They must be there, and come at the usual time; and if they did not, they excluded themselves and is the law, or the method of elections, to be changed for them? Mr. Papillon's (I would not insinuate-) sending the letters is attended with odd circumstances. The letters are given to Wightwick, and he is to deliver them to Coates; then they are refused by the assembly; and afterwards the letters are returned into their hands again, with a note, "We have received this letter, and Fit has been refused." L Gentlemen, I think the letter will do nothing; they were wrong in their judgment; and not coming in time, they ought not to be let in, any more than any body else. A man cannot send in his vote by letter; he must be present in the assembly. staff to Wightwick; and said, "I resign this to you; you shall be the mayor; you had the most votes." Mr. Marsh. Who then called for the oath? Batchelor. The old mayor. Mr. Marsh. Did he call on any one to administer the oath? Batchelor. Yes; he bid Loftie administer the oath to Wightwick; and then Wightwick and Elles laid their hands on the book, and Coates said, He would swear Wightwick only, and shoved Elles's hand off the book twice. L. C. J. Read the clause in the charter that relates to the chusing of a mayor; the question being, Whether the mayor or town-clerk should administer the oath ? Associate reads: And therefore neither of these four gentle-ed, that on Lady Day, in the chancel of St. "The said late queen by letters patent grantmen had any right to vote, in my opinion; and then the majority is for Elles, and he is duly elected. Verdict for the defendant. Serj. Darnell. My lord, the next issue is, that he was not duly sworn.—Mr. Loftie, Do you know whether Mr. Elles was sworn in mayor of Romney? Loftie. Yes; he was sworn in by me in the church, in the manner as other mayors are sworn. Mr. Marsh. As to the oath to be taken by the mayor, you are only ministerial: did not the mayor say to you, Wightwick was the man that was to be sworn in mayor? Did not Coates tell you, "I administer the oath to Wightwick," and strike Elles's hand off the book? Loftie. No, not that I heard. Mr. Lacy. Did not he order you to swear Wightwick? Loftie. He ordered me to swear the mayor. Mr. Lacy. Did he not order you to swear Mr. Elles? Loftie. Not to my knowledge. Mr. Smith. Did Coates say who he thought was mayor? Loftie. Yes; he said Wightwick had the majority. L. C. J. Where two people are sworn in, the right must be in the man that had the possession of the staff. | Nicholas, one of the jurats should be chosen into the mayoralty for the year ensuing, and should take his oath, in manner as the mayor of Sandwich takes it." L. C.J. The mayor must administer the oath. Serj. Darnell. My lord, the oath is always read by the town-clerk; and I humbly apprehend, it is taking the oath, when it is read by him in presence of the mayor. L. C. J. The mayor must consent to the oath; he is the judge, whether the proper person be sworn, or not. The oath is to be administered by the old mayor; and it appears it was against his consent; he thought another elected, and struck Elles's hand off the book. Serj. Darnell. Suppose a man to take an oath to qualify him for an office; shall a justice of the peace refuse it? L. C. J. Can a man take an oath that is not administered to him? The town-clerk has no more to do with it than you or I. A man is guilty of perjury, if a clerk will administer an oath, when a court forbid him. Besides, the mayor delivered the ensigns of his power to Wightwick. Langdon. My lord, he said Wightwick was mayor, on account of Darby and Gibbon. Mr. Marsh. Did Wightwick take the staff, or did Coates deliver it to Elles? Langdon. Wightwick had the staff, and went home with the staff. Mr. Wynne. Did Elles walk as near the staff as the other. Langdon. I believe he did. Mr. Gray sworn. Serj. Baynes. Were you present at the choice of mayor? Did Coates say any thing, or strike Elles's hand off the book? Was you near? Gray. I was present; he never touched his hand. Mr. Lacy. Did not Coates order Wightwick to be sworn? Gray. I do not know he ordered any body to be sworn. L. C. J. Had Wightwick the staff in his hand, when he was sworn? Gray. No. L. C. J. Where was it? Gray. It lay down upon a tomb-stone. L. C. J. I take it, he ordered the mayor to be sworn. Gray. I do not know his thoughts. Mr. Halfenden sworn. ing Mr. Wightwick mayor ? Mr. Marsh. Were you present at the swear Coates shove Elles's band from the book. I Halfenden. Yes, I was present, and saw heard him say he would not swear Elles, and saw him, after swearing, deliver the staff to Wightwick; and I saw Elles's hand struck off twice. Mr. Marsh. Did Elles walk even with the mayor?