The Intimidation Cases.

(From the Wangaui Herald, March 15, 1882.)

It was a notable rending of the heavens that justice might be done which occurred in the Election Petitions Court on Thursday last. The interval between then and now leaves no room for suggesting the existence of any lingering excitement (attributable to the somewhat startling nature of the Judges' deliverances) such as might affect a fair review of the case, although all time cannot efface the recollection of their demeanour. There sat the Chief, wearing the broad phlyacteries of his profession, and lifting up his eyes and thanking God he was not as other men are: conversant with the details of election contests; and yet the good man's voice trembled when:—discarding, in the first instance, the whole of Askew's evidence:—he suddenly declared he believed Askew's story of the cheque which Askew himself admitted the alleged drawer knew nothing at all about ! And, then the other:—the politician, who had, in the midst of an unfinished Parliamentary quarrel, been made a Judge:—who denounced old soldiers along with public-house loafers as an untrustworthy class:—the Judge who scorned to be controlled by English decisions:—what shall we say of him? This is the Judge who, in the end, said that the Petitioners' case had required no answer, but had not so ruled, thinking it was only right "to allow Mr Anderson to deny on oath the charges brought against him." It was clear from the first that Judge Gillies had not outlived the tender recollections of a hundred heated fights.

Passing from the Judges to their judgments, and taking briefly the cases as reviewed by them, it seemed hardly consistent with judicial impartiality for the Chief Justice to confess that even before the evidence was opened he had formed an impression from the particulars delivered by the Petitioners that the alleged charges of intimidation could not be supported. Here then we find a Judge admitting a preconceived idea of an important branch of the Petitioners' case, and one which, from views of both Judges upon the evidence of intimidation being brought forward, indicated a preconcerted ruling on the subject. We make no doubt that the opinion of the Judges expressed during the case and at its close with reference to these instances of intimidation is utterly wrong and decidedly opposed not only to the drift, but to the express language of English decisions (which with all respect to the superior wisdom of Mr Justice Gillies are likely to be considered as having some weight). We put aside, as indicative only of a want of ordinary perception, the remark of Judge Gillies that what would be considered "intimidation" in the old country would not be deemed intimidation here, and we proceed to deal with the opinion of the Chief Justice. He treated the statements made by Anderson as merely an "expression of opinion" to voters as to the probable result of voting against a side which (it was said) included the principal persons in the town. It is not often that a canvasser has so able an apologist, but it is begging the question to treat what happened as amounting to such a philosophical theme. The Judges had intimated as much before Anderson gave his evidence, and the coincidence was at least curious either that Anderson's testimony should with such fidelity confirm the Judges' ideas of what must have occurred, or that the Judges' views should so aptly anticipate Anderson's evidence. But what was the evidence itself ? It was ruled (where there was really no room for doubt) that Anderson was an "agent" for Mr Watt in the election, and it was abundantly proved that he acted as as one of Mr Watt's committee. Anderson, according to the evidence of W. H. Flyger, sent through him a message to G. Flyger, who was considered a possible gain to the Watt side, that the committee had "spotted him." This expression, which is most significant and important, is sworn to also by G. Flyger as used by Anderson in his subsequent interview on the subject, and is adopted and quoted by page ii the readiness and unanimity of the Judge Gillies in his decision. The message further expressed that the members of the Watt committee:—a specific number was mentioned by W. H. Flyger as stated by Anderson and denied in evidence by Anderson, but the number is immaterial, they were known to be numerous, and they claimed to be highly "influential":—would "withdraw their custom" from G. Flyger if he voted against Mr Watt. Mr E. Howe, who was said to have been present, and is pronounced to be "deaf," did not hear such a conversation, and could not even remember being present at the interview between Anderson and W. H. Flyger, although Anderson himself admits the interview, as also the subsequent meeting before the polling day with G. Flyger, who himself testified to the same effect and considered it "a threat." Now let the circumstances of this representation or "expression of opinion" be considered. Mr G. Flyger was in business, his brother being a salesman in his employ; he was rightly or wrongly considered by Anderson as a probable supporter of Mr Ballance's; it was admittedly Anderson's object if possible to detach his rote. In representing that the Watt Committee were an influential body, and had "spotted" Flyger, what possible object could Anderson have had but to influence Flyger's vote? And, if so, was such a representation "undue influence" or not? The Judges held it was only pointing out the probable and natural consequences of Flyger's acting one way or the other; but can such advice be considered as amounting to no more than a suggestion of what (to use an extraordinary phrase of the Chief Justice) "in the ordinary course of nature might be expected to take place," when it is conveyed along whith a statement that an influential body of men had "spotted" him, and that the consequence of his voting against Mr Watt would be the loss of business? Darwin has not yet discovered that "spotting" is in "the ordinary course of nature," and voters in the future will hardly (despite Sir James Prendergast's decision) think it natural to be so tatooed. Viewed by the experience of ordinary "human nature," which is probably the better guide, the intimation cannot be interpreted as other than what G. Flyger himself treated it:—a threat. Of course the same words would not amount to intimidation in every other set of circumstances. For instance, to a retired merchant, an annuitant, a bankrupt, or a judge they would be innocuous or absurd; but in the present case it would be hard to devise any sort of representation more craftily calculated to unduly influence the particular voter's mind. It may be that it did not succeed, but that is not the test; it may be that the Watt Committeemen did not withdraw their custom:—they may, from motives of policy, have seen that the fact of withdrawing custom would confirm the threat, more especially as this episode was talked of as soon almost as it occurred; it may bo that these "influential" people considered Anderson's representation effectual and consequently such as should be recognised and followed up; or, it may be that Anderson, in view of the effect upon a Bench susceptible to fine clothes, went specially and ostentatiously to Mr G. Flyger's for a suit in which to give his incorruptible evidence. The question as to whether the representation was "intimidation" or not, is only to be judged by a consideration of its immediate surroundings and the effect it was calculated to have on G. Flyger's vote. While the attempt may have been a lamen table failure (as all such attempts deserve to be) it may yet have been as successful as intended and consequently more closely hid from detection. The point is not affected by the actual results as at present developed, for these were and are capable of infinite variation, but the point must be decided strictly by the intention of the person making the representation as reflected from the immediate circumstances. Viewed in this way, we believe no unprejudiced mind can come to any conclusion but that such conduct as Anderson's is within the mischief page iii which the Act was intended to prevent.

