled by the distinction between ratable value and clear yearly value. The latter is what is called gross estimated rental in the Rate Book, while the ratable value is supposed to be the net yearly value, and it is obtained by making a reduction from the gross, which varies from place to place, but is on the average about ten per cent.

[206:5]Of the borough electors in England and Wales 26.3 per cent belonged to the working classes; Com. Papers, 1866, LVII., 47, p. 5. In Scotland the proportion was 18.3 per cent.Ibid., 805, p. 12.

[207:1]30-31 Vic., c. 102.

[207:2]One of the safeguards in the bill was the provision that householders must be separately rated for the relief of the poor, and must have paid their rates; and in order to insure personal payment by the householder, the Act forbade the common practice of rating the owner of dwellings in lieu of the occupier. But the practice saved the local authorities much trouble. It enabled them to receive the rates in a single payment from the owner of a number of houses, instead of collecting small sums from many tenants; and they were in the habit of allowing a commission or rebate to owners who paid in this way.The convenience of the old practice was so great that in 1869 it was again permitted; and the Act (32-33 Vic., c. 41) also provided that such a payment by the owner should be deemed a payment by the occupier for the purpose of the franchise, thus sweeping away the safeguard of personal payment of rates.The practice is called compounding for rates, and the tenant whose rates were paid by the landlord was the subject of fierce discussion under the name of "compound householder," although it was in fact the rate, and not the house or the holder thereof, that was compounded.

The convenience of the old practice was so great that in 1869 it was again permitted; and the Act (32-33 Vic., c. 41) also provided that such a payment by the owner should be deemed a payment by the occupier for the purpose of the franchise, thus sweeping away the safeguard of personal payment of rates.

The practice is called compounding for rates, and the tenant whose rates were paid by the landlord was the subject of fierce discussion under the name of "compound householder," although it was in fact the rate, and not the house or the holder thereof, that was compounded.

[208:1]It will be observed that the £10 occupier differed from the householder in the fact that he might occupy any shop, warehouse, or other building, whereas the householder was qualified only by a dwelling-house. On the other hand, the premises occupied by a £10 occupier must be of the clear yearly value of £10, whereas the householder was qualified without regard to the value of the house.By the Act of 1867 the householder might occupy any part of a house used as a separate dwelling; while the £10 occupier must occupy a whole building. This difference was, however, done away with in 1878 by an act (41-42 Vic., c. 26, § 5), which provided that the occupation might be of any separate part of the building, if that part were of the yearly value of £10.

By the Act of 1867 the householder might occupy any part of a house used as a separate dwelling; while the £10 occupier must occupy a whole building. This difference was, however, done away with in 1878 by an act (41-42 Vic., c. 26, § 5), which provided that the occupation might be of any separate part of the building, if that part were of the yearly value of £10.

[208:2]31-32 Vic., cc. 48, 49.

[208:3]They ran from a little less than one in twenty-one to a little more than one in twenty.Cf.Com. Papers, 1866, LVII., 215, 569.

[208:4]Ibid., 643. The extension of the franchise in Ireland in 1850 nearly trebled the number of county voters there, in spite of the falling off in population.It may be observed that the growth in registered voters is not an exact measure of the increase in the number of persons qualified for the franchise, because with the organisation of the political parties there has been a greater and greater effort to make every man register who is entitled to do so.

[208:4]Ibid., 643. The extension of the franchise in Ireland in 1850 nearly trebled the number of county voters there, in spite of the falling off in population.

It may be observed that the growth in registered voters is not an exact measure of the increase in the number of persons qualified for the franchise, because with the organisation of the political parties there has been a greater and greater effort to make every man register who is entitled to do so.

[208:5]Com. Papers, 1872, XLVII., 395.

[208:6]48-49 Vic., c. 3. The Act also extended the household qualification—both for counties and boroughs—to men who occupy a dwelling-house not as owners or tenants, but by virtue of their office or employment, provided the employer does not also occupy the house, the object of that proviso being to exclude domestic servants. This qualification is known as the "service franchise."

[209:1]48-49 Vic., c. 3, 6; and see also 2-3 Will. IV., c. 45, § 24, and 30-31 Vic., c. 102, § 59.

[209:2]Rogers on Elections, I., 64-66. The references to Rogers are to the 16th Ed. of Vol. I., to the 17th Ed. of Vol. II.

