THE Merits of the Election Between the Honourable CRAVEN HOWARD, Esq Petitioner, AND Mr. EDWARD PAUNCEFORT, one of the Sitting Members for the Borough of Malmsbury. 'TIS Agreed on both sides, That the Right of Election is in an Alderman, and Twelve Capital Burgesses, upon whom Custom has devolved the Right of the rest of the Burgesses; That One of the Electors was absent; That Six, without the Alderman, Voted for Mr. Howard; Six (of which the Alderman was one) for Mr. Pauncefort. Votes for Mr. Howard. Nicholas Hays, James Crome, Giles Kaines, Edmond Sansome, Abraham Huggin's, Elias Ferris. For Mr. Pauncefort. * Edward Brown, Edward Fry, * John Adey, William Hill, * Robert nichols, Richard Dolman, Alderman. No manner of Objection has been made against any one of Mr. Howard's Votes, or the least Pretence, that he or any Agent for him, gave any Treat, or Promise, or used any indirect Means whatsoever: And indeed, his Interest was so established, as next Heir to the Honour and Estate of the Earl of Berks, who has long been a Neighbour and Benefactor to the Town, and by the Services which Mr. Howard had done them, while their Representative in Parliament, and otherwise; that 'twould have been the greatest Imprudence imaginable, for him to use such Methods as would be necessary for (a) Proved by Alderm. Hays, and even by Mr. Escourt, produced as a Witness for Mr. Pauncefort. one wholly a Stranger, who knew that the Election was (b) Offered to be Proved by Col. Mordant and Mr. Pennington. set to sale to the highest Bidder; and, as (c) Vo●es, Sabbati 16 Feb. 1694. Resolved, Nemine Contradicente. That Mr. Edward Pauncefort (for contriving to Cheat Colonel Hastings' Regiment of Five Hundred Guinea's, and for giving a Bribe to obtain the King's Bounty) be taken into the Custody of the Sergeant at Arms, attending this House. Vid. the Vote 21 Feb. 1694. That he had not dealt Ingenuously, but had Prevaricated. appears by the Censure of the House of Commons, was not unacquainted with the way of Bribing. The Numbers upon the Poll being equal, it is submitted to the Judgement of the House, Whether any pretence of Custom in that Town, can warrant the Principal Officer's Acting as Two Men, in Returns to Parliament; and, Whether the way of Voting for Members, ought not to be Governed by the Custom of Parliament, where the Speaker or Chairman gives no Vote to defeat any Resolution; but when they are equal, adds his Vote to turn the Scale. Therefore Mr. Howard having the Majority without the Alderman (as 'tis conceived) ought to have been Returned, to prevent the necessity of repeating of new Elections. Besides, Thirteen being the Number of the Electors, for the Chief Officer to supply the Room of one absent * John Turner, one of the Burgesses, near 90, was conveyed away. , seems contrary to the nature of the Constitution: For by the same reason, if that Man were present, Six, of which the Alderman were one, would defeat the Election of t'other Seven. 'Tis to be observed, That the * viz. Abraham Huggins. Old Man who said it, had been twice so, upon Returns to Parliament, could name neither Times nor Persons, and said the Numbers both times were but Four and Four; which is very improbable, nor did he pretend that the House of Commons had made any Determination thereupon. However, 'tis humbly conceived, that Mr. Howard has Proved enough to disable Three of Mr. Pauncefort's Votes. Robert nichols disabled for not Receiving the Sacrament. The Witness, Joseph Hancock. I. Robert nichols was Proved to be an Anabaptist, being so reputed, and going to their Meetings; and if Evidence of his own Confession would have been received, 'twould have been Proved that he declared he neither had Received the Sacrament according to the Church of England, nor would upon any account. The Council on the other Side, admitted, That since he had no Vote but as Capital Burgess, 13 Car. 2. Stat. 2. c. 1. the not having Received the Sacrament, by the Statute of 13 Car. 2. would be a Disability; but would not admit the Proof which was offered, sufficient to put them upon showing that he had not Received it; though they could not but know, That in such Cases, the Law, B. C. as 'tis taken in Westminster-Hall, puts the Proof upon the Party accused; as was held in the Case of Slatford and Thurston, upon an Action for falsely Returning, Oxen. Michaelmas, 1697. That the Party had not taken the Sacrament, to qualify him to be an Officer in the Corporation. Edward Brown disabled, being Bribed by William Adey, Agent for Mr. Pauncefort, Proved by Ed. Brown, Jun. II. Mr. Howard was deprived of the Testimonies of Edward Brown, Senior, and Four more who joined (in a Bond, since Cancelled, without any Money Paid or Promised) Conditioned to indemnify him for giving Evidence of his being Bribed, by William Adey, Deputy-Steward or Town-Clerk, to Vote for such as he should Name, with a Promise