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Inhabitants, Householders, Housekeepers, and Potwallers,
In the Cirencester case, (a) the Committee resolved,“ that no person can be deemed a householder who does not pos
sess an exclusive right to the use of the outward door of “ the building, although by taking inmates he may have " relinquished, for a time, the exercise of that exclusive right;
neither can a person whose habitation is composed “ of more apartments than one be deemed a householder, “ unless he also possesses an exclusive right to the use of " the stair-case, doorway, or other passage, that forms the
means of communication between bis several apartments, " although by taking inmates, he may have relinquished, for
a time, the exercise of that right. The original right to “ the exclusive use is then the point of discrimination “ between the householder on the one hand, and the in" mate on the other. The term, outward door to the build. • ing, does not include in its meaning the gates or outward “ door of a court, or passage, open to the sky. A house may “ contain a single apartment, but it does not follow that a “ single apartment, though furnished with a separate out“ ward door, will constitute a house; for a shop, or stall, “ unless used as a dwelling, is not a house."(b)
The legal meaning of the terms, householders and inmates, must be determined on the general principles of the law of the land, not on any ideas suggested by local usage. If a passage, though covered, is considered as a street, all the houses that have separate outward doors opening into that passage “are good votes.”(C) Where the right of Election is “in the bailiffs, burgesses,and freemen, being house, “ holders of, and resident in the ancient burgage houses “ within the borough,” a freeman being a bonâ fide houses holder, and resident in an ancient burgage house within the borough, is not disqualified by taking into his house lodgers or inmates.(d)
Potwaller is a person who furnishes his own diet, whether housekeeper or lodger. (C) But a legal parochial settlement in the borough.of Taunton is also required by the custom of that place.
) 2 Fra, 449.
(d) Chippenham,1 Peck, 273.
The 35 G. 3, c. 101, s. 4. which enacts that no person Legally setshall gain a settlement by paying taxes for a tenement under 101. annual value, does not affect the case of stock in trade, for which parish taxes are paid, to however small an amount, but that a settlement is thereby gained, under 3 4 W. & M. c. 11. for paying a share of the parish taxes. (a)
There are also other terms, viz. commonalty and populacy, Commonalty. which are sometimes descriptive of part of a corporation, but when used to designate particular descriptions of inhabitants, have been taken by Committees in different senses. Commonalty has sometimes an extended, sometimes a restricted sense ; in Bridport it was holden to comprehend(b) “ inhabitants, householders, paying scot and < lot.” In Warwick those " who pay to church and poor.”' (°) For Plymouth it is used in its corporate sense, and only comprises the “ freemen of the borough."
Populacy was, in Honiton, considered as synonymous to Populacy. potwaller ;() in Seaford, “ inhabitants, housekeepers, paying scot and lot.”(s) With respect to residence, it is also necessary,
Residence. by the custom of some particular boroughs, and where such custom exists, the residence must be bona fide, and not colourable, (h) or in a parliamentary sense occasional; it must be obvious, however, that cases occur where it is difficult to draw the line betwixt real and colourable residence, since persons may have various bonâ fide residences.(i) And it may be, that a voter justly exercises the franchise for a borough where residence is required, without ever having resided, (k) as in the following case.
The right of Election was “ in the freemen of the borough 6 admitted at a full court by the mayor, aldermen, common “ councilmen, and burgesses, such freemen being resident, “ and paying scot and lot, in all cases, except where no rate “ has taken place subsequent to their admission.” determined by the Committee, that a person admitted a freeman immediately before the Election, though he had
C) 2 Ilchester, 2 Peck. 251.
Carew, 209. 10.
© 3 Lud. 159.
() Vide Orme, 237.
(h) Chippenham, 1 Peck, 273. Rex
(1) Harwich, 1 Peck, 389.
never previously been resident, nor had paid scot and lot, (no rate having been made between the period of his admission and his voting), though he returned immediately after the Election to his family and former dwelling, and though he had gone to the borough for the sole purpose of being admitted to his freedom, and voting at the Election, was entitled to vote. (a)
It is laid down generally, that iphabitancy alone, without some superadded qualification, never confers the elective franchise ; yet in the case of Preston, there are four deci. sions in favour of the right in all the inhabitants of the borough. The first was after the Restoration in 1661, the second 1768, upon a trial of the merits at the bar of the House, the third and fourth in 1781 and 1785.
