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have retained in civil prisons, after their removal from the criminal, the boot and thumbscrew ? Tender-hearted relatives would be more disposed to interfere and pay the debt of extravagant kinsfolk, if by doing so they could free them from the infliction of positive pain.
Modern notions have worked an improvement on the condition of the civil prisons. Yet the idea of the squalor carceris remains, and we are far from saying that it is not, when confined within proper limits, a reasonable one. There may be men whose immediate release from prison might really defeat the first claims of their creditors. But we think, nevertheless, that there is room for improvement in this branch of the law.
Take a case (and we may state that this is a case which has actually happened): a man becomes insolvent, and undergoes examination as a bankrupt. In that examination he does not appear to advantage. He hesitates and contradicts himself. He cannot account for the disappearance of funds—there is a story suspicious of perjury—and also of his bankruptcy having been brought about by fraud. What does this all amount to ? There is a suspicion that he has committed two crimes. If that suspicion amounted to a certainty, and the man stood a convicted criminal, mere imprisonment, and that for no long period, would probably be the result. But the man who labours under these suspicions, arising from his conduct upon examination, is sent to endure squalor carceris. One quite understands what a sentence of six or nine months means. The prisoner has violated the law, and the law must be vindicated. He has committed a crime, and must be punished to prevent him and others from doing the like in future. But the object of this civil imprisonment is different. It is simply torture. Funds are supposed to be concealed, and by the endurance of imprisonment creditors hope that their debtor may be at last induced to disclose where these funds lie hid. If six months' imprisonment will serve the purpose, he need have no more. If six years
will not bring about a revelation, then he must remain a prisoner longer. The man applies for cessio, the creditors oppose. In doing so all that is necessary is to produce the examination in bankruptcy, to point to the contradictions and equivocations which it contains. The Judge must refuse the benefit of cessio in such a case. And at first this may be right enough. But what takes place after that? There is an appeal from the Judge (say the Sheriff-Substitute) to the Sheriff. He adheres to the interlocutor reclaimed again. The law allows application for cessio to be made from time to time, and after waiting in prison for some months longer the applicant again presents his petition. But now the obstacles in the way of release are increased. Two judgments have been given refusing cessio, on the ground that the applicant's conduct renders him unfit to claim it. These judgments must have weight given to them. The applicant has no new story to tell; he adheres to
what he said at first; he says he has nothing further to add. His second application is refused. He must still drag out his weary days and nights in prison. A third petition meets with the same fate. The Judge to whom it is presented glances over the interlocutor sheet, and finds that four judgments have been given against the applicant. Even the latter must now admit that effect must be given to these judgments in so far as they stamp his original statement as false and unsatisfactory, and he can only plead that from the length of his imprisonment it must be now inferred that he has no other statement to offer; but the decided cases, as we shall show, render it clear that the Judge is not to listen to any argument founded upon the length of imprisonment, and advanced with the view of exciting compassion. Another refusal therefore follows. Nor does the fault lie with the Judges. He must administer the law as laid down in a series of decisions, to one or two of which we must now refer. These cases clearly establish that length of imprisonment is not to atone for the crime of concealing funds, although it may for that of extravagance. This was the opinion expressed from the Bench in the case of Lennox v. His Creditors (July 5, 1825, 4 Shaw, 144), where cessio was refused on the ground that there had been great defalcation of property unaccounted for, and strong grounds for suspecting a fraudulent concealment of funds; and the ground upon which this is justified is expressed in the report of the later case of Taylor v. The Creditors (July 6, 1837), where it is stated that it rests with the prisoner himself to remove the obstacle to his liberation, by making a full disclosure, and while he wilfully withholds this he is not entitled to ask the benefit of cessio. At an earlier period the House of Lords, in the case of Iright (June 1814, 2 Dow, 377), gave countenance to such a view.
There the argument that a creditor was not entitled to detain the debtor in prison till his complete and perfect innocence should appear did not prevail; and although it was admitted that the onus lay upon those objecting to the benefit of cessio being granted, that benefit was refused owing to the insufficiency of the petitioner's disclosures. In that case the application was made after an imprisonment of between five and six years. In a case which came under our notice lately imprisonment had lasted for about three years.
Now, it being borne in mind that in these cases of prolonged imprisonments the prisoner has rarely been proved to have committed a fraud, but in reality lies under a mere suspicion of having done so, is it unreasonable to suggest that by statute a termination should be put to what at present may legally be imprisonment for life? Statute has already regulated cessios, but it has left the question of granting or refusing the benefit entirely in the discretion of the Judge. That the Judge should have a certain amount of discretion is quite clear. But some such provision as we suggest would, we believe, be grateful to Judges, who at present are bound, in conformity with the decisions, most reluctantly, time after time, to refuse release to the captive.
ENGLISH AND SCOTCH COURTS UPON THE INTER
PRETATION OF THE BALLOT ACT.
(Communicated.) TAKING as our text the judgment pronounced last month by the Second Division, with three consulted Judges in the case of Robertson v. Brown and Others, we cannot help being struck by the antagonistic position in which the law of Parliamentary and Municipal Elections in Scotland is placed with reference to what has been decided to be law in England. In giving judgment upor Robertson's case, the Court followed the views previously adopted by a majority of the Second Division in Haswell v. Stewart, the Wigtown Election Petition; but since that first Scotch decision the English Court of Common Pleas have decided a case, that of Woodward v. Sarsons, in such a manner as to place the law of the two countries in direct opposition, or rather such as to lay down for each country a totally different interpretation of the same statutory enactment. It is, of course, much to be regretted that this discrepancy should exist in the authorities, especially where the issue is laid upon a question involving the rights and privileges of electors; for the interests of both countries would seem strongly to require, nay almost to demand, that the voter, when exercising his rights of franchise, should enjoy the same powers, and receive the same protection equally in England as in Scotland. In the interpretation of the Ballot Act, the view taken by the Scotch Court has been the stricter one; and in accordance with the decisions now given, the Scotch elector must comply with the directions of the regulating statute in many particulars wherein the English voter, availing himself of the privileges conferred in Woodward's ease, is permitted to exercise his untrammelled judgment, or rather, perhaps, it should be termed, want of judgment.
