1

urgent affairs concerning us, the state and defence of our king-
dom of Great Britain and the church, we have ordered a certain
parliament to be holden at our city of Westminster, on the twenty-
ninth day of November next ensuing, and there to treat and have
conference with the prelates, great men, and peers of our realm,
We command and strictly enjoin you, that proclamation being
made of the day and place aforesaid, in your next county court
to be holden after the receipt of this our writ, two knights of the
most fit and discreet of the said county, girt with swords, and of
the university of Oxford two burgesses, and of every city of that
county two citizens, and of every borough in the same county two
burgesses of the most efficient and discreet, freely and indifferently
by those who at such proclamation shall be present according to the
form of the statues in that case made and provided, you cause to be
elected; and the names of those knights, citizens, and burgesses, so
to be elected (whether they be present or absent) you cause to
be inserted in certain indentures to be thereupon made between
you and those who shall be present at such election, and then at the
day and place aforesaid you cause to come in such manner that
the said knights, for themselves and the commonalty of the same
county, and the said citizens and burgesses for themselves and the
commonalty of the said universities, cities, and boroughs respectively,
may have from them full and sufficient power to do and consent to
those things which then and there by the common council of our
said kingdom, (by the blessing of God,) shall happen to be ordained
upon the aforesaid affairs, so that for want of such power, or
through an improvident election of the knights, citizens, or bur-
gesses, the aforesaid affairs may in nowise remain unfinished;
willing, nevertheless, that neither you nor any other sheriff of this our
said kingdom be in anywise elected; 2 and that the election in your
full county so made distinctly and openly, under your seal and the
seals of those who shall be present at such election, you do certify
to us in our chancery, at the day and place aforesaid without
delay, remitting to us one part of the aforesaid indentures annexed
to these presents, together with this writ. Witness ourself at
Westminster, the first day of October, in the fourteenth year of our
reign.
To be indorsed when returned.

The execution of this writ appears in certain schedules hereunto
annexed.
A. B. Sheriff.

[By the statute VII. H. 4, c. 15, in the writs of the Parliament
to be made hereafter, this clause shall be put, "Et electionen tuan

1 The writs to the sheriff are all in the same
form, except that in this and in that to the
sheriff of Cambridgeshire there is a clause for
the election of members for the respective

universities. Dougl. Hist. Controv. Elect. 450.
This also corresponds with the Latin form. 1
Eliz. set forth in D'Ewes, 37.

2 See Doug. Hist. Controv. Elect. 450.

in plene comitatu tuo factam distincti, et aperté sub sigillo tuo, et
sigillis eorum que electioni illi inter fuerint nobis in cancellaria
nostra ad diem et locum in brevi contentos certifias in dilate."]

III.

ON THE LIABILITY OF RETURNING OFFICERS.

The great constitutional principle stated in the text was first
established in England, at the commencement of the last century,
in the case of Ashby v. White, reported in 2 Lord Raymond, 938;
6 Modern Rep. 45; and Brown's Parliament Cases, 49; and was
afterwards recognized and confirmed in Harman v. Tappenden,
1 East, 555, in Drewry v. Coulton, 1 East, 563, (note,) and in other
cases. The case of Ashby v. White is a leading case in English
jurisprudence, which is generally referred to, not only for the par-
ticular point decided, but as authority for the great principle, that
wherever the common law gives a right, it gives at the same time
a remedy by action. The case is also interesting on account of the
important constitutional principle involved in the question which
it decides, and the extraordinary proceedings to which it subse-
quently gave rise between the two houses of parliament, involving
questions of still greater extent and importance. The case is
further remarkable, from the fact, that it was at first decided against
the plaintiff by these judges against the chief justice, Sir John
Holt, whose opinion was finally sustained, and the judgment of his
brethren reversed, by the house of lords, on a writ of error. This
case undoubtedly establishes the law in this country, as well as in
England, and has been recognized as authority, by cases in Massa-
chusetts, (Kilham v. Ward, 2 Mass. Rep. 236; Lincoln v. Hap-
good, 11 Mass. 350; Capen v. Foster, 12 Pickering, Rep. 485); by
cases in New Hampshire, (Wheeler v. Patterson, 1 N. H. Rep. 88);
in Connecticut, (Swift v. Chamberlain, 3 Conn. Rep. 537); and by
cases in New York, (Jenkins and others v. Waldron, 11 John. Rep.
115); and probably by cases in other States. The decisions in the
first-named State extend the principle of the liability much beyond
the case of Ashby v. White, and allow the action to be maintained,
even where there is no ground for imputing any wilful, intentional,
or corrupt conduct to the officers managing the election; but in
this respect, the jurisprudence of Massachusetts has not been fol-
lowed or sustained by the courts in New Hampshire, or New York.
In the case of Wheeler v. Patterson, (1 N. H. Rep. 88,) chief
justice Richardson in giving the opinion of the court, reviews, and
completely refutes the reasoning of the supreme court of Massa-
chusetts, in the care of Lincoln v. Hapgood, (11 Mass. Rep. 350,)
in which it was held, that wilful or corrupt misconduct was not

necessary to support the action. The doctrine of the latter case
was however reaffirmed in the later case of Capen v. Foster, (12
Pick. Rep. 485,) in a very able opinion. pronounced by the present
chief justice, not on the ground apparently of reason or principle,
but on that of authority merely. Indeed, unless the question is
considered as no longer an open one, it seems to be entirely impos-
sible to sustain the Massachusetts decisions, but upon the anoma-
lous and extraordinary ground, that a municipal officer, acting in a
judicial capacity at an election, is responsible in damages for an
error of judgment; a principle which has never at any time or in
any country been applied to other officers of a judicial or quasi
judicial character.