-Hulfenden. I cannot tell. Mr. Gibbon sworn. Mr. Marsh. Were you present at the swearing in the mayor by Coates? Gibbon. Yes; he gave orders to take the poll; and after it was taken, he asked, Who was mayor? Loftie told him, Elles; Wilson said, Wightwick. Then Coates said, that Wightwick was chosen mayor, and should be sworn; and then Coates delivered the staff to Wightwick. I saw it delivered, and saw Coates shove Elles's hand off the book, and heard him say, "Mind, I swear Wightwick mayor." Mr. Marsh. We shall trouble your lordship no more. L. C. J. Gentlemen of the jury, the question on this issue is, whether the defendant Elles Mr. Marsh. Is it usual for the mayor to have was sworn mayor or not? the staff in his hand, when sworn? Gray. I do not know. Mr. Marsh. Whom did he name? Gray. I heard him mention nobody. Mr. Lacy. Whom was Wightwick declared mayor by? Gray. By Mr. Coates. this? Mr. Lacy. When did the mayor say Gray. At the time of the election. Mr. Lacy. Mr. Loftie, was you near Coates, when the mayor was sworn? Did he strike Elles's hand off the book? Loftie. Not that I saw. Mr. Tookey sworn. Mr. Lacy. Were you present at the election of the mayor? Tookey. Yes; I was very close to Mr. Coates. I did not hear him declare Wightwick mayor, It must be done by his predecessor. Loftie says, that Coates ordered him to swear the mayor, and that he read the oath : If this was done by Coates's order, then he was well | sworn. But, if it was done contrary to bis order, and he declared another man, and shoved Elles's hand off the book, and said, "Take notice, I swear Wightwick mayor," and not the other, and delivered the staff to him, and did all be could to oppose the swearing Elles; then Elles was not sworn mayor. The town-clerk cannot swear the mayor; and the evidence is strong that Coates opposed swearing Elles. The man that has the right, he is the man that must be sworn; but none but the former mayor can swear him. The question therefore is, whether he was sworn by a proper authority? or see him strike Elles's hand off the book.rity, and that Coates meant that Elles should If you think him sworn by a proper autho He mentioned Wightwick, and said, Wight-be the mayor, then you must find for him. wick should be sworn. Mr. Marsh. Did he order him to be sworn, or deliver to him his staff. Tookey. He said, he should be sworn; but I did not see him deliver his staff to him. should be sworn mayor, then you must find for But if you think he meant Wightwick Wightwick. Verdict for the King. 497. Case of HENRY MOORE,* Plaintiff, against the Mayor, Jurats, and Commonalty of the Town and Port of HASTINGS, in the County of Sussex, Defendants: 10 GEORGE II. A. d. 1736. Tried on Tuesday, July the 20th, at the sit tings after Trinity Term, 1736, before the Right Honourable Philip Lord Hardwicke, Lord Chief Justice of his Majesty's Court of King's-Bench, on a Mandamus for admitting the Plaintiff to be a Freeman of Hastings, in pursuance of a custom there; which custom the Defendants by their return deny, and thereupon issue is joined.] PLEAS before our lord the king at Westminster, of Hillary Term, in the 9th year of the reign of our sovereign lord George the 2d, by the grace of God, of Great Britain, France, and Ireland, king, defender of the faith. Amongst the Pleas of the King-Roll. Middleser. Some time ago, that is to say, apon the 28th day of November, in the 9th year of the reign of our sovereign lord George the 2d, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith, before our said lord the king, at Westminster, the same lord the king commanded, to the mayor, jurats, and commonalty of his town and port of Hastings, in his county of Sussex, his writ closed, in these words; that is to say, "George the 2d, by the grace of God, of Great Britain, France, and Ireland king, defender of the faith; to the mayor, jurats, and commonalty of the town and port of Hastings, in our county of Sussex, greeting: Whereas the said town and port is an ancient town and port, and one of the five ancient ports of this kingdom: and whereas there is, and time out of mind hath been, a certain ancient and laudable custom, used and approved within the said town and port, that every person, being the eldest son of any freeman of the said town and port, and born within the said town and port, after the admission and swearing of his father into the place and office of one of the freemen of the said town and port, hath a right, in respect thereof, and also upon paying a reasonable fine, to be admitted and sworn into the place and office of one of the freemen of the said town and port, and ought by you to be admitted and sworn into the place and office of one of the freemen of the said town and port, according to the custom of the said town and