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. ÎI, c. 24, the right of voting for the future shall be allowed according to the last determination of the house of commons [ *175 ] 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, 315.

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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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

(c) See page 162

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

(d) Ibid. (e) Com. Journ. 9 Nov. 1605 (g) Com. Jour. 21 Jan. 1580. 4 Inst. 47. (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. (i) 4 Inst. 48. Whitelocke of Parl: ch. 99, 100, 101. (k) Stat. 1. Henry V. c. 1. 23 Hen. VI. c. 15. (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. Sheriff's 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 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

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 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 in 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 that common right, and have been declared ineligible for that parliament by vote of the house of commons, (t) or for ever by an act of the legislature. (u) (39.) 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 therein (x) in return for which, our law books and historians (y) have [*177] branded this parliament with the name of parliamentum indoctum, or the lacklearning parliament; and Sir Edward Coke observes, with some spleen, (z) that there never was 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 of which I shall blend together, and extract out of them a summary account of the method of proceeding to elections. (40)

(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 and 6 W. and M. c. 20. 7 W. III. c. 4. 7 and 8 W. III, c. 7, and c. 25. 10 and 11 W. III, c. 7. 12 and 13 W. III, c. 10. 6 Ann. c. 23. 9 Ann. c. 5. 10 Ann. c. 19, and c. 33. 2 Geo. II, c. 24. 8 Geo. II, c. 30. 18 Geo. II. c. 18. 19 Geo. II, 28. 16 Geo. III, c. 16. 11 Geo. III, c. 42. 14 Geo. III, c. 15. 15 Geo. III, c. 36. 28 Geo. III, c. 52.

vacate it, he has a convenient mode of doing so, by applying for the stewardship of the Chiltern Hundreds of Stoke, Desborough and Borlenham, which, though a mere sinecure, is held to be a place of honor and profit under the crown, and consequently vacates the seat. This nominal place is in the gift of the chancellor of the exchequer. As soon as the office is obtained, it is resigned, that it may serve the same purpose again.

Mr. Chitty says it is a matter of course to confer this office on application, and such is the practice; but there is one notable instance of refusal. In 1842, while charges of corrupt practices in elections were pending in the commons, one of the members concerned having applied to the chancellor of the exchequer for the stewardship of the Chiltern Hundreds, that officer, who anticipated similar applications from others in the same situation, decided upon refusing the appointment. This refusal created some excitement at the time, but though unprecedented, was generally applauded in view of the circumstances.

(39) [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 to 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.]

(40) Until 1872 the elections for members of the House of Commons were by show of hands at

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, (41) in the time of a recess for upwards of twenty days, sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriffs 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 day's notice of the same; (b) and to return the persons chosen, together with the precept, to the sheriff. But elections of knights of the shire must be proceeded to by the sheriffs themselves in person, at the next county court that shall happen [*178] 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. (42) If the county court falls upon the day of delivering the

(b) In the borough of New Shoreham, in Sussex; wherein certain freeholders of the country are entitled to vote by statute 11 Geo. III, c. 55, the election must be within twelve days, with eight days' notice of the same.

a meeting duly summoned, but if a poll was called for it took place with the sheriff as presiding and returning officer, and the electors declared their choice viva voce. By statute passed in that year, but limited in duration to December 31, 1880, all elections for members of parliament must be by secret ballot. The law requires that a paper ballot shall be given to the elector, which shall show the names of the candidates for election, and shall have a number printed on the back, and a counterfoil attached having the same number. At the time of voting the paper ballot shall be marked on both sides with an official mark and delivered to the voter within the polling place, and the number of such voter on the register of voters shall be marked on the counterfoil; and the voter having secretly marked his vote on the paper, and folded it up so as to conceal his vote, shall place it in a closed box in the presence of the officer presiding at the polling station, after having shown to him the official mark at the back. This method of voting seems not to have been the subject of any serious complaint, and it seems reasonable to expect that it will be continued by new legislation.

Formerly, if a candidate was considered unduly returned to parliament, the remedy was by petition to the house of commons, on which the house appointed a committee of its own members to try the question. But now by 31 and 32 Vic., c. 125, the petition is to be presented to the court of common pleas, and the case is to be tried by one of the puisne judges of the superior courts, without a jury.

(41) [By Stat. 24 Geo. III, § 2, c. 26, 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 four teen days after such insertion, he shall issue his warrant to the clerk of the crown, commanding him to inake out a new writ for the election of another member. And to prevent any impediment in the execution of this act 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, and shall publish the appointment in the Gazette. These members, in the absence of the speaker, shall have the same authority as is given to him by this statute.]

(42) The shires, and some of the boroughs, are now divided into districts for the purposes of these elections.

[By the statute of 52 Geo. III, c. 144, § 2, the speaker of the house of commons may dur

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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.

[ *179 ]

And, as it is essential to the very being of parliament that elections should be absolutely free, therefore all undue influences upon the electors are illegal and strongly prohibited. (43) For Mr. Locke (c) 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 person 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 government 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 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 elections of commoners; and, by statute, the lord warden of the cinque ports shall not recommend any members 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 1007., 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 co-operate, 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, gift, office, employment, or reward be given or promised to be given to any voter, at any time, in order to influence him to give or withhold his vote, as well he that takes as he that offers such bribe, forfeits 500, and is for ever disabled from voting and holding any office in any corporation; unless, before conviction, he will discover some other offender of the same kind, and then he is indemnified for his own offence. (d) The first instance that occurs, of election bribery, was so early as 13 Eliz., when one, Thomas Longe, (being a simple man and of small capacity to serve in parliament,) acknowledged that he had given the returning officer and others of the borough for which he was chosen, four pounds to be returned member, and was for that premium elected. But for this offence the borough was amerced, the member was removed, and the officer fined and imprisoned. (e) But, as this

(c) On Gov. p. 2 § 222.

(d) In like manner the Julian law de ambitu inflicted fines and infamy upon all who were guilty of corruption at elections; but, if the person guilty convicted another offender, he was restored to his credit again. Ff. 48, 14. 1.

(e) 4 Inst. 23. Hale of Parl. 112. Com. Journ. 10 and 11 May, 1571.

ing any recess, cause a new writ to be issued for the election of another member in the room of one who has been declared a bankrupt, and has not superseded the fiat of bankruptcy within twelve months after it issued.]

(43) [By the ancient common law of the land, and by the declaration of rights, 1 W. and M. St. 2, c. 2. The 3d Edw. I, c. 5, is also cited, but Mr. Christian observes that it related to the election 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.]