10. That no tenant by copy of court roll fhall be permitted to vote as a freeholder. Thus much for the electors in counties (33).

As for the electors of citizens and burgeffes, thefe are fuppofed to be the mercantile part or trading interest of this kingdom. But as trade is of a fluctuating nature, and feldom long fixed in a place, it was formerly left to the crown to fum, mon, pro re nata, the moft flourishing towns to fend reprefentatives to parliament. So that as towns increased in trade, and grew populous, they were admitted to a share in the legiflature. But the misfortune is, that the deserted boroughs continued to be fummoned, as well as thofe to whom their trade and inhabitants were transferred; except a few which petitioned to be eafed of the expence, then usual, of maintaining their members: four fhillings a day being allowed for a knight of the fhire, and two fhillings for a citizen or burgefs: which was the rate of wages established in the reign of Edward IIIP (34). Hence the members for boroughs now

P 4 Inft. 16.

This requifite of affeffiment was intended to prevent fraud and confufion, by having a ready proof of the existence of the ef tate of the voter, and fome measure of it's value; but it is itself perhaps a greater evil than it was intended to remove; for an omiffion or irregularity in the affeffinent operates as a disfranchisement, Every freeholder, who wishes to preferve the important privilege of voting, must carefully examine every year the assessment, when it is Auck upon the church door, to fee that he is duly affeffed; and if he is not, he may appeal to the commiffioners, and he may any time afterwards apply to the clerk of the peace, and upon payment of 15. may examine the duplicate returned to the feffions; but it feems that he is then too late to correct an error, unless he has previouly appealed to the commifioners; but from the judgment of the commiffioners an appeal lies to the next quarter feffions.

(33) By 22 Geo. III. c. 41. no perfon employed in manage ing or collecting the duties of excile, cuftoms, ftamps, falt, windows, or houfes, or the revenue of the poft-office, hall vote at any election, and if fuch perfon prefumes to vote, he shall forfeit 10c 7, This act does not extend to freehold offices granted by letters patent. (34) Lord Coke, in the page referred to by the learned Judge, fays, that this rate of wages hath been time out of mind, and that

bear above a quadruple proportion to thofe for counties, and the number of parliament men is increased fince Fortescue's

it is expreffed in many records; and for example, refers to one in the 46 Ed. III. where this allowance is made to one of the knights for the county of Middlesex. But Mr. Prynne's fourth Register of Parliamentary Writs, is confined almost entirely to the inveftigation of this fubject, and contains a very particular chronological hiftory of the writ de expenfis militum, civium, et burgenfium, which was framed to enforce the payment of these wages. Mr. Prynne is of opinion that these wages had no other origin than that principle of natural equity and justice qui fentit commodum, debet fentire et onus. (p. 5.)

I shall endeavour to prove, upon a future occafion, that reprefentation at the first was nothing more than the attendance of a part of a number, who were individually bound to attend, and where the attendance of the reft was dispensed with; and as all were under the fame obligation to render this fervice, and it was left to themselves to determine which of them fhould undertake it, it became equitable that all should contribute to the expence and inconvenience incurred. And what Mr. Prynne informs us is remarkable: that the first writs of this kind extant in our "records are coeval with our king's first writs of fummons to "elect and send knights, citizens, and burgeffes, to parliament, "both of them being first invented, iffued, and recorded toge"ther in 49 H. III. before which there are no memorials nor " evidences of either of those writs in our hiftorians or records." (p. 2.) The first writs direct the sheriff to levy from the community, i. e. the electors of the county, and to pay the knights, rationabiles expenfas fuas in veniendo ad dictum parliamentum, ibidem morando, et exinde ad propria redeundo. And when the writs of fummons were renewed in the 23d of Ed. I. thefe writs iffued again in the fame form at the end of the parliament, and were continued in the fame manner till the 16 Ed. II. when Mr. Prynne finds the "memorable writs," which firft reduced the expences of the reprefentatives to a certain fum by the day, viz. 4s. a day for every knight, and 2s. for every citizen and burgefs; and they specified alfo the number of days for which this allowance was to be made, being more or less according to the distance between the place of meeting in parliament and the member's refidence. When this fum was first ascertained in the writ, the parliament was held at

time, in the reign of Henry the fixth, from 300 to upwards of exclufive of thofe for Scotland. The universities were in

500,

York, and therefore the members for Yorkshire were only allowed their wages for the number of days the parliament actually fat, being fuppofed to incur no expence in returning to their respective homes; but at the fame time, the members for the distant counties had a proportionate allowance in addition. Though from this time, the number of days and a certain fum are specifically expreffed in the writ, yet Mr. Prynne finds a few instances after this, where the allowance is a lefs fum; and in one, where one of the county members had but 3 s. a day because he was not, in fact, a knight. But with those few exceptions, the fum and form continued with little or no variation. Mr. Prynne conjectures, with great appearance of reason, that the members at that time enjoyed the privilege of parliament only for the number of days for which they were allowed wages, that being confidered a fufficient time for their return to their refpective dwellings. (p. 68.) But this allowance, from its nature and origin, did not preclude any other specific engagement or contract between the member and his conftituents; and the editor of Glanville's Reports has given in the preface, p. 23, the copy of a curious agreement between John Strange the member for Dunwich and his electors, in the << whether 3 Ed. IV. 1463, in which the member covenants, "the parliament hold long time or fhort, or whether it fortune to "be prorogued, that he will take for his wages only a cade and "half a barrel of herrings, to be delivered by Christmas."

