HISTORY AND SUMMARY

OF THE

LAW OF PARLIAMENTARY ELECTIONS

IN ENGLAND.

HISTORY.

THE House of Commons of the United Kingdom derives its origin from the Great Council of the nation in England under the Norman sovereigns, which was the successor of the AngloSaxon Witanagemot. The Great Council was summoned by the Sovereign when he required pecuniary aids beyond that reserved to him as feudal superior. It was originally composed on the one hand of the spiritual lords, and on the other of the tenants in capite, or those who held land direct from the Crown on condition of rendering military service, and these latter were divided into majores barones and the rest of the tenants in capite. At what date the division, foreshadowing the present two estates of Parliament, took place, and what was its precise nature, is uncertain; but in the Charter of King John we find it promised that whenever an aid or scutage is required "faciemus summoneri archiepiscopos, episcopos, abbates, comites, et majores barones regni sigillatim per literas nostras et præterea faciemus in generali per vicecomites et ballivos nostros omnes alios qui in capite tenent de nobis." These lesser tenants in capite, summoned in general through the sheriffs and bailiffs, were the nucleus of the House of Commons. By an easy transition these numerous tenants in capite, instead of personally answering the summons, sent some of their number, who represented the county of the sheriff intrusted with summoning them. By a further transition, especially intelligible after the statute of Quia Emptores (18 Ed. 1), which upon every alienation created a new tenant of the Crown, all freeholders, whether holding direct from the Crown or mediately, being present at the County Court at which the election took place, took part in it. This practice was not always confined even to freeholders, because by 7 Hen. 4, c. 15, the right to elect was attributed to "all who are there present in the County Court, as well suitors duly summoned for that cause as others.' That the electors at this period were very numerous is clear from the preamble to 8 Hen. 6, c. 7, which recites "that elections of knights of shires have now of late been made by very great outrageous and excessive number of people dwelling within the same counties," and which confines the election to freeholders of lands to the value

of forty shillings a year, a provision which constitutes the first statutory enactment as to elections still in force.

As the towns grew in prosperity, the sheriffs were directed to summon representatives from them also. At what date this first took place is matter of controversy; but we find that in the 49th of Henry III. (1265), writs were issued at the instance of Simon de Montfort to sheriffs of each county, to return not only two knights for the body of their county, but two citizens or burgesses for each city or borough. The qualification of voters in boroughs and cities created counties of themselves easily followed the analogy of the counties at large, but in the great majority of cities and boroughs it presents a question of great complexity; but it may be said that, apart from any special terms in a charter of incorporation, or any special custom, it resided in householders paying scot and lot or local rates and taxes. Sometimes it belonged to the tenants of certain lands in the borough, sometimes, when derived from a charter of incorporation, to the freemen, or general body of the corporation, and sometimes, again, was restricted to its governing body. By 2 Geo. 2, c. 2, the last determination of the House of Commons was made conclusive of the composition of the electors of any borough. Whatever the electoral body in boroughs was, it subsisted unchanged until the Reform Act of 1832, except that in 1786, by 26 Geo. 3, c. 100, “occasional inhabitants were deprived of the right to vote, and six months tenure of the qualification by inhabitancy of "potwallers" and others was required.

While the counties except Chester, Durham, and Monmouth from the earliest records of the House of Commons returned each two members, the boroughs returning members varied from time to time, at one time through the sheriff failing to summon burgesses, and at another, through the Crown granting the right to return members as a franchise, and again at another through towns which had ceased to return members reasserting their privilege on the well-recognized principle that the right once obtained could not be lost by disuse. At the accession of Henry VIII. 224 citizens and burgesses represented 111 towns; London returning four members (Hallam, Const. Hist., vol. iii., p. 36, 8th ed.). All of these returned

representatives down to the Reform Act of 1832. In the same reign representation was extended to Wales (27 Hen. 8, c. 26), each of the twelve counties sending one member, to the counties of Chester and Monmouth, and even to Berwick and Calais. Edward VI. created fourteen boroughs; Mary, twenty-one; Elizabeth, sixty; and James I., twenty-seven. In 1673, the county and city of Durham obtained by Act of Parliament the right of representation, and the prerogative of the Crown was recognized about the same time in the case of Newcastle, after which it fell into disuse. The common law mode of representation, both of counties and boroughs, was by two members and

no more, the only exception being that the City of London returned four members,- -a number which was, for the first time, reduced to two members by the Redistribution of Seats Act, 1885.

It is a remarkable example of the local character attached at one time to Parliamentary representation, that by the statute 8 Hen. 6, c. 7, already referred to, not only were the electors required to be resident in the county, but the knights of the shire also, and these provisions were not abrogated until 1774 by 14 Geo. 3, c. 58. The constituencies were also bound to pay for the maintenance of their representatives during the session, and on journeying to and fro, the sum of four shillings a-day for knights of the shire, and two shillings for burgesses, a provision which has never been taken from them by law, although it gradually fell into disuse.

The amendments in the law, down to the time of the Reform Act, with the exception of the statute of Anne, which restricted the right of placemen under the Crown sitting in Parliament, and was the origin of a long string of statutes, are of comparatively little importance.

In 1696, by 7 Will. 3, c. 25, minors were, by an Act declaratory of the common law, pronounced disqualified; but their return, both before and after the statute, was frequently connived at, as in the instance of Charles James Fox, who not only sat but delivered a speech before the age of twenty-one. By the same Act, the votes of trustees and mortgagees were transferred from them to beneficiaries and mortgagors in possession, and it was provided that conveyances of estates to multiply votes should be void, and that no more than one person should vote for the same house or parcel of land, a restriction upon faggot-voting" which, after being impliedly repealed by s. 29 of the Reform Act, 1832, has been partially re-enacted by s. 4 of the Representation of the People Act, 1884. In the same session was passed the first Act, 7 Will. 3, c. 4, for preventing expense in elections.

66

"The Act of Anne," 6 Anne, c. 7, was passed in 1707, for the purpose of securing the independence of members, and of preventing the House of Commons being overfilled with persons holding office from the Crown. It provides that the holders of new offices of profit under the Crown shall be altogether disqualified from sitting (a provision which, upon the creation of a new office in subsequent times, it has been very common to except), and that the acceptor of any office of profit, whether new or old, having a seat must present himself for re-election.

The Septennial Act, 1 Geo. 1, st. 2, c. 38, provided in 1714 that Parliament might continue for seven years instead of three, as had been provided by the Triennial Act of William and Mary (6 Will. & Mary, c. 2), which latter Act contains a still unrepealed provision that there should be no longer intermissions of Parliaments than three years, an interval still