1

fore it is of the utmost importance to regulate by whom, and in what manner, the suffrages are to be given. And the Athenians were so justly jealous [ *171 ] of this prerogative, that a stranger, who interfered in the assemblies of the people, was punished by their laws with death: because such a man was esteemed guilty of high treason, by usurping those rights of sovereignty, to which he had no title. In England, where the people do not debate in a collective body but by representation, the exercise of this sovereignty consists in the choice of representatives. The laws have therefore very strictly guarded against usurpation or abuse of this power, by many salutary provisions; which may be reduced to these three points, 1. The qualifications of the electors. 2. The qualifications of the elected. 3. The proceedings at elections.

1. As to the qualifications of the electors. The true reason of requiring any qualification, with regard to property, in voters, is to exclude such persons as are in so mean a situation that they are esteemed to have no will of their own. If these persons had votes, they would be tempted to dispose of them under some undue influence or other. This would give a great, an artful, or a wealthy man, a larger share in elections than is consistent with general liberty. If it were probable that every man would give his vote freely and without influence of any kind, then, upon the true theory and genuine principles of liberty, every member of the community, however poor, should have a vote in electing those delegates, to whose charge is committed the disposal of his property, his liberty, and his life. But, since that can hardly be expected in persons of indigent fortunes, or such as are under the immediate dominion of others, all popular states have been obliged to establish certain qualifications; whereby some, who are suspected to have no will of their own, are excluded from voting, in order to set other individuals, whose wills may be supposed independent, more thoroughly upon a level with each other. (31)

And this constitution of suffrages is framed upon a wiser principle, with us, than either of the methods of voting, by centuries or by tribes, among the Romans. In the method *by centuries, instituted by Servius Tullius, it [*172] was principally property, and not numbers, that turned the scale: in the method by tribes, gradually introduced by the tribunes of the people, numbers only were regarded, and property entirely overlooked. Hence the laws passed by the former method had usually too great a tendency to aggrandize the patricians or rich nobles; and those by the latter had too much of a levelling principle. Our constitution steers between the two extremes. Only such are entirely excluded, as can have no will of their own: there is hardly a free agent to be found, who is not entitled to a vote in some place or other in the kingdom. Nor is comparative wealth, or property, entirely disregarded in elections; for though the richest man has only one vote at one place, yet, if his property be at all diffused, he has probably a right to vote at more places than one, and therefore has many representatives. This is the spirit of our constitution: not that I assert it is in fact quite so perfect (c) as I have here endeavoured to describe it; for, if any alteration might be wished or suggested in the

(2) The candid and intelligent reader will apply this observation to many other parts of the work before him, wherein the constitution of our laws and government are represented as nearly approaching to perfection; without descending to the invidious task of pointing out such deviations and corruptions, as length of time and a loose state of national morals have too great a tendency to produce. The incurvations of practice are then the most notorious when compared with the rectitude of the rule; and to elucidate the clearness of the spring, conveys the strongest satire on those who have polluted or disturbed it.

(31) Property qualifications in electors are not now required in the United States, except in a very few exceptional cases; and the reasoning upon which they have been demanded in England, though accepted as more or less conclusive at an early day in America, has generally been repudiated since. It is not now believed that the possession of wealth necessarily places one above corruption, nor that the poor man would, as a matter of course, barter any political power or influence he may possess for the means of support. Whether the one class or the other is more open to temptation, may be regarded, perhaps, as a disputed question, but the classification that admits all the one class and excludes all the other, on any such ground as here stated by the learned commentator, is almost universally regarded in America as

vicious.

present frame of parliaments, it should be in favour of a more complete representation of the people. (32)

