Doubtful questions in the law of elections stated and canvassed

Chapter I. On The Disqualification Of A Voter Arising From Pauperism

Receipt of parish relief a clear disqualification where almsmen are excluded by the terms of a last determination settling the right of election — so also where there is a local usage — so also where the franchise is in inhabitants paying scot and lot, or potwalling — but doubtful in case of freeholders — and questioned on principle in case of corporators and freemen — unless where the freedom is

' lost by parish relief according to the laws of the corporation. — Essex, Crickdale, and Gloucestershire cases decided that freeholders were disqualified by parish relief — Bedfordshire case contra — question unsettled — these cases considered — the latter an authority against a common law disability — argument that paupers are disqualified because they could not pay wages to members answered. — General reasoning against a common law disability.

Pages 1 — 24

Chapter II. Of Votes Arising From Purchased Land-tax In Boroughs

Clear that purchased land-tax gives a vote in counties — votes received at Aylesbury. — A doubt raised as to bo- A 2

VI CONTENTS.

it does under the Treating Act ? — Lord Glenbervie thinks not, on principle — cases contra. — Resolution against treating and bribery in 1677. — Statute of William founded on it — the question only arises when the bribing member has a majority o? incorrupt votes — if returned by bribed votes, the petitioning candidate is seated. — View of the cases before and since the statute. — Seinble on the whole that any act of bribery avoids the election and disables the member, although he is returned by fair votes. — Incapacity extends to any future election to fill up the vacancy — and to unsuccessful candidates — and if notice given, votes thrown away, and petitioner seated, though with minority of votes. — Lord Glenbervie's question — whether member bribing a voter is disqualified, if voter vote against him — semble that he clearly is. Pages 63 — 83

CHAPTER Vin.

ON THE LEGALITY OF PAYING TO VOTERS THEIR REASONABLE EXPENSES, AND A FAIR COMPENSATION FOR LOST TIME.

Question stated. — Objects of legislature in the resolution of 1677, and the Treating Act of William, to repress corruption and lighten expenses of members. — For a long period no distinction made of fair expenses from extravagant or corrupt payments. — Cases on the subject before committees stated — cases before the courts of law. — Committees have generally held payments legal if reasonable and incorrupt — co;2/ra the decisions of Common Pleas, and Wood Baron. — Authorities of Lord Ellenborough and C. B. Thomson turned merely on the Bribery Act — question different under the Treating Act and the Bribery Act — several constructions of the former. — Question under the bribery laws — Result. — Lord Mansfield's speech on Lord Mahon's bill prohibiting the payment of expenses to voters -" Pages Si — 127

CONTENTS. Vll

CHAPTER IX.

WHETHER FREEHOLD ANNUITIES GRANTED BY WILL QUALIFY TO VOTE WITHOUT REGISTRATION.

3 Geo. 3. c. 24. requiring annuities and rent-charges to be registered, seems to apply only to annuities granted by deed, and not those devised by will. — Decisions of committees contra — perhaps proceeded on ground of the annuities not being assessed to land-tax, which they seem to require by 20 Geo. 3. e. 17. — Semble thdX such annuities do not require registration - - Pages 128 — 132

CHAPTER I.

OF THE DISQUALIFICATION OF A VOTER ARISING FROM PAUPERISM.

1 HE receipt of alms, parish relief, or charity funds, is held in many cases an established objection to a voter, on the alleged ground, that a person so indigent as to depend for subsistence on others, is to be presumed without an independent will of his own. As this objection obviously assumes a similar shape to those of alienage, minority, insanit}^ &c., tending to disqualify the voter as not strictly sui juris, on general legal principles it would seem that it should be strictly made out, and not received with encouragement. That it is, however, settled to be in many cases a valid objection cannot be questioned, and the only doubt is, as to the precise principle on which it rests, and the exact extent to which it operates. In the numerous cases where the right of election is settled in particular places by agreement, or last determination of a committee, to exclude persons " receiving alms," or " receiv-

