THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES T H E HISTORY OF THE CASES O F CONTROVERTED ELECTIONS, WHICH WERE Tried and determined during the Firfl Seffion of the Fourteenth Parliament of Great Britain. XV. Geo. HI, By S Y L VE S T E R D O U G L A S, Efq. of Lincoln's Inn; Mais fi les tribunaux ne doivent pas etre fixes, les jugemens doivent 1'etre aun tel point, qu'ils ne foient jamais qu'un texte precis de la loi. S'ils etoient une opinion particuiiere du juge, on vivroit dans la fociete fans fijavoir preciiement les engagemens que Ton y contrafte. L'Eiprit des Loix, liv. xi. c. 6. IN TWO VOLUMES. VOL. II. LONDON, Printed for G. ROBINSON, No. 25, Pater-noftcr Rowr MDCCLXXV, ion CONTENTS. CASE XIV. JlOrough ofHdlefton, In the "^ County of Cornwall, p. I Notes on that Cafe, 54 CASE XV. Borough of Bedford, in the County of Bedford, 67 Notes on that Cafe, 125 CASE XVI. Borough of Sudbury, in the County of Suffolk, 129 ' Notes on that Cafe, J 77 CASE XVII. Dtfritt of Wigtown* White- horn, New Galloway, and Stranraer, in Scotland, 179 Notes on that Cafe, 2 1 3 CASE XVIII. Borough and County of the T^own of Poole, i 23 Notes on that Cafe, 289 CASE XIX. Borough of Shaft on, othcrwife Shaft efbury, in the County of Dor fit, 301 Notes on that Cafe, CASE XX. Borough of Hajlemere, in the County of Surrey, 317 CASE 384836 CONTENTS. CASE XXI. County of Clackmannan, in Scot land) 343 Notes on that Cafe, 359 CASE XXII. County of Lanerk, in Scoi- land, 36^; CASE XXIII. Borough of St. Ives, in the County of Cornwall, 389 Notes on that Cafe, 399 Of Bribery, 3 9 9 4 1 9 CASE XXIV. Dijlrict of North Berwick, Haddington, Lauder, "Jed- burgh, and~Dunbar,m Scot- land, 42 1 ERRATA in VOL. II. Page 15, line i2, and in the reference at the bottom of the page, for " Scaber" read " Seaber.'"' 116, in the refei-ence at the bottom of the page, far "p. 144." read " p. 1 14." 135, line 5, from the bottom, for " 17 if read" 1703." 189, 12, from the bottom, for " members" read " member.'" ai9, 9, for *' cap. 18." read " cap. 81." 290, J2, for i6SS read 1628. 39> 7> from the bottom, for "fevered read "y>- 432, 8, (in fome copies) for"/?/." read /f^." Omitted in the Errata of Vol. I. Page 48 , line 9, from the bottom, for " perion" read (t petition" 34.1, 8, from the bottom, for" leem" read " feems," 384, is, after the word " Aw" dele ' 07iv;." XIV. THE G A S E Of the S O R O U G H of HE LLESTON, In the County of CORNWALL. VOL. II. B The Committee was chofen on Friday, the loth of March, and confifted of the following Gentlemen. * Sir John Hynde Cotton, Bart. Chairman. Sir George Cornwall, Bart. George Bridges Brudenell, Efq. Sir Matthew White Ridley, Bart. Francis Page, Efq. - William Drake, jun. Efq. Sir Francis Vincent, Bart. Vifcount Wcnman, - Richard Benyon^ Efq. Hon. James Murray, - Rowland Holt, Efq. - John Tempeft, Efq. John Darner, Efq. - Cambridge/h. Herefordshire Rutlandfhire Newcaftle Oxford Univ. Agmondefham Surrey Oxfordiliire \Peterborough Perthshire , Appleby Truro. Suffolk Durham Dorchefter NOMINEES. Of the Petitioners ', George Johnftone, Efq. Of the Sitting Member 9 Bamber Gafcoyne Efq. PETITIONERS. Philip Yorke, Efq. and Francis Cuft, Efq. Richard Johns, .jun. alderman, and Matthew Wills, Richard Johns, Edmund Johns, -Richard Penhall, and William Rogers, freemen of Hellefton. Sitting Members. The Right Hon. Francis Goclolphin Ofborne, commonly called the Marquis of Carmarthen ; and Francis Owen, Efq. C OU N S EL For the Petitioners. Mr. Lee, Mr. Morris. For the Sitting Members. Mr. Mansfield, Mr. Bearcroft ; and, the fecond day, Mr Bkller, (in Mr. Bearcroft's abfence). ( 3 ) THE CASE Of the BOROUGH of HELLESTON, ON Saturday, the i itti of March, the Committee being met, the two pe- titions were read, containing fpecial alle- gations of the principal part of the fol- lowing facls, which were all, either proved, or admitted, dn the trial of the caufe. Hellefton is a borough by prefcrip- tion, and alfo by a charter of the 2jth of Queen Elizabeth, confirmed by another of the 1 6th of Charles the Firft. By thofe charters, the corporation was to confift of a mayor, four aldermen, and an indefinite number of freemen. The freemen were to be elected out of the in- B 2 habitants, 4 CASE XIV. habitants, by the mayor, aldermen, and commonalty, or the major part of them ; the aldermen, by the mayor and aldermen,, out of the freemen ; the mayor, by the freemen, out of two aldermen, to* be no- minated by the mayor and aldermen. The right of election of burgefles to ferve in Parliament has conftantly been, in the mayor and commonalty, which has always been underftood to mean, the mayor^ al- dermen, and freemen only. (<& There is no determination of the Houfe of the right of election, but it was admitted to be as jufl ftated.) Almoft ever fince the time when the charter of Queen Elizabeth pafled, not- withftanding the provifion there made, the mayor and aldermen had aflumed, and exercifed, the excluflve power of electing freemen, and the commonalty had never liad any fhare in it. InEailer term, 1769, two informations, in the nature of ^uo Warranto^ were ex- hibited in the court of King's Bench, a- gainft feveral perfons of the borough, to fhew by what authority they claimed to be HELLESTON. 5 be freemen, having been elected without the concurrence of the commonalty. In their plea, they infifted on a bye-law, not then exifting in writing, by which the right of electing freemen was reflrained to the mayor and aldermen. The profe- cutor replied to this plea, denying the matter of the bye- law, and other facts al- ledged in it, and iflues being joined thereon, one of the caufes was tried at the fummer affizes for Cornwall, in 1769, by a fpe- cial jury, when a verdict was found for the defendants on all the iflues : but, in Michaelmas term of the fame year, *the court was moved for leave to enter up judgment againfl the defendants, not- withftanding the verdict, the profecutor contending that the bye-law, on which they had founded their title, was repug- nant to the charters, and void. The court were of that opinion, and judg- ment was entered up accordingly. The profecutor then moved for, and obtained, leave to withdraw his replication in the ether caufe, and, having inftead thereof demurred to the plea of the defendants, K 3 judg- 6 CASE XIV. judgment of oufter was pronounced againft them. From thefe judgments, writs of error were brought in the Houie of Lords, and the judges being called in, one of the caufes was argued by counfel, after which the judges delivered their opinion, " That *' the election of freemen could not be ex- *' ercifed by the mayor and aldermen exclu- " fiveof the commonalty." Thejudgment of the King's Bench, therefore, was af- firmed. By thefe, and other profecutions of the fame fort, judgment of oufter was ob- tained againft all the members of the cor- poration except two aldermen and' eight freemen. By the flatute of the 9th of Anne, cap. 20. fed. 4. a dlfcretionary power is veftcd Jn the court of King ? s Bench, to give leave to exhibit informations in the na- ture of Quo Warranto by the officer of the court, at the inftance of private pro- fecutors, or (as they are called in that kind of criminal proceeding) relators. About ten or twelve years ago, the court thought proper to eftablifh a rule to guide their difcre- HELLESTON. 7 difcretion, by refolving never to grant in- formations againfl any corporator who had been in pofleiljon of his franchife twenty years, or upwards. An information had been moved for againfl: Hugh Rogers, one of the two re- maining aldermen, and a rule granted to (hew caufe why fuch information mould not be allowed ; but, in the interval be- tween granting the rule and the time ap- pointed for {hewing caufe, the twenty years, during which he had poflefled the franchife of a freeman, were completed. The court therefore, in compliance with the above rule, would not grant the infor- mation. For the fame reafon informations could not have been obtained againfl any of the other nine remaining corporators, they having all been freemen de fatto, (though elected according to theufage now determined to be illegal,} for above twenty years. An information was exhibited againft Richard Johns, the other remaining al- derman, for ufurping the office of mayor. B 4 Such 8 CASE XIV. Such being the ftate of the borough, a petition was prefented to the King in. Council in November, 1772, from fe- veral merchants, tradefmen, freehold- ers, and inhabitants of Helleflon, in which "I homas Glynn, and Thomas Wills, two of the ten remaining corporators, joined, ftating the two charters, and the fads juft mentioned, and alledging, that the corpo- ration was totally dtffohed\ praying there- fore fuch relief as mould be thought fit. This petition was referred toaCommittee of the Privy Council, and by them ( 1 9 Dec. 1772) to the Attorney and Sollicitor Gene- ral ; who were attended by counfel both on the part of the petitioners, and on behalf of the major part of the fubfifting corporators, who had entered a caveat againft the petition. The Attorney and Sollicitor General reported (i March, 1773) the fads which have been ftated, and that, fmce 1770, there having been only two aldermen dc fatto, and none but freemen de facto, and no mayor, a queftion was then depending in the court of King's Bench (in the caufe againft HELLESTON. 9 ggainft Richard Johns) whether the corpo- ration was diflblved on that account, or whether it might not continue itfelf by operation of the ftatute of the 1 1 th of George the Firft. Upon the whole mat- ter, they gave their opinion, that it would be inexpedient to advife the King to con- fider the corporation as diflblved, or to grant a new .charter, while a competent number of freemen held their places in faft) and unqueftioned by any judicial procefs, and while it remained in fufpence in a court of juftice, whether the corpo- ration might not continue itfelf by courfc of law. Afterwards, in Eafter term, 1773, the caufe alluded to was decided, and judg- ment given againft Richard Johns ; and, in the month of June of the fame year, Hugh Rogers, the other alderman, died. The corporation then confifted of only one alderman and eight freemen, and there was no mayor. On this change of circumftances, the agent for thofe who had petitioned in Nov. 1772, prefented to the Lords of the Committee, a new petition flating the al- terations io CASE XIV. tcrations which had taken place, and that he was advifed that the corporation was totally and abfolutely diflohed, and inca- pable of preferving or continuing itfelf, and could never be revived or regain a legal exiflence, unlefs the King fhould think pro- per to g'rant a new charter of incorpora- tion. 3 July, 1773, this petition was alfo referred to the Attorney and Solicitor General, and they were attended by coun- fel for the petitioners, and by the follici- tor for thofe who oppofed the petition. 10 Auguft, 1773, they reported the ftate in which the corporation was at that time ; that they were of opinion, that it could no longer continue itfelfj and that it would be proper to advife the King to grant a new charter. Upon this report, the agent for thofe who fblicited a new charter prefented an- other petition to the King in Council, pray ing, on their behalf, that certain altera- rations from the charter of Queen Eliza- beth, ftated in a paper annexed to the petition (A), might be introduced into the new charter. In HELLESTON. n In November, 1773, a petition was pre- fented to the King in Council from twenty- fix inhabitants of the borough of Hellefton, praying to be made members of the corpo- ration, if a new charter mould be granted. At the fame time, Matthew Wills one of the freemen, (on behalf of himfelf, of Richard Johns the alderman, of the other four petitioners in the fecond petition pre- fented to the Houfe of Commons (i), and of a fifth freeman, fmce dead, being feven out of the nine remaining corporators), prefented a petition to the King in Coun- cil, fetting forth, that the proceedings in order to obtain a new charter tended to injure the rights of the members of the old corporation, and praying that the Attor- ney and Solicitor General might be order- ed to review their two former reports, and that he, and the other perfons on whofe be- half he petitioned, might be heard by their counfel on thofe reports, and againft the ori- ginal petition. 19 November, 1773, thefe two laft- mentioned petitions were referred to a Committee of the Privy Council. ( i ) Vide Lift of the Committee, &c. Supra. 17 Ja- 12 CASE XIV. 17 January, 1774, the petition of the agent for thofe who folicited the new char- ter, was, by the Committee of the Privy Council, referred to the Attorney and Soli- citor General, who, on the 26th of the fame month, were attended by counfel, both on the part of the original petitioners, and for the alderman and fix corporators who oppofed the new charter ; and, on the i^th of May following, they reported their opinion, as before, that it would be expedient and juft for his Majefty to grant a new charter on the general plan of that of Queen Elizabeth, but with fome of the additions and variations which had been propofed (B). The propofed alterations of which they approved were ftated in their report, and two of them were, *' That the freemen, who, notwithftand- J and this expreffion was fubftituted in place of words importing, that it was diffohed, in confe- quence of the arguments of counfel. A mayor, four aldermen, and thirty-one freemen, including the mayor and alder- men, were appointed nomihatim by this charter. Richard Johns was made an al- HELLESTON. 15 derman, and the other feven remaining corporators of the old body were appoint- ed among the new freemen. The charter was, on the Sth of Sep- tember, delivered to Thomas Glynn, Efq. the new mayor, who accepted it, and, on the 9th, ifiued notices feverally to all the new corporators, requiring them to meet on the 1 2th, in order to accept the char- ter and the offices to which they were thereby named. Accordingly, in conie- quence of thofe notices, they met on the 1 2th, and all, but the fix old corporators, petitioners to the Houfe of Commons, ac- cepted the charter and their offices, and took the oaths. Each of thofe fix feve- rally read a proteft againft the charter, and refufed to accept, or acl: under, it. On Sunday, the 25th of September, the corporation met for the choice of a mayor (the Sunday before Michaelmas being the day fixed for that purpofe both by the old and new charters) and John Rogers, Efq. was elected. The fix protefting freemen did not attend at this eleftion. The i6 CASE XIV. The precept for the election of mem- bers of Parliament was fent by the fheriff to Mr. Rogers, who gave notice that the election would be on the nth of Oc- tober. On the day of election, the precept be- ing read by Mr. Rogers as mayor, all the new members of the corporation, but the fix who had refufed the charter, voted for the two fitting members. The fix, after -protejling againft the legality of Rogers acting as prefiding officer, gave their votes at his poll for Mr. Yorke and Mr. Cuft. They afterwards proceeded by themfelves to make an election of thofe two gentle- men. Richard Johns there acted as pre- fiding officer, and made a return which was delivered to the fheriff. Rogers alfo made a return of the fitting members, which he annexed to the precept, and de- livered to the fherifF. Johns' return was firft received ; but the fheriff, having taken the advice of counfel (Mr. Serjeant Davy andMr.Buller), annexed the return made by Rogers to. the writ, and fent it by his agent to the clerk of the crown. He alfo fent HELLESTON. 17 him the other return by his agent, but not annexed to the writ. When the iaft- mentioned return was tendered to the clerk of the crown, he faid he could not receive it, as it was not annexed to the writ. It was accordingly rejected, and fent back to Cornwall, but was produced by the un- der fheriff, on the trial before the Com- mittee. The agent for the fix corporators, who oppofed the new charter, fwore that he had obtained a copy of the firft draft from the Attorney General, but that, though he had made repeated appli- cations to him, to the Lord Privy Seal, and at the fecretary of ftate's office, he could not obtain a lift of the names of the new corporators till the 3d of September, on the hearing before the Chancellor. The Lord Privy Seal had defired the names to be read over to him, on the hearing before him on the ijth of Auguft, but he faid it had not been in his power to take them down in writing. Under all the circumftances of this cafe, the counfel for the petitioners contended ; VOL. II. C i. That i8 CASE XLV.. 1. That the new charter was void, arul that the only perfons who had a right to elect: members of Parliament for Hellef- ton, were the fubfifling freemen under the old charter. 2. That if the charter were valid, flill the freemen appointed by it not having; been in poflefTion of their franchife a year before the election, they were, by the fta- tute of the jd of the prefent King, cap. 1 5, incapable of voting at the laft election, and therefore the only competent electors, at that time, were the fubfifting members of the old corporation. Their arguments were as follows. i. If the old body exifkd as a corpo- ration when the charter pafled, and when it was tendered, acceptance by the majo- rity of the old corporators was neceiTary to make it valid ; and as they, after oppoftng it in every ftage as containing eflential alte- rations and variations from the former conftitution of the borough, rejected it when offered for acceptance, it became, by fuch refufal, void to all intents and purpofes, it HELLESTON. 19 It is unneceflary to cite cafes to prove, that acceptance is neceflary to give vali- dity to a new charter granted to a fubfi fl- ing corporation. This is an eflablifhed and uncontrovertible principle of law, in- fomuch, that in pleading the new char- ter in fuch a cafe, you muft fet forth that it was accepted. The queftion then is, whether, in the prefent inftance, the old corporation exift- ed when the charter was tendered. It is admitted that it did not exift fo perfectly as to be able to elecT: new cor- porators fo as to continue itfelf. But it was not, therefore, diflblved. There are only three ways by which a corporation can ceafe to exift. 1 . Forfeiture, by abufer or non-ufer. 2. Voluntary furrender. 3. The death of all the natural per- fons, members of the corporate body. Forfeiture cannot diflblve a corpora- tion but by judgment of oufter againft the whole. Surrender can only be by acceptance on record. But there is no pretence of fur- rqnder in this cafe. C 2 And 20 CASE XIV. And there is no queftion but that eight of the natural perfons, members of the aggregate body, are ftill alive. It is true, that foine of the integral parts of the corporation are gone : There is no mayor ; and only one alderman : There- fore, it does not exift with fufficient vi- gour to continue itfelf. But it exifts fo as that the individuals, who flill remain members of it, can do many a&s, and exercife feveral franchifes, as corporators (C). They can enjoy any right of common belonging to the cor- poration ; they can accept or refufe a char- ter ; and they can vote for members of Parliament. If they can, no new char- ter can transfer that right from them to another corporation. The cafes of Bewdley, Plympton, Dur- ham, and Colcherter, are authorities in point, to prove this dodrine. In the cafe of Bewdley (i ), a new char- (i) i. Peere Williams, p. 207. The Queen, v. the bailiffs and burgefies of Bewdley. Chandler's Debates, an. 1710. vol. iv. p. 174. ter HELLESTON. 2r ter had pafled the great feal in 1708, and was tendered to the corporation juft on the eve of an election for members of Parliament. The corporation being in a fituation very fimilar to that of Hellefton, the charter was refufed by the fubfifting members of the old body. In 1710, Mr, Lechmere was chofen one of the repre- fentatives of the borough by the new corporation, and Mr. Winnington by the members of the old who had refufed the charter. 'The matter was brought before the Houfe by petition (i), when the three following refolutions were come to, 19 December, 1710. 1. Refolved, " That Sal way Winning*- " ton, Efq. is duly elected a burgefs to " ferve in this prefent Parliament for the " borough of Bewdley. 2. Refolved, " That the charter, dated the 20th of April, 1708, attempted to "' be impofed upon the borough of Bewd- *' ley, againft the confent of the ancient (i) Journ. i Dec. 1710. vol. xvi. p, 408. col. 1,2. C 3 cor- 22 CASE XIV. " corporation, is void, illegal, and def- " tru&ive of the conftitution of Parlia- " ment. 3. Refolved, That an humble addrefs " be prefented to her Majefty, laying be- " fore her Majefty the refolution of this " Houfe, and to defire her Majefty that " (he will be pleafed to give directions to " her Attorney General, to take the pro- " per methods for repealing the faid " charter, and for quieting the faid bo- " rough in the enjoyment of their rights " and privileges (i)." Accordingly, an addrefs was prefented, and, in compliance with that addrefs, a writ of Scire facias was fued out to re- peal the charter, and iffue being joined upon it, the caufe was tried at the bar in the court of Queen's Bench, and a ge- neral verdid: found for the Queen againft the charter. Afterwards, indeed, a new trial was moved for, and obtained, and then a fpe- cial verdid was found, which feems never (i) Journ. vol. xvi. p. 439. col. i. to H E L L E S T O N. 23 to have been argued, and no further pro- ceedings appear to have takqpi place. This will be objected to the authority of this cafe ; and it will be obferved, that the borough of Bewdley has ever fmce 1712 acquiefced under the charter of Queen Anne, and that the corporation now exifts under it. But no argument can be drawn from the agreement of the parties, which muft have been the occa- fion of the proceedings being dropt, and the refolution of the Houfe of the i8th of December, 1710, is a direct parliamen- tary decifion againft the legality of the charter. The -cafe of Plympton was as follows. In -1684 (12 July), the corporation had been prevailed upon to furrender their charter, and a new one was granted by James the Second, 21 March, 168*, un- der which rew charter two members were chofen and returned to Parliament ; but on a petition of the mayor, bailiff, &c. of the old corporation (i), the election and (i) Journ. vol. x. p. 352. col. i. & infra. 24 JJa.u-h, 16*^-. 29 March, 14 April, 1690. C 4 return 24 CASE XiV. return were determined to be void, and the Houfe, 14 April, 1690, Refolved, " That the charter, granted by the late " King James to the borough of Plymp- tc ton, is illegal, and deftructive to the " conilitution of the government (i)'." And John Avent, the pretended mayor, and returning officer, was fent for into the cuflody of the ferjeant at arms (2). The corporation of Durham has had no' mayor for feveral years, and is in that imperfed ftate that it cannot elect one ac- cording to the conflitution of the borough. A new charter has long been in agitation, but the bifhop and the corporation differ- ing about the terms, it has never taken place, nor has he ever imagined that he could impofe one upon them without their confent. Yet, in this fituation, they have elected members of Parliament (3), and nobody ever pretended that thofe members were illegally chofen. (1) Journ. vol. x. p. 378. col. i. (2) Ibid. col. 2. (3) One of the members for Durham was on the Committee. But HELLESTON. 25 But the cafe of Colchefter is quite de- cifive. In that cafe, as reported by Sir James Burrow ( i ), it appears that the corpora- tion of Colchefter, under the old charter of the 1 5th of Charles the Second, con- fifted of a mayor, to be chofen annually from among the aldermen, 1 1 aldermen, 18 afliftants, and 18 common-council, the corporate name being, " The mayor and " commonalty" Jn 1735, one William Scaber executed a bond to the mayor and commonalty. In 1740 there were judgments of oufter pronounced againft all the perfons acting defatto as mayor and alderman in Col- chefter, and all thofe perfons were dead before the year 1763. 