the legislature, in several instances, has considered 282. " burgesses" and " inhabitants" as synonimous. Thus, in In Statutes. the statute of 34 and 35 of H. 8. reciting, that the" inhabitants" of the different boroughs contributed to wages, therefore that the "burgesses" thereof should send members to parliament; and the statute of Ja. 1. in privileging Vid. 3 Lud. the universities to send members to parliament, enables the "burgesses" thereof, &c. And it is plain, in these instances, that the word must apply to "inhabitants" in general, subject always to the exceptions of sex, infancy, &c. which, in all cases, must be tacitly implied. Ca. 8 Jour. Alboro. 42. Whitl. In ancient charters also, granted either by the crown Charters, 2 Dougl. or other lord, as in the case of Poole, Alnwick in Nor- 234. thumberland, Bridgnorth, and a variety of other places, 1 Fra. 60. the term burgesses is general, and means "inhabitants," arg. and the privileges granted to "burgesses" of herbage, common, &c. is used in many places by the inhabitants at large. And by the decisions on such rights of election, Decisions. as have depended upon the construction of the word Abingdon " burgesses," except in particular cases, where the mean- p. 42. ing of it is restrained by local usage, or the context of a York, Ca. last determination, it is now settled to mean "inhabit- 8 Jour. p. ants." Dr. Brady considers this construction as grounded Com. v. 1. on a mistake, always referring it to a corporate mean- P. 500. v. 2. ing, and as descriptive only of the governing part of also 2 Doug. boroughs. And even the word "commonalty" he consi- 233, ders in its original meaning as descriptive of corporate persons only. Grounding himself upon the word "communitas," which he says meant a corporation, and was always so used in the charters which principally in the 12th century were granted to the boroughs and cities. And he even goes so far as to assert that Selden, Sir R. Cotton, and Sir E. Coke, were mistaken in the meaning Some boroughs are incorporate, some not incorporate. Co. Lit. 108. b. Hob. 15. Though by L. Coke, boroughs cannot take privileges unless they are incorporate. 12 Co. 121. Brady 1. passim. p. 95, vid. of the word " communitas," and that from that mistake in a great measure, the decisions extending the right of election, to any other than corporators have arisen. Be that as it may, we have no reason to regret it at this day, nor is there any fear lest the right of election should be narrowed again or in doubtful cases be restricted, by so tight an interpretation of that word. The committees have acknowledged it as a maxim, in the administration of this branch of justice, to enlarge the right as far as seems consistent with public peace and an independent exercise of the franchise that is to householders paying rates. In some cases, partly by the usage of particular places, partly by positive resolutions of the House of Commons, it has Dougl. 3. v. been modified or restrained by some qualification annexed Seaford Ca. to it; sometimes to mean inhabitants "householders;" sometimes inhabitants "paying scot and lot ;" the meaning of which last expression being very vague, and but little known, has been construed, " paying to the parochial taxes" under the stat. of 43 Eliz. In other instances, the word has been left at large, and has been construed to mean "commonalty;" so that as the commonalty of the NoteB 293. counties chose the knights of the shire, so the commonalty of the cities, boroughs, and cinque ports, chose their citizens, burgesses, and barons, to represent them in Parliament. In some cases, burgesses are a description Doug. of corporators, and extend to non-resident persons as 171. Rad- well as inhabitants, as will be shewn more at large in a Dougl. 317. subsequent chapter. 4 v. Peter boro. Ca. Note B. 3 v. Dorches ter Ca. 3. Lud. 125. note G.j Poole Ca. 2 Dougl. 258, 275. with the cases collected. Corporations. Cardigan nor Ca. 1 See argu 191. Pom Lit. 162-3. Ld. Raym. 951. In the particular instances, where burgesses mean ment, 1 Fra. burgage tenants, the right of voting having been confret. Ca. tinually confined to the inhabitants of those houses which were existing when the privilege commenced, and to those built upon the old scites, hath, in length of time, been considered as annexed to the soil. At least this seems much more probable, than that it should have been a territorial right in its commencement; the writ tending strongly to disprove that supposition. The exclusive jurisdiction usually enjoyed by cities and boroughs, which were summoned to send members, gave rise to the sheriff's issuing his precept to the principal magistrate in the borough, for electing citizens and burgesses to represent such places, instead of presiding there himself. The neglect of the sheriff, however, in not duly summoning them having increased, called for the interference of the