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I shall only further remark, that the Town Clerk has several times been applied to for a list of those who are to grant this licence or permission, and has as often declined (perhaps judiciously) replying to the request though respectfully made. I should scarcely think he will offer to compound with these unsuccessful applicants. Indeed so fully persuaded are some persons, that the demand which has been made, and which through ignorance they have after some hesitation paid, is not a justifiable one, that it is in contemplation to resort to legal measures for the recovery of the same.
A young man who conceives the trade he carries on is under the term “victualling," which the charter exempts from obtaining the mayor's, &c. licence, has made an application, under advice, for the return of his money, but has not as yet been favored by a reply. I shall only add, this application was made to the Town Clerk three months ago.
Another circumstance which has reached me, I cannot forbear to make mention of: a circumstance not very confirmatory of Mr. Town Clerk's right to demand a penalty for opening a shop, &c. without the consent of the mayor. A young man in Bampton-Street was waited on by the serjeant as usual; an objection was made, and an absolute refusal given; a mayor's process was accordingly issued, and a notice of a declaration being filed, served. A respectable attorney of our town informed Mr. John Wood of his client's intention to appear, and requested to have a copy
of the declaration. No
copy of this declaration however was ever given, and the result was--proceedings were stayed.
Winchelsea.* [GLANVILLE.] “The said port or borough being to have barons or burgesses to the parliament hy prescription, and standing incorporated by the name of mayor, jurates, and freemen, it was admitted by all the parties, that only the mayor, jurates, and freemen ivhabitants ought to have voices in the election of such barons or burgesses; but that at a hundred court, holden at Winchelsea the first of Nov. 79 Jacobi, before the deputy mayor there and the jurates with him associate, it was then ordered and decreed, amongst other things, that from thenceforth there should not any freeman or jurate of the town have his voice in any election, or in the passing of any act, but such freemen and jurates as should be inhabitants of the town by the space of three months together next before the time of such election to be made, for such act to be passed, except the mayor for his voice." This determination excluded some of the inha. bitánts; and it was determined that the said decree, constitution, or bye-law, albeit it were granted that by charter or prescription the said town might make divers constitứtions and bye-laws concerning their other affairs or government, cannot alter the manner or right of election of barons or burgesses to the parliament, but is to that purpose utterly void ; because the commonwealth being interested in the freedom and consequence of such elections, the same cannot be restrained in any sort by any private ordinance whatsoever." The corporators, therefore, of a place can by no bye-law restrain the right of voting: they can in no way limit it; they cannot
* This and the following cases, are extracted from Mr. Merewether's Report of the West Looe Case.
alter it. This authority establishes that they may make an alteration as to their own coustitution and government, but those alterations can have no effect in restraining the parliamentary elective right.
Chippenbam. [GLANVILLE, p. 48. ] “The said town of Chippenham, being an ancient borough, that hath, time out of mind, sent two burgesses to the parliament, the indentures for the returns whereof, dated 6th Feb. 7th Edw. VI. and 19th Sept. 1st of Mary, were made between the sheriff of Wiltshire for the time being, of the one part, and such an one, by special name, as bailiff of the borough aforesaid, and the burgesses of the same borough generally, without naming any, of the other part, under their common seal; but whether or do the same were incorporated it appeared not. Queen Mary, by her letters patent of the 2d May, in the 1st year of her reign, at the petition of the men and inhabitants of the said town and borough, granted that thé same should consist, de cætero, of a bailiff and twelve burgesses, hy the name of the bailiff and iwelve burgesses of Chippenham, and that there should be in the said borough two burgesses of parliament; and that the bailiff and burgesses of the said borough and their successors, upon the writ for the election of burgesses for the parliament to them to be directed, should have power to choose two of the same borough.” Here the charter expressly gives a right of election in creating the corporation of the persons described in it. “But it appeared by proof of witnesses, that at the election for several par. liaments in Queen Elizabeth's time, divers of the burgesses, inhabitants of the said borough called 'freemen,' claim to hare voices in the election." It then goes on to state what passed on the election. “The precept being read, Mr. John Maynard, by the voices of the bailiff and all the said eleven incorporated burgesses then present, was clearly elected in the first place, and so pronounced and acknowledged without contradiction of any ; divers others of the burgesses, inhabitants of the said borough, called freemen, being at that time in the under room, not offering themselves to come into the said upper room, nor to join in the said election with the said bailiffand incorporated burgesses"—then it states ; "That they did adjourn the election for the second burgesship, until the 23d of the same month in the same place, the said other burgesses and inhabitants continuing still in the said under room, neither called to come up, nor offering to come up, nor denied to come up, and so the assembly for this time was dissolved." The inference here attempted to be drawn was from the circumstance of the other burgesses being in the under room, and not offering to go into the upper room, although not denied, as if it were an admission, by their con. nivance that they had no right, “The committee, upon the evidence aforesaid, and also the house upon the report thereof, did forbear to give any opinion of the point of fact, whether the said borough were a corporation by prescription before the said letters patent of the 1st of Queen Mary, yea or no, as holding it not absolutely material to the matter in question, for that clearly a borough may, by custom, have lawful right and privilege to send burgesses to the parliament, though it be no corporation; or, if it could not, yet, rather than the right of such boroughs, wherein the commonwealth hath interest, should be void or destroyed for the want of being corporate, they should and ought to be taken for lawful cor. porations by the name of burgesses or inhabitants, or by some other sufficient name, to this particular purpose ; though, to other purposes of taking and making grants of land or goods or the like, they are no corporation. Resolved, that the said charter of Queen Mary did not, nor could alter the form of the right of election for burgesses to the parliament within the said borough from the course there before, time out of mind, held, so as if before this said charter all the burgesses and inhabitants called freemen, * or any other larger number
• Here this committee seemed to have assumed, that freemen was the proper name for the burgesses and inhabitants.
of qualified persons, bad always used, and ought of right to make the election; then the charter, although it may incorpo. rate this town, which was not iócorporate before, or may alter the name or form of the corporation there in matters concerning only themselves and their own government, rights, and privi. leges, yet it cannot alter and abridge the general fredom and form of elections for burgesses to the purliament, wherein, as aforesaid, the commonwealth is interested; for then, by the like reason, that it might be brought from the whole commonally, or from all the burgesses of a town to a bailiff and twelve ; so might it be brought to a bailiff and one or trco burgesses, or to the bailiff alone, which is against the general liberty of the realm, that faroureth all means tending to make the election of burgesses to be with the most indifferency; which by common presumption is, when the same is made by the greatest number of voices that reasonably might be had, whereby there will be less danger of packing or indirect proceedings. And howsoever the said letters patent, touching some other points, may have made an alteration in the said borough, yet, touching the matter of election of burgesses to the parliament, the form remaineth, and the same course is to be held as was of right before the letters patent. It was conceived by the committee, and so reported to the house, and there resolved, that more than the bailiff and twelve corporate burgesses ought to have voices in the election of burgesses to the parliament for Chippenham ; for such argu. ments as may be made to conceive the right of election, or who ought to be electors, out of the forms or words of indentures, ought not to be regarded, where the usage and custom of the elections had not concurred with the forms of such indentures, for the reasons delivered in the case of Blechingly, and more strongly in this case. For in that case the arguments out of the words, et alii homines, tending to give a greater number of burgesses or inhabitants interest in the election, which liberty the law favoureth, were not regarded, but rejected in a case where, by constant custom and 'usage, the election stood restrained to a limited and qualified number."