The Sun.
London, England, 1841-10-02 00:00:00

EVEN IN( SUN

WESTMINSTER REGISTRATION.
•
(THIS DAY.)
(Before Mr. ARNOLD.)
The Learned Revising Barrister gave judgment this
morning in several cases, in which, from their impor-
tance, he had reserved his decision.
LORD DINORBEN'S CASE.
Mr. ARNOLD said, this is the case of a party who
claiMs to be placed on the list of voters, for the city of
Westminster, as being possessed of the qualifications
mentioned in the 27th section of the Reform Act (2 W.
,c. 43) which enacts, " That in every city or borough,
which shall return a Member or Members to serve in
any future Parliament, every male person, of full age,
and not subject to any legal incapacity, who shall occupy,
within such city or borough, &c., any house, &c., of the
clear yearly value of not less than 10/. shall, if duly re-,
gistered according to the provisions hereinafter contia‘ tined.
be entitled to vote in the election of a Member tn.
city
bers'to serve in any future Parliament for suchteley:e_
borough." Then, follow the provisions thatanth_
have
cuer must be rated to the poor's-rate, t
a.nd have
Paid such rate, and the assessed taxes,.
resided for a certain time either in thocqy or within a
certain distance thereof. By the 44th section, the oyer-
C_Trs of parishes in every city and borough are required
to make out a list " of all persons who may be entitled,
by Virtue cf this Act, to vote in the election of Members
fur bers
fur' such city or borough.
By the 47th section, it s
enacted that every person, omitted in such lists, " who
shall claim to have his name inserted therein, as having
bien entitled on the last day of July then next preceding,"
may give a notice of claim according to the form set out
in the schedule, by which notice the party claims to have
his name inserted in the list of persons entitled to vote in
the election of Members for the city. And by the 50th sec-
tion, the Revising Barrister is required to insert in the lists
of voters " the name of every person who shall be
proved, to his satisfaction, to have been entitled, on the
last day of July then next preceding, to have his name
inserted in any such lists of voters for such city or bo-
rough." Now it appears to me that the effect of these
enactments is, that I ought not to insert in the lists the
name of the present claimant, unless it is proved to my
satisfaction that he is entitled to vote at an eketion of
Members for this city. It is admitted that the claimant
has a sufficient qualification under the 27th' section of
the Act, as regards all the positive requisites there stated;
but it was proved that he is a Peer of the realm, and Was at.
on and before the 31st of last Tulv such has sat and
voted in the House of Lords. The important question,
therefore, that I have to decide is, whether a Peer can
vote at the election of a Member of the House of Com-
Mons, or whether he falls within the exception of the
27th section, and is "subject: to any legal incapacity" in
that respect. The gentleman who attended on behalf of
his Lordship to enforce the claim, informed me that his
Lordship was already on the list of voters _in two or
three of the Welsh counties, and that in one of them
the question had been discussed before the Revising
Barrister, who had admitted the claim. I should have
been glad if I could have been furnished with any note
of that decision, that I might have seen the grounds upon
which it was formed ; but in the absence of any such
assistance, I must form my opinion in the best manner I
can from a review of the constitutional law upon the subject.
I was reminded in the course of the argument that there
is no statute by which a Peer is incapacitated from
voting in the election of a Member of the House of
Commons. Nor is any statute necessary on the subject,
for if a Peer of the realm is not qualified to vote, such
'disqualification will arise from the law of Parliament.
There is no statute that I am aware of by which
aliens are disqualified from voting at elections, or from
becoming Members of Parliament. There is no statute
—at least prior to the Reform Act—by which women
are disqualified from' voting. Again—there is no sta-
tute by which the Judges of the Superior Courts of
Coinmon Law at Westminster are disqualified from be-
ing Members of the House of Commons. But all
these are well-known and undisputed doctrines of Parlia-
mentary law. There is no statute even by which
Peers of the realm are expressly disqualified from being
elected Members of the House of Commons, but the bare
enunciation of such a proposition is sufficient to show its
absurdity ; but it may be carried yet one step further,
by r
observing
4.0re,0 that there is no statute by which the So-
veereign of the realm is precluded from voting for a Mem-
bf Parliament. Into the law of Parliament, there-
',' must look for the doctrine upon this subject.
