Harvard College Library   

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 cried 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, loudly cried 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 People's 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, showing 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 offered to the then Mayor, but he Peremptorily refused to Seal and Return it; But returned 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 Householders 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.  
'Tis agreed, that the whole Borough, and Town, and all its Householders 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 Privileges, 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 Householders 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 Householders having always enjoyed 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 Ancient 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 destroyed, or altered, 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 Privilege granted to them by their Charters of Incorporation, that those Privileges may be forfeited or lost, and the Corporation itself 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 Householders of Marlbrough have enjoyed for near 500 years, many Exemptions, Liberties, Profits, of Common, and Privileges, 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 Privileges, so long enjoyed 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 than 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 pretention 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 itself, is far from being Ancient. And they do not, nor can allege, 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, fly to the Parliament for Relief.