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Though burgage tenure is socage tenure, yet as lands were holden both in free and villein socage, it is not inconsistent with the nature of burgage lands to be holden by copy of court roll.
The right of voting in Westbury was determined to be in every tenant of any burgage tenement in fee, for life or 99 years determinable on lives, or by copy of court roll, paying a burgage rent of 4d. or 2d. yearly, being resident within the borough and not receiving alms. (4)
The interest which the tenant is required to have in his burgage varies according to the usages of different boroughs. In some he must be seised in fee. (6) But in general the right of voting is in those who have a freehold interest, as Clitheroe, Old Sarum, and others. But it may be extended to burgage tenants holding only for terms of years, as in Westbury, 1702, 1715, and in Weobly, 1736, Bramber, 1703, and Great Bodmin, 1707-29. The inhabitants of burgage tenements were in some instances admitted, in others decided, to have the same privilege. (C) | In many cases this right has been claimed to be in burgage tenants generally, and their respective interests not specified in the journals. (d) The statute 7 8 W. c. 25, s.7, is most general in its expression, " That no person shall be “ allowed to have any vote in election of members to serve “ in parliament for or by reason of any trust, estate, or
mortgage, unless such trustee or mortgagee be in actual
possession or receipt of the rents and profits.” And there seems no reason why boroughs of this script should be excluded from its operation. In the Horsham case, 1715, it was taken for granted to be applicable to burgage te. nure. (e) But in Downton, 1784, where the vote of one claiming under a conveyauce from the trustee was objected to as within the statute, his vote was allowed.
It seldom happens that the voter is in the actual possession of the tenement either by occupation or receipt of
® 2 Hey. 285.-18 Jour. 154. (6) 2 Hey. 292. Richmond, 17 Jour. 482.
(°) 2 Hey. 297.
[(d) 2 Hey. 297.
Ibid- 309. 1 Lud. 147 See also 3 Lud. 205.
rent, yet he must be legally possessed, and prepared to de. Burgage
Tenants. duce a title with as much regularity as upon the trial of an ejectment. Though possession of the land is primâ facie evidence of a right to the fee simple, it was objected in several instances that possession alone of a burgage tenement without a title was not sufficient to support a vote. But an adverse possession for 20 years has been holden a sufficient title to establish a voter's right. (a)
As there is no time limited by statute, for which burgage tenants must have been in possession, it depends upon the statute of William, and the rules of the common law, whether occasional conveyances 'of this species of property confer the right of voting. The statute enacts—"That all
conveyances of any messuages, &c. in order to multiply
voices, or to split and divide the interest in any houses or “ lands amongst several persons to enable them to vote at “ elections of members to serve in parliament, are hereby “ declared to be void and of none effect, and that no more “ than one single vote shall be admitted to one and the same house or tenement.” (6)
The operation of this statute is so dependant upon evidence of the intention of parties in the transfer of property, that a case must be very pregnant of fraud to fall within its application. The question has been fully discussed upon almost every petition against a return for a burgage tenure borough, and though there has been no express resolution upon the point, it seems to be considered that occasional conveyances in such boroughs are not illegal.(-) Mr. Serjeant Heywood, though he appears to think this notion inconsistent with the law, says, “ It has been decided “ that by the law of parliament (which is part of the com
mon law), conveyances of burgage tenements made under “ the most pregnant circumstances of legal fraud for the
purposes of an Election were good and valid.” (d) But I do not find any case where it has been expressly so decided.
Downton, 1 Lud. 199. 2.Hey. 307.
(0)78 W.3, c. 25, s. 1.
() 1 Doug. 209. 1 Peck, 313, 362, 340, 345.
(d) 2 Hey. 332.
In the case of Onslow v. Rapley, which was an action against the returning officer of Haslemere, then considered to be a burgage tenure borough, for a false return, such conveyances were severely censured by Sir Francis Pemberton, C. J., as illegal and unconstitutional. (a) And the Horsham Committee, in 1792, upon rejecting evidence of local usage in Horsham, of dividing ancient burgages, took occasion to declare, “ that they meant to leave it open to “ the sitting member's counsel to shew, if they pleased, the “ occasionality of particular votes, for that they were not “of opinion with the counsel for the petitioners, that be
cause ancient burgages could not be split, the convey
ance of them could not be occasional, but that if that " question was meant to be agitated, the discussion ought “ to be brought on as soon as possible.” (6)
Indeed it is difficult to understand why the bonâ fide purchase of a 40s. freehold a short time before an Election, for the avowed purpose of enjoying the elective franchise in a county, should, as to that object, be deemed fraudulent, and rendered ineffectual ; whilst at the same time pretended conveyances of burgage houses, by which no property is ever intended to pass, but the voters are made the mere instruments of other persons, should confer the right of election for boroughs of that description. Perhaps one might have supposed this doctrine to have arisen from a false view of the above-mentioned clause in the 7 8 of W.3, s. 25, as applicable to a prevailing principle of burgage tenure ; that inasmuch as burgage tenements, in order to give the franchise, must have been undivided since the time of legal memory, therefore the prohibition to split and divide interests in houses, &c. could have no operation upon such boroughs; were not the inference so imperfect, that because a tenement must have been immemorially undivided, therefore it may not be colourably “conveyed, in order to multi“ ply voices,” both within the meaning of the statute and at common law.
