D'Ewes, 625.

I Journ. 880.

In the end, it is referred to a felect committee; and as nothing appears upon the Journals refpecting it, the bill was of course loft.

A confiderable progress, however, began now to be made, in evading and difregarding the reftriction, though the attempt made to annul it altogether had been premature. In the 43d of Eliz., in a debate refpecting the eligibility of theriffs, Sir Edw. Hobbie fays, in ftrictness few knights are lawfully chosen; for the words of the writ are, that he must be commorant within the county; which but few are,

It was common, both in this and the fucceeding reigns, for gentlemen to be made burgeffes, or honorary members of the places they wished to reprefent; in order to bring themselves at leaft within the letter of the ftatute and the writ. Vide Whitlock, vol. 1. p. 496. 500. In 1604, the burgeffes of Dorchester introduce a petition to the House, praying that one of their members may be excused, in the following manner: "We the faid burgeffes doe hereby fignify unto you, that (upon ftrictnes of the late proclamation, as wee tooke it, for the electinge of reciant burgeffes) we made choice of M. C. and J. S. of our said towne, to bee burgeffes of this parliament. June 24, 1604." 2 Will. Not. Parl. 415. Carew, 213. And in all the charters, conferring the right of fending members, the reftrictive claufe was ftill preferved. Aylesbury, Willis, Not. 108. 1 Mar. Viros dicti burgi Buckingham'. Abingdon, Higham Ferrers, Banbury; Brady, 46. 49. 50. Bewdly, 3 Jac. 1. Nath's Hift. of Worcestershire, 2 vol. p. 293." have power to choose one difcreet and honeft man, being a burgess of the fame borough." The charters to the univerfity were granted in this reign.

In the more modern charters, Tewksbury, 13 W. 3. Helleston and Saltash, 1774, the power is to elect two difcreet and honeft men. It has been feen, that in the cafe of Leicestershire, 1621, the House of Commons expressly held the reftriction to be in opera tion. This decifion, being in the cafe of a county, shakes the ftatute only. Vide ante, p. 44.

Coventry, 1628, a double return.

By one indenture, Mr. Green and Mr. Purefoy, not inhabitants, or freemen, were returned. Sir Edw. Coke fays, " for the ftatute of H. 5. for burgeffes, refiants, and fo for knights of the shire, though in the negative, yet if they elect one not refident, the election good." Then one of the fheriffs was called in, and kneeling, was charged by the Speaker. He pleadeth ignorante, and that he was misled by the ftatute. H. 5.

The

The cafe of Onflow v. Rapley, 16894, 1 vol. of Ld. Somers' Tracts, 374. (4th edit.) is ftili ftronger and more decifive

It

was an action for a falfe return; and it was refolved by the Court, that little regard was to be had to that ancient flatute, 1 H. 5. forafmuch as the common practice of the kingdom had been ever fince to the contrary! It was the way to fill the Houfe with men below the employment.

In 1690, the corporation of Gloucefter petitioned against one of their members, as not a freeman according to their ancient right and custom; but the petition was never profecuted.

In 1705, the fitting member for Norwich was petitioned against on the fame ground for not being free. In this city there was a by-law impofing a fine of 57. on every freeman who thould vote for one not free. The petitioners infitted, 1. upon this by-law; 2. on lung ufage; 3. on the ftatute 1 H. 5. and the writ The Vide 3 Lud. Houfe determined in favour of the fitting member, and refolved 287., and that the mayor, by publishing the pretended by law, contrary to Magna Charta, in order to terrify the electors from free and im partial voting, was guilty of an illegal and arbitrary proceeding. The restriction was now, therefore, deemed not only inoperative, but unconstitutional.

note F.

tham's report,

The following is a part of the report made by Mr. Hotham, on Mr. Hothe 5th May 1774, from the committee, who were appointed to confider of the laws in being, relative to the election or returns 34 Journ. of members to ferve in parliament:

"Your committee have, in obedience to the orders of the Houfe, taken a review of all the acts of parliament upon the subject referred to them.

