more than one constituency, or how much they affect the result of
elections. In a return of resident and non-resident voters made to
Parliament in 1888,[214:2] it appeared, as was natural, that the
proportion of the latter was greatest among the freeholders in the
counties, nearly one quarter of whom were non-residents. In all there
were about two hundred thousand non-resident voters in England and
Wales. This is between four and five per cent. of the total electorate,
which does not seem an important fraction; but it fails to express the
full effect of plural voting, because it does not include the persons
who have more than one residence, or who live outside the limits of a
borough but within seven miles of it, or those again who reside in a
borough that forms part of a county and are qualified to vote in both.
Moreover, the men with more than one vote, although a small proportion
of the whole electorate of the kingdom, are quite numerous enough to
turn the scale in a close constituency.
One of the first acts of the new Liberal ministry in the session of
1906, was to bring in a bill to abolish plural voting altogether. This
could not be done simply by making residence a condition of the
franchise, because in England a man may have more than one residence.
The measure provided, therefore, that the voter must elect in which of
the places where he possessed a qualification he would be registered,
and forbade him to vote anywhere else. The bill was passed by the House
of Commons, but rejected forthwith by the Lords.
[Sidenote: Number of Electors by Classes.]
It is interesting to observe the number of voters registered under the
different franchises. In 1906 the figures for the United Kingdom were as
follows:--
Owners 579,827
Occupiers 6,357,817
Lodgers 226,191
Freemen, etc. 57,728
Univs. 45,150
---------
Total 7,266,706
By far the greater part of the voters are registered as occupiers, a
class which includes both the householders and the ten-pound occupiers.
The table contains a surprisingly small number of lodgers; and this is
due to the fact that whereas the lists of owners and freemen are
virtually permanent, and the list of occupiers is made up by the
overseers of the poor from the rate-book,[216:1] a lodger alone must
make every year a personal application to be registered.[216:2] The
result is that no one seeks to be enrolled as a lodger if he has any
other franchise; and no doubt many lodgers, who have no other
qualification, neglect to register at all.
[Sidenote: Disqualifications for Voting.]
A characteristic, although not in itself a very important peculiarity of
the English electoral law, is the rule depriving peers of the right to
vote;[216:3] and in fact the Commons still profess to be highly jealous
of any part taken in electoral campaigns by members of the House of
Lords.[216:4] In other respects the disqualifications for voting in
England are now much the same as in other countries. There are the usual
rules excluding aliens, infants, idiots, paupers, convicts, and persons
who have been guilty of corrupt practices at elections. Formerly there
were also provisions excluding large classes of public officers, but
these have been repealed, except in the case of the Irish police, of
certain officers directly concerned in the conduct of elections, and of
persons employed and paid by the candidates.
Women cannot vote for members of Parliament, although they possess the
franchise for almost all local elections. This question has of late
aroused much interest. Although both of the political parties have at
times adopted resolutions in favour of woman suffrage, the leading men
in both are divided about it, and the Labour Party may be said to be the
only political organisation of men in England that want it heartily. But
many women are agitating for it very vigorously, and the most
enthusiastic of them have sought martyrdom by refusing to pay taxes, by
creating a disturbance in the ladies' gallery of the House of Commons,
and by getting arrested for speech-making in the Palace Yard. They are
known as Suffragettes, and evidently have faith in the old adage that
Parliament never redresses grievances until they are brought forcibly to
its notice. Women will no doubt ultimately obtain the suffrage if they
are substantially united in wanting it, and the principle is certainly
making great headway among them in England to-day.
[Sidenote: Registration.]
It is not enough that a man possesses the requisite qualifications for
the franchise. His name must also be upon the register of voters for the
constituency, and the process of compiling the register is cumbrous and
expensive. This is due in part to the complicated nature of the various
franchises, which may involve intricate questions of law and of fact,
and partly to the practice of leaving the duty of proving claims and
objections mainly in the hands of private individuals. The lists are
made up in the first instance by the overseers of the poor in each
parish; but any person whose name is omitted may claim to have it
inserted, and any person whose name is on the lists may file an
objection to any other name which he thinks ought not to have been
included. These claims and objections are heard in September by the
Revising Barrister--a barrister of not less than seven years' standing,
appointed for the purpose by the judge in whose circuit the constituency
lies, and paid by the Treasury. It is his duty to revise the register by
adding the names of persons who prove their claims, and by striking off
names improperly inserted. In doing this he is not limited to names
against which objections have been filed, for he has a right to make
inquiries and summon witnesses on his own motion.[217:1] In practice,
however, the cases are prepared beforehand, and argued before him, by
the local agents of the two political parties, whose object is to get
the names of their partisans on to the register and keep off those of
their opponents.
The process is repeated every year, and the work and cost involved are
considerable, the money being provided by the candidate for Parliament,
or by means of subscriptions to the party funds. This is one of the
things that makes elections expensive; and it helps to explain the
desire of each party in a constituency to have a candidate at all times,
even when an election is not impending. In Scotland registration is far
less of a burden upon the parties, and costs the candidate very little,
because the qualifications of all the voters, except the lodgers, are
investigated by a public officer, called the assessor, and a corps of
assistants, with the result that there are few claims or objections for
the political agents to contest. There seems to be no self-evident
reason why this should not be done everywhere, and for every class of
voter.
FOOTNOTES:
[195:1] This feeling was forcibly expressed by Godkin in his essay on
"The Decline of Legislatures."
[196:1] This is elaborately discussed by Charles Benoist, _La Crise de
l'Etat Moderne_.
[197:1] For "keeping one's name on the books" the university sometimes
requires a fee which diminishes seriously the number of graduates
entitled to vote either for Parliament or on academic questions. In
Cambridge, for example, the electors are only about one half the
graduates.
[197:2] For England, 2 Will. IV., c. 45. For Scotland, 2-3 Will. IV., c.
65. For Ireland 2-3 Will. IV., c. 88.
[198:1] Scotland obtained eight additional members, and Ireland five.
[199:1] In several cases small Scotch counties are combined in pairs for
the election of a single member, but this antedated the Act of 1885.
[199:2] Whereof twenty are in England, and one each in Wales, Scotland,
and Ireland.
[200:1] This is not because the county constituencies are essentially
larger or smaller than those of the boroughs. The Borough of Wandsworth,
for example, had, in 1901, a population of 179,877. These figures are
taken from single-member constituencies; for it so happens that the
two-member boroughs, when their population is divided by two, are
neither among the largest or the smallest. Com. Papers, 1905, LXII., 333
_et seq._
[201:1] 39-40 Geo. III., c. 67, Art. 4.
[201:2] _Ibid._, Art. 5.
[202:1] 8 Hen. VI., c. 7.
[203:1] In Scotland the value of the land, if not of "old extent," had
to be 400_l._ a year. In Ireland an Act of 1829 had raised the limit of
annual value to 10_l._, to restrain the practice of manufacturing fagot
voters on the eve of an election.
[203:2] In Ireland the borough franchise was multifarious as in England.
In Scotland it was wholly in the hands of the councils of the royal
burghs.
[203:3] 2-3 Will. IV., c. 45, Sec. 26.
[203:4] _Ibid._, Sec. 18.
[204:1] 2-3 Will. IV., c. 45, Secs. 19, 20. The last provision was added
during the passage of the bill, and is known from its proposer as the
Chandos Clause.
[204:2] _Ibid._, Sec. 33.
[204:3] _Ibid._, Sec. 32; but freemen thereafter admitted could vote
only if made such by birth or servitude.
[204:4] _Ibid._, Sec. 33. By Sec. 31, 40_s._ freeholders retained the
franchise in boroughs that are counties by themselves.
[204:5] 2-3 Will. IV., c. 65.
[204:6] _Ibid._, c. 88.
[205:1] Com. Papers, 1831-1832, XXXVI., 489.
[205:2] It is interesting to observe that of these, 108,219, or nearly
two fifths were freemen, scot and lot voters, potwallopers and other
persons whose ancient rights had been preserved. They belonged, of
course, only to the old boroughs. Election Returns (Boroughs and
Counties), Com. Papers, 1866, LVII., 215, p. 8.
[206:1] These figures, about the proportion of electors and members to
population, are taken from a Report on Electoral Expenses, Com. Papers,
1834, IX., 263, App. A.
[206:2] Pp. 47 _et seq._
[206:3] 13-14 Vic., c. 69.
[206:4] In reading the debates on these bills a foreigner is often
puzzled by the distinction between ratable value and clear yearly value.
The latter is what is called gross estimated rental in the Rate Book,
while the ratable value is supposed to be the net yearly value, and it
is obtained by making a reduction from the gross, which varies from
place to place, but is on the average about ten per cent.
[206:5] Of the borough electors in England and Wales 26.3 per cent
belonged to the working classes; Com. Papers, 1866, LVII., 47, p. 5. In
Scotland the proportion was 18.3 per cent. _Ibid._, 805, p. 12.
[207:1] 30-31 Vic., c. 102.
[207:2] One of the safeguards in the bill was the provision that
householders must be separately rated for the relief of the poor, and
must have paid their rates; and in order to insure personal payment by
the householder, the Act forbade the common practice of rating the owner
of dwellings in lieu of the occupier. But the practice saved the local
authorities much trouble. It enabled them to receive the rates in a
single payment from the owner of a number of houses, instead of
collecting small sums from many tenants; and they were in the habit of
allowing a commission or rebate to owners who paid in this way.
The convenience of the old practice was so great that in 1869 it was
again permitted; and the Act (32-33 Vic., c. 41) also provided that such
a payment by the owner should be deemed a payment by the occupier for
the purpose of the franchise, thus sweeping away the safeguard of
personal payment of rates.
The practice is called compounding for rates, and the tenant whose rates
were paid by the landlord was the subject of fierce discussion under the
name of "compound householder," although it was in fact the rate, and
not the house or the holder thereof, that was compounded.
