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been redeemed, &c. shall be entitled to vote, “ without Land Tax.
being compelled to shew that such messuages, &c. have “ been assessed to the land tax, upon proving to the satis« faction of the returning officer on oath, or otherwise, that “ such land tax hath at any time previously to such Elec" tion been redeemed or purchased, and the said messuages, 6 &c. become exonerated therefrom.”
Where, upon the contract of redemption being produced, the name of the purchaser appeared to be different from that of the voter on the poll, the Committee required proof of the title of the voter to the freebold ; but it was held that a variance of the tenant on the poll, and the occupier described on the contract was immaterial, provided the identity of the premises was sufficiently proved.(a)
Of the Elective Franchise for Cities, Towns, Boroughs, &c.
The right of voting for the different cities, towns, and boroughs, depends upon the following different qualifications; but in some the franchise is enjoyed by virtue of some one of these different qualifications, in others it requires a combination of several, in order to confer the right.
I. Of persons who possess the right in respect of property :
4. Burgage tenants.
JII. Of persons who possess the right in respect of inhabitancy :
1. Inhabitants paying scot and lot.
2. Inhabitants, householders, housekeepers, potwallers, legally settled.
3. Inhabitants, householders, resiant.
2 Peck, 86.
Of Persons who possess the Right of Voting in respect of
Property, for Cities, Towns, Boroughs, gc,
In many cities and towns which are counties of them. selves, the right of election depending upon usage, is in the freeholders of 40s. a-year, which probably originated in a mistaken application of the statute, 8 Hen. 6, c 7. (a)
This right is recognised by the legislature in stat. 19, G. 2, c. 28, by which, together with the 3 G. 3, c. 24, the right of voting for cities and towns of this description is put, within the same restrictions with the right of voting for counties ; except as to the assessment of the land and the registration of fee farm rents. For the stat. 20 G. 3, c. 17, which limits the assessment of the freehold from twelve to six months, and requires fee farm rents as well as annuities to be registered, extends only to counties at large.
Where the right of voting in a borough is attached to a freehold without reference to its annual value, the right is only controlled by the splitting act, (b) and the principle of the common law against occasionality, as a species of fraud. There are several cases of occasionality in the reports upon elections for boroughs, in which this right ex. ists ; but as every case (where this otherwise indefinite offence is not strictly defined by the islature), must turn upon its own circumstances, they are merely referred to in the note. (“) In Wareham, however, the freeholders are put in the same situation with respect to a year's possession, as electors for counties. (d)
2. Of Leaseholders.
Leaseholders in several boroughs enjoy the elective franchise. In Cricklade leaseholders for terms of years (not less than three years) possess it; in all other boroughs where the right is attached to this tenure, the lease is deter
() See 2 Hey. 184.
(d) 1747. Resolution of Committee adopted by the House, 2 Hey, 406.
minable on a life or lives, and thence it has been inferred Leaseholders. that the right was anciently confined to lessees having freehold interests in their tenements.(a)
Cricklade is the only borough where common copyholders Copyholders. enjoy the franchise; and occupation of the house for which the voter claims it, is required 40 days before the Election.(6) Mr. Serjeant Heywood says, if their right was originally not connected with burgage tenure, he cannot look upon their interference at Elections in any other light than as an usurpation upon the rights of others, sanctioned by long enjoyment.
4. Burgage Tenants.
Littleton defines burgage as follows: “ Where an Burgage "ancient borough is, of which the king is Lord, and they " that have tenements within the borough, hold of the king " their tenements, that every tenant for his tenement
ought to pay to the king certain rent by year, &c. and "such tenure is but tenure in socage.”
