to

friends and disciples, now more enthusiastic than their teacher, had not striven with their eager expostulations to quench the rising light. A scene in the chamber of the dying woman, which Dr. Reece relates that he witnessed on the 19th of November, is not unaffecting :-Five or six of the believers, who had been waiting, having been ad"she desired them," mitted, says the doctor, be seated round her bed; when, spending a few minutes in adjusting the bed-clothes with seeming attention, and placing before her a white handkerchief, she thus addressed them, as nearly as I can recollect, in the following words: My friends, some of you have known me nearly twenty-five years, and all of you not less than twenty. When you have heard me speak of my prophecies, you have sometimes heard me say that I doubted my inspiration. But, at the same time, you would never let me despair. When I have been alone it has often appeared delusion; but when the communications were made to me I did not in the least doubt. Feeling, as I now do feel, that my dissolution is drawing near, and that a day or two may terminate my life, it all appears delusion.' She was by this exertion quite exhausted, and wept bitterly. On reviving in a little time she observed that it was very extraordinary that, after spending all her life in investigating the Bible, it should please the Lord to inflict that heavy burthen on her." She then, the doctor proceeds to inform us, after some further discourse about her death and funeral, wept again, and some of those present also shed tears; but, after a little while, one of them, a Mr. Howe, spoke up and said, "Mother, your feelings are human. We know that you are a favoured woman of God, and that you will produce the promised child; and whatever you may say to the contrary will not diminish our faith." This assurance, we are told, revived her, and from crying she fell to laughing. According to her own directions, her dead body was kept warm for four days, in the hope that the child might still make its appearance. It was afterwards dissected by Dr. Reece; and then the doctor admitted that clearly there had been no pregnancy in the case. Neither the death nor the dissection of the prophetess, however, sufficed to extinguish the faith of the great body of the believers. They continued to look confidently for her re-appearance for years after she had been taken from them. Under date of January, 1817, the Annual Register quotes the following notice of their proceedings from a Lincoln newspaper of the day: "An interdict arrived at Newark, on Sunday, the 19th instant, from a disciple of the conclave at Leeds, inhibiting those of the faith, amongst other things, from attending to their ordinary business during the ensuing eight or nine days; and a manufacturer's shop at that place is at this time entirely deserted, and the business of many small dealers suspended, in consequence." This would seem to imply that Joannianism had diffused itself somewhat extensively over the po

pular mind in those parts. Leeds, we believe, had been all along a chief stronghold of the faith; several of the founder's publications are dated from that place. Two years after this, in January, 1819. the London disciples, who do not appear to have been so numerous, or a part of them,made a remarkable outbreak: one morning, having assembled somewhere in the west end of the metropolis, they made their way to Temple-bar, entering which they set forward in procession through the City, each decorated with a white cockade, and wearing a small star of yellow riband on the left breast; in this guise, led by one of their number, carrying a brazen trumpet ornamented with light blue ribands, while two boys marching by his side bore each a small flag of blue silk, they proceeded along Fleetstreet, up Ludgate-hill, and thence through St. Paul's Churchyard to Budge-row, followed by the rabble in great force. Here, having reached what they considered to be the middle of the great city, they halted; and then their leader sounded his trumpet, and roared out that the Shiloh, the Prince of Peace, was come again to the earth; to which a woman, who was with him, said to be his wife, responded with another wild cry of " Wo! wo! to the inhabitants of the earth, because of the coming of the Shiloh." This terrific vociferation was several times repeated and joined in by the rest of the party. But at last the mob, which now completely blocked up the street, from laughing and shouting, proceeded to pelting the rampant devotees with mud and other harder missiles; they struggled to make their escape, or to beat off their assailants; this led to a general fight; the flags were torn down; and the affair ended by the trumpeter and his wife, five other men, and two boys of the party, after having been all rolled in the mire, being with considerable difficulty rescued from the fury of the multitude by the peace-officers, and conveyed to the Compter. When they were brought up the next day before the alderman at Guildhall, they maintained that they were only obeying the commands of God in acting as they had done; their spokesman, the trumpeter, who turned out to be one Sibley, one of the city watchmen, and who appeared to exercise great authority over the others, said that he had proclaimed the second coming of the Shiloh in the same manner and with the same authority as John the Baptist had proclaimed his first coming; and his wife asserted that she had had the Shiloh in her arms four times. In the end they were all sent back to prison, to be detained till they could find security for their peaceable demeanour in future. This, as we have seen, was more than four years after it would seem that the delusion ought to have received its coup de grace, if reason or facts had had any power over it. There may very possibly be some believers in Joanna Southcott, her prophecies, and her pregnancy, among us even at the present day.