legislature, and it was therefore provided by the 5 R. 2. c. 4. that in case any sheriff should thence- 5 R. 2. c. 4. forth be negligent in making his return of writs of Parliament, or leave out of the return any city or borough, which of old time used to send members to Parliament, he should be punished in manner as was accustomed in time past. This operated as little more than an admonition to the sheriff for want of an express sanction in case of disobedience, and was therefore followed up at intervals with some trifling penalties in a few feeble statutes, till after the Revolution, when the minute and mechanical part of elections (on the observance of which, much of the spirit and freedom of election depends) was more amply provided for, and rendered the sheriff, what he was originally only meant to be, a mere minister, as to the mode of executing the writ of summons. The statutes are referred to more particularly in the subsequent parts of the treatise to which they belong. 7 H.4.c.15. 23 H.6.c.14 11 H. 4. c.1. 7 & 8 W. 3. c. 7. b. The writ is an original writ, which cannot be enlarged, 4 Inst. 10. restrained, or varied, in any material point, but by Act of Parliament.* Lord Coke, in his 2d Inst. calls it a writ in 2 Inst. 40. the nature of a commission; by which one should be led Co. Litt.73. to imagine, that it is distinguishable in some quality from an original writ. And doubts have been entertained, probably from this expression of Lord Coke, and from this writ not being inserted in the register of writs, whether such is an original writ or not. But if it be a writ, it must be an original writ, as issuing out of the king's court 5 R. 2. c. 4. 7 H. 4. c. 15. 23 H. 6. c. 14. C The Dig. lib. 1. c. 1. s. 4 Vin. v. of chancery, and as contradistinguished from judicial writs issuing by way of process; and it clearly is a writ, though in the nature of a commission. In fact, all the king's writs are in the nature of commissions; inasmuch as they are all written precepts or authorities under the 22. p. 543. king's seal, directed to some inferior officer, minister, or subject, to do some act, matter, or thing, specified in such instrument. The only distinction between this writ and other original writs, is, that the latter issue on the complaint and at the request of the subject, in order to institute a suit, whereas the election writ, for the summons of a Parliament, issued formerly ex mero motu of the king, and not on any special application of the subject. And at this day, as far as the choice of the particular time, within the period of three years, is at the king's pleasure, it may be said to issue ex mero motu; but on vacancies, during a Parliament, it issues of necessity upon the suggestion and warrant of the speaker. Lord Coke's expression, therefore, seems to import nothing more than a description equally applicable to all other original writs; or, at most, as descriptive of a distinct species, which is included within the general term of original writs. In 1 Inst. 73. b. speaking of them in his 1st and 4th Institute, he does not add the descriptive words used in his 2d Institute. PART I. 19 PROCEEDINGS PREVIOUS TO ELECTIONS FOR COUNTIES. CHAP. I. SECT. 1. Of the issuing of the Writ. IN order to give a complete view of this subject, it is necessary to investigate the whole of the proceedings, from the warrant for issuing the writ to the return of it into chancery. Sim. p. 140, Vide 1 Bl. Com. 151. 2 & 3 E. 2. The calling of the parliament into actual existence, Of calling a depended originally entirely upon the will of the crown. parliament. The convention parliament, and the parliament at the revolution, were self-erected, the throne being vacant, and arose from necessity, which supersedes all law. The parliament originally was summoned pro re natâ, merely for a particular purpose, generally that of assessing an aid or scutage, and was then immediately dissolved, and summoned no more till the necessities or the humour of the crown again impelled or induced it to exert its prerogative. But as there were privileges as well as burdens annexed to this attendance, and amongst Pryn. Par. others, none so valuable as that of laying the grievances Red. 2d pt. of the people before the throne, and seeking redress for them, it soon became an object of importance to the people to secure a periodical convention, in which their representatives might exert that privilege. This, therefore, occasioned a very early statute, by which the crown was bound to call a parliament once at least in every year; and this having been attended to with less punctuality than was consistent with the general liberty, occasioned a second statute to the same effect, in the same reign. These statutes did not, as is commonly supposed, limit the duration of the parliament to one year, but only regu p. 68. Sim. p. 141. 4E.3.c. 14. Annual parliaments. See debates by Debrett 1745. vol. 1. seq. 475. |