9 Sept. 1763, the prefent charter was granted, and accepted, and has been acted under ever iince. In Eafter term, 1766, the new corporation brought an action of debt on Scaber's bond againft his executor. (i) 3 Burr. 1866. Mayor and commonalty of Col- fhefter, v. Scaber. The *6 CASE XIV. The queftion then \vas, Whether the prefent corporation could main- tain the action, which depended on an- other queflion, vfz. Whether the old cor- poration was diflblved in 1763. On this cccailon Lord Mansfield faid : " The corporation is not difiblved by " the judgments of ouHer, and fubfequent " deaths of the mayor and aldermen, " though they are without their magiflra- " cy. Their constitution is not deftroyed " and gone. Their former rights remain. " Would not a freemen of Colchefter ftill " continue to have a right to common, or " to vote for members to Parliament ? " I am clear, upon principles of law, />// of the aft. The occafion of paffing it is well known. The magiftrates of Durham had grofsly abufed their power of electing and admitting freemen, by pouring in about fix hundred during an election for mem- bers of Parliament. The legillature meant to H E L L E S T O N. 47 to put a flop to fuch abufes for the fu- ture. But there was no complaint at that time of any abufe of the prerogative in creating freemen, to ferve election pur- pofes. It is impoflible to fuppofe that the Parliament had any view to freemen created by charter. What would be the confequence of the conftru&ion of the ftatute iniifted upon on the part of the petitioners ? Let us fup- pofe the new charter to be void, and the fole furvivor of the old corporators to die within a year before an election ; will it be contended that, in fuch a cafe, there could be no members of Parliament chofen for Hellefton under any new charter which the King could poffibly grant. COUNSEL for the petitioners, in reply. To contend that the eight fubfifting members of the old corporation were in- capable of giving legal votes, is to fay that, fmce the reign of Queen Elizabeth, no man has either given a legal vote, or been le- gally elected, for the borough of Hellefton, becaufe, fmce that time, there have been no 4 S CASE XIV. no freemen who had any other title, but what they have, to their franchife. But there has been no judgment of & court of law againft them. An attempt wa made to obtain fuch a judgment againft one, but without fuccefs ; and the Houfe, when the votes of perfons have been objected to, whom they found in the open avowed poffeffion of their franchife, have always enquired, whether their title has been queftioned at law, and if it has not, when there had been an opportunity, or, having been queftioned, if the attempt has failed, they have never fuffered it to be impeached before them. The cafe of the corporation of Col- chefter v. Seaber, is diredly in point to fhow that that of Hellefton was not dif- folved. The queftion which in that cafe was dire&ly before the court was, whe- ther the corporation was diflblved or not ; and the court held that the Crown had only given new integral parts to a cor- poration aftually fub/ijlrng^ in order to re- vive it and give it vigour ; and it is ftated, that what gave it that vigour was the ac- ceptance H E L L E S T O N. 49 ceptance of the new charter. This fhows that it might have been refufed. It has been thrown out that this cafe was not warranted by thofe which were cited on the fide on which the decifion was given ; but this will not appear pro- bable to thofe who confider who the coun- fel, and who the judges were. And it is remarkable that the cafes of Banbury and Maidftone, which on the prefent occafion have been cited as again ft the principle of the Colchefter cafe, were, in that very cafe, cited by Mr. Jultice Wilmot as entirely confonant to it. The words in the recital of the new charter were not inferted through any flip or inaccuracy, but after the former words had been propofed, and the matter argued by counfel. The charter itfelf is, there- fore, an authority, it is the authority of the Attorney and Sollicitor General, to {how that there was a corporation actually fubfifting ; and, if fo, it feems to be ad- mitted that their- acceptance was neceflary to give validity to the charter. VOL. If. As 50 CASE XIV. As to the report of the law-officers, in the cafe of Tiverton, which by the bye \vas no judicial determination, it appears by the conclufion, that they recommend- ed the granting a new charter, becaufe *' if ths corporation was diffolved^ they " conceived nothing but a new charter " could reftore it, and if it was not dif- "fohed, the new charter would not de- " prive any perfon of the rights he might ** claim under the old corporation, or " prevent any legaf enquiry whether the " old corporation was diflolved or not." (E) The point, therefore, was not then de- cided, and it has been, fmce, in the cafe of Colchefter. The purpofe of appointing the new corporators by name, can have been no other but to take them out of the opera- tion jpf the ftatute of George the Third* But, for the reafons already given, they are flill within the meaning and fpirit of that ftatute. A certain, proof that the word " admitted" is not there ufed in a limited technical fenfe is this j that in the very HELLESTON. 51 Very fame fentence, the fame word is ufed with regard to perfons received to vote at an election : " No freemen {hall " be admitted to vote at any election, &c. " unlefs fuch perfon fhall have been ad- " mitted to his freedom twelve calendar " months, &c." If the legiflature had in that ftatute affixed any ftrict technical idea to the word, they would not, in the fame breath, have ufed it both in its tech- nical and popular fenfe. The cafe of Carmarthen is not at all parallel to this. Several of the twenty old corporators had joined in the petition for the new charter for that borough, and none of them had claimed to act as burgeffes under the old one, from 1758 till 1768. 1 he new char- ter was accepted by all the perfons named in it, and, till the laft mentioned year, it had never been objected to. The Houfe, therefore, thought juftly, that it was then too late to liften to any complaint againft it by men at whofe requeft it had been granted (F). On Tuefday, the I4th of March, the Committee, by their Chairman, informed E 2 the 52 CASE XIV. the Houfe, that they had determined, That Philip Yorke, Efq. and Francis Cuft, Efq. the petitioners, were duly elect- ed, and ought to have been returned. Accordingly the order was made which is ufual in cafes of fingle retmrns, when, the determination is in favour of the pe- titioners, viz. " Ordered, That the deputy clerk of ' the crown do attend this Houfe (to-mor- " row morning) with the laft return for *' the borough of Hellefton, in the couir- " ty of Cornwall and amend the fame, " by rafing out the names of the Right " Hon. Francis Godolphin Ofborne,, eom- e done by the mayor, re- corder, and aldermen, or the major part of them, the mayor, or, in his abfence, his deputy (hall, when the voices arc equal, have a cafting vote ; and that, upon the death of a mayor, the recorder, or, in his abfence, his deputy, fhall have a carting vote in the election of a new mayor, when the voices are equal. 6. That the freemen who, notwithstanding th: charter, have by the ufage of the borough been ex- cluded from voting in the election of new freemen, he exprefsly excluded by the new charter. 7. That the aldermen continue for life, unlefs re- moved for reafonable caufe. 8. That a competent number of fit perfons be nominated and appointed by the charter to be free- men of the borough. P. 12. (B.) The report of the Attorney and Solli- tor General on this occafion was, " That they had been attended by counfel on the " part of the petitioner, and alfo on the part of the " remaining aldermen and fix of the remaining bur- ** gefTes of the faid borough,, antf that they fub- " mitted to their Lordfliips, that i.t was their opi- ** nion, that it would be expedient and juft for his 5 1 - (F.) It appears, from the account of this cafe in the Journals, that evidence was pro- duced to Ihow, That, feveral of the men claiming to be burgefles had figned petitions for the new- charter, which recited, that the old corporation was diflblved ; That none of them had, till that elec- tion, ever claimed to aft as burgrfles after judgment VOL. II. F ^ o 66 NOTES. of oufter had been obtained againft one Roger Phi- lips, in 1758 ; that they had notice thereof, and acquiefced in it. By that judgment, his election* which had been made under a bye -law, tranC- ferring the right of election from the mayor, bur- gefles, and commonalty, to the mayor and common- council, was declared illegal. Journ. vol. xxxii. P. 763. col. 2. THE , XV. I THE CASE Of the BOROUGH of BEDFORD, In the County of BEDFORD, F 2 The The Committee was chofen on Tuefday, the i4th of March, and confifted of the following Gentlemen. Berkfhire Orkney &Zet. Bucks Grampound Wiltfhire Yarmouth Hts Dorchefter Steyning \Grantham Devizes Downton Northallerton Droitwich John Elwes, Efq. Chairman. Thomas Dundas, Efq. George Grenville, Efq. Richard Aldworth Neville, Efq. Ambrofe Goddard, Efq. Jervoife Clarke, Efq. William Ewer, Efq. Filmcr Honywood, Efq. - Sir Brownlow Cuft, Bart. James Sutton, Efq. John Cooper, Efq. - Daniel Lafcelles, Efq. Andrew Foley, Efq. NOMINEES. Of the Petitioner s, Lord George Germaine - Eaft Grinfr. Of the Sitting Members^ Richard Jackfon, Efq. - New Romney PETITIONERS. Samuel Whitbread, Efq. and John Howard, Efq. Certain Burgefles,. Freemen, and Inhabitants, being freeholders of Bedford, and electors for that borough. Sitting Members. Sir William Wake, Bart. Robert Sparrow, Efq.. COUNSEL For the Petitioners. Mr. Lucas, Mr. Lee. For the BurgeJ/eS) &c. Petitioners. Mr. Macdonald. For the Sitting Members. Mr. Eearcroft, Mr. Hardinge, and (on Mr. Bearcroft's abfence) Mr. Artlen. [ 69 ] THE C A S E Of the BOROUGH of BEDFORD. WHEN the Committee met, on Wednefday, the i 5 th of March, the two petitions were read. That of Mr. Whitbread and Mr. How- ard, (befides the ufual allegations, of the partiality of the returning officers in ad- mitting and rejecting votes, and that the petitioners had a great majority of legal votes, and were duly elected,) contained a charge of bribery againil the fitting members, by themfelves or agents ( i ). Tho other alledged ; That the mayor, aldermen, and other officers of the bo- rough had, previous to the election, got a majority of pretended electors under their own influence, with a defign to render (i) Votes, 6 Dec. 1774. p. 29, 30. F 3 the 70 CASE XV. the election of the members for the bo- rough fubfervient to the will of the cor- poration ; that they had corruptly made offers to one or more perfons to procure them to be elected, in confederation of a Jarge fum of money to be paid to them ; and that John Cawne, John Rofe, and Thomas Howard, the returning officers, had been guilty of corrupt, partial, and illegal practices, previous to, and during the ccurfe of, the election (ij. The laft determination in the Houfe of the right of election in Bedford, was then, read, and is as follows. 12 April, 1690, Refolved, " That the " right of election of burgefles to ferve in *' Parliament for the borough of Bedford < is in the burgefles, freemen, and inha- ;" bitants, being houfeholders of Bedford, 5* not receiving alms (2)." (& The difference between a burgefs and a freeman in Bedford is, that all the fons of a burgefs are entitled to be burgefles, (i) Votes, loc. clt. p. 30, 31. (a) Journ. vol. x. p. 376. col. 2. BEDFORD. 71 and only the eldefl fon of a freeman is en- titled to be a freeman. The magiftrates are all chofen out of the burgefles.) Then the Handing order of 173!- was read(i). The numbers on the poll, as declared by the returning officers, were, For Sir William Wake - 527 For Mr. Sparrow 517 For Mr. Whitbread 429 For Mr. Howard - 402 There were feveral queftions in this cafe upon the conftrudion of the lad de- termination, and it being admitted that, if certain reftriclions feverally contended for by the different parties fliould be holden by the Committee to be agreeable to the meaning of the determination, they muft fucceed ; it was agreed by the coun- fel on both fides, and by the Committee, that thofe queftions mould be argued and decided feparately. Ift Point.] The counfel for the peti- tioners contended; That the expreffion, (!) Supra, vol. i. p. 99. F 4 ? being 72 CASE XV. " being houfe/iolders of Bedford " was to be applied as well to the burgeffes and free- men as to the inhabitants ; or, in other words, That non-refident burgeffes and freemen have no right to vote. Their arguments were as follows. It is at once moft confident with logic, and with grammar, to extend the reftric- tion at the end of the period to all the. three clafles of perfons mentioned in the antecedent part. Accordingly, the re- ftraining words are very properly in the printed Journals feparated by a comma from the dafs laft mentioned, (viz, " inha- " bit ants"} to fhew, that their effect is not particularly confined to the laft member of the fentence. The reftriclion is reasonable as extended to burgeffes and freemen in this borough. If it is juft, that the reprefentativcs of Bed- ford fhould be chofen by thofe who have a natural relation to the place, it is rea- fonable that it mould not be in the power of the majority of the corporation, (by which name is underftood about thirty perfons, the mayor, recorder, two bailiffs, thir- BEDFORD. 73 thirteen common council, and from ten to fifteen aldermen), who have, or claim the the right of admitting any number they pleafe of burgefles and freemen, to over- whelm and annihilate the voices of the in- habitants, by choofing, when they think proper, an indefinite number of new bur- gefles and freemen, perfed ftrangers to the borough, for no other purpofe but tq carry an election. It is a legal reftriction, for fuch a re- ftriclion has, in many other boroughs, been recognized by exprefs refolutions of the Houfe. Any ufage^ fince the determination in 1690, cannot affect the fenfe of that de- termination, which muft have been found- ed on evidence of the ufage prior to that time ; and it can be fhown, not only that no evidence can be produced of non-refi- dents having ever voted before \ 690, but that, till then, the number of non-refident burgefles and freemen had always been fo fmall, (only now and then a country gen- tleman of diftinction, and chiefly the mem- bers for the borough, who were made free 74 CASE XV. by way of compliment (i), that their votes could never have been of any confequence at an election ; and therefore, that the Houfe, in making the determination, could have no view to them. If the Houfe had meant to confine the reftraint of being houfeholders merely to thofe who vote as inhabitants, they would have exprefled themfelves in unequi- vocal terms, fuch as they have ufed in other cafes where they had that intention. They would have faid, that the right of election was in the burgefFes, freemen, find alfo in the inhabitants being freeholders, or in the burgeffes, freemen, and fuch of the inhabitants as are houfeholders ; or, to confine the reftri&ive claufe to the laft mem- ber of the fentence, they would have ufed terms like thofe employed in the laft de- termination of the right of election ia, Wallingford. 15 Dec. 1709. Refolved, " That the " right of electing burgefles, to ferve in ** Parliament for the borough of Walling- {j) This was proved by the corporation books. BEDFORD. 7 J* ford, in the county of Berks, is in the " mayor, aldermen, bailiffs, and eighteen *< afliftants, together 'with the inhabitants of " thefaid borough, faying feet and /of, and " not receiving alms, or charity (i). 1J If the expreffiorx " being houfehotters" is not to be carried back to all the members of the fentence, neither can the fubfequent words " not receiving alms ;" and then we muft fuppofe that the Houfe meant to de- clare that burgefles and freemen, even if they had received alms, had a right to vote ; which would be to fuppofe that they thought the receipt of alms (or parifh re- lief) no difqualification to the burgefles and freemen of Bedford. But the Committee will not adopt fuch a conftrudion, when they confider that this is a general difqua- lification by the law of Parliament. COUNSEL for the fitting members. Where the fenfe of a laft determination is doubtful, evidence of ufage may be pro- .duced to mew the true intention and mean- ing of the ambiguous words. This was (i) Journ. vol. xvi. p. 243. col. i. 244. col. I. done 76 C A S E XV, done in two very recent inftances, tho.fe of Radnor and Dorchefter. Although it is true, that direct evidence cannot be given to prove that non-refidents have voted in this borough before 1690, it can be fhewn that they conftantly have at all contefted eledions for above forty years backwards ; and evidence of ufage for fuch a confiderable number of years, without proof of a different ufage at any previous time, would, in law, be a fufficient prefump- tion to eftablifh an immemorial cuftom. It has been admitted, by the counfel for the petitioners, that they cannot bring any direcl: evidence to fhew that non-refidents never voted before the determination in 1690; and mere arguments by implication and inference againft the ufage, at a previ- ous period, cannot deftroy the force of di- re5i evidence of ufage, though pofterior to the time to which that implication applies. Dired evidence, therefore, of the ufage for non-reiidents to vote Jince the determina- tion, uncontradidted by direct evidence of an antecedent contrary ufage, is to be con- fidered as eltablifhing fuch ufage previous to the determination. Ar- B E D F O R D. - 77 Arguments, from convenience or policy, may be very proper, addrefled to the le- giflature to perfuade them to repeal a law (A), but they cannot weigh with a court of juftice, in a cafe where the fubfi fl- ing law, whether politic, and convenient, or otherwife, is fixed and afcertained by words, whofe fenfe, if they are of them- felves doubtful, is clearly interpreted by ufage. Yet, even on this ground of conve- nience and policy, the counfel for the pe- titioners argue againft a maxim generally admitted to be founded in the principles of the conftitution ; namely, That the right of election ought to be extended as much as poflible. The receipt of alms is probably a dif- qualification by the common law of Parlia- ment, but the words " not receiving alms" may, coniiftent with grammatical conftruc- tion, be carried back through the whole fen te nee (i) without the words, " being " hoitje holders ; or, if it fhould be thought that they cannot, ftill, in order to entitle (i) Vide the refolution of the Committee, infra. the 78 C A S E XV. the petitioners to any benefit from the ar- gument drawn from thence, we muft fup- pofe ; i. That this difqualification by alms is uncontrovertible as applied to bur- gefles and freemen. 2. That the Houfe of Commons thought fo in 1690. 3. That the Houfe at that time meant to de- clare the law on this fubjed, not only with regard to inhabitants, but alfo with regard to burgejjes and. freemen. Now the general principle, that alms difqualify voters of all defcriptions, has not been proved, and will probably be difputed in a fubfequent part of this cafe. If it were admitted, it docs not follow that the Houfe of Commons thought fo in 1 690, and that they might not think, and intend to declare, that, by the lex loci in Bedford, only inhabitants, who were houfeholders, and had not received alms^ could vote, but that all burgejjes and freemen could, even if they had received alms* And, if it were alfo admitted, that we muft prefume the Houfe to have known the general principle on this fubject, it will Hill remain to be proved, that it was impoflible for them to intend to declare the general law by exprefs BEDFORD. 79 words, with regard to thofe who were en- titled to vote as inhabitants, and to leave the law to operate, without any exprefs declaration, with refpect to the other two clafles of burgej/'es and freemen. The words " being houfeholders" cannot be carried back to the two firft clafles of voters, without rendering the mention of thofe two clafles fuperfluous and nugatory ; for to fay, " That the right of election " is in the burgeffes and freemen, being houfe- " holders, and in the inhabitants, being houfe- " holder '/, of Bedford^ exprefles no more than would be done by faying fimply, " The c< right of election is in the inhabitants, be- ing householders of Bedford." Arguments from punctuation do not de- ferve any regard. To prevent any argu- ments of that fort, points are never ufed in law records ; if they were to be confidered as of any weight, it would be in the power of every clerk copyift, or printer, to alter the meaning of a law. After they had fpoke in effect as has been juft ftated, the counfel were directed to withdraw, and, on being called in again, the Chairman informed them, " That So CASE XV. " That the Committee were of opinion* " that they might proceed to call evidence, " to fhew whether burgefles and freemeri " have a right to vote, though not houfe- < holders of Bedford, under the refolutiori " of the Houfe of Commons of 1 2 April, " 1690." An explanation of this refolution of the Committee being defired by the counfel, the Chairman faid, c< It was meant that " they mould bring evidence of the ufage " fubfequent to the laft determination." On this, a number of witnefles, inhabit- ants and members of the corporation of Bedford, were called, who proved, from their own knowledge, that non-refident bur- gefles and freemen had voted at different contefted elections, ever fmce the year 1730. They fwore likewife to conftant uncontro- verted reputation. The counfel for the fitting members were proceeding to bring more evidence to the fame purpofe, but they were informed by the Chairman, " That the Committee were fatisfied of *' the ufage fmce 1730.'* No BEDFORD. Si No evidence was given on the part of the petitioners to fhew, that, at any previous period, the ufage was that non-refident burgefTes and freemen were not admitted to vote. Before the Committee came to any re- folution on this queflion of non-refidencyi the counfel for the petitioners entered up- on other two grounds of objection, which affected all the votes liable to the former. The firft was, That they were honorary burgefles and freemen. The fecond, That they were occafional. lid. Point.] On the firft of thofe two heads they contended, That the corporation^ of Bedford could not admit burgefles or free- men, uhlefs perfons who had either an ante- cedent inchoate right by birth or fervitude, or who had acquired fuch a right by redemp- tion ; that is, by paying a real fubftantial cbhfideratiori in money for their freedom. That honorary burgefles arid freemen, therefore, were in facT: neither burgefles nor flreemen, and could have no right to vote. To prove this pofition they produced the following evidence : VOL. IL G j*Two 82 CASE XV. 1. Two bye-laws; one of 1562, and an^ other of 1612. The firfl of thofe applied rather to the point of non-refidency. The fecond ordains, " That there fhall be nofo- '* reigner admitted to be a freeman, unlefs " under fpecial circumftances (there men- " tioned ;) and that if fuch foreigner be " allowed, he fhall pay five pounds for " his freedom unto the chamberlains for " v the time being, to the uie of the " mayor, bailiffs, burgeffesj and com- " inonalty." 2. Entries of a variety of admiffions on the payment of fines of different amount, from forty {hillings to fifteen and twenty pounds, over and above the admiffion fees. In many of thofe inftances, a con- dition is annexed to the order for ad- miffion, that if the party do not find fure- ties. for the payment of his fine, or actu- ally pay it within a limited time, the ad- miffion fhall be void. 3. Certain entries of the admiffions of perfons in the time of the Republic, and fubfequent entries, after the Reftoration, declaring thofe admiffions to be illegal. 12 Aug. BEDFORD. 