E will arrange the subjects of the present Chapter in the order which was adopted in the preceding Book.

I. CONSTITUTIONAL LEGISLATION.There is a branch of constitutional law which has not yet received from us the degree of notice demanded by its vast importance -we mean that which relates to the creation and election of that constituent part or limb of the sovereign power which emanates from the people, and is called the Commons' House of Parliament. Several important statutes passed during the present period, relating to the election of members to serve in parliament, render this a fit occasion to take up the subject.

It was originally necessary that the parliamentary representative should come from the body of the persons represented. The statute 1 Hen. V., c. 1, was passed to enforce this practice, without, however, producing much effect; and in 1774, a committee reported, upon this statute, in substance as follows:-"The first act of parliament which required an attentive and particular consideration, was an act passed in the first year of the reign of Henry V. This law has been decided not necessary to be observed, and a constant usage has long prevailed against it. The acts 8 Hen. VI., c. 7, 10 Hen. VI., c. 2, and 23 Hen. VI., c. 15, proceeding upon the same principle with the abovementioned statute, fall under the same observation. Resolved, That it is the opinion of this committee that so much of these statutes (reciting those just above cited) as relates to the residence of persons to be elected members to serve in parliament, or of the persons by whom they are to be chosen, are not in use, and ought to be repealed."* Upon this resolution a bill was ordered to be brought in, which passed into a law (14 Geo. III., c. 58), by which it was enacted, "That the Act made in the first year of the reign of his majesty King Henry the Fifth, and every part thereof, and so much of the said several acts made in the eighth, the tenth, and the twenty-second years of the reign of his majesty King Henry the Sixth, as relates to the residence of persons to be elected members to

Rogers, Law and Practice of Elections and Election Committees, 46 (6th edit.).

serve in parliament, or of the persons by whom they are chosen, shall be, and the same are hereby, repealed."

The disqualifications for sitting in parliament are now, therefore, reducible to two heads :1st. Personal disability.

2nd. Want of qualification in estate or property.

1. In giving an account of the more important of the legislative enactments which immediately followed the Revolution,* we mentioned the introduction of the system, soon after the Revolution, of exclusion from sitting in parliament on account of employment, at least paid employment, under the crown. To what was then said on the head of personal disability we shall now add, that by the Act of Union with Ireland (39 & 40 Geo. III., c. 67) it is declared that any person holding any peerage of Ireland then subsisting, or thereafter to be created, shall not thereby be disqualified from being elected to serve for any county, city, or borough of Great Britain, unless he shall previously have been elected to sit as one of the twenty-eight representative peers in the House of Lords of the United Kingdom. By the statute 41 Geo. III., c. 52, all persons disabled from sitting in British parliaments are disabled from sitting in the united parliament as members for Great Britain; and all persons disabled from sitting in Irish parliaments are disabled from sitting in the united parliament for Ireland. It is further declared that persons disabled by British statutes shall not by this act be enabled to sit for Ireland, nor e contrà; and that persons holding certain places in Ireland, of which an enumeration is given, shall be disabled from sitting in any future parliament of the United Kingdom.

The discussions and proceedings that arose out of the return of the Rev. John Horne Tooke to the House of Commons as member for the borough of Old Sarum, have been narrated in the preceding chapter.+ The eligibility of the clergy to be members of parliament was at an early period denied both in England and Scotland. The statute 41 Geo. III., c. 63, intituled "An Act to remove doubts respecting the eligibility of persons in holy orders to sit in the House of Commons,' declares and enacts, "That no person ordained a priest or deacon, or being a minister of the church of Scotland, shall be capable of being elected, and, if elected, such election shall be void; or if,

Pict. Hist. of England, vol. iv., p. 673. + See ante, pp. 593, et seq.

Rogers, Law and Practice of Elections and Election Committees, 50 (6th edit.).

being elected, he shall afterwards be ordained or become a minister of the church of Scotland, his seat shall immediately become vacant." By the fourth section of this statute, proof of celebration of divine service shall be taken to be primâ facie evidence of the fact of such person having been ordained to the office of a priest or deacon, or of his being a minister of the church of Scotland, within the meaning of the act.

Neither aliens nor denizens by letters patent (that is, persons aliens born, who have obtained the king's letters patent to make them English subjects), are eligible to parliament or the privy council. The statute 1 Geo. I., st. 2, c. 4, s. 2, enacts that no bill of naturalization shall be received, unless it contain a clause preventing the person to be naturalized from becoming a member of the privy council, or from sitting in either house of parliament. The usual practice now is, when any foreigner, distinguished by eminence of rank or services, is to be naturalized, first to pass an act for the repeal of these statutes in his favour, and then to pass an act of naturalization without the exception.*

Among the grounds of personal disability, one of the most prominent is that of being guilty of bribery or treating at an election.

