5 SEPTEMBER 1885, Page 9


NOW that the question of the morality of political lying has brought prominently before the mind of the voter the possibility of his being subjected to pressure from those in authority over him, it will not be amiss to consider how far the exercise of pressure is in itself wrongful. There can, of course, be no doubt of the exercise of pressure being wrong in a moral point of view, and even more wrong than the lying which in some quarters is upheld as a legitimate means of defence against it. But it is, unfortunately, more doubtful in what cases the exercise of pressure becomes a legal wrong, so as to bring the person who uses it, or the candidate in whose interest it is used, within the prohibitions, and liable to the penalities, imposed by positive law.

In what cases does the exercise of pressure on a voter con- stitute the offence of undue influence, as defined in the Corrupt Practices Act, 1883 ? It must be understood that the offence of undue influence is not the creation of the Act of 1883, the second section of that Act being with verbal alterations a re-enactment of the Corrupt Practices Act of 1854 ; but further penalties are imposed on it by that Act. The words of the definition are as wide as possible, being directed at both physical and moral intimidation ; but, leaving out the reference to physical violence, the Act says :—" Every person shall be guilty of undue influence who shall directly or in- directly, by himself or any other person on his behalf, inflict, or threaten to inflict, any temporal or spiritual injury, damage, harm, or loss, upon or against any person (1) in order to induce or compel such person (a) to vote, (b) to refrain from voting ; (2) on account of such person having (a) voted, or (b) refrained from voting, at any election. The penalties are threefold :—(1), Criminal punishment ; (2), loss of civil rights ; (3), the effect on the election at issue. The full criminal penalty can only be inflicted on conviction by indictment at the Assizes. It is then severe, being imprisonment with hard labour for a year or less (but the hard labour may be remitted), or a fine of not exceeding £200. The latter penalty would, of course, be merely nominal for a rich offender. But the Election Court itself may try an offender

by summary process, and he is then liable to six months' imprisonment, with or without hard labour, or a fine not exceeding £200. The loss of civil rights follows on a mere report of an Election Judge, as well as on conviction on formal trial. It involves seven years' incapacity to sit in the House, to vote at an election, whether Parliamentary or one of Local Government, and to hold a public or judicial office, e.g., Alderman, or Justice of the Peace, or member of a School Board, &c. If the undue influence has not been used by the candidate or an agent, the election is not void, and there is no personal penalty on the candidate. But if the candidate or an agent has committed the offence, the election is void ; and if the candidate is personally guilty, he is for ever incapable of hold- ing the contested seat ; while if any agent commits the offence, the candidate is incapable of holding the seat for seven years. As an instance of what is agency in such a case, it has been held that for a candidate to " solicit the vote and interest" of an employer, who used undue influence on his men, is enough to constitute the employer the agent of the candidate.

The Legislature has, therefore, spread the net very wide, and marked its emphatic displeasure against the fish who are caught in it. But it is not quite certain whether Lord Bramwell has not managed to cut an uncommonly big hole in the Act, or at least to stretch the meshes so wide that it requires a very stupid fish to be caught. There are certain obvious cases of intimidation, or cases which certainly were obvious before the decision referred to. A priest who threatens to refuse the sacraments to an elector unless he votes or does not vote in a particular way threatens a spiritual injury, and is guilty of undue influence. We presume that if Mr. Coker Adams were to excommunicate one of his parishioners for voting for a candidate who advocated Disestablishment, he would be using undue influence. In the converse case, it has been held that a threat to give up a sitting in a chapel if the minister voted in a certain way is intimidation. But the three most common cases would be the undue influ- ence exerted over tenants by landlords, over labourers and work- men by employers, and over sellers by buyers. The latter case would seem to be the most doubtful. It is not, indeed, doubtful whether for Tory customers to " boycott " a grocer because he votes for a Liberal is an exercise of undue influence, for Lord Blackburn has said,—" Whether the ill-treatment be violence or damage done by the removal of custom, or business, or employ- ment, is immaterial ; if it is done with a view to affect a voter or interfere with the free exercise of the franchise," it is illegal. But then the difficulty is to prove that the boycotting was done with a view to affect a voter. Not even the hottest-headed Tory squire would be quite so foolish as to say to a grocer that he would leave him unless he disseminated the addresses of the Tory candidate with his butter, or even that he would not buy any more tea of him because he had voted for a teeto- taller ; and short of that, it is not easy to prove the offence. Nor is it likely that many employers would be quite so honestly dishonest as the gentleman at Westbury in 1869, who first extracted from his men, or some of them, a promise not to vote at all, so that they might not vote for one of the candidates who was his rival in trade ; and who then, having joined the committee of the other candidate, canvassed the same men to vote for him, and hearing that some of the men declined to vote for him, having promised to vote for the other candidate, declared,—" I have determined that no man shall remain in my employment who votes for my rival." Several of the men left rather than not vote as they wished. It was not proved that they were actually dis- charged on account of their political opinions ; the master, indeed, pretended that they were discharged for dishonesty in wanting to vote after having promised not to vote. But it was held to be a clear case of intimidation, and the election was avoided. But all the Judges are not so clear in their minds, especially, it would seem, when the case is not one of employer and employed, but of landlord and tenant. There was a gross case in Hampshire. A man had twelve years before the election been put into a cottage at a rent of 1 s. 6d. a month, on condition that if ever there was an election, and a par- ticular candidate wanted his vote, he should have it. A few days before the poll the candidate, with the landlord, called at the cottage and asked the man's wife for his vote. She hesitated, whereon the landlord observed,—" I think it was named to your husband when he took the house." She then said,—" I have no doubt but what he will." The Judge said that if it had been a recent letting, he should have called it undue influence. But the letting was twelve years before, and " it is evident (and I cannot shut this out from my mind) that it was an advantage to the voter to have the house ; he said he had been waiting three years for it," and there- fore there was undue influence, as the man risked the loss of this house which was so valuable to him, if he did not vote as he was told ? Not at all. " I cannot think," said Mr. Justice Mellor, " that there was any semblance of a threat." The very circumstances that showed conclusively that there was undue influence were made to prove that there was not. If such influence as this is to be regarded in the future as a specimen of the "legitimate influence of property," then a deliberate falsehood will come to be regarded as the legitimate defence of poverty.

