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been inhabitants of the places for which they are chosena: but this, having been long disregarded, was at length entirely
a Stat. 1 Hen. V. c. 1. 23 Hen. VI. c. 15.
protects our lives, liberty, and property. When the clergy ceased to tax themselves, the reason for their sharing in the rights and privileges of representation was strengthened but not created. After the clergy granted the last subsidy in convocation in 1663, and were afterwards taxed in parliament, as if this alone had precluded them from a share of parliamentary representation, they tendered their votes in right of their glebes at county elections, which have ever since been received with tacit approbation. But the capacity to elect and to be elected being originally the same, when you take away an obstruction from the one, you remove it also from the other, unless some express law has superinduced a farther impediment: but I apprehend that the reason that the clergy, having no other lands than their glebes, never voted nor were elected in ancient times, did not in any degree depend either upon taxation or the convocation; but that it was owing solely to the tenure of their glebe land, viz. frankalmoign, which exempted them from attendance on the courts of the king, lords, and sheriffs (2 Bl. 101.); and even if they held other lands, holy orders exempted them by the common law from secular services and temporal offices; and this was confirmed by magna charta and the statute of Marlbridge. (2 Inst. 3 and 121.) This was an exemption, and not an exclusion; but what are now important rights, were originally considered duties and burdens: it is not therefore strange, that the clergy should avail themselves of this privilege till the disuser became regarded as an incapacity. Their glebe lands are, no doubt, freeholds under the 8 Hen. VI. c. 7.; and when they were admitted to vote for representatives in right of these freeholds, it followed as a consequence, that they were also eligible to represent, unless some better authority can be produced for their exclusion than merely disuse, or their having a voice in the convocation, where they no longer tax themselves, or their being prohibited by canons, which in other instances are disregarded, and which probably could never be thought to be obligatory upon the parliament.
This was the note in the two preceding editions; but since the publication of the last, Mr. John Horne Tooke, a gentleman, who had taken priest's orders early in life, but who had long ceased to officiate, or even to appear, as a clergyman, was returned for Old
175 repealed by statute 14 Geo. III. c. 58. 5. That no persons concerned in the management of any duties or taxes created
Sarum. No petition being presented within the time limited by Grenville's act, one of the members moved that a committee might be appointed to search for precedents respecting the eligibility of the clergy into the house of commons.
The committee afterwards reported, that there are few instances with particular additions till the 8 Hen. IV, for then the practice of returning citizens and burgesses by indentures annexed to the writ first prevailed, yet they find five with the addition of clericus. The committee state also, that no such name as Sir Thomas Haxey exists in the returns of 20 Ric. II. which are perfect and extant in the Tower: and they state the instances referred to above by the learned Judge.
It appears from the rolls of parliament cited in this note, that the king demanded, Le noun de cellui, qui bailla as ditz communes la dite bille. But it certainly appears by the following record in Rymer's Fadera, tom. vii. p. 844, that he was not a member of the house of commons, but the proxy of the earl of Nottingham in the house of lords; at that time, commoners might act as the proxies of peers. Thomas comes Marescallus et Nottinghamiæ, Capitaneus villæ regis Calesii, qui in obsequio regis in partibus Picardiæ super salvâ custodiâ ejusdem villæ moratur. habet literas regis de generali attornatu, sub nominibus Willielmi Bagot. chevalier, et Thoma Haxey clerici, per unum annum duraturas.
Teste rege apud Calesium tertio die Octobris. Cancellarius recepit attor
Although from this record it certainly appears that Haxey was not a member of the house of commons, yet his case furnishes this observation, viz. that if any prohibition in the canon law would have pre. vented him from being a representative of a county or a borough in the house of commons, the same prohibition would have prevented him from exercising the lay functions of a temporal peer in the house of lords.