One case is enough for the purpose, and relying on Flyger's case of attempted intimidation, it is unnecessary to refer in detail to Blick's, which was certainly weaker, although his evidence, as also that of Mrs Moult, was important in directly corroborating the evidence of the two Flygers. This leads us to remark upon the extra-ordinary manner in which the Judges dealt with the whole body of evidence. They treated each case separately; they weighed what the Flygers said against what Anderson said on the same subject; they weighed what Blick said against what Anderson said; they weighed what Mrs Moult said against what Anderson said; but it did not seem to occur to them to consider that while Anderson relapsed into negatives whenever the evidence on the other side approached the dangerous, there were several witnesses who substantially confirmed the charges he denied. In any ordinary case we believe the aggregation of proof would be the rule for deciding upon the evidence. We would not refer to the attempt made to damage Mrs Moult's evidence were it not that by passing it by we might be said to ignore an important incident. The girl, called apparently for the purpose of discrediting Mrs Moult, so far as her evidence went, stated that Mrs Moult had told her accurately enough what she (Mrs Moult) stated in evidence as the message given by Anderson in the shop about the Watt Committee going against Mr Moult in business if he did not vote for Watt; but the girl also deposed that Mrs Moult had asked her if she (the girl) would stick to what she (Mrs M) had heard:—the girl alleging that she had not heard Anderson say anything, and that (as far as she was aware) she never saw Anderson in the shop at all; although, as to that, Anderson himself swore he saw a girl "with her sleeves tucked up" passing through the shop when he was talking to Mrs Moult. It will be seen from this that the cor-roborative evidence of intimidation is really further confirmed and not weakened by the evidence on the Respondent's side.

Passing then from the cases upon intimidation, which we make no doubt would before English Judges, or Colonial Judges guided by decisions expressly made part of an Act, be held sufficient to support the petition on that ground alone, wo pass to the cases on Bribery.

