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 Romans. In the method of 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 [172] a tendency to aggrandize the patricians or rich nobles; and those of 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 (o) 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. 34 But to return to our qualifications; and first those of electors for knights of the shire. 33 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 the people whereof 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. 35 The knights of shires are the representatives of the landholders, or landed interest of the kingdom: their electors must The candid and intelligent reader will apply this observation to many other parts of the work before bim, 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 elucidate the clearness of the spring, conveys the strongest satire on those who have polluted or disturbed it. (33) As to these qualifications in general, see Com. Dig. Parliament, D. 10. (34) Statutes in the reign of Hen. V., Hen. VI., and Hen., VII., required that the electors and the elected should reside in the place to be represented; but the 14 Geo. III. c. 58. abolished this qualification with regard to both. Chitty. (35) The voter's evidence of the value, given at the poll, may be contradicted by other evidence upon a scrutiny, or before a committee. By 7 & 8 W. III. c. 25. public taxes are not to be deemed charges payable out of the estate. And the 18 Geo. II. c. 18. s. 6. provides, that no tax or rate to be assessed upon any county or division shall be deemed any charge payable out of any freehold estate, within the meaning of the oath or affirmation. Yet it has been held, that where the tenant paid less than 40s. rent, on condition that he should pay the parochial taxes, which added to the rent exceeded that amount, the landlord had no right to vote. 2 Leed. 475. The interest of a mortgage, which reduces the value under 40s. takes away the vote. Ib. 467. Christian. therefore have estates in lands or tenements within the county represented: these estates must be freehold, that is, for the 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 in dustry, furnish all the necessaries of life, and render the freeholder, [173] if he pleased, an independent man. For bishop Fleetwood, in his chronicum 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; (2) which direct, 2. That no person under twenty-one 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 re-convey, 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. 36 And to guard the better against such frauds, it is farther 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 settlement, will, or promotion to a bene-' fice 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. S. That only one person shall be admitted to vote for any one house or tenement, to prevent the splitting of freeholds. 33 9. That no estate shall 07 & 8 W. III. c. 25. 10 Ann. c. 23. 2 Geo. II. c. 21. 18 Geo. II. c. 18. (36) And every person preparing, executing, or voting under it, shall forfeit 401. 10 Ann, c. 23. s. 1. By the 12 Ann. stat. 1. c. 5. it is enacted, that the 10 Ann. shall not extend to persons voting in respect of tithes, rents, or other incorporeal inheritances, or of any messuages or lands in extraparochial places, or of any chambers in the inns of court or chancery, or of places or offices not usually charged to the public taxes. The committee, in construing the 7 & 8 W. III. c. 25. must say from all the circumstances whether, if the conveyance was made several years or only one day before the election, it was the intention of the party to multiply votes; for length of time neither protects nor invalidates the transaction. (See Heyw. County Elect. Law, 100.) Chitty. (37) Altered to six calendar months by 20 Geo. III. c. 17. This must be issuing out of a freehold estate; and if it devolves or accrues by operation of law within a year of the election, this must be certified and entered with the clerk of the peace before the first day of the election. 3 Geo. III. c. 24. Heyw. 145. Chitty. (38) But if an estate descends to a number of females, the husband of each having 40s. a year, would be entitled to vote. A husband may also vote for his wife's right of dower from her former husband's estate, without an actual assignment of it by metes and bounds 20 Geo. III c. 17. s. 12. A member of a corporation aggregate cannot vote in right of an estate belonging to the corporation. Heyw. Law of Elect. 71. If a freeholder votes and dies, his heir or devisee may afterwards vote at the same election, And where no length of possession is required by law, the elector may be admitted to vote, qualify à voter, unless the estate has been assessed to some land-tax aid, at least twelve months before the election. 10. That no [174] tenant by copy of court-roll shall be permitted to vote as a freeholder. Thus much for the electors in counties. 40 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 though his right accrued since the commencement of the election. 1 Doug. 272. 2 Lud. 427. 