SECONDARY PUNISHMENTS FOR CORRUPT BOROUGHS.
filith debate of Tuesday night on the proposal to delay the issue of the writ for the Borough of Stroud, by way of inflicting a secondary punishment on that eccentric borough for its profuse self-indulgence in the arts of bribing, treating, and otherwise ministering to the passions of election-contests, ended, on the whole, as it was desirable that it should end,— namely, by the House of Commons declining to supplement by votes of its own the machinery by which it was determined in 1868 that corrupt practices were, so far as possible, to be dis- couraged and punished. It was clear that though, with regard to one recent election at Stroud, the Judge who tried the peti- tion had declared that corrupt practices did "extensively prevail," no action was taken on that report by the issue of any Com- mission to inquire into the practices alleged, and that on the still more recent occasions when seats were vacated at Stroud, the Judges who tried the petitions did not hold that extensive corruption had prevailed. It is equally clear that the Election Petitions Act of 1868 did not contemplate in- flicting any punishment beyond the voiding of the particular election and the infliction of the penalties on the individuals concerned in any corrupt practices laid bare, except after a Commission of Inquiry ; and that the only justification for the issue of a Commission of Inquiry was intended to be the Judge's declaration that corrupt practices had "extensively prevailed." As the one opportunity for a Commission after the election of January, 1874, was lost,—probably in consequence of the immediate occurrence of the general election,—and no Judge has since reported that corrupt practices have " extensively " prevailed in Stroud, it cannot be denied that if the House of Commons meddled with the matter by delaying the issue of the writ, it would virtually be resuming the practice of taking the punishment of corrupt practices into its own hands, in- stead of acting on the responsible recommendation of an elec- tion Judge. And if once the House of Commons begins to tinker at the corrupt-practices law for itself again, we have no security how far the patch-work process may not go. Sir William Harcourt was quite right in saying that the object of the Act of 1868 was to extricate the House of Commons from all the responsibilities of a jury, in relation to matters on which political feeling could hardly help biassing their opinion, and to provide the House with the official and responsible declaration of an experienced and judicial mind, in place of any judgment to be formed by themselves. If, now, the House were to take it into its awn hands to determine on the culpability of boroughs for secondary degrees of corruption, and to administer secondary punishments proportioned to these degrees of culpability, all the evils for which the Act of 1868 was intended to provide a remedy would occur over again,— possibly in miniature, more probably on very much the original scale,—in relation to these secondary degrees of corruption. In a word, we should be supplementing the Judges' responsible decisions, by inferences drawn by the House of Commons from ' the Judges' less formal and, in a sense, irresponsible dicta con- cerning the elections. We say in a sense 'irresponsible,' because, while we know very well that when a Judge reports, or refuses to report, that 'extensive corruption has prevailed,' he does so with the clear knowledge of the effect this declaration may probably have on the political privileges of the borough; still when he, in the course of a judgment, pronounces an opinion by which the House of Commons is led to infer, suppose, the exist- ence of considerable, but not extensive' corruption, that opinion is not at all in the same sense a responsible one. The Judge does not know of any important results which the dropping of such an opinion may have for the borough. It may be a well-weighed opinion, and yet not so well-weighed as it would have been if the Judge had been aware that it might entail linportant consequences ;—or it may not be a well-weighed inion but a mere obiter dictum, which would not have been ' -Ted at all if the Judge who uttered it had regarded it as equivalent to a temporary sentence of political disfranchisement. Now, it would introduce nothing but confusion into the law of corrupt practices, if for the graver facts the House were to depend on the responsible declarations of an Election Judge, while for the less significant facts of the same kind the Haase of Corn-
mons might put its own interpretation on the report of the proceedings and the Judge's incidental remarks. Such a pro- posal seems to us most mischievous. Indeed, the nature of Tues- day's debate in the House of Commons, itself showed how very liable to perfectly irrelevant and even disturbing considerations the judgment of the House of Commons is. The fact that Mr. Bouverie had been asked to stand for the borough clearly entered into the discussion of the desirability of suspending the writ as a fact of some weight,—here on this aide, there on that. It gave Sir Wilfrid Lawson the opportunity of a very amusing and by no means ill-natured attack on Mr. Bouverie, when he asked how the Liberal party were to act on the advice tendered them to pursue a policy of "silence and consideration" if they were to promote the return of Mr. Bouverie,—how, if Mr. Bouverie I were restored to them, they could possibly be "silent and con- siderate." But the mere fact that both the great parties in the House in relation to such a debate as this, should be led to weigh their political feeling towards Mr. Bouverie, and become con- scious of a new bias, in one direction or the other, according as they approved or disapproved that gentleman's political conduct in recent Sessions, shows conclusively how very unfit a tribunal for giving verdicts of this kind the House of Com- mons is. Political satire directed against Mr. Bouverie, no doubt, contributed almost as much as any element in the dis- cussion to predispose certain Liberals to vote for the delay of the writ, yet the many rude tribes who appear to have given up important practical undertakings solely because of somebody's ill-omened sneeze, could hardly have acted with a more profound disregard for moral logic.