83 12 Aug. 1656. Major-General Boteler, Cockayne, Carter, Whitbread, and Wag- ftaffe were admitted gratis to their free- dom. 15 Oct. 1660. The jury find 'with re- gard to thofe perfons, " Quia contra* jura, " conjuetudines* & privilegia ejufdem villa " introdutti fuere) per vim fraud em & fur- " reptitie, eos fore nullos de gilda^fed extra- " neos & forinfecos" From comparing thefe two entries, they argued, that the circumftance of not pay- ing any fine was what was againft the laws, citftoms, and privileges of Bedford in the admifiions in 1656. x It appeared that, in 1769, when above 500 of the freemen objected to as non-refi- dent, and now as honorary, were made, they only paid one guinea including ad- miflion fees ; and it was proved that, at that very time, the corporation had obliged feveral tradefmen, inhabitants of the town, to pay five guineas for their freedom. The counfcl for the fitting members produced, on the other hand, a great many entries in the corporation books, beginning G2 in 84 C A S E XV. in 1654, of orders for the admiflion of perfons who had no previous title, " with- " out the payment of any fine or prejlation "to the chamber, or even of the ufual " fees ;" and many others, when the fines \vere of various, and very fmall amount, down to fourteen fhillings. (o^ The inftance in 1654, was the ad- miflion of Sir Bulftrode Whitelock.) They then argued as follows : If it was thought that the perfons ad- mitted in 1769 were not legal freemen, why were they not proceeded againft at law, by informations in the nature of Quo waranto ? From that time till now their right to their freedom has not been im- peached ; and, although this Committee is competent to the decifion of any prelimi- minary queftion which may lead to the ul- timate determination of the merits of the election, yet they will not enter into an en- quiry about corporate rights, when the parties have had full time to try them in the court particularly appropriated to fuch queftions, and have not done it. In the eafe of Shrewfbury, the Committee would BEDFORD. 85 would not go into fuch an enquiry. There, indeed, there had been two verdicts at law on the queflion(i). But, where there has been time to try the matter at law, it is fair to conclude, that the party who has not taken advantage of the opportunity, had good reafon to think that the attempt would have been fruitlefs. One method of fetting afide all the freemen made in 1769 at one ftroke was tried, for an information was moved for, and obtained, againft Heaven, the mayor of that year. If he had not been a legal mayor, all their admiflions would have been illegal. But, after long confultations of fome of the ableft counfel in Weilminfter-hall, it was thought ad- vifeable to drop the profecution. It is not contended that the election of honorary freemen is contrary to any general principle of law. Indeed in many bo- roughs, as Gloucefter, Cambridge, &c. the right of making fuch freemen has been re- cognized by the Houfe, and they vote at all eledions ; but the counfel for the petir (i) Vide fupra, vol. i. Cafe of Shrewfbury. G 3 tioner* 86' CASE XV, tionefs infift that, by the particular /aw of Bedford, perfons who have not inchoate titles cannot be admitted to the freedom of the place, unlefs on the payment of a fort of cujlomary fine. Now, one of the firft requifites of a cuftom is certainty, and here they themfelves have fhewn that the fine paid has been different in almoft every different inftance. If the bye-laws, on which they rely, fhould be thought to apply to this queftion, yet being merely regulations made by the corporation to controul their own difcre-^ tion, it was in the power of the corpora- tion to repeal them ; and this they have virtually done r-y acting afterwards with- out any regard to them, as has been proved by the numerous inftances of their exercifiog the right of making honorary freemen, or freemen by favour, for above a century, down to the prefent time. It cannot be ferioufly thought that, in the entry of 1660, with regard to the re- fcinding the 'admiffions of Boteler and the others, the words u contra jura^ ccnjuetudi- ^ ties BEDFORD. 87 *' nes, & privilegia" mean, that they were admitted contrary to a fpecific cuftom. of paying a fine. If that had been meant, the cuftom would have been fpecially dated, and not in general expreffions, which are evidently mere words of courfe. It is pretty clear, when we confider who thofe perfdns were, and compare the fituation of things at the different aeras of 1654 and 1660, that they were turned out, becaufe their party was no longer uppermoft, and that the " vis," "fraus" and " fur rep- " title" only mean to convey a declara- tion that the corporation had admitted them through influence and .compuliioiV. Hid Point.] The counfel for the peti- tioners next contended, That the votes of thofe who had been objected to as non- rejidcnt and as honorary burgeffes or free- men, were alfo void as being occafwnaL (c3- They had all been made above a year before the election, fo that none of them were affected by the Durham aft.) They faid, G 4 Occa- 88 -C A S E XV. ( i ) Occafionality is fatal to all votes, by: the common law of Parliament. Before the ftatute of the 3d of George the Third, cap. 15, there was no limitation in point of time, with regard to occafional free- men, but if a man acquired his freedom merely for the purpofe of voting at an election, although more than a year be- fore that eleion, his vote, on thit occa- iion, was fraudulent and void. Now when a ftatute is made declaratory of the common law, and only fuperadds new pe- nalties to the infringement of that law, within a certain time, or under fpecial cir- cumftancesj fuch ftatute is only cumula- tive, and does not take away the common law, or alter it, farther than by enforcing it for thd limited time or under the par- ticular circumftances when the ftatutory penalties are made to attach. Therefore, though the ftatute of George the Third enacts, that a freeman, who has not been admitted twelve kalendar months before thq election, fhall not prefume to vote, under (i) Videfupra, Cafes of Downton, Briftolj vol. i. and of Helleftonj vol. ii, a ccr- BEDFORD. 89 a certain penalty, unlefs he have an ante- cedent title by birth, marriage, or fervi- tude, and that if he prefume fo to do his vote mall be void, the common law dif- qualification flill remains as to occafional freemen of longer ftanding than a year. The difference is this : within the year, the ftatute prefumes the occafionality, and makes it unneceffary to prove it, whereas, beyond the year, it lies upon the perfon who makes the objection of occafionality to prove it, according to the general max- im, that fraud is not to be prefumed. The counfel for the fitting members admitted, that the perfons whofe votes were objected to, had been made free of the town of Bedford for the purpofe of voting at the election for that place. But they contended, That to conftitute a difqualification by occafionality, the freemen mull have been admitted to ferve the purpofe of fome particular candidate, or candidates, which was the cafe at Durham on the oc- pafion which gave rife to the act of the 3d of the prefent King ; that there was no 90 CASE XV. no fuch purpofe in view when thofe free- men we're made, (moft of them in 1769), the prefent fitting members not having been then thought of by any body for candidates ; and, befides, they did not af- fent to the pofition of the counfel for the petitioners, but on the contrary were clear that, though at common law there was no limited time to which the occafionality of freemen was restrained, yet, by the fta- tute, the legiilature had drawn the line beyond which, fince the time when thatfta- tute pafled: this objection cannot be made. In reply* the counfel for the petitioners, befides enforcing their former arguments, obferved, That the meaning of occafionality can- not be confined to the intention of ferving particular candidates, for that the freemen who are made at any time lefs than twelve months before the election, are, by the fta- tute, denominated occafional; and, yet, in many inftances, it is not known who the can- didates will be till very near the time of the election, efpecially in the cafe of a vacancy occafioned by any unforefeen event. The BEDFORD. 91 The counfel being directed to withdraw, the Committee deliberated for a confider- able time, and when they were again called in, the Chairman faid he was di- rected to inform them, ** That the Committee were of opinion, " that the words, " being houfeholders of " Bedford" contained in the refolution of " the Houfe of Commons of 12 April, " 1690, do not refer to the burgejjes and " freemen* but to the inhabitants only." The Chairman likewife faid, (though not in the formal words of a refolution,) " That the Committee were clear in " their opinion, that the objection of oc- " calionality did not lie againft free- " men made above a year before the elec- " tion." They delivered no opinion concerning the right of the corporation to make hono- rary burgeffes and freemen ; but, as that objection, if the Committee had thought it valid, would have annulled the votes of all thofe who were objected to as occajional and as non-refident \ and as their votes were, after this, preliminary decifion, con- fidered 9 z CASE XV. fidered by the counfel on both fides, in their fubfequent arguments, as eflablifhed, and were admitted to be neceflary in order to give Sir William Wake a majority ( j ) on the poll, it follows necefTarily, that the Committee were of opinion, that fuch honorary burgefTes aqd freemen are legal members of this borough. . (c3- The feeming want of precifion in the determination of the Committee on thofe three diftinc~t heads, muft have arifen in fome meafure from the counfel for the pe- titioners having gone from the queftion of non-refidency upon the other two, before the Committee had decided the firft.) The counfel for the petitioners having failed in the firft part of their cafe, pro- ceeded to another queftion, which was, IVth Point.] Whether perfons having received of a charity called Harpur's cha- rity, within a year (B) before the election, were entitle'^ to vote, or whether fuch per- fons are difqualified under the words, " re- s' ceivm^ alms" in the laft determination. (i) See the Determination in his favour, infra. A great BEDFORD. 93 A great number of perfons in that predi- cament had tendered their votes for Mr. Whitbread and Mr. Howard, and were rejected by the returning officers. The evidence produced on this fubjecl: was as follows. By letters patent, bearing date the I5th of Auguft, '55 5 > King Edward the Hxth gave licence to the mayor, bail- iffs, burgefles, and commonalty of the town of Bedford, to erecl: a free- fchool, having a mafter and an uftier, to be nominated by the mafters and war- dens of New College, Oxford, and gave them liberty to acquire lands, &c. to to the clear yearly value of forty pounds ; to hold to them, the mayor, bailiffs, &c. for the fuftentation of the faid mafter and ufher, for the marriage of poor maids of the faid town, for poor children there to be nourifhed and informed, and alfo, u T^he Surplufage coming or remaining " of the premifes to dijlribute in alms to " the poor of the faid town for the time 'being" Sir 94 C A S E XV. Sir William Harpur, in confequence of thofe letters patent, did, in 1566, grant certain lands and houfes in Bedford, and alfo thirteen acres and one rood of mea- dow, in the parifh of Saint Andrew, Hoi- born, in the county of Middlefex, to the faid mayor, &c. for the fomentation of the faid matter and ufher, for the marriage of pocr maids of the faid town, and for poor children there to be nourifhed and in- formed, " according to the form of the faid " letters patent" Thefe thirteen acres and a rood, were, foon after, reduced by encroachments to twelves acres, one rgod, and thirteen poles. About the year 1668, the corporation let'them for a term of forty-one years, at the annual rent of ninety nine pounds* The expiration of that leafe would have fallen of courfe in the year 1709. In 1684, a reverfionary leafe was grant- ed for the further term of fifty-one years, to commence at the expiration of the former, and at the yearly rent of one hundred and fifty pounds. Under BEDFORD. 95 Under thofe, and other derivative leafes, the following ftreets, &c. Bedford- Street, Bedford- Row, Bedford -Court, Prince's- Street, Theobald's - Row, North - Street, Eaft-Street, LambYconduit-Street, Queen- Street, Eagle-Street, and other ilreets and courts, in the parifhes of St. Andrew, Hoi- born, and of St. George, Queen -Square, were built and ereded. By this means, the eftate was, at the expiration of the term of fifty- one years, which happened in 1761, encreafed to a great value ; and it became expedient ta have an acl of Parliament pafled, to regu- late the management, and appropriation of the revenues. Accordingly, in the year 176-, an act -pafled for that purpofe, which, (after re- gulating the amount of the falaries of the matter and ufher, the fums to be given for portioning poor maids, and a fum to be applied yearly for apprenticing poor children, befides other neceflary ex- pences) ; enadts, " That the furplufage 14 of the rents and profits fhall be diftri- " buted in alms to the poor of the faid " town, 9 6 CASE xv. " town, for the relief and fupport of poor " decayed houfe- keepers, and other pro- " per objeds." In the original bill, there was the fol- lowing provifo; " That no freemen or " inhabitants of the faid town of Bedford, ", receiving benefit from the faid charity " eftate, in any manner whatever, fhall " thereby be difqualified from voting fof " members of Parliament for the faid " town of Bedford." This claufe was at the third reading, (on an amendment for that purpofe being moved) left out of the ad. By the ac~t, a certain number of truf- tees are added to thofe who were fo by the original foundation, as members of the corporation. Such being the nature of this charity, it was proved, by a great number of wit- nefles (feveral of whom had been truftees of the charity, and overfeers of the poor, and fome, . agents at elections) ; That this charity has been diftributed to many per- fons who paid to church and poor ; That about three fourths of thofe who had re- ceived BEDFORD. 97 eived it at the laft diflribution, paid the parifh taxes, forhe of them to the amount of nine ihillings ; That it has always been given to middling fort of people, without follicitation on their part ; That it has always been confidered, in Bedford, as a a fort of donation^ and diftinguifhed from parifh pay, the charity being called Hall- money, (becaufe it is diftributed at the common-hall) and the parifh pay collec- tion. One Negufs, (a perfon of fifty years of age) fwore particularly to a man who rents eighteen pounds a year, and yet re- ceived the charity ; and to another who received it, although he paid nine fhillings a year to the parifh of which he (Negufs) is overfeer. The fame wimefs fwore, that his own father died nineteen years ago, aged feventy, and that he had heard him fay, that he had received the charity con- ftantly from the firft year of his marriage, and that he had voted at Sambroke's election, in 1730, and at other elections, and that no objection was ever made to his vote. VOL. II, H 9$ C A S E XV. All the witneffes faid, That, till the laft election, they had never heard the right of Harpur's charity men to vote called in queftion ; That it was always underftood they had a right ; That many, to their knowledge, had voted at every co'ntefted election which they recollected. (The names of feveral were fpecified.) That the votes of perfons receiving parifti pay had always been rejected, and that, to know whether any perfon had received it, recourfe was always had to the parifli books ; but that, when this objection of Harpur's charity was ftarted at the laft election, it aftonifhed every body. The counfel for the fitting members faid, they could not call any witnefles to contradict or difprove thofe facts. COUNSEL for the petitioners. It is clear, from the nature of the cha- rity, and from the words of the refblution, as. interpreted by the ufage which has beea proved,, and not contradicted, that the charity in queftion does no.t difqua- llfy. That BEDFORD. 99 That charities of this fort do not ne- ceffarily difqualify, by the common law of Parliament, is proved by the cafe of Coventry. 24th February, 170^. It was refolved, " That the freemen of Coventry receiv- " ing alms, or charity, have no right to " vote in the election of citizens, toferve in " Parliament for the city of Coventry (i )." Yet, though the very word " cha- " r/Vy is ufed in that difqualifying refolution, the Houfe afterwards deter- mined, on the ift and 3d of March, 170^, " That Sir Thomas White's gift (2), and * c Thomas Wheatly's gift (3), do not dif- 44 qualify." Both which charities are exactly analogous to that now under the confideration of the Committee. In general, where, by the ufage of the place, perfons receiving relief from the revenues of particular charities are difqualified, the Houfe, in determining the right of election in that place, has (1) Journ.vol. xiii. p. 763. col. r. (2) Journ. vol. xvi. p. 129 col. 2. (3) Journ. fame vol. p. 135. col. i. H 2 inferred ioo CASE XV. inferted the word " charity" in the dif- qualifying part of the refolution. The cafe of Taunton is particularly ftrong to fhow that the word " alms" alone does not, in the language of Parliament, com- prehend particular charities (i). There are, to be fure, cafes to be found in the Journals, where it has been deter- mined that charities founded by private perfons difqualify, although the word " alms'* only has been ufed in the refo- lution declaring the right of election ; but there are none, where it has been fo hold- en, when the ufage had been (as in the prefent cafe) proved to be in favour of the votes of men receiving fuch charities. That, in tne prefent cafe, in the de- termination of 1690, the Houfe, by the word " alms" meant only parifh relief, will appear from an attentive examina- tion of the evidence on which the deter- mination was formed. The evidence then produced was, a declaration of the com- mon-council, bearing date the igth of ( i ) Supra, vol. i. Decembar BEDFORD. 101 December, 1687, " That every inhabi- " tant, not taking collection, nor being " fojourner, hath a vote (i)." Now " col- " leftion" has been proved to be the term by which parifh pay is fpecially diftin- guifhed to this day in Bedford (2). It is a term familiar to the legiflature in that fenfe, as appears by a great variety of fta- tutes, 27 Hen. VJII. cap. 25. i Edw. VI. cap. 3. 5 and 6 Edw. VI. cap. 2. 5 Eliz. cap. 3. i7Geo. II. cap. 3. i. la- deed, one of the firft ftatutory modes of relieving the poor, before the act of the 43d of Elizabeth, was literally by col- lection made on Sundays in the parifh church (3). The reafons why many think that alms or parijh collection difqualify by the com- mon law, and that the refolutions of the Houfe where they are mentioned, are only declaratory of that law, do not ap- ply to the charity in queftion. Thofe reafons are, that men who are obliged to (1) Journ. vol. xvi. p. 376. col. i. (2) Supra, p. 97. (3) 27 Hen. VIII. cap. 25. i Edw. VI. cap. 3, H 3 truft 102 CASE XV. truft to the parifh for their fuftenance, would not be able to contribute to the wages of their members, and that fuch indigent perfons can have no independent will of their own, and cannot give a free fuffrage. The major part of thofe who received Harpur's charity, have been proved to be in circumftances fufficiently eafy to contribute to the maintenance of others, and to pay both to church and poor (ij. COUNSEL for the fitting members. " Alms" is certainly a generic word 8 comprehending every fpecies of pecu- niary relief beftowed on the poor for their fuftenance, and when " charity" is ufed to fignify fuch relief, the two words are convertible and fynonimous. This appears by the very etymology of (t alms,'* which is taken from the French word " aumones^ anciently written c< almofnes"- and that from the Greek word " EAE^JUO- ," which is thus defined by the (i) Supra, p ? 96, 97. gram- BEDFORD. 103 grammarians, " Omne beneficium quo cala- " mitofos profi'qitimur^ The word " alms" is ufed to exprefs the part of Harpur's charity which was to be diftributed to the poor, both in the letters patent of Edward the Sixth, and in the ac~l of Par- liament of the prefent King; and by fe- veral orders of the truftees for the diftri- bution of the money fmce the ftatute, they themfelves call it " alms? One of thofe orders of 3 ift Dec. 1770, is, " That 4C 2oc 1. the furplus of the Bedford charity? *' be diftributed in alms to the poor." {& This was read from the books of the charity.) If " collection' is the expreffion, which, by the cuftom of Bedford, is peculiarly appropriated to parifo relief in that place, the Houfe, in 1690, if they had meant that no other fort of charity difqualified there, would have made ufe of that word. We may therefore infer that, by chooiing to employ another word, they meant a different, and more general, difqualifica- tioo. H 4 In 104 CASE XV. In the cafe of many boroughs, where the Houfe had declared the right of elec- tion to be in perfons not receiving alms> t they have, on fubfequent occafions, de- cided that the receipt of charities, like that now under confideration, are within the difqualification. 28 January, 169^, Refolved, "That *' the right of election of burgefles, to 4< ferve in Parliament for the borough of ^ Aylifbury, in the county of Bucks, is " in all the houfeholders of the faid bo- *' rough, not receiving alms (i). J> 7 February, 169-*, Refolved, ft That ^ all perfons receiving aims within the *' borough of Aylefbury, purfuant to the *' will of Mr. Bedford ; or any other per- *' fons receiving any other charity, an- " nually diftributed within the fame town; " are, in refpecl thereof^ difabled to vote < c in the election of burgefles to ferve ia " Parliament for the faid borough (2)."- (1) Journ. vol. xl. p. 419. col. 2. (2) Journ. vol. xii. p. 490, col. 2. BEDFORD. 105 Mr. Bedford's charity in Aylefbury, is exactly fimilar to Sir William Harpur's (C). It is obfervable, that, in this laft resolution, the Houfe ufe " alms" and " charity^ as words importing exactly the fame thing. 2 December, 1708, Refolved, tend to all charities. If the Houfe has, on fome occafions, drawn a line between alms and charities^ by making a diftinclion where there is no difference, this is to be afcribed to motives which are too well known to have often influenced the former judicature in decid- ing the rights of eledion. But thofe cafes, (although the decifions of them may be conclufive in the particular places with regard to which they were made, in confe- quence of the ftatute of George the Se- cond (i),) are not certainly of a fort to direct the judgment of Committees in other cafes where their authority is not binding. In many instances where the words " alms" and '* charity" are both ufed, we are to confider it as mere tautology, a (i) 2 Geo. II. c?p. 24. thing BEDFORD. 107 thing not very uncommon in parliament- tary language. Jf " alms,*' according to the fair mean- ing of the word, includes all charities ; if fuch an interpretation of it is authorifed by the fober and reafonable decifions of the Houfe ; and if Harpurs charity has been particularly fo denominated by the foun- der, (fince in his deed of gift he refers to the letters patent where alms is the only word ufed) by the legiflature, and by the truftees of the chanty, we muft infer, firft, that all charities were meant in the deter- mination of 1690; and, fecondly, that this pharity more particularly muft be conftrued to be within the meaning of that determi- nation : but, if this is fo, the ufage, of which evidence has been given, as it is pof- terior to the determination, will be of no avail ; efpecially when it is confidered that, till the expiration of the fecond leafe in 1761, the furplus money muft have been fo frnall, and fo few muft have partaken of it, that it could not be of much confe- quence at any election to object to their votes. It 108 CASE XV. It has appeared that, in the bill for re- gulating this charity, a claufe was at firft inferted, declaring that the perfons receiv- ing it fhould not thereby be difqualified from voting, but that claufe was rejected (i). Is not this a decifion of the legiflature itfelf that they are difqualified ? The reafons which have been given for thedifqualification ocean" oned by the receipt of parifh pay, are equally applicable to this charity ; for, however improperly it may have been diftributed in fome parti- cular inftances, yet the true objects of it, according to the fpirit both of the donation and the regulating ftatute, are perfons who are in the fame indigent and dependent fi- tuation with thofe relieved by the parifh. The counfel for the petitioners faid, in reply, That they had admitted that, in fome cafes, the Houfe had decided that particu- cular charities difqualified, after there had been determinations where, in the difquali- fying part, the word " alms" alone was ufed; but that no fuch inftances could be found, where there was a conftant ufage in (i) Supra, p. 96. favour BEDFORD. 