As this is a constitutional question of great importance, as we have not before adverted to it at any length, and as in the present period there was passed an important legislative enactment concerning it, we shall here take a rapid survey of its history. What is called corruption at the election of members of parliament is a thing which, however conformable to the practice, is, it seems, totally unwarranted by, and directly contrary to, the theory, of our constitution. To bribe a vote is said to be not only an infringement of parliamentary privilege and of statute law, but a high misdemeanour and breach of the common law.†

Although a case is reported of one Thomas Long, who, in the reign of Queen Elizabeth, gave the mayor of Westbury four pounds to be elected burgess, for which the mayor was fined and imprisoned and Long removed, it was not until the end of the reign of Charles II. that corruption at elections became generally prevalent. In the year 1669 a bill "To prevent abuses and extravagances in electing members to serve in parliament, and for regulating elections," was thrown out. In 1677 the Treating Resolution passed, and in the year following was made a standing order of the House. In 1680 a bill to prevent the offences of bribery and debauchery connected with election proceedings was thrown out. And in 1689 (the year after the Revolution) a bill to prevent abuses occasioned by excessive expenses at elections of members to serve in parliament, after having been read once, was also thrown out. Mr. Rogers, after citing a number of cases in each of which bribery

*Rogers's Law and Practice of Elections, 47.

Rogers, ibid. 246 (6th edit.). He cites Bletchingley, Glanv. 41. 4 Inst. 23. "For this corrupt dealing," Coke truly says, was to poison the very fountain itself."

was proved against the sitting member or members, and the elections were voided, makes the following observations: "How general had become the system of corruption, and how insufficient the existing laws and resolutions to arrest its progress, is fully proved by the glaring examples just cited, following each other in such rapid succession. Those who had opposed the bills of 1669, of 1680, and of 1689 now found themselves called upon to adopt a different line of conduct. The opinions of the wisest and most honest statesmen, embodied in the resolutions and standing orders of the House, had been set at defiance; and the first and best principle of the constitution, the freedom of elec tion, was daily and unblushingly violated. Taking, therefore, the Treating Resolution of 1677 for its basis, the House, in 1696, passed the 7 Will. III., c. 4, now generally known by the name of the Treating Act."*

Since the Treating Act treating and bribery have usually been considered as separate charges, and distinct grounds of petitioning.

66

The Treating Act, 7 Will. III. c. 4, enacts and declares that no person hereafter to be elected, &c. after the teste of the writ of summons to parliament, or after the teste, or issuing out, or ordering of the writ or writs of election upon the calling or summoning of any parliament hereafter, or after any such place becomes vacant, &c., shall, or do hereafter, by himself or themselves, or by any other ways and means on his or their behalf, or at his or their charge before his or their election, directly or indirectly, give, present, or allow to any person or persons having voice or vote at such election, any money, meat, drink, entertainment, or provision, or make any present, gift, reward, or entertainment, or shall at any time hereafter make any promise, agreement, obligation, or engagement to give or allow any money, meat, drink, provision, present, reward, or entertainment, to or for any such person or persons in particular, or to any such county, city, town, borough, port, or place in general, or to or for the use, benefit, employment, profit, or preferment of any such person or persons, place or places, in order to be elected, or for being elected, to serve in parliament for such county," &c.; and by sect. 2, it is declared that Every person so giving, &c., shall be disabled and incapacitated, upon such election, to serve in parliament for such county, &c., and shall be deemed and taken to be no member of parliament, and shall not sit, act, or vote, or have any place in parliament, but shall be, to all intents and purposes, as if he had never been returned or elected member for the parliament."

Although the Court of King's Bench declared, in R. v. Pitt, "that bribery at elections of mem

Rogers's Law and Practice of Elections, 246. Mr. Rogers adds in a note: "It would seem that up to this time corruption at elections had chiefly been carried on by giving meat and driuk, and that it was not till after such proceedings had been declared to be illegal that the procuring votes by giving money existed to any extent.-3 Burnet, Hist. of his Own Times, 286, 369, 178."

+ Burr. 1838, 1 W. Bl. 382, cited 2 Douglas (Lord Glenbervie), on

bers of parliament must always have been a crime at common law, and punishable by indictment or information," there are no traces of any prosecution for bribery at elections till after the legislature inflicted particular penalties upon it by the statute 2 Geo. II., * c. 24. By that statute, called the Bribery Act, a candidate or other person is said to be guilty of bribery, "if by himself or any other person employed by him he doth or shall by any gift or reward, or by any promise or agreement, or security for any gift or reward, corrupt or procure any person to give his vote, or to forbear to give his vote, in any such election." This statute, though it did not create the offence, armed courts of law with new powers to check it by attaching a penalty of 500/. on every conviction, and by disqualifying the offender from ever again voting in any election for members to parliament.

