Report of the Which, being read, was agreed to, with an Amendment; and is as followeth ; (videlicet,) "The Plaintiff in this Action declares, That, the "The Knights of Shires reprefent all the Freehol"26th of December in the 12th Year of King Wil- "ders of the Counties. Anciently, every the leaft "liam the Third, a Writ iffued out of Chancery, di- "Freeholder had as much Right to give his Suffrage, "rected to the Sheriff of Bucks; reciting, "That the "as the greateft Owner of Lands in the County. This King had ordered a Parliament to be held at Weft- "Right was a Part of his Freehold, and inherent in his "minfter, on the Sixth of February following:" The "Perfon by reafon thereof, and to which he had as "Writ commanded the Sheriff to caufe to be elected good a Title as to receive the natural Profits of his for the County Two Knights, for every City Two "Soil. This appears by the Statute of 8 H. VI. Cap. "Citizens, and for every Borough Two Burgeffes; 7, which recites the great Inconvenience which did "which Writ was delivered to the Sheriff, who made "arife in the Election of Knights of the Shires, by * a Precept, in Writing, under the Seal of his Office, "Men that were of finall Subftance, who pretended "directed to the Conftables of the Borough of Aylf" to have an equal Right with Knights and Efquires "bury, commanding them to caufe Two Burgeffes of "of the fame County; therefore that Right was "the faid Borough to be elected, &c.; which Precept "abridged, and confined only to fuch Freeholders as "was delivered to the Defendants, to whom it did had Forty Shillings per Annum: But thereby it ap"belong to execute the fame. By virtue of which pears, that the Right which a Freeholder hath to "Writ and Precept, the Burgeffes of that Borough, vote, in the Election for Knights of the Shire, is an "being fummoned, did affemble before the Defendants, "original and fundamental Right, belonging to him as "to elect Two Burgeffes; and they being fo affembled, "he is a Freeholder. "in order to make fuch Election, the Plaintiff, being "then a Burgess and Inhabitant of that Borough, 66 66 "The Second and Third Sort of Men, which com pofe the great Reprefentation of the People of Eng being duly qualified to give his Vote at that Elec-land, are Citizens and Burgeffes; who though they "tion, was there ready, and offered his Vote to the "Defendants, for the Choice of Sir Thomas Lee Baro net and Simon Mayne Efquire, and the Defendants "were then required to receive and admit of his Vote. "The Defendants, being not ignorant of the Premises, "but contriving, and fraudulently and maliciously in"tending, to damnify the Plaintiff, and to defeat him "of that his Privilege, did hinder him from giving his "Vote, and did refufe to permit him to give his Vote; "fo that the Two Burgeffes were elected without any "Vote given by the Plaintiff, to his Damage, &c. "Upon Not Guilty pleaded, the Caufe went down to "Trial; and a Verdict was given for the Plaintiff, and "Five Pounds Damages, and alfo Cofts. "It was moved in the Court of King's Bench, in "Arreft of Judgement, "That this Action did not lie;" "and that Point was argued by Counfel, and after"wards by the Court. 46 "The Lord Chief Juftice Holt was of Opinion, "That "Judgement in this Cafe ought to be given for the "Plaintiff," but Mr. Juftice Powel, Mr. Juftice Powys, and Mr. Juftice Gold, being of a different Opinion, Judgement was entered for the Defendant: Where upon the Plaintiff brought a Writ of Error in Parliament; and the Caufe being argued, at the Bar of the House of Lords, by Counfel, and Ten of the Judges who were present in the House being heard, "and the Matter fully debated by the Lords, the House "was of Opinion, " That the Judgement given in the "King's Bench was erroneous; and that the Plaintiff "has a good Caufe of Action, and ought to have Judgement." 