[208:1] It will be observed that the 10_l._ occupier differed from the
householder in the fact that he might occupy any shop, warehouse, or
other building, whereas the householder was qualified only by a
dwelling-house. On the other hand, the premises occupied by a 10_l._
occupier must be of the clear yearly value of 10_l._, whereas the
householder was qualified without regard to the value of the house.
By the Act of 1867 the householder might occupy any part of a house used
as a separate dwelling; while the 10_l._ occupier must occupy a whole
building. This difference was, however, done away with in 1878 by an act
(41-42 Vic., c. 26, Sec. 5), which provided that the occupation might be
of any separate part of the building, if that part were of the yearly
value of 10_l._.
[208:2] 31-32 Vic., cc. 48, 49.
[208:3] They ran from a little less than one in twenty-one to a little
more than one in twenty. _Cf._ Com. Papers, 1866, LVII., 215, 569.
[208:4] _Ibid._, 643. The extension of the franchise in Ireland in 1850
nearly trebled the number of county voters there, in spite of the
falling off in population.
It may be observed that the growth in registered voters is not an exact
measure of the increase in the number of persons qualified for the
franchise, because with the organisation of the political parties there
has been a greater and greater effort to make every man register who is
entitled to do so.
[208:5] Com. Papers, 1872, XLVII., 395.
[208:6] 48-49 Vic., c. 3. The Act also extended the household
qualification--both for counties and boroughs--to men who occupy a
dwelling-house not as owners or tenants, but by virtue of their office
or employment, provided the employer does not also occupy the house, the
object of that proviso being to exclude domestic servants. This
qualification is known as the "service franchise."
[209:1] 48-49 Vic., c. 3, 6; and see also 2-3 Will. IV., c. 45, Sec. 24,
and 30-31 Vic., c. 102, Sec. 59.
[209:2] Rogers on Elections, I., 64-66. The references to Rogers are to
the 16th Ed. of Vol. I., to the 17th Ed. of Vol. II.
[209:3] The amount required for the qualification of freeholders in
boroughs which are counties is not exactly the same as in counties; and
the leasehold qualifications do not extend to them. In England there are
now only four boroughs which retain these rights: Bristol, Exeter,
Norwich, and Nottingham. Rogers on "Elections," I., 160 _et seq._
[210:1] Rent charges, whether arising from the commutation of tithes or
otherwise, are realty, and qualify a voter as land.
[210:2] If the land is copyhold or other tenure, it must in any case be
of the yearly value of 5_l._
[210:3] The 50_l._ leaseholders admitted by the Chandos Clause in the
Act of 1832 were required to occupy the land, and are now included in
the 10_l._ occupation franchise.
[211:1] Rogers, I., 61-63, 125.
[211:2] _Ibid._, 27, 66.
[212:1] Rogers, I., 148-49, 162. In the City of London he may reside
within twenty-five miles.
[212:2] _Ibid._, 149-50.
[212:3] Page 207, note 2, _supra_.
[212:4] Rogers, I., 27, 30, 126 _et seq._, 142 _et seq._
[213:1] Com. Papers, 1898, LXXX., 755.
[213:2] It is slightly less in Scotland than in England and Ireland.
[213:3] Aug. 30.
[214:1] A man cannot vote in more than one division of the same borough.
48-49 Vic., c. 23, Sec. 8. But there is no such limitation in the case
of divisions of a county. _Ibid._, Sec. 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 constituency 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
constituency. 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 entitled 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 constituency,
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 constituency.
It is not the same day in all of them, on account of the latitude 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 constituency 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 constituency 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 disfranchisement 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 petitions 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 classes 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 disbursements 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 gratitude. But, as one of the judges remarked in the trial of
an election petition some years ago, it is difficult in the large
constituencies 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 class 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 constituency.[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
constituency 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 association 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 association,
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 assist 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 association by active assistance 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 Association, 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 constituency--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.]
Some acts which, without involving great expense, tend to lower the tone
of elections, are treated as illegal practices, and forbidden by
statute. Such are the use for committee rooms[226:2] of premises where
liquor is sold, and the furnishing of voters with cockades, ribbons, or
other marks of distinction,[226:3] a proceeding which is believed to
engender broils.
[Sidenote: Restraint of Expenditure.]
Other acts apparently harmless are prohibited in order to prevent
extravagance. The most curious example of this is the provision
forbidding the use of hired carriages to take voters to the
polls.[226:4] Such a rule may seem unnecessary; but before the Act of
1883, by which it was enacted, thousands of pounds were said to have
been spent in certain cases for the conveyance of electors. The Act does
not forbid the use of carriages, but only of hired ones; and the result
is that the private carriages and motor cars of wealthy partisans,
sometimes blazoned with ancient armorial bearings, are placed at the
disposal of the candidate. In fact in estimating the chances of an
election one constantly hears that the Conservative has the advantage of
a larger number of carriages.
[Sidenote: Authorised Expenses.]
[Sidenote: Employment.]
But by far the most systematic effort to restrain extravagance at
elections is found in the provisions that prescribe on the one hand the
objects of expenditure, and on the other its total amount. A schedule to
the Act of 1883 enumerates the objects for which expenses may be
legally incurred, and the first part of the schedule deals with the
persons who may be employed. These are: one election agent;[227:1] a
polling agent to watch the voting at each polling station; and clerks
and messengers in proportion to population, the allowance being somewhat
more liberal in counties than in boroughs on account of the greater area
of the constituency. The act provides that, except as authorised by this
schedule, no person shall be employed for pay;[227:2] and that no paid
employee shall vote.[227:3] It may be noticed that among the list of
persons who can be employed, canvassers are not mentioned, and hence the
use of paid canvassers is illegal.[227:4] Now, as canvassing, that is
the personal solicitation of votes, is by far the most effective part of
the work done at an election, each candidate is always assisted by an
army of volunteers. Wherever possible he is also helped by the agents of
other constituencies, or of distinct associations, who, not being paid
by him, and in fact, receiving no additional pay for their services on
this occasion, are not within the prohibition of the law.
[Sidenote: Other Expenses.]
The other expenditures authorised by the schedule are printing,
advertising, stationery, postage, and the like; public meetings; one
committee room for every five hundred electors;[227:5] and miscellaneous
expenses not exceeding two hundred pounds for matters not otherwise
illegal. The candidate is also allowed to incur personal expenses for
travelling and hotel bills;[227:6] and, finally, there are the charges
of the returning officer for the cost of erecting polling booths, the
payment of persons on duty thereat, and the other expenses attending the
election.[227:7] These last charges are divided between the candidates
and they are by no means small, as may be seen from the fact that at
the general election of 1900 they amounted, for the whole United
Kingdom, to 150,278_l._ 10_s._ 11_d._, or nearly one fifth of the whole
expense incurred.[228:1] The National Liberal Federation has, indeed,
repeatedly urged in its programme that such charges ought to be defrayed
by the state, instead of being a burden upon the candidates.
[Sidenote: Maximum Expenditure.]
In order to reduce the cost of elections, Parliament has not only
enumerated the objects for which money may be used, but has also set a
maximum limit to the amount that may be spent.[228:2] In the case of
boroughs this is fixed at three hundred and fifty pounds if the
registered electors do not exceed two thousand, with an additional
thirty pounds for every thousand electors above that number. In the
counties the scale is somewhat higher, six hundred and fifty pounds
being allowed where the registered electors do not exceed two thousand,
with sixty pounds for each thousand electors more.[228:3] These sums do
not, however, represent the total cost, for they include neither the
personal expenses of the candidate to an amount of one hundred pounds,
nor the charges of the returning officers.
[Sidenote: Penalties for Illegal Payments.]
The rules in regard to election expenses are furnished with sanctions of
the same nature as those attached to corrupt practices, although the
penalties are less severe. In addition to the criminal punishments that
may be inflicted, it is provided that a candidate, or his election
agent, who violates those rules shall be guilty of an illegal
practice;[228:4] and that if a candidate is guilty, personally or by his
agents, of an illegal practice (from the consequences of which he has
not been relieved as heretofore described) he shall lose his seat, and
cannot be elected by the same constituency during the life of that
Parliament.[228:5]
[Sidenote: The Election Agent.]
It is one thing to make elaborate regulations about election expenses,
and it is quite a different thing to insure their observance. The device
adopted for this purpose in England is that of requiring each candidate
to appoint an election agent, who is responsible for the disbursements.
Except for the personal expenses of the candidate, to an amount not
exceeding one hundred pounds, no payment of election expenses can be
made by the candidate, or by any person on his behalf, except through
the election agent,[229:1] and no contract for any such expenses is
valid unless made by him.[229:2] Within thirty-five days after the
election the agent must give to the returning officer an account of all
his payments, and of all sums that he has received from the candidate or
any one else, for the purposes of the campaign; and the candidate must
certify that the account is true to the best of his knowledge and
belief.[229:3]
The class of person selected for this duty is not only a matter of great
importance to the candidate, but upon it depends also in large measure
the purity of elections. A candidate may act as his own election agent,
but this is rarely done. Usually, though by no means invariably, he
takes the paid secretary of the local political association, who has the
advantage of knowing the constituency better than any one else; and the
Practical Manual for Parliamentary Elections, issued by the Conservative
party, advises that course.[229:4] Rogers, on the other hand, in his
work on Elections,[229:5] warns candidates that it is unwise to select
such persons, because "when this is done attempts are frequently made to
saddle the candidate with responsibility for the acts of the association
and its members." "A further danger," he remarks, "arises in such cases
of the election expenses being confused with or concealed under
registration or other expenses of the association." With the modern
organisation of parties a confusion of that kind is liable to occur in
any event; and perhaps it is not so much dreaded by candidates as the
author of the text-book on elections might imply. In spite of any
dangers that may lurk in the practice, it is not only common, but
apparently growing; and in fact the occupation of a paid secretary and
agent has developed into a profession whose characteristics will be
discussed in the chapters on party organisations.
