The Government of England Part 23

[214:1] A man cannot vote in more than one division of the same borough.

48-49 Vic., c. 23, -- 8. But there is no such limitation in the case of divisions of a county. _Ibid._, -- 9. Metropolitan London is not a single borough, but a collection of boroughs, several of which contain more than one division, and hence the effect of this provision is quite irrational there.

[214:2] Com. Papers, 1888, LXXIX., 907.

[216:1] Where the landlord compounds for the rates he is required to give to the overseers a list of the actual occupiers. Rogers, I., 130.

[216:2] Rogers, I., 265, 266, 268.

[216:3] An Irish peer actually sitting for a const.i.tuency in Great Britain can vote.

[216:4] They adopt every year a sessional order that for a peer "to concern himself in the election of members" is "a high infringement of the liberties and privileges of the Commons."

[217:1] For the duties of the Revising Barrister, see Rogers, I., 297-336. From the decision of the Revising Barrister an appeal lies on questions of law to the King's Bench Division of the High Court of Justice.

CHAPTER X

THE HOUSE OF COMMONS

_Electoral Procedure_

All elections to Parliament, whether general elections following a dissolution, or the so-called by-elections resulting from an accidental vacancy, take place in pursuance of a writ under the Great Seal, issued from the Crown Office, and directed to the returning officer of the const.i.tuency. In all counties, and in Scotch and Irish boroughs, the returning officer is the sheriff or his deputy. In English boroughs he is the mayor.

[Sidenote: Procedure at Elections.]

[Sidenote: Before the Ballot Act.]

Until 1872 candidates for Parliament were nominated _viva voce_ at the hustings,--a temporary platform erected for the purpose. If more names were proposed than there were seats to be filled, the election was said to be contested, and a show of hands was called for. Many of the persons present were probably not ent.i.tled to vote, but that was of no importance, because the show of hands was merely formal, and a poll was always demanded. A time for taking it was then fixed, extending over a number of days, during which the electors declared their votes publicly.

This gave a chance for bribery, for the intimidation of voters, and for disturbances of various kinds, not seldom deliberately planned. The disorderly scenes that accompanied an election have often been described both in histories, and in novels such as "The Pickwick Papers" and "Coningsby," written by men familiar with the old polling days. In 1872 the method of conducting elections was changed by the Ballot Act,[219:1]

which introduced secret voting, and made the procedure more orderly in many other respects.

[Sidenote: Existing Procedure.]

[Sidenote: Nomination.]

Nominations are now made in writing by proposer, seconder, and eight others, all registered voters. If only one person is nominated for a seat, the candidate, or candidates if it be a two-member const.i.tuency, are at once declared elected; nor is this a hypothetical case, because, for reasons that will be described hereafter, usually more than one fourth, and sometimes more than one third, of the seats are not contested at a general election.

[Sidenote: Election Days.]

If, on the other hand, the election is contested, a day is fixed for the poll; for voting is now confined to a single day in each const.i.tuency.

It is not the same day in all of them, on account of the lat.i.tude still given to the returning officer. He has a right, within certain limits which are different for counties and boroughs, to determine how many days shall elapse between his receipt of the writ and the election (that is, the nomination) and how many between the election and the poll.[220:1] The result is that in boroughs the voting may take place anywhere from four to eight days after the receipt of the writ; and in counties anywhere from six to seventeen days. Now, as the writs are sent out by mail at the same time, the voting at the general election covers a period of more than two weeks.

It might be supposed that such a power to arrange the order of elections would be used by the returning officer to help his own party, and this is said to be done, not systematically over the country, but in particular places. The multiplicity of election days has another and more important political effect; for it gives time to the out-voters, as the non-residents are called, to get from one const.i.tuency to another, and thus it facilitates voting in more than one place. For this reason the Liberal party--which is opposed to plural voting--has demanded in its platform that all elections should take place on the same day. To this it has been objected that the change would, by lengthening the electoral period in the boroughs, increase the fatigue and cost to borough candidates; and in view of the rate at which labour and money are expended on such occasions the objection is not altogether without foundation.

