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) Hence the members for boroughs now bear above a quadruple pro

(*) 4 Inst. 16.

counties of themselves. And all corrupt practices to carry such elections by means of grants of annuities and rent-charges issuing out of freeholds, have been put upon the same footing as if carried on to procure elections for counties.

Women, deaf, dumb, and blind persons, lunatics, peers, papists refusing the oaths o? allegiance and abjuration, outlaws, persons excommunicated, guilty of felony or bribery, (2 Geo. II. c. 24,) and copyholders under 50l. a year (31 Geo. III. c. 14) are entirely excluded from the right to vote. But the Gloucestershire committee determined that customary freeholders are entitled to vote. Heyw. Elect. Law, 41.

Aliens become denizens by letters patent, or naturalized by act of parliament, if qualified in other respects, may enjoy the elective franchise. So by the 13 Geo. II, c. 3, foreign seamen serving two years in an English ship in time of war, by virtue of the king's proclamation, and all foreign Protestants and Jews residing seven years in any of our American colonies without being absent two months at a time, and all foreign Protestants serving there two years in a military capacity, or being three years employed in the whalefishery, without afterwards absenting themselves from the king's dominions for more than one year, (except those disabled by the 4 Geo. II. c. 21,) are ipso facto naturalized, and consequently may acquire the right to vote at elections of members of parliament in the same manner as natural born subjects. See further as to the qualification of electors, Com. Dig. Parliament, D. 5 to 10.-CHITTY.

"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 Edw. 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 mus. (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 "memorable writs," which first reduced the expense of the representatives 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 respect ive 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 33. 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

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

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. 68.) 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 commissares sall have costage of them of ilk schire, that awe compeirance in parliament."-Murray's Stat.

It is said that Andrew Marvell, who was member for Hull in the parliament after the restoration, 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.) And it is somewhat remarkable, that from the 33 Edw. III. and uniformly through the five succeeding reigns, the sheriff of Lancashire returned, non sunt aliquæ civitates seu burgi infra comitatum Lancastra, de quibus aliqui cives vel burgenses ad dictum parliamen tum venire debent seu solent, nec possunt propter eorum debilitatem et paupertatem. But, from these exemptions in ancient times, and the new creations by the king's charter, which commenced in the reign of Edw. IV., who, in the seventeenth year of his reign, granted to the borough of Wenlock the right of sending one burgess to parliament, (Sim. 97,) the number of the members of the house of commons perpetually varied till the 29 Car. II. who in that year granted, by his charter, to Newark, the privilege of sending repre sentatives to parliament, which was the last time that this prerogative of the crown was exercised. (1 Doug. El. 69.) Since the beginning of the reign of Henry VIII. the number of the representatives of the commons is nearly doubled; for, in the first parliament, the house consisted only of 298 members: 260 have since been added by act of parliament, or by the king's charter, either creating new or reviving old boroughs. The legis lature added twenty-seven for Wales, by 27 Hen. VIII. c. 26; four for the city and county of Chester, by 34 Hen. VIII. c. 13; four for the county and city of Durham, by 25 Car. II. c. 9; and forty-five for Scotland, by the act of union: in all, 80; and 180 have been added by charter.

Henry VIII. created or restored by charter 4 See Pref. to Glanv. Rep.
Edw. VI........................

Mary

Elizabeth

James I.....

Charles I...

Charles II...

Parliament has created..........

48

21

60

27

18

2

180
80

In the first parliament of Henry VIII...... 298

In all 558 the present number.

To the first parliament of James I. the members of the upper house were 78, of the lower, 370. 5 Parl. Hist. 11.-CHRISTIAN.

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 [*175 future shall be allowed according to the last determination of the house of commons concerning it." And by the 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 admitted to vote therein, unless he hath been admitted to his freedom twelve calendar months before.43

2. Next, as to the qualifications of persons to be elected members of the house of commons. Some of these depend upon the law and custom of parliament, 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 the clergy,(f) for they sit in the convocation;" nor persons attainted

(*) 4 Inst. 47, 48. ⚫) See page 162. 4) Ibid.

(*) Com. Jour. 9 Nov. 1605.

(1) Com. Jour. 13 Oct. 1553, 8 Feb. 1620, 17 Jan. 1661.