109 favour of the votes of the perfons receiv- ing the charities ; and that, as to the ufage in this cafe, having been proved as far as living memory or reputation goes, it was, according to the reafoning of the counfei for the fitting members in the former part of the cafe ( i ), to be prefumed to have been always fo. That the moft reafonable way of underftanding the cafes juft mentioned was, to fuppofe that, although by the firft general determination, alms and not charities were mentioned, yet the Houfe had afterwards, on evidence of the particular cuftom of the place, decided that certain charities did dif- qualify, and not on the idea that they were comprehended under the word " alms" in the prior determination. That, before the 2d of George the Second, it was competent to the Houfe to make fuch fubfequent de- cifion extending the difqualification be- yond that contained in the firft, without confidering the fecond as explanatory of the firfl ; and that the inftances which had been adduced happened be- fore that ftatute took place. (i) Supra,?. 76. That no CASE XV. That the amendment of the ac of Parliament- for regulating the chanty had only left the law as it was before, and that the claufe was thrown out be- - caufe it is an eftablifhed rule, in bills of that fort, not to fay any thing of general rights. That if the legiflature had meant to declare that Harpur's charity difquali- fies, they would have inferted a direct claufe for that purpofe. The arguments on this queftion being finimed, the Committee deliberated for fome time among themfelves, after which, the couniel being called in, the Chairman faid he was directed to inform them, " That the Committee were of opinion, tc that perfons receiving Sir William Har- <( pur's charity are not thereby difqualiried, < r within the meaning of the determination c of i 2 April, 1690, from voting for mem- " bers of Parliament for Bedford." Vth Point,] The counfel for the peti- tioners then propofed to add 36 voters (in- habitants and houfeholders) to the poll, who had been rejected becaufe they had come into the parimes where they refide in Bedford with certificates from other parimes. They BEDFORD. m They faid* That a certificate does not put a man in the fituation of a pauper, being only an eventual indemnity to the parifh. where he comes to dwell, in cafe he fhould, at any- future period during his. refidence there, become an object of parifh-relief ; that a perfon therefore worth a hundred thoufand pounds may have a certificate, ; and that it has no where been holden that a certificate is a general diiqualification in all boroughs, although in-fome, as Taunton(i), it is ib, by the peculiar ufage of the place. The leading counfel for the fitting mem- bers admitted this, and, after fome ftruggk by the other, it was agreed^ that the votes rejected on this ground mould be added to the poll. And the counfel for, the fitting members alfo admitted, That, in confe- quence of the refolution of the Committee relating to Harpur's charity, the majority then flood in favour of the petitioners ; but they informed the Committee, that they in- tended to objecl: to many votes which had been received in favour of the petitioners. On this, the counfel for the petitioners pro- (l) Fidefupra t Cafe of Tauhton, vol. i. p. 373. ceeded CASE XV. ceeded to endeavour to add other votes td the poll which had been rejected by the re- turning officers, and then clofed their cafe, by evidence tending to prove bribery on the 1 fitting members. Then the counfel for the fitting mem- bers went through their evidence and argu- ments on feveral new heads of objection. The different points in this laft part of the cafe, and the evidence and arguments concerning them, were as follows : The counfel for the petitioners en- deavoured to fupport, and the counfel for the fitting members objected to, the votes of, Vlth Point.] i . Perfons having received of a charity called Hawes's charity. Vllth Point.] 2. Perfons having re- ceived of a charity called Welborrfs cha*- rity. VHIth Point.] 3. The mailer and bre- thern of an hofpital called St. John** hof- pital. IXth Point.] 4. "Freemen who had re 5 - ceived parifh relief within a year befofe the election. Xth BEDFORD. 113 Xth Point.] 5. Freemen, who had an inchoate right to their freedom, but were admitted in a particular manner different from the cuftomary mode of admifiion for fuch freemen, and within a year before the election. (o^ There were fix of this defcription who had tendered their votes, and had been rejected.) The nature of Hawes's chanty appeared to be this. Certain lands were left by one Hawes for the ufe of the poor of the pa- rimes of St. Mary and St. Paul in Bed- ford : of the yearly profits of this land two thirds are to be diflributed yearly in bread to the poor of the parim of St. Paul, and one third to thofe of the parifh of St. Mary. Welborn's charity was founded in the year 1716, when one Robert Welborn left a clofe, now of the value of 4/. iox. per annmn> to the minifters and overfeers of the poor of St. John's parifh in Bedford, to be diftributed to the poor on New-year's day. It appeared that the practice is to diftribute it in fums of three or four (hil- lings to each perfon. VOL. II. I St. n4 CASE XV. St. John's hofpital was founded in the year 980, by one Robert de Parys, for fix poor men to pray for his foul and the fouls of feveral of his relations, and to attend divine fervice. It was a fort of chantry, and is now in every refpect a corporation. The rector of the parifh where it lies i& matter, there is a common feal, and the brethren, as they are called, are parties to all leafes made of their land. Since the year 1606^ in confequence of an order of the King and Council, made upon a peti- tion for that purpofe, they receive each ninejpence a week from the revenues of their land. It was proved that ufage and reputation were in favour of the votes of thofe three clafles, and that they are often rated to the p 00r ; that the bread of Hawes's charity is moftly received by wives and children. As to the freemen rejected becaufe ad- mitted within the year, although they had antecedent titles, it was proved, that the cuftom of Bedford is to admit freemen, having previous, titles at the court-leet; that, honorary freemen, on the contrary, are BEDFORD. 115 are often admitted at a common-council ; that, when men with antecedent titles are admitted at a com'mon-council, as fuch ad- miflion is not demandable of right, but x is matter of favour in the corporation, and on fuch occafions there is often no enquiry or proof made of a previous title, even if the perfons admitted have it, they are under- ffood to wave the benefit of that title, and are confidered merely as honorary freemen. It was contended on the part of the pe- titioners, That, as to Hawes's and Welborn's cha- rities, there could be no diftin&ion made between them and Harpur's charity ; that they are alike derived out of land, and ap- propriated to fimilar ufes ; that it would be a fraud and furprize on the perfons who had received them on the fuppofition that they would not thereby lofe their votes, having never heard that thofe charities would dif- qualify, to declare them now to be difqua- lifted, and thus deprive them of their fran- chife by an ex fojt fafto deciiion. That no reafonable perfon can fuppofe, that per- fons previoufly entitled to vote, would I 2 have ji6 CASE XV. have accepted either a fixpenny loaf, or three or four (hillings, if they had Imagined that this would annul their votes. That, with regard to Hawes's charity, as itisge- ' nerally given to women and children ( i ), it would be particulaily unjuft that their act in receiving it mould deftroy the votes of their hufbands or fathers who might not t be privy to their having received it. That, as to the brethren of St. John's hofpital, they are a corporation, and have a perma- nent intereft in what they receive from the profits of their land : That they are like "fellows of colleges, and, like them, would be entitled to vote even at county elec- tions, as deriving an Income for life out of lands : That, if one of them were turned out, he might have a mandamus to reinftate him: That what they receive, therefore, is of a certain and ftable nature, and does not fubjedt them to influence like the uncer- tain fluctuating hopes of parifh relief: 7'hat they may be compared to Chelfea and Greenwich penfionecs ; and that the former were holden, in the cafe of Taunton, not to be difqualined within the meaning (\) Supra, p. 144. either BEDFORD. 117 cither of the words " alms" or " charity J* by what they receive from the hofpital ( i ). (c3* They feemed to give up the votes of the freemen who had been made within the year, as being within the meaning of the ftatute of George the Third.) As to the freemen who had received parim -relief within the year they now (2) argued, That thefe words of the laft determina- tion, c< not receiving alms" could not be carried back to freemen fmce the Commit- tee had determined that the previous words '* being hoitfe holders" do not apply to them ; and though alms, by the common law, difqualify men who acquire an acci- dental right to vote by inhabitancy, none of the advantages of zfranchife purchafed by a man, or by his parents, for money, or by ferving an apprenticefhip, can be after- wards annihilated by a change of fitiia- tion and pecuniary circumftances. (i) Cafe of Taunton, fupra, vol. i p. 373. Nota. In the report of that cafe, I have faid this point was "fettled." I fhould have faid " determined by the Com- " mittte. 9 (2) Pidtfupra t p. 75. I 3 On ii8 CASE XV. On the head of bribery, fome evidence was given to Ihow that the corporation, when there was queftion of a certain gen- tleman's being a candidate, had require4 of him as a previous condition to his be- ing fupported by them, that he mould de- pofit a confiderable fum of money. But this was explained to have, been intended merely as a fecurity for the payment of the neceilary expences of the election, and not as a corrupt confideration or gift for their benefit ; and there was no proof that ever fuch a propofal had been made to the fitting members, or that any money had either been given or promifed by them* The counfel for the fitting members in- fifted, That they ftill were at liberty to conteft the right of men receiving any other cha- rity but Harpur's : That they might, and did fuppofe, that the Committee had decided fpecially upon that charity, on the ground of its great value, which rendered the receiving it ai> pbje<5t BEDFORD. 119 object even to perfons in eafy circum- ilances. They then went over nearly the fame ground of argument which they had formerly taken. They faid, That Wel- born's charity is diftributed by the over- feers of the poor ; That it ftands in the place of parifh pay to thofe who receive it ; That alms^ as the counfel for the peti- tioners had contended in the beginning of the caufe, is a general common law dif- qualifkation if received within the year(j), and therefore affects perfons claiming to vote as freemen, as well as inhabitants ; That it does not annihilate any part of their franchife, but only fufpends the exercife of their right of voting while they are in that dependent flate, when the law intends them to be incapable of giving a free fuf- frage. There were fome other votes objected to on both fides, as given by perfons, who were not houfeholders, who lived in parifli houfes, &c. and fomc of them were given up. *3> It will be obferved, that with regard to thefe, the fad:, not the Jaw, WAS dif- puted. (i) Supra, p. 75. I 4 After 120 CASE XV. After the counfel on both fides had fi- nifhed, which they did on Tuefday, the 2ift of March, the Committee defired that ftates of the poll, and of the num- bers of votes objected to on each of the different heads, fliould be agreed on, and delivered in, by the agents on each fide. From thofe rlates it appeared, 1 . That the original poll, including the honorary non-refident burgefles and free- men, whofe votes had been declared by the Committee to be legal, was, For Sir William Wake - 527 For Mr. Sparrow 517 For Mr. Whitbread - 429 For Mr. Howard 402 2. That, including all the votes which the counfel for the petitioners had endea- voured to eftablifh, the numbers would have been, For Whitbread 6n For Howard - 580 For Wake - 541 For Sparrow - 530 3. That BEDFORD. 121 3. That after ftriking off thofe who re- ceived Wellborn's chanty, the freemen re- ceiving parifh. relief, thofe who had been admitted to their freedom within the year, and the particular votes objected to as given by inhabitants not houfeholders, &c. the numbers would have flood, For Whitbread 568 For Wake - 541 For Howard - 537 For Sparrow 529 4. That, if perfons who received Ha wes's charity had alfo been flruck off, the num- bers would have flood, For Wake - 527 For Sparrow 519 For Whitbread - 467 For Howard - 441 5. Or that, if thofe votes had been left on the poll, and thofe of the freemen who had received parifh relief added, the num- bers then would have been, For 122 O A S E XV. For Whitbread - 574 For 'Howard - 542 For Wake - 541 For Sparrow 530 As the different points in what remain- ed of the cafe, after the decifion concern- ing Harpur's charity, were not argued and determined feparately, the Commit- tee did not communicate their feveral re- folutiofis on thofe points to the counfel, but they are contained in the minutes taken by the clerk, and delivered to the parties, from whence I have tranfcribed them, viz~. 1. The' queftion being put, That the perfons who voted at the laft election for Bedford having received Hawes's charity, were thereby difqualifred ; It was refolved in the* negative. 2. The queftion being put, That the perfons who voted at the laft ele&ion for Bedford having received Wel- born's charity, were thereby' difqualified ; It was refolved in the affirmative, 3. The queftion being put, That BEDFORD. 123 That the mafter and brethren of St. John's Hofpital were dilqualified from voting at the laft election for Bedford ; It was refolved in the negative. 4. The queflion being put, That the word " alms" in the refolution of 1690, refers to burgeffes and freemen, as well as to inhabitants houfeholders of Bedford ; It was refolved in the affirmative. 5. The queftion being put, That the fix perfons who tendered their votes at the laft election for Bedford, be- ing admitted within the twelvemonth by the common- council, had a right to yote; It was refolved in the negative. The Committee likewife refolved, That they would not reject any per- fon's vote (not other wife difqualified) for receiving alms, provided he had not re- ceived the faid alms within the year (B). On Thurfday, the 23d of March, the Committee, by their Chairman, informe4 the Houfe, that they had determined. That , 124 CASE XV. That Sir William Wake, Bart, was duly eleded ; and, That Samuel Whitbread, Efq. the pe- titioner, was duly eleded, and ought to have been returned ( i ). (i) Votes, p. 420, 421. NOTES. ( 125 N B E On the D c F T A S E E of R S D pAGE 77. (A). On the 26th of April, Mr. Whitbread prefented to the Houfe, a petition of divers inhabitants, houfeholders of Bedford, fetting forth ; That the mayor, aldermen, and common- council had, at feveral times, afTumed a power of making an unlimited number of burgefies and free- men, ftrangers, and foreigners, who never ferved any corporate office, exercifed any trade, or contri- buted to any rate or aflefTment, within the town, for the fole purpofe of their voting at elections for members of Parliament ; That particularly in the month of September, 1769, they had made up- wards of five hundred, and a confiderable namber every year fmce ; and that the like evil practice, if continued, would totally annihilate the ancient right of election to the petitioners, the whole number of inhabitants, houfeholders, who have a right to vote, being computed not to exceed five hundred and forty , praying, therefore, that the Houfe would grant fuch relief as might be expedient for the prefent. 126 NOTES. prefent, and prevent the like prafHces for the fu- ture. Votes, p. 573, 574. This petition was ordered to be referred to 3 Committee to enquire into, and ftate the matter of fa& to the Houfe. On the firft of May, Sir William Wake, now Mr. Whitbread's colleague, after complaining that the petition had been prefented by a furprize on him, and the norf-refident electors of Bedford, and that he had received no notice that fuch a thing was intended, moved that the order for referring it to a Committee fhould be difcharged ; but the queftion being put on that motion, it pafled in the nega- tive. (Votes, p. 603, 604..) On the j 7th of May, however, (Votes, p. 699,) nothing having been done by the Houfe in confequence of a report which had been made by the Committee fome time before, the confideration of the report was put off for two months, before which time the Houfe was prorogued for the fummer. P. 92, 123. (B.) As a perfon who is at prefent in indigent circumftances may afterwards become affluent or independent, and vice verfa, it cannot be fuppofed that the receipt of alms, or of any parti- cular charity (in cafes where that disqualifies) fhould operate at an unlimited diftance of time, nor on the other hand, that, where the right of election is in thofe who pay fcot and lot, or to church and poor, fuch payments fhould produce a qualifica- tion, though made at any remote period before the election. Some line muft be drawn, in, both in- ftances, NOTES. I27 ftances, and that line, by the eftablifhed cuftom of Parliament, feems to be one year before the elec- tion j unlefs in particular cafes, where, either by fpecial ufage, a determination of the Houfe (as in the cafe of Reading, fupra, p. 105), or an a& of Parliament (as in London), the difqualification by alms is extended to two years. P. 105. (C). The counfel for the fitting mem- bers-were going to ftate the nature of Mr. Bed- ford's charity, in Aylefbury, from their briefs, but this was objected to, unlefs they would produce legal evidence of it. It is ftated in the Journals. " 7 Feb. 169*-. The Committee reports, That " it appeared that John Bedford, by his will, made " the i2th July, 9 Hen. VII. allotted lands of " about 120!. a year,, for the repair of the high- - S U D B U R Y. 133 refolution of the 6th Dec. 1703, was merely explanatory of one of the iQthof January, i7Oy, in the following words ; Refolved, he fhall have the freedom of the according to the {lamp laws, when no admiffions on {lamps are to be found, other evidence {hall not be admitted to prove a man to be a freeman. The general rule of law requires that evidence {hall not be admitted of any thing of which better evidence might have YOL. II. M been C A S> E XVL been procured, and is not produced ; but, when what would have been better evi- dence, if it could have been procured, cannot be found, it is alfo a rule of law, that the next bed evidence fhall then be admitted. Anil this ru!e, being derived from the principles of common fenfe, is- not peculiar to the laws of this country. It is a rule of the civil law, with which one of the fitting members muft, from his profeflion ( I ), be acquainted. On the part of the rejected voters, the words of Cicero- (no mean authority in that law) on be- half of a client whofe cafe was very fimi- lar to theirs, might have been ufcd with great propriety. The admiflion of Archias the poet, to the freedom of the city of Heraclea, being called in queftion, he was ready to prove it by the fame fort of evidence which the freemen of Sudbury of- fered to produce, but was told that this was- not the beft evidence, and that he muft Ihow the enrollment of his admiffion in the books of the city, although it was noto- rious that thofe books had been confumsd (l) Mr. Crefpigny is King's Proftor. S U D B U R Y. 163 by fire, and did notexift, on which Cicero, who pleaded his caufe, obferved, " Hie " tu tabulas Heraclzcnfium dcjlderas^ quas^ ic Italico belie, inccnfo tabulario) interiffe " fcimus omnes. Ejl ridiculum^ adea^ GU& ha- " bemus, nihil dicer e \ qu is their admiffion enrolled upprj ftamps, ftill, on the cleareft principles of law, the perfons rejected at the laft elec- tion were entitled to vote. When they de- manded to be enrolled they offered to mew that, when they were born, their fathers were free, and that they died in the ex- ercife of all the rights of freemen. Sure- ly, after fuch a length of time, their being freemen was not to be contefted. The law would prefume^ with regard to them, enrollment upon rtamps, if eflential, and every other neceffary form. The court of King's Bench never would fuffer the right to a franchife to be queftioned, upon the fuggeftion of fo ftale a defect of title. In the cafe of the King againft Stevens, that court unanimoufiy refufed to grant an in- formation, becaufe the perfon againft whom it had been moved for had been w poflef- Con for twenty-nine years (i); and, fmce that cafe happened, they have laid down a rule, never to grant an information ir* the nature of Quo waranto againft a corpo- (i) i Burr. p. 433. Michaelmas 31 Geo, II, rator S U D B U R Y. 167 rator de faflo t if he has been twenty years in the undifturbed enjoyment of his franchife ( i ). If, therefore, the title to be admitted of thofe who claimed by birth, was not to be queftioned, if they could fliow that at the time of their birth their fathers were in poiredion of the franchifqs of freemen, and fo continued till their death, if they were ready to prove this, but were not permitted, and if, upon this legal ground, they demanded to be admit- ted and enrolled upon ftamps, and were re- fufed, they are to be confidered as if they had been in fact admitted and enrolled, as to the right of voting either at corporation elections, if, by the conftitution of the bo- rough, they have any {hare in them, or for members of Parliament; and, having ten- dered their votes at the laft election, they are entitled to be put upon the poll. This equitable doctrine has been recognized and eftablifhed, with regard to the election of mayors, in the eafes of the King v. Of- born, and Auftin v. Ofborn, Trin. 2. (2) VMefupra, Cafe of Heilcfton, p. 6, 7. M 4 George i68 CASE XVI. George the Firft ( i ), and, with regard to the election of members of Parliament, in num- berlefs inftances to be found in the Journals, but, particularly, in the cafe of Shrewfbury, which was determined a few days ago (2). The palpable collufion in the fham man- damus, nominally brought by Snee, but conducted by the agent for his pretended antagonifts, is the ftrongeft proof that they and their advifers knew that the law was againft them. As to 137 of the rejected voters, it has been proved, by the teftimony of Griggs, and by the polls, that they have been in the pofleffion and exercife of the franchife of voting as freemen ever finceMay 1754 (3), which is more than twenty years previous to the lafl election. Their right therefore could not have bten queftioned at the time of the election even in Wedminfler-hall, fmce the rule which has been juft men- tioned had attached upon them, and this Committee will not fuffer rights to be dif- piited before them, which cannot be at* (1) Comyn's R.ep. 240, 243. (2) Vide fupra, vol. i. p. 470, 471. (3) Supra, p. 142. tacked S U D B U R Y. 169 tacked in the ordinary courfe of law. The votes of thofe 137 perfons muft therefore, at all events, be added to the poll, and they alone, independent of the others, are fuf- ficient to give both Sir Walden Hanmer and Sir Patrick Blake a great majority over the fitting members. Hid Point.] The moft unjuftifiable be- haviour of the mayor, in garbling the fta- tute of George the Third, and in deceiv- ing the electors, in order to perfuade them nqt to tender their votes, while it proves that he knew that, if tendered, they Ought to be received, convidts him of fuch in- tentional and criminal partiality, as calls for a degree of cenfure and punilhment fufficient, by the example, to deter others in the like fituation, from practices of fo dangerous a tendency (A). The counfel for the fitting members contended, That, as to the admiflion of hono- rary freemen, the magiftrates being al- lowed to have a right of felling, muft likewife have a right to give away the freedom of the town and common, the one neceflarily