The Bribery Cases.

(Wanganui Heraid, March 10.)

In connection with the evidence relating to bribery, we would not rely on the unsupported testimony of Mrs Igoe as conclusively proving an act of bribery, although there is much in the admitted canvass of Anderson in that quarter to support indirectly his activity in the other instances; nor would we treat as less susceptible of a jocular interpretation than a serious one the interview with the shoemakers; but we must consider as important in itself, and as tending to confirm other testimony bearing on the same subject, the evidence given by Friend. He said that at an interview, which is admitted to have taken place, Anderson, following up a discussion as to the chances of the old soldiers' claims being recognised by Parliament, stated "if Mr Bryce doesn't take your case before the House next session, T will guarantee you £5 out of my own pocket." It must be borne in mind that Mr Bryce although not an elector was openly throwing his weight into the scales for Mr Watt, who was an avowed supporter of the Ministry of which Mr Bryce was a member. Anderson in his evidence stated that, after such a preliminary discussion as referred to by Friend, he said "if Mr Watt gets into the House and you can prove he does not bring the claims forward, I will forfeit a £5 note." Anderson added that Hatrick was present while they were talking about the £5. Hatrick in his evidence stated in reference to the bringing forward in the House of the claims of the old soldiers that Anderson promised "if Friend could prove that Watt didn't keep his word in that respect he (Anderson) would forfeit a £5 note out of his own pocket." page iv It will be observed that the only difference between the statements of Friend on the one hand and Anderson and Hatrick on the other, is that Mr Bryce's name is used in the one instance and Mr Watt's in the other. Of the two versions we are content to accept that of the witnesses for the Respondent, and we ask what was the representation but a palpable bribe? Friend was an old soldier with a grievance; he was a groom, and impressed with the importance of getting his claim brought before the House of Representatives, and was not above the reach of a wager,:—£5 or his case to be enquired into! It matters not that Anderson's "guarantee," or offer to "forfeit" £5, was not binding in any legal or indeed moral sense. Present success is the object to be attained in such cases, future performance is perhaps not Always considered by the person making the overture as equally important. His Honor the Chief Justice said "Friend's story was unnatural and inconceivable," but this can hardly be other than one of those mistakes which both Judges made but did not always correct in the course of their judgments, for it will be seen that the two versions are essentially identical except as to the name of the champion. The Chief Justice goes on to remark that the statement was "nothing more than Anderson enforcing his trust in what Watt would do." Well, let us take it so. Was the Chief Justice so dense as not to see that the backing with money a canvasser's trust in his candidate doing what an elector wished to be done, necessarily involves, as a first condition to the test of the matter, the return of that candidate? And this was exactly the point to be decided by the votes of the electors, of whom Friend was one. Supposing the terms capable of legal enforcement, Anderson was to pay Friend £5 if Mr Watt did not bring forward the old soldiers' claims in the House. Unless Mr Watt got there he cannot bring forward the claims. It was an inducement therefore to Friend to help to put Mr Watt in: once there Friend's claim would be dealt with or he would get £5. Is this interfering with the purity of election or is it not? It will be remembered that there is no question of credibility here. We accept the evidence on the subject adduced in the course of the Respondent's case and also the Judges interpretation of that evidence. As to the "Second Daniel come to judgment" in the person of Mr Justice Gillies, he seems to have accepted Friend's verson that it was the name of Mr Bryce which was mentioned, but this is immaterial. The same Judge went on to interpret what occurred in much the same language as his colleague; namely that what Anderson said was "a guarantee of Watt's sincerity and truthfulness," and he adds, "this is very different to saying 'I'll give you £5 if you will put Watt in.'" It is hardly credible, indeed:—to apply the Chief Justice's language to his learned brother:—it is "unnatural and inconceivable "to suppose that Mr Justice Gillies intended to be understood as meaning that a bribe must take such a coarse form. Surely his experience of contested elections does not lead him to such a conclusion. At any rate, all the English decisions (and we must apologise for mentioning them again in connection with his Honor's name) and the Act itself are quite at variance with such an interpretation of bribery. But, if his Honor the Puisne judge will reflect:—pause only one moment:—and consider that the return of Mr Watt was presented to Friend's mind as ensuring either his grievance being ventilated or the payment of £5, then, perhaps, his Honor will see that "there is something in it" after all. One more point with reference to Friend's case, and this time in respect of the remark of the Chief Justice on the evidence which was concurred in by Friend, Anderson, and Parkes:—all, indeed, who testified on the point:—namely, "Friend's admission," when questioned afterwards by Anderson in the presence of Parkes, "that no bribe had been offered to him (Friend.)" Is it come to this that page v Judges are to seize on statements of grooms that what occurred and what was before them as positive facts, was or was not a bribe? If that be so, then "fie upon the laws" of England. We have been under the impression:—we have lived under it, and have some hopes yet of dying under it:—that the duty of the Court is to decide upon the legal effect of facts, and that if certain facts amount in law to a bribe it matters nothing what other people call it. "This is Anderson's soothing syrup," and although a man is nearly killed (metaphorically) by drinking it in but says afterwards that it was Eno's Fruit Salt:—a slightly stimulating and effervescing but non-intoxicating beverage, then all the College of Apothecaries cannot be believed in testifying that it was prussic acid?

