TO VOL. V. No I. Some OBSERVATIONS concerning the regulating of Elections for Parliament, found among the Earl of Shaftsbury's Papers after his Death, and now recommended to the Consideration of this present Parliament. [That is to say, the Convention Parliament which met on the 22nd of January 1688, for it was not till then that these OBSERVATIONS were made public.*] ness; for as our laws and government are es THE parliament of England, is that suIt is from the preme aud absolute power, which gives life tablished, we can derive our happiness or and motion to the English government. It di- misery from no other source. rects and actuates all its various procedures; fruit of this great council that we must expect our nutriment, and from its branches our prois the parent of our peace, defender of our faith, and foundation of our properties; and tection; I hope therefore it may not seem over officious, if, with the skilful gardener, I as the constitution of this great spring, and primum mobile of affairs, is in strength and do open and expose the roots of this great beauty, so will also all acts and performances tree of the commonwealth, with an intent that which are derived from it, bear a suitable pro- every branch and fibre may with the greater ease and conveniency, be so trimmed and laid, portion and similitude. For whether the constituting members of this great body be such, that no defects or redundencies may continue; but that every individual of this great body as may give it the denomination of sanctumn indoctum' or insanum,' (by which epithets may happily conspire to produce that peace some former parliaments have been known and tranquillity in the nation, which may be and distinguished) such will also be, all the expected from their councils, and a well conacts and statutes which are made by them, stituted government. It seems then reasoneach naturally wearing the character and able to believe, that the privilege of sending likeness of that to which it owes its being. representatives to parliament, (though groundThis great council bears a date, coævous per-ed upon a natural and fundamental right in haps with the originals of our government, and the people) was at first immediately derived was constituted with sufficient prudence and from the king; for that, where histories and caution, with relation to the innocence and records begin to transmit memorials to sucignorance of the times and people then in ceeding ages, we find him sending his writs dibeing. It was then, that a deed of three rected to such persons, towns, or vills, which inches square, was sufficient to convey away he thought most considerable within the kingtwenty good manors and lordships. But sub-dom; by virtue of which writs, elections were tility and cunning having now made some bolder advances into the world, we are forced to alter our measures, and instead of inches to take ells. It seems therefore necessary, as in things of smaller concernment, so most especially in matters of so much greater moment, (as is the settling and fortifying our parliament) so to erect its bulwarks and rampiers, that the most vigorous attacks of fraud and corruption may make no breaches or inroads into it. It is here, our care and diligence ought to be applied with the greatest exact * Somers' Tracts, 1 coll. vol. i. p. 63. VOL. V. Appendix. accordingly made, and representatives returned a of parliament, which had been unnecessary, could the king alone have granted it by any other method. It is, moreover, a thing of very dangerous consequence, to have such a power lodged in the king alone; for then he might thereby infranchise what number of vills he pleases, and by the same power place the election of their representatives in a select number, such as he should always have the power to direct and appoint; which would be in effect to chuse his own parliament, and thereby to make or repeal what laws he pleases. Wherefore I conceive this point ought now to be settled, so as for the future to obviate all such inconveniences which might otherwise ensue. Another thing, which also requires the care of this great council, is to limit and restrain the exorbitancies of a quo warranto, so that the electing boroughs may have their privileges and immunities secured, from the judgment of a corrupt judge, who derives his being, and holds his judicial breath only ad voluntatem domini.' If this grievance be not obviated by some good law, a king may as well destroy all the old boroughs, as ercct new ones, to the inevitable overthrow of our laws and government. In the next place, I conceive it may become the prudence of this parliament (froin which we may expect the foundations of our happiness will be so laid, as to become impregnable against all the future assaults of an invading tyranny) to look into the constitutions and customs of such boroughs which have right to elect, and which in several particulars, seems to require a touch of the supreme authority to set them right. The first inconvenience they labour under, is the variety of their respective titles; some claiming to elect by