comprehending the other. That 170 CASE XVI. That, as to the inference that peribns were freemen, and entitled to vote, from their names appearing on the communage- books as having received the communage- money, it was ib far from fair or conclu- five, that widows, who as women cannot exercife any of the rights of freedom, ap- pear on thofe books. That, on the con- trary, the communage-money was to be confidered as a fort of charity, of the na- ture of alms, and that, as fuch, by the common law of Parliament, the receipt of it had difqualified thofe who did receive it, even fuppofing their votes, othcrwife to have been good. But they chiefly relied on their conftruc- tion of the ftamp laws, by which they contended, that nothing but flamped ad- miffions could be legal evidence of a per^- fon's being a freeman. In reply, the Counfel for the petition- ers faid, on the cmeftion concerning the honorary freemen, That, though it may be true that where a man can fell a thing as his own, he may confer it gratis, yet this will not ap- ply S U D B U R Y. 171 ply to the feled part of a corporation, who, in admitting to the rights of com- mon, and of carrying on trades in a bo- rough, ad only as truftees for the corpo- rate body at large. That their power of difpofing of thofe rights for a confidera- tion in money, which counterbalances to thofe already poflefled of them what they lofe by their being communicated to a greater number, is far from involving in it a power of diminifhing the value of thofe rights to the fubfiiling freemen, by an encreafe of number without any equi- valent or compenfation. That, as to the diftribution of the com- munage- money, it had been proved, that, by the cuftom of the borough, it is given only to freemen, and freemen's widows. That all the men, therefore, who appear by the books to have received it, muft be confidered as freemen, and that without going into the litigated queftion of the common law difqualifkation by alms, the communage-money can never be confider- ed as alms ; that it is the property of the perfons to whom it is paid, purchafed by them- 172 CASE XVI. themfelves, or their forefathers who firft acquired the freedom of the borough ; and that it is given as an equivalent to thofe, who, not having cattle of their own to turn on, cannot enjoy the privilege of the common in that way. During the courfe of the caufe, the, counfel for the petitioners propofed to call a witnefs, to prove a converfation of one Delande, an alderman of Sudbury ; on a fuggeftion that Delande himfelf could not be found to be ferved with the Speaker's warrant. This was objected to, and the point be- ing argued, The Committee, after clearing the court, Refolved, " That the counfel fhould " not be. permitted to go into this evi- " dence." After the Committee had fettled their opinion among themfelves with regard to the merits of the eledion, before they communicated their determination to the Houfe, they ordered Strut, the mayor, aud all the agents and perfons belonging to Sud- S U D B U R Y. 173 Sudbury who happened to attend, to be called in, and the Chairman, by their di- rection, publicly reprimanded Strut for his conduct at the eledion. He told him, That, by publifhing a partial, mutilated extract from the ftatute of George the Third, he had converted what was de- figned by the legiflature for the moft equitable purpofes, to ferve the worft : That the object of that ftatute was to fc- cure rnen, poffefled of an eftablifned right to vote, in the fubftantial and effectual exer- cife of that right, by preventing their fuf- frages from being overpowered by an in- flux of new voters, unconnected with the borough, and made fuch merely to ferve a particular jobb : But that he had falfely held out its penalties to perfons who had an eftablifhed right, in order to deter them from exercifmg it. That the Committee had it in their power to report his .conduct, and expofe it to thejufticeof theHoufe(A), but they hoped a fenfe of their lenity, and his own guilt, would be fufficient, in fu- ture, to prevent him from acting fuch a. . part, if ever he found himfelf in a fituation, li mi - 174 CASE XVI. iimilar to that in which he appeared at the laft election. The numbers on the returning officer's poll flood as follows : For Fonnereau, - - - 181 For Crefpigny, - - - - 179 For Hanmer, - - - 74 For Blake - - - - 73 94 of the voters for the fitting members were objected to as honorary freemen. If the petitioners had only fucceeded on that point, the majority would have fliil been againft them ; for Fonnereau would have remained with 87 votes, and Crefpigny with 85. If, therefore, the Committee kad thought, that admifiions upon ftamps, in the corporation books, were neceflaryto eftablifh the right of voting to all thofe who had been rejected, they could not de- cide in favour of the two petitioning can- didates. Of the 388 who were rejected, 26 were proved to have polled at every former election ever fince 1734 (i). If we add thofe to the votes for Hanmer and Blake, de- dueling at the fame time the honorary free- (i) Supra, p. 142. men S U D B U R Y. 175 men from thofe for the two fitting mem- bers, the majority will then be in favour of the two former, the numbers (landing thus: For Hanmer 100; for Elake 99; for Fonnereau 87; for Crefpigny 85. It was, therefore, pojfibk that the decifion fhould be in favour of Hanmer and Blake, the Committee holding the honorary free- men's votes to be void, and of the 388 rejected, only the 26 above-mentioned to be good. But every argument and prin- ciple in fupportof thofe 26, applies equally to all the 137, (of which they make part,) who have been polled ever fmce May, 1734, that is, above twenty years before the laft eledion (i). The Committee therefore, in order to determine in favour of Hanmer and Elake, mnft have confidered all the 137 as good votes, and the addition of them, without deducing the honorary freeemen, would turn the majority confiderably on the fide of the petitioners ; for the numbers would be, for Hanmer 211 ; for Blake 210; for Fonnereau 181; and for Crefpigny 179. Hence it follows, that a decif;on for Han- (0 Supra, p. 'F4?. mer CASE IVL mer and Blake only neceffarily required trie Committee to be of opinion, " That per- " fons who derived their claim to their free- NOTES ON THE CASE OF S U D B U R Y. J>AGE 169, 173. (A.) The following cafe was very much in point to the conduct of the re- turning officer. In 1705, on occafioh of an elec- tion, the mayor of Norwich had publifhed a bye- law, made at an afTembly held in Norwich, 28 Oct. 1640, enacting, That any one that fhould give his voice for any man, not free, to be chofen citizen for the Parliament, fhould forfeit, to the ufe of the poor, five pounds, or fuffer imprifonment(i). The Houfe, on this, (6 Dec. 1705,) Refolved, " That " William Blythj Efq. late mayor of the<:ity of " Norwich, by printing arid publijhing a pretended bye- *' law, made in the year 164.0, contrary to Magnet 61 Cbarta, in order to terrify the electors of the faid city t{ for his (aid offence, taken into the cuftody of the* " Serjeant at Arms attending this Houfe(i)." (i) Journ vol. xv, p, 56. col. i, z. XVII. The XVII. THE Of the DISTRICT of WIGTOWN, WHITE HORN, NEW GALLOWAY, and STRANRAER, In SCOTLAND. N 2 The The Committee was chofen on Tuefday, the aift of March, and confifted of the following Gentlemen. SirTho.Clavering, Bart. Chairman, Jt)hn Tempeft, Efq. Chriftophcr Griffith, Efq. John Dyke Acland, Efq. Hon. Thomas Lyon, Charles Ogilvy, Efq. William Weddel, Efq. Sir Cecil Wray, Bart. Hon. Charles Finch, Jofeph Martin, Efq. Hon. John Vaughan, Earl of Fife, Lord Adam Gordon. NOMINEES. Of the Petitioner, John Burgoyne, Efq. Of the Sitting Member, Sollicitor General of Scotland. Durh. county Durham Berkfhire Callington Aberdeen, &c. Weft-Looe Malton Eaft-Retford \Caftle-Rifing Tewkefbury Berwick Bamfshire Kincardinefh. Prefton Edinburghfli. PETITIONER. Henry VVatkin Dafliwood, Efq. Sitting Member. William Norton,. Efq. COUNSEL For the Petitioner. Mr. Macdonald, Mr. Elliot. For the Sitting Member. Mr. Crofby, . Mr. Lee (A), T H- E CASE Of the DISTRICT of WIGTOWN, &c. WHEN the Committee met, on Wednefday, the 22d of March, Mr. Dafhwood's petition was read, which, as it contains the general ftate'of his cafe, and will ferve as a precedent for petitions from diftrids of boroughs in Scotland, jt may be proper to infert at length, " TO the Honourable the Commons " of Great Britain, in Parliament " afiembled, The Petition of Henry il Watkin Dafhwood, Efq. humbly " fheweth, " THAT your petitioner, and William "Norton, Efq. were candidates at the lafl " election of a member to ferve in Parlia- N 3 meat 3 82 C A 5 E XVII. *' ment for the diftrid of the boroughs of " Wigtown, Whitehorn, New Galloway, ' and Stranraer, in Scotland, which elec- " tjpn was had on Monday, the 31*1 day " of October, 1774; That, at the faid " election, the delegates for the boroughs " of Wigtown, Whitehorn, and Stranraer, " duly chofen, and appointed for thofe " three boroughs, met at New Galloway, " the prefiding borough, and that Alex- " ander Fergufon, Efq. chofen and ap- V pointed delegate for the borough of " New Galloway, abfented himfelf from ' the faid election, having pretended to *' refign the office of delegate ; That *f John Newall, Efq. pretending to have " been duly chofen delegate for the faid *' borough of New Galloway, upon fuch * f pretended refignation of the faid Alex- " ander Fergufon, Efq, was admitted to " vote, and, accordingly, voted for the ?' faid William Norton, Efq. But your " petitioner, having had the votes of the " delegates of the boroughs of Wigtown and Whitehorn, at the election afbre- " faid, and the faid William Norton the " vote WIGTOWN, & c . 183 * e vote of the legal delegate of the bo- " rough of Stranraer only, (the pretended " delegate, John Newall, Efq. not having " any legal authority to vote at fuch " election) had, thereby, a majority of orther! 4 H being placed firft.) P 3 214 N T E S. Edinburgh, - Edinburgh. Diftrift j. Tain, Rofs. Dingwall, - Rofs. Dornoch, Caithnefs. Wick, Caithnefs. Kirkwall, - Orkney and Zetland 2. Invernefs, - ^ Invernefs. Nairn, "^ Nairn. Forres, - g Elgin. Fortrofe, Elgin. 3- Elgin, Elgin. Banff, - Banff. Cullen, - Banff. Kintore, - Js Aberdeen. Inverury, *~ f Aberdeen, 4.. Aberdeen, - c Aberdeen. Montrofe, - CQ Forfar. Brechin, Forfar, Aberbrothick, .E, Forfar. Inverbervie, Kincardine. 5. Perth, Perth. Dundee, - -5 Dundee. St. Andrew's, ^ Fife. Coupar, Fife, Forfar, ^ Forfar. 6. Anftruther Eafter, Fife. Pittenweem, Fife. Crail, Fife, ' Anftruther Wefkr, Fife, Kilrenny, -. -Fife, N O T E S. Diftrift. 7. Dyfarr, TFife. Kirkcaldie, - Fife. Bruntifland Fife. Kinghorn Fife. 8. Stirling Stirling, Inverkeithing, Fife. Dumfermline, Fife. Culrofs, o Perth. Queens ferry, rd Linlithgow. 9. Glafgow, p. 216. note (D.) P. 208. (L). For the writ to the fheriff of Ox- ford, Fide fupra, vol. i. p. 448. Cafe of Abing- don, Note (A). The words of the return to the precept directed to the Univerfity of Oxford, are, < WitnefTeth, that the aforefaid Chancellor, tc Mafters, and Scholars, of the aforefaid Univer- u fity, freely and indifferently have chofen two of " the moft difcreet and fufficient men of the afore- (0 Votes 6 Dec p. 33, 34. found P O O L E. 237 Found in the entry in the Journals of the proceedings with regard to this borough, of the gth of February i68|. This preliminary queftion was argued by all the counfeh The entry referred to is as follows. A petition of Thomas Chaffin, Efquire, complaining that Sir Nathaniel Napper had been returned, in prejudice to the pe- titioner, having been referred to the Com-, mittee of privileges and eledions, their chairman reported to the Houfe, '* That the matter in queftion was, Whe- " ther the right of election be in the mayor ** and burgefTes only ; or in the mayor, " burgefles, and commonalty,- who pay " fcot and lot : " That it appeared to the Committee, " by many parliament returns, which " were produced to the Committee, that " the right of election had anciently been " in the mayor and burgefles only ; except " a return in the 1 8th year of King James " the Firft ; wherein the commonalty are vol. i. p. 405, 406, 407. run 234 CASE XVIII. run in the name of the mayor and bur~ genfes. And the neceflary conclusion muft be, that the returns of members of Parliament, and the elections, were made by the mayor and inhabitants down to the I oth of Eli - zabeth. c3- All the ancient records cited in this cafe, were given in evidence, and I tranf- cribed the paflages taken from them, from copies and tranflations, collated, and ad- mitted by the parties.) EVIDENCE. ' Poole is a borough by prefcription. * The firil charter to be found has no * date, but is fuppofed to have been granted * fome time between i and 9 Ric. I. very * near the beginning * fifteen years ; but land-fteward onty 5 one year and three months. The lord * only drives the common. He, (the wit- * nefs) never aflifted but at one drift. On (i) Vide 3 Blackft. p. 238/239. 410 'that 238 CASE XVIII. ' that occafion, after the common was 4 driven, feveral tnhabita nts of Poole came, and claimed their cattle. He has feen turf cut, and carried into Poole. There are fome tenants of Canford-manor, who live in Poole. Not many. He does not know whether it was for them that ' the turf was cut. Nor whether thofe * inhabitants of Poole, who came to claim ' their cattle, were tenants of Canford- * manor. He cannot name any of them ; * and cannot tell whether they were more * in number, than thofe tenants of the ' manor who refide in Poole. * The next charter, bearing date 10 4 June, 45 Edw. III. (1371), is granted by William de Montacute, Earl of Salifbu- * ry, and lord of the manor of Canford. * It contains an injpeximtis y recital, and confirmation of the charter of Longefpee ; * and grants that the propofitus fhould be * from thenceforth, called Mayor. The * grant to the burgefles to dig turf, and to 4 cut heath and furze, is renewed in more ' exprefs and explicit terms, By POOLE. 239 * By the third charter, dated 8 Feb. .12 < Hen. IV. ( 141 1 ) Thomas de Montacute, ' Earl of Salifbury, lord of the manor of ' Canford, recites and confirms the two * preceding ones, to the aforefaid burgeffes * and their heirs. ' The fourth is a royal grant of Henry VI. in the eleventh year of his reign, * (1433) founded, as it would feem, on an aft of Parliament to the fame effect, (Rot. c Par!, in Turr.'Lond. nHen. VL n, 38.) to * the mayor and burgejjes, that Poole fhall * be a free port -, and giving to the faid * mayor and burgeffes licence to wall, in- c trench, and fortify the faid town and port * of Poole, and parts adjacent ; the faid ' mayor and burgeffes having made an of- It bears date iSFeb. i Eliz. (1559) ' and contains an infpeximus, recital, and * confirmation of the former charters,. * granted by the lords of the manor of ' Canford.) * The eleventh is in Englifh, and con- ' tains the arms of the town of Poole, c emblazoned by Clarencieux, king of ' arms, who declares/ " Theis be the armes POOLE. 243 * arrties appertaininge and belongmge to * the maire , bailyfes y burgefyes and inhabi- ' tants of the towne of Poole, and to all 4 the corporacion of the fame, which inha- 4 bit ants of the faid towne of Poole, as ap- 4 peared by anncynt charters to me, in * my vifitacion fhewed, were incorporated * by William Longefpee Erie of Sarum ' by the name of Porte ryve ( i), baylyfe, 4 and burgefyes of his town of Poole, par- * fell of his manor of Canford, which 4 corporacion was ratyfied, ammplifyed * and confirmed by William Monteacute 4 Erie of Sarum, by the name of his" ' mayre, baylyfe and burgefyes of his faid * town andburrough of Poole, which towne 4 and borrough of Poole is now in the in- 4 heritance of James Blunte knyghte, Lord 4 Mountjoye, as in the right of his faid * Manor of Canford. The whiche arms < above fet forthe, I Clarencieiix Kynge of 4 Armes have ratified and confirmed unto 4 the mayre, baylyfs, burgefyes and inha- 4 bitants of the faid towne and burough of ( i) Probably his tranflation of Propvfitus* R 2 Poole 244 CASE XVIII. Poole in this my prefent vifitaeion with- in thecountye of Dorfete." COUNSEL for the petitioners. There is no date to the laft mentioned inftrument, but it muft have been before the icth year of Queen Elizabeth, becaufe, in that year, Poole was erected into a county ( i ) Perhaps it may be faid that, notwith- ftanding the promiicous ufe of the words " burgeffes^ and "inhabitants" in the foregoing charters, inhabitants are inca- pable of incorporation, or of taking as a corporate body. But fuch an opinion is not founded on any found principle of law, nor fupponed by any decifion in Weftmin- fter-hall ; and there are other inftances be- fides Poole, where inhabitants, as fuch are made corporators. In Hobart's Reports, p. 14. and in Coke's, part 12. f. 121. it appears that, by the charter of the borough of Dungannon in Ireland, " The inhabi- tants of the faid borough were made a corporation/' (i) Vide infra t Charter of 10 Eliz. EVI- P O O L E. 245 EVIDENCE. f The returns to Parliament, for the * borough of Poole, before the i oth of Eli- * zabeih, which are preferved in the Roll's * chapel, are as follows. i. One of 36Edw. III. The eiedors are not mentioned in this, it being only the general return of the fheriff for the whole county (i ). ' 2. Sept. 12 Edw. IV. " It is witnefled * that the burgeffes of the fame borough ' have unanimoufly ele^ed, &c." ' From this return, none can be found ' till the firft year of Queen Mary. * 3. 23 Sept. i Mar. " Between Sir ' John Rogers knight, fheriff of the * county of Dorfet, of the one partie, and * John Davy mayor &c. William Grein the bylifte's depute, J. M., J. N., M. R,, < R. R,, and T. G. burgeffes of the faid ' towene, V/ytneflethe, that the mayor, * bylifFe's depute, and burgejjesolt the faid (i) See the Cafe of Abingdon, Note (C) fupra\ vol. i. p. 450. H 3 c towne 246 CAS E XVIII. c towne have elected." &c. Attefted un- * der their common feal. 4. i Nov. i & 2 Phil. & Mar, " Between Sir John Tregonnel knight, ' fheriff of the county of Dorfet, , of the f one partie, and William Newman, mayor, < Richard Goddard, bailieff; J.M., M. R., < Th. B., J C., J. S., turge/es of the faid f towne of Poole of the other partie, wit- f nefTethe, that we, the faid mayor, bailief, ' and burgeffes of the faid town have elect- * ed, &c. In witnes whereof, &c the * faid mayor bailief and burge/fis have put * the common feal of the faid town.'* ' 5. i Eliz. " By indenture between * Sir John Horfey knight, fheriff of Dor- 6 fet, of the one part, and W. G. mayor of < Poole, W. B., baily, J. M., J/A., (then 4 feveral words obliterated) J. D., W. N., J.B., J. C. and W. (then feveral words ob~ ? literated) faid town of Poole, witneffithe ' that the mayor, baily and burgees of, f &c. have elected, &p. In witnes, &c. * the faid mayor, baily, and (then feveral ' words obliterated) have put to their com- * mon feal, of the faid town of Poole.' 3 ' P O O L E. 247 COUNSEL for the petitioners. The above are all the returns which the petitioners have been able to find of a date anterior to the loth of Queen Eliza- beth. There are no corporation-books of the town of Poole extant prior to that year. The refult of what has been hitherto faid, and of the evidence produced, is ; That the common law right of election for boroughs is in all the inhabitants houfe- holders. That there is no prefcription and no charter prior to the i cth of Queen Elizabeth, contrary to this common law right, in the town of Poole. That " bur- " genfes*' (or " burgefles"} is a term ufed in ancient writings and inftruments for the inhabitants of a borough. That it means fo in the charters of this borough till the ioth of Elizabeth. That all grants to the burgefles of Poole have, in fact, pafled the thing granted to the inhabitants. That the arms, and, confequently, the common feal, belong to the inhabitants^ and there- fore, that every inftrument, iealed with R 4 the 34* CASE XVIII. the common feal, is the inftrument ancj a& of the inhabitants. That the returns to Parliament, from the earlier! times, till the icth of Elizabeth, being fealed with the common feal, and teftifying that the elec- tions were made by the mayor, bailiff and burgeffes, prove that, till that time, the right of election, which, by the common law, was in the inhabitants houfeholders, was, in fad:, enjoyed and exercifed by them. If it could be fhown, that, from that time to this, the .inhabitants had never ex- ercifed, or claimed the right of voting for members of Parliament ; if the uniform practice, ever fince, had been, that elec- tions were made by the mayor, bailiffs, and a certain reftricled number of inhabi- tants called burgejjes ; if bye-laws, or even royal charters, could be produced, confin- ing the right to them; no relinquifh- ment, no ufage, no bye-law, no charter, nothing but an ad of Parliament, or a clear determination of the Houfe (which, coupled with the ftatute of George the Se- cond, would have the force of an adt of Par- P O L E. Parliament) could have power to deprive them of that right. This is ( i ) fupported by the authority of Lord Goke, and fully eftabliihed by the cafe of Agmondefham, Marlow, Wendover, and Hertford, Glan- ville, p. 87. of Dover, p. 66. of Chippen- ham, p. 53, and of Winchelfea, p. 17 ; and in the Journals, by the cafes of Col- chefter (2), 28 March 1628, and Bofton, 8 May, 1628 (3) (A). But, with regard to Poole, it will ap- pear from the fubfequent view of the char- ters, the records of the borough, and the returns to Parliament, with the proceedings on contefled elections, from the loth of Queen Elizabeth downwards, that there js not, from that time to this day, any charter which has attempted to narrow the right of election, nor even any bye- jaw of the borough, no act of Parliament, no determination within the meaning of the ftatute, (for, if the Committee ha4 thought the entry of 168-- was fuch a de- (1) 4.1nft. p. 48. (2) Journ. vol. i. p. 876. col. 2. (3) Journ. fame vol. p. 893. col. 2. termination 250 CASE XVIII. termination, they would not have fuffered the evidence, which has been given, to be produced) and no relinquifhment, or contrary ufage for more than eighty years. (oS- 1 he Chairman here interrupted the counfel, to inform them that the Commit- tee did not mean that they fliould be un- derftood to have decided that the proceed- ings in 1 68, do or do not contain a de- termination of the Houfe within the mean- ing of the flatute.) EVIDENCE. ' The 1 2th charter of the borough was * granted 10 Eliz. (23 June, 1568), and is * to the following effect. * It recites the charter of 3 Hen. * VIII. and thofe therein recited, and rati- * fies and confirms the immunities granted * by them, to the mayor, bailiffs, burgeffes, ' and inhabitants, as the faid mayor, * bailiffs, burgeifes, and inhabitants^ from ' the time of making the faid charters, f were accuftomed to hold and/ enjoy 'It P O O L E. 251 ' It recites, that the mayor, bailiffs, bur- * gefles, and inhabitants, time out of mind, * had enjoyed the faid privileges, &c. and * others, as well by prefer iplion as by rea- ' fon of the aforefaid grants, but that the ' faid mayor, bailiffs, burgefles, and in- -* habitants had not e.njoyed them for many ' years pad, to the great detriment of the * faid town, by which it was threatened * with ruin, and the good government of ' the fame was alrnoft extinct. ' That thereupon the burgeffes and in- * habitants of Poole had petitioned the ' 6 Queen, thatfhe would make, reftore, and ' ' create the faid burgefles and inhabitants * into another body corporate and politic. ' That me therefore, &c. (hoping that, ? if the inhabitants of the town aforefaid, '- and their fucceffors mould enjoy, by her * grant, greater honours, liberties, and pri- ' vilegcs, they will think themfelves bound, * &c.)' grants that the faid town of Poole ' {hall be for ever after a free town of it- ^ feif, and be incorporated, toconfift of one * mayor, two bailiffs, burgefles and com* f nwnaltj'i (in the original commumtas}^ and *' that 252 CASE XVIII. * that they the faid mayor, bailiffs, bur- * geffes, and commonalty be one body po- * line, by the name of the mayor, bailiffs, * burgeffes, arid commonalty, of the town of Poole, &c. ' That the burgeffes of the town afore- ' faid may elect every year (on a day nxed * by the charter) a fit and difcreet burgefs .' to be mayor, and two other burgeffes of f the faid town