THE 28th. of August 1679. the People of the Town being duly Assembled, they cryed up the Names of Sir JAMES HAYES, and Mr. WILDMAN; Then Silence being commanded, the then Mayor demanded particularly of each of those Burgesses who are sworn to the Mayor, in reference to the Corporation, [which are about 35. in number,] for whom they were; And there was named amongst them the Right Honourable the Lord Bruce, Mr. Daniel, Mr. Bennet, and Mr. Wildman: Thereupon the great number of the Burgesses, lowdly cryed out for HAYES and WILDMAN, and demanded the Poll.

Then the Mayor forthwith departed from the place of Ele­ction, leaving the Body of the Town there, without any Officer, save the Constables; who by the Peoples desire, immediately took the Poll of the greatest part of the Electors, being House­holders, paying Scot and Lot, and about 150, (more being needless,) Signed and Sealed an Indenture, shewing the Election of Sir James Hayes, and Mr. VVildman.

Then three Proclamations being made, Sir James Hayes and Mr. Wildman were proclaimed Burgesses for that Borough for this Parliament: And the Indenture was then offer'd to the then Mayor, but he Peremptorily refus'd to Seal and Return it; But re­turn'd the Lord Bruce, and Thomas Bennet Esq; upon pretence they had the Votes of the major part of the aforesaid sworn Burgesses.

The only Question is, Whether all the Housholders paying Scot and Lot in the Borough, are the true Burgesses of the Borough, and of Common Right to Elect; or such only to whom the Mayors of the Corporations, have given an Oath of obedience, that have no Re­ference to the liberties of the Borough.

'Tis agreed, that the whole Borough, and Town, and all its Housholders were expressly Incorporated by Charter in the 18th. of Eliz. and thereby made one Community, or one Body of Burgesses, by the name of the Mayor and Burgesses of Marlbrough, [Page 2]without Distinction, or Difference of the Burgesses or Inhabi­tants, by Names, Powers, or Priviledges, saving that of the Mayor, who is enabled Yearly to name two Burgesses to be Justice of the Peace; Yet by the Communities consent, Orders may be made for the better Government of the Corporation, but such Orders never did, nor can restrain or alter the Com­mon Right of all the Burgesses, or Inhabitants to choose for the Parliament; Nor any other of the Boroughs ancient Liberties.

The Charters of the Town did never make any Aldermen, Capital, or chief Burgesses, or any Selected Body, or number of Burgesses under any stile or name whatsoever; Therefore there never hath been any selected, restrained or definite num­ber of Burgesses in the Town, but those Housholders that have been sworn to the Mayor as aforesaid, have been sometimes a greater, and sometimes a smaller number, and do acquire no Borough Rights by their Oath, all the Housholders having al­ways injoyed equally all the Exemptions, Liberties and Advan­tages belonging to the Borough.

However the Corporation of Marlbrough hath no Right to send Burgesses to Parliament; nor did it ever pretend to have any such Grant. It is the Antient Borough of Marlbrough, [where a Parliament that confirmed Magna Charta, was held above 400. years since,] that hath the Right of sending Bur­gesses to Parliament by Prescription; And all its Burgesses pay­ing Scot and Lot, are by Common Right the Electors, whose Right cannot be destroy'd, or alter'd, by any Incorporation or Charter; Neither can the Burgesses or Inhabitants surrender their Right, or Forfeit it, or lose it by Non-usage, or other­wise, unless an Act of Parliament should Disfranchize them, and take it away; many Parliaments have so resolved in many cases, where some whole Boroughs, and the Inhabitants of o­ther Boroughs had not used their Rights for 200. years.

This ancient right of the Burgesles, is so distinct from any Priviledge granted to them by their Charters of Incorporation, that those Priviledges may be forfeited or lost, and the Corpo­ration it self be extinct, or destroyed; Yet nevertheless this right would remain untoutcht in the Inhabitants or Burgesses of the Borough.

So it was lately at Taunton in Somersetshire, when their Corpo­ration was destroyed, upon a Quo Warranto brought against them, yet they chose Burgesses for the Parliament by their Right of being an ancient Borough; So it is at old Sarum, and in many Boroughs which are not Corporations.

The Burgesses of the Borough of Marlbrough, sent their Bur­gesses to Parliament many Hundred years before they had a Mayor. And all the Housholders of Marlbrough have enjoyed for near 500 years, many Exemptions, Liberties, Profits, of Common, and Priviledges, under the name of Burgesses of Malrbrough, which is conceived to be a clear and sufficient construction of the name of Burgesses; and if this Right of choo­sing their Parliament Burgesses should be taken from them, they must be Disfranchized, as having no Right to the Profits, Liber­ties, and Priviledges, so long injoyed by them and their Prede­cessors

The great pretence of the present Sworn Burgesses, is to ex­clude all the other Burgesses from Electing, (who are five times more considerable then themselves,) because they are not Sworn Whereas it is evident, that the Inhabitants of Ancient Boroughs always were, and are Burgesses, without taking any Oath. And all the Inhabitants of Marlbrough, are also made Burgesses of the Corporation by Charter, without mention of any Oath, or granting any Authority to the Mayor, to give an Oath to that purpose.

Their other pretension is, that by Ancient Usage, the Sworn Burgesses only of the Corporation, have Elected. Whereas, the Election belongs not to the Members of the Corporation, (as such) and the beginning of the Corporation it self, is far from being Ancient. And they do not, nor can alledge, that it was ever resolved by Parliament, or otherwise, that the Burgesses of the Borough have lost their Original Ancient Rights; or that they ought not to Elect, or that they were ever actually exclu­ded from Election.

If it can be truly said, that they have many times suffered the Sworn Burgesses of the Corporation to Elect without them, yet their neglect of using their own right could not destroy it, much less vest it in the other; They and their Fathers might for­bear the use of their Right for many years, and use it again law­fully when they pleased; Yet in those five lawful Parli­aments, which is all that have been for these 50 years past; In the Election of three of them, the Burgesses of the Borongh not Sworn, have interposed to give their Voices, and the Persons de­sired and declared for by them, have been Chosen in two of them, without Contest, or Poll, and in the last Election, the Poll was refused them, when lawfully demanded.

Whereupon the Borough, with those they have Chosen, flie to the Parliament for Relief.