LAW AND CONSCIENCE.
EVERY one must wish success to Lord Russell of Sillowen's Bill for the suppression of secret com- missions, unless it be those fortunate people who are always receiving tips and never paying them. This, how- ever, is not a very, large class. The hierarchy of commis- sions has many degrees, and each member of it has usually to pay for services rendered to himself, as well as to be paid for those he renders to others. On this head, therefore, we should expect that the opponents of the Bill. whether in Committee in the Lords or on the second reading in the Commons, *ill be few. What it has more to fear is the indifference springing from a rooted disbelief in the possibility of putting the evil down. It is too ingrained, men will say, in our commercial life to make it possible to dispense with it. The wheels of trade will not go round if they are not greased. Commissions may be all that those who wish to do away with them say, but to prove that they are an evil does not affect the contention that they are a necessary evil. It is useless to look for very effective help from men who are convinced that the Bill will alter nothing.
But is it so certain, as many people are inclined to think, that the system of commissions is beyond the reach of legislation ? It may be granted at once that those who have to do whether with the payment or the receipt of commissions have it in their power to make the Bill a dead letter. A measure which aims at the suppression of things done in secret can obviously be defeated by a general agreement on the part of all concerned not to betray one another. But is it, we repeat, so certain that this power will be exercised ? Will the fact that com- missions have been made illegal make no difference in the view taken of the transactions into which they enter ? On the whole, we are disposed to think that it will make a good deal of difference. To make the giving and taking of secret commissions a breach of the criminal law, the doing of an act which . brings the doer into contact with the police, places him in a dock, and confronts him with a Judge or a jury sitting there to decide whether he is guilty or not guilty, may greatly alter the estimation in which the practice is held. There have been deeply rooted conceptions in the English mind which have had no other origin whatever than positive law. What, for example, has made the position of the eldest son so secure in England ? Why is there so commonly a feeling in the minds of fathers who are making their wills that the proper thing to do is to give the eldest son what the law would give him if his father were to die intestate ? There is no natural explanation of such a feeling. There are many countries in which it does not exist, and if we look to the reason of the thing there is much more to be said for an equal division of landed property between the children. Yet how many fathers have died regretting that they could not charge their estates in favour of their daughters as heavily as they wished without doing an injustice to the eldest son? Why an injustice? Where do we find the moral justification of a scheme of distribution which gives the first-born the lion's share ? Only, we believe, in the fact that English law, if left to itself, will give him that share. It does not command fathers to give it to him. It only says, This is what I shall do if you leave the matter to me. But this has of itself been enough to create an obligation of conscience which is stronger than any law. Or take another case. The old-fashioned notion that per cent. was the natural rate of interest—that if you asked more you were going perilously near the sin of usury, while if you got less you were being defrauded of part of your due—had its origin wholly in the fact that this was at one time the legal rate of interest. The Usury Laws have long disappeared—indeed, a £5 per cent. interest has pretty well disappeared too—but long after their disappearance the old legal limit remained with numbers of people the natural limit. They never asked themselves why £5 per cent. should be more natural than £3 or £10 per cent. They invested it with a special sacredness because at one time the law had done so.
Why should not a similar process go on in the case of commissions ? If Lord Russell's Bill becomes law it will become illegal to take secret commissions in the course of business. This will be a revelation to many who have taken them all their lives without knowing that they were doing anything seriously wrong. That very scrupulous people might object to the practice they would have admitted ; but then very scrupulous people had best not engage in trade. They did not • pretend, to be better than their neighbours, but most cer- tainly they did not regard themselves as any worse. They had never given the question any thought. They succeeded to a system in which commissions played a great part, and they simply did what all before them had done, and all around them were doing. If in exceptional cases they did make some inquiry into the working of the system they might doubtless see reason for wishing things different. But so much of the machinery of life might be better than it is that to say this of commissions seems no very serious condemnation. Moreover, there. is room for a great deal of casuistry in distinguishing between cases. One commission is not like another.. Each has its own special features,—features, moreover, which appear different to different people. There are innumerable opportunities of drawing nice distinctions between the commissions men are inclined to and the commissions they have no mind to, and in the end every one may look to attain to a comfortable conviction that, bad as the system undoubtedly is in too many cases, yet in his own it has the appearance of evil rather than the reality. When once the law has intervened there will be no more room for this consoling process. If secret commissions are declared illegal, and the giving or taking them becomes an offence against the law, there will be no more room for casuistry. There will be a statute expressly for. bidding the practice and fixing the penalty which any one violating the law will incur. A measure of this sort cannot be explained away. It cannot be taken as applying to those disgraceful com- missions which Brown takes while leaving alone those innocent little transactions in which Smith indulges. The law will have but one measure for both of them. The only question asked will be, Did you take commissions which you did not disclose to your employer ? • If you did, you have broken the law, and made yourself liable to punishment. That is precisely what all criminals do, and there is nothing to make any difference between your mg, and theirs. How long this new state of things will be in making itself felt it is impossible to say, but that it will be felt some day appears far from improbable.
Our confidence in the results of the Bill would be more assured were it not for one thing. We have mentioned two instances in which the law has undoubtedly been the creator of the individual conscience. The disapprobation of any distribution of property but one had its origin in the legal custom of primogeniture. The disapprobation of any borrowing arrangement which involved the payment of more than £5 per cent. interest had its origin in the Usury Laws. But there is a third example which is legs encouraging. Bribery has long been illegal, but we cannot with any probability attribUte its partial extinction to this circumstance. What has checked it, or rather what has substituted the nursing of constituencies for the corruption of voters, is the hopeless uncertainty of the ballot. Bribery ceased to be remunerative when all that could be bought was a promise. Before the introduction of the ballot the law was constantly broken, and broken by men who ordinarily would not have cared to do anything contrary to law. Can we trace any distinction between bribes and commissions,—anything, that is to say, which will make the prohibitory law more effectual in one case than it proved in the other ? What led to the condonation of bribery was the popular inability'to see any harm in it. Probably in the most corrupt constituencies a man of strong convictions in favour of one party would have been thought badly of if he had sold. his vote to the other party. It was the fact, the notorious fact, that the purchasable voter had no convictions that made the sale of his vote seem so innocent to men who had none of their own. No matter what laws might be enacted against bribery, the sale of something which was of no value to the seller, and was of value to the purchaser, continued to seem to many electors a harmless transaction. Happily there:is no parallel line of reasoning possible in regard'to commissions. The essence of them is that something is paid by A to get an order which would. otherwise go to B. At all events that is not a harmless transaction to B, and it may be hoped that this . difference .will make. Lord Russell of Killowen's campaign against commissions more successful than that which was so long and so fruitlessly directed against electoral corruption.
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