The Sun.
London, England, 1866-12-08 00:00:00

Mr. Chisholm Anstey's New Work.

Plea of the Unrepresented Commons for Restitution
of Franchise, an Historic Inquiry. By Thomas
Chisholm Anstey, Esq., of the Hon. Society of
the Middle Temple.

A reviewer in the Anglo-American Times says :
" The right of suffrage in county or city, in borough
town or cinque port, was unrestricted at the com-
mon law. Not even residence being obligatory until
the Legislature began—Henry 1., chap. v.—to make
it so. Even after the Tudors had tampered with
the towns and boroughs, only three out of the 147
were regulated by Royal charter in the election of
members. The rest held their rights of election by
immemorial usage, or by common law ; that is upon
the broadest basis of popular right. In spite of the
deplorable abuses which the course of usurpation had
produced, the violated principle remained too clear
for cavil, and in the woist of times it was reluctantly
admitted that when "no law or custom existed to the
contrary the election was in the householders, and
not only in the freeholders." " Householder" in-
cluded, the lodger, in-dweller, or inhabitant of any
kind—in short, the resident. Freeholder, down to
the passing of the Copyhold Prohibition Act at the
end of the reign of George 11., denoted perpetuity
or fixity of tenure, and in that way was applicable
to copyholds for life or of inheritance. That copy-
holders did to the last rank and vote as freeholders
is evident from the preamble of the Act George 11.,
which put an end to the practice. How then did
the unrestricted suffrage of the common law give
way to the high-qualification proprietary claim,
the corporate pretension, the burgage tenure,
and such like inventions for keeping down
the people and setting up an oligarchy, which,
almost at the cost of a revolution, Lord John Russell's
Reform Bill at length was successful to take away ?
By usurpations for which the criminal ambition
of the Commons of Parliament were primarily and
ultimately responsible, and in which the rapacious
tyranny of the Tudors, the corrupt practices of the
Stuarts, and the scarcely less flagitious " influences"
of the post-Revolution time, had also their several
parts. At the end of the reign of Edward 111.
the Commons made an attempt to rid them-
selves of popular control. A bill was sent
up, and perhaps agreed to by the Lords, for
disfranchising the commonalty proper in every
shire, and procuring the election of knights of shires
" by common choice of the better people of the said
counties." But Edward refused his assent to the
proposed invasion. " The King," he replied,
" willed' that they be chosen by common assent of
all the county." Their defeat was a great discou-
ragement, and left them to the mercy of their exas-
perated Constituencies. During the three next
reigns many unsuccessful endeavours were made to
absorb into the Parliamentary system some of the
many local and exempt jurisdictions then existing.
But we find no trace of another attempt to " un-
create their own creators" till the reign of
Henry VI., and during the Regencies of his uncles.
It was not ti 111430, the intrigue of 1376 was renewed,
and then with success. The Commons of Parliament
took advantage of the minority of a new King and
the discords of his guardians to obtain the confir-
mation of the Act Bth Henry VI., c. 7, which was
made perpetual by the 10th Henry VI., c. 2, and
became the law of the land. By these acts, for the
first time in the history of England, a popular fran-
chise became limited to the select few, and the law
was made familiar with the principle of arbitrary
disfranchisement. When the shilling was fifteen
times its value in the time of George IV., the
possession of freehold lands or tenements within the
shire, to the nett minimum yearly value of 405., was
made the condition of the elective franchise for the
shire. The pretext was set forth in the preamble in
words which per se contain the clearest acknowledg-
ment, 1, of the pre-existence of unrestricted suffrage;
2, of the universal exercise of that right ; 3, of the non-
appearance, down to the passing of the Act, of any
of the mischiefs therein suggested, and whose pos-
sibility the framers pretended to apprehend ; and
4, that the true purpose thereof was to create a new
constituency, composed of the knightage and
squireage alone. The effect was to hand over the
county elections for the next several reigns to the
small but wealthy classes described in the pre-
amble. The Commons of the Shire-court soon felt
the change, and it formed a prominent grievance
among those set forth by Cade's Proclamation. Still
those acts of Henry VI. were confined to the counties.
To this hour they have never been extended by
legislation to other constituencies. These acts were
an alarming innovation, and fraught with every
kind of evil consequence. The saddles of a few
knights and squires were placed on the backs of the
constituencies. They established in permanence a
war of class against class, to the immediate advan-
tage of an expectant prerogative. The whole frame
of the Parliamentary system of control was undone
which had stood the people in so much stead, and
kept prerogative in so much dependence ; a system
the like whereof has never since appeared in Eng-
lish history, and the county constituencies became
involved in the first flood of the stream of
corruption which in after years was to deluge
the face of all the land. Those acts of Henry VI.
were no doubt unconstitutional, and but for the dis:
tractions and civil wars that ensued the courts of
law might have been called in aid of the subject to
pronounce them illegal and void. However (adds
Mr. Anstey) I am contented to assume for the pre-
sent purpose their entire legality, and to admit
that, to that extent, the electoral franchise—which
was the only foundation on which the Lower House
was built—the common law was changed. That
at least was the. utmost extent of alteration ; the
other constituencies remained untouched, and con-
tinued to prevail with no other statutory qualifica-
tion than that of residency. In after reigns the
" Common right" was invaded in another fashion
by Royal Charter or by House of Commons votes ;
in either case by ways and means that were simply
illegal. Kings and Parliament appear to have aided
and abetted each other in illegalities. But the law
relating to the Electoral Franchise remains un-
changed. Even in 1624 the words of the Commons'
resolution were as follows :—" In a borough, not
being a corporation, there being no free burgesses, nor
charter, nor custom for election, the election is to
be made by all the householders, and not only by
the freeholders." That resolution has never been