66 66 "As for the Firft, it is fufficiently defcribed in Lit"tleton's Tenures, Sect. 162, 163, 164. A Tenure in "Burgage is a Tenure in Soccage, and is called a Tenure in Burgage, because these are the most an"cient Towns in England; and from thence came the "Burgeffes to Parliament: And they who have this "Privilege, have it as belonging to their Eftates or "Poffeffions. "The other Right of choofing Parliament Burgeffes " is not annexed to any Freehold or Eftate in Poffeffion, "but vested in the Corporation of the Place; and is "created in this Manner; (videlicet,) 46 Ed. III. M 4. Dorfo, &c. "and Exercife, is in the Perfons of those who, by the "Conftitutions of thofe Charters, are appointed to "elect. 66 66 "And in all Cafes where a Corporation hath fuch a Privilege, the Members thereof, in their private Capacity, have the Benefit and Enjoyment thereof, "because the Corporation, as fuch, is not to be repre"fented; for it is not neceffary that it fhould have any "Eftate; but, by being a Corporation, they have only "a Capacity to have Eftates. Jones 165, Hyward, and "Fulcher. For as the Citizens and Freemen of a Place " are incorporated for the better Government of those "of the Place; fo is this Privilege of having Burgeffes given for the Advantage of the particular Members "thereof, whofe Eftates are to be bound by the Acts "of their Reprefentatives. 66 66 "It appears, by other Inftances, that it is ufual and proper for Corporations to have Interefts granted to "them, which enure to the Advantage of the Mem"bers in their private Capacities. Moore 832, Sir "Thomas Waller verfus Hanger. The King granted to "the Mayor and Citizens of London, "That no Prifage "be taken and paid for Wines, of the Citizens and "Freemen of London." This enures to the Benefit of 66 every Citizen and Freeman of London for his own. Wines, in which the Corporation of the City hath no Intereft. "The fame Thing appears by the Cafe of Waller "and Spateman, 1 Saund. 343, and by the Cafe of "Meller and Walker. Thefe Inftances make it fuffi"ciently appear, that though the Inheritance of this "Franchise be in the Body Corporate, yet it is for the "Benefit of the particular Members thereof; and it is 66 certainly a great Advantage for the Men or Inhabi"tants of a Place, to choose Perfons to reprefent them "in Parliament, who thereby will have an Opportu"nity, and be under an Obligation, to reprefent their "Grievances, and advance their Profit. 66 64 "Of this Opinion have Two Parliaments been, as appears by Two feveral Acts; the one, 34 and 35 "H. VIII. Cap. 13; the other, 25 Car. II. Cap. 9. "The First is an Act for making Knights and Burgeffes "within the County and City of Chefter, which begins "in this Manner: "In humble Wife fhew to Your "Majefty, the Inhabitants of Your Grace's County Pa"latine of Chefter, that they being excluded and sepa"rated from Your High Court of Parliament to have any Burgeffes within the faid Court, by reason "whereof the Inhabitants have hitherto fuftained ma"nifold Loffes and Damages, as well in their Lands "as Goods and Bodies ;" therefore it was Enacted, ""That they should have Knights for the County, and "Citizens for the City of Chefter:" The other Act, "which conftitutes Knights and Burgeffes for the CounPalatine and City of Durham, recites, "That the ty "Inhabitants thereof, hitherto, had not that Liberty "and Privilege of electing and fending Knights and "Burgeffes to the High Court of Parliament." 2. It follows, that, in Confequence of this Right "or Privilege, the Poffeffors thereof must have a legal "Remedy to affert and maintain it. "It was faid, That there are many Rights, for which "a Man has no Remedy by the Common Law; as in "Cafe of a Legacy given, if it be not paid, the Party 66 66 cannot bring an Action for it. This is very true, but not applicable to the prefent Purpofe; for the Con"ftitution of the English Government has wifely diftri"buted to feveral Courts the Determination of proper "Caufes; but has left no Subject, in any Cafe where "he is injured, without his adequate Remedy, if he will go to the right Place for it. If a Man will feek for "a Remedy at Common Law for a Legacy, which by our Conftitution is to be recovered in the Ecclefiafti"cal Court, it is his own Fault if he do not recover; "as it would be, if he should begin a Suit for Land in "the Court of Admiralty, or go for Equity to the "Common Pleas. 