46 2. Next, as to the qualifications of persons to be elected members of the house of commons.45 Some of these depend upon the law and custom of parliament, declared by the house of commons ;(r) others upon certain statutes. And from these it appears, 1. That they must not be aliens born, (8) or minors. (t) 2. That they must not be any of the twelve judges, u) because they sit in the lords' house; nor of the clergy, (w) for they sit in the convocation; nor persons attainted of treason or felony,(x) 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;(y) but that the sheriffs of one county are eligible to be knights of another. (2) 4. That, in strictness, all members ought to have been inhabitants of the places for which they are chosen ;(a) but this, having been long disregarded, was at length entirely repealed by statute 14 Geo.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, (b) nor any of the officers following, (c) (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 Gibral s See pag. 162. t lbid. r 4 Inst. 47, 48. y Bro. Abr. t. parliament, 7. Nov. 1685. Hal. of parl. 114. z Com. Journ. 25 June, 1604. 14 Apr. 1614. 22 Mar. 1620. 2. 4. 15 Jun. 17. 4 Inst. 48. Whitelocke of parl. ch. 93, 100 101. a Stat. 1 Hen. V. c. 1. 23 Hen. VI. c. 15 b Stat. 5 & 6 W. & M. c. 7. c Stat. 11 & 12 W. III. c. 2. 12 & 13 W. III c, 10. 6 Ann. c. 7. 15 Geo. II. c. 22. under any other description than inhabitants paying scot and lot. But in burgage tenure be roughs, of which there are about twenty-nine in England, no length of possession is necessary. And any number of these burgage tenure estates (consisting of some tenement, house, or spot of ground, upon which a house has formerly stood), may be purchased by one person, who, at any time previous to a contested election, may be conveyed to as many friends, each of whom would be entitled to vote. But portions of a burgage tenement, split within time of memory, for election purposes, do not legally carry with them a right to vote. (See Heyw. Boro. Elect. Law, 279. 1 Doug. Elect Cas. 224.) Chitty. (45) See Com. Dig. Parliament, D. 9. The elected must not be denizens or naturalized aliens, (12 & 13 Will. III. c. 2 1 Geo. I. st. 2. c. 4.) nor papists, 30. Car. II. c. 1. traitors, prisoners in execution for debt, (Sim Elect. Law, 33.) felons, outlaws in criminal prosecutions, idiots and madmen, deaf and dumb persons, nor peers. (Com. Journ. 1623. 1625.) But by the act of union, 39 & 40 Geo. III. c. 67. a peer of Ireland, not elected to sit in the house of peers, may be returned a member of the house of commons, but shall not have the privilege of peerage. (46) In 1785, a committee of the house of commons decided that a person who had regularly been admitted to deacon's orders, was capable of being a member of that house. (See 2 Lud. 269. The celebrated case of Mr. Horne Tooke, who had taken priest's orders early in life, but who had long given up the clerical character, brought this question fully before the house, and produced a legislative decision which sets it finally at rest. This gentleman having been returned for Old Sarum, and taken his seat, a committee was appointed to search for precedents respecting the eligibility of the clergy for admission into the house of commons, who reported that there are few instances of returns with particular additions till the 8th of Hen. IV.; for then the practice of returning citizens and burgesses by indentures annexed to the writs first prevailed, yet they find five with the addition of clericus. In the course of the discussion on the question, the prime minister proposed that a bill should be brought in to declare the clergy ineligible, and by that means to remove all doubts in future. The statute 41 Geo. III. c 73. was accordingly pass ed, by which it is enacted that no person having been ordained to the office of priest or deacon, is or shall be capable of being elected to serve in parliament as a member of the house of com. mous, and if any such person shall sit in the house he shall forfeit 500 a day, and become incapable of holding any preferment or office under his majesty. But the statute was not to extend to members during that parliament. Chitty (47) Two decisions of committees are agreeable to what is advanced in the text. In the first it was determined that the sheriff of Berkshire could not be elected for Abingdon, a borough within that county (1 Doug. 419.) in the second, that the sheriff of Hampshire could be elected for the town of Southampton within that county, because Southampton is a county of itself, and is a independent of Hampshire as of any other county. 4 Doug, 87. Chitty. But elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall [178] happen after the delivery of the writ. The county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and, in all such cases, ten days' public notice must be given of the time and place of the election. 