FOOTNOTES:

The Election Court.

Formerly the validity of elections was decided by the House of Commons itself, with the natural consequence that politics were a large factor in the result. To such an extent was this true that the fall of Sir Robert Walpole was brought about by a hostile vote on an election case. In 1770 the matter was placed by statute in the hands of select committees of the House; but that did not put an end to political bias, and finally in 1868, the trial of election petitions, whether filed on the ground of a miscount, or of corrupt or illegal practices, was committed to a judicial body. The tribunal now consists of two judges of the King's Bench Division of the High Court of Justice, selected by the other judges of that division.[230:1]

A defeated candidate, or any voter, may present to the court a petition stating the grounds on which he claims that the election is invalid, and the case is then tried, witnesses are examined, and costs are awarded, according to the usual course of judicial proceedings. The decision takes the form of a report to the Speaker of the House of Commons, but it is really a final judgment upon the questions involved, for if the court finds that corrupt or illegal practices have taken place, the report has the effect not merely of avoiding the election, but of subjecting the candidate, and any guilty persons, to the political incapacities which those practices entail.[230:2]

Results of the Corrupt Practices Act.

Reduction of Expense.

So far as the reduction of the cost of elections is concerned, the English method of dealing with the subject has certainly been successful. According to the returns laid before Parliament, the total aggregate expenses incurred by candidates throughout the United Kingdom at the general election of1880—the last that took place before the Corrupt Practices Act of 1883—was £1,736,781; at the next election in 1885 it fell to £1,026,645, and on every subsequent occasion it has been less than that. In 1900 it was £777,429, which is not far from the average in these days. The expense of English elections is, however, far from small to-day. In 1900 the average cost for the United Kingdom in constituencies that were not uncontested was four shillings and four pence, for every vote cast.[231:1]

Returns of Expenses Sometimes Incomplete.

Moreover the returns undoubtedly do not in every case include all that is spent. A recent series of letters toThe Times, under the title "The worries of a parliamentary representative," throws light on this subject.[231:2]It opened with a letter from the member for a Welsh borough complaining that about a month after he had signed the return of his election expenses he received a note from his agent in regard to claims by workers at the election; that upon his refusal to pay any such claims in violation of the Corrupt Practices Act the agent wrote asking whether he would or would not fulfil the obligations made on his behalf during the election. His continued refusal, the member declared, had made him unpopular with many of his former supporters, who were now trying to prevent his renomination. In answer to this charge the agent, in a letter toThe Times, explained that all he had meant was that the member "should find some way—legal, of course—of expressing his gratitude to men who had worked splendidly in his cause;" and he added that this way had eventually been found, its name being "undoubted distress." In his reply inThe Timesthe member denied that his relief of distress in the constituency had any relation to the election, or was a mode of expressing gratitude to men who had worked for him. It would be rash to assert that indirect means of rewarding party workers are not often found; and in fact another election agent stated in a letter toThe Times[231:3]inthe course of the foregoing controversy, that promises of such a nature, made in behalf of the candidate, were unfortunately too common.

Ease of Evasion.

Difficult to Prove Agency;

Apart from occasional acts involving direct violations of the Corrupt Practices Act by the candidate himself, the statute has holes through which others can pass so readily that an election agent has been known to speak of the return of expenses as largely a farce. In fact the elaborate provisions of the law can easily be evaded if the candidate and his agent have a mind to do so. If they only keep their eyes shut tight enough, and are sufficiently ignorant of what goes on, it is very difficult to connect them with corrupt or illegal practices in such a way as to avoid the election.[232:1]An agent from another constituency may pay the railway fares of out-voters. The Primrose League, or some other body, may give picnics, teas and what not, which would be corrupt treating if done by the candidate, but for which he is not held responsible. The brewers may furnish free beer in public houses where voters are collected before going to the polls, and yet the candidate has done nothing to forfeit his seat. Nor is this an imaginary danger; for, with the introduction of what is known as the tied-house system, the publicans have come under the control of the great brewing establishments, which have to-day a huge stake in the results of parliamentary elections. Agency, in short, is a very difficult thing to establish in such cases. As Rogers, who devotes a whole chapter to the subject, remarks: "It is to conceal agency, and so to relieve the candidate from the consequences of corruption practised on his behalf, that efforts of unscrupulous men engaged in the conduct of an election have been generally directed, and it is not too much to say that an election inquiry has been more frequently baffled from a failure in the proof of agency than from all other causes put together."[232:2]

Or Know When Election Period Begins.