prescription, others by grant; some again by a select number, others by the populacy; some by the magistrate and burgesses, others by the nagistrate, burgesses, and freemen; others again by the magistrate, burgesses, freemen, and commonalty, and some also in respect of their ancient borough houses only; the rest of the town, which is the much more considerable part, being excluded. The grievance which grows from this difference of title in several boroughs, is often ambiguity and uncertainty of title in the same borough; for sometimes the select number contends with the community, one borough house with another, &c. And from hence it is, that we have usually tioners in each parliament, the magistrate not knowing which of right ought to be returned. Nor can a committee of elections ever settle their respective titles, by a final determinative judgment: for we find it often giving an opinion upon one and the same title, and in the same borough, differently, as favour and power can make the stronger interest. be remedied by an act, which should give one All this may and the same new title to all the electing boroughs in England and Wales, by which alone, they should all, for the future, claim to send members to parliament; thereby settling the electing power in such persons, (whether they be a select number, or the whole populace) as in prudence should be thought most convenient. The design of chusing the members of parliament by the people, was that no laws should be made, no monies raised, nor any course pursued, by those who sit at the helm, but with the steerage and direction of the people, by their representatives. Now by all the laws and rules of representation, no town, city, or body of people, can be represented without a vote in the choice of their representative. That the parliament, as now constituted, is no equal representative of the people, is notorious; in that several boroughs, so inconsiderable, that they contain not above three or four houses, send each of them two representatives to parliament, whilst others (which contain an hundred times their number of houses, people, trade, and wealth) have no representative at all in the management of public affairs. So also the county of Cornwall sends no less than forty three members to parliament, whilst the city, and whole county of Chester sends but four, and the twelve counties of Wales but twenty-four amongst them all. From this inequality of representation, it follows, that acts are often made which redound to the prejudice of the whole body of the people, merely to advance the gain and advantage of some particular places; as was that which prohibited the importation of Irish cattle, being carried principally by the supernumerary votes of some counties, which have more electing boroughs, than, upon a just and equal dividend, do fall to their share; and these being generally of a dry and barren soil, are thereby chiefly adapted to the breeding of cattle: which benefit would have been diminished by an inlet of beasts from Ireland. This inconvenience may be easily removed, by depriving towns of less note of this franchise, and bestowing it upon others of greater consideration in the same, or in other counties, which most want it, as do those of Cambridge, Bedford, Hertford, Huntingdon, &c. Where the electing right is committed to a select number, I think it were desirable, that the clectors should be chose annually, and not be tenants for life in their electorate; this would in a great degree prevent pre-engagements, and corruption, which often happens where a power by long continuance in one great number of electors in popular boroughs, so many peti-person, is apt to stagnate and putrify. The and in chusing knights of the shire, requires to be regulated and limited, and the power of election to be fixed in the optimacy only. My reasons for this are, that among the electing crowd, the majority is generally of a mean and abject fortune in the world, and thereby subject not only to disorders and quarrels, but to be misguided also by their ignorance, and total want of that discerning faculty, which electors in such weighty concerns ought to have; they are moreover under the temptation of being corrupted and seduced by the inveiglements of a little money, or a pot of ale: whilst those whose circumstances are more enlarged, have their thoughts so likewise; being thereby raised beyond such low allurements, and rendered more careful how, and into whose hands, they dispose of this great trust, the breach whereof might at once rob and deprive them of that their substance, which has been the acquisition perhaps of some ages. It was for those and several other reasons mentioned in the preamble, that by the Statute of 8 Henry vi. c. 7. it was enacted, that no knight of the shire should be chose by any, who had not a freehold of the clear yearly value of 40s. per annum, which was then as much in value as 40!. per annum is now, or has been, since the finding out of the American treasure, and the enlargement of our trade. And I think it but reasonable that as the value of money