The Sun.
London, England, 1841-10-04 00:00:00

LORD DINORBEN'S CASE.

Mr: ARNOLD z said, this is the case' of a party who
claims to be placed on the list of voters, for the city of
'Westminster,
as bein p ossessed of the qualifications
mentioned in the 27th section of the Reform Act (2 W.
4, c. 45) which enacts, " That in every city or borough,
.
g
which shall return a Member or Members to Serve in
any future Parliament, every male person,' of full age,
and not subject to any legßineapacity, 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 contained,
be entitled to vote in the election of a Member or Mem-
bers to serve in any future Parliament for such city or
borough." Then folloW the provisions that. the oc-
cupier must be rated to . the poor's-rate, and have
paid such rate, and the assessed taxes, and have ,
resided for a certain time either in the city or within a'
certain distance thereof. By the 44th section, the over-
seers of parishes in every city arid borough are required
to make out a list " of all persons who may be entitled,
by virtue of this Act, to tote in the election of Members
for such city or borough. By the 47th section, it is
enacted that every person, omitted in:
such lists," who
shall claim to have his name inserted therein, as having
been 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 Membera 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 begii entitled, on the
last day of July then next preceding, to hare his nanie
inserted in any such lists of voters fors:such city or bog
rough." Now it appears to me that the effect of these
enactments is, that Ikakught not to insert in tbe.lists the,
,Detstie of the presentsssaiumants:'ihiless it is proved to my
satisfaction that he is entitled to vote at an election of
Members for this city. It is admitted that the claimant
has a sufficient qualification under the 27th section of
positive requisites there stated;
is a Peer of the realm, and was so
butth e
i At
Ncvta,
s a
proved
r regards r d s
that all
bt
ehe
on and before the 31stoflast July; and as such has sat and
voted in the House of Lords. The important question,
therefore, that I hare 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 stn=
tote by which the Judges of the Superior Courts of
Conimdn Law at Westminster are disqualified from be=
coming 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 shim, its
absurdity ; but it may be carried yet one step,further,
by observing that there is no statute by which the So-
vereign of the realm is precluded from voting for a Mem-
ber of Parliament. Into the law of Parliament, there-
fore, I must look fur the. doctrine upon this subject.
Reference was made to the Sessional Order of the House
of Commons, declaring, " That it is a high infringement
of the liberties and privileges of the Commons of the
United Kingdom for any Lord of Parliament, or other
Peer 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 mae a law—that even if it had such.
force, it • would only be of efkct during the
Sessions of Parliament, and that its power would expire
upon a dissolution; and that, at any rate, whatever vali-
dity this resolution might have, and whatever penalties
a Peer might incur by reason of infringing it, digress-.
chisement was not necessarily among- them. With re-'
gard to the observations that the House of Commons can-
not 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
case, 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 of Parliament is vested in either House of Parlia-
ment respectively, and most particularly is the power
of declaring the law of Parliament, with re-
gard to elections of Members of the House of
Commons, vested in that House, as the peculiarly
appropriate tribunal for. deciding upon such matters.