Then there is the uncertainty when the election period begins, and hence what payments must be included in the return of election expenses. The Act of 1883 defines a candidate, unless the context otherwise requires, as one who is nominated or declared to be such on or after the issue of the writ or the dissolution or vacancy in consequence of which it is issued.[233:1]But clearly this does not mean that a corrupt act committed earlier will not avoid the election. On the contrary it is settled by repeated decisions that a man may become a candidate, and his election expenses may begin, before that date;[233:2]although it is impossible to lay down any hard and fast limit of time.[233:3]A great deal must depend on the nature of the expense itself. Registration, for example, is something entirely distinct from the election, and the cost of registration, whenever incurred, need not be included in the return of expenses.[233:4]On the other hand proof of the actual purchase of a vote at any time would certainly cost the candidate his seat.[233:5]Between these two extremes there are a great many acts whose character is affected by the proximity of an election. A subscription to a local political organisation, made when the dissolution was impending, has been held to be a part of the election expenses,[233:6]when it would not be so under other circumstances;[233:7]and in the same way the question whether a gift of money or food to relieve distress in the constituency is or is not made with a corrupt purpose of influencing votes may depend upon the expectation of an election in the near future.[233:8]

Nursing Constituencies.

As general elections in England come at irregular intervals, and at short notice, it is common to select candidates without regard to the prospect of a dissolution, sometimes years before it occurs; and in fact the sitting member, havinga presumptive right to stand again, is regarded in the light of a permanent candidate. Under these conditions it is the habit in most places for a candidate, who can afford it, to ingratiate himself with his constituents by subscribing liberally to public and charitable objects; and since a payment to be corrupt must be made for the purpose of influencing particular voters[234:1]subscriptions of this kind are not deemed corrupt; nor, unless given near the time of an election, are they election expenses or illegal payments.[234:2]The practice is called nursing a constituency, and it takes a great variety of forms, from a subscription for a cricket club to the founding of a hospital. The sums expended vary very much with the nature of the place and the wealth of the candidate, and no one knows how large they are in the aggregate, because men do not state publicly what they give in this way; but as far as one can form an opinion, it would appear that such gifts by a member of Parliament commonly amount to a number of hundred pounds a year. It is obvious that the custom of nursing, combined with the uncertainty about the time when the election period begins, opens a door to abuse.

Difficulty in Getting Evidence.

Another difficulty in a strict enforcement of the election laws is connected with the proof of the offence. A witness cannot, indeed, refuse to give evidence on the ground that it will incriminate him, for the law provides that he must testify; and if he tells the truth he is entitled to a certificate of indemnity, which protects him against prosecution.[234:3]But the facts that tend to establish bribery, for example, are directly known, as a rule, only to persons who have the strongest motives for concealing them; and the same thing is true to a greater or less extent of other breaches of theelection law. It is clear, therefore, that if the offence must be proved by legally competent evidence beyond reasonable doubt, as in criminal cases, an election procured by improper means may well stand, just as many criminals escape punishment; and this brings us to another question, that of the efficiency of the election courts.

Merits of the Election Courts.

The system of sending petitions for trial to a couple of judges selected by the bench itself has provided a court as free as any human tribunal can be from the party bias that always affects the decisions of such questions by a legislative body.

Their Defects.

Expense of Petitions.

But no institution is altogether without defects. A select committee on the subject of election petitions reported in 1898 that the grievances alleged to exist in the present system related to delay, to the expense involved, and to the lack of security for costs in favour of the successful party; and it recommended some changes in procedure to improve these matters.[235:1]The expense of an election trial is undoubtedly great—sometimes thousands of pounds—and since the charges are borne by the litigants, and a favourable judgment involves a fresh election, while the trial itself is likely to entail a certain amount of unpopularity, it is not surprising that a defeated candidate hesitates to file a petition.

Uncertainty of the Result.