66 66 "But there is no fuch Notion in the Law of England as a Right without a Remedy. "He who lofes or quits his Remedy, lofes his "Right. If a Man has a Bond for Payment of One "Thousand Pounds, he has no Remedy to recover this "Money but by Action; therefore, if he releases all "Actions, he lofes his Right to the Money, because he "has given away the Means to recover it. Coke's 6th Rep. 58. Bridgeman's Cafe. If a Man purchases an "Advowfon, and at the next Avoidance fuffers an Ufurpation, and brings not the Quare Impedit in Time, "he hath loft all Manner of Remedy, and in Confequence his Right, to which neither he nor his Heirs can ever be restored. County, every Citizen for a City, and every Burgess "for a Borough; that if the Sheriff, or other Officer, "who is to caufe the Election to be duly made, fhall "hinder or deprive any of thofe Electors of his Right, "the Perfon injured fhall have no Remedy, though "the Injury be done to fuch a Right, upon the Security whereof the Lives, Liberty, and Property, of all "the People of England fo much depend? "That the Defendants in this Cafe, by hindering "the Plaintiff from voting, have done ill, cannot be "denied; because they have excluded One, who has a "Right, from his Vote. Then, if the Law doth not "allow an Action to the Party injured, it tolerates the "Injury; which is abfurd to fay is tolerable, in any "Government. "There was much Weight laid upon the Cafe of "Ford and Hofkyns, 2 Cro. 388, Mo. 842; which is, ""That where, by the Cuftom of the Manor, every "Tenant for Life might name his Succeffor for his Life, "whom the Lord is to admit; if One be named, and the "Lord refufes to admit him, it was held an Action on "the Cafe would not lie, because the Nominee had no Right without being admitted." But the Reason given "for that Opinion, fhews it has no Relation to this Cafe; "for the Plaintiff's Right of voting is vefted in him, "without any previous Admittance; therefore, though "it fhould be Law, that no Action will lie for not giving "a Right, 3 66 a Right, yet certainly an Action must lie, for defrauding "and hindering a Man to enjoy a Right that he hath. When any Statute requires an Act to be done for "the Benefit of another, or to forbear the doing of "an Act which may be to his Injury, though no Action "be given in exprefs Terms by that Statute for the "Omiffion or Commiffion; the general Rule of Law in "all fuch Cafes is, That the Party injured fhall have an "Action. Coke, 10 Rep. 75, the Cafe of The Marshalsea, 12 Rep. 100. Co. Mag. Car. 118. This is a Maxim "allowed and approved of in all Ages. ་ 66 “ There is the same Reason, where the Common Law gives a Right, or prohibits doing a Wrong: But, in "this Cafe, an A&t of Parliament is not wanting; for "the Stat. of Weft. 1. Cap. 5. enacts, "That Elections "fhall be free." If he who hath a Right to vote be "hindered by him who is to take his Vote, or to manage the Election, that Election is not free; such "an Impediment is a manifeft Violation of that Statute, "as well as an Injury to the Party whofe Vote is re"fufed. This Stat. of Weft. 1. fhews what Opinion the King and Parliament had of the great Confequence "it was to the whole Realm, that People fhould have "their Freedom in Choice. And though the Common "Law was the fame before, as appears even by the "Statute itself, the Words whereof are, "Elections "Elections "ought to be free;" yet it was adjudged neceffary to add the Sanction of an Act of Parliament thereunto: ""The King commandeth, upon great Forfeiture, that "no great Man, or other, by Force of Arms, or by Ma"lice or Menaces, fhall difturb any to make free Elec"tion." The Defendants did not by Force of Arms "drive the Plaintiff away from the Election, nor by "Menaces deter him; but they did maliciously hinder "him (fo it is charged by the Plaintiff in the Declara"tion, and it is found by the Jury to be done by Fraud "and Malice); and fo the Defendants are Offenders "within the very Words of the Statute of Weft. 1. "Where the Law is fo clear as to the Right, and the Duty "fo ftrictly enjoined by Act of Parliament to be ob"ferved, it seems a great Prefumption to make it but "a light Thing. "It being apparent that the Plaintiff had a Right, and "that the Defendants have done him Wrong; and "that, by Confequence of Law, he