[Sidenote: The Election Court.]
Formerly the validity of elections was decided by the House of Commons
itself, with the natural consequence that politics were a large factor
in the result. To such an extent was this true that the fall of Sir
Robert Walpole was brought about by a hostile vote on an election case.
In 1770 the matter was placed by statute in the hands of select
committees of the House; but that did not put an end to political bias,
and finally in 1868, the trial of election petitions, whether filed on
the ground of a miscount, or of corrupt or illegal practices, was
committed to a judicial body. The tribunal now consists of two judges of
the King's Bench Division of the High Court of Justice, selected by the
other judges of that division.[230:1]
A defeated candidate, or any voter, may present to the court a petition
stating the grounds on which he claims that the election is invalid, and
the case is then tried, witnesses are examined, and costs are awarded,
according to the usual course of judicial proceedings. The decision
takes the form of a report to the Speaker of the House of Commons, but
it is really a final judgment upon the questions involved, for if the
court finds that corrupt or illegal practices have taken place, the
report has the effect not merely of avoiding the election, but of
subjecting the candidate, and any guilty persons, to the political
incapacities which those practices entail.[230:2]
[Sidenote: Results of the Corrupt Practices Act.]
[Sidenote: Reduction of Expense.]
So far as the reduction of the cost of elections is concerned, the
English method of dealing with the subject has certainly been
successful. According to the returns laid before Parliament, the total
aggregate expenses incurred by candidates throughout the United Kingdom
at the general election of 1880--the last that took place before the
Corrupt Practices Act of 1883--was 1,736,781_l._; at the next election
in 1885 it fell to 1,026,645_l._, and on every subsequent occasion it
has been less than that. In 1900 it was 777,429_l._, which is not far
from the average in these days. The expense of English elections is,
however, far from small to-day. In 1900 the average cost for the United
Kingdom in constituencies that were not uncontested was four shillings
and four pence, for every vote cast.[231:1]
[Sidenote: Returns of Expenses Sometimes Incomplete.]
Moreover the returns undoubtedly do not in every case include all that
is spent. A recent series of letters to _The Times_, under the title
"The worries of a parliamentary representative," throws light on this
subject.[231:2] It opened with a letter from the member for a Welsh
borough complaining that about a month after he had signed the return of
his election expenses he received a note from his agent in regard to
claims by workers at the election; that upon his refusal to pay any such
claims in violation of the Corrupt Practices Act the agent wrote asking
whether he would or would not fulfil the obligations made on his behalf
during the election. His continued refusal, the member declared, had
made him unpopular with many of his former supporters, who were now
trying to prevent his renomination. In answer to this charge the agent,
in a letter to _The Times_, explained that all he had meant was that the
member "should find some way--legal, of course--of expressing his
gratitude to men who had worked splendidly in his cause;" and he added
that this way had eventually been found, its name being "undoubted
distress." In his reply in _The Times_ the member denied that his relief
of distress in the constituency had any relation to the election, or was
a mode of expressing gratitude to men who had worked for him. It would
be rash to assert that indirect means of rewarding party workers are not
often found; and in fact another election agent stated in a letter to
_The Times_[231:3] in the course of the foregoing controversy, that
promises of such a nature, made in behalf of the candidate, were
unfortunately too common.
[Sidenote: Ease of Evasion.]
[Sidenote: Difficult to Prove Agency;]
Apart from occasional acts involving direct violations of the Corrupt
Practices Act by the candidate himself, the statute has holes through
which others can pass so readily that an election agent has been known
to speak of the return of expenses as largely a farce. In fact the
elaborate provisions of the law can easily be evaded if the candidate
and his agent have a mind to do so. If they only keep their eyes shut
tight enough, and are sufficiently ignorant of what goes on, it is very
difficult to connect them with corrupt or illegal practices in such a
way as to avoid the election.[232:1] An agent from another constituency
may pay the railway fares of out-voters. The Primrose League, or some
other body, may give picnics, teas and what not, which would be corrupt
treating if done by the candidate, but for which he is not held
responsible. The brewers may furnish free beer in public houses where
voters are collected before going to the polls, and yet the candidate
has done nothing to forfeit his seat. Nor is this an imaginary danger;
for, with the introduction of what is known as the tied-house system,
the publicans have come under the control of the great brewing
establishments, which have to-day a huge stake in the results of
parliamentary elections. Agency, in short, is a very difficult thing to
establish in such cases. As Rogers, who devotes a whole chapter to the
subject, remarks: "It is to conceal agency, and so to relieve the
candidate from the consequences of corruption practised on his behalf,
that efforts of unscrupulous men engaged in the conduct of an election
have been generally directed, and it is not too much to say that an
election inquiry has been more frequently baffled from a failure in the
proof of agency than from all other causes put together."[232:2]
[Sidenote: Or Know When Election Period Begins.]
Then there is the uncertainty when the election period begins, and hence
what payments must be included in the return of election expenses. The
Act of 1883 defines a candidate, unless the context otherwise requires,
as one who is nominated or declared to be such on or after the issue of
the writ or the dissolution or vacancy in consequence of which it is
issued.[233:1] But clearly this does not mean that a corrupt act
committed earlier will not avoid the election. On the contrary it is
settled by repeated decisions that a man may become a candidate, and his
election expenses may begin, before that date;[233:2] although it is
impossible to lay down any hard and fast limit of time.[233:3] A great
deal must depend on the nature of the expense itself. Registration, for
example, is something entirely distinct from the election, and the cost
of registration, whenever incurred, need not be included in the return
of expenses.[233:4] On the other hand proof of the actual purchase of a
vote at any time would certainly cost the candidate his seat.[233:5]
Between these two extremes there are a great many acts whose character
is affected by the proximity of an election. A subscription to a local
political organisation, made when the dissolution was impending, has
been held to be a part of the election expenses,[233:6] when it would
not be so under other circumstances;[233:7] and in the same way the
question whether a gift of money or food to relieve distress in the
constituency is or is not made with a corrupt purpose of influencing
votes may depend upon the expectation of an election in the near
future.[233:8]
[Sidenote: Nursing Constituencies.]
As general elections in England come at irregular intervals, and at
short notice, it is common to select candidates without regard to the
prospect of a dissolution, sometimes years before it occurs; and in fact
the sitting member, having a presumptive right to stand again, is
regarded in the light of a permanent candidate. Under these conditions
it is the habit in most places for a candidate, who can afford it, to
ingratiate himself with his constituents by subscribing liberally to
public and charitable objects; and since a payment to be corrupt must be
made for the purpose of influencing particular voters[234:1]
subscriptions of this kind are not deemed corrupt; nor, unless given
near the time of an election, are they election expenses or illegal
payments.[234:2] The practice is called nursing a constituency, and it
takes a great variety of forms, from a subscription for a cricket club
to the founding of a hospital. The sums expended vary very much with the
nature of the place and the wealth of the candidate, and no one knows
how large they are in the aggregate, because men do not state publicly
what they give in this way; but as far as one can form an opinion, it
would appear that such gifts by a member of Parliament commonly amount
to a number of hundred pounds a year. It is obvious that the custom of
nursing, combined with the uncertainty about the time when the election
period begins, opens a door to abuse.
[Sidenote: Difficulty in Getting Evidence.]
Another difficulty in a strict enforcement of the election laws is
connected with the proof of the offence. A witness cannot, indeed,
refuse to give evidence on the ground that it will incriminate him, for
the law provides that he must testify; and if he tells the truth he is
entitled to a certificate of indemnity, which protects him against
prosecution.[234:3] But the facts that tend to establish bribery, for
example, are directly known, as a rule, only to persons who have the
strongest motives for concealing them; and the same thing is true to a
greater or less extent of other breaches of the election law. It is
clear, therefore, that if the offence must be proved by legally
competent evidence beyond reasonable doubt, as in criminal cases, an
election procured by improper means may well stand, just as many
criminals escape punishment; and this brings us to another question,
that of the efficiency of the election courts.
[Sidenote: Merits of the Election Courts.]
The system of sending petitions for trial to a couple of judges selected
by the bench itself has provided a court as free as any human tribunal
can be from the party bias that always affects the decisions of such
questions by a legislative body.
[Sidenote: Their Defects.]
[Sidenote: Expense of Petitions.]
But no institution is altogether without defects. A select committee on
the subject of election petitions reported in 1898 that the grievances
alleged to exist in the present system related to delay, to the expense
involved, and to the lack of security for costs in favour of the
successful party; and it recommended some changes in procedure to
improve these matters.[235:1] The expense of an election trial is
undoubtedly great--sometimes thousands of pounds--and since the charges
are borne by the litigants, and a favourable judgment involves a fresh
election, while the trial itself is likely to entail a certain amount of
unpopularity, it is not surprising that a defeated candidate hesitates
to file a petition.
[Sidenote: Uncertainty of the Result.]
With all respect to the select committee of the House of Commons, it
would seem to a foreign observer that the defects it reported are not
the only ones to be found in the existing system. The bringing of
election petitions is discouraged not only by the cost involved, but
also by uncertainty both in the result and in the grounds on which it
will be based. A candidate may feel convinced that his defeat was due to
corruption practised by his opponent, by the publicans, and by the local
political organisation, and yet the court, finding some of these charges
unproved, may think it unnecessary to inquire into others because much
graver questions are decisive of the case; the graver matter being
that, contrary to the provision forbidding "marks of distinction," the
defendant's agent furnished his supporters with cards to wear in their
hats.[236:1] Where serious corrupt practices are charged, the election
may be set aside on account of the payment of a railway fare to an
out-voter.[236:2] And in a case where the facts stated by the court
portrayed a bacchanalian orgy in the form of a drunken procession
through the streets, headed by the candidate himself in a barouche, with
some direct evidence that he offered free drink to the crowd, the judges
found that there was no sufficient evidence of treating; but avoided the
election on account of the payment of two shillings for conveying a
voter to the polls.[236:3]
[Sidenote: Attitude of the Judges.]