And if it is found that the House of Commons have
come to a clear and express resolution upon a subject re-
lating to election law, that resolution is, in my opinion,
binding upon every other tribunal, and most especially
upon a person sitting in my
situation, for the purpose of
revising the lists of voters for returning Members to
that House ; and I cannot perceive that such a resolu-
tion loses any of its force or effect from the circum-
stance of the House bringing it before the public notice
at the commencement of every Session. If this, how-
ever, were the only resolution of the House of Commons
on the subject, I should, perhaps, feel some difficulty in
knowing how to apply it to the case of a Peer voting at
an election, and should doubt, perhaps, whether it was
intended to apply to such a case, or only to the prac-
tice of unconstitutional and positive interference by
a Peer on such occasions to influence the votes
of others. That such was its original scope and
object appears, I think, from the first instance of such a
resolution, which seems to have been -passed as early as
1641 (20th Dec., 2 Com. Journ. 337), and was directed
against Peers interfering at elections, by sending letters
to boroughs, directing them whom they should elect ; a
Somewhat similar interference to that recorded by the
historian Walsingham, on the part of King Richard the
Second, who is stated to have called the Sheriffs, Jus-
tices, &c., to Nottingham, where it was proposed to the
Sheriffs that they should not permit any Knight of the
county to be chosen to the Parliament but such as the
King and his Council should appoint, unto which the
Sheriffs answered, " That the Commons would keep
their old customs, which will that the Knights be elected
by the Commons."—[Ypodigma Neustrim, fo. 531,
Part x ; cited Whitelock, vol. i, eh. 42, p. 383.]—
But whatever may be the effect of the resolu-
tion in question, it does not appear to me to
be necessary now to consider it, inasmuch as
in the year 1699 the House of Commons came to a dis-
tinct resolution that no Peer had a right to vote in the
election of Members of the House of Commons. The
circumstances which gave rise to this resolution will be
found in the 13th volume of the Commons' Journals, and
were briefly as follows : On the IGth of November a pe-
titions was presented by Win. Fitch against time return of
Mr. Irby Montague for Malden, iu Essex, Mr. Fitch
being a candidate ; and this petition was referred to the
Committee of Privileges.—(l3 Corn. 'Journ. 5.) On the
14th of December following, a' Report from the Com-
mittee was brought up, in which the evidence was de-
tailed. It appeared that " it was- insisted on behalf of
the petitioner (among other things) that fire voters,
among whom was the Earl of Manchester, which steed
upon the sitting Member's poll, might not to 'be allowed
as good votes for him." And it was p: owed that the Earl of
Manchester had voted for the sitting Member ; after.
setting out the evidence relating to the other votes, the
Kingdom Resolved,
Report concludes by a resolution of the Committee, that
Mr. Montague was duly elected, and this resolution was
adopted by House upon a division by 171 to 96; and
thene
n mine contradi-
elie,bath' any right to
give his vote in the election for any MeMber to serve in
Parliament."—(l3 Corn. Journ. 63.) This' resolution
appears to have been adopted as a standing resolution
t followstbut uutphieserentryof
thrs
of the House upon the meeting of a new Parliament
in 1700 (13 Feb., 13 Coln, Journ. 326), ands is, I
believe, to be found as a regular sessional resolution from
that time to thepresent, in exactly the same words, except
that, from the time of the Union with Ireland, an addi-
tional sentence was introduced relating to Irish Peers,
which it is not necessary to notice in this instance.
Now this appears to me to be a distinct. adjudication by
the House of Commons .upon the subject, of which in
the situation I now occupy, I think I am bound to take
cognizance; nor, I may add, would the rule be unknown
to me, looking at the matter merely as a common lawyer,
for I find the resolution imported as a Proposition of
law by C. B. Comyn in his Digest. Tit. Parliament (D.
10). But although such is my own opinion as to the
binding validity of these resolutions of the House, there
appears to have been something in the nature of a doubt
thrown upon them by no less an authority than a Com-
mittee of the House itself; for I find that in Lord South-
well's case, Droitwich, (Knapp and Ombler, 69), where
the question was as to the valic ity of the Vote of an Irish
Peer, not being a Member of the House of Coininons (who,
for the purposes of the present argument; stands upon the
same footing as an English Peer),
the Committee came to a
resolution " That they were of opinion that there was
no statute under which the Barrister could have ex-
cluded from the list the name. of Lord Southzvell, but
feeling themselves called upon to enforce the Standing
Order of the House against the interference of Peers at
elections, they struck his name off the poll." Without
seeking to impugn the authority of this resolution Inlay,
I think, without impropriety, ooserve—First, that the
absence of any statutory prohibition on the subject af-
fords, as I have already taken occasion to remark, no
proof of the existence of the right ; and secondly, that

the attention of the Committee seems only to have bean
directed to' the resolution against the interference of
Peers. and that they do not notice the resolution expressly
negativing the rigli t to vote. But still I cannot lielpconsider-
ing this resolution as an intimation by the Committee that
the Revising Barrister was right in leaving the name of
Lord Southwell on the list ; and I therefore feel, if not
exactly called Upon to du so, at least justified in .briefty '
giving my reasons why, upon constitutional grounds, I
consider a Peer has no right to vote in the election of
Members of the House of Coinmons. The Parliament,
it is well known, consists of the King, or Queen Regnant,
as the head, and the three Estates of the realm as Mem- • --
hers, which three Estates are-Ist, the Lords Spiritual.;
2dly. the Lords Temporal, who both sit together in one.
chamber with the Sovereign ; and 3dly, the Corninow,
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,.
