ELECTORS OATHS BILL. (Hansard, 7 May 1819)

§ Mr. W. Williams
rose to move the second reading of this bill. After every consideration that he had been able to give the measure, he felt assured that his bill went neither to alter the mode by which members were seated in that House, to impair the rights of individuals, nor to disturb any species of property. Its object was solely to make that illegal which was acknowledged to be prima facie fraudulent, and to extend to boroughs the same principle which was so salutary in the election of representatives for counties. It demanded that a legal consideration should have been paid, and that the party voting should have actually the freehold in his possession. The fraudulent practice of splitting freeholds first took place in the reign of Charles the 2nd, at the period of the Popish plot, when the Presbyterians, inflamed with deadly animosities against the Papists, introduced, for political purposes, that practice; but its introduction was considered by the highest authorities of that day as illegal and unconstitutional; and on a cause tried at Kingston before lord chief justice Pemberton, that learned judge declared it to be a practice contrary to the principles of the common law, and subversive of the purity and dignity of parliament. In the reign of James the 2d, the practice was renewed, as a means of enabling that monarch to effect his favourite object of restoring Popery. Thus it was that the two parties, with objects so opposite, had recourse to the same fraud to accomplish their respective ends. The evil had so much increased, that in one county, on the eve of an election, 500 fictitious and fraudulent freeholders were made. The Act of Anne checked its progress, and since the passing of the 19th of George the 2nd, he believed there was no instance of any of these occasional and fraudulent votes being allowed at elections for counties. Why, then, should such a practice be tolerated for boroughs? On what principle could a distinction be made? And yet no man could deny that the practice existed in these places to a considerable extent. It might be said in answer, that it was open to the party complaining to prove such votes fraudulent before a se- 230 lect committee of that House. The hon. member then proceeded to state circumstances within his own knowledge some years ago, to prove that such a mode of redress was inefficient. With the greatest respect for the House of Commons, the guardians of the liberty of the people, he must say that election committees frequently came to a decision not consonant to the law of the land. Was he wrong in trying to get rid of such practices? Was he wrong in trying to establish as a principle, that all who voted at elections should have bona fide votes? The remedy which he proposed was not new. There was some approach to if in the reign of Anne, and there were two acts of George the 2nd, which got rid of the evil as far as counties, and towns which were counties in themselves, were concerned. His object was to extend the operation of those acts to every borough in the kingdom. Who would say that such a proposition was adverse to the constitution, or to the principles of law? He knew there were persons who thought that there was something peculiar in what were called burgage tenures, which ought to exempt them from the operation of his bill. He really could not understand why they should be so exempted. Why should members of parliament be returned in any place by illegal means? Let the legislature, however, expressly declare that, and he should be satisfied. For himself, he thought those burgage tenures the greatest blemish in the constitution, and subversive of the rights of the people. It could not be expected, therefore, that with such an opinion he should introduce the exemption in the bill, but if the bill were allowed to go into a committee, and the sense of the committee should appear to be in favour of taking the burgage tenures out of the operation of the bill, he would not oppose it. The oath that he proposed was not a new one. By the 25th of the king, an oath was prescribed, of which that which he now proposed was only an alteration. All that he wanted was, that the oath should state distinctly, in virtue of what right the individual taking it was about to vote. At the present moment when the public mind was so much agitated on the question of parliamentary reform, he intreated the House to consider what a support and what a handle they would give by the rejection of such a measure to those who, under the pretence of reform, wished to overturn the constitution. Although he 231 objected to all speculative and wild schemes, he gloried in being a parliamentary reformer to a certain extent, so that the people should have their due influence, and the prerogative its fair weight, In conclusion, he entreated the House not to reject a bill which would remedy a great evil, and was founded solely upon a practical view of necessary amelioration.

