This is the substance of W. R. G.'s letter. We cannot help thinking that a good deal of the confusion which he supposes to exist in the law exists, in fact, only in his own imagination. He writes about both bribery and undue influence as if they bad never been defined by the Legislature. This is an illustration of one of the commonest of all errors in criticising legislation. People construct in their own minds a theory like the one which W. R. G. propounds as "the theory of the law and of the public conscience," and then suppose that they have convicted the law of absurdity, or at any rate of confusion, if they can show by illustrations that it is difficult, or even impossible, to make rules which will give a practical result exactly equivalent to the theory. The way in which many people talk of the income tax is an excellent illustration of this. They assume some abstract theory as to what an income tax ought to be, and then put cases upon it which it is impossible to answer, and they infer from this, not that their theory is unsuited for practice, but that the law which does not square with their theory is iniquitous.
The truth is, as the smallest experience shows, that laws of all kinds are, and in the nature of things can be, only rough approximations to the theories on which they proceed. The ultimate sanction of all laws, physical force, is in itself so rough an instrument, and the evil of employing it is so great, that a law which gave full practical effect to almost any theory about human nature would be a greater evil than the evils it is meant to repress. All law makers have to draw lines, which may be called arbitrary, between actions which from a certain point of view may be regarded as being of much the same character. For instance, a man sees his father (from whom he will inherit a large fortune) drowning. He could save him by holding out his hand. Not only does he not hold out his hand, but he sends a servant whom he sees coming that way on an errand to some distance lest he should interfere. The father is drowned. This is no crime at all. One of the Peculiar People neglects to provide his child with medical attendance. The child dies in consequence. This is manslaughter, punishable with penal servitude for life. In Lord Macaulay's notes on the draft of the Indian Penal Code, an elaborate and, we think, a sound justification of this state of the law may be seen; but, if it is sound, it shows that law and morals on this subject cannot be made to coincide.
Applying these remarks to W. R. G.'s letter, we should say that what- ever may be the value of what he calls "the theory of the law and of public conscience"--and it seems to us to require various modifications not relevant to the present matter--it is a theory to which positive law can only approximate, and that not very closely. In order to convert his theory into law it would be necessary to enact somewhat as follows:-- "Whoever votes for any candidate from any motive other than a conscientious belief that such candidate is the person best qualified upon public grounds to sit in Parliament of all the candidates proposed at the election for which the vote is given, and whoever causes any person so to vote by presenting to him any such motive, shall be liable, &c." To enact any such rule would be equivalent to the institution of a political Inquisition. The inference is that W. R. G.'s theory of voting is one which cannot be enforced by law, but to which (assuming its truth) the law ought to have regard as far as is compatible with other considerations.
Let us before considering W. R. G.'s illustrations inquire how far this has actually been done. By comparing the law with the illustrations we shall be able to measure the real extent of the confusion supposed to exist upon the subject.
The law upon the subject is contained in the Corrupt Practices Prevention Act of 1854, 17 and 18 Vict., c. 102. Bribery is defined in section 2 and undue influence in section 5. The definition of bribery is too lengthy to be inserted here in full; but, without going into refinements, of which there are several, part of it may be thus analyzed: The modes by which bribery may be committed are giving, lending, agreeing to give, agreeing to lend, offering, procuring, promising or agreeing to procure, promising to endeavour to procure, and procuring. The things which may not be so given, &c., are money, any valuable consideration, offices, places, and employments. Now, apply this to W. R. G.'s illustrations:--"A man offers or promises B, an elector, a guinea 'a place under Government if he will vote for this or that candidate.' This is illegal." "A candidate bribes a constituency wholesale by subscribing any amount to public charities, parks, and building schemes." "Few dream of denouncing this, and certainly it could not well be made illegal." Thus far the law-- W. R. G. himself being witness--is right. "A man votes for his brother-in-law, whom he knows to be the most unfit and undesirable of the two candidates. Nobody blames him or wonders at him." Surely the law cannot interfere here. It might as well try to interfere with the formation of opinion as with private friendship, and declare a vote void because the voter had not studied political subjects sufficiently before he gave it.
"What was the kiss with which the Duchess of Devonshire bribed the butcher but undue influence in a most flagrant form? But no law could reach it and few judges would denounce it." It would have been bribery, if anything, and not undue influence at all; but it was not a "valuable" consideration, i.e. a consideration of which the value could be measured in money. However, W. R. G. admits that "no law could reach it."
So far, therefore, it would seem that the law is not shown by W. R. G. to be wrong. Indeed, it is obvious that it could not well go further than it does, and that it ought to go at least as far as it does. Of course there are subtle forms of bribery which escape it, but to try to catch them would be a greater evil than to let them pass.
