Sect, 1. Lord war members ports, &c. cinque The lord wardens of the cinque ports used formerly to claim, as of right, a power of nominating and recommending to each of the cinque ports, the two ancient den not to towns, and their respective members, one person to be recommend elected for each of such places; but the stat. 2 W. & M. for the sess. 1. c. 7. after reciting by s. 1. that they had so pretended and claimed, contrary to the ancient right, usage and freedom of elections, declares, by s. 2. all such nominations or recommendations to be contrary to the laws and constitution, and to be void to all intents and purposes whatsoever. SECT. 5. Of the removal of the Military. THE same as in counties. Vid. before chap. I. sect. 5. CHAP. III, BOROUGHS OR TOWNS, THE proceedings previous to an election in a borough or town, not being a county of itself, differ in many respects from counties, as well as from cities, &c. being counties. SECT. I. Making out the Precept.* To the returning officer of a borough or town, not being a county of itself, no writ issues as in counties and in cities, &c, being counties, but the writ to the sheriff of the county wherein the town or borough lies, commands him that " of every city of that county, two citizens, and of every borough in the same See the form of the precept to a city, Appendix, p. xii, No. x. and Heyw. Bor. 123. No writ but a precept. H. C. 2. 4. Burr, 2270. Sect. 1. Make out precept forthwith. 23 H. 6. c. 14. 7 & 8 W. 3. c. 25. s. 1. 23 H. 6. c. 34. county, two burgesses of the most discreet, &c. you (i. e. he) cause to be elected." By reason of the local jurisdiction, he, though returning officer for the county, cannot otherwise interfere in their elections. * The sheriff shall forthwith, upon the receipt of the writ, make out the precept or precepts under his seal to the returning officers of each borough, town corporate, port, or place, within his jurisdiction, in a new parliament, or on a vacancy, reciting the writ, and commanding them to choose their representatives, by citizens or burgesses, as the case may be, to come to parliament.† The sheriff being originally under no special or express regulation, used frequently to detain the writ, and neglect to issue the precept, and often would take upon himself to make the return of citizens or burgesses as elected, when in truth there had been no election. This, therefore, in the reign of H. 6, was remedied by a statute, which recited, amongst other things, that the sheriff often embezzled the writ, and forbore to make out his precept to the returning officer, under colour of the words of the writ, "Quod in pleno comitatu," &c. " duos burgesses," &c. and énacted, amongst other things, that after the receipt of the writ, he should issue his precept to the mayor or other returning officer. But this still leaving the time indefinite, it was afterwards expressly enacted, that the sheriff shall, by himself, or proper agent, within three days after c. 25. s. 1. receipt of the writ, deliver the precept to the proper officer to whom the execution of the precept doth apper And must be deliver ed within 3 days. 7 & 8 W. 3! See 1 Peck. 118. n. d. See 1 Peck. 417. and 2 Peck. 308. Those who are curious on the subject, and wish for further information, will find the form of the precept from its original introduction, very ably traced in Mr. Serjeant Heywood's book on Borough Elections, chap. iv. tain and to no other, who must indorse the date of the Sect. 1. receipt thereof, in the presence of the person delivering it. Delivering the precept to a wrong person is a breach of trust, and any misconduct in this respect, is equally within the jurisdiction of the house as in the delivery of the writ. See before chap. 1. p. 24. Where the sheriff was committed. under 19 Journ. p. 726. Resolved, that "Day, late under sheriff of the county of Somerset, having delivered the sheriff's precept for electing a burgess to serve in parliament for the borough of Minehead, to John Vicary and Joseph Sherry, two of the burgesses of the said borough, but not constables 2 Peck, 330. thereof, is guilty of a breach of trust, and contempt of the authority of this house. And he was ordered into the custody of the serjeant at arms." The proper officer of the cinque ports shall be allowed six days from the receipt of the writ for the delivery of the precept. The 7 & 8 W. 3. c. 25. s. 1. as well as the 23 H. 6. requires that the precept be delivered to the proper officer; but neither of them require expressly that it should be directed to him, though in fact it constantly is; and Lord Mansfield (in 4 Burr. 2267,) states the fact in these words, "The precept ought to be directed to the returning officer." In the cinque ports days to deliver precept. Not exrected by pressly di statute. H. B. 125. 