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such case, it should be, and might be lawful, for his Majesty's court of king's bench, on motion to be made in the said court, to award writ or writs of mandamus, requiring the persons having a right to vote, or do any other act necessary to be done, in order to such election, to assemble themselves for that purpose.' And it has frequently been determined, that the power of the court to grant a mandamus, to go to an election, is not confined to the case where there has been no election at all, but that where there has been an election in point of fact, yet from the circumstances laid before the court, it shall clearly appear that the election cannot be supported, a mandamus shall issue. But that if the election appear doubtful, no mandamus shall issue, till the person actually exercising the office be ousted by judgment in quo warranto. (Vide Kyd, on corporations, vol. 2, page 36, and the cases therein referred to.)

An opinion I bave heard has been taken, (but which I have never seen,) as to whether Sir John Duntze, Bart. one of the receivers for the county, is eligible to serve the office of mayor of Tiverton; the mayor being the returning officer of the two members to parliament. To me there appears no doubt, for the reasons stated before, that the return at any rate is a good one; and I am not prepared to say, the worthy baronet would render

himself liable to the penalty, under the act, 22 Geo. iii. c. 41. I think, however, the court of king's bench would never allow, on application, that Sir John was eligible. In the first place, (in these days in which an extension of the elective franchise is so loudly called for, and by some of our leading characters deemed absolutely necessary, in order to promote that proper feeling which every loyal and good subject must wish to see prevail) it does appear unreasonable, that any one of the twenty-five, who in this borough elect the members to parliament, should retain his seat in the common council, who by virtue of any office he may hold under the crown, cannot exercise so important a part of the duty of a corporate officer of Tiverton. Secondly, being expressly forbidden to interfere in any way in the election of members to parliament, it does appear somewhat inconsistent Sir John should be permitted to act as returning officer, And, thirdly, as by charter it is said, the mayor has a casting vote (e) in all elections, in case of an equality of votes, there would be no officer who could exercise this privilege, and under such circumstances, no election could take place. (f)

(e) Vide the author's opinion as to this point, post clause R.

(f) In thus freely offering my opinion on the incompatibility of the offices of Receiver for the County, and common council-man of Tiverton, I beg to assure the

I shall conclude my remarks on this clause of the charter, by observing, that by the introduction of peers, and such as cannot exercise the elective franchise, the electors for Tiverton may be reduced to very few. Without the smallest intention of evincing any personal disrespect, I may, I trust, be permitted to say in the language of a committee, "that it might be brought to the mayor and twelve burgesses, which is against the general liberty of the realm, that favoreth all things tending to make the election of burgesses with the most indifferency; which by common presumption is, when the same is made by the greatest number of voices that reasonably may he had; whereby, there will be less danger of packing, and indirect proceedings." (Vide appendix (B) Chippenham case.) Indeed, says Blackstone, it is not to be expected from human nature, that the few should be always attentive to the interests of the many.

reader, I am governed by nothing but a deep sense of the propriety of maintaining throughout the examination I have proposed, the strictest impartiality. It is my misfortune, it is true, to differ very widely from this respectable baronet, on many subjects connected with the municipal concerns of our town, and I must say, on some points of so serious a nature, as to have occasioned me much pain and inquietude; for I am ever ready to acknowledge and admire the many amiable, and truly desirable qualities, which shine conspicuously in the conduct and character of Sir John Duntze.

P.

Here we find the high privilege granted to the inhabitants of Tiverton, of having a recorder within the town and parish. We read, he is to be named, "recorder of the town and parish." He is not described as the mayor, capital burgesses, and assistants are, as an inhabitant of the town and parish, but as "a man learned in the laws of England." I will not go the length of saying, that a professional gentleman alone is eligible to this office. The selection, however, of a person of liberal education, with a competent store of legal knowledge and information, is absolutely necessary; and should any one deficient in these qualifications be elected to this office, it would afford an opportunity to those who are inimical to local jurisdictions to suggest, the existence of some other feeling, in the contemplation of the (g) mayor, capital burgesses, and assistants, by whom he is appointed, than that of the welfare or interests of the inhabitants of the town and parish of Tiverton.

"Acta exteriora indicant interiora secreta." Indeed, if this office were like the others, confined

(g) The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be reduced to this single one: that of acting up to the end or design, whatever it be, for which they were created by their founder.

to "inhabitants," it would preclude the probability of its being filled by such, who attend in the courts of law, and whose experience and services must certainly be highly desirable, and who, without doubt, are the persons generally speaking, best qualified to officiate in so important a situation. The duty of this officer is thus described:

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to be from time to time assisting the mayor, capital burgesses, and assistants, 'for the time being, and their successors, in all things and causes, which in the court of record shall be pleadable, and determinable, and that he shall have full power by himself, or his sufficient deputy, to do and execute every thing, which to the office of recorder doth appertain and belong." As a further proof that the recorder is not required to be an inhabitant, he is not called upon to be present when the mayor assembles the common council. Neither do we find him named among those, who are to assemble in convocation; and it affords a strong inference of the necessity of the residence of the other officers of the corporation, that the clause, as to the recorder, differs from those which relate to the capital burgesses, and assistants. From this clause alone it would appear, that the duties of the recorder were confined to the court of the town; but we shall presently be made acquainted with his appointment of justice of the peace. He is to continue in his office during the pleasure