[209:3]The amount required for the qualification of freeholders in boroughs which are counties is not exactly the same as in counties; and the leasehold qualifications do not extend to them. In England there are now only four boroughs which retain these rights: Bristol, Exeter, Norwich, and Nottingham. Rogers on "Elections," I., 160et seq.

[210:1]Rent charges, whether arising from the commutation of tithes or otherwise, are realty, and qualify a voter as land.

[210:2]If the land is copyhold or other tenure, it must in any case be of the yearly value of £5.

[210:3]The £50 leaseholders admitted by the Chandos Clause in the Act of 1832 were required to occupy the land, and are now included in the £10 occupation franchise.

[211:1]Rogers, I., 61-63, 125.

[211:2]Ibid., 27, 66.

[212:1]Rogers, I., 148-49, 162. In the City of London he may reside within twenty-five miles.

[212:2]Ibid., 149-50.

[212:3]Page207, note 2,supra.

[212:4]Rogers, I., 27, 30, 126et seq., 142et seq.

[213:1]Com. Papers, 1898, LXXX., 755.

[213:2]It is slightly less in Scotland than in England and Ireland.

[213:3]Aug. 30.

[214:1]A man cannot vote in more than one division of the same borough. 48-49 Vic., c. 23, § 8. But there is no such limitation in the case of divisions of a county.Ibid., § 9. Metropolitan London is not a single borough, but a collection of boroughs, several of which contain more than one division, and hence the effect of this provision is quite irrational there.

[214:2]Com. Papers, 1888, LXXIX., 907.

[216:1]Where the landlord compounds for the rates he is required to give to the overseers a list of the actual occupiers. Rogers, I., 130.

[216:2]Rogers, I., 265, 266, 268.

[216:3]An Irish peer actually sitting for a constituency in Great Britain can vote.

[216:4]They adopt every year a sessional order that for a peer "to concern himself in the election of members" is "a high infringement of the liberties and privileges of the Commons."

[217:1]For the duties of the Revising Barrister, see Rogers, I., 297-336. From the decision of the Revising Barrister an appeal lies on questions of law to the King's Bench Division of the High Court of Justice.

All elections to Parliament, whether general elections following a dissolution, or the so-called by-elections resulting from an accidental vacancy, take place in pursuance of a writ under the Great Seal, issued from the Crown Office, and directed to the returning officer of the constituency. In all counties, and in Scotch and Irish boroughs, the returning officer is the sheriff or his deputy. In English boroughs he is the mayor.

Procedure at Elections.

Before the Ballot Act.

Until 1872 candidates for Parliament were nominatedviva voceat the hustings,—a temporary platform erected for the purpose. If more names were proposed than there were seats to be filled, the election was said to be contested, and a show of hands was called for. Many of the persons present were probably not entitled to vote, but that was of no importance, because the show of hands was merely formal, and a poll was always demanded. A time for taking it was then fixed, extending over a number of days, during which the electors declared their votes publicly. This gave a chance for bribery, for the intimidation of voters, and for disturbances of various kinds, not seldom deliberately planned. The disorderly scenes that accompanied an election have often been described both in histories, and in novels such as "The Pickwick Papers" and "Coningsby," written by men familiar with the old polling days. In 1872 the method of conducting elections was changed by the Ballot Act,[219:1]which introduced secret voting, and made the procedure more orderly in many other respects.

Existing Procedure.

Nomination.

Nominations are now made in writing by proposer, seconder, and eight others, all registered voters. If only one person is nominated for a seat, the candidate, or candidates if it be a two-member constituency, are at once declared elected; nor is this a hypothetical case, because, for reasons that will be described hereafter, usually more than one fourth, and sometimes more than one third, of the seats are not contested at a general election.

Election Days.

If, on the other hand, the election is contested, a day is fixed for the poll; for voting is now confined to a single day in each constituency. It is not the same day in all of them, on account of the latitude still given to the returning officer. He has a right, within certain limits which are different for counties and boroughs, to determine how many days shall elapse between his receipt of the writ and the election (that is, the nomination) and how many between the election and the poll.[220:1]The result is that in boroughs the voting may take place anywhere from four to eight days after the receipt of the writ; and in counties anywhere from six to seventeen days. Now, as the writs are sent out by mail at the same time, the voting at the general election covers a period of more than two weeks.