confirmed by Mr. Pauncefort himself, to advance 60 l. for Paying off a Mortgage upon his Estate; and afterwards receiving Three Guineas of William Adey in part of Payment for his Vote. However Anthony Martin, Anthony Martin called as a Witness for t'other Side. produced on the other Side to prove the * Note, Mr. Howard knew nothing of the Bond till 'twas delivered up. Bond, gave Evidence that the Discovery was made by Brown, and at his Request put into Writing by Martin, before any Bond was given. And 'tis referred to Mr. White, And the Affidavit of Edw. Brown, Sen. of which Walter White, Esq a Member of the House, can give an Account. a Member of the House, to give an Account of Brown's Affidavit taken before him; wherein he confesseth the said Bribery. It also appears, That he was Treated by John Adey, for such Persons as John would Choose for Parliament Men. Besides which, Brown's Son declared, That he knew his Father had Money; That he shown him Three Guineas at one time, and Three at another, which he said William Adey gave him for his Vote; and that within two or three Days after his Father had discovered the Bribery, and had withdrawn, for fear of Trouble upon that Account, William Adey gave Edward Brown, Junior, Two Guineas, and then One more, to Endeavour to bring back his Father; declaring he had given him Money for his Vote: And if the Son could not find him, the Father would make the Election Void. III. John Adey, another of the Voters for Mr. Pauncefort, John Adey disabled as an Agent for Mr. Pauncefort, bespeaking Treats, and being himself Treated for his Vote. Note, He being produced as a Witness for Mr. Pauncefort, one of the Council would have given him up, because of this Objection; but was checked by the other, as therein yielding the Cause. was proved more than once to have ordered John Woodman, to distribute Cider and Beer, to the value of Nine Pounds, to himself and the rest of the Electors; for which he declared, such Parliament Men as he would Choose should Pay; of which William Adey promised Payment: And afterwards asked for Woodman's Bill, and tendered him Five Guineas, which he would not take, not being his full Due. The Answer to this was, That the Treats were for all the Burgesses, and not in order to the Election: But it appears by John Adey's Declaration, that at least he himself took the Treats for that end, placing them to the Account of such as he would Choose; And Mr. Pauncefort's Agent, William Adey, confirmed the same, promising to Pay, and offering Five Guineas for those Treats. That William Adey was an Agent for Mr. Pauncefort, appears not only by this Instance, but further, 1. By his pressing Brown the Burgess, Adey's procuring Votes for such as he should Name. to Vote for such as he should Name. 2. By his Adjourning the Poll from the Market-Cross, to a Private Room in a Tavern, for the convenience of his giving Signs whom he would have Chosen; and making a particular Sign to the Electors, His Contrivance to let the Electors know for whom he Bribed them, Proved by Mr. Pye. whose Eyes were upon him, at the Naming Mr. Pauncefort; of which Richard Pie, Esq a Member of the House, may please to inform the House. 3. William Adey's giving Money to Brown's Son, to prevent his Father's Discovery, lest it should void Mr. Pauncefort 's Election; His Giving and Paying Money for Mr. Pauncefort. and going with Mr. Pauncefort to Alderman Hays, where Mr. Pauncefort Treated his own Voters, and two of Mr. Howard's, to procure Subscriptions, That he had given no Bribes: And William Adey paid 20 s. to Mr. Hays, towards what was drunk at his House upon that Account. Much more would have appeared against William Adey, if Colonel Mordant, and Mr. Pennington might have been admitted to prove his setting the Election to Sale, before he had been proved Agent for Mr. Pauncefort; and if they (coming as Witnesses for Sir Thomas Skipwith) had not gone away, upon his being deprived of the Evidence of Brown, Senior, and the Four who had been Bound to indemnify him for his Discovery. Upon the whole, if 'twere admitted that the Alderman might give two Votes for Mr. Pauncefort; yet, as 'tis conceived, Mr. Howard has two good Votes more than Mr. Pauncefort; three, if the Alderman has but a Single Vote; and four, if he ought not to Vote contrary to the Practice in Parliament, and the Nature of the Constitution of that Borough, which has an odd Number of Electors. 'Tis conceived that Nichols shall not be presumed, without Proof, to have Received the Sacrament contrary to his avowed Principle; That the Votes of Brown and John Adey, procured by Bribes and Treats, are wholly Void; And that Mr. Howard was duly Chosen by the Majority of Persons qualified to Choose. CASE Of the Honourable CRAVEN HOWARD, Esq Against Mr. EDWARD PAUNCEFORT, Touching the Election of Malmsbury. Appointed to be Reported on Monday, the 27th. Instant.