to be bailiffs, &c. That the faid mayor, bailiffs, bur- ' geffes, and commonalty, and their fuccef- t fors, and the inhabitants and refidents * within the faid town, be, in no fort, li- .' able to be bound by any precepts of the * ftewards, marfhal, or clerk of the market * of thehoufhold. ' She grants a ftaple to the faid mayor, f bailiffs, burgeffes, and commonalty, and * their heirs, and fucceflbrs ; and that the f faid burgeffes may choofe, out of them- f felves, annually, a mayor and two con- ' ftables of the ftaple. * That the faid mayor, bailiffs, bur- f geffes, and commonalty, and their heirs ? and fucceffors, may annually elect and c con-? P O O L E. 253 ' conftitute, (on a day fixed), out of the ' inhabitants of the town andfuburbs there- " oft or out of others, all manner of bro- * kers, &c. < She then grants to the faid mayor, c bailiffs, burgeffes, and commonalty ', and * their fucceflbrs, that the town aforefaid* * with the fuburbs, places, and precin&s * aforefaid, be, for ever afterwards, ne * entire county, incorporated in deed and ' name, and diftincT: and altogether iepa- 4 parate from the county of Dorfet, by the ' name of the county of the town of * Poole. ' That the faid mayor, bailiffs, bur- * geffes, and commonalty mail have, in the ' faid town, one.fherifF. The burgefles of * the faid town, and their fucceflbrs, in ' every year, (on a day fixed), to elect one * difcreet perfon, out of their fellow-bur- * gefles, (comburgenfes in the original), for the merifF of the faid town. 4 She grants to the mayor, bailiffs, bur- * gefles, and commonalty a weekly court, to < be held in the Guildhall, before the * mayor and fenior bailiff. To 254 CASE XVItl. * To the mayor, bailiffs, burgefies, and ' commonalty, that the mayor, for the time" ' being, arid one fkilled in the law, and * alfo four burgefles, to be chofen, an- nually, out of the difcreet burgefles, (on * a day fixed), fhall be keepers, (i. e. juf- * tices) of the peace. ' To the mayor, bailiffs, burgefles, and * commonalty view of frankpledge, &c. * To the mayor, bailiffs, burgefles, and ' commonalty, and their fucceflbrs, that s none of them, nor any inhabitant, or re- ** fident, within the town, &c. mall be im- * panelled, againft his will, on any aflize, jury, or inquiiition, &c. without the town of Poole. ' That the inhabitants, burgeffes, and com- * monalty, of the town of Poole, may have -* their guild, and all their liberties, jurif- * diftions, &c. by land, and by fea, in the * fame manner with the mayor, bailiffs, and ' burgefles of the town of Southampton, , c and all other liberties, &c. which the ' mayor, bailiffs, burgeffes and inhabitants ' heretofore had, or ufed to have. That P O O L E. 255 * That the faid mayor, bailiffs, bur- * geffes, and commonalty, and their fuccef- e fors, and all other inhabitants and bur- ' g e ff es f Poole, fhall be free froni toll, * paffage, bridgage, chimnage, &c. ' That the faid mayor, bailiffs, burgeffes, * and commonalty fhall have the return of * all writs within the town. ' That the faid mayor, bailiffs, bur- * geffes, and commonalty mall create, out ' of themfelves, coroners,-&c. ' That none of the faid mayor, bailiffs, * burgeffes, and commonalty, inhabiting * within the faid town, fhall be impleaded ' without the faid town, except for fuch * trefpaffes as fhall be done again ft the * Queen, or her heirs.' COUNSEL for the petitioners. By this charter, the borough of Poole was erected into a county by itfelf, and its corporate name was changed ; but the old royal charters were confirmed by it. The new charter was granted at the requeft of the inhabitants to confirm and enlarge their privileges, and now they were formed 256 CASE XViri. formed into a feparate integral part, diftinct from burgefles, ty the name of the commonalty, (or, in the Latin, com- muTiitas.) What has been faid of the ancient fenfe of the word " burgenfes" or " burgejfes* is true of that of the word " commonalty" which may, by the particular conn 1 itution and corporate name of a place, fignify a reftricted number, but, in its more pro- per and common acceptation, compre- hends the whole body of the inhabi- tants. The cafe already cited from Hobart (i), to (how that inhabitants are capable of iri- corporation, mows, likewife, that they may be incorporated by the name of corrf- monalty. The charter, in that cafe, fays, " That the inhabitants fhall be a body cor- &c. witnefleth, that the faid f mayor, aldermen, burgefles, and com- c monalty did cleft, &c.^-Under the com- * mon feal of the faid town of Poole. * c3" This is the firft return in which the c word " aldermen " occurs (3.) 4. 1 8 Jac. I. (1621) between the fhe- ' riff and A, the mayor, B, C, D, &c. (no- 4 minatim) and others, aldermen, burgeffes, ' and commonalty^ &c. had elected, &c. In * witnefs whereof we the faid mayor, al- c dermen and burgefles fet our common ' feal of the faid town, &c, cc? In the laft, as in this, the mayor, aldermen, and ' burgefles, are faid to have affixed the * common feal. ' 5. i Apr. 13 Car. II. (1661). Between R. S., fherifF, and H. H., mayor, R. D., G. S., M. D., W. M., D. S., P. H., E. M., 268 CASE XVIIL E.M., H. J., J. S-, J. C, &c. and * others, aldermen and burgeffes inhabitants c witnefTeth, that the faid mayor, c aldermen, and burgefles inhabitants have * chofen John Morton, Efquire, and William * Conftantine their recorder -, to be their * burgefles, &c. In witnefs whereof the "' faid mayor, aldermen, and burgefTes * have, to this indenture, fet their common * leal. 6. (The fame date) Between R. S., flie- jriff, andH.H., mayor, W. S., R.C, * J. W., P. H., W. M., &c. and others, * aldermen and burgejfis of the faid town ' and county of Ppole witneffeth, that * we the faid mayor, aldermen, and bur- ' geffes aflembled, &c. -And we the faid * mayor, aldermen and burgeffes have no- * minated and elected, &c. In witnefs * whereof, we the faid mayor, aldermen, f and burgefles have to this indenture fet * our common feal,' &c. COUNSEL for the petitioners. The word " commonalty"** is omitted in Jioth thefe returns, and it appears, by the re- P O O L E. 269 fecords of the town, that the feleft part of the corporation began their practices, about this period, to exclude the inhabitants, or commonalty* from the exercife of their rights as corporators. t3* There are fe- veral rafures of the word " commonalty " in the corporation -books, which were pro- duced to the Committee, befides that men- tioned in the entry of 13 Oct. 1654. (i). It will appear afterwards, that the above double return was occafionexi by a conteft between the burgeffes inhabitants and the out-burgffles, in which the latter pre- vailed. EVIDENCE. 7. ii Jan. i Will, and Mar. (168*). A certificate from Shadrach Beale, (herifF, ' certifying, in anfwer to the Prince of Orange's letter, that Sir Nathaniel Nap- 4 per, knight, and Henry Trenchard, Ef- ' quire, were elecled by the mayor, bai- 4 liffs, and burgefles of the faid town and * county, according to the cuRomary ufage fj) Supra, p. 262, 263, 'for 270 CASE XVIII. ' for the election of members of Parlia- * ment. Under the hand and feal of the faid fheriff (only.}' COUNSEL for the petitioners. It is manifeft, from the account given in the Journals, of the conteft on occa- fion of the lafl mentioned return, which was flated at the opening of this caufe(i), that, at that time, both parties understood the word '* commonalty " to mean the in- habitants. EVIDENCE. <8. 21 May, 7 Will. III. (1695). ' By indentures, between George Leven, fheriff, and Th. S , mayor, W. P., fenior bailiff, M. D., M. D., Shadrach Beale, * W. S., &c. and others, aldermen, bur- 4 geffes, and commonalty^ incorporated, of * the faid town and county, it is wit- * neffed, that the faid mayor, aldermen, ' burgeffes, and commonalty have elected, ' &c. In witnefs whereof, we, the faid ' mayor, aldermen, and burgeffes, to one (i) Supra, p. 227, to 229. 'of P O O L E. 271 of thefe prefent indentures, have fet the * common feal of the faid town and county ' of Poole, &c. Thomas Smith, mayor. * Signed, fealed, and delivered, in the pre * fence of, &c. There are twenty-fix ' fubicriptions, and to four of them, after * the name, is added " a burgejs" in the ' fame hand and ink with the name. ' The counfel for the petitioners ad- ' mitted that, in all returns, fmce the year * 1 695, the word'*' commonalty" is omitted; * and that, fince that time, the inhabitant* * have never voted.' COUNSEL for the petitioners. As to the proceedings on the two con- tefted elections in 1 66 1 , and 1 68|, nothing can be fairly inferred from the firft, be- caufe the commonalty do not feem to have been parties to the tranfa&ion, nor to have taken any fhare in it (i) (C). The event of the fecond, (as it has been ftated in a former part of the argument), (i) 1 6 May, 1661. Journ. vol. viii. p. 251. col. i. cannot CASE XVIII. cannot now be confidered as a binding de^ termination. It is, at moft, the opinion of the Houfe, oppofed to that of the Com- mittee who tried the queftion, and had the evidence, and the arguments of eounfel, to form their judgment upon. It is the opinion of the Houfe in the Convention Parliament, delivered in favour of the Whig candidate (i ) . But, even if we give it the credit of being a rational and wife diffent from the refolution of the Com- mittee, it will be confidered, that that re- folution was founded on the very fcanty evidence of one return, whereas there has now been produced an irrefiftible body o proofs, which were unknown to the Committee, and the Houfe, on that oc- cafion. The return of 1695 demonftrates that the proceedings in 168-- were not confi- dered as couclufive againft the right of the commonalty ; and there is ft ill a living witnefs, who remembers the election in 1695, and who, by his teftimony, will confirm P O O L E. 273 confirm what is proved by the return/that the Inhabitants or commonalty voted at that election. EVIDENCE. * Thomas Shepheard, the witnefs pro- * pofed to be called, was objected to. * It was faid that, being an inhabitant, he * was an interefted witnefs. ' To this it was anfwered ; That, * where, from the nature of the cafe, no * other evidence could be had, fuch wit- ' nefles as alone had been in a fituatioti 4 to be acquainted with the facls, ought to c be admitted, otherwife the truth could * never, in fuch cafes, be difcovered. That ' inhabitants were the only perfons likely ' Co have paid attention to the fact which * was meant to be proved by the testimony ' of Shepheard. That, in fihiilar cafes, * courts of juftrce have admitted witnefTes * to be examined, though circumftanced ' (in point of intereft) like him. As in the * cafe of Willes and Harris, tried on the < Weftern circuit before Mr. Baron Eyre, '(1774), when certain fiihermen being VOL. II. T called 74 CASE XVHT. *' called by the defendant, (who denied a? ' right to the tithe of fifh as claimed by c the plaintiff), their evidence was, on the * part of the plaintiff, objected to, as they O O L E; 279 tants of Dungannon, was determined to v be void, by the opinion of all the other judges againft Lord Hoba-rt, ( 1 2 Co. Rep. p. 121). And they held that -inhabitants have riot capacity to take an inheritance. {Hid.) (E). The agreement for obtaining the dia-r- ter is only an ad: of the perfons there fpe- cified, as individuals^ not as corporators. The exercife of the right of common by the inhabitants of Poolehas notbeen.proved. If there could be an incorporation of inhabitants as fuch, and if the inhabitants of Poole are really entitled to -certain cor- porate rights and franchifes, under the charters which have been given in evi- dence, it does not therefore follow, that they have a right to vote for members of Parliament. That right, in this borough, does not, (as has been faid already), depend on any charters. It muft be discovered by the ufage. EVIDENCE. * Twelve returns were produced in the 1 name of the mayor, bailiffs, and burgefTes T 4 'i. 12. 2 So CASE XVIII. * i. 12 Nov. 26 Eliz. 4 2. i Car. I. < 3. 3 Car. I. ' 4. I March 1 3 Car. I. 5. 23 Feb. 25 Car. II. * 6. 3 March, in the fame year. < 7. 6 Feb. 31. Car. II. < 8. 18 Aug. 31 Car. IJ. c 9. 28 Feb. 33 Car. II. .' 10. 2 Will. &Mar. * .1 1. 4 Nov. 1 695. In the fame year with, * but pofterior to, the return laft produced 4 by the couniel for the petitioners. * 12. 10 Aug. 1698. 4 To all thofe returns, as well as to thofe 4 fmce i c Eliz. produced on the part of 'the petitioners, after the fecond, the ' common feal is affixed. ' On an examination, by the agents on 1 both fides, of the names in the body of * the return of i 8 Jac. I. (which was the * fourth produced by the counfel for the ' petitioners) it appeared, that two of the 4 perfons there named were not to be found 4 entered as burgeJJ'es, in the corporation- 4 books of that time. ' Two P O O L E. 281 * Two witnefles were called. * William Lee, aged 87, or 88, fwore, * that he had often heard Shepheard fay, that ' he was but three or four years older than ' him. But he had firft known him only ' about fifty-one years ago, long after they * were both men. He faid he had known * Poole feventy years, and that all elections ' of mayors, fheriffs, and parliament-men, 4 had been, during that time, by burgejjes. * Mrs. Greenway, aged feventy-nine, re- members the election in 1704, when ' Mr. Wefton (her uncle) was chofen. He * was chofen by the burgeffcs. She never * heard of the inhabitants voting. Her * firft hufband was a burgefs.' COUNSEL for the fitting members. The evidence of the two laft witnefTes, who never heard of the claim of the inha~ bitants, is fufficient to overturn the tefli- mony of Shepheard, if indeed any truft could be put in what he has faid, after telling the Committee that he voted in 1695, although, by his own account, he was 282 CASE XVIII. was a minor at that time, and by Lee's, not above thirteen years of age. But if inhabitants did vote in 1695, as there was no conteft, and therefore no en- quiry into their titles, this cannot prove that their voting as fuch was allowed on that occafion. There is a return of that year, fubfequent to that produced by the counfel for the petitioners, in the name of the mayor and burgeffes only, and the number of returns in the name of mayor* bailiff's, and -burgejfis, which have been read, from the reign of Queen Elizabeth downwards, through the courfe of the laft century, when they contended, that they uniformly run in the name of the mayor, bailiffs, burgefles, and commonalty, {hows, that in thofe where the word " com- monalty" is ufed, it ought to be inter- preted, to be nothing elfe but a cumula- tive name of the foregoing integral mem- bers of the corporation. All the returns are fealed with the com- feal, and there is no inftance of a com- P O O L E. 283 common feal belonging to inhabitants at large. In 1 68|- the inhabitants claimed the right to vote, and the Houfe then difal- lowed their claim. There is no appearance of their having ever attempted it before. In the cafe of 1 66 1 there is not a word faid of their pretended right. The recorder of the town, who was one of the candidates, and was fupported by the inhabitant bur- gej/es, would farely have availed himfelf of the votes of the inhabitants at large, if he had thought there was any pretext that they had a right to vote. He had then been recorder twenty years. (& This was proved from the books.) Therefore we mull fuppofe that during that time the inhabitants had never been confidered as entitled to vote, and, in fact, never had voted. This carries the ufage up to 1641, (/. e. 140 years ago ;) and this be- ing oppofed by nothing but uncertain argument and implication, muft be con- fidered as evidence of prefcriptive ufage. The 2*4 CASE XVIII. The fitting members might reft their' caufe on this ground, but they are en- titled to the benefit of the decifion in 168*, which, for the reafons given at the opening of the caufe, ought to be confidered as a determination withiri the meaning of the ftatute. In reply, the counfel for the petitioners anfwered the arguments which had been ufed on the other fide, and enlarged upon - and enforced thofe formerly employed in favour of the right of the inhabitants, at great length. It was faid, If " community" were to be tranflated " community" that word would compre- hend the inhabitants, as well as common- alty. " King Edward the Fourth, by a patent " letter, granted to the burgeffes and " inhabitants of New -Wind for, that they " mould be a body, and perpetual corpo- " rate community. Madox Firma Burgi, " p. 28, 29." This inftance, among many others, - fhows likewife that inhabitants may be a cor- P O O L E. 2^5 corporation. The Cafe of Abingdon, 23 May, 1660 (i) is a determination of the Houfe of Commons that they may. If ibj they may have a common feal, \vhkh is only a badge of incorporation, ancl it is mod evident, from the charter of Cla- rencieux, in the reign of Queen Elizabeth, that the common feal of Poole belongs to the inhabitants. If the common feal be- longs to them, the returns produced on the part of the fitting members are, in law> to be confide red as a&s in which the inhabitants concurred, as much as if the words "inhabitants'' or " commonalty '* had been ufed in thofe returns. The right of common, herbage, and turbary, as enjoyed by the inhabitants of Poole, under grants to burgejes, has been proved in a manner fufficient to fatisfy any one who will not fhut his eyes to the truth. " Commonalty" therefore, in the " latter, and " burgenfes" in the more early charters and returns of this borough, are proved to mean " inh ( j) Vide Supra, Cafe of Pontefrad, vol. i. p. 405, 5. The 286 CASE XVIir. The argument built on the fuppofed id- accuracy of old charters would, if taken in its full extent, invalidate thofe charters entirely. It is only from the fair con- ftruction of the terms and defcriptions in fuch charters that we can difcover the per- fons to whom the grants, contained in them, are made ; and although a vice- admiral, or a king at arms, cannot, ei- ther in the days of Henry the Eighth, or Elizabeth, be fuppofed to have been able to pen a legal inftrument with precifion, no more than they probably can in 0111* own, yet we muft fuppofe that, where very important privileges and immunities were in queftion, (as in the charter of Arthur Plantagenet) they then had, as they certainly could have, the affiftance of very able lawyers, in drawing the inftru- ments which were to convey or confirm thofe privileges. The counfel on the other fide have faid that, in fome of the charters, thei words " commonalty* and " inhabitants 9 are both ufed and diftinguifhed from each other j but, if there are a few paflages in fome P O O L E. 257 fome of them which feem to favour that affertion, they muft be afcribed to an over anxiety to ufe as general and comprehen- five terms as pofiible. In the charter of the i oth of Queen Elizabeth the mayor, bailiff's ^ burgeffes and commonalty and their fucceffors, and all other inhabitants and burgeffes of Pool e are exempted from toll, paffage, bridgage (i), &c. It may as well be contended that " other burgeffef* implies a different ciafs of men from " burge/fis" in the firft part of that fen- tence, as that " inhabitants" was intended to mean fomething different from " cam- " monalty" The petition of 175?, in the name of the mayor, bailiffs, burgeffes, and com- monalty^ and figned by feveral inhabit- ants, (not burgeffes), and the mortgage of the market, in the name' alfo of mayor, bailiffs, burgeffes and commonalty* and in which the inhabitants muft have concurred, afford arguments, which have not been attempted to be anfwered, that (i) Supra, p. 255. in 2 88 CASE XVIIL in the corporate name of this borough^ the word JLord Guernfey. Of the Sitting Member, George Clive, Efq. PETITIONER. Hans Wintrop Mortimer, Efq. Sitting Members. Francis Sykes, Efq. Thomas Rumbold, Efq. COUNSEL For the Petitioner. Mr. Hardinge, Mr. Macdonald. For the Sitting Members. Mr. Wilfon, Mr. Arden ; and Mr. Potter (in Mr., Wiifon's abfence.) \Reading 'Glamorganfh. Clitheroe Suffolk Newport,Hants Maidftone /Bifhop'scaftl [ 33 3 jjj THE C A S E Of the BOROUGH of SHAFTON, otherwife SHAFTESBURY. ON Wednefday, the 29th of March, the Committee being met, the pe- tition was read, fetting forth ; That the two fitting members by themfelves, and their agents, had been guilty of many grofs and notorious acts of bribery, and corruption, whereby many of the voters were influenced to give their votes for them ; and that the returning officer had admitted .perfons not duly qualified to vote for the fitting members, and had re- jected the legal votes of others, who had tendered them for the petitioner (i). The laft determination of the Houfe was read, and is as follows : (l) Votes, 6 Dec. 1774, p. 34, 35. 304 CASE 29 February, 169!, Refolved, * Thai " the right of election of burgefles to " ferve in Parliament for the borough ' of Shaftfbury, in the county c?f Dor- " fet, is only in the inhabitants of the N O T E S * On the CASE of SHAFTESBURY. pAGE 309, (A). There is a determination of the Houfe pofterior in time, on this very point of evidence, in the cafe of the county of Bedford, di- rectly contrary to the refolution 'in the cafes of Hertford and Surrey. (< 28 June, 1715. A motion being made, and the * queftion being put, that the counfel for the pe- ' titioners be admitted to give parole evidence as "to a perfon's being no freeholder, who fwore " himfelf to be a freeholder at the time of the << eleftion ;" c * It pafled in the affirmative, on a divifion, 98 " to 66." Journ. vol. xviii. p. 190. col. I. The {landing order of the Houfe, of 22 Nov. 1717 (i). by which it is declared that a man's qua- lification to be a member of Parliament, may be difputed, although he (hall have previously fworn to it, is alfo in direct contradiction to the princi- (i) Vide infra. Cafe of Clackmannan. 3 i6 NOTES. pie of the two cafes of Hertford and Surrey ; fo that tfcofe cafes cannot have any weight, although the Sollicitor jGeneral was chairman, and made trje report, in the cafe of Hertford. Journ. vol. xi. p. 393- co1 - * , P. 314, (B) A Claufe of this fort was not neceflary with regard to Hindon, becaufe the ele&ion for both feats having been declared void, no vacancy could happen during the recefs. XX. XX. THE E Of the BOROUGH of HASLEMERE, In the County of SURREY. The Committee was chofen on Friday, the 31$ of March, and.confifted of the following Gentlemen. Paule Fielde, Efq. Chairman, John Elwes, Efq. Chriftopher Griffith, Efq. John Morgan, Efq. William Nedham, Efq. Hon. James Stuart. William Philips* Efq. Vifcount Bulkeley, Sir Adam Fergufon, Bart. Sir George Macartney, 1C. B. Filmer Hony\vood v Efq. Sir Henry Hoghton, Bart. Edward Phelips, Efq. NOMINEES, Of the Petitioners, Right Hon Thomas Townfhend. Of the Sitting Members, Robert Henley Ongley, Efq. Hertford. Berkfhire, Berkfhire. Monmouthfh. Winchelfea. Bute andCaith. Boroughbridge. Anglefea, Ayrfhire. Ayr, &c. Steyning. Prefton. Somerfetfhire. Whitchurch. Bedford/hire. PETITIONERS. William Burke, Efq. and Henry Kelly, Efq. Certain Inhabitants Freeholders, and legal Voters of the Borough of Haflemere, Sitting Members. Thomas More Molyneux, Efq. Sir Merrick Burrell, Bart. COUNSEL For the Petitioners. Mr. Cox, Mr. Alleyne, and (on his return from the circuit), Mr. Bearcroft. For the Sitting Members. Mr. Wilfon, Mr. Arden. 3'9 THE CASE Of the BOROUGH of HASLEM ERE. ON Saturday, the ift of April, the Committee being met, the two peti- tions were read. That of Mr. Burke and Mr. Kelly al- ledged in general terms ; That the two fit- ting members had been guilty of undue and illegal practices ; That votes had been admitted, though not legal, for the fit- ting members, and that the majority of legal votes were in favour of the pe- titioners (i). The other petition ftated fpecially the right of eledion in Haflemere as deter- mined by the Houfe, and that it is a bo- rough by prefcription, and alledged ; That of late years the pradtice of fplitting and (i) Votes, Dec. 6. p. 35. divkl- 320 CAS E XX. dividing freeholds, within the faid borough, for election purpofes,' hath prevailed to fo great a degree, that, if the fame is not re- medied, and effectually prevented fc'r die future, the privileges and franchifes of the petitioners will be deftroyed* and the an- cient and true conftitution of the faid bo- rough totally fubverted ; arid that at thd laft eledion, when Mr. Burke, Mr. Kelly, and the fitting members, were candidates, great innovations were made on the an-^ cient and true right of election of the faid borough ; and a great number of perfons admitted to vote for the fitting members, in refped of freeholds illegally fplit and divided ; and feveral perfons who were not inhabitants of the borough, others not freeholders, others whofe pretended free- holds were parcel of the wafte ground of the faid borough and manor, others whofe freeholds do not lie within the faid bo- rough and manor, and feveral perfons re- ceiving alms, were admitted to vote for the fitting members, contrary to the right of eledion ; and that Mr. Burke and Mr. Kelly H A S L E M E R E. 321 Kelly had the majority of legal votes, and ought to have been returned ( i ). The laft determination of the right of election, in Haflemere, is as follows : May 20, 1661. Refolved, " That the 14 inhabitant freeholders there (/'. e. in " Haflemere) have only voice in elec- " tions (2) " This was explained by a refolution of the Houfe in 1755. 