Legal Opinion regarding Christchurch Borough
given by Thomas Penjelly, October & November 1725

The Case

This is a Borough by Prescription and anciently consisted and now consists of a Mayor, Burgesses Resident in the Borough, out-Burgesses and Inhabitants called the Populace (Scot & Lot) having a right to send Members to Parliament.

On the 8th of September annually the Mayor and resident Burgesses meet in their Town Hall and there nominate three persons of their Body to be presented to the Populace on the 14th of the same month for them to choose one of the three Mayor for the ensuing year. Which Mayor so elected is by the ancient usage to be sworn into his office at the following Michaelmas Court Leet held for the said Borough and Manor.

On the 8th of September 1718 John Stevens was so put on the Nomination and on the 14th of the same month was according to custom duly elected Mayor for the succeeding year, and expected to have been from at the next Michaelmas Court Leet according to the constant usage, but by the management and contrivance of Sir Peter Mews, Lord of the Leet, his steward and Mr. Gwyn with some of the Burgesses and Inhabitants of the said Borough, no Michaelmas Court was at all held that year.

In April following a Court Leet was held by a person altogether unknown to any of the People and who has not been found or heard of, who after (as he thought) managed and sworn a Jury for his purpose proceeded to take Presentments and the said John Stevens then attending and offering himself as Mayor duly elected the Jury according to Custom though contrary to the expectations of the person who acted the part of Steward, presented him to be sworn and duly elected according to the ancient usage of the Borough, but the pretended Steward refused to swear him and abruptly broke up the Court after having sworn in the Serjeant at Mace and some other officers who had been presented as Mr. Stevens was by the same Jury.

Hereupon the Court of B.R. was applied to for a Mandamus, but Sir Peter Mews’s Steward trifling with the Court and keeping out of the way of being served with it, the Court granted an Attachment against him on which he was taken and committed and after was examined on Interrogatories, by his answer to which it fully appeared that it was by Sir Peter Mews’s express directions that no Michaelmas Court Leet was held, and the whole matter transacted purely to avoid swearing Mr. John Stevens who had been duly elected, and against which no pretence was made.

The mayor in being when Mr. John Stevens was elected was Mr. James Stevens, who presided as usual at the election, but he never acted after that election and in the April next after the said election of Mr. John Stevens, he died, so that from that time there was no one at all who acted as mayor.

Notwithstanding which on the 8th September 1719 some of the Burgesses who were friends to Sir Peter Mews and Mr. Gwyn met in the street of the said Borough, and there put Mr. Gwyn and two others in nomination for mayor for the year ensuing, and though no mayor at all presided al this while, and though Mr. John Stevens protested against their proceedings, yet was Mr. Gwyn sworn in mayor at the next Michaelmas Court Leet, and made one Colgill (who had been a manager in their affairs) his deputy.

Upon this, Informations in the nature of a Quo Warranto were granted by the Court of the B.R. against Mr. Gwyn and his deputy Colgill for contriving[?] the said office without legal authority, and in Michaelmas Term 1720 that against Mr. Gwyn was tried at Bar and a verdict obtained against him, and the other against Colgill being also ready to be tried he withdrew his Plea and gave Judgment, upon which Judgment of Ouster was entered against both for the usurpation, but before the benefit hereof for the enslating and swearing Mr. John Stevens who had been so duly elected as aforesaid could be taken, he died, so that there was no legal mayor. And by the aforesaid management it was advised and apprehended that the Prescriptive Right of the said Borough was determined and lost.

In order therefore to restore the rights and privileges of the Borough, the burgesses and others who were aggrieved by and had had no hand in these practices applied by Petition to his Majesty for a Charter of Incorporation, which Petition was by order of Council of the 6th February 1720 referred to the Attorney & Solicitor General.

Upon this, Mr. Gwyn and his agents petitioned his Majesty likewise (after he destroyed the Borough) praying that if the Prescriptive Right of the Borough was lost it might be revived by Writ Mandatory, which Petition was also referred to the Attorney & Solicitor General for them to report on the whole matter.