B ing alms or charity," the question is, of course, beyond doubt. So, also, where a local usage is proved to exclude such persons. And as little doubt appears to exist in principle in those cases where pauperism is directly and necessarily inconsistent with the possession of the particular qualification to which the franchise is annexed, as in cases where the right is in Inhabitants paying scot and lot and Potwallers. \_Great Grimsby^ 1 PeckxvelU 59. Wootton Basset, 1819. Male on Elect, p. 166.] In none of these cases is it at all necessary to resort to the ground of a general disqualification at common law. In the first class of cases, the determination of the House of Commons, made conclusive by ^8 Geo. 3. c.5'2. ss. 25 — 27., and in the second the local usage has limited the right of election in the particular place by the express exclusion of persons in receipt of alms, &c. ; and in the last case the receipt of alms, when proved, obviously and directly goes to negative the possession of the particular franchise ; since it is clear that a person subsisting on jiarish relief, or charity funds, can neither be an inhabitant, contributing to palish burdens, nor can he come within the description of a Potwaller, that is, a person furnishing his oum diet. [1 Doug. 371.] The inference, indeed, is not quite so direct when the exclusion is on the ground of receipt of alms by the wife or child of the voter ; (to which extent the principle is carried, [Great Grimsby^ 1 Peck. 71. Okehainptony ibid. 373.] — but still there is a strong prima facie presumption at least, that the party whose wife or child is left to subsist on alms cannot be himself in condition to contribute to parish rates ; and it is no very violent narrowing of the definition of a potwaller to hold a person not within it, who though he may support himself, leaves those whom he is bound to support to live on parish relief or charity. These cases, therefore, fairly rest on the indisputable ground that the condition of pauperism is repugnant to the nature of the particular franchise, and they require no support from any principle of common law disability. It is unnecessary, therefore, here further to notice them.

But the decided cases go much beyond this line ; and the reasonings and arguments in the reports and works of text writers frequently treat pauperism as a personal common law disqualification, incapacitating the voter in all cases, whatever may be the nature of the particular franchise. [2 Doug. 331. Heywood C. 167.] It is considered as a legal presumption, that parish poor and persons receiving aid from charitable funds have no independent will of their own — it is said that at common law only those could vote who could contribute to the expences of representatives - — that pauperism

B 2 being the fact to be ascertained, the receipt of ahns or parish reUef is the best evidence of the fact — that the decisions of the House of Commons either expressly hmiting the right of election in particular places to persons not receiving alms, or rejecting particular votes on this objection, are so numerous, and applied to such various species of franchise, that they cannot be referred to any less extensive principle than that of a general incapacity at common law — that these determinations are declaratory of the common law — that there is no resolution where the House has resolved that such persons were not disqualified — and that in one case [^Sanduich, 1690, 10 Joz/?'7z. 457. Heywood C. IQ'J .~], where the committee reported a usage for them to vote, the House disagreed. And first, it will be convenient shortly to review the decisions, and next to consider the general reasonings on the question. In cases where the franchise is strictly personal, as in freemen and other members of corporations, or wliere it is in its nature real, as in freeholders, (whether in counties, cities, or boroughs,) in holders of burgage tenements, or in inhabitant householders^ (it is convenient, and perhaps not very inaccurate, to class this last with real qualifications, as it falls within the same principle,) in these cases, as the fact of pauperism does not in any way go to impeach the voter's possession of the specific qualification, it would appear that it can be a valid objection to his vote, only on the ground of a personal disability, arising from his destitute condition affording a presumption in law against the independence of his will. It is therefore important to enquire how far the authorities have allowed the objection in cases respecting franchises of this nature.