Nevertheless, we wish to point out that it does not in the least follow that because it is very undesirable for the House of Commons to inflict the minor penalties due to corrupt practices at its own discretion, it is at all undesirable to give the Judge the power, on his own responsibility, of recom- mending to the House of Commons to inflict such a penalty. Indeed it seems to us quite in keeping with the spirit of the new Election-petitions law to give such an additional power to the Judge. It will not do to say that, as yet, the new Act does not give the Election Judge any power of punishing the constituency directly, since even when he reports that "extensive corruption" has prevailed, that report cannot result in disfranchisement without the issue of a Commission of Inquiry, and an adverse Parliamentary verdict given as the upshot of that inquiry. That is perfectly true. But whenever the Judge declares an election void, he does, in fact, inflict a penalty on the constituency, since, if Parliament is in Session, he clearly deprives it for a time of a voice in the Legislature, and puts it, besides, to the cost and inconvenience of a new election. Now is there any reason at all why an Election Judge should not have the power to recommend a minor punishment for a constituency, just as much as for an individual member of that constituency ? It cannot properly be contended, as some members asserted in Tuesday's debate, that it is unjust to make the innocent, unbribing, and unbribed members of a constituency suffer for their guilty fellow-citizens. No doubt it is unjust in the same sense in which it is unjust to cause the other members of a family,—as you cannot help doing,—to suffer for the crime or disgrace of one of them, but no more. Every police-rate which is imposed on a municipality makes the orderly more or less suffer for the crimes committed by the disorderly, In fact, it would be a monstrous injustice to disfranchise a borough at all, even for the most wide-spread corruption, if it were enough to plead that the innocent should not be made to suffer for the guilty. There is no more reason why, if you can trust a Judge to decide that there was, as a matter of fact, bribery or intimidation enough to void an election, you should not also empower him to recommend an additional penalty, over and above the voiding of the election, if he thinks fit and sees cause for it. It may be very right to interpose a previous Commission of Inquiry when so grave a question as one of absolute disfranchisement is concerned, and yet not be needful and not desirable to interpose any such inquiry before inflicting a much less heavy penalty. If the Election Judge had the right to report that 'considerable' though not ' ex- tensive ' corruption prevailed, and that in his opinion the sus- pense of the writ for a period of one or two years would be desirable, and the House were to act on such a report, tag as it now acts on the report of the Judge in relation to the voiding of the election, we should get a very useful secondary punishment for partially corrupt or intimidating boroughs,. and one which might prove a most efficient supplement to our present law. Our own impression is that such a secondary punishment is greatly needed, though we eertamly
agree with Mr. Disraeli and Sir William Harcourt in deprecating the proposal that the House of Commons should take the re- sponsibility of inflicting such secondary punishments into its • own hands. If the Judges who have tried the Stroud Election petitions had been empowered to recommend the infliction of some such punishment during the early portion of last year, we might have been saved one or two serious scandals, and Stroud might yet be now again in a position to return a new Member, as it is just about to do, but with all the advantages of the reflections due to a season of political quiet and of political humiliation, which, as it is, the constituency will not enjoy.
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