2 Peck. Elect. Law, 115. In the case of devise by will, however, the 53 Geo. III. c. 49. enacts, that all devises by will, made for the purpose of multiplying voices, or dividing the interest in any lands, tenements, &c. among a number of persons, for the purpose of enabling them to vote at elections for members of parliament, are within the meaning and intent of the 7 & 8 W. III. c. 25. and consequently void; but no devise made twenty years before the passing of the act is affected thereby. Chitty. (39) But now by the statute already referred to (20 Geo. III. c. 17.) an assessinent six months before the election to the land-tax, either in the name of the landlord or his tenant, is sufficient. If however the estate is acquired by marriage, descent, or other operation of law, it must have been assessed to the land-tax within two years before the election. The 30 Geo. III. c 35. expressly declares, that if either the name of the proprietor or the occupier be specified in the assessment, it is sufficient. As an omission or irregularity in the assessment operates as a disfranchise. ment, it behoves every one anxious to preserve this privilege to examine the annual list of assess ments, and upon discovering that he is not duly assessed, he may appeal to the commissioners, and from them to the quarter sessions, if he is dissatisfied with their decision. Persons claiming to vote for lands, &c of which the land-tax has been redeemed, are entitled to vote on proving such redemption. 42 Geo. III. c. 116. (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 penalty 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 1002. and be incapacitated, unless he hold by patent. Any person receiving alms or parish relief within a year before the election, is thereby disqua lified 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 Ann. 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 Ann. respecting the splitting and multiplication of freeholds and fraudulent conveyances, extend to cities and towns which are 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, peer-, papists refusing the oaths of allegiance and abjuration, outlaws, persons excommunicated, guilty of felony, or bribery, (2 Geo. II. c. 24.) and copyholders under 501. 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, 14.) 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 serv ing 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 ca pacity, or being three years employed in the whale fishery 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 farther as to the qualification of electors, Com. Dig. Parliament, D. 5 to 10. Chitty VOL. I. 17 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. (9) Hence the mem q 4 Inst. 16. 42 (41) Cromwell, who towards the close of his life was harassed by the parliament, jealous of his authority on the one hand, and his desire to assume the style and title of king on the other, increased the house of commons by adding more representatives to the counties, and permitting most of the large trading towns to elect members. Among the latter were Leeds, Halifax, and Manchester, in the year 1657. See Bank's Life of Cromwell, and Prestwick's Republica. But this extens on of the elective franchise did not, as has been suggested, proceed from a wish to remedy a defect in the constitution, or a regard to the rights of the people. The circumstance of his refusing admission into the house to all who would not subscribe to a sort of oath of supremacy, confirms the notion that his only object was his own aggrandizement, which he hoped to promote by selecting from an increased number of persons elected such a house of commons as would countenance his views, and accelerate his ambition. (See Rapin's History of England, 2 volume.) The question whether the king has now the power to increase the number of the members of the house of commons, is discussed in Chitty Junior's Prerogatives of the Crown, 67,8. On the other hand, it seems that the legislature may and have, in case of gross corruption of a borough, taken away the right to send members to parliament. The learned commentator has confessed in a note at p. 172. that he has presented a portraiture of the constitution, more nearly approaching to perfection than the original. It were vain to deny, that this disparity between the theory and the practice of the constitution has increased since the note above alluded to was written. The memorable declaration of the speaker (Mr. Abbott, now lord Colchester), that "the purchase of seats in the house of commons was as notorious as the sun at noon-day," is not likely to be forgotten; nor will its truth be questioned among those who are acquainted with the history of borough elections. The house of commons has certainly fulminated and often executed vengeance upon offenders; but the greatest culprits have sometimes escaped, upon the plea that the guilt with which they stood charged, was largely participated by their accusers and jud ges. The legislature however has never regarded trafficking in seats or corrupt expedients to ensure elections as venial. In a recent instance parliament has avenged the wrongs and the disgrace which such parties inflict upon the constitution. The 1 & 2 Geo. IV. c. 47. declares, that "Whereas there was the most notorious and