falls, so the wealth of the electors should rise, and that electing votes in the county should again be limited to such only, who now have lands and tenements to that value, which 40s. per annum bore in those times when this act was made. If this particular were thus regulated, the numbers at the county elections would be reduced, probably | to a fourth part of what they now are, and thereby the unreasonable expence in entertaining so great a crowd, and the great dangers which may accrue from such an ungovern- | able multitude, would be in a great degree avoided and prevented. As the persons electing ought to be men of substance, so in a proportioned degree ought also the members elected. It is not safe to make over the estates of the people in trust to men who have none of their own, lest their domestic indigencies, in conjunction with a foreign temptation, should warp them to a contrary interest, which in former parliaments we have sometimes felt to our sorrow. Wealth and substance will also give a lustre and reputation to our great council, and they security to the people; for their estates are then pawned, as so many pledges for their good behaviour, becoming thereby equal sharers themselves in the benefit or disadvantage which shall result from their own acts and councils. Thus a good estate may be a good security to engage faith and honesty; but he who sits at the helm of government, ought not only to be a graduate in fortune, but in prudence and experience also. To me it seems extremely irregular, to see the unfledged youth make his first advances into the world, in the quality of a burgess for parliament, chosen upon no other account, but because it was his fortune, by his father's early death, to become the landlord of a neighbouring borough, or is perhaps it's best customer, deriving from thence the necessaries of a numerous family. Forty years (whereof twenty-five are generally spent in childhood and vanity) seem to be few enough to entitle any one to the grandeur and gravity of an English senator; and why so many, who seem by their greenness to be as yet but a novelty to the world, should be admitted to a place in this great council, whilst those of greater age, wisdom, and experience must be excluded, I do not understand. By the 1 H. v. ch. 1. it is enacted, that every knight of the shire should be chosen out of such who are resident in the county, and, every citizen and burgess, from amongst the citizens and burgesses of the cities and boroughs electing. How far this act ought to be observed, will be worth consideration; for a confinement in this case, seems to be an abridgement of a free choice, and it often happens, that men of the greatest knowledge and experience in the affairs of the kingdom, have their abode principally in the metropolis, especially such of the long robe, who by their profession are obliged to it. But the non-observance of this act on the other side, has been often the occasion that courtiers have bolted into country-boroughs, and by the strength of their purse, and liberal baits, have so seduced these poor rural animals, as to obtain an election from them, though to the ruin and overthrow of their own laws and liberties. The chusing of such men to serve in parliament, might probably be obviated, by an act prohibiting the expence of any money by treats or otherwise, in order to be elected, it being only to these indirect methods. that such persons usually owe their success. But when all is done, it will be found difficult (though with the greatest art) to bring an old, irregular structure into a convenient uniformity, otherwise than by razing it to the ground, and erecting a new pile by some better contrived design. For although all the defects and irregularities in the election of members for parliament before-mentioned, should be removed and altered, yet there still remains something in the very constitution of this part of our government, which is not so agreeable to a curious thought. A true and perfect model to build by, is what I dare not pretend to give, yet that which follows may afford some hints and assistance to a better fancy and judgment. respect then, that every individual person in the nation, has a natural right to vote in this great council; but this being impracticable, they are forced to do it by proxy (that is) by devolving this right upon certain common representatives indifferently chosen, for certain select numbers and communities of men, in which the whole body of the people is, or ought to be comprehended; and whereas, every pater-familias, or house-keeper, is a na-ural prince, and is invested with an absolute power over his family, and has by necessary conse quence, the votes of all his family, man, woman, and child included in his; let then the sheriff's precepts be directed to every parish within his county, which the next Sunday fol lowing the receipt thereof, may be publicly read after the forenoon sermon in church; thereby giving notice to all the house-keepers in the parish, to meet at a convenient place, and certain hour the day following, in order to chuse