such person as has the return of the writ, is mentioned, and the penalties are fixed upon such person only. The letter of the act does not expressly extend to any other returning officer, so that no penal action, upon any of the statutes, 'would lay against any other returning officer for a negligent return; such neglect, however, would be punishable in a criminal prosecution at common law for neglect of duty, if the usual and proper time for electing and making the customary return of two citizens or burgesses were elapsed. In an action upon the case, by the party injured, damages also might be recovered against * Sect. 2. Ante, p. 225. n. return of precept. the sheriff. In such case it would become a question, [239] what were the proper time for the returning officer of a Negligent city or borough to make a return to the precept. This rule must be laid down by analogy to other cases of returns, for it is not ascertained by any statute; the 10 and 11 W. 3, extending only expressly to the return of the writ. Now the usage in making returns of the writ itself, Terms of the spirit of parliamentary institution, and analogy to the wait. statutes relating to the return of the writ itself, each separately shews the rule, and all of them together, force Sim. 176. the mind to an irresistible conclusion, that in cities and boroughs, as well as in counties, the two members ought to be chosen and returned by the time specified in the writ, if possible; and the returning officer would be punishable, upon indictment, for neglect in not making p. 224. a return of two members, unless he could state good reasons to account for the apparent neglect. Though there be no dispute as to the returning officer, double returns often take place where the right of election is uncertain, and the returning officer will not take upon him to decide it; or where an objection is taken against a class of voters who stand in particular circumstances. See the Westminster case, 1784, ante, p. 220, wherein Mr. For recovered 2000 l. against the returning officer, for neglect in delaying the return. Ante, Sect. 2. A double return is frequently made also, where there is 1 Peck. 17. an apparent equality of voices.* Ante, p. 221. 23 H, 6. C. 14. The return must be sealed and indented as in counties. And the said officers (viz. those to whom the execution of the precept doth belong and appertain) shall lawfully return the precepts to the same sheriff, by indentures, between the same sheriffs and them, to be made of the same elections, and of the names of the said citizens and [240] burgesses by them so chosen, and thereupon every sheriff shall make a good and rightful return of every writ and of every return by the mayor and bailiffs, &c. to him made.† 7 & 8 W. 3. e. 25. s. 6. SECT. 3. Making up Poll Books, Copies, &c. THE 10 Ann. c. 23, being made for elections "of knights of shires," does not extend to boroughs or towns, So that sect. 5 of that act, requiring poll books to be delivered to the clerk of the peace, does not affect them, but if the poll be taken in writing, copies of it must be granted by the returning officer, under a penalty of £.500. As to the custody of the poll book and the evidence necessary to prove it. Vid. ante p. 237. In case of equality of voices, the returning officer, if he has once exercised his privilege of voting, has no casting vote, and in such case Mr. Simeon thinks he would do well to make a double return. Ante, p. 173. ↑ See the penalties on returning officers, ante, p. 225, note. ELECTORS IN GENERAL. CHAP. IV. ELECTORS FOR COUNTIES. H. C. 2d ed. p. 52, and White on Elections. HISTORIANS are not agreed as to the origin of par- Electors in liaments. From the most remote period, however, there general. appears to have been some general assembly or parliament in this kingdom, convened occasionally by its monarchs to assist them with its advice, and to make laws for the benefit of the people. During the Saxon æra it was denominated the Wittenagemote, or assembly of wise men, but it has been much disputed, amongst antiquarians, of whom this assembly was composed. Under various names it was continued after the Norman conquest; and about the middle of the reign of H. 3. when the earl of Leicester was at the head of affairs, was first distinguished by the appellation of the parliament. At what precise period this new establishment took place, does not with certainty appear; it seems to be pretty evident, from the charter of king John, granted in 1205, that the representation of the smaller barons had not then been introduced. Neither does any thing in this charter authorize us to believe that any representation of boroughs had at that time taken place. The first summons for calling the representatives for counties and boroughs that is now extant, issued no earlier than the 49th year of H. 3. nor does it even with