must have some "Remedy to vindicate his Right and to repair the Wrong: 46 66 3. The Third Thing to be fhewn is, That the Remedy the Plaintiff, pursued by bringing this Action, "is the proper Remedy allowed by the ancient Law " of England. "This Action is that, which is called in the Law, ""An Action upon the Cafe ;" that is, founded upon. that is, founded upon "the particular Cafe of the Party injured. "The Law, in all Cafes of Wrong and Injury, hath "provided proper and adequate Remedies. "1. When a Man is injured in his Perfon, by being "beaten or wounded, the Law gives him an Action "of Trefpafs, Affault, and Battery; if by being im"prifoned, an Action of Falfe Imprisonment. "2. If his Goods be taken away, or Trefpafs done "unto his House or Lands, an Action of Trefpafs lies, to repair him in Damages. 4. Where any Officer, or Minifter of Juftice en"trufted with the Execution of the Procefs of Law, does an Injury, an Action of the Cafe lies against him. Party Defendant, or taking his Goods, the Plaintiff If the Sheriff will not execute a Writ, by arrefting the "fhall have his Action upon the Cafe, because he refufed to do his Duty, to the Plaintiff's Damage. "The Precept which the Defendants received from the Sheriff, in this Cafe, was founded upon the King's "Writ; and the Defendants are commanded to caufe "Two Burgeffes to be elected for the Borough of Aylfevery One, who hath a Vote, to make Ulfe of it; if "bury, of which they are to give Notice; and to admit "they refufe any Man to vote who hath a Right, they "act contrary to the Duty of their Office. "It was objected, "That it did not appear that the Perfons for whom the Plaintiff voted were elected, nor "that they would have been elected if his Vote had been admitted." "The Anfwer is, "That it is not material, whether the Perfon for whom the Plaintiff voted was chofen, or would have been chofen if his Vote had been "taken: His Right and Privilege is, to give his Suffrage, "to be a Party in the Election; if he be excluded from it, he is wronged, though the Perfons for whom he would have given his Vote were elected. "It was faid, in the arguing this Cafe, "That the Plaintiff had no Damage, or at least that there was no fuch Injury or Damage done to him as would fupport "an Action." The Answer to that is, "That the Law will never "imagine any fuch Thing as Injuria fine Damno; every "Injury imports Damage in the Nature of it. If a Man pick a Lock, and come into an House without the "Confent of the Owner, perhaps there is no Pecuniary "Damage done to the Value of a Farthing, yet the "Owner fhall have an Action against him, and recover Damages for the Invafion of his Poffeffion and Pro perty: There are many Cafes of the fame Nature, "which have been determined upon this Ground. In the "Cafe between Turner and Starling, 24 Car. II. in Com. "Ban. and afterwards in Ban. Reg. the Plaintiff "Turner, amongst others, stood to be One of the Bridge"mafters of London Bridge, which Officer is to be "elected by a Common Hall of the City of London: "The Question was, "Who had the greatest Number "of Voices?" The Plaintiff demanded the Poll; and "the Defendant, being then Lord Mayor of London, re«tainable for refufing the Poll, because every Candidate "fused it. It was adjudged, "That the Action was main has a Right to have it; and though perhaps, if the "Poll had been granted to the Plaintiff in that Action, it might have been against him, yet the Denial of that Right was a good Ground of Action." "Upon the fame Reafon, the Cafe 29 E. III. 18. was, "determined; and alfo the Cafe of Hunt and Dowman, "2 Car. 478. 2 Rolls, 21. 66 "there is a real Doubt touching the Party's Right of "voting, and the Officer makes Ufe of the best Means "to be informed, and it is plain his Mistake arofe from "the Difficulty of the Cafe, and not from any mali"cious or partial Defign; no Jury will find an Officer guilty in fuch a Cafe, nor can any Court direct them "the Party to the Action. In this Cafe, the Defendants "knew the Plaintiff to be a Burgefs, and yet fraudulently and malicioufly hindered him from his Right "of voting; and Juftice muft require, that fuch an "obftinate and unjust minifterial Officer fhould not "escape with Indemnity. 