that the returns should be filed in chancery, which thus was to pass on the sufficiency of elections. For Parliament to accept this would be the undoing of what had been achieved in the preceding reign. So it took the first chance to assert its privileges by seating, for the county of Buckingham, an outlaw, Sir Francis Goodwin, elected in the face of the King's command that no outlaws should be chosen. The Lords interfered by asking a conference in the matter, saying the King so desired. Thereupon the Commons sent the Speaker and a numerous deputation to discuss the matter with the King, who insisted that the House ought not to meddle with the returns. Conferences and disputes followed. At last His Majesty sent for the Speaker and told him that as an absolute King he desired and commanded that there should be a conference between the House and the judges. Upon this unexpected message, says the Journal, there grew some amazement and silence. But at last one stood up and said: "The prince's command is like a thunderbolt: his command upon our allegiance like the roaring of a lion. To his command there is no contradiction; but how or in what manner we should now proceed to perform obedience, that will be the question." It was resolved to confer with the judges in the presence of the King and Council, whereupon the King worked out a compromise by setting the election aside and ordering a new writ. Although the Commons did not get what they set out to get, they are credited with having won. By 1624 they had come to look on it as their "antient and natural undoubted privilege and power" to examine the validity of elections and returns. In 1703 one Ashby, a burgess of Aylesbury, brought suit against the returning officer for refusing his vote. Three judges of the Queen's Bench quashed the proceedings, on the ground that the House of Commons alone had jurisdiction in all cases relating to elections. Lord Chief Justice Holt took the opposite view, and so did the House of Lords, to which appeal was carried. A bitter quarrel followed between the two Houses. Suspended by prorogation, it was renewed at the next session, when the Commons committed the parties to Newgate. Then a new phase developed, over the question of habeas corpus, the majority of the court holding they were not warranted in setting the men at liberty against the commitment of the House. The Lords took up the cudgels with fresh zeal, and at last the ques tion reached the Queen, who cleverly evaded it by putting an immediate end to the session. It was in this controversy that the Commons, highly irritated over the course of Chief Justice Holt, sent a serjeant-at-arms to bring Holt before them. That doughty defender of judicial independence bade the messenger begone. Thereupon the House sent the Speaker, who came with many members. To him the Chief Justice replied: "Go back to your chair, Mr. Speaker, you may depend upon it, or within five minutes I will send you to Newgate; you speak of your authority, but I tell you I sit here as an interpreter of the laws, and a distributer of justice, and, were the whole House of Commons in your belly, I will not stir one foot." The Speaker was prudent enough to return and the House with equal prudence let the matter drop. The determination by vote in the House of Commons of what the English call election petitions and what we call contested elections, became unsatisfactory as the development of political parties brought in its train the motive for rank injustice. A scandalous evil developed. In 1770 Mr. Grenville attacked this with a proposal to transfer decision from the House itself to a committee. His plan was to have thirteen members elected by the sitting members and petitioners from a list of forty-nine who had been chosen by ballot, to whom each party should add a nominee. This tribunal was to decide without appeal. The Grenville Act was continued from time to time; and in 1774 Sir Edward Sandys brought in a bill to make it perpetual. This encountered strong opposition, especially from Fox, who dreaded the surrender of the privileges of the House; but the successful operation of the Act, in the five cases that had already been tried under its provisions, was so generally acknowledged, that the bill was passed by a large majority. "This happy event,' wrote Lord Chatham, "is a dawn of better times: it is the last prop of Parliament: should it be lost in its passage, the legislature will fall into incurable contempt, and detestation of the nation. . . . The Act does honor to the statute-book, and will endear forever the memory of the framer." 1 For a time, says May, this measure undoubtedly introduced marked improvement in the judicature of the House of Commons. But too soon it became evident that corruption and party spirit had not been overcome. Right was generally 1 Const. Hist. of England, 1, 291-94. discovered to be on the side of that candidate who professed the same political opinions as a majority of the committee. In 1839, by Sir Robert Peel's Act, committees were reduced to six members, and nominated by an impartial body, the general committee of elections. The principle was adhered to in later Acts, with additional securities for impartiality; and the committee was reduced to five members. The evil was thus greatly diminished. Yet the sinister influence of party was not wholly overcome. In the nominated election committees, one party or the other necessarily had a majority of one; and though these tribunals became more able and judicial, their constitution and proceedings often exposed them to imputations of political bias. In 1868 the Chancellor of the Exchequer was forced to say that the "tribunal had not proved satisfactory"; expenditures had grown; corrupt practices had not declined; the decisions had been uncertain and contradictory. From all this the Chancellor inferred, and the House proved to be of the opinion, that there was in the principle something essentially vicious. It was then decided to place the matter in the hands of judges, one from each of the great divisions of the Law Courts (Queen's Bench, Common Pleas, and Exchequer), others to be added to the list if the number of cases required it. Bryce, writing in 1904, said that under this plan the decisions of the judges had not always been consistent, and sometimes had been generally thought to be mistaken; sometimes the judges were too technical in annulling an election for some small breach of the law, sometimes they failed to annul it where there had been extensive corruption, the specific instances of which it is hard to prove. Yet on the whole, he thought, the act had worked well; there was at any rate no demand for return to the old system. Criticism arises because of the delay in the proceedings and protraction of the trial; inevitable expense to parties irrespective of results; inadequacy of existing arrangements to secure for the successful party the costs actually awarded. In 1897 a select committee investigated. Its report recommended some changes, but made no suggestion of any fundamental alteration. In Massachusetts Bay it would seem that there was early occasion for deciding what should be done in such matters, for we find that at a General Court March 4, 1634/5, it was ordered "that when the deputyes of severall townes are mett togeather before any Generall Court, it shalbe lawfull for them, or the major parte of them, to heare & determine any difference that may arise about the election of any of their members, & to order things amongst themselves that may concerne the well ordering of their body." 1 When four years later Connecticut borrowed its basic principles from the charter and laws of the parent colony, it developed the Massachusetts notion on this point into an elaborate provision of the Fundamental Orders: "9. It is ordered and decreed, that the deputyes thus chosen shall have power and liberty to appoynt a tyme and place of meeting togather before any Generall Courte to advise and consult of all such things as may concerne the good of the publicke, as also to examine their owne Elections, whether according to the order, and if they or the gretest prte of them find any election to be illegall they may seclud such for present fro their meeting, and returne the same and their resons to the Courte; and if yt proue true, the Courte may fyne the prty or prtyes so intruding and the Towne, if they see cause, and giue out a warrant to goe to a newe election in a legall way, either in whole or in prte." The first contested election case in Massachusetts, as far as observed, is recorded under date of May 30, 1644, in the Journal of the House of Deputies. After one Steevens had been legally chosen a deputy by the town of Gloucester (then called Gloster), "uppon some private differences falleinge out betweene ye church & him in ye intrime," the freemen of that town chose one Bruin in his stead. The Court ordered that Bruin "bee sent home agayne, & that ye towne of Gloster is desired to send ye said Mr. Steevens, first chosen." The town or any one or more of them, might complain against Steevens; "& if it shall appeare that such their alegacions shall render him unfitt for ye service of this Courte, than this howse shall acco. it theire dutie to deale with him as an offending member thereof." 2 After the Province Charter went into effect, the General Court, in 1692, framed an enactment with a phrase that has come down to this day and is now the accustomed formula. It read: "The representatives assembled in any great and general court shall be the sole judges of the elections and qualifications of their own members, and may from time to time settle, 1 Records of the Colony of the Mass. Bay in N.E., 1, 142. 2 Ibid., III, 3. order and purge their house, and make such necessary orders for the due regulation thereof, as they shall see occasion." same year the Virginia Burgesses declared that the House was the sole judge of the capacity or incapacity of its members. Sheriffs who tried to determine such questions were declared guilty of a breach of privilege, and two of them were ordered under arrest.1 The principle was by that time undoubtedly established. To be sure, at the meeting of His Majesty's Privy Council in 1684, when the New York Charter of Liberties was under discussion, the clause of that instrument which gave to the Assembly with the consent of the Governor power to judge of undue elections and of the qualifications of members, was objected to on the ground that "it may be inconvenient and is not practised in some other Plantations." Notwithstanding the opinion of the Privy Council, C. F. Bishop, who has made a thorough study of the general subject, believes that he has found evidence enough to justify him in stating that as a general rule contested elections in the American colonies were everywhere decided by the body to whose membership the candidates aspired." One of the rare instances in this country where a legislative body has been denied that right, resulted from the quarrel in 1707 between Lord Cornbury, Governor of New Jersey, and his Assembly. In order that a majority of the Assembly might be his friends, two of the Council alleged that three members-elect of the lower branch did not have the necessary property qualification. Thereupon the Governor refused to swear these three members. Thus, as reads the complaint sent to the Lords Commissioners for Trade and Plantations, "the undertakers obtained a majority by one in the House of Representatives, who adjourned the hearings of this case, until they had reaped the fruits of their iniquity." Cornbury persisted that he had a right to pass on qualifications, but the Board of Trade wrote to him that he "would do well to leave the Determination about Elections of Representatives to that House, and not to intermeddle therein." His removal in 1708 put an end to the dispute. The next year the Assembly embodied in an act regulating the qualifications of Representatives, the provision that the House "are and shall be judges of the qualifications of their own members." 1 E. B. Green, Provincial America, 73. 2 History of Elections in the American Colonies, 187. |