In Scotland the reprefentation of the fhires was introduced or confirmed by the authority of the legislature, in the feventh parliament of Ja. I. anno 1427, and there it is at the fame time exprefsly provided, that "the commiffares fall have coftage of them "of ilk fchire, that awe compeirance in parliament." Murray's Stat.

It is faid, that Andrew Marvell, who was member for Hull in the parliament after the restoration, was the last perfon in this country that received wages from his conftituents. Two fhillings a day, the allowance to a burgefs, was fo confiderable a fum in ancient times, that there are many inflances where boroughs petitioned to be excufed from fending members to parliament, reprefenting that they were engaged in building bridges or other public works, and therefore unable to bear fuch an extraordinary

expence.

BOOK I. general notempowered to fend burgeffes to parliament; though once, in 28 Edw. I. when a parliament was fummoned to

expence. (Pryn. on 4 Inft. 32.) And it is fomewhat remarkable, that from the 33 Ed. III. and uniformly through the five succeeding reigns, the fheriff of Lancashire returned, non funt aliquæ civitates feu burgi infra comitatum Lancaftriæ, de quibus aliqui cives vel burgenfes ad diclum parliamentum venire debent feu folent, nec poffunt propter corum debilitatem & paupertatum. But from thefe exemptions in ancient times, and the new creations by the king's charter, which commenced in the reign of Ed. IV. (who in the 17th year of his reign granted to the borough of Wenlock the right of fending one burgefs to parliament, (Sim. 97.) the number of the members of the houfe of commons perpetually varied till the 29 Car. II. who in that year granted, by his charter, to Newark, the privilege of fending reprefentatives to parliament, which was the last time that this prerogative of the crown was exercised. (1 Doug. El. 69.) Since the beginning of the reign of Hen. VIII. the number of the reprefentatives of the commons is nearly doubled; for in his firft parliament the houfe confifted only of 298 members it does not appear that any place has loft its right of fending reprefentatives fince that time; and 260 have fince been added by act of parliament, or by the king's charter either creating new or reviving old boroughs. The legislature added 27 for Wales by 27 Hen. VIII. c. 26.; 4 for the county and city of Chefter by 34 Hen. VIII. c. 13.; 4 for the county and city of Durham by 25 Car. II. c. 9.; and 45 for Scotland by the act of union; in all 80; and 180 have been added by charter: Hen. VIII. created or restored by charter 4. See Pref. to Glano. Rep.

confider of the king's right to Scotland, there were issued writs, which required the university of Oxford to fend up four or five, and that of Cambridge two or three, of their moft difcreet and learned lawyers for that purpofe. But it was king James the firft who indulged them with the permanent privilege to fend conftantly two of their own body; to ferve for thofe ftudents who, though ufeful members of the community, were neither concerned in the landed nor the trading intereft; and to protect in the legislature the rights of the republic of letters. The right of election in boroughs is various, depending entirely on the feveral charters, customs, and conftitutions of the refpective places, which has occafioned infinite difputes; though now by ftatute 2 Geo. II. c. 24. the right of voting for the [175] future fhall be allowed according to the laft determination of the houfe of commons concerning it (35). And by ftatute

q Prynne parl. writs. I. 345.

To the first parliament of Ja. I. the members of the upper-houfe were 78, of the lower 470. 5 Parl. Hift. 11.

(35) That ftatute was merely retrospective, or only made the last determination of the right prior to the ftatute conclufive, without having any influence over decifions fubfequent to the 2 Geo. II. And this provifion was omitted in Mr. Grenville's excellent act, fo that the fame queftion, respecting the right of election in fome places, was tried over again every new parliament; but to fupply this defect, it was enacted by the 28 Geo. III. c. 52. that whenever a committee shall be of opinion that the merits of a petition depend upon a queftion refpecting the right of election, or the appointment of the returning officer, they fhall require the counsel of the refpective parties, to deliver a ftatement of the right for which they contend, and the committee fhall then report to the houfe thofe flatements with their judgment thereupon; and if no perfon petition within a twelvemonth, or within fourteen days after the commencement of the next feffion, to oppose fuch judgment, it is final and conclufive for ever. But if fuch a petition be prefented, then, before the day appointed for the confideration of it, any other perfon, upon his petition, may be admitted to defend the judgment; and a fecond committee fhall be appointed exactly in the fame manner as the firft, and the deci