RI
was made to the Sessional Order of the House
of Commons, declaring, " That it is a high inCringement
of the liberties and privileges of the Commons of the
United Kingdom for any Lord of Parliament, or other
Pier or Prelate, &c., &c., &c., to concern himself in the
election of Members to serve for the Commons in Parlia-
ment;" and it was contended that this Order of the House
of Commons could not have the force of a law, inasmuch
as that House, being only one branch of the Legis-
lature, could not make a law—that even if it had such
force, it would only be of effect during the
Sessions of Parliament, and that its power would expire
dupon a dissolution; and that, at any rate, whatever vali-
ity this resolution might have, and whatever penalties
Peer might incur by reason of infringing it, disfran-
chisement was not necessarily among them. With re-
gard to the observations that the House of Commons can-
riot make law, it is a plain and self-evident proposition,
.for laws can only be made by the Queen and Parliament
'that is, by the Queen, the Lords, and Commons ; but
the power of declaring what the law is in any particular
ease, is of necessity vested in various tribunals, as the
Power of declaring the common law is vested in the
Courts of Common Law, and the power of declaring the
law f p •
0 ornament is vested in either House of Parlia-
ment respectively and most .particularly, is the power
of
declaring the law of Parliament, with re-
d to elections of Members of the House of
An
1„;71„cTs, vested in that House, as the peculiarly
rd""n)P
it tribunal for deciding upon such matters.
tis found that the House of Commons have
te:tl' to a clear ai:d express resolution upon a subject re-
bind •ng to election law, that resolution is, in my opinion,
uing upon every other tribunal, and most especially
• upon a person sitting in my situation, for the purpose of
revising the of voters for returning Members to
t. at HOO,O
;land I cannot perceive that such a resolu-
ion
loses any of its force or effect from the circum-
stance of the House bringing it before the public notice
e'er, the commencement of every Session. If this, how-
Ztwere were the only resolution of the House of Commons
iii.c,lth,! subject, I should, perhaps, feel some difficulty in
ling how to apply it to the case of a Peer voting at
15/Int election, and should doubt, perhaps, whether it was
ended to apply to such a case, or only to the pr
accbof unconstitutional and positive interference by
of -r on such occasions to influence the votes
obi.—tt„others. That such was it; original scope and
• appears, I think, from the first instance of such a
esolution, which seems to have been passed as early as
1641 (20th Dec., 2 Com. Journ. 337), and was directed
to Peers interfering at elections, by sending letters
"°r°l4:lls, directing them whom they should elect ; a
What similar interference to that recorded by the
'ne
gstorian Walsingham, on the part of King Richard the
who is stated to have called the Sheriffs, Jus-
&c., to Nottingham, where it was proposed to the
ri'riffs that they should not permit any Knight of the
nty to be chosen to the Parliament but such as the
sillng, and his Council should appoint, unto which the
heireriff answered, " That the Commons would keep
Ah old customs which will that the Knights be elected
rithe Commons."—[Ypodigma Neustria?, fo. 531,
13;t ; cited Whitelock, vol. i, ch. 42, p. 383.]
:t• ) whatever ay be the effect of the resolu-
in question, it does not appear to me to
necessary now to consider, it, inasmuch as
::q_Ple.Year 1699 the House of Commons came to a dis-
.7!lleect.tesolution that no Peer ad ma
right to vote in the
election of Members of the House of Commons. The
rounistances which gave rise to this resolution will be
‘.o.oad in the 13th volume of the Commons' Journals, and
twiteil:e briefly as follows :—On the 16th of November a pe-
mr'r! Ivus presented by Wm. Fitch against the return of
beil Irby Montague for Malden, in Essex, Mr. Fitch
10'2% a candidate ; and this petition was referred to 'the
ID`,!rnntee of Privileges .
—(l3 Com. Journ. 5.) On the
of December following, a Report from the Com-
alattee was brought up, in which the evidence was de-
taied. It appeared that it was insisted on behalf of
the petitioner (among other things) that five voters,
4Leaong whom was the Earl of Manchester, which stood
bPon the sitting Member's poll, ought not to be allowed
43„ good votes for him." Anil it was peoved that the Earl of
41anchester had voted for the sitting Member ; after
tetting out the evidence relating to the other votes, the
•ktot. Port concludes by a resolution of the Committee, that
"4,1% Montague was duly elected, and this resolution was
i,ttupted by the House upon a division by 171 to 96; and
R-len follows this entry :—" Resolved, nemine contradi-
(e, that no Peer of this Kingdom bath any right to
earl his vote in the election for any Member to serve in
ent."- (13 Corn. Journ. 63.) This resolution
appears (13
have been adopted as a standing resolution
itlf the House upon the meeting of a new Parliament
'll 17
beauoo (13 Feb., 13 Com. Journ. 326), and is, I
thate;'e, to be found as a regular sessional resolution from
tine to the present, in exactly the same words, except
ti,4,ltom the time of the Union with Ireland, an addi-
Nvhij Seint9ce was introduced relating to Irish Peers,
klvtl,l.t is not necessary to notice in this instance.
the 4'_.'B appears. to me to be a distinct adjudication by
the Zuse of Commons upon the subject, of which in
coguizialatlen I now occupy, I think I am bound to take
tn il'ee; nor, I may add, would the rule be unknown
for jinuti°ltjog at the
.matt.er merely as a common lawyer,
44%, by C, the resolution imported as a proposition of
t 9).