With all respect to the select committee of the House of Commons, it would seem to a foreign observer that the defects it reported are not the only ones to be found in the existing system. The bringing of election petitions is discouraged not only by the cost involved, but also by uncertainty both in the result and in the grounds on which it will be based. A candidate may feel convinced that his defeat was due to corruption practised by his opponent, by the publicans, and by the local political organisation, and yet the court, finding some of these charges unproved, may think it unnecessary to inquire into others because much graver questions are decisive of the case; the graver matter beingthat, contrary to the provision forbidding "marks of distinction," the defendant's agent furnished his supporters with cards to wear in their hats.[236:1]Where serious corrupt practices are charged, the election may be set aside on account of the payment of a railway fare to an out-voter.[236:2]And in a case where the facts stated by the court portrayed a bacchanalian orgy in the form of a drunken procession through the streets, headed by the candidate himself in a barouche, with some direct evidence that he offered free drink to the crowd, the judges found that there was no sufficient evidence of treating; but avoided the election on account of the payment of two shillings for conveying a voter to the polls.[236:3]

Attitude of the Judges.

Such results are thoroughly unsatisfactory for both parties; to the defeated party because he loses his seat; to the successful party because he does not want to have an election, which he believes to be vitiated by gross corruption, set aside on account of a trivial breach of the law. The main difficulty seems to lie in the attitude of mind of the judges. They require a degree of proof of corrupt intent, which is very proper in criminal cases, but which would seem to be out of place in an election petition. On a charge, for example, that an agent of the candidate, to whom pay was promised, had voted, it was held necessary to prove an actual express promise of payment, and not such an implied promise as would support a civil action.[236:4]So, also, where a candidate named Lowles caused to be distributed among the poor, some time before an election, his own visiting cards exchangeable for food, and it was announced in a newspaper that gifts of food had been arranged by the Unionist candidate, one of the judges said: "I cannot bring myself to believe in the circumstances of this case that the motive of Mr. Lowles in giving away the tickets, months before any election wasimminent; was to influence voters."[237:1]Nor is this an isolated instance. Where soup and coal tickets were distributed largely at the expense of a candidate, who reminded voters, when the election came on some months later, that he had given away soup, the court said that "although . . . it would have been more prudent for the Respondent had he kept aloof from the immediate distribution of the relief, we cannot infer, from the evidence before us, that his motive or conduct was corrupt."[237:2]

The difficulty seems to lie to some extent in the fact that a report of corrupt or illegal practices by the court involves not only the setting aside of an election, but the same loss of political rights as would follow upon a conviction;[237:3]and, hence, the judges tend to require the kind of evidence that would support a criminal prosecution. Moreover, they seem to find it incredible that a candidate for Parliament can be guilty of the grosser kind of offences. One feels this very strongly in reading the opinions in election cases.

How Much Corruption Still Exists.

If the present system of trying election petitions is not a complete success, it is nevertheless certain that the old electoral abuses have been very much reduced. There is a current impression both in England and elsewhere that the bribery of voters in Great Britain has been entirely rooted out. But any one familiar with English elections knows that this is by no means altogether true.[237:4]That the cases where gross corruption occurs are not made public by means of election petitions is due, partly to the reluctance to bring such petitions which has already been pointed out, and partly to the fact that where bribery is extensive both sides are usually guilty. Bribery in England is disappearing. In by far the greater part of the constituencies it does not exist, and the elections are, on the whole, pure; but in afew places the old traditions still persist. These are mostly boroughs in the South of England containing a considerable number of ancient freemen, among whom corruption is sometimes widespread. The writer has heard the number of such places estimated by persons in a position to know the facts at a score or two dozen. The names of several of them are well known to every one who takes an active part in electoral work; but even in these boroughs the increase in the number of voters has lowered the price paid for votes, and in some of them the practice is slowly dying out. It is only fair to add that it does not receive any countenance or encouragement from the central authorities of the great political organisations.

[219:1]35-36 Vic., c. 33.

[220:1]He must, within a day after receiving the writ in boroughs and two days in counties, give notice of the day of election. This must be not less than three days in boroughs, or four in counties, after the notice is given; and must be in boroughs within four days of the receipt of the writ, and counties within nine days. If, on the day fixed for nomination, the election is contested, he must appoint for the polling a date falling within the next three days in boroughs, and not less than two nor more than six days distant in counties.