[Sidenote: Method of Voting.]

For the convenience of voting the const.i.tuency is divided into a number of polling districts; and when an election is contested, the vote is taken in these districts between eight in the morning and eight in the evening of the appointed day. The method of voting under the Australian system of secret ballot, which was adopted in 1872, need not be described, because in some form its use has become well-nigh universal in civilised countries.[221:1] It may be noted, however, that the Ballot Act has never been extended to the universities, where voting is still done orally, or by means of a voting paper tendered at the polls by another elector to whom it has been intrusted.[221:2] In fact most of the university votes are given by proxy--a practice which was introduced in 1861,[221:3] and would be abolished by the ballot.

[Sidenote: Legislation against Corruption.]

Before the Reform Act of 1832, huge sums of money were sometimes expended at parliamentary elections, and bribery and corruption were rife. Nor did the disfranchis.e.m.e.nt of rotten boroughs, and the extension of the franchise, by any means put an entire stop to the practice. Even as late as 1880 the special commissions appointed to inquire into the conduct of a number of boroughs, for which election pet.i.tions had been filed, found a bad state of affairs.[221:4] In Macclesfield and Sandwich about half the voters had been guilty of bribery and other corrupt practices;[222:1] and as a result of the investigation those two boroughs, which were decidedly the worst, were entirely disfranchised. A series of attempts have been made to root out the evil by legislation.

They have been more and more elaborate, and reached their culmination in the Corrupt and Illegal Practices Act of 1883.[222:2] These laws seek to restrain improper conduct at elections by several methods; first, by forbidding altogether certain cla.s.ses of acts, which either interfere directly with the purity of elections, or have proved a source of inordinate expense; second, by limiting the total amount that can be spent, and the purposes for which it can be used; third, by requiring that disburs.e.m.e.nts shall be made through one recognised agent, who is obliged to return to the government a full account thereof; and, fourth, by imposing for violation of these provisions penalties, political and other, inflicted not only by criminal process, but also summarily by the tribunal that tries the validity of a controverted election.

[Sidenote: Corrupt Practices.]

The most demoralising acts forbidden by law are known as corrupt practices. They are bribery, treating, undue influence, and personation.[222:3]

[Sidenote: Bribery.]

Bribery at elections is, of course, criminal in all countries; and in England the offence is defined in great detail, for just as there are seven recognised kinds of lies, so the English statutes describe seven distinct methods by which bribery can be committed.[222:4] It is unnecessary for anybody who is not engaged in electoral work to remember these; and it is enough here to point out that they include a promise, or endeavour, to procure any office or employment for a voter in order to influence his vote.

[Sidenote: Treating.]

Treating differs from bribery in the fact that bribery involves a contract for a vote, express or implied, whereas the person who treats obtains no promise from the voter, and relies only upon his general sense of grat.i.tude. But, as one of the judges remarked in the trial of an election pet.i.tion some years ago, it is difficult in the large const.i.tuencies of the present day to bribe successfully, while a small amount of treating is sufficient to procure a great deal of popularity.[223:1] This is particularly true in England, where the habit of treating is made easy by the existence of sharp cla.s.s distinctions.

Treating was forbidden as long ago as the days of William III., and it is now defined[223:2] as giving, or paying the expense of giving, "any meat, drink, entertainment or provision to or for any person for the purpose of corruptly influencing that person or any other person to give or refrain from giving his vote."

[Sidenote: Undue Influence.]

Undue influence is defined by the Act of 1883[223:3] as making use, or threatening to make use, of any force, violence, or restraint, or inflicting, or threatening to inflict, any temporal or spiritual injury on any person in order to influence, or on account of, his vote; or by duress or fraud impeding the free exercise of the franchise by any man.