The Attorney & Solicitor General having been attended several times thereupon by Counsel on both sides and on both Petitions, reported it as their Opinion that the Corporation was disabled from acting without the aid of his Majesty, and that they could not apprehend any difference between the dissolution of a Corporation and an absolute incapacity of acting without the Royal Interposition, because it is nothing but a politic body to do certain acts, and when it is absolutely reduced to an incapacity it is at an end, and so it is in this case. Upon the whole, for the reasons given in the report they thought it was the most advisable method for his Majesty (if he thought fit) to grant a Charter of Incorporation in which respect might be had to the former rights, privileges and liberties of the said Borough.

Upon this, the Lord of His Majesty’s most honourable Privy Council the 17th October 1721 having heard all parties concerned for and against granting such Charter by their counsel were of Opinion that a Charter could be granted for the said Town of Christchurch, and that provision should be made therein for the preventing the inconveniences arising from the method of swearing in the Mayor, yet this order could not be obtained and so the affair rested here.

Notwithstanding the proceeding aforesaid, the said Sir Peter Mews and Mr. Gwyn have gone on from the [from] 1720 in the same manner as if the Prescriptive Right had been still subsisting, and Mr. Bwyn and Colgill have acted as burgesses. And during the time of this inability have made and sworn five new burgesses.

On the 8th September 1725, the legal resident burgesses of the said borough in number ten (with the five other made during the usurpation as aforesaid) met at the Town Hall as usual, and there five of the said legal burgesses (viz) Mr. Joshua Stevens (who was the person then present who had last legally executed the office of Mayor of the said Borough and therefore took upon himself to preside, and declared that he presided (as the proper person by virtue of the late act so to do) at that election), Mr. Richard Holloway, Mr. John Hancock, Mr. John Bursey, and Mr. Samuel Hookey, all out burgesses.

The other five legal burgesses (viz:) James Colgill, William Newsham, James Bullock, Edward Bourne and Mr. James Stevens with the other five burgesses made during the usurpation put on the nomination on a separate paper for the purpose (the usurping mayor), Edward Bourne, Mr. Forbes and the said James Bullock. So there being an equality of legal burgesses, it was insisted on by the said Mr. Joshua Stevens that as he was the proper person (empowered by virtue of the late Act of Parliament) to preside at that election, did therefore give his casting vote in favour of Mr. Young, Mr. Imber and Mr. Hookey.

It was also insisted on at that election by the said Mr. Holloway (who was the senior burgess then present) that if Mr. Joshua Stevens was not the proper person empowered by the said Act to preside at the said election, he as the senior burgess insisted that he had the right and therefore gave his casting vote for the said Mr. Young, Mr. Imber and Mr. Hookey, rejecting the votes of the five illegal burgesses.

It’s to be observed that James Bullock and Edward Bourne, two of the legal burgesses, voted for themselves at such pricking or nomination, whereby their number of legal burgesses was reduced to four.

That the 14th of the same month the Corporation in their respective bodies met at the Town Hall where the nominations were severally read to the electors (the Inhabitants) and both papers delivered as usual to the populace, one by the said Mr. Joshua Stevens and the other by the said Edward Bourne, then they adjourned to the usual place of election where the nominations were again respectively read, and so proceeded to an election, when Mr. Hookey was elected by a majority of Good Votes (as his friends say) and Mr. James Bullock by a majority as Mr. Gwyn’s friends would have it. After this they adjourned as usual to the Town Hall where the said Mr. Hookey was declared duly elected by the said Mr. Joshua Stevens, and the said James Bullock by the said Edward Bourne.

That upon the 16th day of the said month of September a Court Leet was held and a Jury prepared in favour of Sir Peter Mews (the Lord of the Leet) where as usual presented the said James Bullock as duly elected mayor of the said Borough for the ensuing year, and thereupon Mr. James Willis, the Steward of that Borough, swore the said James Bullock mayor and refused to admit of the Jury returned by Mr. Joshua Stevens to present Mr. Hookey as duly elected mayor according to the ancient usage, saying it was nonsense and scandalous or to that effect, and also refused to swear the said Mr. Hookey who tendered himself for that purpose as the person legally nominated and legally elected mayor of the said borough.

That if the nomination on the 8th of September be not good, all the subsequent acts will be void of course.

