Another privilege is, that every peer, by license obtained from the king," may make another lord of parliament his proxy, to vote for him in his absence.(r) A privilege which a member of the other house can by no means have, as he is himself but a proxy for a multitude of other people.(8)

Each peer has also a right, by leave of the house, when a vote passes contrary to his sentiments, to enter his dissent on the journals of the house, with the reasons for such dissent; which is usually styled his protest."

All bills likewise, that may in their consequences any way affect the right of the peerage, are by the custom of parliament to have their first rise and beginning in the house of peers, and to suffer no changes or amendments in the house of commons.

*169] *There is also one statute peculiarly relative to the house of lords; 6 Anne, c. 23, which regulates the election of the sixteen representative peers of North Britain, in consequence of the twenty-second and twenty-third articles of the union: and for that purpose prescribes the oaths, &c. to be taken by the electors; directs the mode of balloting; prohibits the peers electing from being attended in an unusual manner; and expressly provides, that no other matter shall be treated of in that assembly, save only the election, on pain of incurring a præmunire.

V. The peculiar laws and customs of the house of commons relate principally to the raising of taxes, and the election of members to serve in parliament.

First, with regard to taxes: it is the ancient indisputable privilege and right of the house of commons, that all grants of subsidies or parliamentary aids do begin in their house, and are first bestowed by them;(t) although their grants are not effectual to all intents and purposes, until they have the assent of the other two branches of the legislature. The general reason, given for this exclusive privilege of the house of commons, is, that the supplies are raised upon the body of the people, and therefore it is proper that they alone should have the right of taxing themselves. This reason would be unanswerable, if the commons taxed none but themselves: but it is notorious that a very large (1) 4 Inst. 29.

(*) Seld. Baronage, p. 1, c. 1.
() Inst. 12.

30 And which the king has sometimes refused. 6, 27, 39, E. III.-CHITTY.

This license has long ceased in Ireland; but the proxies in the English house of lords are still entered in Latin ex licentia regis. This created a doubt in November, 1788, whether the proxies in that parliament were legal on account of the king's illness. (1 Ld. Mountm. 342.) But this I conceive is now so much a mere form, that the license may be presumed. Proxies cannot be used in a committee. (Ib. 106. 2 Ib. 191.) A proxy cannot sign a protest in England, but he could in Ireland. (2 Ib. 191.)

The order that no lord should have more than two proxies was made 2 Car. I., because the Duke of Buckingham had no less than fourteen. 1 Rushw. 269.

A similar order was made in Ireland, during Lord Stafford's lieutenancy, to correct a like abuse.

There is an instance in Wight, 50, where a proxy is called litera attornatus ad parlia mentum, which it is in effect. The peer who has the proxy is always called in Latin procurator. If a peer, after appointing a proxy, appears personally in parliament, his proxy is revoked and annulled. 4 Inst. 13. By the orders of the house, no proxy shall vote upon a question of guilty or not guilty; and a spiritual lord shall only be a proxy for a spiritual lord, and a temporal lord for a temporal. Two or more peers may be proxy to one absent peer; but Lord Coke is of opinion (4 Inst. 12) that they cannot vote unless they all concur. 1 Woodd. 41. In ancient times a commoner might have acted as the proxy of a peer in the house of lords. See the memorable case of Sir Thomas Naxey, clerk.-CHRISTIAN.

31 Lord Clarendon relates, that the first instances of protests with reasons in England were in 1641, before which time they usually only set down their names as dissentient to a vote: the first regular protest in Ireland was in 1662. 1 Ld. Mountm. 402.— CHRISTIAN.

32" All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills." Const. U. S., art. 1, sect. 7.-SHARSWOOD.

share of property is in the possession of the house of lords; that this property is equally taxable, and taxed, as the property of the commons; and therefore the commons not being the sole persons taxed, this cannot be the reason of their having the sole right of raising and modelling the supply. The true reason, arising from the spirit of our constitution, seems to be this. The lords being a permanent hereditary body, created at pleasure by the king, are supposed more liable to be influenced by the crown, and when once influenced to continue so, than the commons, who are à temporary, elective body, freely *nominated by the people. It would therefore be extremely dangerous to give the lords any power of framing new taxes for the subject; it is [*170 sufficient that they have a power of rejecting, if they think the commons too lavish or improvident in their grants. But so reasonably jealous are the commons of this valuable privilege that herein they will not suffer the other house to exert any power but that of rejecting; they will not permit the least alteration or amendment to be made by the lords to the mode of taxing the people by a money bill; under which appellation are included all bills, by which money is directed to be raised upon the subject, for any purpose or in any shape whatsoever; either for the exigencies of government, and collected from the kingdom in general, as the land-tax; or for private benefit, and collected in any particular district, as by turnpikes, parish rates, and the like. Yet Sir Matthew Hale(u) mentions one case, founded on the practice of parliament in the reign of Henry VI.,(w) wherein he thinks the lords may alter a money bill: and that is, if the commons grant a tax, as that of tonnage and poundage, for four years; and the lords alter it to a less time, as for two years; here, he says, the bill need not be sent back to the commons for their concurrence, but may receive the royal assent without further ceremony; for the alteration of the lords is consistent with the grant of the commons. But such an experiment will hardly be repeated by the lords, under the present improved idea of the privilege of the house of commons, and, in any case where a money bill is remanded to the commons, all amendments in the mode of taxation are sure to be rejected.