When the question of the eligibility of the clergy was discussed in the house of commons, it was proposed by the prime minister, that a bill should be brought in to declare the clergy ineligible, and by that means to remove all doubts and questions in future. But still the debate was continued in both houses, whether this statute would be declaratory of what was the law, or introductory of a new law. Those who maintained the ineligibility of the clergy drew their arguments chiefly from the canon law; the opposite party, particularly Lord Thur
since 1692, except the commissioners of the treasury b, nor any of the officers following, (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 the several offices of the treasury, exchequer, navy, victualling, admiralty, pay of the army or navy, secretaries of state, salt,
b Stat. 5 and 6 W. and M. c. 7.
e Stat. 11 and 12 W. III. c. 2. 12 and 13
W. III. c. 10. 6 Ann. c. 7. 15 Geo. II. c. 22.
low, adopted most of the arguments in this note: sanctioned by the approbation of that learned and venerable peer, the Editor with proud satisfaction re-annexes it to the works of Sir William Blackstone.
But the most strenuous advocates for the admissibility of the clergy by the common law, will not necessarily object to their exclusion by an act of the legislature. They were so excluded from the parliaments of Scotland and Ireland. And perhaps it may be justly observed, that sound policy and the most important interests of society require, that the ambition of a clergyman should be confined to his own profession, and that piety and learning should be his surest recommendations to advancement.
By the 41 Geo. III. c. 73, entitled, an act to remove doubts respecting the eligibility of persons in holy orders to sit in the house of commons, it was declared and 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 500/. a day, and be incapable of holding any preferment or office under his Majesty. But the statute was not to extend to the members of the house during that parliament.
(38) 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.
stamps, appeals, wine licenses, hackney coaches, hawkers and pedlars,) nor any persons that hold any new office under the crown created since 1705, are capable of being elected or sitting as members (39). 6. That no person having a pension under the crown during pleasure, or for any term of years, is capable of being elected or sittinge. 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-electedf. 8. That all knights of the shires shall be actual knights, or such notable esquires
d Stat. 6 Ann. c. 7.
e Stat. 6 Ann. c. 7. 1 Geo. c. 56.
f Stat. 6 Ann/c. 7.
(39) All the persons enumerated above are utterly incapable of sitting in the house of commons, whilst they continue in their respective situations; and a nongst these are all persons who accept from the crown any office created since 1705. But by the 26th section of the same act, 6 Ann. c. 7. if any member shall accept of any office of profit from the crown, his election or seat becomes void, but he may be reelected. This means an office of profit, which was in existence prior to 1705.
The office or trust of a member of parliament cannot be resigned, and every member is compellable to discharge the duties of it, unless he can shew such a cause, as the house in its discretion will think a sufficient excuse for his non-attendance upon a call of the house. The only way therefore of vacating a seat, is by accepting a situation, in consequence of which the law declares his seat vacant. So where members wish to vacate their seats and retire from parliament, it is now usual for the crown to grant them the office of the stewardship of the Chiltern Hundreds. Mr. Hatsell observes, that "the practice of "accepting this nominal office, which began, he believes, only about "the year 1750, has been now so long acquiesced in from its conve"nience to all parties, that it would be ridiculous to state any doubt "about the legality of its proceedings; otherwise (he believes) it "would be found very difficult, from the form of these appointments, "to shew that it is an office of profit under the crown." (2 Hats. 41.) But Mr. Hatsell himself raises a doubt, which I do not think he removes; for surely no usage since 1750, or no usage whatever, can countervail the clear and express words of an act of parliament.
and gentlemen as have estates sufficient to be knights (40), and by no means of the degree of yeomens. 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 (41) 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: 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 seati (42). 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 a vote of the house of g Stat. 23 Hen. VI. c. 15.
h Stat. 9 Ann. c. 5.
i Stat. 33 Geo. II. c. 20.
(40) This, by the statute de militibus, 1 Ed. II. was 207. a year, and put in force against those who had 401. a year till 16 Car. I. c. 16. See p. 404.
(41) Or mortgage, if the mortgagee has been seven years in possession.
(42) By 22 Geo. III. c. 45. no contractor with the officers of government, or with any other person for the service of the public, shall be capable of being elected, or of sitting in the house, as long as he holds any such contract, or derives any benefit from it. But this does not extend to contracts with corporations, or with companies, which then consisted of ten partners, or to any person to whom the interest of such a contract shall accrue by marriage or operation of law for the first twelve months. And if any person disqualified by such a contract shall sit in the house, he shall forfeit 5007. for every day; and if any person who engages in a contract with government, admits any member of parliament to a share of it, he shall forfeit 500l. to the prosecutor.