But to return to our qualifications; and first those of electors for knights of the shire. 1. By statute 8 Hen. VI, c. 7, and 10 Hen. VI, c. 2, (amended by (33) 14 Geo. III, c. 58,) the knights of the shire shall be chosen of people whereof every man shall have freehold to the value of forty shillings by the year within the county; which (by subsequent statutes) is to be clear of all charges, and deductions, except parliamentary and parochial taxes. The knights of shires are the representatives of the landholders, or landed interest of the kingdom: their electors must therefore have estates in lands or tenements, within the county represented: these estates must be freehold, that is, for term of life at least; because beneficial leases for long terms of years were not in use at the making of these statutes, and copyholders were then little better than villeins, absolutely dependent upon their lords; this freehold must be of forty shillings annual value; because that sum would then, with proper industry, furnish all the *necessaries of life, and render the freeholder, if he pleased, an independent man. For Bishop Fleetwood, in his chronicon preciosum, written [ *173 ] .. at the beginning of the present century, has fully proved forty shillings in the

(32) The following is the existing state of the franchise as stated by Messrs. Broom and Hadley:

Voters at elections, or persons enjoying the franchise, may with few exceptions be divided into two classes, viz.: voters in counties and voters in boroughs, whose qualifications are different, and principally depend upon the reform acts of 1832 and 1837.

Voters for counties comprise, first, the forty shilling freeholders, that is, those who have a freehold property in fee simple or fee tail of that value per annum. Secondly, any person possessing a freehold estate for life or lives of the annual value of forty shillings, but under 51. If persons of this class do not actually occupy the premises which qualify them, they must either have possessed the estate before June 7, 1832, or they must have acquired it by marriage, marriage settlement; devise, or by virtue of some benefice or office. Thirdly, any person who possesses an estate for life or lives of any tenure, of the annual value of 51. Fourthly, lessees and their assignees for a term originally created for not less than sixty years of the annual value of 51, or for a term not less than twenty years of the annual value of 501. Sub-lessees of these persons are also entitled to the franchise if they actually occupy the premises in question. Fifthly, the occupiers of lands rated at 127 per annum.

Voters in boroughs comprise the following classes of persons. First, the rated occupiers of dwelling houses within the borough of any value, who have duly paid their poor rates. This qualification, granted by the reform act of 1857, does not entitle a person to a vote by reason of his being a joint occupier of any dwelling house, but as it is expressly enacted that the franchises conferred by that act are in addition to and not in substitution of any frauchises already existing, this provision does not take away the right of voting conferred by stat. 2. Will. IV, c. 45, § 29, on all joint occupiers in a borough when the annual value of the house divided by the number of occupiers is not less than 101.

Secondly, the rated occupiers of premises other than a dwelling house of the annual value of 101; and in this case joint occupiers may vote if the premises divided by the number of occupiers be not less than 101. If it be less, none of the occupiers have any vote. Thirdly, the occupiers of lodgings, such lodgings being part of the one and the same dwelling house, and of the annual value of 107 if let unfurnished.

The above mentioned comprise the principal persons who are now entitled to the franchise; the privilege is also possessed by some persons as members of certain universities, who have a right of voting for candidates to be returned to parliament by such universities. And there are a few other persons, such as freeholders and burgage tenants in some cities and towns having certain estates, also freemen and liverymen in London, and freemen and burgesses by servitude in a few other places.

To the foregoing it may be added that aliens, persons under twenty-one years of age, or of unsound mind, or convicted of felony and undergoing a term of imprisonment, are incapable of voting.

The qualifications of voters in Scotland and Ireland are somewhat different from those in England. They are regulated mainly by the acts relative thereto passed in 1868.

(33) [The 14 Geo. III, c. 58, made the residence of the electors and the elected in their respective counties, cities and boroughs, no longer necessary. It had been required from both by a statute passed in the 1 Hen. V, 8 Hen. VI, c. 7, and 23 Hen. VI, c. 14. Yet in thr year 1820 it was determined by the house of commons that these statutes are only directory, and not conclusory, and the high sheriff of Leicestershire was censured for not returning one who had a majority of votes, because he was not resident within the county. The house declared him to be duly elected, and ordered the return to be amended.

