be trufted, yet, by the fiction of naturalization, being made completely, in all respects, citizens of the ftate from their birth, were formerly capable of being elected; but the good fenfe of the parliament, foon after the Revolution (the nation having experienced the ill effects of the fiction), enacted a law, by which 12 & 13 W. 3. perfons naturalized were declared ineligible to parliament. C. 2. Perfons attainted of treafon or felony, being Whitl, Com. dead in law, are ineligible. I v. 461. Outlaws. Introduction to Glany 73 124. Jour. v. 1. p. 149. 23 Mar. Outlawry in civil fuits does not render the perfon outlawed ineligible. In the famous cafe of fir Francis Goodwyn, this question came in iffue. The clerk of the crown had 1603. refused the return of fir F. Goodwyn, because he was an outlaw, and the Lord Chancellor iffued a new writ, upon which fir J. Fortefcue was elected and returned. The House of Commons, which had groaned under the tyranny of Queen Elizabeth, beginning to feel its confequence, referred these proceedings to a fpecial committee, and, after due deliberation, rejected the latter, and declared the former duly elected. The privileges, however, of the Commons were as yet too weak to stand unfhaken by the over-bearing power of the crown. James the 1ft, who had particularly Parl. Hift. profcribed all outlaws as unfit perfons to be elected, refented this determination, as injurious to his prerogative. He affumed the right of dictating to the commons; who, not being inclined to that paffive obedience which they Hale on Parl. P. 206. Petyt's Juf. Parl. p. 225. Whitl. v. 461. they had been used to fhew to Elizabeth, and yet unwilling intirely to oppofe the king, came to a compromife. On their part they gave up the election of fir F. Goodwyn, and the king waived infifting on the right of fir J. Fortescue, and a new writ iffued. This flender triumph of the crown lafted but a short 20 June, 1604. time. The commons foon after, in an eloquent and fpirited remonftrance, under the title of an apology, vindicated their own proceedings, and reprobated the king's interference, as an invafion of their privileges. Sir Bulftrode Whitlock, indeed, fpeaks without distinction of persons attainted of treason and felony, and outlaws, as ineligible; but it must be prefumed he means only outlaws in criminal fuits. The fame queftion has occurred both before and fince the case of fir F. Goodwyn. And in the cafe of Mr. Huddleston, an outlaw, who was returned one of the knights of the fhire for Cumberland, it was folemnly determined by the committee of privileges, and agreed to by the house, upon a view of the precedents which are ftated in the cafe alluded to, that though outlawed at the time of his election, he was duly elected.-Sir Matthew Hale recognises the fame doctrine, without raising a doubt upon it. Jour. Com. v. 1. Dewes Jour. 22 Ja. I. Glanv. 124. Hale Parl. 169, 113. Peers. Another general disqualification is, the being bound to ferve the ftate in another capacity, incompatible with the character of representative of the people. Thus peers of parliament, who compofe a diftinct and fepa rate rate part of the conftitution, were always deemed ineligible, and incapable of fitting in the house of commons. Judges alfo be- Jodges. Com. Jour. & paffim. Rolls. ing fummoned as affiftants to, and attendants 9 Nov. 1605. upon, the house of lords, to advise and affist them when required, and being alfo one of the executive parts of the conftitution, are ineligible to the house of commons. The mafter of the rolls is not confidered as a Mafter of the judge, for he does not determine " fecundum legem terræ," though he cannot determine against law, but decrees, "fecundum æquum et bonum," according to the rules of equity and good conscience. He is co-extenfive, though not co-ordinate, with the chancellor, as a judge in equity. Thofe peculiarities of jurifdiction, which the chancellor has beyond the master of the rolls, are by special commiffion, or fign-manual of the crown. There is no doubt, therefore, but that the mafter of the rolls is perfectly eligible; and perhaps from the greatnefs of his permanent rank †, and independence of his fituation, he is of all others the most folemn and confidential reprefentative of the people. In the 4 & 5 W. & M. Cordell, mafter of the rolls, was *Thorpe, a baron of the exchequer, was fpeaker to the commons, 31 H. 6. 4. Com. Dig. 285. But any who have judicial places in the court of wards, duchy court, or other courts ecclefiaftical or civil, are eligible. Bac. Abr. 576. + Next in rank to the lord chief juftice of England, and a privy counsellor. 4 Inft. 48. fpeaker of the houfe of commons. By Carew it appears, that Cromwell, mafter of the rolls, in the 26 of H. 8. was the firft who was of the houfe; as, until that time, they were ecclefiaftics, and therefore not eligible. The Attorney Gen. king's attorney-general, before the ReftoraHale Parl. 141. tion, by many refolutions of the house of commons, was declared incapable of fitting as a member thereof, being fummoned to attend the house of lords, and give his affistance there. It would be natural to fuppofe, that the jealoufy of the commons would have increased rather than fallen off, after the Revolution; and that this difability, which had been grounded on a special order of the house, would have been strictly enforced. There were no less than four vacancies declared on this ground, by refolutions of the house, between the years 1620 and 1670; but fir Heneage Carew, ad part, Finch, who had fat feveral years as member for the university of Oxford, being made his majefty's attorney-general, was fuffered to keep his feat, and fince that time to the prefent, no objection has been made to the eligibility of the attorney-general. The right of the folicitor-general, though he alfo is fummoned to the house of lords, has never been negatived, though it has fometimes formerly been called' in queftion. In the eighth year of Queen Elizabeth, the fpeaker's place being vacant, it was moved by the comptroller, "That Onflow, folicitor-general, being a member of the commons' houfe, might be reftored to them," Vid. Pref. to to the Com. Jour. 130. Sol. General, Hale Parl. 120. 2d part. 8 Eliz. to 1 to join with them;" upon which it was answered by the lords, by the attorney-general, and other commiffioners," that he was no member of the house, and alledged his folicitorship, and his writ of attendance in the upper house." Notwithstanding, he was adjudged a member of the house, and afterwards chofen fpeaker. And in the 23d year of the fame reign, Pop- 7 Jan. 23 Eliză ham, folicitor-general, was fent for from the upper houfe, and was made fpeaker. From thefe precedents it appears, the folicitor-general was always confidered as eligible, though the attorney-general was not. Chancery. 4 Inft. p. 4. 2 V. p. 29. The mafters in chancery, who used to be Mafters in fummoned by writ, as affiftants to the house of lords, fo late as in lord Coke's time, are not now fummoned, but attend of courfe, and have a place affigned to them in the houfe of lords. And this, perhaps, is the meaning of the diftinction taken in Mr. speaker Onflow's note given us by Mr. Hatfell, in the fecond Haf. Prec. volume of his very ufeful publication, between affiftants and attendants on the house of lords; but the origin and office of both feem in fubftance the fame. The fummons was probably difcontinued about the time of the Revolution. In the interval between the 49 H. 3. and 49 E. 3. there are frequent inftances of there being no memorandum on the roll of any writs having iffued to fummon affiftants, and others, of the number fluctuating from fo great a number as forty, to fo low a number as four. Sometimes the affiftants were chiefly of the clerical Pryn. Brev. |