Such results are thoroughly unsatisfactory for both parties; to the
defeated party because he loses his seat; to the successful party
because he does not want to have an election, which he believes to be
vitiated by gross corruption, set aside on account of a trivial breach
of the law. The main difficulty seems to lie in the attitude of mind of
the judges. They require a degree of proof of corrupt intent, which is
very proper in criminal cases, but which would seem to be out of place
in an election petition. On a charge, for example, that an agent of the
candidate, to whom pay was promised, had voted, it was held necessary to
prove an actual express promise of payment, and not such an implied
promise as would support a civil action.[236:4] So, also, where a
candidate named Lowles caused to be distributed among the poor, some
time before an election, his own visiting cards exchangeable for food,
and it was announced in a newspaper that gifts of food had been arranged
by the Unionist candidate, one of the judges said: "I cannot bring
myself to believe in the circumstances of this case that the motive of
Mr. Lowles in giving away the tickets, months before any election was
imminent; was to influence voters."[237:1] Nor is this an isolated
instance. Where soup and coal tickets were distributed largely at the
expense of a candidate, who reminded voters, when the election came on
some months later, that he had given away soup, the court said that
"although . . . it would have been more prudent for the Respondent had
he kept aloof from the immediate distribution of the relief, we cannot
infer, from the evidence before us, that his motive or conduct was
corrupt."[237:2]
The difficulty seems to lie to some extent in the fact that a report of
corrupt or illegal practices by the court involves not only the setting
aside of an election, but the same loss of political rights as would
follow upon a conviction;[237:3] and, hence, the judges tend to require
the kind of evidence that would support a criminal prosecution.
Moreover, they seem to find it incredible that a candidate for
Parliament can be guilty of the grosser kind of offences. One feels this
very strongly in reading the opinions in election cases.
[Sidenote: How Much Corruption Still Exists.]
If the present system of trying election petitions is not a complete
success, it is nevertheless certain that the old electoral abuses have
been very much reduced. There is a current impression both in England
and elsewhere that the bribery of voters in Great Britain has been
entirely rooted out. But any one familiar with English elections knows
that this is by no means altogether true.[237:4] That the cases where
gross corruption occurs are not made public by means of election
petitions is due, partly to the reluctance to bring such petitions which
has already been pointed out, and partly to the fact that where bribery
is extensive both sides are usually guilty. Bribery in England is
disappearing. In by far the greater part of the constituencies it does
not exist, and the elections are, on the whole, pure; but in a few
places the old traditions still persist. These are mostly boroughs in
the South of England containing a considerable number of ancient
freemen, among whom corruption is sometimes widespread. The writer has
heard the number of such places estimated by persons in a position to
know the facts at a score or two dozen. The names of several of them are
well known to every one who takes an active part in electoral work; but
even in these boroughs the increase in the number of voters has lowered
the price paid for votes, and in some of them the practice is slowly
dying out. It is only fair to add that it does not receive any
countenance or encouragement from the central authorities of the great
political organisations.
FOOTNOTES:
[219:1] 35-36 Vic., c. 33.
[220:1] He must, within a day after receiving the writ in boroughs and
two days in counties, give notice of the day of election. This must be
not less than three days in boroughs, or four in counties, after the
notice is given; and must be in boroughs within four days of the receipt
of the writ, and counties within nine days. If, on the day fixed for
nomination, the election is contested, he must appoint for the polling a
date falling within the next three days in boroughs, and not less than
two nor more than six days distant in counties.
[221:1] "In one only of the three kingdoms the ballot helped to make a
truly vital difference; it dislodged the political power of the Irish
landlord. In England its influence made for purity, freedom, and
decency, but it developed no new sources of liberal strength." Morley,
"Gladstone," II., 370. But the ballot is also said to have slowly
strengthened the Liberal party in English rural districts by shielding
the agricultural labourer.
[221:2] 35-36 Vic., c. 33, Secs. 27, 31. Rogers, II., 118.
[221:3] 24-25 Vic., c. 53.
[221:4] Com. Papers, 1881, XXXVIII.-XLV.
[222:1] Com. Papers, 1881, XLIII., XLV., and schedules to these reports.
[222:2] 46-47 Vic., c. 51.
[222:3] _Ibid._, Sec. 3.
[222:4] 17-18 Vic., c. 102, Secs. 2, 3.
[223:1] Hexham Div., 4 O'M. & H., 143, at 147. After the general
election of 1906 a member was unseated on this ground. Bodmin Div., 5
O'M. & H., 225.
[223:2] 46-47 Vic., c. 51, Sec. 1.
[223:3] _Ibid._, Sec. 2.
[223:4] Rogers, II., 316-19.
[223:5] So. Meath & No. Meath, 4 O'M. & H., 130, 185.
[223:6] 46-47 Vic., c. 51, Sec. 6.
[224:1] 46-47 Vic., c. 51, Sec. 4.
[224:2] _Ibid._, Sec. 5.
[224:3] In the return of election expenses the candidate and his agent
must declare that to the best of their knowledge or belief no person,
club, society, or association has made any payment in respect to the
conduct of the election. _Ibid._, Sched. 2. But this merely requires
them to take care to be ignorant of any such payment.
[224:4] Cockermouth Div., 5 O'M. & H., 155. St. George's Div., 5 O'M. &
H., 89, at 97-98. In the first of these cases the treating was done by a
Liberal Unionist Association; in the second by an Irish Unionist
Alliance.
[224:5] Lancaster Div., 5 O'M. & H., 39, at 42-43.
[225:1] Walsall, 4 O'M. & H., 123, per Pollock B, at 124.
[225:2] _Ibid._
[225:3] Rogers, II., 293, 308, 325-329, 335.
[225:4] A false statement in the return of election expenses, if made
knowingly, is a corrupt and not illegal practice. 46-47 Vic., c. 51,
Sec. 33 (7).
[226:1] Here, again, there is an exception; for relief may be given in
the case of treating or undue influence committed by an agent, other
than the election agent, if trivial in itself, and if the candidate and
his election agent did not connive at it, but took all reasonable means
to prevent corrupt and illegal practices. 46-47 Vic., c. 51, Sec. 22.
[226:2] _Ibid._, Sec. 20
[226:3] 17-18 Vic., c. 102, Sec. 7.
[226:4] 46-47 Vic., c. 51, Secs. 7, 14.
[227:1] And in counties a sub-agent for each polling station.
[227:2] 46-47 Vic., c. 51, Sec. 17.
[227:3] _Ibid._, Sec. 36 and Sched. I., Part 1 (7).
[227:4] Rogers, II., 156, 160, 350.
[227:5] In counties one central committee room, and in each polling
district one committee room for every five hundred voters.
[227:6] 46-47 Vic., c. 51, Sec. 31.
[227:7] 38-39 Vic., c. 84; 48-49 Vic., c. 62.
[228:1] Com. Papers, 1901, LIX., 145, p. 84.
[228:2] 46-47 Vic., c. 51, Sched. I., Part IV.
[228:3] In Ireland the limit both for boroughs and counties is somewhat
lower.
[228:4] 46-47 Vic., c. 51, Sec. 21.
[228:5] If the offence was committed with his knowledge and consent, the
incapacity continues seven years. _Ibid._, Sec. 5.
[229:1] _Ibid._, Secs. 28, 31.
[229:2] _Ibid._, Sec. 27.
[229:3] _Ibid._, Sec. 33 and Sched. II.
[229:4] 2 Ed. (1892), 14.
[229:5] II., 152-153.
[230:1] 31-32 Vic., c. 125; 42-43 Vic., c. 75; 44-45 Vic., c. 68, Sec.
13.
[230:2] 46-47 Vic., c. 51, Secs. 4, 5, 11.
[231:1] Com. Papers, 1901, LIX., 145, p. 85.
[231:2] July 22, 26, 29, 1904.
[231:3] July 25, 1904.
[232:1] See the cases already cited in the discussion of agency.
[232:2] Rogers, II., 360. In a case at the general election of 1906,
where bribery was proved, the election was upheld because the judges
disagreed on the question of agency. Great Yarmouth, 5 O'M. & H., 176.
[233:1] 46-47 Vic., c. 51, Sec. 63.
[233:2] Rogers, II., 157-58.
[233:3] Counties of Elgin and Nairn, 5 O'M. & H., 1.
[233:4] Rogers, II., 162.
[233:5] _Ibid._, 259, 268.
[233:6] Lichfield Div., 5 O'M. & H., 27, at 34-38.
[233:7] Counties of Elgin & Nairn, 5 O'M. & H., 1.
[233:8] _Cf._ Lichfield Div., 5 O'M. & H., 27; Haggerston Div., _Ibid._,
68, at 72-88, St. George's Div., _Ibid._, 89. So of treating, Great
Yarmouth, _Ibid._, 176, at 198.
[234:1] Hastings, 1 O'M. & H., 217, at 218.
[234:2] Subscriptions _bona fide_ made for public or charitable purposes
are not election expenses, Rogers, II., 161-62. But it is not easy to
say what is _bona fides_; for gifts of this kind by a candidate for
Parliament who has no other connection with the constituency must always
be made, in part at least, for the sake of indirectly gaining votes by
increasing his popularity.
[234:3] 46-47 Vic., c. 51, Sec. 59.
[235:1] Com. Papers, 1898, IX., 555.
[236:1] Walsall, 4 O'M. & H., 123, at 126.
[236:2] Pontefract, 4 O'M. & H., 200.
[236:3] Southampton, 5 O'M. & H., 17.
[236:4] Lichfield Div., 5 O'M. & H., 27, at 29-30.
[237:1] Haggerston Div., 5 O'M. & H., 68, at 84.
[237:2] St. George's Div., 5 O'M. & H., 89, at 96.
[237:3] 46-47 Vic., c. 51, Secs. 4, 11.
[237:4] After the general election of 1906 one member was unseated for
bribery by his agents. Worcester, 5 O'M. & H., 212.