111 t4tli. Comyn in his Digest. Tit. Parliament (D.
although such is my own opinion as to the
Ppeat° `anditv of these resolutions of the House, there
njl~thr sto h -
owa eve been something in the nature of a doubt
upon
_them b no less an authority than a Com-
a/e/t: the House itself; for I find that in Lord South-
,the,que34.l% to.roitwich, (Knapp and Ombler, 69), where
.)s as as to the validity of the vote of an Irish
air the r, ng a Member of the House of Commons (who,
sat, . eurpose,
e h of the present argument, stands upon the
as... an English Peer), the Committee came to a
ellO st,ti,e That they were of opinion that there was
_hoed under which the Barrister could have ex-
-4-t'1)1131 the list the name of Lord Southwell, but
rde,
0,
,?itnselves called upon to enforce the Standing
teetion.!, t,o, House against the interference of Peers at
~eelti,,,;tltLy struck his name off the poll." Without
thinfc"".llupugn the authority of this resolution I may, 1
ahseys , without its
for,`'ee of an Propriety, observe—First, that the
p_r us, f
r La3ry statutory prohibition on the subject af-
, oof t'',o
ee..already taken occasion to remark, no
ttpreattentiuone
o..istence of the right ; and secondly, that;
lieeeted to t
the the Committee seems only to have been
tt-esolution against the interference of
e9t; and that
hey do not notice the resolution expressly
inggathtiivsinrg the right to vote. But still I cannot help consider-
the Itev. !soltion as an intitnati bylthe.Committee that
;Lord solusltnhg Barzister was right in he name of
e:etly called''llll on theca list ; and I thereforeavint feel, if not
_yr pon o so, at least justified in briefly
reasons why, u
ht
teonstantional grounds, I
pon • •
ließabe a has no rig
II Peerthe Souse of C ramo voonte3, inTt4h;
Parliament,

~_.
~--
=

• it is well known, consists of the King, or Queen Regnant,
as the head, and the three Estates of the realm as Mem-
uoanl
tLogether t epri
bderi3s,,. it-,h•lelict•hotridi,sreTeLE,msptadtreasLarNe—vholbsto,titihesi
t
e
. 2chamber with the Sovereign ; and 3dly, the Commons,
who from a very remote period of our history have been
an elective body, and have satin a chamber by themselves.
The very designation of this representative body, namely,
' th abuse of Commons
or the Conintons' Housc ofl'af liament,
would be alone a sufficient indication that they were elected
by and represented the commonalty of the realm, and
not the Peers, who are a distinct and separate body from
the Commons ; but there is abundant authority, from
Blackstone up to the earliest writers, that such is the
case.. [ln 1 Blackstone, p. 158, it is said, " The Cc m-
mons consist of all such men of property in the kingdom
as have not seats in the House of Lords, every one of
which has a voice in Parliament, either personally, or by
his representatives."] [Crompton in his Jurisdiction of
Courts, 26, says, " In the Lower House sit the Speaker,
and the knights of the shires, and of cities who are
counties of themselves, and other citizens of cities which
are not counties, and the burgesses of towns, and the
barons of the cinque ports, who (with a clergy who as-
semble in Paul's) represent the body of all the common-
alty of England."] [Lord Coke in 3 Inst. 1,
has the following passage, " The third estate
is the Commons of the Realm, whereof there be
knights of shires or counties, citizens of cities, and
burgesses of burghs. All which are respectively
elected by the Shires or Counties, Cities and Burghs, by
force of the King's writ, cx debito justiticr, and none
of- them ought to be omitted ; and these represent all
the Commons of the whole realm, and trusted for them."]
Indeed the very language of the Royal writ directed to
the Sheriff for the purpose of electing Members, points
out that the Knights who may be elected for the county,
" for themselves and the commonalty of the said city, &e.