The difficult part of the subject is undue influence, which W. R G.'s illustrations mix up with bribery. It is defined by section 5 of the Act already referred to as follows.--" Every person who shall, directly or indirectly, by himself or by any other person on his behalf, make use of or threaten to make use of any force, violence, or restraint, or inflict or threaten the infliction by himself or by or through any other person, of any injury, damage, harm, or loss, or in any other manner practise intimidation upon or against any person, in order to induce or compel such person to vote or refrain from voting, or on account of such person having voted or refrained from voting . . . shall be deemed to have committed the offence of undue influence." Apply this to W. R. G.'s illustrations. We pass over those in which he is, apparently, at one with the law. The following cases are adduced by him as not being undue influence, and as standing upon the same footing as those which are. It appears to us that most of them do fall within the statute, and that the law is much more extensive than WV. R. G. supposes. We slightly compress the illustrations for the sake of space. "The council of elders in the Scotch Church threaten to excommunicate, or deprive of the sacrament, persons who vote in a certain way." “Would that," asks W. R. G., "be held to be illegal intimidation?" We should say clearly it would. It is a threatening to inflict harm, and a causing of fear, which is intimidation.
"A reputed wizard threatens to afflict a man with rheumatism unless he votes in a certain way. Would that be intimidation?" Beyond all doubt. It is a direct threat to inflict harm.
Methodist class leaders threaten to exclude a man from his class, and speak to him "of being denied communion with his brethren in the faith," &c. "I apprehend," says W. R. G., "it would not and could not be made illegal; it would be called moral or mental, not spiritual pressure, however excessive and reprehensible. Yet wherein does it differ from that of the Galway priest?," We apprehend that it does not differ from the case of the Galway priest, and that it does fall directly within the terms of the Act. Of course, if the language was bona fide advice, and was not that sort of advice which is a command in disguise, it would be otherwise; but the question would be, Was the voter put in fear of a con- sequence which depended on the will of his class leader, or was he merely advised? and this might no doubt in practice be difficult to determine.
A man of great personal influence says to a disciple, "If you vote for A B you will do wrong, and your conscience will reproach you after- wards." This, says W'V. R. G., "is very like undue influence." It does not look to us at all like undue influence as defined in the Ac. It is mere advice. It is as if a man said to another, "If you eat that dish, it will disagree with you."
A woman tells a man she will not marry him unless he votes as she wishes. This, says W. R. G., is "certainly not illegal." That depends on circumstances. In ninety-nine cases out of a hundred such an act would be the mere exercise of a woman's undoubted right to change her mind. Yet it is easy to imagine cases in which it would be different. A man is about to marry the daughter of a candidate, and has actually gone to church for that purpose. Votes are of the last importance, and the candidate himself rushes in before the marriage has taken place and says to his daughter, "I command you to tell your lover that you will not marry him unless and until he has voted for me." The daughter makes a scene, but finally does as she is told. The lover votes right. What would IV. R. G. give for the father's chance of retaining his seat? He and his daughter together have put his son-in-law in fear, and got his vote by it.
A friend says to his friend, "I will never speak to you again unless you vote for So-and-so." This, says W. R. G., is not undue influence. The principle of the illustration is much the same as in the last case. In nearly every conceivable case such an expression would be merely a strong way of expressing a wish or of making a request, but let us take a different illustration. There is a large family of sons, all of whom have votes, and one of whom is practically dependent on the rest and on his father and uncles for all his prospects in life. The father, uncles, and elder brothers combine together to give notice to the youngest son that he must vote for their man under pain of having withheld from him every voluntary good office which it would have been in their power to do him. He has hitherto lived in their houses, he is to do so no more. They form the principal part of his society, and it is only through them that he has any society at all. They will never see or speak to him again. Surely this would be intimidation with the definition quoted. It would be a putting in fear. If the president of such a family council were himself the candidate, every one would say he ought to be unseated.
The plain truth is that what the law forbids is the use of threats, and it is by no means so difficult to decide in particular instances whether a threat has been used as it may be made to appear to be, by putting cases of advice which may look like a threat, and of threats which may be conveyed under the veil of advice. The possibility of doing this shows only what every one ought to know, that different classes of human actions ran into each other, and that there will often be room for discussion on the question whether a particular case falls on one side or the other of the line. This is true in relation to every subject whatever, but one of the most important functions of courts of justice is to draw the line in such cases, and there is no greater difficulty in drawing it in this case than in many others.
We may observe in conclusion that Mr. Justice Keogh is not the first judge who has decided as he did about spiritual threats. In "Rogers on Elections" two other instances of the same kind are cited, in one of which two priests were specially reported to the House by name, and were subsequently prosecuted by order of the House.
Pall Mall Gazette, July 18, 1872.