CHAPTER XI
THE HOUSE OF COMMONS
_Disqualifications, Privilege, Sessions_
[Sidenote: Disqualifications for Parliament.]
No property qualification is now required for sitting in the House of
Commons, and any male British subject may be elected, who is not
specially debarred.[239:1]
Infants are excluded both at Common Law, and by statute, although this
rule has been disregarded in several notable instances, the best known
cases being those of Charles James Fox and Lord John Russell who entered
Parliament before they came of age. Incurable insanity was a
disqualification at Common Law, and so by statute is confinement in a
lunatic hospital. But it would seem that a temporary lunatic, if at
large, is not incompetent to sit and vote.
Peers are also excluded; and this is true even of those Scotch peers
who, not having been chosen among the sixteen representatives of the
peerage of Scotland, have no right to sit in the House of Lords. There
is one exception, however, to the rule that peers are ineligible to the
House of Commons, for a peer of Ireland, who is not selected to
represent that kingdom in the House of Lords, may sit for any county or
borough in Great Britain, but not for an Irish constituency. The rule
excluding peers is sometimes a hardship on a rising young man
transferred by the death of his father from the active battlefield of
politics in the House of Commons to the dignified seclusion of the House
of Lords. But it has had, on the other hand, some effect in preventing
the House of Commons from absorbing all the political life of the
country, and has thus helped to maintain the vitality of the House of
Lords. Among the peers there have always been men of great national
authority who would have preferred to sit in the other House. It is safe
to say that in the year 1900 two of the statesmen who possessed the
greatest influence with the people--Lord Salisbury and Lord
Rosebery--would have been in the House of Commons had it not been for
the rule excluding peers.
The clergy of the Roman Catholic Church and the Church of England, and
ministers of the Church of Scotland, are disqualified by statute;[240:1]
but these provisions do not include dissenting ministers; and it may be
added that at the present day a clergyman of the Church of England may
by unfrocking himself remove his disqualification.[240:2]
As in most other countries, there are in England rules disqualifying
persons who, by assuming certain relations with the government, or by
misconduct, have rendered themselves unfit to serve; such are government
contractors, and holders of pensions not granted for civil or diplomatic
services; bankrupts,[240:3] and persons convicted of treason or of
felony, or guilty of corrupt practices.
[Sidenote: Office-holders.]
The exclusion of permanent officials has already been discussed; and it
will be remembered that by the compromise effected in the reign of Queen
Anne the holders of certain specified offices, or of any offices created
after Oct. 25, 1705, are absolutely disqualified; while a member
accepting any other office from the Crown loses his seat, but can be
reelected.[240:4] It will be remembered, also, that by later statutes or
by custom all holders of civil offices not distinctly political are now
excluded from the House of Commons; and so are the judges of the higher
courts, and most of those in the lower ones.
Now the offices held by ministers are either old offices within the
meaning of the Act of Anne, and therefore compatible with a seat in
Parliament, or new offices that have been taken out of the rule by
special statutes passed usually when the office was created. This is
not, indeed, universally true; for by special provision of statute only
four of the five secretaries of state, and four of their
under-secretaries, can sit in the House of Commons at one time. With
that limitation every minister is capable of sitting; but on his
appointment he loses his seat, and must go back to his constituents for
a new election. The last rule, however, like every other, has its
exceptions. The under-secretaries of state occupy _old_ offices, but as
they do not accept them _from_ the Crown they are not obliged to undergo
a fresh election on their appointment; and they are not, in fact, in the
habit of doing so.[241:1] The same privilege has been extended by
statute to the Financial Secretary of the War Office. There is, indeed,
no self-evident reason to-day why it should not be extended to all the
ministers. The original fear of influence on the part of the Crown no
longer applies; and the only important effect of the rule is that if a
new cabinet comes into power when Parliament is in session, all business
there has to be suspended while the ministers are seeking reelection. A
number of attempts have been made to do away with the rule, and they
have been supported by very eminent statesmen, but they have been
constantly defeated, mainly on the ground that a constituency, having
elected a man while he was in an independent position, has a right to
reconsider its choice when he assumes the burden of public
office.[241:2] Such reasoning is characteristic of English political
life. It either proves nothing or it proves too much, for if it is
sound, the same principle applies with quite as much force to the
under-secretaries, and with a great deal more force to the Speaker.
This objection to a change was avoided, while a part of the practical
inconvenience was removed, by a provision in the Reform Act of 1867 that
a person who has been elected to Parliament since he became a minister
shall not vacate his seat on account of accepting a different office in
the ministry.[242:1]
[Sidenote: Extinct Disqualifications.]
Formerly there were a number of other qualifications and
disqualifications that have now been swept away, such as the requirement
of ownership of land, and of residence in the constituency,[242:2] and
the provision for oaths and declarations intended mainly to exclude
Roman Catholics. It is curious that after the disabilities of the Roman
Catholics were removed in 1829 the oath continued to be an impediment to
the admission of Jews and atheists, although it had never been aimed at
them. In each case the law was changed, but only after the matter had
been brought somewhat violently to the attention of the House. The last
religious impediment was taken away in 1888 at the conclusion of the
unseemly wrangle with Mr. Bradlaugh.
[Sidenote: Resignation.]
A disqualification not only prevents a person from sitting in the House,
but is also the only way in which he can voluntarily get out of it. A
man cannot resign his seat, and hence the regular method of
accomplishing the same result is the acceptance of a disqualifying
office. Two or three sinecures are retained for that purpose, the best
known being the stewardship of the Chiltern Hundreds, a position which
the member desiring to leave Parliament applies for, accepts, and
immediately gives up. The place is, in fact, not an office, but an exit.
It may be added that the House has power, for reasons satisfactory to
itself, to declare a seat vacant, and to expel a member.
[Sidenote: Privileges of the House.]
[Sidenote: Freedom from Arrest.]
It is unnecessary to say much here about the privileges of the House of
Commons. Most of them are matters of historical rather than present
political significance. At the opening of each new Parliament, the
Speaker, after being confirmed by the Crown, demands the ancient and
undoubted rights and privileges of the Commons, the most important of
which are freedom from arrest and liberty of speech. The freedom from
arrest, which is enjoyed by members during the session and forty days
before and after it, does not protect a member from the consequences of
any indictable offence, or of contempt of court; nor in civil actions
does it now prevent any process against him except arrest.
[Sidenote: Liberty of Speech.]
Freedom of speech was not acquired without a long struggle; but since
the Bill of Rights of 1689 it has been a settled principle that "the
freedom of speech, and debates or proceedings in Parliament, ought not
to be impeached or questioned in any court or place out of Parliament."
A man cannot, therefore, be prosecuted criminally, or made civilly
responsible, for anything he has said in the House; although the House
itself may punish what it deems an abuse of the forms of debate.
[Sidenote: Publication of Debates.]
Curiously enough the privilege of free speech in the House does not
necessarily include the right to publish that speech outside. This
matter has had an eventful history. Until about one hundred years ago
the House attempted to prevent the report of its debates in the public
press, and in the course of the struggle became entangled in the
memorable controversy with Wilkes. The question has never been dealt
with by legislation, and it is still assumed that the House might
declare the publication of its debates a breach of privilege, and put a
stop to it. But the struggle came to an end because the House changed
its mind. Instead of objecting to the publication of the debates it
came, in time, to desire it; and whereas it had attempted earlier to
keep out reporters, it now strove to protect them.
The privilege of free speech covered only words uttered in the House and
matter printed for circulation among the members alone. It did not
extend to the printing of a speech, or to documents intended for
general distribution even though issued by order of the House itself;
and in its later attempt to insist upon its right of publication, as in
its earlier effort to insist upon its right to prevent publication, the
House came into conflict with the judiciary. In the case of Stockdale
_v_. Hansard[244:1] the Queen's Bench held that a publisher might be
liable in damages to a person injured by defamatory matter contained in
a report made to the House of Commons, although the printing was ordered
by the House itself. The question was then set at rest by a
statute[244:2] providing that publication by order of either House
should be a defence to any civil or criminal proceedings. But this has
no effect upon the newspapers, and although a fair account of a debate
published in the ordinary course of reporting is not in itself
libellous, even if it contain defamatory matter, yet a faithful report
of a speech published with a malicious intent is still libellous, and it
is never safe to go to a jury on a question of intent.
If the attitude of the House of Commons toward the publication of its
debates has changed entirely, it is because its relation to the public
has undergone a complete transformation. Every member of Parliament
to-day is seeking for the approbation of his constituents, and far from
dreading publication of what he says in the House, his effort is rather
to attract attention to himself by the reports in the local press of his
remarks in Parliament. Moreover, the House as a whole depends more than
ever upon popular support; and one may find a striking illustration of
the way the same thing produces different political effects under
different conditions by observing that while the cabinet would lose
authority if its discussions were not secret, Parliament would suffer if
its debates were not public.
[Sidenote: Privilege in the Courts of Law.]
Sir William Anson remarks that "The Privileges of Parliament, like the
Prerogative of the Crown, are rights conferred by Law, and as such their
limits are ascertainable and determinable, like the limits of other
rights, by the Courts of Law."[245:1] This principle has not always
been accepted by the House, which has on several occasions come into
collision with the courts; but the latter have always maintained, and
maintained successfully, that when a question involving a privilege of
the House comes before them for decision, it is their duty to ascertain
whether the privilege exists or not, and to determine its effect upon
the case before them. They have further maintained that they must decide
the question for themselves, and that a claim to the privilege on the
part of the House is not conclusive.
In one respect the authority of the courts is incomplete; for the House
has a right to order a man committed to prison for contempt, and the
question what constitutes a contempt is so far within the discretion of
the House that the court will not order the prisoner set at liberty on
_habeas corpus_ where the return to the writ simply states that he is
committed for contempt by order of the House. Referring to this subject,
Professor Dicey says: "The powers exercised by the Houses, and
especially in practice by the House of Commons, make a near approach to
an authority above that of the ordinary law of the land."[245:2] Such a
power, however, is exceedingly unlikely to be used in any dissension
with the courts to-day; and if it were used, the courts would be almost
certain to win, because the commitment by the House terminates with the
session.