an elector for the county. Let also the church-wardens of each parish prepare a list of eight or ten of the most eminent persons for In wealth, gravity, and wisdom in their parish; this list to be brought the next day to the place of election, to this purpose, that every house-keeper do, by a dot with a pen, adjoined to the person's name whom he inclines to elect, declare his choice; and that by the plurality of dots, the elector be returned by the churchwardens to the sheriff. This done in each parish, let the sheriff prepare a list in the same manner, of the names of all the gentry in the county, who are each worth in lands and moveables at least 10,000l. all debts paid, and not under forty years of age; which being in readiness, let all the representatives of parishes, chosen as aforesaid, repair to the county town the very next day after the parish election is over, and there proceed to elect out of the sheriffs list, seven, nine, or eleven members to serve in parliament, or so many as upon a just dividend, shall be thought expedient to compleat the number of members, which are to act in this great council. Before the electors proceed to chuse for the county, it might probably be convenient to administer an oath to this purpose: That their vote is no way pre-engaged; and that they will chuse, without favour or affection, such members as in their conscience they do believe most fit to serve in parliament. And that to the members elected, upon their admission to the house, this oath, together with the others in use, be administered, viz. That they are worth 10,000l. all their debts paid; and that directly, or indirectly, they did not expend any money, or gratuity whatsoever, in order to their election; and that they neither have, nor will receive any gratuity whatsoever, upon the account of their vote in parliament; but that they will in all matters that shall come before them, act uprightly according to their conscience and understanding, without any private design, favour, or affection to any. That to prevent the inconveniencies of fear and favour in electing, the method be such, that none may know on whom the electors votes were conferred; and it may be thus performed. Suppose a room with two opposite doors, and a table in the middle, on which the list shall be spread. All the electors being at one door, let them go in one by one, each writing down his dots, and going out of the room at the other door before another comes in; or if this may prove tedious, it is only placing more tables in the room, with every one a list on it, and so many may then be adinitted in at once, as there are lists, which will make greater dispatch, and yet no discovery, in that every list is upon a separate table. To prevent also all fraud and indirect practice, it will be convenient that the officers concerned in the elections, both in parishes, and in the county, be upon their oaths. It is also fit that a limited allowance be made for the expence of the day, which is to be in parishes, at the parish charge, and in the county town, at the charge of the county. If any controversy arise about elections, either in the parishes or counties, (which in this method can scarcely be supposed) it may be decided by the votes of the remaining persons upon the list, who pretend to no election. If several persons happen to have an equal number of votes, it shall be determined by lot. If any person, from any part of England, shall send his name to any particular county, to be inserted in their list, as a person qualified to serve in parliament; it may be done; hut none to stand candidate, in more than one list at a time, lest he should be chosen in both counties, and so occasion the trouble of a new election. That the same list of candidates shall continue till the dissolution of the parliament, if it sits not above three years; and upon the intermediate death or removal of any of the members for the county, then he who had the next majority of votes upon the list, to succeed in his place, without further trouble or charge of election. By this method, the parliament will be a perfect representative of the whole body of the people, and also of every numerical person in the kingdom. Here can be no partial (and consequently prejudicial) acts made by separate interests and factions: None will sit in this great council, but men of gravity, wisdom, integrity, and substance: No pensionary members; no unfair elections; no foul returns; no petitioners kept in attendance till a dissolution; no quo warrantos to destroy the natural fundamental rights of the people; no room for corruption, bribery, and debauchery, either in the electors, or the members elected; no patrimonies wasted in the extravagancies of an election; no bankrupts shrouding themselves under the shelter of a parliamentary privilege; no unruly rabbles, tumults, factions, and disorders in election, amongst the commonalty; no heats and animosities amongst the gentry, often caused by their violent competitions: But all will be managed with that evenness, justice, and temper, that nothing can more