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enants and Governors of counties, by a sessional Resolution of the House of Commons. which treats of things or persons of an inferior rank can be construed to extend to those of a superior.
Again it has been seen (2), that Peers were not liable to pay the wages of Knights of the Shire; from which there certainly arises a presumption that they were not constituents of such Knights.
History tells us, that the lower House was originally summoned by the Crown for the better and more regular raising the supplies by taxation, and that the Members used to advise with their electors as to what amount should be levied or granted; and that in progress of time, partly from an increasing sense of their importance, and their right to participate in the affairs of State, on the part of the Commons,-and partly by the assistance of the Crown, desirous to form an equipoise to the growing power of the Barons, they attained to a legitimate and acknowledged share in the government of the country. But we are also informed (3), that, for a length of time, the Lords taxed themselves apart, and often in different proportions,---until, the Commons having arrived at an equal share in legislation, they surrendered to them the exclusive power over all matters of supply.
The election of a peer as a representative, has always heen considered as a void election. Even a peer's eldest son could not sit in the House of Commons, until a decision was made in favour of Sir F. Russel (4).
From the above facts it would appear to admit of very little doubt, that the Lords never at any time possessed the right of voting for Members of the House of Commons. If, however, the right did anciently exist, whether by sufferance or by usurpation, it has in later times been taken away by law, as will be seen in the consideration of
2dly, Whether the House of Commons have sufficient authority to make and enforce a Resolution of this kind.
Before the middle of the seventeenth century (5), the exclusive jurisdiction over controverted Elections had been ceded to the House of Commons by the other branches of the Legislature. From that period to the present, it has always remained in that House, and has been successively ratified by 10 Geo. III. ch. 36, and all the numerous Statutes that have been enacted ou lhe subject. Therefore the House of Commons, by their Sessional Resolution declaring that Peers shall not vote at the election of their Members, do not merely promulgate a doctrine or a determination which, coming from one branch alone, might be said to be of po force or effect, but, having the full and exclusive power of decide ing upon all matters of this kind, without appeal, conferred upon them by statute,-their Resolution upon the right of voting in any individual or body, is clothed with the force of law. In the same manner as a Judge in a Court of Equity or Common Law may be constantly said to be making laws, when he is adjudicating upon any matter under the authority of an Act of Parliament, his decision being merely an elucidation, or carrying out of the Statute, which has made provision for the general question, though not for the particular case. (2) See ante, p. 25.
(3) Oldfield's Hist. of the H. of Commons, 195. (4) C. J. 21 January, 1549.
(5) Glanv. Rep. p. vi.; and see the Commons' Journals of the reigos of Queen Elizabeth and King James I.
The same principle applies to restrain Legislative Councillors from voting at the election of Members of the House of Assembly in this Province: accordingly, an Election Committee appointed in 1829, to examine into the return of members for the town of York, reported the following Resolution, (t). “ Resolved, That in the opinion of this “Committee, the Members of the Legislative Council have “not a legal or constitutional right to vote at, or interfere " with, elections."
19. Persons receiving alms, or parochial relief, with certain distinctions. See Rogers' Elec. Law. 95, 102,--and
2 Wm. IV., ch. 45, s. 33, 36. Deaf & Dumb.
20. Persons who are deaf, dumb and blind, (doubtful). See Rogers' Elec. Law, 82, 83.
21. Lunatics, (v) Outlaws, Felons, (w) Persons excommunicated, (very doubtful). See 53 Geo. III., ch. 127, s. 2,—and Rogers' Elec. Law, 92.
22. Aliens born, by resolution of the House in 1698:unless made denizens by letters patent, or naturalized by Act of Parliament.
23. Justices, receivers, and all other persons belonging London police. to the London police are excluded from the franchise in
the counties of Middlesex, Surrey, Hertford, Essex and Kent, and from Westminster, Southwark, and the new boroughs in the Metropolitan districts-by 10 Geo. IV.ch. 44, s. 18,—and London Police Magistrates, Constables, &c. by 3 Geo. IV., ch. 55.
24. All persons employed as Attorney, Counsel, Agent, Attorneys, &c.
Poll Clerk, &c. at any election, during the election by 7 and 8 Geo. IV., ch. 37,—and revising Barristers, under 2
Wm. IV., ch. 45, sec. 41, 49. Right of Election The right of election in Boroughs is various, depending
entirely on their charters, constitution &c. though now by
Justices, &c. of
Right of Election in Cities and Boroughs,
(t) Journals H. of Assembly, 27 February, 1829.
2 Geo. II. ch 24 (amended by 28 Geo. III. ch. 52 ) the right of voting shall be allowed in each particular place according to the last determination of the House of Commons concerning it, subject to the right of petitioning as detailed in Chap. V. On Election Petitions.-As respects Boroughs, it has been the object of the Reform act to introduce as far as possible, consistently with existing rights, a uniform right of voting in all cities and boroughs, in order to the establishment of a uniform system of voting throughout the Kingdom. And, since that statute, it has become necessary in all cases to show, that the voter has resided six calendar months within the city, borough, &c. or within seven statute miles thereof; and where he votes as a freeman, &c. of a place sharing in the election of any city or borough, then he must show a residence within that place, or within seven statute miles of the points stated in schedule (E. 2. ) of the Reform act.