In the first case where these vexed questions arose, that of Haswell v. Stewart (1 R. 925), the Second Division, consisting of Lords Benholme, Neaves, and Ormidale, decided several points, whereof two were considered again last week. These had reference to the validity of a ballot-paper, (1) when marked with a straight line instead of a cross, and (2) when the cross was placed on the left of the candidate's name instead of on the right, as directed by the schedule appended to the Act. On the first point, the Court in Scotland unanimously held that a straight line was not a substantial compliance with the statutory requirements, and that the papers so marked must be rejected. Lord Neaves observed that
in directing a cross to be made, a mark was selected by the Legislature easy of execution by men of the most moderate intelligence, and moreover, perfectly neutral in its character. Further, that any mark materially different would be a deviation, and if such deviation were permitted by allowing ballot-papers marked only with a straight line to be counted, there appeared to be no reason why any other figures, such as circles or ovals, should not pass also. The opportunities afforded by such anomalous marks for depriving the Act of its efficiency in preserving secrecy, its leading object, are sufficiently obvious, even though extrinsic evidence of such purpose might be wanting, evidence, moreover, which would probably in any view be carefully suppressed or destroyed. At the same time, the Judges held that wherever the ballot-paper showed that there had been an attempt to make a cross, however imperfect, such imperfections and defects must not be permitted in themselves to nullify the vote.
On the second point, as to the position of the cross on the voting-paper, Lord Benholme dissented from the judgment pronounced, rejecting the votes so given. The majority of the Judges, however, were of opinion that as the statutory form of directions for the guidance of the voter contained a direction to “place a cross on the right-hand side opposite the name of each candidate for whom he votes,” a cross placed on the left could not be regarded as a reasonable compliance with the provisions of the Act, while Lord Benholme thought that so long as there was no doubt as to the candidate for whom the vote was intended, the ballot-paper should be counted. This was the law laid down in 1874, and in the following year, out of a municipal contest in Birmingham, arose the case of Woodward v. Sarsons (L. R. 10, C. P. 733), when precisely the same questions were brought up in a case stated by order of Mr. Justice Lush for the opinion of the Court of Common Pleas. That tribunal, although they had before them the judgment in Haswell v. Stewart, decided both these points in favour of the admission of the ballot-paper. Lord Coleridge, who delivered the judgment of the Court, drew certain distinctions between “directory” and “absolute" enactments, which it is not easy to comprehend in the face of section 28 of the Ballot Act, whereby “the schedules and the notes thereto and directions therein shall be construed and have effect as part of this Act.” His Lordship observes upon this, that though these rules and forms are to be construed as part of the Act, they are spoken of as containing. " directions,” and founding upon this distinction, the English Court is led to the conclusion that the rules in the first schedule and the forms in the second “are directory enactments as distinguished from the absolute enactments in the sections in the body of the Act:" “ an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially." In accordance with
It is very
this view, the Court, not finding in the body of the Act anything beyond the words in section 2,"shall secretly mark his vote on the paper,” and in section 28, shall “there mark his paper,” held that the only “absolute " enactment was as to secrecy, the mode of marking was merely“ directory." The only mark which voids the paper, in fact, is to be one by which the voter can be identified, and the English Judges were not disposed to regard any mark as suspicious unless there were evidence of some arrangement leading to à violation of the “absolute” statutory secrecy. difficult to see why two papers on which there was writing were in Woodward's case rejected; the report states that the Court yielded “ to the suggestive rule that the writing by the voter of the name of the candidate may give too much facility by reason of the handwriting to identify the voter.” But we venture to think that an equal facility and an equally suggestive consideration is opened up by the admission of every kind of mark on the ballot-paper where there is no extrinsic evidence of some suspicious and preconcerted plan on the part of the voter. If there be such secret arrangement, it is as likely, perhaps more likely, to be managed by means of marks on the ballot-paper different from the regular mark, than by the writing, which is rejected. On the second point, the division of the statute into “absolute
directory” portions presented a simple solution of the difficulty, as it is only in the form appended to schedule 2 that the direction as to marking on the right of the candidate's name is found. Accordingly, the Court, holding that the absolute enactment as to secrecy was fulfilled, thought the statute was satisfied, and admitted the votes.
It appears to us that the Scotch Court in Haswell v. Stewart took a view at once strict in upholding the statutory enactment, and liberal in the interpretation of its provisions. No such distinction as that taken by the English Judges is to be found in the opinions delivered in the Second Division. A single sentence from the reported opinion of Lord Ormidale in Haswell v. Stewart expresses very well the feeling, as we respectfully venture to think, with which the Court proceeded to consider and interpret the laws on these points. That sentence is as follows:-“There must be a reasonable and substantial compliance with the provisions of the Act. On the other hand, trivial or unimportant deviations, such as might not unfairly be held to be incidental to the performance of the piece of work in question by different individuals of different ages, habits, and conditions, ought to be disregarded, provided that the true object and intention of the voter is beyond serious doubt, and that there is not sufficient ground for holding, in a fair and reasonable sense, that there is any mark or writing on the ballotpaper whereby the voter can be identified.” There is here supplied a mode of interpreting this statute quite in accordance with the well-known rules adopted by all the Courts in the United King