port: and whereas one Henry Moore is the eldest son of Samuel Moore, one of the freemen of the said town and port, and was born within the said town and port, after the admission and swearing of his father into the place and office of one of the freemen of the said town and port: and whereas the said Henry Moore, by virtue thereof, and upon paying a reasonable fine according to the said custom, ought by you so to be admitted and sworn into the place and office of one of the freemen of the said town and port; yet you, well knowing the premisses, but not regarding your duty in this behalf, have not as yet admitted the said Henry Moore into the said place and office of one of the freemen of the said town and port; nor have you administered the oaths to the said Henry Moore, which are in that case usually administered and taken, although you often have been requested so to do, by the said Henry Moore; but have refused, and yet do refuse, to admit and swear the said Henry Moore into the said place and office of one of the freemen of the said town and port, although the said Henry Moore has tendered to you a reasonable fine on that behalf; in contempt of us, and to the no small damage and grievance of him the said Henry Moore, and to the mani fest injury of his estate as we have been informed from his complaint to us: we therefore being willing that due and speedy justice be done to the said Henry Moore in this behalf, (as it is reasonable) do command you, by firmly injoining, that, immediately after the receipt of this our writ, you do without delay, upon the In this Borough of Hastings arose the Case said Henry Moore's paying a reasonable fine, of Milward v. Thatcher, (2 Term Rep. 81) in admit, or cause to be admitted, the said Henry which it was decided, that where a person, being Moore into the said place and office of one of in possession of a corporate office, accepted the freemen of the said town and port, together another office incompatible therewith, the for- with all the liberties, privileges, franchises, mer office by such acceptance became vacant. emoluments, and commodities, to a freeman of And as to this it seems to be immaterial whe- the said town and port belonging and apperther the office last accepted be or be not of su-taining; and that you administer, or cause to perior rank or value, to that which was pre- be administered, to the said Henry Moore, the viously possessed. See also, Rex v. Sir William oaths which are in that case usually adminisTrelawney, 3 Burrow, 1615; and Kyd on Cor-tered and taken according to the said custom porations, vol. 1, chap. 3, § 3. It was also decided in Milward o. Thatcher, that the offices of jurat and town clerk of Hastings were inCompatible. See 2 Stra. 1070. Ann. 353. 362. and Kyd on Corporations. or shew to us cause to the contrary thereof, that the same complaint may not, by your default, be repeated to us. And how you shall bave executed this out writ, make it appear to said town and port; because he saith, that there is, and time out of mind hath been, such an ient and laudable custom, used and approved within the said town and port, that every person, being the eldest son of any freeman of the said town and port, and born within the said town and port, after the admission and swearing of his father into the place and office of one of the freemen of the said town and port, hath a right, in respect thereof, and also upon paying a reasonable fine, to be admitted and sworn into the place and office of one of the freemen of the said town and port, in manner and form as in the said writ of Mandamus is above alleged. And the said Henry Moore prayeth, that this may be inquired into by the country; and the said mayor, jurats, and commonalty pray the like. Mr. Clarke. May it please your lordship, and you gentlemen of the jury; Henry Moore is the plaintiff; and the mayor, jurats, and commonalty of the town and port of Hastings, are the defendants. And, gentlemen, this is a Mandamus, directed to the defendants, the mayor and jurats of that town and port, to admit and swear in the plaintiff Henry Moore into the place and office of one of the freemen of this town. us at Westminster, on Friday next, after the octave of St. Hillary, returning then to us this our writ. And this you are not to omit, upon peril that may fall thereon. Witness Philip ford Hardwicke, at Westminster, the 28th day of November in the 9th year of our reign." Upon which said Friday next after the octave of St. Hillary, before our said lord the king at Westminster, the said mayor, jurats, and commonalty of the said town and port of Hastings, in the said county of Sussex, return. ed the said writ as followeth; that is to say, "The answer of the mayor, jurats, and commonalty of the