IV.

ORIGIN OF THE MAJORITY PRINCIPLE.

The charter of the colony of the Massachusetts Bay being that
of a trading company, and not municipal in its character, the offi-
cers of the colony were originally chosen at general meetings of
the whole body of freemen; precisely as at the present day, the
directors of a business corporation, a bank, for example, are chosen
by the stockholders at a general meeting. In the choice of assist-
ants, who were to be eighteen in number, at these meetings of the
company, or, as they were called, courts of election, the practice
seems to have been for the names of the candidates to be regularly
moved and seconded, and put to the question, one by one, in the
same manner with all other motions. This was then, as it is now,
the mode of proceeding in England, in the election of the speaker
of the house of commons, and in the appointment of committees
of the house, when they are not chosen by ballot. Probably, also,
it was the usual mode of proceeding in electing the officers of a
private corporation or company. In voting upon the names thus
proposed, it was ordered, with a view, doubtless, to secure the
independence and impartiality of the electors, that the freemen,
instead of giving an affirmative or negative voice in the usual
open and visible manner, should give their suffrages by ballot, and
for that purpose should " use Indian corn and beans, the Indian
corn to manifest election, the beans contrary." The names of the
candidates being thus moved, and voted upon, each by itself, it fol-
lowed, of course, that no person could be elected but by an abso-
lute majority.

In a very few years, however, from the first settlement of the
country, the number of the freemen had so much increased, and
they had so widely distributed themselves over the territory of the
colony, that it had become inconvenient to a great many of them
to attend the meetings of the company, on account of their dis-

tance from the place of meeting. In order to obviate this inconvenience, a mode of proceeding was, at length, established, which enabled those of the freemen who did not wish, or found it impracticable, to attend the meetings, to participate both in the nomination, and in the election of the assistants, as they had done before.

Previous to the annual meeting for election held in Boston, meetings were held in the several towns, at which the freemen put in their votes in distinct papers, or, as we now call them, ballots, for such persons not exceeding twenty in number, being freemen and resident, whom they desired to have chosen for magistrates or assistants, at the next election. These votes being sent to Boston, a convenient time before the election, and there examined by the proper authorities, the names of those twenty-six persons who had the most votes were ascertained, and they were declared to be "the men and they only," to be put to vote at the election. These names, together with the number of votes given for each, were then communicated to the freemen of the several towns, as the persons nominated for election as magistrates or assistants.

The freemen were again called together in their several towns, a short time before the holding of the court of election, and such of them as pleased were allowed to put in their proxies of election, for the officers then to be elected, including twenty assistants to be chosen by Indian corn out of the twenty-six persons in nomination. These proxies were sealed up, with the name of the person voting, written on the paper, and transmitted to Boston, on the day of election; when and where all the freemen of the colony, who had not voted by proxy, were required to appear, and bring in their votes. The votes thus sent by proxy, as well as those brought in by the freemen, in person, were all counted together, and the result of the election determined accordingly. Those eighteen of the twenty-six nominated, who had the most votes, were declared the assistants.

By this mode of proceeding, it will be perceived, that all the freemen of the colony were enabled to participate in the nomination of the candidates, and those who chose to do so in the election, for assistants, without being obliged to attend the court of election, in person; and that the assistants were elected substantially in the same manner as before, namely, by a nomination at large, and an affirmative or negative put upon each name. The principle of the absolute majority, as distinguished from that of the plurality, seems thus to have had its origin and become established in our municipal elections.

84

V.

RETURN OF A WRIT OF ELECTION.

Indenture of Return for a County.

in the

day of

This indenture, made in the full county of York, holden at the
Castle of York, in and for the said county, on Wednesday
day of
year of the reign of our Sovereign Lord
George the Third, etc.; and in the year of our Lord
between
A. B. Esq., sheriff of the said county of the one part; and C. D. E.
F. etc., and many other persons of the county aforesaid and electors
of knights to Parliament for the said county of the other part;
witnesseth, that proclamation being made by the said sheriff, by
virtue of and according to a writ of our sovereign lord the king
directed to the said sheriff and hereunto annexed, for the electing
of two knights, of the most fit and discreet of the said county, girt
with swords, to serve in a certain Parliament to be holden at the
city of Westminster, on the
next ensuing.
The said parties to these presents, together with the major part
of the electors for the county aforesaid, present, in the full county
of York at the castle of York aforesaid, on the day of the date
hereof, by virtue of the said writ, and according to the force and
effect of the statutes in that case made and provided, have, in the
said full county of York by and with our assent and consent, freely
and indifferently elected and chosen two knights the most fit and
discreet of the said county girt with swords, to wit, Sir G. S.,
baronet, and H. D. of etc. Esq., to be knights to the said parliament,
so to be holden at the day and place in that behalf hereinbefore
mentioned for the commonalty of the county of York; giving and
granting to the aforesaid knights full and sufficient power for them-
selves and the commonalty of the same county to do and consent
to those things which, in the said parliament, by the common
council of the kingdom of our said lord the king, by the blessing of
God, shall happen to be ordained upon the affairs in the said writ
specified. In witness whereof, the parties to these presents have
interchangeably put their hands and seals, the day, year, and place
first above written.

A. B.,
C. D.,
E. F., etc.