JUDGES AND ELECTION PETITIONS.
SINCE the General Election four petitions have come on for trial. In three the law has not been seriously questioned. In the first—Yarmouth—the sitting Member was acquitted of corrupt treating by both Judges, and of bribery through an agent by the senior Judge. The• con- flict of opinion at Yarmouth, let it be remembered, was on the question whether the person who bribed was in fact an agent,—a point which has not arisen in the other cases. As we said at the time, we preferred Mr. Justice Channell's • view to Mr. Justice Grantham's ; but we are willing to admit that a legal justification may be made out for the latter. In the latest petition, tried at Bodmin this week, the only charge was corrupt treating, and this was held established by both Judges against a man who was undoubtedly an agent. To the ordinary lay mind the treating at Bodmin seems more innocent than the treating at Yarmouth ; and the question as to when an election may be said to begin has been decided by Mr. Justice Grantham in one way in the East of England and in another way in the West. The manner of the Judge, combined with these apparent inconsistencies of interpretation, has left the impression with many people that a strong political bias governed the hearings. The two Conservatives have retained their seats, and the one Liberal has been turned out. We believe this impression to be. wholly erroneous. Though we differ from Mr. Justice Grantham's law, we believe that he gave his decisions solely on legal grounds, and we are willing to admit that a fair case in law can be made out even for Yarmouth. The apparent inconsistencies of utterance are unfortunate ; but those who condemn them should remember that they do not go to the root-point in the cases. But one thing we are not prepared to defend,— Mr. Justice Grantham's manner. He treated the Yarmouth trial in a spirit of broad jocosity, and gave abundant reason to his opponents to think that he wished to make party capital out of the business. We do not ask that the judicial manner should always suggest the ermine. A man may be a distinguished Judge without ceasing to be human, and a profound knowledge of law is not inconsistent with a pretty wit. But the great judicial humourists of the past were never men who rushed to meet the most trifling pleasantries half-way. Wit, after all, depends upon a wise parsimony of language, and garrulity and inane jocularity are its mortal foes. The hearing of no case, least of all an election petition, is improved by these performances. For such a petition is a serious matter, going to the very root of good government and national health, and the ordinary citizen, who is quite prepared to see comedy in an election, does not love the flippant treatment of any abuse in what, after all, is his title to liberty. Mr. Justice Grantham at Yarmouth was garrulous and jocose : at Bodmin he was garrulous and lacrymose ; and we do not know which form is the more painful. Such behaviour has resulted, naturally but most un- fortunately, in a Motion of Censure in the House of Commons, which will be taken next Friday week. We can readily understand that the House of Commons is jealous for its dignity, and objects, to any frivolity, or any bias, shown in judgiug claims to its membership. Till less than half-a-century ago it kept the decision of election petitions to itself, placing them at first in the hands of the whole House, and then of a Committee of Members. It parted with this right, and deputed the work to the Judges of the King's Bench, simply in order to get rid of the party element, which was inevitable in a popular body. Under the old system the House of Commons was virtually judge in its own cause, and the ruling majority had no inclination to practise self-sacrifice. Election law clearly becomes a farce if breaches of it are to be condoned according to the politics of the erring candidate, and the Corrupt Practices Act might as well never have been passed. The only solution is to transfer the hearing to some non-political body, and the Judicial Bench is the one tribunal which has an ex officio political neutrality. But, having once made this transference, the House of Commons is bound to support it. It cannot complain when the judgment is not in accordance with its wishes, or even when it is obviously wrong. If a free decision is granted, it must be freedom to decide wrongly as well as rightly. Even if a. Judge shows party bias, or behaves unbecomingly in any way, we think that the House would be ill advised to interfere, unless the thing assumed such scandalous dimensions as to become a national danger. Criticism of the Bench by the House is to be deprecated, as an interference with that independence of the Judicature which is one of the cardinal doctrines of the Constitution. The House has the ulti- mate power, and in interfering it constitutes itself a Judge in its own cause. We do not blame it for being angry at Mr. Justice Grantham's behaviour at Yarmouth ; but if it consults its own dignity and remembers why it handed over election petitions to the King's Bench, it will not accept the Motion of Censure. If the nation is thoroughly dissatisfied with a Judge, there are Constitutional means for his removal. Short of this, we strongly object to any Parliamentary criticism. If a Judge is not bad enough to be removed, he is.good enough to be trusted, for any suspicion of surveillance by a popular body would play havoc with the independence of the Bench.
At the same time, we think that a reform is necessary, but it must come from the side of the Judges. We believe that the Puisnes of the King's Bench are the best body for the trial of election cases, the most competently trained, the least subject to •political bias. You may hand over the work, if you please, to the directors of the Bank of England, or the Elder Brethren of the Trinity House, or the Trustees of the British Museum, but you will only get a tribunal with more emphatic politics and with less skill in sifting evidence. Nor are we much in favour of adding a Judge of Appeal to the Bench. The Appeal Court is sufficiently overworked, and English Puisne Judges should be regarded as competent to meet any call upon their services. Possibly it might be well to make the Bench consist of three instead of two Judges, to prevent an unsatisfactory difference of opinion, as at Yarmouth ; but for this purpose the long- promised additions to the number of Puisnes must be made. But the real reform should lie in the mode of selecting Judges for the work. A man may be a profound lawyer and an admirable Judge, and yet be wholly unfit for the task of hearing an election petition. Tact, dignity, a meticulous freedom from political prejudice, are wanted, far more than great legal learning. As compared with the ordinary King's Bench work, the trial of election cases is easy, and there will often be a tendency to send down to deal with them Judges who can be more readily spared from the King's Bench than others, or else to select according to rotation. Both methods seem to us to be wrong. The King's Bench will always possess men who have the quali- ties of good election Judges, and these should be sent, and thesa alone. For the work, remember, is of the utmost gravity, involving the whole justification of our Constitu- tional attitude towards the guardians of English law.
Previous page