Next, with regard to the election of knights, citizens, and burgesses; we may observe that herein consists the exercise of the democratical part of our con stitution: for in a democracy there can be no exercise of sovereignty but by suffrage, which is the declaration of the people's will. In all democracies therefore 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 [*171 justly jealous 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 his 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.

(*) On Parliaments, 65, 66.

() Year Book, 33 Hen. VI. 17. But see the answer to this case by Sir Heneage Finch, Com. Jour. 22 Apr. 1671.

This rule is now extended to all bills for canals, paving, provisions for the poor, and to every bill in which tolls, rates, or duties are ordered to be collected; and also to all bills in which pecuniary penalties and fines are imposed for offences. (3 Hats. 110.) But it should seem it is carried beyond its original spirit and intent, when the money raised is not granted to the crown.

Upon the application of this rule there have been many warm contests between the lords and commons, in which the latter seem always to have prevailed. See many conferences collected by Mr. Hatsel, in his Appendix to the 3d vol.

In Appendix D., the conference of 20 and 22 April, 1671, the general question is debated with infinite ability on both sides, but particularly on the part of the commons in an argument drawn up by Sir Heneage Finch, then attorney-general.-CHRISTIAN.

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.

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 *172] Romans. In the method *by centuries, instituted by Servius Tullius, it 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(x) as I have here endeavoured to describe it; for, if any alteration might be wished or suggested in the present frame of parliaments, it should be in favour of a more complete representation of the people."

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 14 Geo. III. c. 58,") the knights of the shire shall be chosen of people whereof

(*) 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 eluci date the clearness of the spring conveys the strongest satire on those who have polluted or disturbed it.

The representation of the people of England in the house of commons has been much improved by the Reform Act, 2 and 3 Wm. IV. c. 45. Many boroughs were disfranchised which, by lapse of time and loss of trade, had become depopulated, and were generally under the absolute control of the crown or some nobleman or private proprietor, and hence well termed "rotten," and the right given to wealthy and populous places, such as Liverpool and Manchester. The elective franchise was also considerably extended. Much, however, still remains to be done in the way of reform before the house of commons can be truly said to represent the people of England.-SHARSWOOD. 35 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. c. 1, 8 Hen. VI. c. 7, and 23 Hen. VI. c. 14.

Yet in the year 1620 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. 6 Com. Jour. 515.-CHRISTIAN.

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 in- [*173 dependent man. For Bishop Fleetwood, in his chronicon preciosum, written at the beginning of the present century, has fully proved forty shillings in the 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 counties in England and Wales may be collected from the statutes cited in the margin,(y) which direct, 2. That no person under twentyone 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 further 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, marriagesettlement, 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.37 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 (*) 7 and 8 W. III. c. 25. 10 Anne, c. 23. 31 Geo. II. c. 14. 3 Geo. III. c. 24. 2 Geo. II. c. 21. 18 Geo. II. c. 18.

35 In Ashby vs. White, 2 Ld. Raym. 950, Lord Holt intimated that, before these statutes, to have freehold in the county was necessary.-CHITTY.

The voter's evidence of the value must be received at the poll; but it is not conclusive, and may be contradicted by other evidence, upon a scrutiny, or before a committee. The 7 & 8 W. III. c. 25 expressly declares that public taxes are not to be deemed charges payable out of the estate; and therefore one would think that the plain and obvious construction would be, that wherever a freeholder has an estate which would yield him 40s. before these taxes are paid, or for which he would receive a rent of 40s. if he paid the taxes himself, he would have a right to vote; yet a committee has decided that when a tenant paid a rent less than 40s., but paid parochial taxes which, added to the rent, amounted to more than 40s., the landlord had no right to vote. A strange decision! 2 Lud. 475.

Two committees have held that the interest of a mortgage is a charge which, if it reduces the value under 40s., takes away the vote,-though there is an intermediate deci. sion of a committee, in which the contrary was held. Ib. 467.-CHRISTIAN.