thaHouse qf Commons or the Commons' House of Parliament,
would be alone a sufficient indication that they were elected
by and repusented the commonalty of the realm, and
not the Peers, who are a distinct and separate body from.
the ConimOns ; but there is abutdant authority, from
Blackstone lip to the earliest' writers, that such -is the
case. [ln 1 Blackstone, p. 158, it is said, " The Ccm-
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,
anti the knights of the shires, and of cities who are
counties of themeelves, and other citizens of Cities which
-are not-counties,- and the burgesses of towns, and the
barons of the cinve ports, who (with a clergy who as-
semble in Paul'S) represent the body of ell the common-
aity of England."] [L4d Coke in 3 Inst. 1,
has the following passlige, " The third estate.
is the Commons of the, Realm, wheteof 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 3tirglis, by
foree of the king's. *it, ex debit° • justifier, and, none
of them-ought to he- 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 have full and sufficient power," &c. Whiteloek, in
his learned treatise upon this writ, has several passages
that are 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 Barony, or by being summoned: by the
King's writ, to be Mernbers of the Lords' House in Par-
liament, or by being created Lords by the King's letters
patent; as hath 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 latirgesses, not Dukes, Earls, or •
Barons, to be elected."—(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 " Knights,Citizens, and flar
gesse.s," 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-
mobs 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 he 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, cloth 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 Tower,
and who are bound by them." And then, after referring
to some old Acts of Parliament in which "the. common-
alty" arc men,tiohed, he adds, " The like is to be seen in
sundry, other Acts of ourP.arliament, 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 innumer-
a4orities- to the same, effect ; . but 4 only sub
join two passages from Lord Coke,•which"apWar 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 earlier period of
our history, they exercised that privilege." The passage
in Trynne 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 be, 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 on Election Law, 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 of 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. ARNOLD also gave judgment in the case of Wel-
bore Ellis Agar, Lord Normanton, &c.
LORD NORMAN TON'S CASE.
This case stands upon a very similar footing with the
last. It was an objectipn against retaining his Lord-
ship's name upon the list of voters, by reason of borne
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 Peers ; 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. III:, 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 lie
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 declared " not to be entitled to
the privilege of Peerage, nor capable of being elected
to serve as a Peer on the part of Ireland, or of voting
at any such election" (that is at the election of any
Peer) ; and that in all proceedings civil and criminal lie
was to be proceeded against as a Commoner. And it
was further declared that " the Peers of Ireland shall, as
Peers of the United Kingdom, be sued and tried as Peers,
except as aforesaid, and shall enjoy all privileges of
Peers as fully as the Peers of Great Britain, the right
. and privilege Qf sitting in the House of Lords, and the

privileges depending thereon, and the right of sitting on the
trial of Peers only excepted. Now the effect of these articles
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
in the house of. Lords, and except also that they are
eligible as Members of the "Muse of Commons ; but it
.is only in the event of their being so elected, and think-
ing fit to serve, that they lose their oharaeter and privi-
lege ef-Peers, and become practically commoners. It
would follow from these premises, and from the 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 Menibers of the House of
commons ; for if he does not sit personally in the House
of loids, he has 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, hath any right to give his
.vets in the election of any Member to serve' in Parlia-
ment." Which resolution, of course, must be taken to
'refer only to Members of the House of Commons; inas-
much as the Act of Union empowers Irish Peed to. 6.
their votes in the election efiimeMembers to sMe
House of Lords in Parliament. Now this is the case~of an
objection, and by the 50th section of the Reform Act it is
enacted.that where the party objecting shall appear
in support of his objection, the Revising Barrister " shall
require-it to be proved that the person so objected to was
entitled on the last da3 of July next preceeing to have
his name inserted in, the list of voters for such city or
horOugh, in respect of the qualification described in
such list -; and in case the same shall not", be proved to
the satisfaction of such -barrister, -or in: case it shall be
proved that such per Son was then incapacitated by-any laW
or statute from voting in the election' of Members to
serve in Parliament, such Barrister shall expunge the
name of -every such person'froin the said lists." Now,
considering that Lord Normanton stands in this respect on
the same footing as an English Peer, -and that for, the
reasons stated in Lord Dinorben's case, he is " a per-
son incapacitated by the law of Parliament," from voting
in the election of Members of the House of Commons,
am of opinion -that his Lordship's name must be
expunged.