great branch of the electoral law, that affecting the class of persons in whose favour, as candidates for becoming representatives, that franchise is to be exercised by the previously ascertained electors; the manner in which that franchise is to be exercised, pre-eminently with a view to securing honesty, independence and complete freedom of action; and the ultimate adjudication of all questions which may have arisen as to such exercise of the elective franchise. These are high matters, which the House of Commons, with a justifiably jealous tenacity, has though fit to keep in its own hands, as lying peculiarly and exclusively within its own province: the courts of law being principally called into action, if at all, only incidentally, to adjudicate upon penalties and liabilities, civil or criminal, which may have been incurred by those infringing the provisions of the electoral law.

CHAPTER VIII.

QUALIFICATIONS AND DISQUALIFICATIONS FOR BEING ELECTED.

THE law, having been thus scrupulous in ascertaining the fitness of persons whom it may entrust with the exercise of the elective franchise, declaring positively who may, and also negatively who shall not, be entrusted with a right 'so transcendant and of so high a nature,'* as that of electing persons to represent them in parliament, is equally particular in prescribing the conditions to be satisfied by those who aspire to so responsible a distinction. The interest of the commonwealth depends upon its laws; and the quality of those laws upon the fitness of those who elect, and of those who are elected, in order to make, continue, or alter those laws. While intelligence, independence, and integrity are looked for in the one, with perfect freedom for making an honest choice, corresponding qualities are expected in the other, with every safeguard for independent action, in discharging duties of such vital concernment to the community. An ascertained constituency is therefore authoritatively told what kind of person may, or shall not, become its representatives, chosen by and out of itself, invested,' in the significant language of Lord Holt, with 'THE WHOLE RIGHT OF ALL THE COMMONS IN ENGLAND.' The law, however, requires in neither case practical impossibilities, but is content with reasonable guarantees for personal sufficiency and responsibility in respect of character, capacity, and condition; affording, at the same time, all practically-attainable safeguards against undue influence: a very sensitive regard being had to the delicate and complex, the mixed and balanced character, consisting of checks, counter-checks, and compromises, of the constitution under which we live. These are matters of vital importance in every state possessing representative government, whatever may be the political form and the technical condition of its existence, whether that of a constitutional monarchy or a republic. It is obvious,' said the enlightened and able AmeAnte, p. 5.

• Ante, p. 4.

↑ Ante, p. 3.

rican jurist, Mr. Justice Story, in his Commentaries on the Constitution of the United States, that the inquiry as to the due qualifications of representatives, like that as to the due qualifications of electors, in a government, is susceptible, in its own nature, of very different answers, according to the habits, institutions, interests, and local peculiarities of different nations. It is a point, upon which we can arrive at no universal rule, which will accommodate itself to the welfare and wants of every people, with the same proportionate advantages. The great objects are, or ought to be, to secure on the part of the representatives, fidelity, sound judgment, competent information, and incorruptible independence. The best modes, by which these objects can be attained, are matters of discussion and reasoning, and essentially dependent upon a large and enlightened survey of the human character and passions, as developed in the different stages of civilized society. There is great room, therefore, for diversities of judgment and opinion upon a subject so comprehensive and variable in its elements. It would be matter of surprise, if doctrines essentially different, nay even opposite to each other, should not, under such circumstances, be maintained by political writers, equally eminent and able. Upon questions of civil policy, and the fundamental structure of governments, there has hitherto been too little harmony of opinion among the greatest men, to encourage any hope that the future will be less fruitful in dissonances than the past. In the practice of governments, a very great diversity of qualifications has been insisted on, as pre-requisites of office; and this alone would demonstrate, that there was not admitted to exist any common standard of superior excellence adapted to all ages, and all nations.'*,

In conformity with these principles, as applicable to the exigencies of that great offshoot from a great country, the constitution of the United States had prescribed as the three simple positive qualifications of a representative, -age; citizenship; inhabitancy. The age is, twenty-five; the citizenship, for seven years; the inhabitancy, is that of the representative, when elected, in the state for which he shall be chosen. A property qualification is not required by the constitution, though insisted upon by a considerable number of the states.+

Story's Comm. on the Constit. vol. ii. pp. 89, 90.