general bribery and corruption previous to the election of burgesses to serve in the last parliament for the borough of Grampound, in the county of Cornwall, in order to procure the return of burgesses to serve in parliament for the said borough, and it should therefore be excluded from hereafter returning burgesses to serve in parliament, &c. be it enacted, that the borough of Grampound, in the county of Cornwall, shall cease to elect and return burgesses to serve in the high court of parliament." The act then provides, that “if the election of the two burgesses now serving for the said borough, or either of them, shall become void by death or otherwise, then an additional knight or knights shall be returned for the county of York. And that at the end of the present parliament, and at all times thereafter, the county of York shall return four instead of two knights to serve in parliament, upon the same conditions of qualification, election, and return, as theretofore." Chitty. (42) The tune consumed in travelling to and from parliament, as well as the period of the sessions, was taken into the account; but those who entirely failed in attendance, were not entitled to any wages. Each representative, upon being chosen, was obliged to find three or four reput able sureties for the faithful discharge of his duties. It is supposed, that representation and the payment of wages were coeval in their commencement, and began when the smaller freeholders discontinued their attendance in parliament. From the 49 Hen. III. (A. D. 1265) to the 18 Rich. II. (A. D. 1394) there is no statute respecting this payment of wages; but in the latter year, a law was made to remove some doubts as to the persons bound to contribute to the payment of the wages of representatives of counties. (See Dr. Henry's Hist. of Great Brit. vol. 8. p. 107 Brady's Introd. & p 153. and Prynne's Reg. Parl. Writs. vols. 4 & 5. Parliam. Hist. vol. 1. p. 36.) Andrew Marvell, member for Hull, in the parliament,after the Restoration, it is said, was the last person who received wages from his constituents. There are many instances of boroughs petitioning to be excused from sending members to parliament, on account of the expense; two shillings per day being a considerable sum in ancient times; representing that they were engag ed in building bridges or other public works, and therefore unable to bear the additional burden of supporting representatives. Since the beginning of the reign of Hen. VIII. the number of the representatives of the commons is nearly doubled; for in his first parliament the house consisted only of 298 members: it does not appear that any place has lost its right of sending representa bers for boroughs now bear above a quadruple proportion 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. (9) 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 sta tute 2 Geo. II. c. 24. the right of voting for the future shall be al- [175] lowed according to the last determination of the house of commons concerning it. 43 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. 44 q Prynne Parl. Writs, 1. 345. tives since that time; and 260 have since been added by act of parliament, or by the king's charter either creating new or reviving old boroughs. The legislature added 27 for Wales by 27 Hen. VIII. c. 26.; 4 for the county and city of Chester by 34 Hen. VIII. c. 13.; 4 for the county and city of Durham by 25 Car. I. c. 9.; and 45 for Scotland by the act of union; in all 80; and 180 have been added by charter : Hen. VIII. created or restored by charter Edw. VI. Mary Elizabeth Ja. I.. Ch. I. Parliament has created In the first parliament of Hen. VIII. By the union with Ireland See Pref. to In all 658 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. Chitty. (43) This act being merely retrospective, could have no operation on the determinations of the house subsequent to its enactment: the 28 Geo. III. c. 52. and 34 Geo. III. c. 83. have been passed for the regulation of this matter. Under the first of these acts, when the merits of a petition depend upon a question respecting the right of election, or appointment of the returning officer, counsel for the respective parties are to deliver a statement of the right for which they contend, which the committee reports to the house, with their judgment thereupon; and if there be no petition against this judgment within the next twelve months, or within fourteen days after the commencement of the next sessions, it is final for ever. But if a petition be presented against it, the whole matter is referred to another committee, whose decision is conclusive. By the latter of the two statutes above mentioned, it is enacted, that fourteen days shall intervene between the presentation and consideration of a petition; and petitions which are renewed in subsequent sessions, must be presented within the first fourteen days of each subsequent sessions. (44) By the 26 Geo. III. c. 100. six months previous residence is necessary to entitle a person to vote in a borough; the penalty for breach of this condition is 20%. But this act does not extend to persons acquiring possession by descent, marriage, &c. nor to persons claiming a right |