66 "That the Officer is only minifterial in this Cafe, "and not a Judge, nor acting in a Judicial Capacity, is "most plain; his Bufinefs is only, to execute the Precept, to affemble the Electors, to make the Election, by "receiving their Votes, computing their Numbers, declaring the Election, and returning the Perfons elected. "The Sheriff, or other Officer of a Borough, is put to "no Difficulty in this Cafe, but what is abfolutely neceffary in all Cafes. If an Execution be against "a Man's Goods, the Sheriff muft at his Peril take "Notice what Goods a Man has." "ought to be advanced. If other Officers of Boroughs "have been, or fhall be, guilty of the like Misfeazances "as these Defendants have been, it is fit they fhould "be liable, as these Defendants are, to make Satisfaction. "If One Man be beaten and imprisoned, is it any Ob'jection against his having an Action, because all others "who shall be as evilly treated as he hath been fhall" to do it, for it is the Fraud and the Malice that entitles "have the like Remedies? The only Means to hinder "Corruptions, that will foon become frequent among "thofe Officers of Boroughs and Corporations, is to "let them fee that they are obnoxious to the Law, and "that their Purfes must make Satisfaction to all whom "they fhall injure in this Manner. It is true, if One "Act which tends to the Injury of many Perfons be "committed, no One Person injured shall be allowed "to have an Action, becaufe the reft might have the "fame, Co. 5 Rep. 72. Williams's Cafe, 3 Cr. 664. "Fineux verfus Hovenden, the Cafe of not faying "Divine Service in a Chapel of a Manor to the Lord "and Tenants, or for stopping of a Lane or Common Way, because the Defendant for One Act would have "a Multitude of Suits against him; the Injury alike "affecting a Multitude. But the Refufal of every Vote " is a distinct Act. The Party grieved, whofe Vote was "denied, can only bring an Action for the Refufal; the others, whofe Votes were admitted, are not concerned. And if an Officer denies an Hundred who have a Right, thefe are a Hundred feveral Wrongs, for "which he ought to be liable to as many feveral Ac"tions: As, if a Man will make it his Bufinefs to fling "Stones, and fhall hit a Hundred feveral Men, he must "make Satisfaction to them all. But furely this is fo "far from being an Objection, that it is a ftrong Argument to fupport the Action; for, if the Mayor or "Bailiff of a Borough fhall have Liberty to refufe Men "who have Votes, he can eafily make a Majority to "vote on his Side; and then what will become of "Elections? The Officer will return him that is elected "by a Majority of his own making, by excluding the "Votes of others that have a Right. ' 66 "And though, upon hearing the Caufe in the House "of Commons, this Matter may be fet right at last yet, what can compenfate for the Mifchief that may "be done to the Kingdom in the mean Time, by the "Votes of those who shall be partially returned, and "are not the Reprefentatives of the People of the "Place who are to choose them? "Befides, the fore-mentioned Rule against multiplying Actions is confined to fuch Acts where there is an"other Remedy to be had; but where there is no other "Remedy but an Action, the Wrong-doer must answer "to fo many feveral Actions as there are Perfons injured. Suppose a Man will plough up the Ground in which "a Hundred Perfons have Common, he must answer "all their Actions. If the Inhabitants of a Town have "a Common Watering-place, and a Stranger ftops the "Current, whereby the Water is diverted; every In"habitant fhall have his Action, because there is no "other Remedy. 