+ Story's Comm. on the Constit. book iii. c. ix. sects. 615-620.

Such, in a general way, are the leading considerations to be borne in mind, while endeavouring to ascertain and state, for even the most practical administration of the electoral law, the principles which regulate the qualifications and disqualifications for becoming members of the House of Commons.

As the possession of property has been selected by the law as affording, upon the whole, the best test or criterion of fitness in an elector, so the possession of property has been insisted upon by the legislature, as a necessary qualification on the part of a representative. Before, however, entering upon this positive superinduced qualification, it may be convenient to state, in a negative form, the instances of what a candidate for becoming a representative must not be, and what the positions and situations which he must not occupy:† incidentally indicating what cases do not come within the line of disqualification.

This will naturally lead us into some little detached statement concerning those negative conditions. It may be as well, however, to preface that statement by a general intimation of the principles proceeded upon by the common law of parliament, and the statute law, in prescribing both negatively and positively the aforesaid conditions.

What manner of man, then, does common sense suggest as alone fit to become a member of the British House of Commons? -'I do not know,' said lately a very distinguished member, and the leader of that House, and head of the government, any example, in modern or ancient history, of functions so important being performed by any similar body. Not only are all the laws entrusted to us; not only must the taxes be voted, and their expenditure regulated, by the House; but that power over the public purse, which this House possesses, has gradually led it to give advice to the crown on all questions, and its INFLUENCE upon others, connected with the administration and government: and this House is frequently called upon to exercise the right which it so possesses.'

It is surely proper to expect in every one, who is to be sent into such a sphere of action, a considerable, if not indeed a

That is to say, in the bulk of individuals filling that character; for, as will be seen, and has indeed been already intimated elsewhere in this volume, no property qualification is required in members for Scotland.

Stat. 7 & 8 Will. 4, c. 25, s. 8, post, p. 175, ^.
Ante, p. 3.

superior, share of capacity, of acquirements, of integrity, and personal independence. To send an ignorant man into the House of Commons, the very focus of the intelligence and power of the community, would be like taking a countryman from the plough, and suddenly placing him, with full liberty and privilege of interference, amidst the bewildering complexities of a vast system of steam machinery. The legislature cannot, however, enter fully into such considerations; but must content itself with a reliance upon the intelligence of the elector, for the competent intelligence of the elected. Into his acquirements, it therefore, makes no scrutiny whatever; but it can demand that he shall be neither short of years of discretion, nor labouring under such mental incapacity as would disable him from conducting his own affairs. It can require that he shall not be an alien to our commonwealth; nor disfigured by the stain of judiciallyestablished crime: that he shall not be a member of the other branch of the legislature, nor fill an office, nor occupy a walk of life, disabling him from duly sustaining the representative character. It can forbid him from deriving such advantages from the spontaneous and arbitrary favour of the crown, through office, place, beneficial contract, or otherwise, as naturally tend to impair, to a dangerous extent, his independence of sinister influence. For this purpose, it can prevent him alike from becoming, or continuing, a representative of the commons, and visit him with condign punishment, if he shall presume to disregard its will, and disobey its injunctions. All this it will be presently found that the legislature has done, as effectually as was possible, regard being had to the infirmity of all human institutions, and the difficulty of drawing the proper line between admission and exclusion, capacity and incapacity, qualification and disqualification. While, for instance, keenly susceptible of the danger of permitting the presence of placemen in the House of Commons, and thereby enabling a corrupt and designing minister to sap the very foundations of its independence; it must not infringe the great principle of ministerial responsibility to parliament, for the administration of government, and which could not be secured by a total exclusion of all those persons who carry on the government.

While thus, however, declaring what manner of man a candidate for a seat in the House of Commons shall not be, the legislature has thought fit, as we have seen, to prescribe one positive condition of qualification, as it has also done in the case