Summary.

(Wanganui Hehald, March 17.)

As a Court would:—or perhaps we ought to say should—rule upon a proceeding or petition which comprised various ground, some of which were proved, it is unnecessary for the purposes of the enquiry to consider further the instances referred to in the evidence before the Election Judges. The two cases already dealt with, or:—for that matter:—one alone, should have sufficed to avoid the return; but the other acts of alleged bribery which engrossed most of the time of the Court are in themselves deserving of attention, if only as affording interesting studies of evidence. We refer, of course, to the incidents mentioned in the evidence of Middleton and Askew. We quite Concur in the view expressed by both Judges that the evidence of Askew was unreliable. We by no means admit that it was wholly untruthful. We think it was given in such a way, and involved so many contradictions, that no reliance can be placed on any part of it, but that it must be discarded altogether. A very different estimate, however, is to be formed from a careful consideration of Middleton's evidence and the testimony of the witnesses called by the Respondent against him. The Chief Justice and Mr JusticeGillies both concurred in rejecting Middleton's testimony, the Chief Justice treating "Middleton and Askew's evidence together" and adding "it was not necessary to go further into the matter." Mr Justice Gillies also coupled Askew and Middleton together and dismissed them as "witnesses utterly devoid of credit." We presume that His Honor meant something else than the ordinary meaning of his words. He was speaking no doubt under the pressure of some excitement and most likely did not intend to base his rejection of the evidence upon the fact that Askew and Middleton were men who had no credit left. He probably meant that their statements were unworthy of belief. But we venture to think, apart from the proof necessary to support the petition, that their Honors were wrong in so summarily dismissing Middleton's evidence, and we will endeavour by a short analysis to supply the omission of the Judges in that respect. As before stated, we discard Askew's evidence altogether, but in so doing we reject much that otherwise would corroborate Middleton's story, as also much that would be at variance with it. There is as much one way as the other, and nothing is lost by treating both Middleton's evidence and that of the Respondent's witnesses on the same subjects, apart from Askew's statements. Much was made of the reduced circumstances of Middleton, and personal appearances were decidedly against him. He looked, and confessed to be, what Mr Justice Gillies with such unction termed "an hotel loafer," although not "an old soldier." But unless some new rule of evidence is to be introduced whereby persons who are poor, or dissipated, or unfortunate, who have no friends and few acquaintances, are to be considered as incapable of giving evidence in courts of law, we do not see that testimony, even by the outcasts of society, should be otherwise dealt with than in the ordinary way, regard of course being had to the probabilities of each case. Now, one of the strongest probabilities in such a case as Middle- page vi ton's is that, being of the class to be approached by an active and astute canvasser, the man was just the sort of person to be influenced by a bribe.