66 "The injured Plaintiff, in this Cafe, has no other Remedy befides this Action: No Indictment lies, be"cause it is a Perfonal Wrong to the Party, and no Wrong to the Public; but only in the Confequence "of it, as an evil Example, which tends to the En"couragement of other fuch Officers to commit the "like Tranfgreffions. Nor is there any Danger to an "honeft Officer, that means to do his Duty; for where "Another Objection was made, in refpect to the No"velty of the Action; it was faid, "Never any fuch "Action was brought." "In Answer to this Objection, it may be faid, “That "probably there have not been many Occafions given "for bringing futh Suits. It is to be hoped, that very few have ever been fo prefumptuous, as to dare "to make an obftinate and malicious Refufal of an un"difputed Vote. If the Cafe has happened before, 66 perhaps the Party, out of Confideration that only "fmall Damages were to be expected, might be dif" couraged, and think it better to acquiefce. And it "is probable, the ill-defigning Officer would be at least "fo cautious, as to refufe the Votes of fuch Perfons only, as he thought, by reafon of the Meannefs of "their Circumftances, were unable to vindicate their "Right. It is not every One that has fuch a true English Spirit as the Plaintiff, who could not fit down 66 66 66 meanly under a Wrong done to him in One of the "moft valuable Privileges of an Englishman. It is not "the Novelty of the Action that can be urged against it, if it can be fupported by the old Grounds and Principles of Law: The Ground of Law is plain, "certain, and indeed univerfal, That where any Man is injured in his Right, by being either hindered in or deprived of the Enjoyment thereof, the Law gives "him an Action to repair himself. 66 "The Cafe of Hunt and Dowman, which was 16 Jac. I. A° Domini 1618, of an Action by the Land"lord against the Tenant, for hindering him from fearching his House to fee whether it was in Repair, was never brought before that Time; and that of "Turner and Starling was not brought till 23 Car. II. "The Law of England is not confined to particular "Precedents and Cafes; but confifts in the Reason of "them, which is much more extenfive than the Cir"cumstance of this or that Cafe. Ratio Legis eft Anima "Legis; et, Ubi eadem Ratio, ibi idem Jus, are known "Maxims. "An Action against the Master of a Ship, for that "the Ship lying in the River of Thames was robbed, was maintained upon the fame Reafon as against a "Common Carrier; yet fuch an Action was never known "until 23 Car. II. in the Cafe of Mofs and Slue, ▲ "Cr. 15. Jones 93. "Cr. 15. Jones 93. Palmer 313, Smith and Cranfhaw, "an Action of the Cafe was brought, for maliciously, "and without any probable Caufe, indicting the Plain"tiff of High Treafon. This was the First Action that "was ever brought in fuch a Cafe; and yet it was adjudged 66 adjudged maintainable, upon the fame Reafon as upon "a malicious Indictment of Felony. 2 Levinz, 250, "Heming and Beal, an Action of the Cafe was brought "against the Mayor of a Town, for refufing the Plaintiff to give his Vote at the Choice of a new Mayor; and "there was not any Scruple made but that the Action "did well lie, though that was the First Precedent. "It is granted, that if a Freeman, who hath a "Right to give his Vote for the Choice of a Mayor, be "denied his Vote, he thay maintain an Action upon "the Cafe. "ceives the Court hath judged amifs, he hath his Remedy by Writ of Error, till at laft it comes where "it will receive a final Judgement. So that every Right "which an Elector can have is proper for the Deter"mination of the Queen's Courts. There are various "Ways of Election in different Boroughs; but they all "depend upon Charters or Cuftoms, and therefore are 66 not more difficult to determine than other Franchises or Liberties, which depend upon the fame Founda❝tions." ἐσ ἐσ "And whereas it was faid, "That by a late Act of of the Houfe of Commons concerning the Right of Parliament in the 7 and 8 W. III. the laft Determination "Elections is to be purfued;" it amounts to no more than to take Care to return him to be elected, who is chofen "this, that the Officer who is to make the Return, is "by a Majority of Electors, qualified according to the laft Determination of the House of Commons: If he does fo, he incurs no Danger, he is not liable to an "Action. But the Houfe of Commons itself is not bound by that Rule. Now fuppofe the Officer will deny a "Man a Vote, who, according to the laft Determination "there, ought to have One, and this the Officer did "well know; what is it hinders him that had Right "There can be no Difference between that Cafe "and this, unless it can be fuppofed that the Right to "vote at