1753. The King agt. PONSONBY. K. B. 3dly. If it be so, whether it can be taken advantage of by proceeding in an information in the nature of quo warranto, where the corporation derives to itself from the crown an express power of amotion ? These questions seem to me to comprehend the whole dispute between the crown, and the subject, the relators, and the defendants, as far as to the seven admitted bur-.. gesses; and I have not even a doubt but that all those questions are with the plaintiffs in error. The first question must depend on the nature of a franchise, whether the franchise of a burgess requires a local residence, and is an office of a public nature, or a mere personal privilege, to be used within a particular district. If it be the latter, as I believe it is, it is nothing more than the franchise of a freeman, and there can be no reason why it should be forfeited by non-residence. This makes it necessary for us to inquire what a burgess was originally at the common law, and what it is in its incorporated state. with A burgess, in its etymological sense, means no more than a tradesman dwelling within a particular borough for the sake of traffick, and has nothing to do with any office of trust, or magistracy. This I will endeavour to prove from better authorities than my own: 1st Inst. 80, my Lord Coke, in a reference to Bracton, seems to agree my definition, where he explains the word burgensis to be a man of trade, as a haberdasher, a draper, or the like. This is so true that a burgess anciently paid a tax, or toll, for liberty to trade within a particular borough: Riley's Placita Parliamentaria, 259. Dr. Brady, in his treatise of cities and boroughs, fol. 16, observes, that in these institutions, burgesses, or tradesmen, had patrons under whose patronage they traded, and paid for the same. (I am sure it is within your lordship's remem Erance that licences were granted for the sake of trading within a particular corporation, as in the case of the bishop of Winchester, and the Courtenays in Oakhampton.) In process of time these burgesses were made free, that is, were incorporated, and made a free state, and the capital tax sometimes discharged, but oftener converted into a fee farm rent. In consequence of this being a personal prie, it was, and is common for the same person to be a burgess of several particular borough towns, and even of the Hanse Towns, and whosoever is so, is of course free of every other, according to Cleirac, in his Us, et Coutumes de la Mer, 190. This proves that burgesses were not either before, or since their incorporation, considered as officers of magistracy, but merely as free traders, and not as residentiary officers of justice; and that distinguishes this case from that of the city of Eron, and Glyde, 4 Mod. 36, and Show. 364-5, where a desertion of the borough was held a good cause of disfranchisement in the case of an alderman, " because it is incident to the duty, and place of an alderman, to be resident where "he is chosen, his very name imports it, and removal "makes him incapable of doing his duty where he ought, "and it is not a place of profit, but of freedom, and go"vernment of the city," as it is expressed in 4 Mod., or, as Shower has it, "an alderman is not a place of profit, "but of freedom, precedence, and authority, within the city, which is all to be done there." 2ndly. If by the common law no residence is imposed in case of a burgess, nor any forfeiture for non-residence ; has the crown, as I admit it might, imposed any such restriction by its charter in the present case? It was admitted at the last argument, nor can it indeed be controverted, that the crown has not expressly required, nay further, that the crown has not annexed any duty to this 1753. The King agt. PONSONBY. K. B. 1753. The King agt. PONSONBY. K. B. franchise which requires residence. The argument stood thus; the motive of the crown in granting this charter was the peopling the north of Ireland; the north of Ireland cannot be peopled but by the residence of these burgesses; and therefore, unless they reside, they do not comply with the ends of their institution. But this I dispute: I deny the minor. The crown surely would never intend to people a town with these twelve burgesses, but by making it a free borough; where these indeed were to be the leading men, but others were to be the inhabitants to people it, and trade in it; by granting them the valuable privilege of being represented in parliament; by fixing courts there to administer justice to them at their doors: and finally by giving them the franchise of a market, for their convenience in disposing of, and being supplied with, all necessary commodities. These were the means by which the crown intended, and indeed they were the proper means to people a country. But were that otherwise, this method which the gentlemen aim at, of collecting forfeiture of freeholds by implication and intendment, is a doctrine entirely new to me. The crown in this case is so far from desiring any such thing, that it expressly wills the charter to be construed most favourably for the subject, and it is contrary to the very principles of law, to collect by intendment a forfeiture to the crown, to turn the subject from his franchise. I shall therefore submit it, that this is a franchise not forfeitable, either at the common law, or by this particular charter, for non-residence. 