It might be supposed that such a power to arrange the order of elections would be used by the returning officer to help his own party, and this is said to be done, not systematically over the country, but in particular places. The multiplicity of election days has another and more important political effect; for it gives time to the out-voters, as the non-residents are called, to get from one constituency to another, and thus it facilitates voting in more than one place. For this reason the Liberal party—whichis opposed to plural voting—has demanded in its platform that all elections should take place on the same day. To this it has been objected that the change would, by lengthening the electoral period in the boroughs, increase the fatigue and cost to borough candidates; and in view of the rate at which labour and money are expended on such occasions the objection is not altogether without foundation.

Method of Voting.

For the convenience of voting the constituency is divided into a number of polling districts; and when an election is contested, the vote is taken in these districts between eight in the morning and eight in the evening of the appointed day. The method of voting under the Australian system of secret ballot, which was adopted in 1872, need not be described, because in some form its use has become well-nigh universal in civilised countries.[221:1]It may be noted, however, that the Ballot Act has never been extended to the universities, where voting is still done orally, or by means of a voting paper tendered at the polls by another elector to whom it has been intrusted.[221:2]In fact most of the university votes are given by proxy—a practice which was introduced in 1861,[221:3]and would be abolished by the ballot.

Legislation against Corruption.

Before the Reform Act of 1832, huge sums of money were sometimes expended at parliamentary elections, and bribery and corruption were rife. Nor did the disfranchisement of rotten boroughs, and the extension of the franchise, by any means put an entire stop to the practice. Even as late as 1880 the special commissions appointed to inquire into the conduct of a number of boroughs, for which election petitions had been filed, found a bad state of affairs.[221:4]In Macclesfieldand Sandwich about half the voters had been guilty of bribery and other corrupt practices;[222:1]and as a result of the investigation those two boroughs, which were decidedly the worst, were entirely disfranchised. A series of attempts have been made to root out the evil by legislation. They have been more and more elaborate, and reached their culmination in the Corrupt and Illegal Practices Act of 1883.[222:2]These laws seek to restrain improper conduct at elections by several methods; first, by forbidding altogether certain classes of acts, which either interfere directly with the purity of elections, or have proved a source of inordinate expense; second, by limiting the total amount that can be spent, and the purposes for which it can be used; third, by requiring that disbursements shall be made through one recognised agent, who is obliged to return to the government a full account thereof; and, fourth, by imposing for violation of these provisions penalties, political and other, inflicted not only by criminal process, but also summarily by the tribunal that tries the validity of a controverted election.

Corrupt Practices.

The most demoralising acts forbidden by law are known as corrupt practices. They are bribery, treating, undue influence, and personation.[222:3]

Bribery.

Bribery at elections is, of course, criminal in all countries; and in England the offence is defined in great detail, for just as there are seven recognised kinds of lies, so the English statutes describe seven distinct methods by which bribery can be committed.[222:4]It is unnecessary for anybody who is not engaged in electoral work to remember these; and it is enough here to point out that they include a promise, or endeavour, to procure any office or employment for a voter in order to influence his vote.

Treating.

Treating differs from bribery in the fact that bribery involves a contract for a vote, express or implied, whereas the person who treats obtains no promise from the voter,and relies only upon his general sense of gratitude. But, as one of the judges remarked in the trial of an election petition some years ago, it is difficult in the large constituencies of the present day to bribe successfully, while a small amount of treating is sufficient to procure a great deal of popularity.[223:1]This is particularly true in England, where the habit of treating is made easy by the existence of sharp class distinctions. Treating was forbidden as long ago as the days of William III., and it is now defined[223:2]as giving, or paying the expense of giving, "any meat, drink, entertainment or provision to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote."

Undue Influence.

Undue influence is defined by the Act of 1883[223:3]as making use, or threatening to make use, of any force, violence, or restraint, or inflicting, or threatening to inflict, any temporal or spiritual injury on any person in order to influence, or on account of, his vote; or by duress or fraud impeding the free exercise of the franchise by any man. These provisions cover threats by an employer to discharge workmen,[223:4]and the denunciation by priests of spiritual penalties on political opponents.[223:5]

Personation it is unnecessary to describe.

Corrupt Practices avoid the Election.

All these corrupt practices are criminal offences punishable by fine or imprisonment, and by the loss of political rights for seven years.[223:6]What is more important for our purpose, they are liable to cost the member his seat; for if upon the trial of a controverted election the court reports that any corrupt practice has been committed by the candidate, or that bribery or personation has been committed with his knowledge and consent, his election is void, and he is forever incapable of being elected to Parliament by thatconstituency.[224:1]Moreover, if the election court reports that a corrupt practice has been committed by his agents, although he may be personally quite innocent, his election is void, and he is incapable of being chosen by that constituency for seven years.[224:2]

But only if done by the Candidate or his Agents.