Mr. Davies Gilbert
complimented the hon. member on the bold and manly manner in which he had treated the subject; and which rendered it, on the first view, of the question, difficult to see what objection there could be to the adoption of the bill. The bill purported not to make any alteration in the existing law of the land, but only to render it more effectual. To one provision of it, indeed, he saw no objection, namely, that which required every proprietor of a house or other property coming to vote at elections, to state the particulars of his right, the nature of the tenements on which it was founded, the locus in quo, and so forth. But his objections to other parts of it were most decided, for the bill in fact went to an entire subversion of one essential part of the constitution of the kingdom. He alluded to the most material and radical alteration it intended to make in the rights of voters in burgage tenure boroughs. It was known that according to the present practice, any one possessed of burgage tenure property to a sufficient extent, was permitted to give his vote, without the qualification of having been in possession a certain time before. Now, the bill went to make that qualification necessary. The hon. gentleman said, very candidly, he Lad a dislike to that mode of exercising the elective franchise. He (Mr. Gilbert), however, undoubtedly looked upon it as one of the essentials of our excellent constitution He contended, that that assembly did virtually represent the people of England, and that the interests of all classes were there effectually protected. But he thought it one of its principal excellencies, that, while it represented the people, it never yet consisted of a direct delegation from the whole body of the people. It was not possible that such a House—a House composed of delegates from all the nation—could co-exist with the remaining branches of the constitution, unless it were to be kept in awe and order by a military force. He was persuaded either that the execution would prevail by means of a military force, or 232 that the delegated body would overthrow the monarchy. Foreigners and theoretical writers were fond of imagining that there was a balance in our constitution of parts opposite in views and interests. Such a balance he esteemed wholly visionary, or if there was any balance, it was to be found in the elements of the House itself; and he asserted, that the balance was effected through that part of the representation which came from the boroughs in question. He supposed that, after the strong manner in which the hon. gentleman had expressed himself of burgage tenures, as that they were a scandal and a disgrace to the country, he would scarcely give up the provisions of his bill which respected them. Unless, however, the hon. gentleman would consent to take away the provisions to which he referred, he thought he should best; discharge his duty by taking the sense of the House on the motion. He begged leave to repeat, that he did not object to that clause of the Bill which called on an elector to explain the foundation of the right on which he wished to vote, though, perhaps, it would be difficult to say how far it was applicable to burgage tenures; and certainly it would be embarrassing for the tenant in all cases to say whether he tendered his vote in right of freehold or burgage tenure tenements. Undoubtedly, all the objectionable parts to which he had adverted, might be removed in the committee, and he therefore trusted the hon. member would declare whether, if the House agreed to the motion, he would consent to introduce such amendments as he had hinted at.

§ Mr. Williams
said, that thinking as he did of burgage tenures, it could not be expected that he should himself exempt them from the operation of the bill; but if in a committee the sense of the House should be adverse to that part of the bill, they might deal with it as they thought proper.

§ Mr. Brand
maintained, that the system of nomination was one of the greatest blots on the constitution. He thought the hon. mover's proposition perfectly fair. Let the bill go into a committee, and then let the hon. member for Bodmin propose to take the nomination boroughs out of the, operation of the bill. Besides, it should be considered, that the provisions of the bill were applicable to other descriptions, of franchise besides burgage tenures, to the correction of the irregularities attend- 233 ant on which he supposed the hon. gentleman opposite had no objection. It was, in his opinion, the duty of the House to go into a committee on the bill as a declaration of general law; and it would then be for the hon. gentleman to point out what he thought ought to be the exceptions.

Mr. Courtenay
said, that if the Bill was to pass, they were to assume a defect existing in the law, which it was not at all clear was so. At common law, occasionality, if made out, was decisive against the right of voting. His objection was, that that being so, it was not prudent to introduce a doubt respecting it, and, by a side-wind, to make a material alteration in the existing law regarding the exercise of the elective franchise. The bill enacted, that a person claiming to vote in right of a freehold should not be permitted to do so, unless he made a declaration, that he had been in possession a certain time before. He objected to that enactment, because he thought it was law already. The question was, was it prudent to make that law in the case of burgage tenure, which was law in the case of freehold? He thought the Bill unnecessary. When it was said that occasionality was against the general law of the land, he was aware, it might be urged, that that was not so, as the legislature had, at no very distant period, interfered, and enacted laws against it. But all the legislature did was, to explain the law, and supply certain deficiencies. Voting on burgage tenure property, in the mode referred to, had been so long acquiesced in, that it now formed a part of the law of the land. The learned member then moved, as an amendment, "That the bill be read a second time this day six months."

§ Mr. Serjeant Onslow
maintained, that the learned mover of the amendment had been inconsistent with himself, having first argued that the bill was unnecessary, and then admitted that parts of it might be made the subject of a separate measure. He would support the bill, on the ground that it only called on the voters to give certain criteria, in order to afford the means of ascertaining whether or not the general principle of the law against occasionality had been violated.