Of Persons who possess the Right of Voling in respect of
Corporations aggregate are generally composed of mem
(6) 2 Fras. 52.
©2 Hey. 339,-Somer's Tracts, 1 vol. 374.
bers of distinct ranks, (a) the common freemen forming the Corporations. great mass of the corporation, from which one or more select bodies are chosen, according to the charters, or in prescriptive corporations, the usage. And the right of electing members of Parliament, exists either in the whole body, or a select part, according to the constitution of the corporation.
In some corporate towns the members of the corporation require a superadded qualification to entitle them to vote, as for example in Boston, where the right of election is in the mayor, aldermen, common council, and freemen, resi. dent in the borough, paying scot and lot, such freemen claiming their freedom by birth or servitude.(b) In others the freeholders,(C) or inhabitant householders participate.(d) The freemen of a corporation cannot exercise the elec. Admission, tive franchise unless regularly admitted and enrolled in the corporation books,(C) and the entry of admission stamped,(6) except where, by custom, an admission in form is unnecessary,() in which case the Committee did not require evi. dence of the admissions enrolled on stamps.
A stamped admission, though not on the corporation books, may be received in evidence.
In the borough of Evesham, it appeared to have been the custom, for the town clerk to keep the stamped adınissions together in a roll, instead of putting them in the book of the corporation. On this roll the admission of the voter was entered, on a proper stamp, corresponding with the entry of the voter's admission in the corporation books. It was resolved" That the admission of the voter appeared to have “ been entered on stamped paper, according to the pro" visions of the Act of Parliament.”(h) So where stamped admissions, kept on a file, had been afterwards sewn together in one roll, they were received as within the provisions of the Stamp Act.(i)
Proof of admission, with the service of a corporate office, is evidence of admission under a stamp. Where it appeared the voter had been admitted, but no stamped entry of admission was produced, his service of the
(a) There may be corporations where the members are all of equal authority, 1 Black. Comm. 478.
(b) Carew. 68.
(e) Worcester, 3 Doug. 248.
Corporations. several offices of mayor, alderman, and sheriff, was holden
sufficient evidence of the stamping.(a)
So service of the office, either of mayor, alderman, sheriff, or common councilman, was received as evidence of having been sworn in.(b) And where several persons had been sworn in six years before the day on which they polled, the Committee resolved, that they could not receive evidence to impeach their corporate rights.(C)
By the Durham Act,(d) the admission must have been a year before the Election, except in respect to persons entitled to their freedom by birth, marriage, or servitude ; but the entry upon stamp will be sufficient at any subse. quent period, even during the poll, if prior to the voting,(e) but not after.(S)
Persons within the exceptions in the Durham Act are qualified, though admitted after the teste and issuing of the writ of Election,(8) except in Coventry.(h) And where it appeared that many persons were admitted to their freedom immediately previous to, and during the Election, whose admissions were paid for by an agent of the sitting member, the sitting member was, nevertheless, declared duly elected.(i)
Persons within the exceptions in the Durham Act hav. ing been refused their admission, or having delayed their demand for admission, till it was too late to enforce it by application for a mandamus, should nevertheless, tender their vote at the Election, and proceed to obtain their admissions afterwards, as the Committee upon proof of such facts, will allow the vote.(k) By 12 G. 3, c. 21. persons who have been improperly refused their admission shall, upon its being enforced by mandamus, receive all the costs of the proceedings from the mayor, or other officer, who so misconducted bimself.
Of Persons who possess the Right of Voting in respect of
The right of election arising from inhabitancy is modi.
(a) Drogheda, Corb. Dan. 109.
(g) Bristol, 1 Doug. 245, 288, note c.
(k) Okehampton, 1 Fras. 166. Shrews-