Mr. ROTHERHAM's Case AT THE Committee of Elections and Priviledges, the Eighth of December, Concerning the Election of St. EDMƲNDS-BƲRY.
IT was agreed, that if all the Burgesses had right to Elect, then Sir Thomas Cullum deceased, and Mr. Rotherham, were duely Elected; but if a select number onely, [had right by a Grant 12 Jac.] then Sir Thomas Harvey and Mr. Jermyn were duely Elected.
The first Question was, Whether St. Edmunds is a Burrough by Prescription?
To prove it so, was urged, That H. 1. granted to the Burgesses of the Burrough of Bury several Priviledges.
Four Writs to chuse, upon which St. Edmund is indorsed among other Burroughs which send Burgesses, and a Mandavi Ballivo returned upon one, in 30 Ed. 1. and upon another 34 Ed. 1. Prec. Edm. among other Burroughs, and the like 21 Ed. 3. and the like 14 Ed. 3. but no Return; and Christ-Church in Hampshire, and Heydon in York-shire, had but one Precept to either, and no Return till lately, and yet they send Burgesses.
A Writ directed to the Alderman of St. Edmunds, which recites, That the Guild-hall was used for chusing the Aldermen per communitatem villae, and for collecting the Kings Tenths and Fifteens. 1 R. 2.
The King by his Letters-Pattens recites, That it is an ancient Burrough and had divers Priviledges by Prescription. 12 Jac.
1 Inst. 109 A. It is named an ancient Burrough. Cooke.
Object. There is no Return of Burgesses, till 18 Jac.
Answ. Precepts (to chuse) are Evidence of Right, and they could not chuse after 5 Ed. 3. for in that year there was an Agreement between the Abbot and the men of Bury which recites, The Abbot had recovered 140000 l. against them in three Writs, of which at the Kings Entreaty, he forgave 122333 l. 13 s. 4 d. and forgave 10000 l. more upon condition they should never reverse the Judgments, nor implead the Jury, nor any others, by reason of the Premises; And if they nor their Successors neither claim nor maintain any communality in the said Will, then he forgave the Residue, being 7666 l. 6 s. 8 d. otherwise Execution might be sued of 17666 l. 13 s. 4 d. and thereupon they acknowledge and grant for them and their Successors, That they neither have nor claim, nor might for the future claim any Community: after which they durst not meet as a Community, much less chuse Burgesses. But this was resolved in the Negative by 54 against 48.
Quest. 2 Admitting it be a Corporation newly created, whether the King by his Grant can restrain the number of Electors?
The King recites, That Bury is an ancient Burrough, and they shall be known by the name of Alderman and Burgesses; and that there shall be 12 capital Burgesses, and named them, and 24 of the Common-Council, and named them, and calls them Primos & Modernos, &c. and upon the death of any of them, the major part of the Survivers to chuse others. 4 Jac.
The King grants to the Alderman and Burgesses, That there shall be two Burgesses in the Burrough of St. Edmunds, and that the major part of Aldermen and capital Burgesses, and Burgesses of the Common-Council, shall chuse them; and the Burgesses so chosen shall send, and they shall stay at the Parliament at the charges of the Burrough and Inhabitants. 12 Jac. It was urged that the restrictive Clause is void, and the whole Burrough which is to bear the Charge, ought to chuse; for though as to private concerns of Corporations created by the King, he may restrain them as he pleases, yet he cannot in their Choice of Burgesses, which concerns the Legislative power: for if he can make new Corporations with such Clauses, then admit the King should create 300 such, and one of his naming to chuse them, there would be 600 in effect of the Kings naming, then the King can make as many Lords as he pleases; the consequences whereof is plain: but it was agreed, that by Prescription Freemen, owners of Burgage-houses, or other select number of men, may chuse, and do so legally:
- Mr. Rotherham is chosen by the major part of the Burgesses in general.
- Sir Thomas Harvey and Mr. Jermyn, by the major part of the select number.