24 April, 1755. Refolved, (< That, in " the laft determination of the Houfe, of " the right of election of burgefles to ferve '* in Parliament for the faid borough of " Haflemere, in the county of Surrey, " made the zothday of May, in the year " 1 65 1, which is as followeth, viz. That l< the inhabitant freeholders there have only tc voice in eleftion ; by the word " free- " holders" is meant only freeholders of " mefiuages, lands, or tenements, lying ft within the borough and manor of Ha- " flemere, whether the fame pay rent to " the lord of the faid borough and manor, (1) Votes, 6 Dec. 1774. p. 35, 36. (2) Journ. vol. viii. p. 255. col. i. VOL. II. Y " or 3 22 CASE XX. " or not, exclufive of any lands or tenc*- c mcnts which are or have been parcel o " the wafte ground of the faid borough " and manor, or any meffuages or build- " ings which are or fhall be, Handing or " being thereon (i). 5 ' (r It is underilood not to be neceflary that the voters fliould occupy the freeholds for which they vote. It is enough that they live in Haflemere, and have freeholds- there.) At the beginning of this very tedious caufe, the counfel for the petitioners were going into evidence, tending to mew that only perions paying, or who, from their tenure, were liable to pay, a rent to the lord, have a right to vote. It is eflential to burgage tenements that they pay a rent to the lord, fo that this would have made Haikmere a burgage-tenure borough. The counfel for the fitting members objected to the evidence, as contradicting the expla- natory refolution of 1755* (i) Tourn.vol. xxvii. p. 293, col. 2. The H A S L E M E R E. 323 The counfel for the petitioners con- tended, That by the words " whether the fame *' pay rent to the lord of the faid borough "and manor or not," was only meant " whether they def aft o pay or not," but that it was ftill competent to them to mew, by evidence, that none can vote, but thofe who ought by the nature of their tenure to pay to the lord. On the other fide it was faid, That the words of the refolution mean " perfons bound by law to pay," for that the Houfe muft be fuppofed to have pre- fumcd that perfons who were bound to pay, did pay, and therefore that to iay,v " Whether the fame pay, or ?iot" was the fame thing as to fay, " Whether the Jams " are holden by paying, or not" or " Whether " the freeholders are bound to pay ', or nof." The Committee, having directed the court to be cleared, after deliberation a- mong themfelves, Refolvcd, That the counfel for the pe- titioners mould not be admitted to produce evidence, tending to mow that only per- Y 2 fons 3 24 CASE XX. fons paying, or liable to pay, a rent to the lord, have a right to vote. The numbers, on the returning officer's poll, ftood as follows : For the fitting members 6 1 For the petitioners 40 Majority 2 r The coimfel for the petitioners objected to 47 of the voters for the fitting mem- bers, on feveral different grounds. I. To 35, as voting for tenements fplit within the meaning of the ftatute of King William (i). II. 6 As claiming their right from free- holds without the manor. III. i. His property being feafehold > and part of the wafte. IV. 2. As having no intereft but a rent referved on a term. V. 3. As not having freeholds. VI. To 6 of the above they likewife ob- jected the receipt of a charity called Smith's charity. (i) 7&8 Will, III. cap. 25. 7 . VII. HASLEMERE. 325 VII. And to fome, in opening their cafe, bribery; but thislaft objection they thought proper afterwards to wave. From this ftate of their objections, and from thofe of the counfel on the other fide to the votes of the petitioners, which will be mentioned afterwards, it will ap- pear, that the caufe divided itfelf into a great variety of feparate queftions, which, however, were not feparately argued and decided, as had been practifed in fome of the foregoing cafes. Each queftion was accompanied with a great deal of compli- cated evidence, both parol and written, which would have required a very clofe attendance in order to collect and digeft it ; and> after all, the labour would have been as fruitlefs, as difficult and irkfome, fmce the nature of the caufe was fuch as rendered it impoilible to deduce from the general determination of the Committee, their opinion on the particular points. I confefs, therefore, that I was neither able nor very defirous to obtain a complete hif- tory of the whole. It may have its ufe, particularly to perfons connected with Y 3 this CASE XX. this borough, to ftale the general points both of evidence and argument, as I was able to gather them, from the opening of the counfel on each fide, and from the in- formation with which they have fmce fa- voured me. On the firfthead of objection, the coun-r fel for the petitioners contended, 1. That all freeholds of which an unity of tenement can be proved till 1696, when the flatute of King William pafled ( i ), but which have fmce been divided, are to be considered as fpHt within the meaning of that flatute, and are therefore incapable of carrying legal votes. 2. Or, that they are, at leaft, prlma facie, to be prefumed to have been divi- ded for election pqrpofes, and the votes to be holden to be void, the onus of prov- ing the contrary falling upon the voter. 3. Or, that, iron} the time that thofedi- vifions pf freeholds can be proved to have Become very general in any place, they (i) For the words of the flatute, vide fifta, vol. i. p. 217. Cafe of Downton. are HASLEMERE. 327 arc to be confidered as within the opera- tion of the ftatute. Or, prima facie, to be prefumed to be fo. S. Or, laftly, (if even that were thought too broad a proportion) that all votes for freeholds divided about the time of an elec- tion are, prima facie, to be taken to be within the meaning of the ftatute, and that the voter muft prove the divilion to have been made bond fide^ . and not to ferve the purpofe of the election. They cited the cafes of Whitchurch, and of Weymouth and Melcombc Regis. In the former, the Houfe came to the following refolutiori, which is the laft de- termination with regard to the right of election in that place. 21 December, 170'$. Refolved, "That " the right of electing burgeiles to ferve in " Parliament for the borough of Whit- l '- church, in the county of Southampton, Thefe two objections went to about 24 votes. 3. To i. as having received parifh relief, (if the Committe fhould think that a difqualification.) 4. Their laft objection went to all the other votes for the petitioners, and to fome of thofe objected to under the firft head. The facts on which it was founded were thefe : The late Mr. Webb, Sollicitor to the Treafury, by his laft will, bearing date the 6th of February, 1770, devifed his eftates, real and perfonal, to his wife, and her heirs, executors, and afligns, but fubject to the payment of his debts ; which were con- H A S L E M E R E. 339 confiderable, particularly to the Crown. He died foon after. On the 6th and ^th of Auguft, J 77N by indentures of leafe and releafe, be- tween Mr. Webb's widow of the one part, Edward Beaver of the other, and Dr. Halifax and Richard Blyke of the third part, after reciting that a marriage was intended between Mrs. Webb and Mr. Beaver, Mrs. Webb conveyed part of the real and perfonal eftates, to which me was entitled under the will of her late hufband, to Halifax and Blyke, and their heirs, and affigns, in truft, to pay out of the rents and produce of the real, and the produce of the perfonal eftate, all the debts of the teftator, and al fo fix thoufand pounds to her intended huf- band, and, from and after the payment of the debts and the fix thoufand pounds, upon truft to convey to fuch ufes, as me ( notwithftanding her coverture ) fhould appoint, by a deed -or will, and, if fhe mould die without making fuch ap- pointment, to the ufe of her heirs, executors, and affigns. The marriage took place. 2 On 340 CASE XX. On the 5th and 6th of May, 1774, Halifax and Blyke, in confideration of ten Shillings, bargained and fold, to Bea- ver and his affigns, all the meffuages, lands, and tenements, lying within the borough and manor of Haflemere, for life. Mr. Beaver, by fubfequent deeds, but previous to the election, conveyed to the different voters objeded to, freehold te- nements, for which a nominal confider- ation in money (fpecified in the convey- ances) was paid. From the whole of the circumftances juft ftated, the counfel for the fitting mem- bers argued, That the conveyances by Beaver mud be confidered as colourable and fraudu- lent, and that the Committee muft fet afide the votes given in confequence of them. That the conveyance, by Halifax and Blyke to Beaver, was contrary to, and a breach of, the truft to them. That if the eftate which they had granted was good, in law, yet, certainly, Beaver only took the bare legal eftate, fubjed to the trufts H A S L E M E R E. 341 trufls, of which he had notice by being a party to the firft deed, and that he could not, therefore, convey any beneficial inte- rcfl to the voters. The counfel on the other fide, in their reply,- faid, on this head, That, by the conveyance of May, 1 774, Beaver clearly took a legal eftate of free- hold, and that the voters, in like manner, by his conveyances to them, took legal eftates, and acquired bonaf.de freeholds in their tenements ; and, therefore, that the right of voting, annexed to thofe freehold tenements, vefted in them. That trie Committee had no jurifdiclion fimilar to that of a court of equity, to inveftigate the trufts to which the eftates of the free- holders might be fubjecl:. On Wednefday, the I2th of April, the Chairman of the Committee acquainted the Houfe, that the Committee had re- ceived an application from the petitioners, and fitting members, to defire that the Committee would move the Houfe, for leave to adjourn during the recefs at Eafter, as, fuqh an adjournment would be of great Z 3 342 CASE XX. convenience to the parties, in the further hearing of the merits of the caufe, and that the Committee were defirous of ad- journing for fome days during the recefs, and had, therefore, directed him to move the Houfe, that the faid Committee might have leave to adjourn till Friday, the 28th of April. -On this, the Houfe was moved that the aft of the loth of George the Third, cap. 16, {hould be read, which being ac- cordingly done, it was ordered ( after a man has once been admitted on the roll, and has ftood there for the neceffary time not objected to, or ob- jected to, without fuccefs), upon an objection taken on account of a fubfequent change of circumftances. The meaning of the legiflature certainly was, that fuch complaint fhould, in that cafe, be competent ; and that it fhould only be fo within four months after the firft Michaelmas or election-meeting fub- fequent to the alteration of circumftances j and fo it feems to have been underftood by the court of feffion. Vide Wight, p. 268. XXI. XXII. THE CASE Of the COUNTY of LAN E R K, In SCOTLAND. The Committee was cnoferi on Friday, the ych' of April, and confifted of the following Gentlemen, Lord John Cavendifh, Chairman. Thomas Frankland Efq. Sir Roger Moftyn, Bart. Charles Penruddocke, Efq. Edward Southwell, Efq. Sir Thomas Claveringi Barfe. Marquis of Granby, John Orde, Efq. Lord Mountftuartj John Scudamore, Efq. John Mayor, Efq. Sir Simeon Stuart, Bart. Vifcount Lifburne, NOMINEES; Of the Petitioner, Lord Advocate of Scotland, Of the Sitting Member, Sollicitor General of Scotland. York. Thirfk. Flintfhire. Wiltshire. Gloucefterfh; Durham county Cambridge Uri; Midhurft. iBoffiney. Hereford. Abingdon. Hampfhire. Cardiganshire, Peeblesfhire. 'Edinburghfh; PETITIONER. Daniel Campbell, Efq. Sitting Member* Andrew Stuart, Efq. COUNSEL For the Petitioner. Mr. Macdonald, Mr. For the Sitting Member. Mr. Maddox, Mr. Hardinge. ( 367 ) THE A S E Of the COUNTY of L A N E R K. ON Saturday, the 8th of April, the Committee being met, the petition was read, the allegations of which were ; That Mr. Stuart, at the time of the election was ineligible; and That the petitioner had the majority of legal votes, and was duly elected (i). The counfel for the petitioner opened the caufe by dating that Mr. Stuart, at the time of the election, held the office of joint King's remembrancer in the court of Exchequer in Scotland, which they faid was an office of profit under the Crown, created or erected fince the 25th of October, 1705, and, therefore, difqualified the holder of (i) Votes, 7 Dec. 1774, p. 42. it 368 CASE XXII. it from being elected a member of the Houfe of Commons, in confequence of the provifions of the ftatute of the 6th of Queen Anne, cap. 7. fed. 25 (i). The counfel for Mr. Stuart denied that the office of King's remembrancer was within the meaning of that ftatute, but, at the fame time, alledged, that Mr. Stu- art did not hold the office at the time of his election. Upon this, on the part of the petitioner, a copy (which was admitted to be authen- tic) of the King's commiffion, under the union feal, bearing date the 25th of Janu- ary, 177 1 , and granting to Mr. Stuart, and Patrick Warrender, Efq. and to the fur- vivor, the joint office of King's Remem- brancer, for life, was produced ; and this being prima facie evidence that Mr. Stuart was poflefled of the office, his counfel were put upon proving, that, fince the date of the commiffion, and before the election, he had diverted himfelf of it. (i) See the Cafe of North Berwick, &c. infra, for the words of the ftatute. To L A N E R K. 369 To {how this ( i ), they called Mr. Cooper, fecretary to the treafury, Mr. Sollicitor General, and Mr. Henry Drummond, banker. Mr. Cooper faid, That, on the 25th of Odlober, 1774, or the day before, the Sol- licitor General told him, he had received from Mr. Stuart, a paper, importing, to be a refignation of his office, and that he had defired him to deliver it to him (Mr. Cooper), to Mr. Robinfon the other fecre- tary, or to the firft Lord of the treafury. That he received this paper on the afth of October, either inclofed in a blank co- ver, or with a mere letter of tranfmiflion, lie, did not recollect which. That, when he received it, he endorfed it thus. " Re- " ceived Odober 25th, G. C." That, on the fame day, or the day following, he informed Lord North of it, who deli red him to keep it ; and that it had been in (i) It was agreed by the connfel and the Com- mittee, that the queftion whether Mr. Stuart was, or was not poflefled of the office at the time of the elec- tion, fliould be enquired into, and determined, ftrpa- rately. yule vol. i. p. 63. VOL. II. Bb his 370 CASE XXII. hisscuftody ever fmce. That it had never been laid before the board ; and that he did not know that the King had ever been informed of it. That it came direded to him at the Treafury- chambers. That in January, or February, applica- tion was made, on the part of Mr. Stuart, for a new commiffion to be made out to fomebody elfe ; that he, at that time, had received orders to hare fuch a commif- iion made out, and that the only reaibn for its not being done was, that nobody could be found to accept of it (cd" a great part of the profits being paid to the gen- tleman who formerly held the office) ; and becaufe the other joint-remembrancer's eonfent had not been obtained. That he (Mr. Cooper) has been ten years in his prefent employment. That the official courfe is to prefent refignations to the rlrft Lord, and receive his commands concerning them. That in his time, how- ever, he did not recoiled: any refignation of this fort, but one of Mr. Owen, which was kept in the fame manner this had been. That he did not remember any refig- L A N E R K. 371 refignations, which, after they had been delivered to him, had failed of taking effect. The deed of refignation being produced, and read, it appeared to be an inftrument, importing Mr. Stuart's defire to refign the office, or all his fhare and intereft in it, and that he acc6rdingly thereby refigned it^ into the hands of the King, or of the officers, or commiffioners, empowered to receive the fame. It was figned and fealed by Mr. Stuart, in the prefence of two fub- fcribing witnefles ; and bears date at Edin- burgh, the 1 8th of October. The election was holden on the 28th of Oaober. Mr. Sollicitor General faid, That he had received the inftrument of refignation from Mr. Drummond, by a fervant, on the 22d of October, with a letter from Mr. Stuart, defiring him to deliver it to Mr. Cooper, Mr. Robinfon, or Lord North. That it went from him to Mr. Cooper, on the Tuefday following, but he did not recollect whether he delivered it to him, himfelf, or fent it. Being afked B b 2 if 372 CASE XXII. if Mr. Stuart's letter contained any farther directions than what he had juft men- tioned, he faid, That he underftood it to be Mr. Stuart's defire that he fhould deli- ver the refignation, in order to put an end to the objection to his eligibility. That, however, in the opinion he had of the ob- jection, he fhould have ctcercifed his dif- cretion on the fubject of Mr. Stuart's di- rections \ but that, knowing it to be a lofing oiEce in the hands of Mr. Stuart, he had advifed him to get rid of it, three- months before ; and that he had deli- vered it to Mr. Cooper as a bonajide re- fjgnation. Mr. Drummond produced the letters, which paffed between him and the Solici- tor General, relating to the deed of refig- , nation. They contained nothing more than what had already appeared. He faid, That, by Mr. Stuart's letter to him, he was defired,if the Solicitor General fhould happen not to be in, or near, London, to deliver the refignation himfelf to Lord North, or to one of the fecretaries of the treafury. That he had deftroyed JV?r. Stuart's L A N E R K. 373 Stuart's letter which accompanied the re- fignation, and that he did not recollect whether he was directed by it to defire Mr. Cooper, Mr. Robinfon, or Lord North, to prefent the refignation to the board. The counfel for the fitting member then called Mr. Davidfon and Mr. Dagge, follicitors, to give an account of what pafled in the Houfe, in the cafe of Mr. Maitland, 6 Feb. 174*. The following is what appears in the Journals relating to that cafe. 6 December, 1748. " A petition of *' David Scot, Efquire, was prcfented to *' the Houfe, and read ; fctting forth ; " That at the election of a burgefs to ferve 4C in Parliament for the burghs of Aber- <( brothock, Aberdeen, Inverbervie, Mon- " trofe, and Brichen, upon the I3th day . 355. Br. Abr. fol. 205. Jenkins 123. Placit. 50. Plowden 105. Bacon's Abr. Title Office and Officers, p. 743. Thofe, indeed, are cafes which happen- ed in England ; but they will be found to apply to the prefent cafe, when it is con- fidered that Mr. Stuart's office belongs to a court, conftituted according to the model of the court of Exchequer in this coun- try, and governed, in its proceedings, by the law of England. But, independent of thofe authorities, the tenor of Mr. Stuart's own commiffion, and of all the previous commiffions to this office (cd/" fome of which were given in evidence), (hews, that the office is not di- vefted out of the former holder, upon a refjg- LANE R K. 385 refignation, until the new ccmmiffion is granted. If the commifiion to Mr. Stuart is attended to( i ),it will appear that itconfifts of two parts ; thefirft, a formal acceptance, by the King, of the refignation of the fole office which he formerly held, and a con- lequent revocation of the letters patent; and the other, the new grant of the office. On the prefent occafion, no fuch accept- ance or revocation can be fhown. If, indeed, it Ihould appear, in any cafe, that the officer wifliing to refign an inca- pacitating office, had done all in his power for that purpofe, and that the Crown had, in order to continue his incapacity, refufed to complete his act, the Houfe of Com- mons n.ight, perhaps, on general prin- ciples, think themfelves entitled to fruf- trate an abufe of the power of the Crown exercifed in one way, and fheltered under an ad of Parliament, whofe object was to retrain its influence exercifed in another way. Even this would be going a great way, for it is a voluntary a& where a per- fon difqualifies himfelf by accepting of an incapacitating office, and, as he accepts (i) Supra, p. 380. VOL. II. C c of 386 CASE XXII. of it with his eyes open as to the confe- quences, he confents to the difability, un- til he can, in the regular way, diveft him- felf again of the office. The words of the ftatute of Queen Anne are pofitive. " No perfon who fhall have any new of- " fice, &c. fhall be capable of being e!ec~t- " ed (i) ;" and, till a man has* in a legal manner, got rid of an office, to which a truft and duties are annexed, he certainly is anfwerable for the performance of the truft and duties, and, in every legal fenfe, has the office. But in the prefent cafe, there is no pre- tence of any injurious refufal by the Crown. It appears that Mr. Stuart gave no direc- tions for prefenting his refignation to the perfons who by law were to receive it. A Secretary of the treafury, or the Firft Lord, in his private capacity, although they might be the proper channels for conveying it to the board, were, neither of them, the proper officers to receive it. While it continued in their hands, unac- (i) 6 Ann. cap. 7. 