reign of Henry VI, to have been equal to twelve pounds per annum in the reign of Queen Anne; and, as the value of money is very considerably lowered since the bishop wrote, I think we may fairly conclude, from this and other circumstances, that what was equivalent to twelve pounds in his days is equivalent to twenty at present. The other less important qualifications of the electors for tounties in England and Wales may be collected from the statutes cited in the margin, (y) which direct, 2. That no person under twenty-one years of age shall be capable of voting for any member. This extends to all sorts of members, as well for boroughs as counties; as does also the next, viz.: 3. That no person convicted of perjury, or subornation of perjury, shall be capable of voting in any election. 4. That no person shall vote in right of any freehold, granted to him fraudulently to qualify him to vote. Fraudulent grants are such as contain an agreement to reconvey, or to defeat the estate granted; which agreements are made void, and the estate is absolutely vested in the person to whom it is so granted. And, to guard the better against such frauds, it is farther provided, 5. That every voter shall have been in the actual possession, or receipt of the profits, of his freehold to his own use for twelve calendar months before except it came to him by descent, marriage, marriage-settlement, will, or promotion to a benefice or office. 6. That no person shall vote in respect of an annuity or rent-charge, unless registered with the clerk of the peace twelve calendar months before. 7. That in mortgaged or trust estates, the person in possession, under the above-mentioned restrictions, shall have the vote. 8. That only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. 9. That no estate shall qualify a voter, unless the estate has been assessed to some land tax aid, at least twelve months before the election. 10. That no tenant by copy of court roll shall *be permitted to vote as a freeholder. Thus much for the electors in counties. As for the electors of citizens and burgesses, these are supposed to be the mercantile part or trading interest of this kingdom. But, as trade is of a fluctuating nature, and seldom long fixed in a place, it was formerly left to the crown to summon, pro re nata, the most flourishing towns to send representatives to parliament. So that, as towns increased in trade, and grew populous, they were admitted to a share in the legislature. But the misfortune is, that the deserted boroughs continued to be summoned, as well as those to whom their trade and inhabitants were transferred; except a few which petitioned to be eased of the expense, then usual, of maintaining their members: four shillings a day being allowed for a knight of the shire, and two shillings for a citizen or burgess which was the rate of wages established in the reign of Edward III. (2) (34) Hence the members for boroughs now bear above a quadruple proportion

[*174]

(y) 7 and 8 W. III, c. 25. 10 Ann. c. 23. 31 Geo. II, c. 14. 3 Geo. III, c. 24. 2 Geo. II, c. 21. 18 Geo. 11, c. 18. (2) 4 Inst. 16.

(34) [Lord Coke, in the page referred to by the learned judge, says, that this rate of wages hath been time out of mind, and that it is expressed in many records; and, for example, refers to one in 46 Ed. III, where this allowance is made to one of the knights for the county of Middlesex. But Mr. Prynne's fourth Register of Parliamentary Writs is confined almost entirely to the investigation of this subject, and contains a very particular chronological history of the writ de expensis militum, civium, et burgensium, which was framed to enforce the payment of these wages. Mr. Prynne is of opinion that these wages had no other origin than that principle of natural equity and justice qui sentit commodum, debet sentire et onus. p. 5.

And Mr. Prynne further informs us, "that the first writs of this kind extant in our records are coeval with our king's first writs of summons to elect and send knights, citizens, and burgesses to parliament, both of them being first invented, issued and recorded together in 49 Hen. III, before which there are no memorials nor evidences of either of those writs in our historians or records," p. 2. The first writs direct the sheriff to levy from the community, i. e. the electors of the county, and to pay the knights, rationabiles expensas suas in veniendo ad dictum parliamentum, ibidem morando, et exinde ad propria redeundo. And when the writs of summons were renewed, in the 23d of Edw. I, these writs issued again in the same form at the end of the parliament, and were continued in the same manner till the 16 Edw. II, when Mr. Prynne finds the "memoriable writs," which first reduced the expense of the representatives

to those for counties, and the number of parliament men is increased since Fortescue's time in the reign of Henry the Sixth, from 300 to upwards of 500, exclusive of those for Scotland. The universities were in general not empowered to send burgesses to parliament; though once, in 28 Edw. I, when a parliament was summoned to consider of the king's right to Scotland, there were issued writs, which required the university of Oxford to send up four or five, and that of Cambridge two or three, of their most discreet and learned lawyers for that purpose.(a) But it was King James the First who indulged them with the permanent privilege to send constantly two of their own body; to serve for those students who, though useful members of the community, were neither concerned in the landed nor the trading interest; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute *2 Geo. II, c. 24, the right of voting for the future shall be [*175]

allowed according to the last determination of the house of commons concerning it. (35) And by statute 3 Geo. III, c. 15, no freeman of any city or borough (other than such as claim by birth, marriage, or servitude,) shall be entitled to vote therein, unless he hath been admitted to his freedom twelve calendar months before.(36)