1st. In cases where the right of voting is entirely personal (as in " freemen," " inhabitants," &c.) there are two old resolutions, affirming the right of almsmen to vote. In "^ Journ. 35J ., it is stated to be proved at St. Albans, that almsmen '< had voices time out of mind," and decided, " that they ought to have voices ;" and the person for whom they had voted was duly elected. [^Heywood C. 264. ^2d edit.'] However, as the right of election at St. Alban's was settled, in 1716, to be confined to " such householders only as pay scot and lot ^^^ the former resolution is virtually repealed. So at Chester, (where the right is in freemen, ) 2d December, lt)90, it was proved almsmen had always voted. [^Heywood C. ^60, 2d edit.] Sandwich, 31st October, 1690, the right of election was agreed to be in freemen of tlie port, inhabiting within the port. Mr. Brent had 124, and Mr. Mitchell 114 votes. The former was returned, and the latter petitioned. In order to give himself a majority, Mr. Mitchell objected to thirty of the opposite

B 3 voters as almsmen. But it appearing to the committee that freemen in general had always voted, they came to two resolutions: — 1st, " That it is the opinion of the committee that the freemen of the port of Sandwich inhabiting within the said port, although they receive alms, have a right to vote in electing barons to serve in Parliament." 2d, " That Edward Brent, Esq. was duly elected." [10 Journ. 457.] The first resolution being reported, the question was put, that the House do agree with the committee ; and it passed in the negative : and yet, singularly enough, the House agreed in the second resolution, by a majority of" oney that Mr. Brent was duly elected ; though, if the almsmen were excluded, the numbers were clearly against Mr. Brent. Without enquiring by what parliamentary arithmetic these conflicting resolutions are to be reconciled, the first resolution is not only a strong authority against the right of almsmen and poor to vote in respect of the franchise of freemen, but it would appear from it as if the House must have proceeded on the principle of a general disability in paupers, which could not be got over, by tlie express evidence proving, to the satisfaction of the committee, a usage to receive their votes in that particular place. In the Sudbury case, I78O, (where the right is in freemen,) seven voters for the sitting member were disallowed, on the ground of parish relief received within the year, as appears by the state of the poll. [1 Phillips' Ca. 213.] In the Cirencester case, (where the right is in inhabitant householders,) [2 Fraser, -i^S.] objection w^as taken to several votes, on the ground of the voters having sent their children and servants to the pest-house on the breaking out of the small-pox, where they were attended by the parish apothecary. The Committee resolved that such persons *' whose families had been admitted into the pest-house on account of the small-pox, without receiving any other parish reliefs were not disqualified;'* which seems to imply, that ordinary parish relief would have been held a disqualification. So in the case of Oakhampton, [1 Feck. o7S.] (where the right is in freeholders and freemen,) the vote of a freeman was held bad, on the ground of his having a child of five years old maintained in the workhouse.

In many corporations the receipt of parish relief is, according to the bye-laws or usage of the corporation, of itself, a ground for disfranchising the pauper, and striking him ofi' the roll of freemen ; and, of course, in such case his right of voting is suspended or destroyed, fiom the time of his being actually struck off, but not before. [1 Feck. 59.] An objection of this sort was made in the case of Great Grimsby, [1 Feck. 59.] and it was made in this shape, since it could not be sustained on the ground of

B 4 general incapacity as a pauper, since the voter was a militia-man, and the relief was given to his wife — and the 18 Geo. 3. c.59. s.Q5. * provides, " that any relief given to the family of a militia-man during actual service shall not deprive such mUitia-man from voting for the election of any member to serve in Parliament."

But the cases above stated proceed on no special ground of the voter having lost his freedom, according to the laws of the borough, by the receipt of alms, but on the general objection, that admitting his character of freeman, the receipt of alms operated to disqualify. There are other decisions to the same effect, and none the contrary way ; so that where the franchise is personal, it would seem that the receipt of parish relief or charity is settled — so far at least as authority goes — to be a valid objection to a voter.

