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any of the officers following, (viz. commiffioners of prizes, tranfports, fick and wounded, wine licences, navy, and victualling; secretaries or receivers of prizes; comptrollers of the army accounts; agents for regiments; governors of plantations and their deputies; officers of Minorca or Gibraltar; officers of the excife and customs; clerks or deputies in the[176] feveral offices of the treafury, exchequer, navy, victualling, admiralty, pay of the army or navy, fecretaries of ftate, falt, ftamps, appeals, wine licences, hackney coaches, hawkers and pedlars) nor any persons that hold any new office under the crown created fince 1705, are capable of being elected or fitting as members (39). 6. That no perfon having a penfion

c Stat. 11 & 12 W. III. c. 2. 12 & 13 W. III. c. 10. 6 Ann. c. 7. 15

Geo. II. c. 22.

d Stat. 6 Ann. c. 7.

(39) All the persons enumerated above are utterly incapable of fitting in the house of commons, whilft they continue in their respective fituations; and amongst these are all perfons who accept from the crown any office created fince 1705. But by the 26th fection of the fame act, 6 Ann. c. 7. if any member fhall accept of any office of profit from the crown, his election or feat becomes void, but he may be re-elected. This means an office of profit, which was in existence prior to 1705.

The office or fruft of a member of parliament cannot be refigned, and every member is compellable to discharge the duties of it, unless he can fhew fuch cause, as the house in it's discretion will think a fufficient excufe for his non-attendance upon a call of the house. The only way therefore of vacating a feat, is by accepting a fituation, in confequence of which the law declares his feat vacant. So where members wish to vacate their feats and retire from parliament, it is now usual for the crown to grant them the office of the stewardship of the Chiltern Hundreds. Mr. Hatfell obferves, that "the practice of accepting this nominal office, "which began, he believes, only about the year 1750, has been

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now fo long acquiefced in from it's convenience to all parties, "that it would be ridiculous to ftate any doubt about the legality "of it's proceedings; otherwise, (he believes,) it would be found "very difficult, from the form of these appointments, to fhew "that it is an office of profit under the crown." (2 Hatf. 41.)

under the crown during pleasure, or for any term of years, is capable of being elected or fitting. 7. That if any member accepts an office under the crown, except an officer in the army or navy accepting a new commiffion, his feat is void; but fuch member is capable of being re-elected'. 8. That all knights of the fhire fhall be actual knights, or fuch notable efquires and gentlemen as have estates fufficient to be knights (40), and by no means of the degree of yeomen. This is reduced to a ftill greater certainty, by ordaining, 9. That every knight of a fhire fhall have a clear eftate of freehold or copyhold (41) to the value of fix hundred pounds per annum, and every citizen and burgess to the value of three hundred pounds: except the eldest fons of peers, and of perfons qualified to be knights of fhires, and except the members for the two univerfities": which fomewhat balances the afcendant which the boroughs have gained over the counties, by obliging the trading intereft to make choice of landed men : and of this qualification the member must make oath, and give in the particulars in writing, at the time of his taking his feat (42). But, fub

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But Mr. Hatfell himself raifes a doubt, which I do not think he removes; for furely no ufage fince 1750, or no ufage whatever, can countervail the clear and exprefs words of an act of parliament.

(40) This, by the ftatute de militibus 1 Ed. II. was twenty pounds a year, and put in force against those who had 401. a year till 16 Car. I. c. 16. See p. 404.

(41) Or mortgage, if the mortgagee has been feven years in poffeffion.

(42) By 22 Geo. III. c. 45. no contractor with the officers of government, or with any other perfon for the fervice of the public, fhall be capable of being elected, or of fitting in the house, as long as he holds any fuch contract, or derives any benefit from it. But this does not extend to contracts with corporations, or with companies, which then confifted of ten partners, or to any

perfon

ject to these standing reftrictions and difqualifications, every fubject of the realm is eligible of common right: though there are inftances, wherein perfons in particular circumftances have forfeited that common right, and have been declared ineligible for that parliament by a vote of the house of commons J, or for ever by an act of the legislature (43). But it was an unconstitutional prohibition, which was grounded on an ordinance of the house of lords', and inferted in the king's writs, for the parliament holden at Coventry, 6 Hen. IV, that no apprentice or other man of the law fhould be elected [177] a knight of the fhire therein in return for which, our law books and hiftorians" have branded this parliament with the name of parliamentum indoctum, or the lack-learning parliament; and fir Edward Coke obferves with fome fpleen °, that there was never a good law made thereat.

