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I believe, if these powers were conceded, we should be able to reconcile two conflicting claims—the interest of the House, which would preserve a control over the proceedings, and the general interest of the public, that they should be immediate, cheap, and efficacious. The continuance of the other statutory tribunals before adverted to would then be unnecessary.
Appeals would be rare, as the facts, if properly sifted, would leave little chance of their success. Above all, the fear of an immediate and searching inquiry would operate to deter a resort to corrupt practices, as certain of defeat. The main objection would be the power of compelling witnesses to criminate themselves; but the proper power of giving indemnity might be accorded, as now exercised by commissioners. I would also enable the House, on a report being made by the trier that general and extensive bribery had prevailed at any election, to certify the report to the court of Queen's Bench, which should have power, unless the report were successfully traversed, to impose a fine on the delinquent constituency for the first offence; and for a second to pronounce a judgment of suspension of electoral rights for ten years. It may be said that this procedure would be unjust, as tending to punish the innocent with the guilty; but it is in accordance with the ancient spirit of our constitution, and with precedent. If a man were robbed, the hundred was formerly liable, unless the offender were detected, to make good the loss. If a house be burnt down or destroyed now, by a riotous and tumultuous mob, the hundred is liable for the damages to the party injured, on the principle that each man is bound, at his peril, to preserve the queen's peace. There is no doubt that a similar provision would actuate the well-disposed, but now inactive, electors to suppress bribery by every effort in their power. In fact, in the case of Westbury, as we have seen, the first recorded instance of a punishment for bribery, the borough was amerced. There has always been a great difficulty in punishing peccant constituencies after conviction, owing to the question being debated as one of party. In 1689 a proposal to disfranchise Stockbridge for proved corruption,
or to admit the neighbouring freeholders, was successfully resisted—the result of jealousy between the borough and county members. Subsequently, Shoreham, Cricklade, Aylesbury, and East Retford, were augmented in electors and area, to introduce a purer constituency, and Sudbury and St. Albans were disfranchised; but more recently other boroughs, equally guilty, have escaped, on the flimsy pretext that the personal indemnity promised to those who disclosed corrupt practices would be violated by the disfranchisement of the borough. It is desirable then, if this principle be adopted, that the law should be administered by a judicial tribunal.
In conclusion, I would propose as measures of preventionThat legal expenses should be defined, and expenditure controlled by a public officer, who should be bound to report any violation of the statute at the time of the return.
That the punishment of hard labour might be awarded to the briber on conviction, and that the bribed might purchase indemnity by disclosing the offence, and bringing to justice the offender; and that the costs should be placed on the ordinary party.
That the inquiry into the election and return should be, in the first instance, local, and that the trier should be armed with extensive powers, subject to an appeal to the House; and that constituencies should be punished, if bribery be proved to have extensively prevailed.
I fear that the observations I have made have been extended to too great a length, and that many of them might have been with advantage compressed into a smaller compass, but it is impossible to develop the abuses of the existing system without tracing them to their origin, or to propose remedies without, to some extent, combating the objections to them. I have studiously confined myself, in suggesting amendments, to those which are fairly the subject of discussion in this arena. The provisions for which I contend will be equally applicable, whether a different mode of voting be substituted for that now existing, or whether the franchise be extended to greater numbers of our fellow-citizens, or new divisions of political power be contemplated. I am convinced that, until the enactments of the legislature be brought into harmony with pub. lic opinion, and the administration of the law be purged of all taint or suspicion of political leaning, or of favouring the briber as against the bribee, corruption, the stigma and the bane of constitutional government, will be perpetuated. That it is necessarily inseparable from such a system if vigorous measures of repression be resorted to, and the action of a healthy public opinion be brought to bear on it, I strenuously deny. We have the authority of M. de Tocqueville and other eminent French jurists, that, during the short duration of constitutional government in France, though the influence of the government was brought to bear on the elections, corruption, in the sense of direct money bribery, was unknown. In the other constitutional governments of Europe it scarcely exists, and in this I believe it may be gradually diminished, if not ultimately extinguished. The great orator, statesman, and historian, who has recently passed away, has remarked, that the history of parliamentary corruption in England remains to be written. Let us hope that he who undertakes the task of recording the fall of parliamentary venality under the vigorous action of that House, which spared no pains to detect or punish its own speaker or its members, may also, at no remote period, be able to narrate how, when public opinion was seconded by proper laws efficiently administered, electoral corruption was extirpated as completely as the other forms of venality which, in successive periods of our history, have formed the disgrace of our annals, and the reproach of our constitution.
XIII.-ON THE SCHOOLS OF LEGISLATION.
BY CLEMENT T. SWANSTON, Esq., JUN.
[Read 6th February, 1860.]
I PROPOSE in this paper to submit to the consideration of the Society some few suggestions which may assist in classifying and distinguishing the schools of legislation, according to the only principle of classification which I consider to be of any practical utility. In doing this it will be expedient to use the word “legislation ” in a very large-perhaps its largest-sense, and, looking at the matter from a lawyer's point of view, we shall regard each system of which we may have occasion to speak, as embracing the whole body of the laws which at any given time the tribunals are called upon to enforce, without reference to the distinction between laws expressly laid down by statutes or edicts or codes, and laws which, though equally binding, are not declared or expressed until their violation or the conflict of litigants requires them to be enforced.
The only principle of classification which I think can be usefully applied to the schools of legislation, is the principle of classification according to time-time, not with reference to human progress or mere chronological sequence, but time with reference to the progress of nations. That there exists a common life in nations ;—that in the history of all those with which we are acquainted, there are displayed in the manners and habits of life the prevalent feelings and beliefs, and the institutions and forms of government, a character peculiar to their earlier ages, another peculiar to the middle period of their existence, another peculiar to their later ages ;-that these characters are in different nations so similar, that every nation in an early stage of its existence, much less nearly resembles itself in a later stage than it does other nations far distant in time and place, which are yet in the same infancy; -that it is possible to draw out a scheme of national life, not
one through which it is necessary that any given nation should pass, but an ideal scheme which would embrace the stages and forms of existence which, from the comparison of the various recorded developments, however imperfect, we should expect to find exemplified in the progress of every nation, the more fully in proportion to the perfection of its development;-all these are propositions which, though it would be inappropriate here to prove them, it will be convenient to bear in mind.
The inquirers who have employed themselves in tracing the origins of nations, have in every instance found a point beyond which it is vain to carry their research. It is not so much that they are baffled by the absence of records, as that they are debarred by the absolute' incapacity of the human mind from comprehending the origin of society. We may trace indeed the elements of almost every nation to forests and pastures, where they may be found living separate according to their own customs, under their own laws; but there our inquiries must cease, and all that is permitted to those who will try to penetrate further back, is to dress up some idol of their imagination-some wonderful savage who invented social order and laws, and died the Father of Civilization. These speculations were common enough in the last century ; but the wiser historians of our age embrace the grand and necessary, though it may be humiliating, axiom of Niebuhr, " That all absolute beginning lies out of the reach of our mental conceptions, which comprehend nothing beyond development and progress;” and thus the sources of human society must be left like those of the Nile, not unexplored, but undiscovered.
However far back we carry our researches, we always find certain customary laws in force. Whence come they? Let Lord Bacon answer—“There are in nature," says he, "certain
fountains of justice whence all civil laws are derived; but as streams and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, and through which they proceed from the same fountains.” But