Qd. In the cases of county elections, the authorities are not equally uniform, and as there appears to be no distinction between these cases

* No inference can be drawn from this enactment that the legislature considered receipt of parish relief a general disqualification at common law. It having been settled before the passing of the act that it was a disqualification i?i many cases, the act only meant to provide that relief given to the family of a militia-man in service should not be held to disqualify in those cases in which parish relief in general was held to have that operation.

and those of other franchises of a real nature, we will shortly notice them together. In later times, as the value of money has diminished, instances have not unfrequently occurred at county elections, of voters m possession of 4<0s. freeholds being nevertheless proved to be receiving parish relief or charity — and they have been often held disqualified on that ground. — Thus, in the contested election for Essex, in 1716, tried before the Committee of Privileges and Elections, the Chairman in his report to the House, in summing up the votes disqualified by evidence, states four disqualified for the petitioner as " receiving charity." [18 Journ. 44^7. Heywood C.ili. '2 Luders, 584.] In the Yorkshire petition in IJSo, it is stated as an objection, that several polled which were only " hospital men a7id received alms,''' [22 Jour. pp. 499, 500.] but the petitioner does not appear to have brought evidence in support of the objection ; and in the case of Oxfordshire, 1 1th March, 1755, a voter was disqualified, " as receiving alms, and as not being in possession of the freehold for which he voted," and on the 15th March, others were disqualified as not properly assessed, and «' as being almsmen." \_Heyw. C. 27O.] In the Gloucestershire case, Mr. Luders states, ** that " the objection was reckoned in the lists of those " whom the petitioner disqualified, and was like- *' wise made use of by the sitting member, al~

" though in another part of the case, the com- " petence of it was denied on his part; but this *' was in the case of a particular charity, as dis- *' tinguished from parish relief And it is with " reference to such cases, that I should under- " stand the chairman's observation in his book, " in wliich he treats the question as undecided. " For otherwise that is inconsistent with one of " the resolutions of that committee, in which, ♦' after argument, they permitted evidence to be *' given of the receipt of parish relief, in order to " disqualify a voter, thereby plainly deciding the " question. See pages 84. 125. I78, 179, ISO. of *' the resolves of that Committee, in the last of *' which the chairman adds a N. B., ' that the " case o( parish poor was 7iot argued' '* ['2 LuderSy 560. note~\ ; from w4iich it would rather appear that the objection of parish relief was admitted without dispute, and that the only question was, as to a voter in receipt of a certain charity.

The resolution of the Cricklade committee was on the vote of a freeholder of one of the adjoining hundreds, entitled to vote for the borough, under the 22 Geo. 3. c. 31. The committee, after hearing counsel on both sides, resolved, ** that Robert Strange, having within twelve months before the election received parish relief, was thereby disqualified from voting," and the principle was entirely admitted on objections to other votes at the same election. [2 Luders^ 323. 067. j

In the case ot' Downton, [I Luders^ 109.] •^ burgage-tenure borough, where the right of election was agreed to be " in the freeholders of antient burgage tenements, holden of the lord of the borough on the usual conditions,** the objection of parish relief was made to one voter, but the vote was rejected on another ground. Another voter was objected to on the ground of receiving an annual charity, called Stockman's charity, which was directed by the Trust deed not to be employed to the increase of the parish church-box, and not to be accounted an abatement of any relief usually provided for the poor of the parish, and the practice was not to give it to those receiving parish relief. Against the vote it was argued, that the receipt of the charity showed the party to be in a state of dependant poverty — that there could be no difference in this respect between votes in right of burgage tenures and those in other rights ; for the right, though annexed to the soil, was subject to the ordinary legal disqualifications, as women, infants, &c. were held incapable of exercising it — that the case of the borough of Westbury, 1st June, 1715, went a great way to determine this, for by that resolution concerning a borough of burgage tenure paupers were disqualified. " Resolved, that the right of election of members to serve in Parliament for Westbury, &c. is in every tenant of any burgage tenement in fee for life, or ninety-nine years determinable on lives, or by copies of court-roll, paying a burgage rent of 4fd. or Qd. yearly, being resident within the borough, and 7iot 7'ecetving alms.'* In support of the vote, the counsel argued that the objection, whenever made, was considered an unfavourable one — that the case of Westbury was not applicable, since there the right was not properly in burgage tenures, but a mixed right, and that even ifparishrelie/'disqu'd\iiied,ihh charity would not come under the same rule, according to the decisions in the Bedford case, [^ Doug. 94% 113.] and that it ought at least to have been shewn, that the charity was received after the voter acquired his right, which had not been proved. The committee resolved to admit the vote, but on which of the above grounds does not appear. In the case of Haslemere, another burgage-tenure borough, [^2 Doug. 319.] six votes were objected to, on the ground of receiving a charity, called Smith's charity ; and one was objected to, as having received parish reliet) " if the committee should think that a disqualification." The same sort of arguments were used by the counsel as are above noticed, but the reporter states, that '* the nature of the case was such as to render it impossible to deduce from the general determination of the committee, their opinion on the particular points."