25; cepted, L A N E R K. 387 cepted, it was the fame thing as if it had frill remained with Mr. Stuart himfelf ; and he does not appear to have fliown the fmalleft impatience, or defire, to haften the acceptance, or the revocation of his commifiion. If the cafe of Scot and Maitland were exactly parallel to the prefent, the fitting member could derive no advantage from it, becaufe there was no determination. The counfel on the other fide do not pretend to fay that the Committee ought to pay attention to the recoHetfion of an agent, at the diftance of twenty years, of what peo- ple out of doors imagined the Houfe thought in confequence of a fpeech from a gentleman at the bar; and no gentle- man on the Committee, who may have been a member of the Houfe at that time, will take upon him to fay, what were the fentiments of the majority of the Houfe, on a queftion which never came to a decifion. The Committee, after having with- drawn ( i), and deliberated about two (i) They fat in the Court of Chancery. C c 2 hours, 388 CASE XXII. hours, directed their Chairman to inform the Counfel, that they had come to the following refolution : Refolved, " That it is the opinion of the Committee, that Andrew Stuart, Efq. by the inftrument of refignation executed at Edinburgh, on the 1 8th of October, 1774, and delivered to Mr. Cooper on the 25th of the fame month, was, at the time of his election, diverted of the office of King's remembrancer in the court of Ex- chequer in Scotland. " This refolution, of courfe, put an end to the caufe. On Monday, the icth of April, the Committee, by their Chairman, informed the Houfe, that they had determined, That the fitting member was duly eleded ( i ). (i) Votes, p. 516. XXIII, XXIII. THE CASE Of the BOROUGH of St. I V E S, la the County of CORNWALL. Cc 3 The *N The Committee was chofen on Friday, the 28th of April, and confifled of the following Gentlemen. ,,' ' Henry Herbert, Efq. Sir William Guife, Bart. Philip Yorke, Efq. George Finch Hatton, Efq. Hon. Nathaniel Curzon, Staats Long Morris, Efq. John Adams, Efq. Sir Henry Gough, Bart. Sir William Wake, Bart. Jofeph Martin, Efq. Marquis of Granby, Jofhua Mauger, Efq. Sir Philip Jennings Clerke, Bart. 2 \ o ) Wilton. Gloucefterfhire Hellefton Rocheftcr Derbyfhire Banff, &c. Carmarthen Bramber Bedford Tewlkbury Cambr. Univer^ Poole Totnefs NOMINEES, Lord John Cavendilh, Abel Mpyfey, Efq. York Bath PETITIONERS. Samuel Stephens, Efquire. Several Inhabitants, Electors of the Borough of Sfc. Ives. Sitting Members. William Praed, Efq. , Adam Drummond, Efq, COUNSEL For the Petitioners. Mr. Mansfield, Mr. Buller. For Mr. Praed, Mr. Lee, Mr. Elliot. For Mr. Drummond, Mr. Macdonald. THE CASE Of the BOROUGH of St. I V E S. ON Saturday, the 29th of April, the Committed being met, the two pe- titions were rdad, fetting forth ; That at the laft election, when the two fitting members, and Arthur Holdfworth, Efq. and Mr. Stephens, the petitioner, were can- didates, the two fitting members, and Mr. Praed's father, by themfelves and their a- gents, previous to, and during, the elec- tion, did give and lend fevera large fums of money to feveral of the electors, in or- der to corrupt aad to procure them to vote for them (the two fitting members) ; That they by other ways and means were guilty of bribery - t That the returning officer had adted partially, by admitting perfons to vote C c 4 who 392 CASE XXIII. who had no right, and rejecting others who had a right ; and that, by thefe, and other undue means, the fitting members had obtained a majority on the poll, and were returned (i). The laft determination of the right of election' in this borough was then read, and is as follows : 8 December, 1702. Refolved, " That NOTES On the C A S of SAINT I V E S. pAGE 396, (AJ. The following cafe is in point on this fubject. The KING v. the CHURCH-WARDENS of WEOELY. " The court refufed to grant a mandamus* direting to infert particular perfons in the poor's rate, upon affidavits of their fufficiency, and being left out to prevent their having votes for parliament men ; for that the remedy was by appeal, and this court ne- ver went farther than to oblige the making the rate, without meddling with the queftion who is to be put in, or left out, of which the parifh officers are the proper judges, fubjeul to an appeal." Strange, 1259. Ibid. (B). OF BRIBERY. Bribery is one of the moft important 'Titles in the law of elections. It is to be regretted, therefore, that the nature of the caufes where quefiions of bribery arife, and are litigated by counfel, is fuch, .that it is, for the moft part, impofiible to deduce from 400 NOTES, from the determination of the Committee, what their opinion was upon thofe particular questions. It may be ufeful in this place to bring before the reader a fort of general view of the fubje. Norton. 3 Burr. p. 1135. tor O F B R I B E R Y. 4 iy tor fhall fwear that he had not received any money* &c. in order to vote for the perfon for whom he did vote. That at any rate, till the oath is tendered and refufed, it CJKI have no effect, and that the va- lidity of the vote, till then, muft depend on the ge- neral principle of the freedom of choice. That the choice made by the ele&or in the cafe put, is free, and unbiafled. That it is unqueftionable that, if fuch elector had a vote at any other place,"he might there, after receiving the bribe, vote for a perfon who had not bribed him, (unlefs he had been pre- vioufly convicted according to Sect. 7. of the fta- tute of George the Second.) That he might vote at the election of any other officer ; as a mayor, a fheriff, &c. and his vote in thofe cafes would be good ; and that the election of one member for a place is as diftindt a thing from the election of the other, as the election of a member for one place is from that of a member for another ; or aS that of a member of Parliament is from that of a fheriff or other officer. This idea is elucidated, if not cor- roborated, by what has been faid in the cafe of Brif- tol, note (B;, to (how that formerly the two mem- bers for a place were not chofenjimul & femel, and that there is no law which makes it neceflary that they fhould be fo chofen, at this day. 6. If an elector is proved to have acted as an agent in bribing other elelors, but there is no proof tf t he himfelf was bribed, is his vote a good vott, or void ? VOL. II. E e Thofe 4 i8 NOTES. Thofe who argue that it is void, fay that the acting as an agent in bribing others is fuch an in- fringement of the freedom of ele&ion, that the law will prefume that fuch agent was as little fcrupulous with regard to himfelf, as he had been with regard to others. 7. If an ele&or receive a bribe in order both to vote himfelf, and to procure the votes of others, and he from that corrupt motive do procure the votes of others, but without corrupting them, and merely by perfuafion, or a juftifiable influence which he may have over them, (hall the votes fo procured be confidered as good, or as being void ? I am not aware that this queftion has ever been agitated before a Committee of elections j but it was the chief point in the cafe of the annual election of the magiftrates of the borough of Stir- ling in Scotland, for Michaelmas 1773, and the court of feffion, i March 1775, avoided the election on the ground that fuch votes were bad (i). As they muft have determined this upon general prin- diples, thofe principles would be equally applica- ble to votes at an election of a member of Par- liament. But the decifion was carried by a very fmall majority ; I believe only of one voice ; and an appeal was brought in the Houfe of Lords> (i) Jphn Paterfon and others againft James Alexander, Efq. and" others. See the Interlocutor in the cafe of the Refpondents, p. 13. and in the cafe of the Appellants, P a g- J- which O F B R I B E R Y. 419 which ftands firft to be heard. when the Parlia- ment meets. G^" The refolution of the Houfe concerning bri- bery, which is cited in the cafe of Hindon (i), has been renewed at the beginning of every feffion, ever fince 13 Feb. 170^(2). (i) Supra, vol.1, p. 198. (a) Journ. vol. xiii. p. 316, 317. E e 2 XXIV. XXIV. THE C A S E Of the DISTRICT,of NORTH BERWICK, HADDINGTON, LAUDER, JEDBURGH, and DUNB AR, In SCOTLAND. Ee 3 Milborne Port. Oxfordfhire. Malmefbury. Midhurft. Downton. Boroughbridge, Hereford. \Taunton. Peterborough. Breconfhire. Briftol. Dumfriesniire. The Committee was chofen, on Tuefday, the 2d of May, and confifted of the following Gentlemen. Lord George Germaine,Chairman, \ Eaft Grinftead. Charles Wolfeley, Efq. Lord Charles Spencer, William Strahan, Efq. John Orde, Efq. Sir Philip Hales, Bart. Anthony Eyre, Efq. John Scudamore, Efq. Alexander Pophatn, Efq, Richard Benyon, Efq. Charles Morgan, Efq. Edmund Burke, Efq. Robert Laurie, Efq. N OMINEES. Of the Petitioner, Fletcher Norton, Efq. Of the Sitting Member ', Sir Cecil Wray, Bart. P E T i T'I o N E R s. Sir Alexander Gilmour, Bart. Andrew Dickfon, Efq. &c. Conftituent Members . of the Town Council of the borough of Hadding- ton, at Michaelmas, 1774. The Magiftrates and Town Council of North Berwick. The Provoft, Magiflrates, and Town Council of the borough of Dunbar. Sitting Member, The Honourable John Maitland. COUNSEL. For the Petitioners. Mr. Cro%, Mr. Lee. For the Sitting Member. Mr. Rae, Mr. Hardinge. J Carlifle. Eaft Retford. [ 4*3 1 THE CASE Of the DISTRICT of NORTH BERWICK, &c. - ON Wednefday, the 3d of* May, the' Committee being met, and the pe- tions read, they all appeared to contain the fame allegations, viz. That, at the election of a member to reprefent the boroughs of North Berwick, Haddington, Lauder, Jedburgh, and Dun- bar, at North Berwick, the prefiding bo- rough of the diftrict for the time, on Monday the 3 i ft of October, 1774, com- miffions were produced in favour of per- fons named as delegates for the feveral bo- roughs ; and David Kinloch, Efq. ap- peared, and claimed a vote, as having been the perfon duly elected delegate for the borough of Haddington, though a E e 4 com- 42 4. % CASE XXIV. commiflion had been made out in favour of Robert Burton, Efq. provoft of Had- dington ; and accordingly he gave his vote at the election, under proteft ; and that the delegates producing commiffions from the boroughs of Haddington, Lauder, and Jedburgh, voted for the honourable John Maitland, clerk of the Pipe in the court of Exchequer in Scotland, and the dele- gates from North Berwick and Dunbar voted for Sir Alexander Gilmour, the pe- titioner. That Mr. Maitland had been re- turned, but Sir Alexander Gilmour was duly elected, and was therefore induced to make the prefent application for redrefs ; for that Mr. Maitland Was incapable of representing this diftrict of boroughs, or fitting as a member in the Parliament of Great Britain (A), by virtue of the flatutc. of the 6th Anne, cap. 7 . 5. hie office of clerk of the Pipe, in the court of Exche- quer in Scotland, having been created or erected fmce the 25th of October, 1705 ; and that, befide this, the two commif- fions for the boroughs of Haddington and Jedburgh granted to Mr. Burton, arid Mr, NORTH BERWICK, &c. 425 Hogg, as their delegates, were granted by perfons who were by law incapable of electing a delegate, having no right them- felves to the offices they aflumed in the faid boroughs ; and the faid commiffions were procured by bribery, corruption, and undue influence ; and, if there were any perfons entitled to elect a delegate for the borough of Haddington, David Kinloch was the perfon duly elected, and his vote only was a good vote ; and that, in con- fequence of thefe and many other objec- tions to the election of Mr. Maitland, it would appear that Sir Alexander Gilmour was the perfon duly elected for the faid diftrict of boroughs ; Praying therefore, (0, &c. From this ftate of the allegations of the feveral petitions, it appears that, the two general queftions in the cafe were, 1. Whether Mr. Maitland was eligible. 2. Whether, he, or Sir Alexander Gil- niour, had the majority of legal votes. (?) Votes, 7 Dec. 1774. P- 44> 45- It 426 CASE XXIV. It was propofed by the Committee, that the firft queftion fhould be argued and determined feparately. By the ftatute of the 6th of Anne, cap. 7. ^ 25. it is enacted as follows : u That no perfon, who fhall have in ". his own name, or in the name of any " perfon or perfons in truft for him, or " for his benefit, any new office or place " of profit whatfoever under the Crown, " which at any time fince the five and " twentieth day of October, in the year " of our Lord One thoufand feven hun- ".dred and five, have been created or ereff- t( ed, or hereafter fhall be created or erect- " ed, fhall be capable of being elected, or " of fitting or voting as a member of the ' Houfe of Commons, in any Parliament " which fhall be hereafter fummoned and " holden." The counfel for the petitioners contend- ed, that the office of clerk of the Pipe, which Mr. Maitland was admitted to have been pofifefied of at the time of the elec- tion, was a new office of profit, under the Crown, within the meaning and defcrip- tion of the ftatute. In NORTH BERWICK &c. 427 In the following ftate of the material circurnftances concerning this part of the cafe, the fads were, in part, admitted, and, in part, proved by authenticated papers, and by the parole teftimony of Mr. Walker and Mr. Mackenzie, two attorneys belong- ing to the court of Exchequer in Scotland. There exifted in Scotland a court of Ex- chequer, as far back as any authentic hiftory of that country goes. The court confifted of the Lords of the Exchequer, and a number of clerks and other inferior officers. By an eftablffiment, or account of the officers of the Exchequer and their falaries, which bears date in 1608, and is the lateft to be found before the union, it appears that there were then belong- ing to the court A .clerk of the fhe- rifFs roll, a clerk of the borough roll, two clerks to the Lord Regifter and Ex- chequer, and a prefenter of fignatures. All thefe clerks held their offices for life, by virtue of commiffions from the Lord Regijler. The falary of the firft was only 136!. 135. Scots. Of the fecond iSol. Scots. Of the two clerks of Exchequer i cool. Scots. In the commiffion to a clerk of Exchequer, he was ftyled deputy^ to ' 4 23 CASE XXIV. to the Lord Regifter, dictator of the rolls, and keeper of the property-roll. By the treaty of union, all the ordi- nary courts of juftice in Scotland were left with their former conftitutions and jurif- didions. But with regard to the Exche- quer, there was the following ftipulation : " That there be a court of Exchequer in *' Scotland after the union, for deciding " queftions concerning the revenues of " cuftoms and excifes there, having the " fame power and authority in fuch cafes, In the year following, (1707) a court of Exchequer was " fettled, eftabliihed, erefled, and conftituted, 3> in Scotland, ac- (i) At. 19. cord- NORTH BERWICK, &c. 429 cording to the above ftipulation, by the fla- tute of the 6th of Queen Anne, cap. 26. It was thereby enacted, that the Lord High Treafurer of England, a Chief Ba- ron, and four Barons to be ( i ) appointed by the Crown, fhould be judges of the court, and fhould hold their offices " quam- " diufe bene gcfferint (2).*' The third and twenty-firft feclions arc in the following words. c Seel:. 3. And it is further enacted " by the authority aforefaid, that there " fhall be in the faid court of Exchequer tc in Scotland, the feveral offices follow- " ing, that is to fay, the office of Queen*s either at Haddington or Jedburgh. The counfel for the petitioners argued, That this omifiion rendered the election of NORTH BERWICK, &c. 453 of the magiftrates, and confequently their election of delegates, void. That as no particular perfon is fixed upon by the ita- tute, for reading it at fuch annual elec- tions, who might be indictable if he neg- lected that part of his duty, the difobedi- ence of the pofitive command of the fta- tute cannot be punifhed in any other way, but by fetting afide the whole proceedings at the election .where it is not complied with. That, to give any fubftantial effect to this part of the law, it muft be under- flood that fuch was the intention of the le- giflature. The counfel for the fitting members in- fifted, That this provifion of the ftatute was only direttory^ and they proved that it is not ufual to comply with it unlefs fome member of the meeting defire it, which was not done either at Haddington or Jed- burgh. e^The counfel for the petitioners, in their reply, feemed to abandon this point. No other objection was made to the de- legate for Haddington, G g 3 The 454 CASE XXiV. The laft election of magiftrates counfellors for Jedburgh, was objected to on two other grounds. Bribery ; and a departure from the fat t of the borough. The counfel for the fitting member con- tended, that the Committee were not com^ petent to go into thofe queftions. This was a fort of plea to thejurifdiction. They argued as follows. Before the union, the Parliament of Scot- land had never made any provifion, con- cerning queftions arifing on the election of the magiftrates and counfellors of the royal boroughs, but left any conteft which hap- pened on that fubjeft, to the convention of boroughs, or the ordinary courfe of common law. The firft Britifh ftatute, where the elec- tion of thofe magiftrates and counfeliors is mentioned, is that of the yth of Geo. II. cap. 16. By the 7th feet ton of that fta- tute, *' It is declared and enacted to be " lawfu.1 for any magiftrate' or counsellor *' of a borough who apprehends any wrong " was done at any annual election, to bring ** his action before the court of feflion in NORTH BERWICK, &c. 455 " Scotland, for rectifying fuchabufe, or for " making void the whole, election (if ille- " gal) only within the fpace of eight weeks " after fuch emotion is over." By the i6th of George the Second, cap. 1 1. feet. 24. the right of complaining was extended to the conftituent members of any meeting for, or previous to, any elec- tion of magiftrates or counfellors ; and the limitation in point of time was made two kalendar months inftead of eight weeks. The prefent petitioners are not within the defcription of the perfons entitled to complain under either of the two ftatutes. They could not therefore have complained to the court of feffion, whofe jurifdiction is unquestionable, and furely their com- plaint is not competent before this Com- mittee, which at moft can only have a con- current and co-extenfive jurifdiction with that court. If, in any cafe, fuch a complaint can be heard, by a Committee of the Houfe of Commons, it can only be where applica- tion has been previoufly made to the court of feffion, within the time limited by the G ad 456 CASE XXIV. acl of Parliament ; and that has not been done in the prefent inftance ( i ) . (e 337- Ajlejlxry, cafe of, in 1696 and 1699. 104. B. Banbury, cafe of, 39, 4.0, Bedford, CASE of, 69 to 118. Laft determination of the right of ele&ion there, 70. Refolutionsof the Committee explanatory thereof, 91, 123. Bedford's charity, fee Charity. Bewdley, cafe of, 21 to 23, 32 to 35. Blake, bir Patrick, petitioner in the cafe of Sudbury, 130. De- termined to be duly ele&ed, 176. Boroughs in Scotland, lift of, according to the order of their pre- fidcncy, & 1 3 to 3 16. Delegates for, . Seaber, 15 to 2.?> 37> 38,48,49, 58 The King againit the mayor and air tiermen of,in 1774- 38, 5? to 63.Ca(e of, in 1628. 249, 289, 290. Committee for Hafleinere, adjourns during the Eafter holydays on application to, and leave from, the Houfe, 341, 342. Commonalty,, or Communitas, fenfe of the word in charters and re- turns, 256, 277, 284, 293, 294. C'oote, Sir Eyre, one of the fitting members in the cafe of Poole, 224. Determined to be, duly elefted, 288. Corporation, what, 30, 31. Queftion if diflblvcd by thelofs of an integral part, 20, 26, 30, 38, 39 to 43, 48, 49, 63 to 65. Corporators, how, and what, different acts and privileges are done or enjoyed by, 57, 58. Coventry, refolution concerning the right of election there, 99. Crefpigny, Philip Champion, Eiq. one of the fitting members in the caie ot Sudbury, 130. Determined not duly elected, 176. D. Da/Lwcod, Kenry Watkirt, Efq. petitioner in the cafe of Wig- town, iSo. Determined to be duly elecled, 212. Delegates lor Scotch boroughs, method of electing them, 18510 189. Their powers, 186, 216. Queftion whether a delegate can refign and another be chofen in his place, 191 to 198, 201 ro 205,' 212. Demiflion, fee Refignation. Defuetude, 107, 211. Disqualification, by offices of profit under the Crown created fmce 25 Och 1705. 367, 368. Drunu.u.'id, Adan;, Efq. one of the fitting members in the cafe of St. Ives, 390. Determined to be duly elected, 398. Durham, cafe of, 24, 36, 37, E. F.JinBurg/1, c.ife of, in 1711. 210, 211, 221. Eleflion for counties, to be holden at the place where ufual for 4p years paft, 194. Queftion concerning the common law right of, in boroughs, 231, 276. See Poll-eleSion. Erjkine, James^Francis, b^fq. petitioner ir> the cafe of Clackman-. 'nan, 34-4. Deteinvined hot duly elected, 358". INDEX. Evidence, queftionsof, 161 to 163, 172, 236, 237, 273, 274, 307 to 31. 3i5 3 l6 377> 3 82 > 397> 39 8 4 6 3- Exchequer, court of, in Scotland, conltitution of, before the uni- on, 427, 428. Article in the treaty of union concerning, 428. Extent, old, in Scotland, what, 360. F. Fonnereau, Thomas, Efq. one of the fitting members in the cafe of Sudbury, 130. Determined not duly elected, 176. Fox, Hon. Charles James, petitioner in the cafe of Poole, 224. Determined not duly elefted, 288. Gilmour, Sir Alexander, petitioner in' the cafe of North Berwick, 421. Determined not duly elefttd, 474. H. fJaddingtofi,Scc, cafe of, in 1771- 196 to 198, 204, 217, 218. Hanmer, Sir Walden, petitioner in the cafe of Sudbury, 130. Determined to be duly elected, 176. Ha/Jemere,CASof, 31910341. Laft determination of the right of election there, 321. Refolution explanatory thereof, 321, 322. Hellejlon, CASE of, 3 to 66. Right of election there, 4. Hvniton, cafe of, in 1715. 359. Honorary, fee Eurgeffes. Hojpital, St. John's, brethren of in Bedford, not difqtialified, 113. Howard, John, Efq. petitioner in the cafe of Bedford, 68. De- termined not duly elefted, 124. I. Jedburgh, &c. See North Berwick, Haddington. Inhabitants. Queftion whether they can be corporators, 3^4, 278, 179, 284, 285, 296 to 299. Inhabitants houfeholders reib- lution of the Houfe declaring the common law right of elec- tion to be in them, 232. K. Ketty, Henry, Efq. petitioner in the cafe of Haflemere, 318. De- termined not duly elecled, 342. King, the, ualij\catlon of members for counties', 201. for boroughs, ibidt .None neceffary in members for the univerfities, 208* Origin and nature of the qualification of the electors and elected for counties in Scotland, 34910354. %uo ivarranto, informations in the nature of. Rule of the King's .Bench, concerning them, 7, 32. K. Rateability, and Rates, 393 to 396, 399. Reading, cafe of, in 1708. 105. Reeve, 44 1 - INDEX. Saint Ives, CASE of, 391, to 398. Laft determination of the light of election there, 391. Sett of a royal borough in Scotland, what, 459, 460^ of Jedburgh, 460 to 46*. Sha/te/bury, CASE of, 303 10316. JLaft determination of the right of election there, 304. Special report of the Committee concerning bribery there, 311, 31-4. Proceedings in the Houfe thereupon, 311 to 314. Sheriff Deputes, in Scotland, difqualified, 443. Sheriff doms and Steivartries, in Scotland, 473, 474. Sparro-w, Robert, Efq. one of the fitting members in the cafe of Bedford, 68. Determined not duly elected, 124 Stamps, enrollment upon, in corporation books, queftion, whe- ther neceflary. evidence of freedom in a borough, 154. to 170, 174, 175. Standing Orders of 22 Nov. 1717. 346, 349. of zi Oft. 1678, againft bribery, 404, 405. Statutes, DireSory or Mandatory t 193, 216, 221. cited in this volume. i Hen. V. cap. i. 206. 7 Parl. Jac. I. of Scotl. cap. 101. 549. 11 Parl. Jac. VI. of Scotl. cap. 114. 350. i Parl. Car. II. in Scotl. cap. 35'. 350. 3 Parl. Car. II. in Scotl. cap. 2. 351, 351. 5 Will, and Mar. cap. 21. 156. 7 Will. III. cap. 4. 405 to 407. 7 and 8 Will. III. cap, 25. 3. 194. 7 . 326 to 329, 33* to 3 3 5. 8 and 9 Will. III. cap. 20. 12. 157. 9 and 10 Will. III. cap. 25. 157. 10 and ii Will III. cap. 16. 219. 12 and 13 Will. III. cap. *. 434, 447. 4 Anne, cap. 8. 434, 447. Sc. Aa. 5 Feb. 1707-8. 184, 185, 187. 6 Anne, cap. 6. 5. 186, 209. 6 Anne, cap. 7. 25. 368, 386, 426, 434. 6 Anne, cap. 26. 429 to 432. 9 Anne, cap. 5. i. 201, 349. 9 Anne, cap. 20. ^ 4. 6. 10 Anne, cap. 23. 333. 11 Geo. I. cap. 4. 41, 65, 204, 465. a Geo. II. cap. 24. 106, 407 to 410. f . 451, 453, 456. ' 7 Geo. II. cap. 16. 5. 187, 188, 192, 200, 446. 7. 454, 455- 9 Geo. II. cap. 38. 410. 16 Geo. II. cap. ii. 28. 187. TO. 190, 197. jo. 35!. 4- 353. 354> 363, 3 6 4- *4- 3$5 3S<5. 4'. so Geo. If. cap. 43. 442, 473 , 474 . *i Geo. II. cap. 19. n. 443. 3 Geo. III. cap. 15. i. 18, 27, 28, 46, 50,. 51, 88 to 90. 5 Geo. III. cap. 46. i, 2. 158 to 163. 10 Geo. III. cap. 41. 314. J4 Geo. III. cap. 58. 206. INDEX. Statutes cited in this volume. itGtolll. cap. 8i.2. *04,<9v. 354. 15 Geo. IlT. cap. 36, 3 1 4, 316. Stephens, Samuel, Efq. petitioner in the cafe of St. Ives, 390. DfiJ termined not duly elected, 398. Stockbrijge, cafe of, in 1689. 464. Stuart, Andrew, Efq. fitting member ift the cafe of Lanerk, 366. Determined to be duly elected, 388. Sudbury, CASE of, 131 to 178. Laft determination of the right of election there, 131. Cafe of in 1702; and in 1703. 13$ to 136. Sul/ton, v. Norton j cafe of, 416. Superiority in Scotland, what, 3-59, 366: Sykes, Francis, Efq. one of the fitting members in the cafe of Shaftefbury, 302. Determined not duly elected, 311. Thetford, cafe of, in 1699. 411, 412. Ti'verton, cafe of, 40, 41, 50. Report of Sir Philip Yorke, and Sir Clement Wearg, concerning 63 to 65. Treating. See the Cafe of Thetford. Univerfity, members for,. termed burge/es, 208, zaj. Se Quali- fication. V. Valued Rent in Scotland, what, 360, 361. Wake, Sir William, one of the fitting members in the cafe cf Bedford, 68. Determined to be duly elected, 124. Wallitigfordy laft determination of the right of election there, Warwick, cafe of, in 1628. 257, 493. In 1723. 294. Wejlbury, mayor of, his cafe for bribery, in 1571. 40*, 403. Weymouth and Melcombe Regis. Refolution of 1714, concerning the right of election there, 3*8. Obfervations upon it, 334. Wheatly, Thomasj his gift not a difqualification in Coventry, 99. Whitbread, Samuel, Efq. petitioner in the cafe of Bedford, 68. Determined to be duly elected, 124. Whitchurcht laft determination of the right of election there, 317, 3*8. Obfervation upon it, 334. White, Sir Thomas, his gift not a difqualification in Coventry, 99. Wigtown, &c. CASE of, 181 to *zi. Willes,