"The first, which feemed to require an attentive and particular confideration, was an act paffed in the firft year of King Henry the Fifth, cap. 11. which directs, that the knights of the fhires be refident within the fhire where they fhall be chofen, the day of the date of the writ of the fummons of the parliament; that the choofers of thofe knights be alio refiants within the fame fhires, in manner and form a orefaid; and that the citizens and burgeles be chofen men, citizens and burgeffes, refiant, dwelling, and free, in the fame cities and boroughs.

Your committee obferved upon this law, that it had been held by the moft able and learned authorities to be merely directory; that the Houfe had decided in many ancient cafes, particularly in the cafe of the election for the county of Le cetter, upon the 9th of February 120, that it was not neceffary to be

oblerved;

705.

obferved; and that a conftant ufage had ever fince prevailed against it.

"The act paffed in the 8th of King Henry the Sixth, cap. 7, together with an act paffed in the 10th year of the fame reign, cap. 2., and an act passed in the 23d year of the fame reign, cap. 15. proceeding upon the fame principle with the abovementioned ftatute, fall under the fame observation,"

[Then follow fome remarks upon other fubjects, which will find a place in fome other part of this work.]

"Refolved, That it is the opinion of this committee, that the firft chapter of the ftatutes, made in the first year of the reign of His Majefty King Henry the Fifth; and fo much of the feventh chapter of the ftatutes, made in the 8th year of the reign of King Henry the Sixth; and of the fecond chapter of the ftatutes, made in the 10th year of the said reign; and of the 15th chapter of the statutes, made in the 23d year of the faid reign, as relates to the refidence of perfons to be elected members to ferve in parliament, or of the perfons by whom they are to be chofen, are not in ufe, and ought to be repealed."

Upon this refolution a bill was ordered to be brought in, which paffed into a law, 14 G. 3. c. 58.

CASE IV.

BOROUGH OF GREAT GRIMSBY, IN THE COUNTY OF
LINCOLN.

The Committee was chofen on the 11th of February, and confifted of the following Gentlemen:

HE petition of Mr. Mellifh contained, 1. A complaint Petitions",

THE

of the conduct of the returning officer, the substance

of which appears in the report made by the committee to

the House, on that part of the case.

2. A claim to be returned, instead of Mr. Loft, as having

a majority of legal votes.

3. A charge of bribery, and of treating, against Mr. Loft.

• Thefe were the gentlemen originally employed; but this petition being tried during the time of the circuits, feveral of them were obliged to

abfent themselves, and their places
were fupplied by others.
Votes, p. 18.

That

Order of hearing.

That of Mr. Sewell contained fimilar allegations of bribery and treating committed by Mr. Boucherett, and a fimi

lar claim to the feat.

Upon Mr. Piggot's rifing to open the claim of Mr. Mellifh, a difcuffion took place upon the order in which the feveral parties fhould be heard. For though the House had refolved that each of the petitioners, and each of the fitting members, fhould be confidered as a diftinct party, it be came impoffible, at the trial, to feparate Mr. Mellish from Mr. Boucherett, or Mr. Loft from Mr. Sewell; for all the difputed votes were given jointly, either to the two former or to the two latter. Mr. Mellish therefore, after he had finifhed his cafe, and defended himself against that made out by Col. Loft, would ftill continue liable to be affected by the attack made by Mr. Sewell upon Mr. Boucherett.

The committee determined,

"That the cafes are diftinct, and feparate; and that the counfel for Mr. Mellifh fhall proceed to open his cafe. That the counfel on each petition fhall be heard feparately; but that they all fhould have liberty to examine each witness when produced, fo as to preclude the calling any witness more than once (for the fame purpofe). But that as to hearing counsel, they would confider each petition as a feparate caufe; and that they proceeded on the idea, that the parties had agreed that the evidence in one petition fhould be made use of in evidence in the other, as a record."

In the fequel, this refolution was not adhered to, it being found more convenient to all parties that the whole should be confidered as one caufe. The order obferved was this: Mr. Piggot opened the cafe of Mr. Boucherett and Mr. Mellith; Mr. Serjt. Vaughan fummed up on the fame fide; Mr. Alexander opened for Meffrs. Lort and Sewell; for whom Mr. Plumer fummed up; and Mr. Adam replied on the part of Mr. Boucherett, both for him, and for Mr. Mellifh.

< Vide Ld. Gl. 85 to 87. 3, 277. 3 Lud. 35. and the cafes collected in the Introduction.

Great