[Sidenote: Summons and Dissolution.]
There remain to be considered only the methods of calling Parliament
together, and of putting an end to its labours.
Parliament can be summoned and dissolved, and its sessions can be opened
and closed by the Crown alone, the only legal restraint upon the
arbitrary power of the sovereign in the matter being the Act of William
and Mary, which provides that a new Parliament shall be summoned within
three years after a dissolution.[245:3] This statute is now, of course,
unnecessary; and, in fact, the same proclamation which dissolves one
Parliament always announces the issue of writs for the election of
another. If Parliament is not dissolved by the Crown, its term expires
at the end of the seven years prescribed by the Septennial Act of 1716;
but, as a matter of fact, Parliament never dies a natural death, and if
its life is not cut off earlier, a dissolution takes place shortly
before the end of the seven years.
Until 1867 the death of a sovereign always wrought a dissolution of
Parliament; but this rule, which depended more on ancient theory than on
modern convenience, was abolished by the Reform Act of that year.
[Sidenote: Prorogation and Adjournment.]
[Sidenote: Effect on Unfinished Business.]
While a session can be brought to a close only by prorogation, either
house may adjourn for any period at its pleasure, subject only to the
right of the Crown to terminate an adjournment of more than fourteen
days. Although a prorogation is made by the Crown, and adjournment by
the House itself, practically both are virtually in the hands of the
ministry to-day, and the really important difference between them is
that a prorogation terminates all unfinished business, while an
adjournment does not. For that reason a government which has business
that it cannot put through during the regular session, and does not want
to abandon, will sometimes resort to an adjournment instead of a
prorogation. This was done, for example, in 1902 in order to complete
the stages of the Education Bill in the autumn, and again in 1906
chiefly in order that the House of Lords might consider the pending
government measures. The wisdom of the rule that the close of the
session puts an end to all measures that have not finished their course
in both Houses is not so clear in the case of Parliament, as in that of
legislative bodies where a vast number of measures are brought in by
irresponsible members. In such bodies the rule may result in killing a
great many bills that had better die, but in Parliament this is far less
true. Almost all important legislation relating to public affairs is now
introduced by the ministers; and every year measures to which both they
and the House have devoted much time and thought are killed by the
close of the session. A day comes when the leader of the House arises
and states what bills he is obliged by lack of time to drop, a process
commonly known as the slaughter of the innocents. The necessity would
seem to be unfortunate.
In fact the House of Commons spends so much time in debating each bill
that it gets through its work slowly; and whereas many other popular
chambers are reproached with legislating too much, Parliament is accused
of legislating too little. Moreover the House of Commons suffers less
from an excess of the easy good nature, which, in America at least, is
the parent of many ill-considered and unwise laws; yet the present rule
does act as a serious check upon the persistent member with a mission,
and perhaps it kills off, on the whole, more bad bills than good ones.
[Sidenote: Suspending Private Bills.]
There is, however, a class of measures on which the rule, if carried out
strictly, would have a distinctly injurious effect. These are the
private bills--a term applied to projects which relate to private or
local interests, such as bills for the extension of a railway, or for
authority to supply water, gas, tramways and the like. Legislation of
that kind is, as we shall see, conducted in Parliament by a
semi-judicial process, and as it is highly expensive for both sides, it
would be unreasonable that the closing of the session, for reasons quite
unconnected with these matters, should oblige the promoters and
objectors to incur the cost of beginning proceedings all over again. In
practice this seldom happens, for in the few cases where such a bill
cannot be completed before the end of the session it is usually
suspended by a special order providing that the stages it has already
passed shall be formally taken at the opening of the next session, so
that the bill really begins its progress again at the point it had
already reached. When, as in 1895, Parliament comes to an untimely end
in the midst of a session, a general provision of this kind is made
suspending all unfinished private bills, and thus a great deal of
unnecessary hardship is avoided.
FOOTNOTES:
[239:1] In a couple of instances natives of India have been elected.
[240:1] The question was raised in 1801 in the famous case of Horne
Tooke, and set at rest for the future by an Act of that year: 41 Geo.
III., c. 63. The provision in regard to the Roman Catholic clergy was
made in 1829: 10 Geo. IV., c. 7, Sec. 9.
[240:2] 33-34 Vic., c. 91.
[240:3] A cause that disqualifies will not always unseat. For the latter
purpose bankruptcy and lunacy must have continued six months. Rogers,
II., 43, 44.
[240:4] 6 Anne, c. 7, Secs. 25, 26. Referred to in the Revised Statutes
as 6 Anne, c. 41.
[241:1] Statement by the Attorney General, Hans. 3 Ser., CLXXIV.,
1236-37.
[241:2] Todd, "Parl. Govt. in England," 2 Ed., II., 331-39.
[242:1] 30-31 Vic., c. 102, Sec. 52, and Sched. H.
[242:2] This became obsolete by long-continued disregard. It is said to
be the only case of a statute which is deemed to have been annulled by
"contrarius usus." It was afterwards expressly repealed by statute.
Rogers, II., 38.
[244:1] 9 A. & E., 1.
[244:2] 3-4 Vic., c. 9.
[245:1] "Law and Custom of the Constitution," I., 175.
[245:2] "Law of the Constitution," 5 Ed., 56, note.
[245:3] Anson, I., 287-88.
CHAPTER XII
PROCEDURE IN THE HOUSE OF COMMONS
_The House, its Rules and Officers_
[Sidenote: Small Number of Seats.]
To the traveller who cares for history, either of the past or in the
making, there is no place more interesting than the long sombre building
with a tower at each end, that borders the Thames just above Westminster
Bridge. Apart from occasional meetings at other places during the Middle
Ages, the Mother of Parliaments has sat close to this spot for more than
six hundred years. Except for old Westminster Hall, almost the whole of
the present structure was, indeed, built after the fire of 1834. Yet if
it contains little that is really venerable, save memories, the smoke of
London has given to the gothic panelling of the outer walls the dignity
of apparent age. The interior has a more modern air, for it is not only
well planned with a view to its present use, but in some parts it
expresses with peculiar fitness the purposes it serves. From opposite
sides of the large central lobby corridors lead to the two Houses, but
the hall of the Lords seems designed for ornament, that of the Commons
for doing work. The House of Commons is seventy-five feet long by
forty-five feet wide and forty-one feet high, panelled in dark oak, and
lit by long stained glass windows and sky-lights in the ceiling. From
the main entrance a broad aisle runs the whole length of the chamber,
with the clerks' table filling nearly the whole upper end of it, and
beyond this a raised chair for the Speaker with a canopy over his head.
Facing the aisle on each side long rows of high-backed benches, covered
with dark green leather, slope upward tier above tier to the walls of
the room; and through them, at right angles to the aisle, a narrow
passage, known as the gangway, cuts across the House. There is also a
gallery running all around the room, the part of it facing the Speaker
being given up to strangers, while the front rows at the opposite end
belong to the reporters, and behind them there stands, before a still
higher gallery, a heavy screen, like those erected in Turkish mosques to
conceal the presence of women, and used here for the same purpose. The
structure and arrangement of a legislative chamber are not without
influence upon the mode of transacting business. The whole number of
seats in the House of Commons is far from large, not large enough for
all the members. The two side galleries are reserved for them, but they
are very narrow, containing only a little more than one hundred seats
apiece, and although they are occupied on very crowded nights, they are
practically useless for any one who intends to take part in debate. A
small portion of the space under the strangers' gallery is also
appropriated for visitors, and the rest of the floor contains only three
hundred and sixty seats, enough for little more than one half of the six
hundred and seventy members of the House. During the greater part of the
time even those seats are not filled, for they are adapted only for the
transaction of the business of the House. They are merely benches with
no means for writing. If a member wants to carry on his correspondence,
he goes to the library, or to one of the other rooms near by. In the
House he can only speak, listen, and applaud.
[Sidenote: Attendance Often Small.]
On a great occasion, like the introduction by Mr. Gladstone of his first
Home Rule Bill, every seat in the House is taken. At the opening of an
ordinary sitting, also, while questions to the ministers are asked and
answered, and at a time when the leaders of the two great parties are
speaking about a measure of general interest, most of the seats on the
floor are occupied; but as soon as the lesser lights arise the members
begin to drop off, going to the lobby, the library, the smoking-room,
the dining-room, or the terrace. Nor is it always the lesser lights
alone that speak to nearly empty benches, or rather to the reporters'
gallery. The writer well remembers, on the first occasion when he saw
the House, now more than twenty years ago, that Sir William Harcourt,
then Home Secretary, made a speech an hour and three quarters long upon
a bill which he had brought in to reform the government of London, and
that, during a great part of the time, the only persons present besides
the officers of the House, were the Lord Mayor, the Chairman of the
Metropolitan Board of Works, and a casual who sat on one of the upper
benches behind the minister. This is the smallest number of members the
writer has ever beheld in the House, but to see only a score or two on
the benches is by no means unusual. Many more, however, although not
within ear-shot, are potentially present. Forty members constitute a
quorum, but if any one suggests that they are not there, electric bells
are rung all over the building, summoning the members into the House, a
two-minute sand-glass is turned, and the members are not counted until
it has run out. The same process takes place whenever a division--that
is a vote by count--is challenged.
[Sidenote: Effect of This on Debates.]
The small size of the chamber makes it easy to hear an ordinary tone of
voice; and this, coupled with the still smaller attendance, discourages
flights of oratory or popular eloquence, and gives to the debates a
businesslike and almost conversational character. Moreover, the very
fact that members do not stay in the House if not interested in what is
being said, prevents the distracting hum of conversation which is
sometimes annoying in other representative bodies. All this makes the
spectator feel that the members are present for public business and
nothing else. Except for occasional scenes enacted for the most part by
the Irish members, the proceedings are orderly, and respect for the
dignity of the House, and the authority of the chair, are almost
universal.