It will be observed that in order to set aside an election, the corrupt practice must be brought home to the candidate, personally or through his agents. In accordance with the older traditions of English public life, the election is regarded as the affair of the candidates alone. The action of party organisations, or other bodies, is not taken into account,[224:3]and their conduct has no effect upon the result, unless their relations with the candidate have been such as to make them his agents. So long as a political association is urging the general interests of the party, rather than supporting a particular candidate, he is not responsible for their acts. It has been held, for example, that a candidate is not responsible for treating by such an association, although he was present and spoke at the meeting where it was done, if it was got up by them for their own purposes, and not to assist in his election.[224:4]It has been held, also, that a payment by a party organisation of bills for music and beer at public meetings, previous to an election, and even the candidate's subscription to their funds, need not be included in his election expenses, unless the organisation was a sham supported by him.[224:5]

In all such cases it is difficult to prove agency to the satisfaction of an election court. The time must come in any election, however, when the local party association by activeassistance to the candidate becomes his agent.[225:1]But this is not true of other bodies less directly connected with the party organisation, which are, nevertheless, in the habit of doing a great deal of work at elections. Thus it has been held that a Licensed Victuallers Association, having a distinct and direct interest in the election, did not become the agent of the candidate, although it played an important part in the campaign.[225:2]That this leaves a door wide open for corrupt influence is self-evident.

General Corruption.

To the general principle that a corrupt practice must be brought home to the candidate there is one exception. If bribery, treating, personation, intimidation, or undue influence, whether physical or ecclesiastical, has been general in the constituency—that is, so extensive that the voting could not have been the free expression of the will of the electorate—the result of the election is invalid at common law, although neither the candidate nor his agent are directly implicated.[225:3]

Distinction between Corrupt and Illegal Practices.

Besides corrupt practices, certain other acts are forbidden under the name of illegal practices; but the provisions relating to them are mainly designed to restrain the expense of elections, and will be described under that head. The essential distinction between the two practices is much like that which lawyers were formerly in the habit of drawing in the case of crimes betweenmalum prohibitumandmalum in se. A corrupt practice involves moral turpitude, and it is necessary to prove a corrupt intent.[225:4]A gift to a voter, for example, is not bribery unless it is made for the purpose of influencing his vote; but an illegal practice is simply an act forbidden by statute, and as such—in the case, for instance, of a payment of expenses above the maximum fixed by law—is illegal without regard to the motive with which it is done. For this reason a corrupt practice cannot beexcused,[226:1]while the election court may grant relief from the consequences of an illegal practice where it is trivial in itself, and was committed without the connivance of the candidate who took all reasonable means to prevent it; or where, although the direct act of the candidate or his election agent, it arose from inadvertence, accidental miscalculation, or other reasonable cause; or, finally, where a failure to make a return of expenses has been due to illness.

Practices Tending to Lower the Tone of Elections.

Some acts which, without involving great expense, tend to lower the tone of elections, are treated as illegal practices, and forbidden by statute. Such are the use for committee rooms[226:2]of premises where liquor is sold, and the furnishing of voters with cockades, ribbons, or other marks of distinction,[226:3]a proceeding which is believed to engender broils.

Restraint of Expenditure.

Other acts apparently harmless are prohibited in order to prevent extravagance. The most curious example of this is the provision forbidding the use of hired carriages to take voters to the polls.[226:4]Such a rule may seem unnecessary; but before the Act of 1883, by which it was enacted, thousands of pounds were said to have been spent in certain cases for the conveyance of electors. The Act does not forbid the use of carriages, but only of hired ones; and the result is that the private carriages and motor cars of wealthy partisans, sometimes blazoned with ancient armorial bearings, are placed at the disposal of the candidate. In fact in estimating the chances of an election one constantly hears that the Conservative has the advantage of a larger number of carriages.

Authorised Expenses.

Employment.