Whenever an election for members of Parliament, or Soldiers to be Scottish Peers is to be holden, the Secretary at war shall cause all troops to be removed from the place of election at least one day previous, to the distance of two miles or more, until one day after the close of the Poll, under penalty of forfeiture of his situation, &c. (x).
It is a high breach of privilege for any Peer, Lord of Lords, &c. not to Parliament, or Lord Lieutenant of a county to concern himself in elections (y)-or for any Minister of state or servant of the crown, to use the powers of his office, directly or indirectly in the election members (z).
removed from place of election. WHO CANNOT BE
Formerly, the Lords' Wardens of the Cinque Ports* Or Wardens of claimed the right of nominating one member for each of the the Cinque Ports, but the 2 Wm. and Mary, sess. 1 ch. 7, (2) 8 Geo. II. ch. 30; and see C. J. 17 Nov. 1645; 22 Dec. 1741. (y) See C. J. 10 Dec. 1641; 27 April, 1802. (z) C. J. 10 Dec. 1790. * The Cinque Ports are Dover, Sandwich, Romney, Hastings and Hythe. The branch towns are Rye, Winchelsea and Seaford. They each send two Members to Parliament.
e Cinque Ports.
Need not be resideot.
declares all such nominations to be contrary to the law and constitution of the realm, and void to all intents and pur
poses. WHO CANNOT BE II. Who are disqualified from being members of the
House of Commons.
The ancient law, which required that the member elected should come from the body of the represented, being resident amongst them, was repealed by the 14 Geo.
III. ch. 58. Property Quali-- . 1. All persons who do not possess the necessary Profication required.
perty Qualifications required by the 9 Anne, ch. 5 (and see 33 Geo. II. ch. 20, and 41 Geo. III. ch. 101, sec. 23)
—these acts are repealed by 1 & 2 Victoria, ch. 48, and the property qualification required for a county member is fixed at an unincumbered estate (freehold, copyhold or leasehold) of not less than £600 per annum, or personal estate or effects to the like amount. And for a member representing a city or borough not less than £300. Except the eldest son of Peers or Lords of Parliament, or persons eligible to be Knights of the Shire, and Members for either of the English Universities, or that of Trinity College, Dublin, from whom no property qualification is required.—Neither does this act extend to Scotland where no Property qualification is requisite. The required property qualification in Upper Canada is an unincumbered freehold in lands or tenements in the province,of the assessed value of £80 per annum. And the candidate is required to make oath thereto, by the act 4 Geo. IV. ch. 3, sec. 6. For form of oath, see Appendix IV.
2. Minors, 7 and 8 Wm. III. ch. 25, sec. 8.
3. Aliens, even though they be naturalized, 12 & 13 Wm. III., ch. 2, and 1 Geo. I. stat. 2, ch. 4; but see post Ch. X. On Private Bills, “ Naturalization Bills.”Aliens naturalized by act of the Imperial Parliament are eligible to be meinbers of the Legislature in Canada, 31 Geo. III. ch, 31, sec. 22; and by 7 Geo. IV. ch. 68, the
Provincial Legislature may pass Naturalization bills, but the Governor is required to reserve them for the signification of the Royal pleasure thereon. But the Provincial act 4 Geo. IV. ch. 3, sec. 2, requires that persons having resided in a foreign country, or taken the oath of Allegiance to a foreign state, shall not be eligible to be members of the House of Assembly until after a residence of seven years in the Province; and they must, if required, take the oath prescribed by this act, at the Poll. For form of oath, see Appendix IV.
4. Traitors, Felons,* Women, Outlaws in criminal pro- Traitors, Outsecutions, but not in civil suits (a) Idiots, Lunatics (6), orta avowed Infidels.
5. Peers, as they are bound to serve the state in another peers, capacity. But an Irish Peer, not one of the twenty-eight representatives may sit; but whilst he is a member of the House of Commons he is not entitled to the privileges of Peerage, nor capable of being elected one of the twentyeight Lords, or of voting at such election ; and is liable to be sued and indicted as a commoner. Until recently, the eldest son of a Scotch Peer was incapable of being elected in Scotland, though not in England, but the Scotch Reform Act (2 & 3 Wm. IV. ch. 65, s. 73) removed the disability
6. The twelve Judges, and the Barons of the Exchequer Judges that have judicial places (c), because they attend in the House of Lords. The Judges and Barons of the Exchequer in Scotland are ineligible, by 7 Geo. II. ch. 16, s. 4. And the Judges, Masters in Chancery, &c. in Ireland, by 1 & 2 Geo. IV. ch. 44. Formerly the Attorney-General
(a) C. J. 28 May, 1624. But as the outlawry, after inquisition found, would vest the outlaws' estates in the Crown, until reversal, it would appear that the person could not be a Member, not having the requisite property qualification. (6) 4 Inst. 47, 48; 1 Bl. Com. 175.
(c) C. J. 9 Nov. 1605. * There have been instances where the House has deemed persons unworthy to sit in Parliament, by reason of offences amounting in law only to misdemeanours. (See the case of Mr. Walsh, C. J. 5 March, 1812.)