the trading interest; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending entirely on the several charters, customs, and constitutions of the respective places, which has occasioned infinite disputes; though now by statute

2 Geo. II. c. 24. the right of voting for the future [175] shall be allowed according to the last determination of the house of commons concerning it (35). And by statute

union ; in all 80; and 180 have been added by charter: Hen. VIII. created or restored by charter. 4. See Pref. to Glanv. Rep.

[blocks in formation]

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

In all...............558 the present number In the first parliament of Ja. I. the members of the upper house were 78, of the lower 470. 5 Parl. Hist. 11.

(35) 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 the next session, to oppose

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. Some of these depend upon the law and custom of parliament, declared by the house of commons; others upon certain statutes. And from these it appears, 1. That they must not be aliens borns, or minors. 2. That they must not be any of the twelve judges", because they sit in the lords' house; nor of the clergy w, for they sit

r 4 Inst. 47, 48.
• See pag. 162
t ibid.

u Com. Journ.9 Nov. 1605.

w Com. Journ. 13 Oct. 1553. 8 Feb. 1620. 17 Jan. 1661.

such judgment, it is final and conclusive for ever. 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.

The 28 Geo. III. c. 52. requires, that the space of 40 days shall intervene between the day of presenting the petition and the day appointed for the consideration of it; and this had been construed to extend to petitions which are renewed in every subsequent sessions: the 34 Geo. III. c. 83. therefore provides, that every such renewed petition shall be presented within fourteen days after the commencement of the subsequent sessions, but that the hearing of it may be appointed on any day beyond fourteen days after it is so presented.

(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. 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 elec

in the convocation (37); nor persons attainted of treason or felony, for they are unfit to sit any where. 3. That sheriffs of

x Com. Journ. 21. Jan, 1580. 4 Inst. 47.

tion; 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. it is enacted, that 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.

(37) It was decided by a committee of the house of commons in the case of Newport in 1785, that a gentleman who had been regularly admitted to deacon's orders, was capable of being a member of that house. (See 2 Lud. 269.) Many of the arguments in that case may be urged with equal force for the admission and exclusion of a person in priest's orders. The chief authorities for the exclusion of the clergy are the entries in the commons' journals, referred to by the learned Judge in the notes; in the two first of which this reason is assigned, viz. that the persons returned being clerks, they have or might have a voice in the house of convocation. And lord Coke also says, (4 Inst. 47.) that "none of the clergy, though they be of the lowest order, are "eligible, because they are of another body, viz. of the convoca"tion;" and he refers to the first entry in the commons' Journals. Besides these authorities, there are canons of the church which prohibit the clergy from voluntarily relinquishing the office of a deacon or minister, and from using themselves in the course of their lives as laymen,

counties, and mayors and bailiffs of boroughs, are not eligible in their respective jurisdictions, as being returning officersy;

y Bro. Abr. t. parliament. 7. Com. Journ. 25 June, 1604. 14 Apr. 1614. 22 Mar. 1620.

2. 4. 15 Jun. 17 Nov. 1685. Hal. of parl. 114

and from exercising secular jurisdictions, (1 Gibs. Cod. 180. 184.) Mr. Wooddeson has observed that the argument from the convocation ought not to be urged against the unbeneficed clergy, as none but the beneficed clergy voted for the proctors or representatives in convocation. (1 Woodd. 47.)

This reason for disqualifying the inferior clergy from sitting in the house of commons, would extend to the exclusion of the bishops from the house of lords. It happens not unfrequently that a peerage descends to a clergyman in priest's orders, and it has never been supposed that this sacred character, although he should retain a benefice, would disable him from taking his seat in the upper house. And this argument is stronger when we consider that, in the origin of our parliaments, the qualifications of the members of the two houses were precisely the same, viz. land held in capite of the king. Until the reformation, 29 of the regular clergy, abbots and priors, who were dead in law to most other purposes, had seats in the house of lords, in conse quence of the lands, which they held of the crown. In Scotland the barons and commissioners of shires sat together and constituted one estate. It would have been unaccountable if holy orders by the common law had excluded one part of that estate from parliament and not the other; but both in Scotland and Ireland the clergy were declared ineligible by statute; which affords an inference that, without the authority of an act of parliament, they would of common right have participated this privilege with other subjects. (Wight, 293. 1 Ld. Mountm. 50.) The argument drawn from the sitting in the convocation has been called a new pretence in the time of queen Mary, in order to expel some protestant clergy from the house. (Hody, Conv. 429.) There is a memorable instance in the time of Richard II. of a clergyman who signalized himself in the house of commons; he is called sir Thomas Haxey, clerk; he brought in a bill, which passed the commons, to lessen the expenses of the king, and to remove bishops and ladies from the court; for which the commons were obliged to make concessions, and to surrender the author of the bill to the king; and he was afterwards condemned by the parliament to die as a traitor, but his life was spared at the intercession of the bishops because he

but that sheriff's of one county are eligible to be knights of another (38). 4. That, in strictness, all members ought to have

z 4 Inst. 48. Whitelocke of parl. ch. 99, 100, 101.

was a clergyman. (Rot. Parl. 20 R. 2. no 16 and 23.) The boldness of his conduct proves that he had no suspicion that his title to a seat in parliament could be questioned. With regard to the canons, they seem to have as little weight as the argument drawn from the convocation; for they prove nothing by proving too much; for these canons, if available, would also preclude the clergy from acting in the com. mission of the peace, a secular jurisdiction which they have long exercised. If the clergy were eligible prior to, or independent of the canons, then the validity of them may be justly questioned, even of those made antecedent to 25 Hen. VIII. (see ante, p. 83.) for persons who were eligible might in all cases, and may still in some, be com pelled to serve in parliament against their consent (1 Doug. El. Cases, 284.); and no set of men ought to be allowed to disable themselves and deprive their country of their services by any laws of their own, which are not expressly confirmed by the authority of the legislature. The objection to a clergyman's eligibility does not seem to be much stronger even when he is beneficed; for, from the residence enforced by the spiritual judge, the 9th ch. of the articuli cleri 9 Ed. II. exempts and privileges those who are engaged in the service of the king and commonwealth; nec debet dici tendere in prejudicium ecclesiasticæ libertatis quod pro rege et republicâ necessarium invenitur; which lord Coke declares is worthy to be written in letters of gold (2 Inst. 625.). An attendance in parliament is pre-eminently pro rege et republicâ necessarium. With regard to the residence required by the 21 Hen. VIII. c. 13. I conceive that important rights and franchises are not lost or destroyed merely because they become in some degree inconsistent with the provisions of a new statute, which is entirely silent respecting them; if that were the case, the beneficed clergy have also lost their capacity to sit in the convocation; for though the statute makes exception in some cases of absence, as upon pilgrimages and the king's service abroad, yet there is no exception for attendance upon the convocation. But even when the clergy were permitted to tax themselves in convocation, that circumstance was very inadequate to debar them from electing or being elected to parliament. Taxation is certainly an important branch of legislation; yet it is far from the whole concern of that power which superintends and

« VorigeDoorgaan »