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perfon to whom the intereft of fuch a contract shall accrue by marriage or operation of law for the first twelve months. And if any perfon difqualified by fuch a contract fhall fit in the houfe, he fhall forfeit 500l. for every day; and if any perfon who engages in a contract with government, admits any member of parliament to a share of it, he shall forfeit 500l. to the profe.

cutor.

(43) This claufe from the word (though) has been added fince 1769, the time when the Middlesex election was difcuffed in the house of commons. The learned Judge upon that occafion maintained the incapacity of Mr. Wilkes to be re-elected that parliament, in confequence of his expulfion; and as he had not mentioned expulfion as one of the difqualifications of a candidate, the preceding fentence was cited against him in the house of commons, and he was afterwards attacked upon the fame ground by Junius (let. 18.), and, as I conceive, undefervedly; for hard would be the fate of authors, if, whilft they are labouring to remove the errors of others, they should for ever be condemned to retain their own. note (16), p. 163.

See

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3. THE

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 margin ?; all which I fhall blend together, and extract out of them a fummary account of the method of proceeding to elections.

As foon as the parliament is fummoned, the lord chancellor (or if a vacancy happens during the fitting of parliament, the speaker, by order of the house; and without fuch order, if a vacancy happens by death, or the member's becoming a peer (44), in the time of a recefs for upwards of twenty days)

P7 Hen. IV. c. 15. S Hen. VI. c. 7. 23 Hen. VI. c. 14. 1 W. & M. At. 1.. c. 2. 2 W. & M. ft.1 c. 7. 5 & 6 W. & M. c. 20. 7 W. III. c. 4. 7 & 8 W. III. c. 7. and c. 25. 10 & 11 W. III. C. 7. 12 & 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. 8Geo.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 recefs, the 24 Geo. II. f. 2. c. 26. which repeals the former ftatutes 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 iffued under the great feal to call up any member to the houfe of lords, the speaker shall forthwith give notice of it to be inferted in the Gazette; and at the end of fourteen days after fuch infertion, he shall iffue his warrant to the clerk of the crown, commanding him to make out a new writ for the election of another member. But this shall not extend to any cafe where there is a petition depending concerning fuch vacant feat, or where the writ for the election of the member fo vacating had not been returned fifteen days before the end of the laft fitting of the house, or where the new writ cannot iffue before the next meeting of the house for the dispatch 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 feat, at the beginning of every parliament he fhall appoint any number of members from three to seven inclufive, 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 ftatute. These are the only cafes provided for by act of parliament; fo for any other fpecies of vacancy no writ can iffue during a recefs.

fends

fends his warrant to the clerk of the crown in chancery; who thereupon iffues out writs to the fheriff of every county, for the election of all the members to ferve 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 feal, to the proper returning officers of the cities and boroughs, commanding them to elect their members: and the faid returning officers are to proceed to election within eight days from the reeeipt of the precept, giving four days notice of the fame ; and to return the perfons chofen, together with the precept, to the fheriff.

BUT elections of knights of the fhire must be proceeded to by the fheriffs themselves in perfon, at the next county court that shall happen after the delivery of the writ. The county [ 178 ] court is a court held every month or oftener by the sheriff, intended to try little caufes not exceeding the value of forty fhillings, in what part of the county he pleases to appoint for that purpose: but for the election of knights of the fhire it must be held at the most usual place. If the county court falls upon the day of delivering the writ, or within fix days after, the fheriff may adjourn the court and election to fome other convenient time, not longer than fixteen days, nor fhorter than ten; but he cannot alter the place, without the confent of all the candidates: and, in all fuch cafes, ten days public notice must be given of the time and place of the election (46).

9 In the borough of New Shoreham in Suffex, 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 no-
tice of the fame.

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

(46) This is altered by 25 Geo. III. c. 84. which enacts, that in every county, the fheriff having indorfed on the back of the writ the day on which he receives it, fhall, within two days after the receipt thereof, caufe proclamation to be made at the place where the enfuing election ought by law to be held, of a special

county

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