It must be an annuity or rent-charge issuing out of a freehold estate; and if it aocrue or devolve by operation of law within a year of the election, a certificate of it must be entered with the clerk of the peace before the first day of the election. 3 Geo. III. c. 24, Heyw. 145.-CHRISTIAN.

38 This is true only when a freehold estate is split and divided by the grantor in order to multiply votes, and for election purposes. It would be highly unreasonable and absurd to suppose (though it has been so contended) that it extends to every case, where a person fairly, and without any particular view to an election, purchases a part of a

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*174] roll shall be permitted to vote as a freeholder. Thus much for the electors in counties.40

greater estate. It is part of the freeholder's oath that the estate has not been granted to him fraudulently on purpose to qualify him to give his vote. The one vote, I presume, was intended for the part retained by the grantor; for, if the whole had been granted out thus fraudulently, no vote at all could have been given for it. See this subject treated fully in Mr. Heywood's Law of Elect. 99. It cannot, I should think, be considered a fraudulent grant under any statute if a person should purchase an estate merely for the sake of the vote, if he buys it absolutely, and without any reservation or secret agreement between the grantor and himself.

But it never has been supposed that this statute extends to cases which arise from operation of law, as devises, descents, &c., as if an estate should descend to any number of females, the husband of each would have a right to vote, if his interest amounted to 40s. a year.

A husband may vote for his wife's right of dower, without an actual assignment of it by metes and bounds. 20 Geo. III. c. 17, § 12.

Two or more votes may be given successively for the same estate or interest at the same election; as where a freeholder votes and dies, his heir or devisee may afterwards vote at the same election. And it seems to be generally true, that where no length of possession is required by any act of parliament, the elector may be admitted to vote, though his right accrued since the commencement of the election. 1 Doug. 272. 2 Lud. 427. CHRISTIAN.

39 This is altered by 20 Geo. III. c. 17. The estate shall be assessed to the land-tax six months before the election, either in the name of the voter or his tenant; but, if he has acquired it by marriage, descent, or other operation of law, in that case it must have been assessed to the land-tax within two years before the election, either in the name of the predecessor, or person through whom the voter derives his title, or in the name of the tenant of such person.

This requisite of assessment was intended to prevent fraud and confusion, by having a ready proof of the existence of the estate of the voter, and some measure of its value; but it is itself perhaps a greater evil than it was intended to remove; for an omission or irregularity in the assessment operates as a disfranchisement. Every freeholder, who wishes to preserve the important privilege of voting, must carefully examine every year the assessment, when it is stuck upon the church-door, to see that he is duly assessed; and if he is not, he may appeal to the commissioners, and he may any time afterwards apply to the clerk of the peace, and upon payment of ls. may examine the duplicate returned to the sessions: but it seems that he is then too late to correct an error, unless he has previously appealed to the commissioners; but from the judgment of the commissioners an appeal lies to the next quarter sessions.-CHRISTIAN.

40 By 22 Geo. III. c. 41, no person employed in managing or collecting the duties of excise, customs, stamps, salt, windows, or houses, or the revenue of the post office, or in conveying of mails, shall vote at any election, under a penatly of 100%. This act does not extend to commissioners of land-tax, or persons acting under them, nor to freehold offices held or granted by letters patent. By the 43 Geo. III. c. 25, no officer of revenue in Ireland shall vote at elections, under penalty of 1007. and be incapacitated, unless he hold by patent.

Any person receiving alms or parish relief within a year before the election, is thereby disqualified from voting, except he be a qualified freeholder. Sim. Elect. Law, 102. But charity donations, by will annually distributed, or otherwise, do not disqualify. 1 Peck. Elect Law, 510. Heyw. County Elect. Law, 186. And militia-men, if otherwise qualified, are not disqualified by their families receiving parish relief while they are on actual service. 18 Geo. III. c. 59, s. 25.

By the 51 Geo. III. c. 119, justices of the peace, and all other persons employed under the police act 51 Geo. III. c. 119, are incapacitated from voting, or within six months after they have quitted office.

Elections for cities and towns, which are counties of themselves, are under nearly the same regulations as elections for other counties. By the 19 Geo. II. c. 28, the voter must have been in the actual possession or receipt of the rents of 40s. or higher freehold, twelve calendar months next before the election, except such freehold came to him by descent, marriage, devise, presentation, or promotion, on pain of suffering the penalties ordained by the 10 Anne, c. 23. But this act does not extend to persons voting in right of any rents, messuages, or seats, belonging to any office, not usually charged to the land-tax. The statutes of W. III. and 10 Anne, respecting the splitting and multip'ication of freeholds and fraudulent conveyances, extend to cities and towns which are