ELECTION OF MEMBER FOR A DISTRICT. 399

shall be the preceding borough; and the other shall not again preside till its turn comes next round.

The obligations on the clerk, and subsequently on the sheriff, as to returning the person who has been elected members, are similar to those of these officers with respect to county elections, and are guarded by the like penalties. The return is in the form of an indenture between the sheriff and the clerk of the election meeting 2.

1 16th Geo. II. c. 11. sect. 30, 31; 25th Geo. III. c. 84. to counties, p. 282. et seq.

2 See form in Appendix, No. XVI.

See supra, as

FROM Some of the earliest authentic evidence which we have connected with the representation of the boroughs, it would appear that they were frequently represented in Parliament by their aldermen or provosts. We know, that, at an early period, it was common to elect persons not merchants or indwellers in the town, as magistrates of the different boroughs,—a practice which gave rise to various acts of the legislature, to counteract it; and hence those chief magistrates who sat in Parliament for the different boroughs may not always have been actually resident and trafficking burgesses. Sometimes, in these early periods, the representatives are designed simply burgesses of the different towns 2; but, in general, they have no designation at all in the rolls of Parliament.

6

By the act 1587, c. 33, it was provided, That there shall 'be na confusion of persones of the three estaites: That is 'to say, na person sall take upon him the function, office, or 'place, of all the three estaites, or of twa of them; bot sall only occupy the place of that selfe estait, quhairin he com

6

1 In the Parliament which assembled at Edinburgh, in the year 1357, to arrange with respect to the ransom of David II., the persons who appeared for the boroughs are designed, Aldermanni, Mercatores, et Bur'geuses.' Rymer's Fœdera, vol. vi. p. 44. From the Records of Parliament, also, which have been published by Mr Thomson, we find the 'al'derman' or 'provost' frequently representing the different towns. See, for instance, vol. ii. p. 93, for the year 1469, and vol. ii. p. 239, for the year 1503.

2 See Mr Thomson's Acts, vol. ii. p. 93, for the year 1469.

monly professis himselfe to live, and quhairof he takis his 'stile.'

Sir George Mackenzie explains the former part of this clause to mean, that the clergy were not to vote both as churchmen and as laymen in respect of their lands; and with respect to the latter portion of it, directing that each should occupy the place of that estate in which he usually lives, he inclines to think that it was designed to keep the barons from being chosen as representatives of boroughs, although they might be provosts or magistrates.

About the same period also, it would appear that the Convention of Boroughs had made various acts, requiring that the borough representatives should be actual trafficking merchants 2. These different provisions had, however, been neglected; for, near a century afterwards, in the year 1674, a letter was addressed by Charles II. to the royal boroughs, requiring them to correct their practice on this subject, and, in the following year, the Convention following up the king's object, again made an enactment to enforce the necessity that the representatives of the boroughs should be actual residenters and trafficking merchants 3.

Subsequently, in the year 1681, a judgment of the Court of Session was pronounced, enforcing the penalty imposed by this act of convention for contravening its terms1; and, in the same year, resolutions were passed in Parliament, applying the rule as to the necessity of residency and actual merchandise, to several particular cases of election 5.

Still, however, it would appear that these regulations were evaded; for, we are informed by Spottiswoode, that, both be

1 Observations, p. 236.

2 See the acts narrated in the Act of Convention, Wight's Appendix, No. 45.

3 Wight's Appendix, No. 45.

• Case of Selkirk, 21st July 1681. Fountainhall.

s Mr Thomson's Acts, vol. viii. p. 237.

с с

fore and after the Union, lawyers and learned gentlemen were chosen to represent boroughs in Parliament'. That author, however, farther observes, that these rules were so far observed in his time, that the member chosen was a burgess of one of the burghs of the district which he represented, although Forbes simply states 2, that the rules were not observed when he wrote.

In the Wigton case, in the year 1775, the committee of the House of Commons resolved, that a gentleman had been duly elected, although it was admitted that he was not, at the time of the election, a burgess of any of the four boroughs of which the district consisted, and although it was strongly argued that that circumstance constituted a disqualification 3. At present, it is quite understood that any person, although not a burgess or residenter, may be chosen to represent a borough, provided he is not personally disqualified in any of the modes which have been already mentioned in relation to the qualification for representing a county. The writ and return, however, still retain the form of denominating the person elected a burgess.

1 Election Law, p. 45, first edition published in 1710.

? Letter on Elections, p. 38. published also in 1710.

AN

HISTORICAL INQUIRY

CONCERNING THE MUNICIPAL CONSTITUTION OF TOWNS AND BOROUGHS.

By the law of Scotland, the election of the representatives of the Royal Burghs in Parliament is vested in the Magistrates and Town Council of the respective burghs, either directly or through the intervention of delegates chosen by these bodies. Hence the primary objects of inquiry with respect to the choice of those representatives, are the nature of the municipal establishments of the towns of Scotland, and the rules according to which the various members of the civic government are elected.

When the singular resemblance which may be discovered between the municipal establishments of different countries is considered, we can hardly avoid concluding that they have, to a greater or less extent, been copied from one another, and that they will, in a certain degree, mutually illustrate one another. In the towns of many countries are to be found, at different periods, a general corporation or community; subordinate corporate bodies, such as gilds and crafts; various ranks of magistrates, and a common council;-coincidences which can hardly be supposed to be accidental. A remarkable similarity may also be observed between an institution, well known in many English burghs at this day under the name of the Court Leet, and the ancient system of Scottish burgh government by Head Courts. It is therefore proposed, to give a short view of the history of municipal establishments in one or two of the principal countries of modern