57 And, as it is essential to the very being of parliament, that electior should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. For Mr. Locke (r) ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to a dissolution of the government, "if he employs the "force, treasure, and offices of the society to corrupt the representatives, or "openly to pre-engage the electors, and prescribe what manner of persons "shall be chosen. For thus to regulate candidates and electors, and new"model the ways of election, what is it (says he) but to cut up the go"vernment by the roots, and poison the very fountain of public security?" As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not to return till one day after the poll is ended." Riots likewise have ron Gov. p. 2. § 222. (56) Com. Dig. Parliament, D. 11. (57) This is altered by the 25 Geo. III. c. 84, which provides that the sheriff having indorsed on the writ the day on which he receives it, shall, within two days after such receipt, cause proclamation to be made at the place where the election ought to be made, of a special county court to be there held, for the purpose of such election only, on any day (Sunday excepted) not later from the day of making such proclamation than the sixteenth day, nor sooner than the tenth, and that he shall proceed at such special county court in the same manner as at an election at a county court under the former laws. See course of proceedings, Com. Dig. Parliament, D. 11 Chitty. (58) By the ancient common law of the land, and by the declaration of rights, 1 W. & M. st. 2. c. 2. The 3d Ed. I. c. 5. is also cited, but Mr. Christian observes that it related to the elec tion of sheriffs, coroners, &c. for parliamentary representation was then unknown. It has been decided that a wager between two electors upon the success of their respective candidates is illegal, because if permitted, it would manifestly corrupt the freedom of elections. 1. T. R. 55. The house of commons has also passed resolutions on the subject to the following effect. "The Bending of warrants or letters to constables or other officers to be communicated to electors when a member is to be chosen to serve in parliament, or threatening the electors, is unparliamentary, and a violation of the right of election. 9 Journals, 191. "It is highly criminal in any minister or servant under the crown, directly or indirectly, to use the powers of office to influence the election of representatives; and any attempt at such influence will always be resented by this house, as aimed at its own honour, dignity, and independence, as an infringement of the dearest rights of every subject throughout the empire, and tending to sap the basis of this free and happy constitution." 17 Journ. 507. It is a high infringement of the liberties and privileges of the house of commons, for any lord of parliament, or lord lieutenant of any county, to concern himself in the election of any member of parliament." This is passed at the commencement of every session. Chitty. (59) Except the guards in the liberty of Westminster, or in Southwark, or other place of royal residence; or in any fort or garrison in respect of such number of soldiers whereof the garrison is composed, or in respect of any soldier or officer entitled to vote at such election. 8 Geo. II. c. 30. Chitty. by an act of the legislature.(k) But it was an unconstitutional prohibition which was grounded on an ordinance of the house of lords,(l) and inserted in the king's writs, for the parliament holden at Coventry, 6 Hen. [177] IV. that no apprentice or other man of the law should be elected a knight of the shire therein :(m) in return for which, our law books and historians(n) have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and sir Edward Coke observes with some spleen, (o) that there never was a good law made thereat. 3. The third point, regarding elections, is the method of proceeding therein. 52 This is also regulated by the law of parliament, and the several statutes referred to in the margin: (p) all which I shall blend together, and extract out of them a summary account of the method of proceeding to elections. As soon as the parliament is summoned, the lord chancellor (or if a vacancy happens during the sitting of parliament, the speaker, by order of the house; and without such order, if a vacancy happens by death, or the member's becoming a peer, 53 in the time of a recess for upwards of twen ty days) sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. Within three days after the receipt of this writ, the sheriff is to send his precept, under his seal, to the proper returning officers of the cities and boroughs, commanding them to elect their members: and the said returning officers are to proceed to election within eight days from the receipt of the precept, giving four days' notice of the same; (g) 55 and to return the persons chosen, together with the precept to the sheriff. 54 k Stat. 7 Geo. I. c. 28. 14 Inst. 10. 48. Pryn. plea for lords, 379. 2 Whitelocke, 359, 368. m Pryn. on 4 Inst. 13. n Walsing. A. D. 1405. o 4 Inst. 48. p 7 Hen. IV. c. 15. 8 Henry VI. c. 7. 23 Hen. VI. c. 14. 1 W. & M. st. 1. c. 2. 2 W. & M. st. 1. c. 7. 5 & 6 W. & M. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. c. 7. 12 & 13 W. III. c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19. and c. $S. 2 Geo. II. c. 24. 8 Geo. II. c. 30. 8 Geo. II. c. 18. 19 Geo. II. c. 28. 10 Geo. III. c. 16. 11 Geo. III. c. 42. 14 Geo. III. c. 15. 15 Geo. III. c. S6. 