These provisions cover threats by an employer to discharge workmen,[223:4] and the denunciation by priests of spiritual penalties on political opponents.[223:5]

Personation it is unnecessary to describe.

[Sidenote: Corrupt Practices avoid the Election.]

All these corrupt practices are criminal offences punishable by fine or imprisonment, and by the loss of political rights for seven years.[223:6] What is more important for our purpose, they are liable to cost the member his seat; for if upon the trial of a controverted election the court reports that any corrupt practice has been committed by the candidate, or that bribery or personation has been committed with his knowledge and consent, his election is void, and he is forever incapable of being elected to Parliament by that const.i.tuency.[224:1]

Moreover, if the election court reports that a corrupt practice has been committed by his agents, although he may be personally quite innocent, his election is void, and he is incapable of being chosen by that const.i.tuency for seven years.[224:2]

[Sidenote: But only if done by the Candidate or his Agents.]

It will be observed that in order to set aside an election, the corrupt practice must be brought home to the candidate, personally or through his agents. In accordance with the older traditions of English public life, the election is regarded as the affair of the candidates alone.

The action of party organisations, or other bodies, is not taken into account,[224:3] and their conduct has no effect upon the result, unless their relations with the candidate have been such as to make them his agents. So long as a political a.s.sociation is urging the general interests of the party, rather than supporting a particular candidate, he is not responsible for their acts. It has been held, for example, that a candidate is not responsible for treating by such an a.s.sociation, although he was present and spoke at the meeting where it was done, if it was got up by them for their own purposes, and not to a.s.sist in his election.[224:4] It has been held, also, that a payment by a party organisation of bills for music and beer at public meetings, previous to an election, and even the candidate's subscription to their funds, need not be included in his election expenses, unless the organisation was a sham supported by him.[224:5]

In all such cases it is difficult to prove agency to the satisfaction of an election court. The time must come in any election, however, when the local party a.s.sociation by active a.s.sistance to the candidate becomes his agent.[225:1] But this is not true of other bodies less directly connected with the party organisation, which are, nevertheless, in the habit of doing a great deal of work at elections. Thus it has been held that a Licensed Victuallers a.s.sociation, having a distinct and direct interest in the election, did not become the agent of the candidate, although it played an important part in the campaign.[225:2] That this leaves a door wide open for corrupt influence is self-evident.

[Sidenote: General Corruption.]

To the general principle that a corrupt practice must be brought home to the candidate there is one exception. If bribery, treating, personation, intimidation, or undue influence, whether physical or ecclesiastical, has been general in the const.i.tuency--that is, so extensive that the voting could not have been the free expression of the will of the electorate--the result of the election is invalid at common law, although neither the candidate nor his agent are directly implicated.[225:3]

[Sidenote: Distinction between Corrupt and Illegal Practices.]

Besides corrupt practices, certain other acts are forbidden under the name of illegal practices; but the provisions relating to them are mainly designed to restrain the expense of elections, and will be described under that head. The essential distinction between the two practices is much like that which lawyers were formerly in the habit of drawing in the case of crimes between _malum prohibitum_ and _malum in se_. A corrupt practice involves moral turpitude, and it is necessary to prove a corrupt intent.[225:4] A gift to a voter, for example, is not bribery unless it is made for the purpose of influencing his vote; but an illegal practice is simply an act forbidden by statute, and as such--in the case, for instance, of a payment of expenses above the maximum fixed by law--is illegal without regard to the motive with which it is done. For this reason a corrupt practice cannot be excused,[226:1] while the election court may grant relief from the consequences of an illegal practice where it is trivial in itself, and was committed without the connivance of the candidate who took all reasonable means to prevent it; or where, although the direct act of the candidate or his election agent, it arose from inadvertence, accidental miscalculation, or other reasonable cause; or, finally, where a failure to make a return of expenses has been due to illness.

[Sidenote: Practices Tending to Lower the Tone of Elections.]