2. Next, as to the qualifications of persons to be elected members of the house of commons.(37) Some of these depend upon the law and custom of parlia

(a) Prynne, Parl. Writs, i, 345.

to a certain sum by the day, viz: 4s. a day for every knight, and 2s. for every citizen and burgess; and they specified also the number of days for which this allowance was to be made, being more or less according to the distance between the place of meeting in parliament and the member's residence. When this sum was first ascertained in the writ, the parliament was held at York, and therefore the members for Yorkshire were only allowed their wages for the number of days the parliament actually sat, being supposed to incur no expense in returning to their respective homes; but, at the same time, the members for the distant counties had a proportionate allowance in addition. Though, from this time, the number of days and a certain sum are specifically expressed in the writ, yet Mr. Prynne finds a few instances after this where the allowance is a less sum; and, in one where one of the county members had but 3s. a day, because he was not in fact, a knight. But, with those few exceptions, the sum and form continued with little or no variation. Mr. Prynne conjectures, with great appearance of reason, that the members at that time enjoyed the privilege of parliament only for the number of days for which they were allowed wages, that being considered a sufficient time for their return to their respective dwellings. p. 63. But this allowance, from its nature and origin, did not preclude any other specific engagement or contract between the member and his constituents; and the editor of Glanville's Reports has given in the preface, p. 23, the copy of a curious agreement between John Strange, the member for Dunwich, and his electors, in the 3 Edw. IV, 1463, in which the member covenants "whether the parliament hold long time or short, or whether it fortune to be prorogued, that he will take for his wages only a cade and half a barrel of herrings, to be delivered by Christmas."

In Scotland the representation of the shires was introduced or confirmed by the authority of the legislature, in the seventh parliament of James I, anno 1427, and there it is at the same time expressly provided, that "the commissaries sall have costage of them of ilk shire that awe compeirance in parliament." Murray's Stat.

It is said, that Andrew Marvell, who was member for Hull in the parliament after the restora tion, was the last person in this country that received wages from his constituents. Two shillings a day, the allowance to a burgess, was so considerable a sum in ancient times, that there are many instances where boroughs petitioned to be excused from sending members to parliament, representing that they were engaged in building bridges, or other public works, and therefore unable to bear such an extraordinary expense. Pryn. on 4 Inst. 32.]

(35) [This act being merely retrospective, it was provided by § 27 of 28 Geo. III, c. 52, and 34 Geo. III, c. 83, that all decisions of committees of the house of commons, with respect to the right of election, or of choosing or appointing the returning officer, shall be final and conclusive upon the subject forever.]

(36) This is called the Durham act, and it was occasioned by the corporation of Durham having, upon the eve of an election, in order to serve one of the candidates, admitted 215 honorary freemen.

(37.) [Any person may be elected a member of the house of commons if not affected by one or other of certain disqualifications which depend upon the law and custom of parliament, or upon the statute law. Whence it appears that no person included in the subjoined list is 113

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[Book I ment, declared by the house of commons:(b) others upon certain statutes. And from these it appears, 1. That they must not be aliens born, (c) or minors.(d) 2. That they must not be any of the twelve judges, (e) because they sit in the lords' house; nor of the clergy,(f) for they sit in the convocation; nor persons attainted of treason or felony,(g) for they are unfit to sit any where. 3. That sheriffs of counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officers; (h) but that sheriffs of one county are eligible to be knights of another.(i) 4. That, in strictness, all members ought to have been inhabitants of the places for which they are chosen :(k) but this, having been long disregarded, was at length entirely repealed by statute 14 Geo. III, c. 58. 5. That no persons concerned in the management of any duties or taxes created since 1692, except the commissioners of the treasury,(1) nor any of the officers following, (m) viz.: commissioners of prizes, transports, sick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of Minorca or Gibraltar; officers of [*176] the excise and customs; *clerks or deputies in the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine licences, hackney coaches, hawkers, and pedlars, nor any persons that hold any new offices under the crown created since 1705,(n) are capable of being elected or sitting as members. (38) 6. That no

(b) 4 Inst. 47, 48
(d) Ibid.