That statute was merely retrospective, or only made the last determination of the right prior to the statute conclusive, without having any influence over decisions subsequent to the 2 Geo. II. And this provision was omitted in Mr. Grenville's excellent act, so that the same question, respecting the right of election in some places, was tried over again every new parliament; but, to supply this defect, it was enacted by the 28 Geo. III. c. 52, that whenever a committee shall be of opinion that the merits of a petition depend upon a question respecting the right of election, or the appointment of the returning officer, they shall require the counsel of the respective parties to deliver a statement of the right for which they contend, and the committee shall then report to the house those statements, with their judgment thereupon; and, if no person petition within a twelvemonth, or within fourteen days after the commencement of next session, to oppose such judgment, it is final and conclusive forever. But, if such a petition be presented, then, before the day appointed for the consideration of it, any other person, upon his petition, may be admitted to defend the judgment; and a second committee shall be appointed, exactly in the same manner as the first, and the decision of that committee puts an end to all future litigation upon the point in question.-CHRISTIAN.

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. Some corporations have the power of admitting honorary freemen, viz., persons who, without any previous claim or pretension, are admitted to all the franchises of the corporation. The Durham act is confined to persons of that description solely. It has frequently been contended, that if honorary freemen are created for the occasion, that is, merely for an election purpose, it is a fraud upon the rights of election; and that by the common law, as in other cases of fraud, the admission and all the consequences would be null and void; that within the year, by the statute, fraud was presumed; but that, after that time, the statute left the necessity of proving it upon those who imputed it. But, in the Bedford case, (2 Doug. 91,) the committee were clearly of opinion that the objection of occasionality did not lie against freemen made above a year before the election.

No length of possession is required from voters in burgage-tenure boroughs. There are about twenty-nine burgage-tenure boroughs in England. (1 Doug. 224.) In these the right of voting is annexed to some tenement, house, or spot of ground upon which a house in ancient times has stood. Any number of these burgage-tenure estates may be purchased by one person, which, at any time before a contested election, may be conveyed to so many of his friends, who would each, in consequence, have a right to vote. By the 26 Geo. III. c. 100, in boroughs, where the householders or inhabitants of any description claim to elect, no person shall have a right to vote as such inhabitant, unless he has actually been resident in the borough six months previous to the day on which he tenders his vote.-CHRISTIAN.

In 1785, a committee of the house of commons decided that a person who had regularly been admitted to a 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

of treason or felony, (g) for they are unfit to sit anywhere. 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.(1) 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 licenses, 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 the excise and customs; *clerks or deputies in *176] the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt, stamps, appeals, wine icenses, hackney coaches, hawkers, and pedlars,) nor any persons that hold any new office under the crown created since 1705,(n) are capable of being elected or sitting as members." 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected or sitting (0) 7. That 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.(p) 8. That all knights of the shire shall be actual knights, or such notable esquires and gentlemen as have

(8) Com. Jour. 21 Jan. 1580. 4 Inst. 47. (A) Bro. Abr. t. Parliament, 7. Com. Jour. 25 June, 1604; 14 April, 1614; 22 March, 1620; 2, 4, 15 June, 17 Nov. 1685. Hale of Parl. 114.

() 4 Inst. 48. Whitelocke of Parl. ch. 99, 100, 101. (*) Stat. 1 Hen. V. c. 1. 23 Hen. VI. c. 15.

clergy for admission into the house of commons, who reported that there are few instances of return with particular additions till the 8th of Hen. IV.; for then the prac tice 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 passed, 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 commons, and if any such person shall sit in the house he shall forfeit 5007. 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.

45 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 as independent of Hampshire as of any other county. 4 Doug. 87.-CHRISTIAN.

46 That is, while they hold those offices. Persons holding contracts for the public service (22 Geo. III. c. 45) and commissioners for auditing public accounts (25 Geo. III. c. 53) are ineligible. But the former statute does not extend to corporations or companies, existing at the passing of the act, of ten partners, or to members of the house upon whom public contracts may devolve by descent, marriage, or will, until they have been in possession of the same for twelve months. The law is similar with regard to Ireland. By the 51 Geo. III. c. 119, police magistrates appointed under that act are ineligible during the continuance of their office.

By the 52 Geo. III. c. 144, if a member of the house of commons become bankrupt, he is during twelve calendar months from the issuing of the commission, unless it be superseded, or he pay his creditors, incapable of exercising his parliamentary functions. By the 6 Anne, c. 7, s. 26, if a member accept any office of profit from the crown (il existence prior to 1705) he thereby vacates his seat, but he may be re-elected.