28 Geo. III. c. 52. q In the borough of New Shoreham in Sussex, wherein certain freeholders of the county are entitled to vote by statute 11 Gen. III. c. 55. the election must be within twelve days, with eight days' notice of the same. (51) Since the union with Ireland, all persons disqualified to sit in either the English or Irish parliaments are ineligible to serve in the United Parliament. (41 Geo. III. c. 52.) By the 46th Edw. III. all practising lawyers were declared incapable of being chosen men bers of parliament. (Carte Hist. from Records, vol. 2. p. 482.) (52) See in general Com Dig. Parliament. D. 11. (53) The 24 Geo. III. sess. 2. c. 26. repeals the former acts on this subject, and provides, that if during any recess, any two members give notice to the speaker, by a certificate under their hands, that there is a vacancy by the death, or elevation to the peerage of any member, the speaker shall forthwith give notice of it in the gazette, and fourteen days afterwards shall issue his warrant to the clerk of the crown, commanding him to make out a new writ for the election of another member. And to prevent any impediment by the speaker's absence from the kingdom, or by the vacancy of his seat, at the beginning of every parliament, he shall appoint any number of members from three to seven inclusive, who shall have the same authority in the speaker's absence. In case of a vacancy happening during the sitting of parliament, by the death, &c. of any member, the speaker is to issue, by order of the house, his warrant to the clerk of the crown for a new writ. (Resolutions of the House, 18th March, 1800-1 Com. Journ.) Chitty. (54) The officer of the cinque ports has six days, by 10 & 11 W. III. c. 7. (55) At the usual place where such elections have been held for the last forty years, and between the hours prescribed for the election of county members by 33 Geo. III. c. 64., viz. between eight o'clock in the morning and four in the afternoon, from the twenty-fifth of October to the twenty-fifth of March, and in the rest of the year between eight in the morning and six in the evening. Chitty. By the 35 Hen. VIII. c. 11. the cities, boroughs, and towns, in Wales, which have the right of electing representatives, are to have notice of the elections in the shire towns. See Com. Dig. Parliament, D. 12. But elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall [178] happen after the delivery of the writ. 56 The county court is a court held every month or oftener by the sheriff, intended to try little causes not exceeding the value of forty shillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the shire it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within six days after, the sheriff may adjourn the court and election to some other convenient time, not longer than sixteen days, nor shorter than ten; but he cannot alter the place, without the consent of all the candidates; and, in all such cases, ten days' public notice must be given of the time and place of the election. 57 And, as it is essential to the very being of parliament, that electior should be absolutely free, therefore all undue influences upon the electors are illegal, and strongly prohibited. 5 For Mr. Locke (r) ranks it among those breaches of trust in the executive magistrate, which according to his notions amount to à dissolution of the government, "if he employs the "force, treasure, and offices of the society to corrupt the representatives, or "openly to pre-engage the electors, and prescribe what manner of persons "shall be chosen. For thus to regulate candidates and electors, and new"model the ways of election, what is it (says he) but to cut up the go"vernment by the roots, and poison the very fountain of public security?" As soon therefore as the time and place of election, either in counties or boroughs, are fixed, all soldiers quartered in the place are to remove, at least one day before the election, to the distance of two miles or more; and not to return till one day after the poll is ended. 59 Riots likewise have r On Gov. p. 2. § 222. (56) Com. Dig. Parliament, D. 11. (57) This is altered by the 25 Geo. III. c. 84, which provides that the sheriff having indorsed on the writ the day on which he receives it, shall, within two days after such receipt, cause proclamation to be made at the place where the election ought to be made, of a special county court to be there held, for the purpose of such election only, on any day (Sunday excepted) not later from the day of making such proclamation than the sixteenth day, nor sooner than the tenth, and that he shall proceed at such special county court in the same manner as at an election at a county court under the former laws. See course of proceedings, Com. Dig. Parliament, D. 11 Chitty. (58) By the ancient common law of the land, and by the declaration of rights, 1 W. & M. st. 2. c. 2. The 3d Ed. I. c. 5. is also cited, but Mr. Christian observes that it related to the elec tion of sheriffs, coroners, &c. for parliamentary representation was then unknown. It has been decided that a wager between two electors upon the success of their respective candidates is illegal, because if permitted, it would manifestly corrupt the freedom of elections. 1. T. R. 55. The house of commons has also passed resolutions on the subject to the following effect. "The sending of warrants or letters to constables or other officers to be communicated to electors when a member is to be chosen to serve in parliament, or threatening the electors, is unparliamentary, and a violation of the right of election. 9 Journals, 191. "It is highly criminal in any minister or servant under the crown, directly or indirectly, to use the powers of office to influence the election of representatives; and any attempt at such influence will always be resented by this house, as aimed at its own honour, dignity, and independence, as an infringement of the dearest rights of every subject throughout the empire, and tending to sap the basis of this free and happy constitution." 17 Journ. 