&c., may ha ve full and sufficient power," &c. Whitelock, in
his learned treatise upon this writ, has several passages
that arc extremely pertinent to . the present subject. He
says—:" To begin with the Lords, the chief members of
our public councils, it is undoubted that they have their
seats and suffrages in our Parliaments, not by election of
the people, but by birthright of primogeniture." Vol. 1, c.
41. p. 367; and again —"And although the Peers of England
are not elected by the people, yet they were all at first
chosen by our Kings, and have been invested in that
rank of Peerage, either by holding land of the King by
the tenure of a Baroty, or by, being summoned by the
King's writ, to be MeMbers of the Lords' House in Par-
liament, or by being created T.ords,bythe King's letters
patent, as bath been noted. And they are not capable of
being elected Knights, Citizens, or Burgesses to serve in
Parliament; for the writ commands the Sheriff to cause
Knights, Citizens, and IZurgesses, not Dukes, Earls, or
Barons, to be, eleeted."(lb. p. 376.) And he then re-
fers to the case of Lord Camoys, who "being a Baronet
and a Baron, was elected Knight of the Shire for Surrey
—(7 Rich. 2.)—and the King by his Council, declared
that election to be void in law." And afterwards, in
commenting upon the words " Kllights,Citizens,ond Bur-
gesses," he says:—"These are the representatives of the
Commons of the whole kingdom, and are all of them of the
rank of Commons."—Ch. 61, vol. 2, p. 4. And, again,
" The difference between the constitution of the Lords
and Commons in Parliament is this :—The Lords repre-
sent themselves only; the Members of the House of Com-
mons are there for themselves, and for all the commonalty
of the several places for which they serve."—ld. ch. 75,
p. 87. And in another passage lie says, "It is a great
trust reposed in the Knights of Shires to have the power
of the whole commonalty of a county, of many thousands
of people conferred on them. So that whatsoever these
Knights, with the rest, shall do and consent unto in
Parliament, Both bind all the commonalty, not only of
the county for which they serve, but of the whole king-
dom. And because the Members of the House of
Commons have power for ' the commonalty' of the
several counties and places for which they
.serve, therefore they are frequently styled the
commonalty, that is by representation they are
the commonalty, and their acts are the acts of
the commonalty,' from whom they have their power,
and who are bound by them." And then, after referring
to some old Acts of Parliament in which "the common-
alty" are mentioned, he adds, " The like is to be seen in
sundry other Acts of our Parliament, where, because the
Members of the House of Commons do represent and
are empowered by the commonalty of the several places
for which they serve, therefore their Acts are called the
Acts of, and do bind the commonalty of, the whole king-
dom."—Ch. 66, vol. 2, pp. 88-9. I might add innunier-
, able authorities to the same effect ; but I will only sub-
join two passages from Lord Coke, which appear to me
to be strongly in point. The first is from 4 Inst. p. 4,
where he says, " Commons are in legal understanding
taken for the frank tenants or freeholders of the counties."
The terms of this passage might seem not expressly
to exclude Peers, but the author immediately . adds,
" And whosoever is not a Lord of Parliament, and of
the Lords' House, is of the House of Commons either in
person, or by representation, partly coagmentive and
partly representative." And the other from 2 Inst.
p. 29 : " The general division of persons by the law of
England is either one that is noble, and in respect of his
nobility of the Lords' House of Parliament ; or one of
the Commons of the Realm, and in respect thereof of
the House of Commons in Parliament." I have been
betrayed, perhaps, into an unnecessary length upon the
subject, but I was most anxious to give the matter the
fullest consideration in my power, partly in deference to
the .intimation of the Committee in Lord Southwell's
case, and partly from some expressions of opinion I
have met with which seem to point in another direction.
Thus, in Mr. Elliott's book on the qualification
and registration of electors, there is this passage,
" When the Members of the House of Peers were
first excluded from voting at the election of Members
of Parliament does not exactly appear. The •• returns
preserved by Prynne show that, at an ca rlier period of
our history, they exercised that privilege." The passage
in Prynne is not referred to. I have devoted a consi-
derable portion of time to searching the writings of that
learned and voluminous, but not very methodical, author,
but have not been fortunate enough to meet with the
returns alluded to. Nor do I think that " drawn," as
they are stated to he, from " the earlier period of our
history," when the constitutional rights and privileges
of the House of Commons were hardly settled, they
would affect my present view of this case. There is a
passage also in one of the speeches of Lord Redesdale,
when Speaker of the House of Commons (referred to
in Mr.Rogers's work onElectionLaw,p.lo2—last edition)
in reference to the resolution of the House, after the
Union, that Irish Peers should not vote unless
they were Members of the House, which is certainly de-
serving of notice. His Lordship (then Sir John Mitford)
said, that the policy of this resolution had been much
questioned, and that Peers who were so much interested
in motions of supply and taxation, ought to have votes
for Members of the Commons, with whom such motions
originated.—(7 Woodfall, Deb. 236.) Now if the fact
were that such motions not only originated with the
Commons, but that they had the power of making laws
on the subject, binding the Peers, there would be great
weight in the observation of Lord Redesdale ; but inas-
much as the Commons cannot bind the Peers in any
matter of supply and taxation, the House of Lords always
having a veto on Bills relating to such matters, the
reason seems to be altogether insufficient to invali-
date the policy of the resolutions in question.