town and port of Hastings, within mentioned, to this writ, appears in a certain schedule to this writ annexed: We, the mayor, jurats, and commonalty of the town and port of Hastings, mentioned in the writ, hereunto annexed, do, according to the command of the said writ, humbly certify to our sovereign lord the king, that there is not, nor time out of mind hath been, any such ancient and laudable custom, used and approved within the said town and port, that every person, being the eldest son of any freeman of the said town and port, and born within the said town and port, after the admission and swearing of his father into the place and office of one of the freemen of the said town and port, hath a right, in respect thereof, and also upon paying a reasonable And, gentlemen, the Mandamus sets forth, fine, to be admitted and sworn into the place That the town and port of Hastings is an anand office of one of the freemen of the said cient town and port, and one of the five ancient town and port, as in the said writ is alleged: ports of this kingdom; and that there is, and and, for this cause, we, the said mayor, jurats, for time out of mind has been, a certain and and commonalty of the said town and port of ancient laudable custom, used and approved Hastings, have not admitted, nor caused to be within that town and port, that every person admitted, neither ought we to admit, or cause being the eldest son of any freeman there, and to be admitted, Henry Moore, in the said writ born within the said town, after the admission named, into the place and office of one of the and swearing of his father into the place and freemen of the said town and port, together office of one of the freemen of the said town with all the liberties, privileges, franchises, and port, has a right, in respect thereof, and emoluments, and commodities to a freeman of also upon paying a reasonable fine, to be adthe said town and port belonging and apper-mitted and sworn into the place and office of taining; neither have we administered, nor one of the freemen there, according to the caused to be administered, nor ought we to ad- custom of that town and port. minister, or cause to be administered, to the said Henry Moore, the oaths which are in that case usually administered and taken, as by the said writ we are commanded to do.' And hereupon, upon the same Friday next after the said octave of St. Hilary, before our said lord the king at Westminster, came as well the said Heary Moore, in the said writ and return named, by Henry Masterman his attorney, as the said mayor, jurats, and commonalty of the said town and port of Hastings, in the said county of Sussex, in the same writ and return mentioned, by Henry Walrond their attorney. And the said Henry Moore, having had Oyer of the said writ and return, saith, That for any thing above alleged by them, the said mayor, jurats, and commonalty, in their said return to the said writ of Maudamus, he the said Henry Moore ought not to be barred from having a peremptory writ of Mandanus, in order to be admitted and sworn into the said place and office of one of the freemen of the Gentlemen, the Mandamus further sets forth, That the plaintiff Henry Moore is the eldest son of Samuel Moore, one of the freemen of the said town and port, and was born within the town, after the admission and swearing of his father into the place and office of freeman; and that the plaintiff, by virtue thereof, and upon paying a reasonable fine according to the custom, ought to have been admitted and sworn by the defendants into the place and office of a freeman; but that the defendants, contrary to their duty in this case, have refused, and still refuse, to admit and swear him, although be has tendered to them a reasonable fine on that behalf. And this, gentlemen, the defendants are laid to have done in contempt of the king, to the great damage and grievance of the plainuff, and to the manifest injury of his estate. And therefore the writ proceeds to command the defendants, immediately, upon the plain tiff's paying a reasonable fine, to admit and swear him into the place of a freeman, or to shew cause why they do not. To this writ, gentlemen, the mayor, jurats, and commonalty have returned for answer, That there neither is, nor for time out of mind has been, any such ancient and laudable custom, used and approved, within the town and port of Hastings, as is alleged in the writ; and this, they say, is the reason they have not admitted the plaintiff. "Uno modo, per Nativitatem infra Libertatem suam, si pater suus, tempore nativitatis suæ, fuit liber: "Alio modo, per Liberum Tenementum perquisit': "Tertio, per Emptionem. "Et notand', quod nullus gaudebit libertatem alicujus Portus, sive Membri, quousque