IS

The cases above stated are certainly all either direct authorities for the disqualification or of no weight one way or the other; and on examination those of Essex, Cricklade, and Gloucestershire, are perhaps the only cases fairly to be considered authorities on the point, since in the Yorkshire case the objection being that the voters were '* ojili/ hospital-men and received alms,*' would, perhaps, warrant an inference that they were dwelling in the hospital, and not in possession of their freehold, which is an undoubted objection — and besides no evidence was offered — in one of the Oxfordshire cases, the voter disqualified was expressly stated " not to be in possession,*' — and in the other, " not to be properly assessed." In the Downton case, the vote was received, though on what ground does not appear — and in the Haslemere case the decision is not known.

There is, however, a case posterior to these, and determined a few days subsequent to the Cricklade case, and on a review of that case, and on full discussion by counsel, where the committee twice resolved, that the receipt of parish relief was no disqualification of a 405. freeholder, provided he remained in possession of his freehold. [^Bedfordshire case, 9, Luders, 5^i>. 567-] John Houghland was objected to as having received parish alms within a year before the election. In support of the objection it was said, that if it held against voters in boroughs, it ought to hold a fortiori in counties, where the right of voting is to be derived from property, and is not a personal right — that though there was no express resolution in the Journals applying to counties, yet it had been always understood to be equally an objection in them as in boroughs — that the Cricklade committee had a few days before passed a direct resolution in confirmation of it, and their authority made it r^es judicata. On the other side it was said, that the reason for considering the receipt of alms as a disqualification in boroughs, was because of the person thereby becoming a dependant member of society, without property to maintain him, — that in such a case it was 2l personal disqualification from exercising a personal right. But that in counties, a freeholder possessing 405. a-year was the only necessary qualification, and while that remained with him, the law would not suppose him to be in a state of indigence. That it ought rather to be presumed, that his receipt of alms was only accidental, because the parish need not have relieved him, if he refused to give them up his property, which they might have required from him ; and that their suffering him to retain it argued that he was not considered by them as one of their ordinary poor. The Committee held the vote good. The following motion, " that parish alms paid to a freeholder do invalidate his

1.^

vote, although he continues in possession of a freehold of the clear yearly value of 40.!.-." passed in the negative. [2 LuderSy 56i.]i On a subsequent vote at the same election, a dispute arose as to the meaning of the resolution above stated, which the committee explained to mean, *' that parish relief made no disqualification while the voter retained the possession of his freehold." It appeared that the voter received parish relief" but was in possession of his estate, from which he derived 40^. a-year, and the committee allowed the vote to be good. [2 Liiders^ 567.] No decision on the point subsequent to that of the Bedfordshire committee is to be found in the Journals or Reports in the case of a county election, or of any election where the franchise is of a real nature ; and it is stated in several modern works on election law, that the question is now understood to be settled as to freeholders conformably with the Bedfordshire case. [^Male on Elect, p. 293. Rogers on Elect. 126.]