There was a worse case, however, not in itself, but because of the dangerous doctrine laid down in it by Lord Bramwell. Mr. Richardson-Gardner was shown, on the trial of an election petition in 1874, to have evicted a number of his tenants in Windsor for not having voted for him in the previous election six years before. Baron Bramwell, as he then was, laid down that whatever might have been the effect of this proceeding before the Ballot Act, the effect of that Act "is that a man can vote with safety, according to his con- science, and the threat can have no operation upon him, unless you suppose he is going to be asked afterwards how he voted.

Suppose a plain case, which is not very likely, because it would be fatal to do it. The candidate goes to the tenant and says, Do you remember those voting against me were turned out I do.'—' Unless you promise to vote for me you will be turned out.' That would be a threat, and the continuance of the old threat. I think if any equivalent conduct had taken place, if he had not exacted a promise that he would vote for him, but had said,

I want you to promise me,' any man would know that meant, Out I go if I don't vote for you ;' that would be a continuance of the old threat, because, although he might have gone and broken his word, yet a man having promised might have felt himself bound to vote, and then would have been voting under a threat." Lord Bramwell, indeed, admitted that his law was not certain, and that other Judges might take a different view ; but the judgment as it stands certainly tends to cut away the crime of undue influence altogether. Pushed to its logical conclusion, his judgment would mean that under the Ballot Act undue influence is impossible, because a man can always, under it, vote according to his conscience, even if he have promised the other way. Or, if that would not be voting according to his conscience, yet the crime of undue influence is made to depend on the use of, or the abstention from, a certain formula. A landlord who had evicted tenants for voting wrongly at one election, and in any way canvasses at the next election, is certainly holding out a threat, none the less efficacious in that he uses the influence not of loud words, but the more silent persuasion of accom- plished facts. So, too, the landlord who puts a man in a cottage on condition of voting for a particular candidate or colour, uses the grossest form of undue influence when he asks the man to vote in a particular way, whether he demands a promise or not. The Ballot Act has, in fact, nothing to do with the matter, if threats are used or even hinted. If the silent influence of penalties inflicted on others is relied upon, the offence is just as great now as before. The only refuge of the victim is in a lie, and no one ought to be driven to the alternative of a lie or ruin. What is more, the offence is equally complete if, instead of the victim being driven to lie, he is driven to say that he will not vote at all. For the undue influence is equally shown when a man is induced by threat or the fear of injury to abstain from voting. Undue influence is, indeed, if anything, more dangerous under the Ballot than iDefore ; for it induces people to press even more than before for a promise in the hope that the honour which prevails among thieves will induce the person who has once promised to vote against his conscience by voting according to his promise, or, at least, —which is equally against his conscience,—not to vote at all. The best protection to the voter would be found in a Vigilance Committee, which should sit to receive complaints of undue influence, and prosecute whenever there was a prime/ facie case made out. A few cases fought out would soon settle whether the present law requires amendment or not. Meanwhile, the dread of a prosecution, instituted without the expensive and lengthy preliminary of an Election Petition, would be a sufficient terror to evil-disposed persons.