commons, or for ever by an act of the legislature. But it was an unconstitutional prohibition which was grounded on an ordinance of the house of lords1, 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 [177] be elected a knight of the shire therein m; in return for which, our law books and historians" have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and sir Edward Coke observes with some spleen, 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 margin3; all which I shall blend together, and extract out of them a summary account of the method of proceeding to elections.

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 (44), in the time of a recess for upwards of twenty days)

j See page 163.

k Stat. 7 Geo. I. c. 28.

14 Inst. 10. 48. Pryn. Plea for lords, 379.

2 Whitelocke, 359, 368.

m Pryn. on 4 Inst. 13.

n Walsingh. A. D. 1405.

o 4 Inst. 48.

p 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. c. 28. 10 Geo. III. c. 16. 11 Geo. III. c. 42, 14 Geo. III. c. 15. 15 Geo. III. c. 36. 28 Geo, III. c. 52.

(44) With regard to a vacancy by death or a peerage during a recess, the 24 Geo. III. s. 2. c. 26. which repeals the former statutes upon this subject, provides, that 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 forth with give notice of it to be inserted in the Gazette; and at the end of fourteen days after such insertion, he shall issue his warrant to the clerk of the crown, commanding him to make out a new

sends his warrant to the clerk of the crown in chancery; who thereupon issues out writs to the sheriff of every county, for the election of all the members to serve for that county, and every city and borough therein. Within three days (45) 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 days notice of the same; 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 coun[178] ty court that shall happen 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

q In the borough of New Shoreham in Sussex, wherein certain freeholders of the county 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.

writ for the election of another member. But this shall not extend to any case where there is a petition depending concerning such vacant seat, or where the writ for the election of the member so vacating had not been returned fifteen days before the end of the last sitting of the house, or where the new writ cannot issue before the next meeting of the house for the despatch of business. 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 par liament he shall appoint any number of members from thrée 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. These are the only cases provided for by act of parliament; so for any other species of vacancy no writ can issue during a recess.

(45) The officer of the cinque ports has six days by 10 and 11 W. III. c. 7.

knights of the shire it must be held at the most usual place. If the county court falls upon the day of delivering the 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 (46).

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 (47).

(46) This is altered by 25 Geo. III. c. 84. which enacts, that in every county, the sheriff having indorsed on the back of the writ the day on which he receives it, shall, within two days after the receipt thereof, cause proclamation to be made at the place where the ensuing election ought by law to be held, of a special county court to be there held, for the purpose of such election only, on any day, Sunday excepted, not later from the day of making such proclamation than the 16th day, nor sooner than the 10th; and that he shall proceed in such election at such special county court in the same manner as if the said election had been held at a county court, or at an adjourned county court, according to the former laws. And by the 33 Geo. III. c. 64. the proclamation must be made at the usual place between the hours of eight o'clock in the morning and four in the afternoon, from the 25th of October to the 25th of March; and in the rest of the year between eight in the morning and six in the afternoon.

(47) In support of this principle the 3 Ed. I. c. 5. is generally cited: Et pur ceo que elections deivent estres franches, le roi defende sur sa greve forfaiture, que nul haut homme n'autre per poiar des armes, ne per menaces, ne distourbe de faire franche election. The principle is good, and ought to be applied to all elections; but the elections which the legislature had then in contemplation, were those of the sheriff, coroner, &c. for the house of commons, and of course elections of its members had not then existence. And as it would be repugnant to this principle and to sound policy, it is decided, that a wager between two electors upon the success of their respective candidates is illegal and void. For, if it were permitted, it would manifestly corrupt the freedom of elections. 1 T. R. 55,

For Mr. Locker 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 represen"tatives, or openly to pre-engage the electors, and prescribe "what manner of persons shall be chosen. For thus to re"gulate 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 secu"rity?" 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 election of commoners; and, by statute, the lord

warden of the cinque ports shall not recommend any [179] 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 (48), or after the

r On Gov. p. 2. sec. 222.

(48) Or after the ordering of the writs: that is, after the signing of the warrant to the chancellor for issuing the writs. Sim. 165.

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 (49).

(49) This incapacity arises from the 7 W. III. c. 4. commonly called the Treating Act, which enacts, that the candidate offending against that statute shall be disabled and incapacitated upon such election. The obvious meaning of these words and of the rest of the statute is, that treating vacates that election only, and that the candidate is no way disqualified from being re-elected, and sitting upon a second return. See the second case of Norwich 1787, 3 Lud. 455. Though the contrary was determined in the case of Honiton, 1782, ib. 162.

But after the general election in 1796, the return of one of the members for the borough of Southwark was declared void by a committee, because it was proved that he had treated during the election. Upon that vacancy he offered himself again a candidate, and having a majority of votes was returned as duly elected; but upon the petition of the other candidate, the next committee determined that the sitting member was ineligible, and that the petitioner ought to have been returned. And he took his seat accordingly.

It has been supposed, that the payment of travelling expenses, and a compensation for loss of time, were not treating or bribery within this or any other statute; and a bill passed the house of commons to subject such cases to the penalties imposed by 2 Geo. II. c. 24. upon persons guilty of bribery. But this bill was rejected in the house of lords by the opposition of lord Mansfield, who strenuously maintained that the bill was superfluous; that such conduct, by the laws in being, was clearly illegal, and subject, in a court of law, to the penalties of bribery (2 Lud. 67.). Indeed it is so repugnant both to the letter and spirit of these statutes, that it is surprising that such a notion and practice should ever have prevailed. It is certainly to be regretted, that any elector should be prevented by his poverty from exercising a valuable privilege; but it probably would be a much greater injury to the country at large if it were deprived of the services of all gentle. men of moderate fortune, by the legalizing of such a practice, even with the most equitable restrictions, not to mention the door that it might open to the grossest impurity and corruption.

If an inn-keeper furnishes provisions to the voters, contrary to the 7 W. 3. c. 4. though at the express request or order of one of the can