the Election of a Mayor is of higher Eftima❝tion in the Eye of the Law, than a Right to choose Members to ferve in the High Court of Parliament. "This Action is not only founded tipon the Reafon of "the Common Law, but it hath the Sanction of an Act" "of Parliament; videlicet; the Statute of Weft. 2. Cap. 24; which fays, "That whenfoever from thence"forth it fhall fortune in Chancery, that in One Cafe a "Writ is found, and in a like Cafe falling under like Right, and wanting like Remedy, none is found; the "Clerks of the Chancery shall agree in making a Writ, and, by Confent of Men learned in the Law, a Writ "fhall be made; left it fhould happen hereafter, that "the King's Court might fail in miniftering Juftice to "Complainants." "The Objection moft infifted on was, "That this is à "Matter relating to Parliaments, and ought to be deter "mined by the Law and Custom of Parliaments; and "for that Reason, is not cognizable in the Queen's "Courts." "In Answer to this Objection, it was thewed, 66 "The Right of choofing Knights of the Shire is "founded upon the Elector's Freehold. Matters of Free "hold are determinable originally and primarily in the "Queen's Courts, by the Rules and Methods of the "Common Law, by a Jury fworn, and by the Evidence "of Witneffes upon Oath; and as the Right of the "Freehold is determinable there, fo are all Benefits, "Rights, and Advantages, depending thereupon, or "belonging thereto. "If a Freeholder's Voice be refufed by a Sheriff, "what is it fhould hinder the Queen's Court from "trying and determining this Matter, like all other "Questions of Freehold, by a Jury, upon the Oaths of "Witneffes, or Evidence in Writing, whether the "Plaintiff that fuppofes himself wronged was a Free"holder or not? "The Right of choofing Citizens and Burgeffes "depends either upon Prefcription or Cuftom, or upon "Letters Patents. These are alfo primarily and originally "cognizable by the Queen's Courts: Cuftoms and Pre"fcriptions are triable by the Country; that is, by a Jury of Twelve Men of that County, where the "Custom is alledged to be. This is known Law in all Cafes without Exception. "And as to Letters Patents, if pleaded fpecially, the "Court must judge of them; and if either Party con ἐσ according to that Determination from bringing his "Action against the Officer who hath injured him? It "cannot be the Act of Parliament; for the Queen's Courts are by Law the Firft, and original Expoun"ders of the Statutes of this Realm. "But, Secondly, there is no other Court or Jurif "diction appointed by the Law of England, for deter"mining the Right and repairing this Injury, but the "Courts of Westminster: "It is a general Rule, "That whoever impeaches the "Jurifdiction of One Court, muft entitle fome other "Court to have a Jurifdiction of that Caufe;" but that "is impoffible to be done in this Cafe. 66 "It was faid, "That the Determination of the Right "of Elections of Members, to serve in Parliament, is "the proper Bufinefs of the Houfe of Commons, which they would be always very jealous of, and this Jurif"diction of theirs is uncontested; that they exercise a "great Power in that Matter, for they oblige the Officer to alter his Return according to their Judgement; "and that they cannot judge of the Right of Election, "without determining the Right of the Electors; and "if Electors were at Liberty to profecute Suits, touching "their Right of giving Voices, in other Courts, there might be different Judgements, which would make "Confufion, and be dishonourable to the House of "Commons; and that therefore fuch an Action was a "Breach of their Privilege." "But though it be true, that the Merit of the "Election of a Member be a proper Subject for the "House of Commons to judge of, because they only can give the proper and most effectual Remedy, by excluding the Ufürper, and giving the Poffeffion of "the Place to him who has the Kight; yet there is a great Difference between the Right of the Electors,and "the Right of the Elected: The One is a temporary "Right to a Place in Parliament pro hac vice; the other " is a Freehold, or a Franchise. Who has a Right to fit "in the Houfe of Commons, may be properly cogni ❝zable |