[221:1]"In one only of the three kingdoms the ballot helped to make a truly vital difference; it dislodged the political power of the Irish landlord. In England its influence made for purity, freedom, and decency, but it developed no new sources of liberal strength." Morley, "Gladstone," II., 370. But the ballot is also said to have slowly strengthened the Liberal party in English rural districts by shielding the agricultural labourer.

[221:2]35-36 Vic., c. 33, §§ 27, 31. Rogers, II., 118.

[221:3]24-25 Vic., c. 53.

[221:4]Com. Papers, 1881, XXXVIII.-XLV.

[222:1]Com. Papers, 1881, XLIII., XLV., and schedules to these reports.

[222:2]46-47 Vic., c. 51.

[222:3]Ibid., § 3.

[222:4]17-18 Vic., c. 102, §§ 2, 3.

[223:1]Hexham Div., 4 O'M. & H., 143, at 147. After the general election of 1906 a member was unseated on this ground. Bodmin Div., 5 O'M. & H., 225.

[223:2]46-47 Vic., c. 51, § 1.

[223:3]Ibid., § 2.

[223:4]Rogers, II., 316-19.

[223:5]So. Meath & No. Meath, 4 O'M. & H., 130, 185.

[223:6]46-47 Vic., c. 51, § 6.

[224:1]46-47 Vic., c. 51, § 4.

[224:2]Ibid., § 5.

[224:3]In the return of election expenses the candidate and his agent must declare that to the best of their knowledge or belief no person, club, society, or association has made any payment in respect to the conduct of the election.Ibid., Sched. 2. But this merely requires them to take care to be ignorant of any such payment.

[224:4]Cockermouth Div., 5 O'M. & H., 155. St. George's Div., 5 O'M. & H., 89, at 97-98. In the first of these cases the treating was done by a Liberal Unionist Association; in the second by an Irish Unionist Alliance.

[224:5]Lancaster Div., 5 O'M. & H., 39, at 42-43.

[225:1]Walsall, 4 O'M. & H., 123, per Pollock B, at 124.

[225:2]Ibid.

[225:3]Rogers, II., 293, 308, 325-329, 335.

[225:4]A false statement in the return of election expenses, if made knowingly, is a corrupt and not illegal practice. 46-47 Vic., c. 51, § 33 (7).

[226:1]Here, again, there is an exception; for relief may be given in the case of treating or undue influence committed by an agent, other than the election agent, if trivial in itself, and if the candidate and his election agent did not connive at it, but took all reasonable means to prevent corrupt and illegal practices. 46-47 Vic., c. 51, § 22.

[226:2]Ibid., § 20

[226:3]17-18 Vic., c. 102, § 7.

[226:4]46-47 Vic., c. 51, §§ 7, 14.

[227:1]And in counties a sub-agent for each polling station.

[227:2]46-47 Vic., c. 51, § 17.

[227:3]Ibid., § 36 and Sched. I., Part 1 (7).

[227:4]Rogers, II., 156, 160, 350.

[227:5]In counties one central committee room, and in each polling district one committee room for every five hundred voters.

[227:6]46-47 Vic., c. 51, § 31.

[227:7]38-39 Vic., c. 84; 48-49 Vic., c. 62.

[228:1]Com. Papers, 1901, LIX., 145, p. 84.

[228:2]46-47 Vic., c. 51, Sched. I., Part IV.

[228:3]In Ireland the limit both for boroughs and counties is somewhat lower.

[228:4]46-47 Vic., c. 51, § 21.

[228:5]If the offence was committed with his knowledge and consent, the incapacity continues seven years.Ibid., § 5.

[229:1]Ibid., §§ 28, 31.

[229:2]Ibid., § 27.

[229:3]Ibid., § 33 and Sched. II.

[229:4]2 Ed. (1892), 14.

[229:5]II., 152-153.

[230:1]31-32 Vic., c. 125; 42-43 Vic., c. 75; 44-45 Vic., c. 68, § 13.

[230:2]46-47 Vic., c. 51, §§ 4, 5, 11.

[231:1]Com. Papers, 1901, LIX., 145, p. 85.