But by far the most systematic effort to restrain extravagance at elections is found in the provisions that prescribe on the one hand the objects of expenditure, and on the other its total amount. A schedule to the Act of 1883 enumeratesthe objects for which expenses may be legally incurred, and the first part of the schedule deals with the persons who may be employed. These are: one election agent;[227:1]a polling agent to watch the voting at each polling station; and clerks and messengers in proportion to population, the allowance being somewhat more liberal in counties than in boroughs on account of the greater area of the constituency. The act provides that, except as authorised by this schedule, no person shall be employed for pay;[227:2]and that no paid employee shall vote.[227:3]It may be noticed that among the list of persons who can be employed, canvassers are not mentioned, and hence the use of paid canvassers is illegal.[227:4]Now, as canvassing, that is the personal solicitation of votes, is by far the most effective part of the work done at an election, each candidate is always assisted by an army of volunteers. Wherever possible he is also helped by the agents of other constituencies, or of distinct associations, who, not being paid by him, and in fact, receiving no additional pay for their services on this occasion, are not within the prohibition of the law.

Other Expenses.

The other expenditures authorised by the schedule are printing, advertising, stationery, postage, and the like; public meetings; one committee room for every five hundred electors;[227:5]and miscellaneous expenses not exceeding two hundred pounds for matters not otherwise illegal. The candidate is also allowed to incur personal expenses for travelling and hotel bills;[227:6]and, finally, there are the charges of the returning officer for the cost of erecting polling booths, the payment of persons on duty thereat, and the other expenses attending the election.[227:7]These last charges are divided between the candidates and they are by no meanssmall, as may be seen from the fact that at the general election of 1900 they amounted, for the whole United Kingdom, to £150,278 10s.11d., or nearly one fifth of the whole expense incurred.[228:1]The National Liberal Federation has, indeed, repeatedly urged in its programme that such charges ought to be defrayed by the state, instead of being a burden upon the candidates.

Maximum Expenditure.

In order to reduce the cost of elections, Parliament has not only enumerated the objects for which money may be used, but has also set a maximum limit to the amount that may be spent.[228:2]In the case of boroughs this is fixed at three hundred and fifty pounds if the registered electors do not exceed two thousand, with an additional thirty pounds for every thousand electors above that number. In the counties the scale is somewhat higher, six hundred and fifty pounds being allowed where the registered electors do not exceed two thousand, with sixty pounds for each thousand electors more.[228:3]These sums do not, however, represent the total cost, for they include neither the personal expenses of the candidate to an amount of one hundred pounds, nor the charges of the returning officers.

Penalties for Illegal Payments.

The rules in regard to election expenses are furnished with sanctions of the same nature as those attached to corrupt practices, although the penalties are less severe. In addition to the criminal punishments that may be inflicted, it is provided that a candidate, or his election agent, who violates those rules shall be guilty of an illegal practice;[228:4]and that if a candidate is guilty, personally or by his agents, of an illegal practice (from the consequences of which he has not been relieved as heretofore described) he shall lose his seat, and cannot be elected by the same constituency during the life of that Parliament.[228:5]

The Election Agent.

It is one thing to make elaborate regulations about election expenses, and it is quite a different thing to insure their observance. The device adopted for this purpose in England is that of requiring each candidate to appoint an election agent, who is responsible for the disbursements. Except for the personal expenses of the candidate, to an amount not exceeding one hundred pounds, no payment of election expenses can be made by the candidate, or by any person on his behalf, except through the election agent,[229:1]and no contract for any such expenses is valid unless made by him.[229:2]Within thirty-five days after the election the agent must give to the returning officer an account of all his payments, and of all sums that he has received from the candidate or any one else, for the purposes of the campaign; and the candidate must certify that the account is true to the best of his knowledge and belief.[229:3]

The class of person selected for this duty is not only a matter of great importance to the candidate, but upon it depends also in large measure the purity of elections. A candidate may act as his own election agent, but this is rarely done. Usually, though by no means invariably, he takes the paid secretary of the local political association, who has the advantage of knowing the constituency better than any one else; and the Practical Manual for Parliamentary Elections, issued by the Conservative party, advises that course.[229:4]Rogers, on the other hand, in his work on Elections,[229:5]warns candidates that it is unwise to select such persons, because "when this is done attempts are frequently made to saddle the candidate with responsibility for the acts of the association and its members." "A further danger," he remarks, "arises in such cases of the election expenses being confused with or concealed under registration or other expenses of the association." With the modern organisation of parties a confusion of that kind is liable to occur in any event; and perhaps it is not so much dreaded by candidates as theauthor of the text-book on elections might imply. In spite of any dangers that may lurk in the practice, it is not only common, but apparently growing; and in fact the occupation of a paid secretary and agent has developed into a profession whose characteristics will be discussed in the chapters on party organisations.

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