Independently, therefore, of that resolution, I con-
ceive that from the principles of constitutional
law the following conclusions may be drawn :
That the House of Commons represents the common-
alty of the. Kingdom alone ; that none but a commoner
is entitled to vote for a Member of that House ; and that,
inasmuch as a Peer is not a commoner, he is not entitled
to vote at the election of a Member of the House of
Commons. It follows, that as I can only insert in the
list of voters the names of parties who are so entitled to
vote, the claim of Lord Dinorben, being a Peer, must
be disallowed.

Mr. AnNoLV also gave judgment. in the case of Wel-
bore Ellis Agar, Lord Norrnanton,
LORD NORMANTON'S CASE.
This case stands upon a very similar footing with the
last. It was an objection against retaining his Lord-
ships name upon the list of voters, by reason of some
supposed want of qualification. The qualification was.
however, established in all respects ; but, in the course
of the investigation, it transpired that his Lordship was
an Irish Peer, and was not a Member of the House of
Commons during the last year. There is no doubt that
before the Union with Ireland, an Irish Peer having a
sufficient qualification, might have voted for a Member
of the British House of Commons, and it was con-
sistent with all the principles of the Constitution that
he should do, otherwise .he would have been
unrepresented in respect of his property in this country,
as he had to voice, either personally or by representa-
tive, in the British House of Peer;; ; in other words, he
was a commoner in. Great Britain, not being considered
in law as an alien. By the Act for the Union of Great
Britain and Ireland (39 and 40 Geo. 111., c. 67), the 4th
article provides for the election for life by the Peers of
Ireland of twenty-eight Lords Temporal of Ireland, " to
sit and vote on the part of Ireland in the House of
Lords of the Parliament of the United Kingdom."
It Was also declared that any. Peer of Ireland not so
elected to sit in the House of Lords " should not
be disqualified from being elected to serve, if he
shall so think fit, or from serving, if he shall
so think fit, as a Member of the House of Commons,
but such Peer so long as he continued a Member of the
House of Commons was deelared " not to be entitled to
the privilege of Peerage, nor capable of being elected
to serve as a Peer on parttttehatisa
oft
the
Irelanedl,oeotrionof
of any
at any such election"
Peer) ; and that in all proceedings
Commoner.civilandc criminal he
biet
Was to be proceeded against
was further declared that‘ "the as a
hePeers of Ireland shall, as
Pexece;ofutsheaUforneisteadidl,.:ianigildiosTablle suedenj anadlitrpieidvialsegPeeserosi.
Peers as fully as the Peers of Great 030. r Britain,ord_rc ,thaen rightd
the
and privilege of sitting in the House. L
privileges depending thereon, and the right ofof stlt'etsinegarotnietlhees
trial oePeers only excepted. Now the effect
is this—that all Irish Peers who are not Members of the
House of Lords are to be considered as Peers of the
realm for all purposes except that of sitting and voting.e
in the House of Lords, and except also that they ai
eligible as Members of the House of Commons ; but it
is only in the event of their being so elected, and think-
ing fit to serve, that they lose their character and privi-
lege of Peers, and become practically commoners. It
would follow from these premises, and from time princi-
ples laid down in Lord Dinorben's case, .that an Irish
Peer, not being a Member of the House of Commons,
could not vote at the election of Members of the House of
Commons ; for if he does not sit personally in the House
of Lords, he bas a voice there by representation, and
in accordance with this view, the
House of Commons
after the Act of Union,varied the terms of their sessional
order as follows:—" That no Peer of this realm, except
such Peer of that' part of the United Kingdom called
Ireland, as shall for the time being be actually elected,
and shall not have declined to serve for any county, city,
or borough in Great Britain, bath Italy right to give his