But the Select Committee in 1781, who considered themselves bound by the statute, 2 Geo. 2, to abide by the determination in 1661, as a last determination, resolved that the chairman should move to bring in a bill to restrict the right as too indefinite, no such bill however was introduced.
Lord Coke, in his exposition of the statute of bridges, says, ex vi termini, every person that dwelleth in any shire, riding, city, or town corporate, though he hath but a personal residence, yet is he said in law to be an inhabitant or a dweller there, as servants, &c. though he holds, that the statute upon which he is commenting, from its nature and subject matter, has not so general a meaning. (b)
In the borough of Tregony, the right is in all the inha. bitants who provide for themselves, whether, they live under the same roof or not."
Of Votes thrown away and lost. It sometimes happens, that persons not qualified by law Votes thrown
away and lost. to sit in Parliament, are elected and returned. Where such Elections have been petitioned against, the Committees have in most instances, not declared the Election altogether void, but have seated the petitioning candidate who stood next upon the poll to the person improperly returned, if the electors had timely notice of his incapacity. Mr. Serjeant Heywood states, “ that votes tendered for a
person who is disqualified to sit in Parliament, are " thrown away and lost,”-and “ if before the Election
comes on, or a majority has polled, notice is publicly “ given of his disability, the unsuccessful candidate next 6 to him on the poll must ultimately be the sitting mem“ ber.” ()
In a note to the Leominster case, (b) the reporters have substituted a more limited rule, and “ contend that this “ principle has at least been established, that where the “ disqualification is created by statute, and the fact bring• ing the party within the operation of the Act is contra"dicted and notorious, a candidate labouring under such
disqualification is no longer eligible, and is for the
purposes of the then Election to be considered as one not “ in esse.” There appears, however, no reason why a statutable disability should have a wider operation than any other, and therefore, although in the cases where the petitioner has been seated, the disability was created by statute, that circumstance is merely accidental, and not essential to the decision. Mr. Simeon says, if a person “ who is clearly ineligible” becomes a candidate, and notice is given, “ and sufficient proof” shewn or tendered, to the voters of the facts which render him so, the voices given to him are thrown away, and the candidate with the next greatest number of votes duly elected. (C) But these phrases are too vague to constitute a rule ; ineligibility
Votes thrown, which may be clear to one man, or one Committee, may be away and lost
doubtful to another; proof which is sufficient for one, is not so for another. The first mentioned rule proposed by Mr. Serjeant Heywood, is the only one which is precise and universal, and it is in conformity with the decisions of the Court of King's Bench upon Elections to corporate offices; (a) but there is no express resolution of any Committee to that effect, (b) nor is it warranted by all the cases.
By the statute 6 Ann, c. 7, a person possessed of an office, or place of profit under the Crown, created since October 1705, is disqualified for parliament. General Skene, the candidate who was afterwards returned, admitted at the Election, that he held the offices of baggage master to the forces, and inspector of roads in N. B. for which he received a salary, but denied that those offices were within the statute. The Committee being of opinion, that the novel creation of one of the offices was notorious, and that it was within the statute, seated the petitioner. (C) At the Flintshire Election notice was given to the returning officer and electors, that Sir Thomas Mostyn, one of the candidates, was a minor ; he was nevertheless returned, but the Committee voted his return vexa. tious, and seated the other candidate with a minority of
So where an Election has been avoided, and the candi. date who was returned declared by the Committee guilty of bribery, or treating, notice of the fact given to the electors at the next Election, will, if the same candidate is again returned, not merely avoid the Election, but have the effect of seating the petitioner.()
So where the petitioning candidate at the previous Election had been declared guilty of bribery, and notice to that effect was given to the electors at the next Election, his return upon the second Election was avoided, and the candidate in the minority seated. (f)
But in the case of Abingdon, where notice was given that one of the candidates was sheriff of the county, notwithstanding which the returning officer voted for him as well as the majority of the electors, it was holden a void
a) See Cowper, 537. 10 East. 217. 14 East. 559.
() 1 Peck, 496,500. () Fife, 2 Lud. 455.
(d) 1 Peck, 526.
() Southwark, Clifford, 345. Canterbury, Ibid. 357.
Kirkcudbright, 1 Lud. 72.