126. In the Bletchingly case, 1623, the precept was directed Glanv. 37. to the bailiff and burgesses, whereas it should have been 38. to the burgesses only; whereupon the committee reported, and the house agreed, that the word bailiff was surplusage, and that the direction to the burgesses, who only had to do in the election, was sufficient in substance, and ought to be interpreted and applied only to signify such kind of burgesses as had voices in the election. Sect. 1. Precept will be pre sumed to be properly directed, unless the contrary shewn. Glanv. 138. No fee given or taken. 7 & 8 W. 3. c. 25. s. 2. 23 H. 6. c. 14. Glanv. 12. 20. Heywood's construc The direction will be presumed to be proper if nothing appear to the contrary, according to the resolution in the case of Pontefract, where it is said, "It is presumed that the warrant directed by the sheriff was well directed, nothing appearing to the contrary.” As to the counties palatine, see before, chap. 2. sect. 1. No returning officer shall give or take any fee for making out receipt, delivery, return, or execution of such writ or precept. The precept is now an essential process, and any votes given before the precept be read, are of no force. It was resolved in the Winchelsea case, that "without a lawful precept, the electors cannot proceed to an election, and whatsoever any elector speak or say, touching the giving of his voice, is of no force, unless it be expressed judicially, in a lawful assembly for that purpose." Mr.Serjeant Heywood says, that this statute (7&8 W.3. tion of 7 & 8 C. 25.) is not confined to sheriffs of counties, but extends W. 3. c. 25. to all officers to whom writs of election were usually sent, and whose duty it was not to proceed to the elections Borough of themselves, but make out their precepts to others; thus it Southamp- includes the sheriff of Southampton, a borough, which is a county of itself; because he being the proper officer of II. B. 129. the cinque ports (under whose precept all elections within his jurisdiction are made) issues his precept to the mayor and two bailiffs of each place, who are the returning officers. See before, chap. 2. sect. 2. ton is 2 County of itself. Election before the receipt of precept void. Lord Coke observes what, indeed, necessarily follows from the statute of 23 H. 6. that if the city or borough elect before the receipt of the precept, such election is 4 Inst. 49. nothing, and they must proceed to election again after the delivery of the precept. Sim. 151. Glanv. 12. Sect. 2. 8 Journ. 90, Weobly, 16th July, 1660. The sheriff did not send any precept for the election; and this seems to have been one of the grounds whereupon the election was holden Where no void. SECT. 2. Returning Officers. Ar elections for boroughs, towns, and other places not being counties of themselves, the execution of the precept may belong to a variety of persons, such as lords or ladies of manors, stewards, mayors, bailiffs, port reeves, constables, and the like, who may respectively be the returning officers, according to the constitution of the several places whereat they are to preside. It is not necessary that the returning officer should be an elector, and where it is the duty of a corporate officer to make the return, and the right of voting does not depend upon corporate franchises, it frequently happens that he is not so, as in the case at Abingdon, and many other places. The best general rule, whereby to discover who is the proper returning officer, is, that the return is to be made. by him to whom the instrument, under which the election is immediately holden, is directed. But this rule must be taken with the qualification, that such precept be properly directed, inasmuch as in the case of Milborne Port, 1st and 2d December, 1747, where the precept was directed to the bailiffs, the house resolved, "that the execution of the precept, &c. and the making of the return thereof, are only in the two sub-bailiffs of the said borough, or in one sub-bailiff of the said borough, if there are not two." And in several cases, which will be mentioned presently, the house has adopted the returns of the proper precept is made, elec tion would be void, also 9 Journ. 444. Roe P. 402. H. B. (1st Ed.) 81. 82. Roe p. 438. Heyw. Bor. 57. But if precept improperly directed, the look to the proper offwithstanding. 25 Jour. 456. 458. house will cers not Roe p. 439. |