[Sidenote: The Arrangement of Seats.]
Even the arrangement of seats in the House is not without its bearing
upon political life; and although a small matter, it affords another
illustration of the principle that an institution which, instead of
being deliberately planned, is evolved slowly, will develop in harmony
with its environment, or force its environment into harmony with itself.
The front bench at the upper end of the aisle, close at the right hand
of the Speaker, is called the Treasury Bench, and is reserved for the
ministers; the corresponding bench on the other side being occupied by
the former ministers of the party now in Opposition. Behind these two
benches sit for the most part men whose fidelity to their respective
parties is undoubted, members whose allegiance is less absolute
generally preferring seats below the gangway on either side.
Of course, on a crowded night members cannot always find seats that
express their exact sentiments. Still, the arrangement is fairly well
preserved, especially in the case of prominent men, with whom it is
sometimes a matter of no little consideration.[251:1] Any group that
desires to emphasise its freedom from regular party control always sits
below the gangway. The Fourth Party, for example, sat in 1884 below the
gangway on the Opposition side, the Labour Party has sat there since the
election of 1906, and the same position is occupied by the Irish
Nationalists under every ministry; while the Liberal Unionists at the
time of their breach with Mr. Gladstone over his first Home Rule Bill
took up their seats below the gangway on the government side. The House
at a great debate resembles a martial array, with the leaders face to
face in the van, supported by their troops in ranks behind them. The
minister leans over the table, and points in indignation or in scorn at
the "honourable gentlemen opposite." All this expresses the idea of
party government, and lends a dramatic effect to parliamentary warfare.
[Sidenote: Mode of Treating the Subject of Procedure.]
Nowhere in the whole range of British institutions does the interaction
of law and custom baffle any attempt at logical description so much as
in the case of procedure in Parliament. The cabinet, which is becoming
more and more exclusively the motive force in all important legislative
action, is not, indeed, so completely unknown to the rules of the House
as it is to the statute-book; and yet a study of the rules alone would
give but a faint idea of the authority of the Treasury Bench. On the
other hand, it is impossible to understand how the government is
attacked, and how it carries through its plans, unless one is familiar
with the rules themselves. At the present day the discussions connected
with appropriations, for example, turn little on financial questions,
and are used mainly as an opportunity for criticising administrative
conduct; but to understand how this is done, and to what extent the
government has sought to limit the practice, a knowledge of the process
of granting supply is essential.
The actual working of the House of Commons involves three problems:
first, the regular forms of procedure; second, the action of the cabinet
and of private members, operating subject to those forms; and third, the
methods by which the cabinet maintains a control over its own
supporters, and through them over the House itself. To deal with these
three matters together would involve so much confusion, that it has
seemed better to take up one of them at a time. This chapter and the two
succeeding ones are, therefore, devoted solely to the organisation of
the House and the forms of procedure on public matters, the relation of
the government to the work of the House being described in the chapters
that follow, while the machinery for keeping the majority compact and
under the lead of the Treasury Bench will be dealt with at a later stage
under the head of "Party Organisation in Parliament." Legislation for
private and local objects, which has had a peculiar and instructive
development, is treated in a chapter by itself.
[Sidenote: The Method of Voting.]
[Sidenote: A division.]
Before describing the organisation and procedure of the House it may be
well to explain the method of voting, because frequent reference must be
made to it, and the terms are technical. After stating the question to
be voted upon, the Speaker, or the Chairman, calls in the ordinary way
for the ayes and noes. According to the apparent preponderance of voices
he then says, "I think the ayes (or noes) have it." If no objection is
raised, he adds a moment later, "The ayes (or noes) have it," and the
vote is so recorded. If, on the other hand, any of the minority doubt
the result, or wish the numbers and names recorded, they cry out
contrary to the Speaker, "The noes (or ayes) have it." Whereupon the
Speaker directs strangers to withdraw (except from the places reserved
for them), the division bells are rung all over the building, the
two-minute sand-glass is turned, and when it has run the doors are
locked, and the question and vote are repeated in the same way.[253:1]
If the Speaker's opinion of the result is again challenged--and this is
almost always done--he orders a division of the House, that is, he
directs the ayes to go to the right, the noes to the left; and he
appoints two tellers from each side, one of each pair to count the ayes,
and the other the noes, in order to check one another. The ayes then go
into the lobby that runs parallel to the House on the Speaker's right,
the noes into that on his left; and until 1906 every member in the
House, except the Speaker, was obliged to go into one lobby or the
other, unless he was physically disabled, when his vote might be counted
in the House.[253:2] The tellers, standing at the door of each lobby,
count the members as they pass between them in returning to the House,
while clerks at tables in the lobbies take down their names.
Ever since 1836, when the method of taking a division assumed its
present form, the names of members voting on each side have been printed
and preserved, although curiously enough these division lists are not
included among the parliamentary papers. The process may seem a clumsy
way of counting votes, but under the system in force until 1906 it took,
on the average, only twenty minutes, and under the new system, whereby
the recording of names begins when the sand-glass is turned, it takes
not much more than half as long. This is less time than would be
consumed by a roll-call, and the system has been found so satisfactory
that it was adopted by the House of Lords.
Until recently a division was the only means, apart from an oral vote,
of taking the sense of the House; and any one member could force a
division by challenging the result of an oral vote, or rather any two
members could do so, for a division cannot take place unless two tellers
can be found for each side. In 1888, however, as a part of the movement
to prevent obstruction and waste of time, the Speaker or Chairman was
empowered, if he thinks a division frivolously or vexatiously claimed,
to call upon the ayes and noes to rise in their places. He can then
count them, and declare the result;[254:1] but this is in fact rarely
done.
The names of the men selected as tellers indicate the political nature
of the vote. If the government intend to treat the question, I will not
say as one of confidence, (for there are cases of secondary importance
where a ministry may be beaten without feeling that they have lost the
confidence of the House and must resign), but if they intend to treat it
as one where an adverse vote is a defeat for them, if they desire to
rally their followers to vote solidly upon it, then the government whips
are appointed tellers. If in the same way the Opposition want to treat
it as a party question, their whips are appointed tellers upon the
other side. But if on one side or the other this is not the case,
private members who have made or seconded the motion or taken an active
part in debate are selected by the chair as tellers, and if so any
member may, without disloyalty to his party, vote according to his own
unaided convictions.
[Sidenote: Standing and Sessional Orders.]
Like other legislative bodies the House of Commons has printed rules,
and the most important of these, the standing orders, are published
every year among the parliamentary papers. But the standing orders are
by no means a code of procedure, for they cover only a fraction, and so
far as they relate to public business a small fraction, of the
subject.[255:1] The procedure rests essentially upon custom, to be
gathered in part from precedents and the rulings of Speakers, in part
from unrecorded tradition known by personal experience. Many standing
orders have, in fact, been adopted from time to time in order to modify
or forbid an existing practice, and hence their effect is mainly
negative. No particular formality is required for the adoption of these
rules, but in 1902, when extensive changes were made, the proposals were
read several times, and were, in fact, submitted to a procedure similar
to that for the enactment of a bill.[255:2]
[Sidenote: Standing Orders Endure from One Parliament to Another.]
The standing orders differ from the rules of legislative bodies in some
other countries in two important respects. In the first place they do
not have to be adopted afresh by each new House of Commons, but once
established they continue in force from Parliament to Parliament until
repealed. There are, indeed, sessional orders which require to be
renewed at the beginning of each session, and sometimes a new rule after
proving its utility in this way is given the permanent form of a
standing order. Orders or resolutions without any fixed duration are
also adopted at times. These expire upon prorogation, but it sometimes
happens that without being formally revived they continue to be observed
as a part of customary practice of the House.[256:1]
[Sidenote: They Can be Suspended by a Simple Vote.]
The second peculiarity of the standing orders lies in the fact that they
can be suspended by a simple majority vote. Notice of a motion for that
purpose is usually required and given, but it may be dispensed with; and
it is not even necessary to refer in the motion to the standing orders
at all. Any order or resolution, inconsistent with their terms, has, if
adopted, the effect of suspending them,[256:2] and the House is, in
fact, constantly adopting special orders which change the course of
procedure as prescribed by the standing orders or the customary
practice. This has often been done when the government has needed to
take, for its own measures, part of the time allotted to private
members, or has wanted to extend the sitting beyond the usual hour. Many
of these cases are now provided for by the new rules adopted in 1902;
but the most effective form of cutting short debate, the process known
as the "guillotine," although now regulated by standing order in the
case of supply,[256:3] is still applied in the case of all other bills
solely by a special order of the House adopted for a particular bill on
the motion of a minister.
[Sidenote: Tendency of Changes in the Standing Orders.]
Most of the changes in the standing orders made during the last fifty
years have been aimed at preserving order, or preventing waste of time,
or altering the distribution of time.[256:4] Those of the first class,
such as the provisions authorising the suspension of a member for
disorder, arose from the conduct of the Irish members, and may be
regarded as an accident unconnected with the normal evolution of the
parliamentary system. This is not true of the rules designed to prevent
waste of time; for although the provisions to cut off debate grew out of
Irish obstruction, the subsequent history of closure has shown that some
process of this kind was certain to come sooner or later in the natural
course of things, and that the Irish merely hastened it.[257:1]
[Sidenote: Efforts to Save Time.]