3dly. But in the next place, supposing this too were otherwise, and that non-residence was a good cause of forfeiture, yet it is not to be taken advantage of by way of information in quo warranto; for this court cannot 1753. The King agt. PONSONBY take to itself a jurisdiction per saltum, and the act of amotion is granted to the corporation. By this charter the most plain, and gross behaviour is not an immediate avoidance, but only a cause of amotion; for a burgess, by the express words of the grant, is to continue so durante vitá, or donec amovebitur, Misbehaviour may be secret, and if that was an immediate avoidance, what infinite confusion would ensue in corporations, where the proceedings of years might be annulled by a discovery that one of its members had formerly misbehaved himself, and by that means forfeited his office: nay, the very being of every corporation in the kingdom would in that case soon be dissolved; since every new election, in short every transaction, in which any of its members, after they had ceased to be so by these secret forfeitures, had any share, would be totally invalid, and of no effect. To prevent this confusion, the crown has made it a cause of amotion only, and not a forfeiture. In the case of the King and Slade, 1st Geo. I., Slade, being an alderman of Truro, resided at Plymouth; the corporation assigned three causes of avoidance by their charter, death, non-residence, and amotion for misbeha viour; and the question before the court was, on a motion for an information, whether non-residence was a sufficient cause of forfeiture without amotion. The Chief Justice held it was so in that case, on account of the particularity of their charter, which had expressly men tioned it as one of the three causes of vacancy: but Eyre, and Powis, held the contrary, for that, notwithstanding it was expressly mentioned as a cause of vacancy, yet as the licence to elect a new member was only on the former's dying, or being amoved, they had no doubt but that there must be an amotion by the corporation to precede the forfeiture, &c., and the information was denied. Eyre said, that the words of a charter might be so strong as to make misbehaviour an immediate cesser of office K..B. 1753. The King agt. PONSONBY. K. B. SO. without amotion, but that he had never seen one that was But I submit it, that it is impossible for a misbehaviour to be an actual avoidance, without amotion, in this case. Were it otherwise, amotion would be unnecessary: yet in returns to mandamuses to restore, &c. let the misbehaviour be never so gross, if the amotion be irregular, the court will always award a peremptory mandamus. Thus in 3d Salk. 231, Rex v. Taylor, the return was that they had power to amove for misbehaviour, that 4. was a common drunkard, and therefore they amoved him. The court held the cause returned sufficient, but because the proceedings in the amotion were irregular, they award a writ of restitution. I cite this case only for illustration, for I take it to be known law that, in all these cases, misbehaviour is a cause of amotion, and amotion of vacancy, and no vacancy can happen without amotion. This is agreeable to the opinion of my Lord Holt, in the case of Vaughan v. Lewis, Carth. 229, which was an action against the defendant for a false return to a mandamus directed to him &c., to whom it belonged to swear-in the plaintiff bailiff of the borough of New Radnor, to which he had returned that the plaintiff was never elected: the plaintiff proved his election; but there was the following clause in the charter, viz. that any officer in futuro to be chosen, non diutius remanebit in officio &c. quam infra burgum predict', vel libertat., et franchesias inde, cum totâ familá inhabitabit &c.; and it appearing that the plaintiff, when he was chosen one of the common council-men, (out of which the bailiff must be elected) was a foreigner, it was pretended that his office of common council-man was void by this clause, and so not qualified to be elected bailiff. But my Lord Holt, to whom this matter was referred, declared his opinion for the plaintiff, that this clause was "declaratory of the common law; and that the |