rescinded to this hour. To the last they recognised
while shamefully violating its authority. Thus up
to the time of the Revolution the following were
the only restraints known :-1, Residency in all
cases. 2. Ownership of lands of a4O shillings clear
yearly value in the case of counties only. 3. Clauses
of limitation in Royal Charters of grant in case of a
Parliamentary borough. 4. The like in case of a
corporation. 5. Custom or prescription immemo-
rial. 6. Incapacity through natural causes. 7.
Incapacity on account of personal crime or infamy.
These restraints only were known to the law, and
the law was well known to the men who by resolutions
and determinations habitually broke it. Their pur-
pose in doing so was a deliberate one, and bad its
origin in the most sordid and selfish apprehensions
of pecuniary loss. The infringement came from
owners of property, and more especially of landed
property. In the time of good Queen Bess, the
Parliament of England by statute went beyond the
mere disfranchisement of the mass of the people,
for it enjoined the depopulation of all the rural-
parts of the realm. Every family living in a cot-
tage was compelled to hold four acres of land, and
no cottage was permitted to harbour more than one
family. This Act remained in the Statute-book for
nearly two centuries when it was repealed in 1775.
A Parliament that could pass so infamous a law
as that would not shrink from depriving the com-
monalty of this realm of their electoral rights. Yet
so wholly was it opposed to the Constitution that
no direct infringement was made by statute on the
franchise from the time of Henry VI. till the pas-
sage of the Reform Bill in 1832. But though no
statute was passed by the three estates, the Com-
mons " determined" certain measures, and gave the
force of law to the " last determinations," thus re-
stricting the franchise till, aided by time, the people's
rights were eventually reduced to the crying evil
and absurdity partially reformed by Earl Russell's
Bill. In the second year of the reign of William
and Mary, in the case of the borough of Cirencester,
the Commons, after resolving that the right of
election was not in all the inhabitants, for the
lodgers or inmates had no such right, " determined,"
as follows, "that the inhabitants of said borough
being inmates have not a right to vote in electing
burghesses to serve in Parliament." That " deter-
mination" was in force till the first election under
Lord John Russell's Reform Act. The next case
was that of Pontefract in the same reign, when
the House not only disfranchised the constituency,
but proceeded to create a new one. The committee
of privileges had reported " that the right of elec-
tion was agreed to be in such persons as have an
inheritance or freehold of burgage tenure within
the borough." " The agreed" was probably the peti-
tion of an unsuccessful candidate, praying to be de-
clared the sitting member in place of one unduly
returned ; and the House appears to have taken
advantage of what may have been the collusion be-
tween the competitors for altering the legal course
of election in Pontefract from an " inhabitancy "
or an " universal " suffrage to one by " fee
or freehold burgage tenure." At the coming
in of the Hanoverian line they went a step further
in the same direction, and by the same device in
respect to the same borough. But the wheel of
fortune restored the franchise to the inhabitants of
Pontefract, and it remained the only survivor in
1831, where the "right" of the inhabitants had con-
tinued to exist. In 1816 there were but four other
free boroughs—Preston, Taunton, Honiton, and Tre-
gony, a miserable result, and a striking instance of
what the usurpations of the Commons had led to.
Thus, by referring to committees of privilege, the
petitions of unsuccessful candidates and others, the
" common right" of suffrage had been all but extin-
guished. By " resolutions" and "determinations" the
House eventually arrived at such contradictions
and confusion that few constituencies could clearly
define what theirrights were. In 1761 the meaning
of the words, " Populacy," " Populace," and
" Popularity," were defined by a series of " deter-
minations:" 1. Residency or habitation. 2. House-
holding, which they further narrowed down into the
exclusive right to the outward door of the building
of a dwelling-house. 3. Payment and performance
of scot and lot. It mattered little to the House
that in carrying through this definition they broke
the very letter of the Act of Parliament by which they
gave effect to the " last determination" of the
House in all cases. Hardly two recorded instances
of "determinations" are to be found during the
whole post-Revolution period which do not most ma-
terially contradict each other at every point. But
all agree in one important respect, namely, in the
result to which these determinations led, and that
result was disfranchisement. A curious instance is
given to what these contradictory determinations
led to. In the years 1785-1787 two sets of members
were in one and the same Parliament sitting to re-
present Saltash. We regret that our space will not
allow us further to consider this important subject,
and we close our Review in the words of the author
—that no scheme of Reconstruction will be com-
plete which does not answer in substance the fol-
lowing proposals : _ .