The changes made in order to save time are commonly attributed to the
increase in the amount of business the House is called upon to despatch,
and if in that business be included the enlarged control of the House
over administrative detail by means of questions and otherwise, this is
undoubtedly true, but so far as legislation is concerned, it would be
more accurate to attribute the changes to the fact that it requires more
time to transact business than it did formerly. There are a far larger
number of members who want to interrogate and criticise the ministers,
and to take part in debate. The pages of Hansard are more numerous in
proportion to those of the statute-book. Now the old procedure was very
elaborate. In the passage of an ordinary public bill through the House
there were, apart from amendments, more than a score of different steps,
upon each of which debate might take place, and a division might be
claimed. Then motions to adjourn, and other dilatory tactics could be
used indefinitely. Moreover, the general rule that amendments and
debate must be relevant to the question before the House[258:1] was
subject to wide exceptions, if, indeed, there could be said to be any
such general rule at all. The debate upon a dilatory motion, for
example, was not limited to the motion itself;[258:2] and every time a
motion was made to go into Committee of the Whole on Supply, any
grievance could be brought forward and discussed.[258:3]
All this was unimportant so long as the battles between the parties were
confined to occasional full-dress debates, and the rest of the time was
devoted to the real work of legislation. But when systematic obstruction
arose, and when without any intent to obstruct it became the recognised
business of the Opposition to oppose, and in the case of measures that
aroused strong party feeling to oppose at every step, the opportunities
for doing so were too numerous to endure. Some of the steps in the
enactment of a bill, such as engrossment,[258:4] passage,[258:5] and
first and second reading in the Committee of the Whole,[258:6] have been
discontinued altogether. Others, such as taking up the consideration of
a bill,[258:7] or going into Committee of the Whole on a bill,[258:8] or
bringing up a report from Committee of the Whole,[258:9] are taken as a
matter of course without question put. In other cases again the question
is put, but no debate is allowed.[258:10] With the same object debate
upon a dilatory motion has been limited to the subject-matter of the
motion, and the Speaker or Chairman has been empowered to forbid debate
upon it, or even to refuse to put the question at all, if he considers
the motion an abuse of the rules of the House.[258:11]
The opportunities for criticising the government both in going into
Committee of Supply, and by other means, have also been limited in
various ways, and above all the system of cutting short debate by means
of closure has been brought of late years to a condition of great
efficiency. These matters, and the distribution of time between the
government and private members will be considered more fully hereafter,
and it is only necessary to remark now that the tendencies noted are
permanent, because although a party while in Opposition may object to
changes in the rules that enhance the control of the government over the
conduct and time of the House, it finds itself compelled to maintain
them when it comes into office. The tendencies are, in fact, the natural
result of the more and more exclusive responsibility of the ministry for
all public action, legislative as well as executive.
[Sidenote: The Speaker.]
The Commons are always summoned to the bar in the House of Lords to hear
any formal communication from the Crown, and when after a general
election they meet on the day appointed, they are summoned there to hear
the formal opening of the new Parliament. They are then desired in the
name of the sovereign to choose a Speaker, and retire to their chamber
for the purpose. As soon as he has been chosen, the mace is placed on
the table before him, as a symbol of his authority and a token that the
Commons are sitting as a House. But he is still only Speaker-elect,
until the next day, when, followed by the Commons, he again presents
himself at the bar of the Lords, announces his election, and asks for
the royal confirmation, which is now, of course, never refused.
[Sidenote: His Election.]
If only one person is nominated for Speaker, he is called to the chair
without a vote. If more than one, they are voted upon successively, a
majority being required for election.[259:1] The proposer and seconder
are always private members, for it is considered more fitting that the
ministers should not be prominent in the matter.[259:2] The Speaker is,
however, always selected by the government of the day, and a new Speaker
is always taken from the ranks of the party in power. Sometimes the
election is not uncontested, and this happened when Mr. Gully was chosen
in 1895. But although the Speaker may have been opposed when first
chosen, and although he is elected only for the duration of the
Parliament, it has now become the invariable habit to reelect him so
long as he is willing to serve. The last cases where a Speaker's
reelection was opposed occurred in 1833 and 1835, and on the second of
those occasions he was defeated. The principle is well illustrated by
the career of Mr. Gully. He was elected by a small majority, during the
last few months of a moribund Liberal cabinet. His selection had not
pleased the Conservatives, and he was warned that they held themselves
at liberty not to reelect him if they came to power in the next
Parliament. Contrary to the ordinary rule his constituency was contested
at the next general election, but although the Conservatives obtained a
large majority in the new Parliament, he was returned to the chair
without opposition.
[Sidenote: His Powers over Debate.]
The Speaker is purely a presiding officer. He has nothing to do with
appointing any committees, or guiding the House in its work. He is not a
leader but an umpire, otherwise he could not remain in the chair through
changes of party. As an umpire, however, his powers are very great, and
in some cases under the modern changes in the standing orders they are
autocratic. He decides, for example, whether a motion to closure debate
may be put, or whether it is an infringement of the rights of the
minority;[260:1] he can refuse to entertain a dilatory motion if he
considers it an abuse of the rules of the House;[260:2] and he can stop
the speech of a member who "persists in irrelevance, or tedious
repetition."[260:3] Moreover, from his decision on those matters, or on
any points of order, there is no appeal.[260:4] The House can suspend or
change its own rules by a simple majority vote, but it cannot in a
concrete case override the Speaker's construction of them.[260:5] This
is a general principle of English parliamentary law, which is applied
in almost all public bodies.[261:1] It may render a conscientious man
more careful in his rulings, but it certainly places in his hands
enormous power.
[Sidenote: His Power to Preserve Order.]
Familiarity with representative bodies seems to breed contempt, for the
last half century has been marked by an increase of disorderly scenes in
the legislatures of many countries. In England such things were brought
about by the growth of the Irish Home Rule party, which regarded the
government of Ireland by the British Parliament as unjust on principle,
and oppressive in fact; and which, to say the least, was not distressed
by loss of dignity on the part of the House of Commons. In 1880 the
Speaker was given the power to repress disorder, now embodied, with
subsequent modifications, in Standing Order 18. He can name a member who
disregards his authority or obstructs business, and then a motion is in
order, to be decided at once without amendment or debate, to suspend
that member.[261:2] When the standing orders were revised in 1902 they
contained a clause prescribing the duration of the suspension for the
first and subsequent offences, but this was struck out during the
discussion, and a suspension is now indeterminate. It is obvious that to
a party, in a hopeless minority, which denies the authority of
Parliament, a disorderly scene followed by a suspension, and an
opportunity to go home and make stirring speeches, may not be an
undesirable form of protest.
Apart from occasional outbursts chiefly, though not exclusively, on the
part of the Irish members, a stranger in the gallery is much impressed
by the respect paid to the Speaker, and by his moral control over the
House.[262:1] His emoluments are in proportion to the dignity of his
position. He enjoys a salary of five thousand pounds a year, with an
official residence in the Houses of Parliament and other perquisites;
and although standing aloof from political leadership, he is regarded as
the first commoner of the realm. He is, indeed, on the threshold of the
House of Lords, for it has been the habit of late years to make him a
peer when he retires.
[Sidenote: He Votes Only in Case of a Tie.]
[Sidenote: The Chairman of Committees.]
As late as 1870 the Speaker occasionally took part in debate, when the
House was in Committee of the Whole where he does not preside;[262:2]
but it would now be thought inconsistent with his position of absolute
impartiality to speak or vote in committee. He therefore never votes
unless he is obliged to do so by a tie occurring when he is in the
chair. It is commonly said that he always gives his casting vote in such
cases so as to keep the question open; but this is not strictly true.
When, however, his vote involves a final decision, he bases it, not upon
his personal opinion of the merits of the measure, but upon the probable
intention of the House as shown by its previous action, or upon some
general constitutional principle;[262:3] and it may be added that the
chairman of a Committee of the Whole, when called upon to break a tie,
follows the same practice.[262:4] The chair in Committee of the Whole is
regularly taken by the Chairman of the Committee of Ways and
Means--commonly called for that reason the Chairman of Committees--who,
like the Speaker, withdraws, on his appointment, from political
contests, speaking and voting in the House nowadays only on questions
relating to private bills. He is nominated at the beginning of the
Parliament by the ministry, from among their prominent supporters, and
retires from the position when they resign. Considering that his duties
consist in presiding, like the Speaker, with strict impartiality, and in
a purely non-partisan supervision of private bill legislation, it is
somewhat strange that he should go in and out of office with the
cabinet, but in fact one hears no criticism of his conduct on that
score, largely, no doubt, because he always takes the Speaker as his
model. Since 1855 he has acted as deputy speaker, when the Speaker is
unavoidably absent,[263:1] and in order to prevent any possible
inconvenience from the absence of both of these officers from the House,
or of the Chairman of Ways and Means from the Committee of the Whole,
provision was made in 1902 for the election of a deputy chairman who can
fill the vacant place.[263:2]
[Sidenote: Other Officers of the House.]
The only other officers of the House that need be mentioned here are the
Sergeant-at-Arms, who acts as the executive officer and chief of police
of the House under the direction of the Speaker; the Clerk of the House;
and the Counsel to Mr. Speaker, who is a legal adviser, and has
important duties in connection with private bill legislation. It is a
curious survival that the Sergeant-at-Arms,[263:3] and the Clerk of the
House with his chief assistants,[263:4] are appointed by the Crown, and
hold office permanently. Their work is, of course, of a non-partisan
character, and they do not always belong to the party of the ministry
that appoints them. Sir Courtenay Ilbert, for example, the present Clerk
of the House, although a Liberal, was appointed by the Conservative
government, and not by way of promotion in the service of the House, for
he was at the time Parliamentary Counsel to the Treasury.
FOOTNOTES:
[251:1] The question where the Peelites should sit in 1852 was much
discussed among themselves. Morley, "Life of Gladstone," I., 422-23.
[253:1] Standing Orders 28-29, Com. Papers, 1905, LXII., 159. Under the
new rule adopted in 1906 the Speaker orders the lobby to be cleared, and
the members begin to pass through it at once.
[253:2] To refuse to do so has been treated as such a disregard of the
authority of the chair as will justify suspending the member. May,
"Parl. Practice," 10 Ed., 338.