If the point is settled as to freeholders, it will then become a question how their case is to be distinguished from that of freemen. Now, if the Bedfordshire case went on the principle suggested by counsel in argument, that the voter being in possession of his freehold, the law would not presume him to be in a state of indigence, it cannot be taken for a general authority against the existence of a common law disability

If)

in paupers ; on the contrary, it would seem to admit such a disability, but to hold that the voter being in possession of the required freehold, was not brought within it, — that the inference of indigence was rebutted by the possession of the freehold. And in this view the case would not appear inconsistent with the decisions in cases of personal franchise, which can only have proceeded on the ground of common law disability, and where the same presumption against indigence might not necessarily arise from the possession of a mere personal qualification. But if, on the other hand, the Bedfordshire case went on the broader, and, as I humbly submit, the sounder principle, that the party possessed of the specific statutory qualification was entitled to vote without any further inquiry into his circumstances, since pauperism works no general disability, and in this case clearly does not negative the specific qualification, then the principle of the decision would seem equally to apply to any specific franchise, real or personal, and would, therefore, directly tend to shake the decisions, excluding paupers in cases of personal franchise. In either view of the Bedfordshire case, it is plain that it is directly opposed to the Essex, Gloucestershire, and Cricklade cases ; and as those cases may not, perhaps, be considered as authoritatively over-ruled by this single decision, the question as to votes of paupers in counties, and other cases of real franchise, and still more the question as to the principle of common-law disability, would appear not so determined as to preclude general reasonings.

From the last determinations of Committees, settling the right of voting in particular places in exclusion of paupers, it would at first sight appear to be inferred, that a local usage to exclude them had been proved, and that in places where the determination has no such restriction the objection would not be tenable ; but as there is reason to suppose that local usage has in fact not been the foundation of these resolutions, but probably the restrictive words have been introduced in those cases, where it happened that pauper votes had been discussed and rejected in the course of the proceedings, and omitted where no such question had arisen, it cannot be concluded that these resolutions proceeded on the ground of local usage ; and the number of these restricted resolutions, applying to almost every species of town or borough franchise, would also lead to the contrary inference, and would seem to show that the Committees must have decided on the notion of some general parliamentary or common law incapacity arising from the fact of pauperism ; and the first resolution in the Sandwich case, where the House disregarded the local usage proved

c

Strongly supports such an inference. Supposing, however, that such were the ground of many, or even all, of these restricted resolutions, still they cannot be held to have settled the principle by their authority — since they are only decisive on the particular right of election in the particular place — the principle which guided the resolution cannot be legitimately and certainly got at — and even if it could, it may have been erroneous, and the resolution cannot in such case have established it as a general law, so as to preclude its being questioned in any other case.

But it is said, that paupers cannot vote, because none could originally vote who did not contribute to the expenses of members. Admitting for a moment this very doubtful fact, it would certainly afford a good reason for excluding them, if the contributing to expenses were 7iow a condition annexed to the right of voting ; but when such a condition is altogether abolished, and the writs de expensis have ceased for some centuries, it is a singular argument to use, that paupers now are incompetent to vote because they are not in a situation to fulfil what would have been a condition precedent to their voting had they come to the poll four centuries ago. — Assuming that voting and contributing were once always concurrent, paupers were undoubtedly contributabley if they happened to possess i9

the legal qualification. The inability to contribute infacty might at that time be a good objection to the voter pro hac vice ; and if at the next election he could contribute, he would then vote. But the ability to contribute was never the essential qualification : it may have been — though this is not certain — a mere incidental requisite, and if so, it has now entirely fallen away, and with it all objection arising from such inability has of course in principle ceased. Papists cannot now vote, on account of the test-oaths which may be required of them : but, supposing the oaths repealed, could it be said to them, " You cannot vote, because formerly none could vote but those who took the oaths ?'* The answer would be, " I have the freehold, or the freedom, &c. which is the only qualification now required by law. Show me any other condition which the law requires me to fulfil.'* In the same manner may the pauper now say, '* I am in possession of my statutory freehold, or my freedom of a corporation : this being the only legal qualification required, on which all other persons are admitted to vote (except aliens, minors, women, and idiots), by what right is more required of me ? Show me the law which says that, being possessed of these, I am still to be examined as to my pecuniary sufficiency, and that if I have a child or wife in the workhouse, or have received charitable aid within a year, my