A member cannot resign: the only way therefore of withdrawing from parliament is to obtain from the crown (which is a matter of course) the stewardship of the Chiltern Hundreds. This being considered an office of profit for this purpose, is a convenient expedient for the vacating of seats.-CHITTY.

estates sufficient to be knights, and by no means of the degree of yeomen.(q) This is reduced to a still greater certainty, by ordaining, 9. That every knight of a shire shall have a clear estate of freehold or copyhold to the value of six hundred pounds per annum, and every citizen and burgess to the value of three hundred pounds; except the eldest sons of peers, and of persons qualified to be knights of shires, and except the members for the two universities:(r) which somewhat balances the ascendant which the boroughs have gained over the counties, by obliging the trading interest to make choice of landed men; and of this qualification the member must make oath, and give the particulars in writing, at the time of his taking his seat.(s) But, subject to these standing restrictions and disqualifications, every subject of the realm is eligible of common right; though there are instances wherein persons in particular circumstances have forfeited the common right, and have been declared ineligible for that parliament by vote of the house of commons,(t) or forever by an act of the legislature.(u)" But it was an unconstitutional prohibition, which was grounded on an ordinance of the house of lords, (w) and inserted in the king's writs for the parliament holden at Coventry, 6 Hen. IV., that no apprentice or other man of the law should be elected a knight of the shire [*177 therein:(x) in return for which, our law books and historians(y) have branded this parliament with the name of parliamentum indoctum, or the lacklearning parliament; and Sir Edward Coke observes, with some spleen,(z) that there was never a good law made thereat.

3. The third point, regarding elections, is the method of proceeding therein. This is also regulated by the law of parliament, and the several statutes referred to in the margin;(a) 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," in the time of a recess for upwards of twenty days) sends his war

(*) Pryn. on 4 Inst. 13. (Walsingh. A.D. 1405.

(*) 4 Inst. 48.

(a)7 Hen. IV. c. 15. 8 Hen. VI. c. 7. 23 Hen. VI. c. 14. 1 W. and M. st. 1, c. 2. 2 W. and M. st. 1, c. 7. 5 & 6 W. and 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 Anne, c. 23.

9 Anne, c. 5, 10 Anne, c. 19 and c. 33. 2 Geo. II. c. 24. 8 Geo. II. c. 30. 18 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. 36. 28 Geo. III. c. 52. 32 Geo. III. c. 1. 36 Geo. III. c. 59. 42 Geo. III. c. 84. 47 Geo. III. c. 1, and 53 Geo. III. c. 71. Other statutes have been passed as to elections, the whole of which are enumerated in Mr. Shepherd's "Sum. mary of Election Law," lately published. But the latest is 7 & 8 Geo. IV. c. 37.

By sect. 1 of this statute, persons employed by candidates at elections are disqualified from voting.

By sect. 5, voters are exempt from serving as constables during elections.

47 This clause from the word though has been added since 1769, the time when the Middlesex election was discussed in the house of commons. The learned judge, upon that occasion, maintained the incapacity of Mr. Wilkes to be re-elected that parliament, in consequence of his expulsion; and, as he had not mentioned expulsion as one of the disqualifications of a candidate, the preceding sentence was cited against him in the house of commons; and he was afterwards attacked upon the same ground by Junius, (let. 18,) and, as I conceive, undeservedly; for hard would be the fate of authors, if, whilst they are labouring to remove the errors of others, they should forever be condemned to retain their own.-CHITTY.

48 With regard to a vacancy by death or a peerage during recess, stat. 24 Geo. III. ¿ 2, c. 26, which repeals the former statutes upon this subject, 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 death, or that a writ of summons has issued under the great seal to call up any member to the house of lords, the speaker shall forthwith give notice of it to be inserted in the Gazette, and at the end of fourteen days after such insertion he shall issue his warrant to the clerk of the crown, commanding him to make out a new writ for the election of another member. But this shall not extend to any case where there is a petition depending concerning such vacant seat, or where the writ for the election of the member so vacating had not been returned fifteen days before the end of the last sitting of the house, or where the new writ cannot issue before the next meeting of the house for the despatch of business. And to prevent any impediment in the execution of this act by the speaker's absence from the kingdom, or by the vacancy