Question 1:

Whether the five new burgesses made since the Judgment of Ouster against Mr. Gwyn and Colgill and in the time of the usurpation shall be deemed legal burgesses by virtue of the late act of Parliament, and have any power to vote in this Case.

These burgesses being in possession of their respective franchises, and having exercised Right without any legal prosecution ________ against them, will not be deprived of their burgess by force of the late Act, but as I apprehend will be esteemed burgesses capable of acting under that Statute until their claim to this office is determined against them in a legal course; that they ought to be prosecuted by Information in nature of a Pro Warranto in order to remove them from their office.

Question 2:

Whether the Judgment of Ouster against Mr. Gwyn and Colgill will disqualify them from acting as burgesses and voting in this Case. If not, can any of the legal burgesses vote themselves on the prick or nomination without losing their voice?

I think the Judgment given against Mr. Gwyn and Colgill in this Case for usurping the office of Mayor and Deputy (they being found not duly elected) will not destroy their right of being burgesses, but that they may still act as burgesses, and any one of the legal burgesses may vote for himself upon the nomination to stand on election for Myor without losing a voice.

Question 3:

Whether Mr. Joshua Stevens (as last legal Mayor then present) did not in pursuance of the said Act properly preside on the 8th of September at the said pricking or nomination, and if he did so legally preside, whether he had not a casting vote upon an equality of good burgesses.

The right of a casting vote depends entirely on the usage in the Borough. It can be supported only by a custom and usage for time immemorial, but I conceive that Mr. Joshua Stevens had no right to preside as Mayor or last Mayor within the said Act, there being a Continuance in Fact of this election of Mayors upon the subsequent days of election, and these being a Mayor in the actual exercise of the office at the time of the last election on the 8th of September.

Question 4:

If Mr. Joshua Stevens did not properly preside as aforesaid, did Mr. Holloway, as senior burgess, and could not he, on an equality give a casting vote?

For the reasons mentioned before, Mr. Holloway could not properly preside as senior burgess within the late Act of Parliament.

Question 5:

Since Mr. Samuel Hookey was so pricked or nominated on the 8th of September and so elected on the 14th of the same month, and the Steward of the Court Leet having refused to swear him under pretence that the Jury (which is solely in the Lord’s power) did not present him, will not the Court of the King’s Bench on application grant a Mandamus?

If Mr. Hookey takes himself to be duly elected Mayor, the Court of B.R. on application and affidavits made of his being elected will grant a mandamus to swear him, but it seems to me that the proper way is to move for Informations against the five new burgesses and Mr. Bullock the present acting Mayor upon affidavits stating the whole proceeding on the several elections from the time of Mr. John Stevens’s decease, in order to remove them from their offices. It will be very material in the case if the old legal burgesses in the interest of Stevens have always opposed the voting and acting of the five new burgesses for their not being duly elected and sworn.

Thomas Penjelly

18th October 1725

Question 6:

If this be a nomination pursuant to the usage of the Borough (which orders three persons to be nominated) when Edward Bourne, one of the persons put on the nomination, was the then acting mayor and could not have acted if elected, for then he would serve for two years together.

Mr. Bourne being a person incapable to be elected by the 9th of the late Queen, the nomination was not good according to the usage of the Borough.

Question 7:

If be then the five new burgesses made when Mr. Williams was Mayor (which was two years after the Judgment of Ouster against Mr. Gwyn) are good and legal burgesses within the Act of the last sessions of Parliament for settling and quieting Corporations, and their elections being regular excepting there not being a legal Mayor to preside and the other burgesses (who did not vote) being a minority protesting against their election.

Upon Informations in the form of a Quo Warranto against the five new burgesses they must make it appear that the Mayor who presided was a legal Mayor, and if they can not support his title upon the trial of an issue joined upon their election, the verdict ought to be found against them, but (as I’ve before mentioned) the right and legality of their election will not come in question properly and fully upon a proceeding under the late Act of Parliament, but these burgesses being in possession without having been disturbed by a legal proceeding I think the Court will not go into a strict examination of their right in any collateral Prosecution or Suit to lack _______ upon the late Act of Parliament.

Thomas Penjelly

November 19th 1725