effectually conduce to the securing of our liberties and properties, the grandeur of our government, and the honour of our nation, than such an establishment. No II. A Debate upon the Quære,* whether a the Quære,* whether a King elected and declared by the Lords spiritual and temporal, and Commons assembled at Westminster 22d of January, 1688, coming to and consulting with the said Lords and Commons, doth not make as compleat a Parliament, and legislative Power and Authority, to all Intents and Purposes, as if the said King should cause a new Summons to be given and new Elections to be made by Writs. THAT the highest and supreme court of this as come nearest, and are most like to them; nation (according to its ancient constitution) is and by consequences from thence make our the parliament, I need not now labour to make resolutions as may be most agreeable to reaout; the present business being to find out and son. It is generally admitted, that in an herediscover the substantial and real parts of a par- ditary kingdom, if the king should die without liament, for thereby shall we be satisfied touch- any heir either lineal or collateral, the crown ing the question in hand. A parliament (as in that case would devolve, or as it were essir Edw. Coke, in his jurisdiction of courts, cheate to the whole people and nation; and fol. 1. tells us,) consists of the king's majesty that hereupon the estates and representatives (sitting there as in his politick capacity) and of of such a nation may dispose of the crown to the three estates of this realm (that is to say) whom they please, or quite alter and change 1st, the lords spiritual, as archbishops and bi- the government into what form they think fit. shops: 2dly, the lords temporal, as dukes, mar- This hath been frequently adjudged and pracquisses, earls, viscounts and barons; 3rdly, the tised, one instance whereof was in the empecommons of the realm, (that is) knights of ror Charles the Gross, who dying without any shires, citizens and burgesses. As to the lords heir, the kingdoms which were under him did both spiritual and temporal, sir Edward Coke severally chose themselves kings: France chose in the same place tells us, that every one of Charles the simple: in Italy some chose Bethem being of full age when a parliament is to rengarius, and some Guido; and the Germans be held, ought of right to have a writ of sum- chose Arnolph duke of Bavaria for their empeInons to come to that parliament. As to the ror. Ferdinand king of Portugal dying without commons, he says they are respectively elected lawful heir, the estates of that kingdom assemby the shires or counties, cities and boroughs by bled themselves at Goimbre, and elected John force of the king's writs. Crompton, in his the late king's bastard for their king, and in jurisdiction of courts, fol. 1. says, the high their decree of election it is recited, that king court of parliament is the highest court in Eng- Ferdinand died without any lawful issue or land, wherein the king himself sits in person; kindred, whereby according to the law of naand comes thither at the beginning of the par- tions, it was lawful for them to chuse who liament, and at the end thereof, and at any other they pleased for their king or governor. In time when it pleaseth him during the parlia-like manner it is where a king doth abandon, ment. To this court come all the lords of par- forsake or desert his government, by going out liament, as well spiritual as temporal, and are or flying out of his kingdom without appointing severally summoned thither by the king's writ. any guardian to protect and take care of his There is a writ also sent to every sheriff of Eng-people in his absence, whereby the throne is land and Wales, to elect knights for parliament, &c. saith that author. But the lords and commons assembled at Westminster 22d of January 88. were not summoned thither by the king's writ, and therefore, as is objected, though the king afterwards comes to them, yet such king, lords and commons cannot be a parliament. In answer to which, and to demonstrate whether upon the king's coming to and consulting with them, the king and them make a parliament, I must premise that in extraordinary cases, such as of which there is no direct example, we must take our directions from the resolutions and practices in such cases become vacant; in such a case, the estates of such a people may appoint another king or governor. And to come close to our present case; king James the second, whether out of fear, or for what other reason it is not material, but away he goes or rather flies out of his kingdom; abandons, forsakes and leaves his people unguarded and undefended, at the mercy of a foreign army, even in the heart of the country; without so much as leaving a guardian or great seal behind him his great officers and ministers of state flying some one way and some another. What could then be done but was then done? viz. several of the lords spiritual and temporal, many of the knights, citi zens and burgesses of a former parliament; the aldermen and divers common council of : |