The
CASE
of
the
BOROUGH
of
MARLBROUGH
in
the
County
of
WILTS
,
concerning
the
Election
of
Sir
JAMES
HAYES
K
nt
.
and
JOHN
WILDMAN
Esq
;
to
be
Burgesses
for
this
present
Parliament
.
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.
Wildman
.
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
.
'T
is
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
,
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
.