507. "It is a high infringement of the liberties and privileges of the house of commons, for any lord of parliament, or lord lieutenant of any county, to concern himself in the election of any member of parliament." This is passed at the commencement of every session. Chitty. (59) Except the guards in the liberty of Westminster, or in Southwark, or other place of royal residence; or in any fort or garrison in respect of such number of soldiers whereof the garrison is composed, or in respect of any soldier or officer entitled to vote at such election. 8 Geo. II. c. 30. Chitty. been frequently determined to make an election void. By vote also of the house of commons, to whom alone belongs the power of determining contested elections, no lord of parliament, or lord lieutenant of a county, hath any right to interfere in the election of commoners; and, by statute, [179] the lord wardens of the cinque ports shall not recommend any mem bers there. If any officer of the excise, customs, stamps, or certain other branches of the revenue, presume to intermeddle in elections, by persuading any voter, or dissuading him, he forfeits 1001. and is disabled to hold any office. Thus are the electors of one branch of the legislature secured from any undue influence from either of the other two, and from all external violence and compulsion. But the greatest danger is that in which themselves cooperate, by the infamous practice of bribery and corruption. To prevent which it is enacted, that no candidate shall, after the date (usually called the teste) of the writs, or after the vacancy, give any money or entertainment to his electors, or promise to give any, either to particular persons, or to the place in general, in order to his being elected on pain of being incapable to serve for that place in parliament. And if any money, (60) Or after the ordering of the writs; that is, after signing the warrant to the chancellor for issuing the writs. Sim. 165. But entertainment at an antecedent time, though in contemplation of the election, seems not to be illegal. 1 Bos. and Pul. 264. (61) This incapacity arises from the 7 W. III. c. 4. commonly called the Treating Act, and the 49 Geo. III. c. 118. passed for the better securing the independence and purity of parliament. These acts enact, that the candidate offending against these statutes shall be disabled and incapacitated to serve in that parliament for such county, &c. The obvious meaning of these words and of the rest of the statutes is, that treating vacates that election only, and that the candidate is no way disqualified from being re-elected, and sitting upon a second return. See the second case of Norwich, 1787, S Lud. 455. Though the contrary was determined in the case of Honiton, 1782, ib. 162. But after the general election in 1796, the return of one of the members for the borough of Southwark was declared void by a committee, because it was proved that he had treated during the election. Upon that vacancy he offered himself again a candidate, and having a inajority of votes was returned as duly elected; but upon the petition of the other candidate, the next committee determined that the sitting member was ineligible, and that the petitioner ought to have been returned. And he took his seat accordingly. It has been supposed, that the payment of travelling expenses, and a compensation for loss of time, were not treating or bribery within this or any other statute: and a bill passed the house of cominons to subject such cases to the penalties imposed by 2 Geo. II. c. 24 upon persons guilty of bribery. But this bill was rejected in the house of lords by the opposition of lord Mansfield, who strenuously maintained that the bill was superfluous; that such conduct, by the laws in be. ing, was clearly illegal, and subject, in a court of law, to the penalties of bribery. (2 Lud. 67.) Mr. Christian has observed, "that it is so repugnant both to the letter and spirit of these statutes, that it is surprising that such a notion and practice should ever have prevailed: and that though it is certainly to be regretted that any elector should be prevented by his poverty from exercising a valuable privilege; yet it probably would be a much greater injury to the country at large if it were deprived of the services of all gentlemen of moderate fortune, by the legalizing of such a practice, even with the most equitable restrictions, not to mention the door that it might open to the grossest impurity and corruption." However the 49 Geo. III. c. 118. s. 2. provides that nothing in that act contained shall extend or be construed to extend to any money paid or agreed to be paid to or by any person for any legal expense bona fide incurred at or concerning any election. And lord Ellenborough and Mr. Baron Thompson have held at nisi prius, that a reasona. ble compensation for the loss of time and travelling expenses is not illegal. 2 Peckw. 182. In the sessions of 1806, Mr. Tierney brought in a bill to prevent the candidates from conveying the electors at their expense. That excellent bill was opposed by Mr. Fox, who argued that it would be injurious to the popular part of the government by reducing the number of elec tors. But, as observed by Mr. Christian, surely the popular part of the government sustains an infinitely greater loss rom the diminution of the number of the eligible; for many, by the present practice, are totally precluded from serving their country in parliament, whom the resident electors, those who are best acquainted with their merits, would think the fittest objects of their choice. If an innkeeper furnishes provisions to the voters, contrary to the 7 W. III. c. 4. though at the express request or order of one of the candidates, he cannot afterwards maintain an action against |