I. To repeal all acts of Parliament whereby the
franchise is restricted in eouuties, cities, towns, and
cinque ports, whether in regard of quality of tenure
or quantity of estate.
11. To declare or enact the common rights of all
residents, as do provide for themselves and are not
under the disabilities or incapacities thereinafter to
be specified, and whether single or compound house-
holders, inmates, lodgers, or persons living under
the same roof with others or not, to vote at elec-
tions for the places where they are so domiciled.

111. To specify those disabilities or incapacities
under one or other of these heads:-
1. Physical incapacity.
2. Accident.
3. Restraint of body.
4. Crime and punishment.
5. Outlawry ; and
6. Personal statute.

Morgan v. M'Adam.

(Before Vice-Chancellor Sir W. P. Wood.)
The plaintiffs in this suit carry on business as
manufacturers of black lead crucibles, under the
style of " The Patent Plumbago Crucible Company,"
which title was first adopted by them about 1856
upon their purchase from Messrs. Dixon, of New
Jersey, United States, of the goodwill and sole right
of selling in Europe and Australia crucibles manu-
factured according to Dixon's improved process, for
the sale of which the plaintiffs had been for some
years the sole agents in this country. These cru-
cibles, which had been imported from the United
States for sale by the plaintiffs ever since 1852,
were stamped by them " Morgan and Co., J. Dixon
and Co.'s Patent," and sold as patent black lead
crucibles ; the term " plumbago crucibles" having
been adopted by the plaintiffs when they com-
menced manufacturing on their own account to
indicate the fact that such crucibles were of a
material superior to the ordinary black lead of
commerce. The defendant M'Adam was a manu-
facturer of crucibles at Glasgow, with a depot in
London, and in the Business Directory of London
for 1865 an entry of the " Patent Plumbago
Crucible Company," with the name of the defendant
and his address at Glasgow, together with that of
his London depot, immediately followed the entry
of the plaintiffs' firm, " The Patent Plumbago
Crucible Company." The plaintiffs in February,
1865, took proceedings under the Merchandise
Marks Act at the Clerkenwell Police Court against
the defendant for infringing the style and trade
marks of their firm, but the summons was dismissed
by the magistrate, who seems to have held that
there was not sufficient similarity between the
trade marks of plaintiff and defendant to justify
him in convicting. In the course of these pro-
ceedings at the police court it was brought out
in evidence that Dixon and Co. had no patent
for crucibles in America, and that the plaintiffs
(who stated that they had always been under
the impression that Dixon held an American patent),
were calling their crucibles " patent" without any
warrant for so doing. The present bill was filedin
July, 1865, for the purpose of restraining the de-
fendant from assuming the title of "The Patent
Plumbago Crucible Company," in imitation of the
designation of the plaintiffs' business.
In reference to the purchase from Dixon, the
plaintiffs insisted that they had been assured,- ancl.