[231:2]July 22, 26, 29, 1904.

[231:3]July 25, 1904.

[232:1]See the cases already cited in the discussion of agency.

[232:2]Rogers, II., 360. In a case at the general election of 1906, where bribery was proved, the election was upheld because the judges disagreed on the question of agency. Great Yarmouth, 5 O'M. & H., 176.

[233:1]46-47 Vic., c. 51, § 63.

[233:2]Rogers, II., 157-58.

[233:3]Counties of Elgin and Nairn, 5 O'M. & H., 1.

[233:4]Rogers, II., 162.

[233:5]Ibid., 259, 268.

[233:6]Lichfield Div., 5 O'M. & H., 27, at 34-38.

[233:7]Counties of Elgin & Nairn, 5 O'M. & H., 1.

[233:8]Cf.Lichfield Div., 5 O'M. & H., 27; Haggerston Div.,Ibid., 68, at 72-88, St. George's Div.,Ibid., 89. So of treating, Great Yarmouth,Ibid., 176, at 198.

[234:1]Hastings, 1 O'M. & H., 217, at 218.

[234:2]Subscriptionsbona fidemade for public or charitable purposes are not election expenses, Rogers, II., 161-62. But it is not easy to say what isbona fides; for gifts of this kind by a candidate for Parliament who has no other connection with the constituency must always be made, in part at least, for the sake of indirectly gaining votes by increasing his popularity.

[234:3]46-47 Vic., c. 51, § 59.

[235:1]Com. Papers, 1898, IX., 555.

[236:1]Walsall, 4 O'M. & H., 123, at 126.

[236:2]Pontefract, 4 O'M. & H., 200.

[236:3]Southampton, 5 O'M. & H., 17.

[236:4]Lichfield Div., 5 O'M. & H., 27, at 29-30.

[237:1]Haggerston Div., 5 O'M. & H., 68, at 84.

[237:2]St. George's Div., 5 O'M. & H., 89, at 96.

[237:3]46-47 Vic., c. 51, §§ 4, 11.

[237:4]After the general election of 1906 one member was unseated for bribery by his agents. Worcester, 5 O'M. & H., 212.

Disqualifications for Parliament.

No property qualification is now required for sitting in the House of Commons, and any male British subject may be elected, who is not specially debarred.[239:1]

Infants are excluded both at Common Law, and by statute, although this rule has been disregarded in several notable instances, the best known cases being those of Charles James Fox and Lord John Russell who entered Parliament before they came of age. Incurable insanity was a disqualification at Common Law, and so by statute is confinement in a lunatic hospital. But it would seem that a temporary lunatic, if at large, is not incompetent to sit and vote.

Peers are also excluded; and this is true even of those Scotch peers who, not having been chosen among the sixteen representatives of the peerage of Scotland, have no right to sit in the House of Lords. There is one exception, however, to the rule that peers are ineligible to the House of Commons, for a peer of Ireland, who is not selected to represent that kingdom in the House of Lords, may sit for any county or borough in Great Britain, but not for an Irish constituency. The rule excluding peers is sometimes a hardship on a rising young man transferred by the death of his father from the active battlefield of politics in the House of Commons to the dignified seclusion of the House of Lords. But it has had, on the other hand, some effect in preventing the House of Commons from absorbingall the political life of the country, and has thus helped to maintain the vitality of the House of Lords. Among the peers there have always been men of great national authority who would have preferred to sit in the other House. It is safe to say that in the year 1900 two of the statesmen who possessed the greatest influence with the people—Lord Salisbury and Lord Rosebery—would have been in the House of Commons had it not been for the rule excluding peers.

The clergy of the Roman Catholic Church and the Church of England, and ministers of the Church of Scotland, are disqualified by statute;[240:1]but these provisions do not include dissenting ministers; and it may be added that at the present day a clergyman of the Church of England may by unfrocking himself remove his disqualification.[240:2]

As in most other countries, there are in England rules disqualifying persons who, by assuming certain relations with the government, or by misconduct, have rendered themselves unfit to serve; such are government contractors, and holders of pensions not granted for civil or diplomatic services; bankrupts,[240:3]and persons convicted of treason or of felony, or guilty of corrupt practices.

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