MR. HAWKINS ON ELECTION PETITIONS.
THE evidence of Mr. Hawkins before the Committee on Election Petitions is of exceptional interest, because he is the first witness who has approached the subject from the Judges' point of view. As everybody knows, Mr. Disraeli's Act, the first honest Act ever passed to put down Bribery at elections, is in danger of failing because it is too successful. The Judges, unprotected by juries, have construed it so rigidly that nobody's seat is safe. It is broadly alleged that there is not a Member in the House sitting for a contested seat who could not be unseated, and the allegation is very nearly true. Under one or another decision, anything is bribery, and any man can make himself an agent. One particular illegality, the payment for the conveyance of voters, which is prohibited in boroughs, however large they may be, is, it is believed, committed in every borough election in England without ex- ception, and can, when all other means fail, be proved at the petitioner's discretion. The gift of a few coals, or a right to kill rabbits, or a breakfast of bread and butter is bribery, and bribery even if the candidate never authorised it, never heard of it, and never paid or intends to pay for the benefaction. Any officious person may out of zeal, or party feeling, or even personal malice, treat a few electors and obtain their promises, and then if he presents himself in the candidate's Committee- room presents his list, and has it received, he becomes at once, as M;. Hawkins showed, a constructive agent. As everybody is more or less zealous at election-time, as every zealous canvasser is inclined to conciliate electors, and as every " householder " of the lower class retains the old English ideas about hospi- tality, an enormous number of elections are liable to be vitiated, and the very first object of the Act is missed at once. It was intended to prevent rich men from buying seats, and it prac- tically makes seats a monopoly of rich men. It is so easy to lodge a petition, and a petition is so certain to succeed, that every candidate feels himself liable to be called on to pay a fine which is rarely, when all the bills are settled, and he is free to take his seat, found to be much less than five thousand pounds, very little of which is ever returned to him by sub ; scription. He cannot avoid this danger by any act of his own, by any declaration, or by any refusal to pay, and he cannot, of course, confess guilt by resigning without a trial, and he there- fore pays, and if rich, bears his grievance as good-humouredly as he can; or if poor, gives up the seat, as Hastings was some time since given up by a most eligible Member. The evil con- sequences of this state of things are twofoldf—the candidate who is the true choice of the town is constantly unseated, as, for example, Mr. Tillett, one of the witnesses before the Com- mittee was two years ago, for Norwich ; and no one not rich enough to waste thousands, or demagogue enough to promise anything, can venture to stand for a great borough, while the whole scheme of anti-bribery legislation becomes discredited. Candidates are unseated for such slight things, that people feel that it would be almost as reasonable to unseat them for patting electors' babies' cheeks. A great many suggestions have been offered for the improve- ment of the Act, but unfortunately they have all been based upon one idea, that of allowing the Judges more liberty in deciding both upon the bearing of the evidence and the meaning of the law. Mr. Tillett, in particular, who has very great ex- perience of all kinds in election matters, is anxious, if we under- stand him, to authorise the Judge to pass over trumpery cases of corruption, committed by officious bystanders, to allow him to decide who is and is not an agent pretty much by his own conscience and intelligence, and to give him a wide discretion in reporting candidates to the House for permanent disqualifica- tion. He would, in fact, qualify the Bribery law, as the perjury law is qualified, by insisting that the offence proved should be one material to the issue. Those suggestions meet part of the case—" hard" instances like Mr. Praed's—but we question if, when Mr. 'Ellett is not smarting under provoking and unde- served misfortune, they will approve themselves to so ex- perienced a man. It will not do to entrust Judges with so vast a political power. They are too much criticised already ; we have Ireland to think of as well as England ; and we have re- cently had melancholy proof how liable the new electors are to gusts of groundless suspicion. The Judges in England at all events, can be fully trusted, their only probable bias being the natural unwillingness of educated men to deprive the House of Commons of its ornaments ; but in times of excitement the mob, if it finds its friends frequently defeated, will unquestion- ably listen to any one who tells them that Mr. Justice Upright, though avowedly a Liberal, holds in his heart very anti-demo- cratic opinions, and once, twenty years ago, made a speech resisting the concession of the franchise to the residuum. This, we feel convinced, is a real danger in Ireland, and may at any moment develop into a real danger in England ; and that all the more rapidly because, though the Judges are painfully impartial, nothing divides them so completely in opinion as election practice. Already the decisions conflict till precedent is becoming worthless. One Judge holds that he must con- strue the Act literally ; another, that he must attend to its general meaning ; a third, that he must be guided by the in- tention of the Legislature when it passed. One group of Judges are severe on "nursing," i.e., systematic conciliation of electors when elections are not at hand; and