certainty appear that the boroughs were regularly summoned so early; the first regular summons we meet with directed to the sheriff for Sect. 1. the election of citizens and burgesses, is in the 23d of E. 1. It is equally uncertain when the parliament of England was first separated into two different houses; that separation must, however, have taken place before the year 1376, when we find a speaker of the commons elected by them;* from that period there seems to have existed a regular parliament, consisting of lords and But as it is not our design to enter further into the controversy, the reader is referred to a very learned and able disquisition on this subject, in White's Preliminary View of the Constitution of Parliaments of England and Scotland, before the Union of the two Kingdoms. 7 & 8 W. 3. c. 25. s. 8. General disqualifications. commons. SECT. 1. Who are capable of voting, or not, at Elections for Counties. THE right of voting at elections for members of parliament, constitutes the much admired and envied liberty of an Englishman. Women, † infants, idiots, and madmen *It is remarkable, that this speaker of the commons, whose name was Peter de la Mare, had been imprisoned and detained in custody by king Edward 3, for freedom of speech in attacking the mistress and the ministers of that prince. Hume, 3 vol. p. 3.-Carew, in his preface, page 6, says, "that in the parliament of the 18th and 22d of Edw. 1, the lords and commons met together to hear the cause of calling the parliament, and when that was declared, separated in order to consider and debate apart, of the matters given in charge." But though women cannot vote, there have been elections in which they have interfered, and actually, in person, or by attorney, made, or joiued in making, the return: as at Gatton, March 26, 1628, the return was made by Mrs. Copley, et omnes inhabitantes. 1 Carew, 245. Also in the case of Aylesbury, the return made by Dame Dorothy Packington, extracted by Brady, from the bundle of returns, in the 14th year of queen Elizabeth's reign, preserved in the chapel of the rolls, which is curious and not long, is in the following words: "To all christian people to whom this present writing shall come. I, Dame Dorothy Packington, widow, late wife of Sir John Packington, knt. lord and owner of the town of Aylesbury, sendeth greeting. Know ye, we, the said Dame Dorothy Packington, to heve chosen, named and appointed my trusty and well beloved Thomas Lichfield and George Barden, esqrs. to be my burgesses of my said town of Aylesbury. 4 Inst. 5. Sim. p. 54. et seq. Ante, p. 111. are absolutely disqualified from the exercise of this pri- Sect. 1. vilege. Aliens also can have no vote. Denizens, from the time of denization, and naturalized persons acquire this right, being then king's subjects, and, after their adoption, supposed as much interested in the choice of representatives, by whom their lives and property are to be bound, as the natives themselves. The legislature, soon after the revolution, however, became too jealous to suffer them to retain the capacity of becoming members of parliament; so that though they may choose, they 2G. 2. c. 24, cannot be chosen, representatives of the people. Persons $6.7. convicted of bribery, perjury, or subornation of perjury, p.169. being thereby rendered infamous, are deemed unfit to be trusted with this privilege, and have no votes, however in other respects qualified; and no one who shall refuse to take the oaths of allegiance and supremacy, or abjuration, or, in case he be a quaker,* shall refuse to affirm the same, is capable of voting at any election. Mr. Serjeant Heywood observes, that the quakers were persecuted with greater zeal and virulence than any other sect during the tyrannical reign of Charles 2, and could not vote at county elections. After the revolution, a more liberal and manly spirit prevailed, and the writings of the great Locke dissipated much of that cloud of prejudice and bigotry, which had so long disgraced this country. William the 3d, at that glorious æra, endeavoured to persuade the people, whose liberties he had restored, that to differ in religious opinions And whatsoever the said Thomas and George, burgesses, shall do in the scr. vice of the Queen's highness, in that present parliament to be holden at Westminster, the eighth day of May next ensuing the date hereof; I, the same Dame Dorothy Packington, do ratify and approve to be my own act as fully and wholly as if I might be present there. In witness whereof to these presents I have set my seal, the fourth day of May, in the 14th year of the reign of our sovereign lady Elizabeth, by the grace of God, of England. France, and Ireland, queen, defender of the faith, &c.” • Vid. Heyw. 2d ed. 323 and seq. decisions on the right of quakers to vote. S Ante, 6 An. c. 23. For these onths see the Appendix. s. 13: |