66 And the same manner is where another lord spiritual or temporal is “ lord of such borough.” Sect. 162.
According to the above definition, if the tenement were divided into several parts, each part would be a burgage tenement, to which it might be presumed the right of voting was attached, for the statute of quia emptores, which, providing for the sale of lands or tenements, enacts, that the feoffee shall hold immediately of the lord of the fee, by the same services as the feoffor formerly held, extends to this tenure.(c) But, according to the decisions of Committees, after such a division, the right of voting before annexed to the soil of the whole tenement, does not follow each of the separate parts, but is destroyed, or rather sus. pended,(d) to revive again, if all the parts are reunited in the hands of one tenant.(e) A burgage tenement, therefore, to give a right of voting, must be entire and undivided, as it existed before the time of legal memory.(S)
(a) 2 Hey. 412.
(d) 2 Fras. 115, 2 Hey. 289 90.
? In the Horsham case, the Committee resolved, “That the Tenants.
“ counsel for the sitting members be not permitted to offer “ evidence of any local usage in the borough, of splitting « and dividing ancient burgages.” In most of the burgage tenure boroughs, there are bargages denominated half burgages, quarter burgages, &c. accordingly as the rent varies from the full rent of a whole burgage. Thus in Downton, where the rent of a whole burgage is ls. there are also burgages whose rents bear the proportion of one-half, one quarter, one-third, five-twelfths, and other various proportions to a whole burgage rent. Now as the right of voting is holden to be annexed to each of these, it is necessary, in order to bring them within the above rule, to suppose that they were either split before the time of legal memory, or so granted out originally by their lords,(a) and in conformity with the last supposition, the terms half and quarter burgage in those boroughs, have been considered to imply not division, but comparison ; not to be so called because they are such aliquot parts of an entire burgage, but because they are smaller burgages, bearing the proportion to the largest, of two or four to one.(6)
By modern decisions it is required that the tenement should be not only entire and undivided, but that it should be subject to the payment of a rent certain to the lord, distinctly reserved. The payment of rent, however, and its distinct reservation, seem rather to be modes of proof resorted to for the purpose of establishing the entirety of the burgage than essential qualities; since many instances may be produced from doomsday-book, in which the tenure has existed without the reservation of any rent at all. Besides, which the distinct reservation of rent for a tenement is the same as the reservation of rent for a distinct tenement, and the tenements must be distinguished from each other before the entirety of each can be shewn. Moreover in the case of Ashburton, it appears that separate votes were allowed to the tenants of certain lands holden of that borough, although a general rent was paid for those lands which was afterwards apportioned by the particular tenants among themselves. (C)
So that although a distinct rent immemorially reserved,
is strong evidence of the identity and entirety of a burgage, Beranes
. it can scarcely be considered an essential incident.
The five following propositions as to the nature of this tenure were stated by the counsel in the Downton case. (a)
1. In a proper burgage tenure borough the right to vote is incident to the freehold interest of every burgage.
2. Such right may be suspended, but cannot be extinguished.
3. Every ancient tenement situate within such borough, and held by socage tenure, is a burgage. 4. The characteristics of a burgage are,
that the tenant is liable to pay to the lord of the borough a rent certain, a relief upon descent, and a fine upon alienation.
5. The question whether a tenement is or is not a bura gage tenement, being a question of prescription, the affirmative may be established by any of the modes of proof by which other prescriptions or customs are proved.
And in the Horsham case (b) it was also stated by counsel that the following points of inquiry have been generally made in questions of burgage tenure.
1. The name of the burgage, which if found in all the deeds to be the same, would afford a presumption in favour of the identity of the burgage.
2. The contents, which are extremely necessary to be considered in this tenure ; because if any part of an aggre. gate specification were afterwards omitted, that omission, if no satisfactory account were given of it, would undoubts edly destroy the vote.
3. The boundaries, which if all along described in the same manner, will create a strong presumption in favour of the contents.
4. The rent, for though rents may be released or abandoned by the lord, where that is not the case, if the rent is lessened, and the contents are not proved to be the same, the presumption is that the burgage is not entire.
5. The situation of the streets.
Tenements locally situated within a borough, but belonging to another district, rendering feudal services and profits to distant lords, do not privilege their holders to vote with the other burgesses. (C)
3 Lud. 210. ( 2 Fra, 56.
() 2 Fras. 110, 111.