another group think that "nursing" is only another name for the usual and commendable kindliness of rich neighbours. One man is beaten because a supporter gives a treat of buns and tea, and another is let off though he underlets his cottages to his friends. These differences, which are unavoidable while Judges are not turned out by machinery, would be exaggerated by additional responsibilities, until we should have the spectacle of kindly Judges rejecting evidence which Rhadamanthine Judges would accept, and a man sent back to Parliament for Collierton who at Steel- borough would have been disqualified for seven years. No system of that kind could endure, even if the resulting criti- cism did not destroy the independence of the Bench, and relief must be sought therefore either in a stricter definition of bribery, or in some further protection to the Judges from their exces- sive responsibility. The former scheme is, we fear, impracti- cable. We cannot, in a community like this, where electors are sometimes amenable to the persuasion of a pot of beer each, and where "treating" exercises such a lamentable, and we confess, to us unintelligible, influence—unless, indeed, the elector thinks that the man with whom he has dined is entitled to his kindness in return—fix a limit below which bribery shall not be recognised. If a candidate gives an elector a half-crown to vote, he ought to be turned out, just as he ought if he gave him a hundred pounds, and two shillings will buy gin enough to make a toper drunk. Nor can we very greatly relax the law of Agency. After all, the man whom you accept as your canvasser is your canvasser, and to limit the function of canvasser to those who are paid would very soon offer a loop-hole for every kind of corruption. Who paid Fox's Duchess of Devonshire ? How much does the Peeress who is worshipped in the town at her gates, and who can return her own Member, get a day for electioneering ? Is the candidate's wife to be considered an unpaid agent ? The only sound mode of relaxation is to allow the Court to treat some of the evidence as immaterial, and this cannot be done if the decision on the facts is to be left to the Judge alone. He would be distrusted for such a course even more than for a loose interpretation of law. There must be a jury of some kind, and it is obvious that no ordinary jury could be trusted with such a power. Twelve men can, as a rule, be trusted to say whether a man stole a spoon or murdered his wife, or not ;• but to trust them to decide whether a popular candidate
had or had not employed a popular canvasser would be to revive all the scandals that attended election petitions in the days before Reform, when quarter was neither given nor asked, and men could tell from the composition of the Election Committee what its judgment would be. We respect juries very much, and constantly wonder at the accuracy of their decisions, but imagine a jury-trial of an election petition in Stroud 1 The jurymen would claw one another. Therefore we welcome as a relief Mr. Hawkins's suggestion that the Election Judges should be assisted by Assessors, two men of character and position, preferentially Members of the House of Commons, who, if they agreed, should decide finally on the facts, leaving to the Judge only the interpretation and the execution of the law. Such men would not be carried away by prejudice, would not be exposed to so much criticism, and would not, if by chance sus- pected, involve in that suspicion the last of the really strong and trusted institutions of the land. They would relieve the Judge, who would then be enabled without odium to transfer to officious bribers, not authorised by the candidate, the whole or any reasonable proportion of the costs of the trial, a lesson of which political busy-bodies, in the medium boroughs more particularly, stand grievously in need. They have already ruined the public confidence in one of the best and most thorough-going Acts ever passed by the British Legislature.
One other proposal strikes us as a little doubtful. It is sug- gested that all election trials should be held in London. That would be inevitable, if the House of Commons intended to trust the validity of its elections to a jury taken at random, but we are not quite sure that pending that mistake the centralisation of such trials would be expedient. It is true the transfer would tend to render the proceedings of the trial, which are now said to be discreditable, the noise and confusion being as great as in a horse fair, somewhat more decorous and formal, and no doubt the heated local atmosphere tends to generate malice ; but on the other hand, the change, by increasing the charge for main- tenance of witnesses, would tend to increase an expenditure already so great as to be politically injurious, no man who can- not risk five thousand pounds being now safe in fighting an election ; and it must, one would think, diminish the trust- worthiness of the majority of the witnesses. Even now the lying is terrible, as bad, says one witness, as in any horse case, and if relieved of the control exercised by their townsmen's eyes, the witnesses would, we fear, give free rein to their imaginations. We do not exactly see why order should not be kept, as in any other assize trial, and as Mr. Hawkins admits that the Judge is treated respectfully, suspect that this complaint comes rather from the Bar. The main point, however, is the expense with which the candidate can be weighted by assailants who, even if defeated—which is nearly impossible—can always protect themselves by guaranteed subscriptions. The petitioners need not move unless they have evidence, whereas the candidate must defend, whether he have evidence or not.
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