The fact of an interview between Middleton and Anderson on the polling day is admitted on all hands. The conflict is as to what was said. Middleton's evidence is that he told Anderson the purport of a message which had (rightly or wrongly) been delivered to him the night before to the effect that if he (Middleton) would vote for Watt and use his influence with the discharged soldiers Anderson would give him some book-keeping and other work. According to Middleton, this was assented to by Anderson, who asked him to go into the hotel they were then opposite and have a drink. All this is denied by Anderson, who is corroborated by a person named Stretch, with whom Anderson (according to their joint evidence) approached Middleton, who is said to have volunteered the statement that he "had just voted for Watt, and was working for him." This, on the other hand, was categorically denied by Middleton. Anderson and Stretch concur in saying that Middleton was present with them in the hotel, and so far agree with his account of the transaction; but Anderson said he did not ask Middleton to drink, although Stretch corroborates Middleton in saying that he had a drink at the same time as the others.

A curious episode in connection with the evidence on this point deserves to be referred to. At the conclusion of the Respondent's case, in the course of which denial had been given to the statement by Middleton, that the bribe was offered without Stretch being present, the Petitioners' counsel asked leave to call two witnesses who were able to prove that Middleton was correct in saying that he had a meeting with Anderson outside the public-house door when Stretch was not there, but the Judges refused permission to examine such witnesses.

The relative truth or falsity of Middleton or Anderson, remains to be tested by other incidents. The witness Stretch, who knew Middleton in former days under happier auspices, was unable, when questioned by the Respondent's counsel, to say anything against his genera 1 character for veracity.

The next event in order of date was the significant one of Middleton asking for a loan of £2 from Anderson, which, of course, was not for a moment entertained. The election was over, and a petition threatened, and it clearly would have been a very unwise thing for Anderson to pay up; besides, the security was so wretchedly bad that to concede such an application would have been a reflection on Anderson's business reputation. An incident in connection with this application, however, deserves honorable mention as qualifying for the detective service. It seems that Askew, before alleged to have been the medium of the message as to work from Anderson to Middleton, was naturally enough made the medium for the application of the £2 by Middleton to Anderson, and that the conversation turning on the rumored charges to be brought against Anderson for his doings in connection with the election, a number of questions of the most formal kind were propounded to Askew, who, of course, was ready to swear on the Bible, or anything else, that nothing improper took place. During this interview, Brockman, who is described as Anderson's "manager," was in hiding, and took a note in pencil of questions and answers, which he afterwards transcribed into ink. This Brockman deserves to be remembered, for assuredly something further will be heard of him, and, in case of any doubt as to his whereabouts, it may be reckoned a safe thing to look for him in the vicinity of a keyhole. The questions and answers were significant and exhaustive in themselves. They seem indeed worthy of a place in "A complete guide to contested elections." Take, as a sample, the one which related to the alleged attempt to bribe Middleton. (The question is put by Anderson, and taken down by Brockman in secret.) "Did I ever, directly or indirectly, through you page vii offer any sort of employment to Mr Middleton?" Seeing that no one had (as far as is known) ever informed Anderson up to this time that Middleton had invented such a story, it is somewhat significant that negative evidence should be attempted to be made (and duly recorded by Brock-man:—behind the scenes) about a conversation such as Anderson swore in Court never took place ! This, however, seems to have escaped the lynx-eyed Chief Justice, and would, if it ever occurred to the mind of Mr Justice Gillies, have probably been treated as "devoid of credit."

We admit that in the end the charge of bribery alleged to have occurred in Middleton's case was not sufficiently proved. It was not necessary that it should, in view of the clearly substantiated charges of intimidation and bribery in the cases of Flyger and Friend, but we have referred to it as throwing a side-light on the evidence of Anderson which is open to criticism in many points, even where least strongly in conflict with the other side. Weighed against the concurrence of testimony relating to his conduct during the contest, Anderson's evidence is deprived of any importance other than as a warning to others who would "run" a candidate with what at first appeared only a desperate chance of success. It will be well that the triumph of the Respondent should not be taken as a precedent for future guidance in elections. We are convinced that with a more temperate enquiry, guided by principles of law less startling in their originality than those laid down by the Judges, a different result would, in not dissimilar circumstances, be attained.