sacramentum suum præstitit, quod esse debet, à die illo, usque ad finem vitæ suæ, bonus et Gentlemen, upon this issue is joined; and fidelis Domino nostro Regi Angliæ, et hærethe only question you are now to try, is, Whe-dibus suis; statutaque et libertates Quinque ther there be such a custom in the town and Portuum, et specialiter illius Portus sive Memport of Hastings, as the plaintiff bas laid in the bri ubi commoratur, pro posse suo mainteneMandamus? If therefore, gentlemen, evidence bit; obediensque Majori et Juratis, Ballivo et is laid before you, that there is, and time out Juratis, vel Juratis, semper erit; semper paof mind has been, such a custom, you will ratus tam ad scottand' et lottand', si que taxat' please, gentlemen, to find a verdict for the pro communi utilitate fuerint, quam in armis plaintiff. pro defensione inimicorum Domini Regis, cum per Gubernatores ipsius Portus sive Membri Sir Thomas Abney. May it please your lord-habuerit in mandatis; et quod non audiat aliship, and you gentlemen of the jury; I am also of counsel of the same side with the plaintiff; and you will please, gentlemen, to observe, that the single issue you are to try is, whether there now is, and time out of mind has been, an ancient and laudable custom in the town and port of Hastings, in the county of Sussex, that every person, being the eldest son of a freeman of the said town and port, and born within the said town and port, after the admission and swearing of his father into the place and office of one of the freemen of the said town and port, hath a right in respect thereof, and also upon paying a reasonable fine, to he admitted and sworn into the place and office of one of the freemen of the said town and port? This, gentlemen, is the issue you are now to try; and it will not, I believe, be necessary to trouble you with an account of the Cinque Ports, and their privileges and customs. But, gentlemen, the matters of proof we shall lay before you will be of three kinds, And the first which offers itself to your consideration, arises from a very ancient record, called the Customal; which is a very ancient deed, without any date; it being an usual thing for ancient deeds and evidences to be without any date; and this Customal is the rule and law of all the Cinque Ports. Gentlemen, this Customal is so old, and goes so far back as the year 1573; it contains 59 Articles. Our right arises upon this Customal; and therefore I will beg leave to read the title, and some passages out of it, to you. "Hic sequuntur Consuetudines Quinque Portuum, et eorum Membrorum, à tempore quo non extat memor' hom' usitat' et approbat'." Gentlemen of the jury, the words we ground our right upon are these: quod ad deteriorationem libertat' prædict', sive ad reprobationem Majoris, Ballivi, et Juratorum, ubi commoratur, vel eorum alicujus, nisi ipse inde eis dabit notitiam. Sic se adjuvent sancta sanctor', &c. "Possunt Majores et Jurati, Ballivi et Jurati, et Jurati, in quolibet Portu, &c. recipere et facere liberos tribus modis: "Uno modo, per Nativitatem infra liberta. tem suam, si pater suus, tempore nativitatis suæ, fuit liber". That, gentlemen, is the point we ground our right upon; the first right. If a person be the eldest son of a freeman, and born within the said town and port, after the admission and swearing of his father into the office of one of the freemen of the said town and port; we say, such eldest son is intituled. "Alio modo, per Liberum Tenementum perquisit'. "Tertio, per Emptionem." So that, gentlemen, by this 34th Article of this Customal you see what the ancient law and usage was; that the eldest son of every freeman, under these circumstances, is intituled to his freedom: and therefore we say, that the plaintiff Henry Moore, as the eldest son of Samuel Moore, has, and he is undoubtedly intituled, under this right, to his freedom. And, gentlemen, as this Customal mentions three distinct methods of making free, viz. by birth, by a freehold tenement, and by pur chase; so it has made a manifest distinction between the freedom acquired by birth, and by either of the other two ways. For, gentlemen, the fine that is paid by the son of a freeman, upon his being admitted and sworn, is only 6s. 8d. That is the reasonable fine, that is always paid, when a man is intituled as the plaintiff is: but all other Art. 34. Possunt Majores et Jurati, Ballivi persons, whether they are made free by a freeet Jurati, et Jurati, in quolibet Portu et Mem- hold or by purchase, they always paid 13s. 4d. bro ubi Major et Ballivus de communi elec-or, however, always more than the person tione non fuerit, in præsentia Communitatis, who was admitted as the eldest son of a freerecipere et facere liberos tribus modis: VOL. XVII. man. |