The statute 49 Geo. III. c. 118, after reciting that the giving, or procuring or promising to be given, any money, &c., or any office or place, &c., in order to procure the return of a member, if not given to a voter or returning officer, is not bribery within the meaning of 2 Geo. II. c. 24, but that such gifts or promises are contrary to the ancient usage, right, and freedom of election, and contrary to the laws and constitution of this realm, declares and enacts that, if any person, either by himself or by other persons in his behalf, shall give, or cause to be given, directly or indirectly, or promise or agree to give, any sum of money, &c., to any person upon any engagement, &c., that such person to whom or to whose use, &c., such gift or promise shall be made, shall by himself or by others procure, or endeavour to procure, the return of any person to serve in parliament, every person so having given or promised to give, if not returned himself, shall for every such gift or promise forfeit 5007.; and every person so returned, and so having given or promised to give, or knowing of and consenting to such gifts and promises, upon any such engagement, &c., shall be and is hereby declared to be disabled and incapacitated to serve in that parliament for such place, and shall be deemed and taken to be no member of parliament. The 3rd section enacts, that, if any person shall by himself or others give, procure, or promise any office or place, upon an express contract that the person to whom the promise, &c., was made would procure or endeavour to procure the return of any person, such person so returned, and giving or promising, or knowing of and consenting to the giving, &c., shall be deemed to be disabled, &c.,

Elections, 400, and Rogers's Law and Practice of Elections, 245, 6th edit.

Douglas, ibid. "If we look," adds Lord Glenbervie, "into Lord Coke, Hawkins, or the other writers on the pleas of the crown, we find that their definitions extend only to the corruption of men in judicial offices."

The following is Lord Glenbervie's definition of bribery: "Whenever a person is bound by law to act without any view to his own private emolument, and another, by a corrupt contract, engages such person, on condition of the payment or promise of money, or other lucrative consideration, to act in a manner which he shall prescribe, both parties are, by such contract, guilty of bribery."-2 Doug. Elect., 400.

VOL. IV. GEO. III.

as before. Section 2 directs that the act shall not extend to legal expenses.

"This statute therefore," observes Mr. Rogers,* "distinctly provides, not only that, if a person gives or promises any money or office, but if he knows of and consents to the giving or the promising, if returned, his return is void; if not returned, he forfeits 500/.; and in either case the party receiving forfeits 500l.; and if the party conferring any place within s. 3 hold office under his majesty the penalty is 1000l. This act was aimed at the abuse of official patronage. It is worthy of observation, that, if knowledge of and consent to an act done by others are sufficient to make a candidate liable for all the consequences, it is not necessary that a party should direct an act to be done, that is, be the moving party in doing it, or ratify it when done; if he knows of its being done, and sanctions it by his silence and non-intervention, and reaps the benefit of it afterwards, it seems that it would be a knowing of and consenting to within the statute. Vide also Bayntum v. Cattle, 1 M. & R. 265." The cases upon which questions of bribery have arisen are reduced by Mr. Rogers † to the following heads :

1. Money, or tickets for money or food, given previous to an election.

2. Money given after, there being no previous promise.

3. Offer of a bribe by a candidate which is not accepted.

4. Payments for travelling expenses and loss of time, or for admission of freemen.

5. Wager between two voters, or with one voter, on the issue of an election.

2. So much for personal disability to a seat in parliament. We must now say a few words in regard to disability from want of qualification in point of estate or property.

A qualification by estate in land was first required in England by the statute 9th of Anne, c. 5, which provided that no person should be capable of being elected for any county in England or Wales, unless he had an estate, freehold or copyhold, for his own life, or for some greater estate in law or equity, in lands, tenements, &c., to the amount of 600l. per annum, clear above incumbrances; and for every other place, to the clear amount of 300l. per annum. Although this act passed after the union with Scotland, a landed estate in that country is not within the act; the reason of the omission probably being that a qualification by estate was not then, nor ever has been, required for a seat for a Scottish county or burgh.‡ By the act of union with Ireland it was made sufficient if the estate be in Ireland; and by the 59 Geo. III. c. 57, estates in Scotland were in like manner comprised. The law has been again altered by the 2 and 3 Vict. c. 48, s. 1, which

Law and Practice of Elections and Election Committees, 249. + Ibid. Rogers, 80, and note (a).