(c) See page 162

(e) Com. Journ. 9 Nov. 1605 (g) Com. Jour. 21 Jan. 1580.

4 Inst. 47.

(f) Com. Journ. 13 Oct. 1553; 8 Feb. 1620; 17 Jan. 1661.

(h) Bro. Abr. t. Parliament, 7. Com. Journ, 25 June, 1604; 14 April, 1614; 22 Mar. 1620; 2, 4, 15 June, 17 Nov. 1685; Hale of Parl. 114. (k) Stat. 1. Henry V. c. 1. 23 Hen. VI. c. 15. (i) 4 Inst. 48. Whitelocke of Parl: ch. 99, 100, 101. (m) Stat. 11 and 12 W. III, c. 2. 12 and 13 W. III, c. 10. 6 Ann c. 7. 15 Geo. II, c. 22. (n) Stat. 6 Ann. c. 7. (7) Stat. 5 and 6 W. and M. c. 7.

eligible to sit amongst the commons: an alien born or naturalized, an idiot or lunatic if incurable, a person attainted of treason or convicted of felony, a peer of the realm or of Scotland, or a representative peer of Ireland, a judge of a superior court of England, (except the master of the rolls,) or of the court of admiralty, or in bankruptcy, or of a county court. The following officials likewise are disqualified: a metropolitan police magistrate, a recorder for the borough for which he is appointed, a revising barrister for any place within his district, a judge of Scotland or Ireland, any one ordained to the office of priest or deacon of the church of England, a minister of the church of Scotland, or any one in holy orders in the church of Rome. Sheriffs of counties and mayors and bailiffs of boroughs are not eligible in their respective jurisdictions, as being returning officers, but the sheriff of one county is eligible to serve as knight for another, or for any county of a city or borough within his county, provided the writ for the election is directed not to himself, but to some other returning officer.

No government contractor nor person having a pension under the crown during pleasure, or for any term of years, is qualified to be elected or to sit; nor is any person holding an office under the crown, created since 1705, capable of being elected or of sitting, though should he do so, an act of indemnity may perhaps be passed by the legislature.

Innovations on the above rule have, however, been made by successive statutes with a view to the requirements of the government and the conduct of the public service; ex. gr. as regards the vice-president of the board of trade, the president of the poor law board, the first commissioner of works, the vice-president of the committee of the privy council on education, and the postmaster-general.

It has been further enacted that not more than four of the principal, and four of the undersecretaries of state shall sit at the same time in the house of commons; that the seat of any member accepting the office of under-secretary to a principal secretary of state, there being four under-secretaries then in the house, shall be thereupon vacated; that if at any general election there are returned as members to serve in parliament a greater number of persons holding such office of principal or under-secretary than are permitted to sit and vote in the house, no one of such persons shall be capable of sitting until the number of persons returned as members and holding the same office as himself has, by death, resignation or otherwise been reduced to the number permitted by law to sit in the house; and that the like rules shall apply in all cases in which a limit is imposed upon the number of persons holding any other office who may at the same time sit and vote as members of the house of commons.

Lastly, if any member accepts an office under the crown, except an officer in the army or navy accepting a new commission, his seat is void; but such member is capable of being re-elected, provided the office be one created prior to the year 1705.]

(38) By Stat. 6 Ann. c. 7, § 26, the seat of a member is vacated if he accepts a place of honor and profit under the crown, in existence prior to 1705.

By the custom of parliament a member cannot resign his seat. If, however, he desires to 114