4 M

enacts that the qualification for counties shall be 600l. per annum of real or personal property; for other places 300l. per annum, of real or personal property, over and above all incumbrances affecting the same. It is also sufficient if the candidate possess property of the several kinds which shall be jointly of sufficient value, though each be separately of insufficient value. The situation of the property in all cases must be within Great Britain or Ireland. The exceptions contained in the former statute, in favour of the eldest sons or heirs apparent of peers, of the eldest sons or heirs apparent of persons qualified to serve as knights of the shire, and in favour of candidates for the universities of England and for the university of Trinity College, Dublin, are continued.

II.

LEGISLATION RELATING TO PROPERTY, REAL AND PERSONAL.-Under the head of real property there is a subject, that of the inclosure of commons, which we have not before noticed, but which the General Inclosure Act, passed in the 41st year of the reign of George III. renders it necessary that we should now devote some attention to.

Anciently the uninclosed or waste land within the compass of a manor belonged in general to the lord of the manor. But the tenants of the manor, or those to whom the lord had granted out portions of his manor to hold of him,—in the words of the statute of Merton,* "the knights and their freeholders whom the great lords had infeoffed of small tenements in their great manors,"-had a right of common upon this waste. And here it will be necessary to advert to a leading distinction in English law.

By the English law the subjects of real, as distinguished from personal, property are commonly included under the words lands and tenements." The word tenement is more comprehensive than land, as it includes not only land, but, in its primary signification, in which it is appropriated to the subjects of feudal tenure, likewise every modification of right issuing out of land, as a right of common, a franchise, &c. These latter subjects of property are called in the language of English law incorporeal tenements or hereditaments. "The word hereditament," says Sir Edward Coke,† "is by much the largest and most comprehensive expression, for it includes not only lands and tenements, but whatever may be inherited, be it corporeal or incorporeal, real, personal, or mixed." But it is to be remarked that, though the term hereditament is more comprehensive or larger than tenement in one direction, it is smaller or less comprehensive in another. For, while hereditament includes things which cannot be holden, it does not include such tenements as are not estates of inheritance, estates for life for example.

Hereditaments and tenements, then, being of two kinds, corporeal and incorporeal, it is sufficient to say here that right of common belongs to the latter. Right of common is, to quote the defini

The right of common which most frequently occurs is common of pasture, which may be either appendant, appurtenant, or in gross. Comm appendant is a right belonging to every tenant of a manor to depasture his cattle, which are either beasts of the plough or such as manure the ground (viz. horses, kine, and sheep, which are thence called commonable beasts) upon the lord's waste.f Common appurtenant is that which is annexed to land by grant from the owner of the other land in which it is to be exercised; or by title of prescription, which supposes a forgotten grant. This often extends to other beasts, besides commonable beasts, as swine, goats, and geese. It is most frequently measured by the number of animals which the land to which it is annexed can maintain by its produce through the winter, or season during which they are excluded from the benefit of the common, though it may be subject to the more exact measure of a certain number of animals. Common in gross, or at large, is entirely distinct and separate from any property in the land, and may be vested in one who is not a tenant of the manor.

The remedy of the commoner against the lord or other proprietor of the soil for excluding him or overstocking the pasture is now only by action on the case, his other remedy by assize having been abolished by the recent statute 3 and 4 Will. IV. c. 27. Actions on the case are among those actions which, by the statute 21 Jac. I. c. 16, s. 3, must be brought within six years after the cause of action has arisen; and, if the owner of the soil, or a stranger, contrive by inclosure or other means to exclude the commoner for twenty years, his right of entry is lost :§ formerly he might then have recourse to his assize for ten years more, but that is taken away as mentioned above.

The rights of the commoner may also be extinguished by inclosure. By the statute of Merton (20 Hen. III.) c. 4, lords of manors are empowered to approve (improve or inclose) against their tenants, and by the statute of Westminster 2 (13 Edw. I.) c. 46, against their neighbours. Upon an assize brought by any person claiming common of pasture appendant or appurtenant, unless by special grant, the jury is directed to inquire into the sufficiency of the land still left open to the commoners, and accordingly to decide upon the propriety of the inclosure; and the erection of windmills, sheep-cotes, &c., is authorised indepen

* 2 Comm. 32.

+ Common by reason of vicinage, which takes place where the te nants of two adjoining manors have suffered their cattle to range indiscriminately over both wastes, seems to be only a modification of common appendant, and it seems that either lord may put an end to it by erecting a fence. Burton's Law of Real Property, 376.

Burton's Law of Real Property, 375, 376. 2 BI. Comm. 33, 34.
Burton's Law of Real Property, 379.