Primary Resource

"An act for regulating the Elections of Burgesses; for settling their Privileges; and for ascertaining their allowances" (1705)

The following law, "An act for regulating the Elections of Burgesses; for settling their Privileges; and for ascertaining their allowances," passed by the General Assembly in its October 1705 session, sets out the rules governing elections. The oath would be revised in 1736.

Transcription from Original

I. BE it enacted and declared, by the governor, council and burgesses of this present generall assembly and it is hereby enacted and declared by the authority of the same, That the Freeholders of every county that now is, or hereafter shall be in this dominion, now have, and hereafter shall have the privilege and liberty of electing and choosing two of the most fit and able men of such county respectively, to be present, and to act and vote in all General Assemblies, which, from time to time, and at any time hereafter, shall be held within this dominion; and also, that the freeholders of James City shall have the liberty of electing and choosing one Burgess, to be present, act, and vote in the General Assembly, as aforesaid.

II. And for the more regular and legal electing of the said Burgesses in all time coming, Be it enacted, by the authority aforesaid, That the following rules and methods shall be observed, (to wit,) That the writs for electing the said Burgesses shall be signed by the Governor, or Commander in Chief of this dominion for the time being, with the seal of the Colony affixed to them, and shall be delivered to the Secretary, at least forty days before the day appointed for the General Assembly to begin, to be by him transmitted to the sheriffs of the respective counties: That the Secretary shall cause the said writs to be safely conveyed and delivered to the several sheriffs of each respective county, within ten days after the date of such writs: That every sheriff in three days after he receives any such writ, shall cause one copy thereof to be delivered to every minister and reader of the several parishes in his county; upon every one of which said copies, shall be indorsed by the sheriff, the time and place by him appointed for the election of Burgesses, which shall always be made at the place where the county court is accustomed to be held, at least twenty days after the sheriff shall have received the writ: That after the receipt of such copy and indorsement, the minister or reader as aforesaid, shall publish the same after Divine Service, in the Church or Chapel where they, or either of them officiate, upon every Sunday that shall be between the receipt of such copy, and the day appointed for the Election of Burgesses; and after such publication, the minister or reader shall return the said copy to the sheriff, with a certificate of the publication thereof, and of the time and place of the election. And if at any time hereafter, the secretary of this dominion for the time being, shall fail to cause the writs for electing of Burgesses, to be safely conveyed and delivered to the several sheriffs as aforesaid, he shall forfeit and pay the sum of forty pounds current money; one moiety thereof to our sovereign Lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint, or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed. And if at any time hereafter, the sheriff of any county within this dominion, shall fail to cause to be delivered one fair copy of any writ for election of Burgesses, with an indorsement thereupon as aforesaid, unto every minister and reader as aforesaid, within his county respectively, in such time as is before directed, such sheriff shall forfeit and pay the sum of two thousand pounds of tobacco; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint, or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed. And if any minister or reader, who shall hereafter receive from the sheriff of his county, the copy of a writ for election of burgesses in the said county, shall, after the receipt thereof, fail to make publication and return, according to the directions of this act, such minister or reader shall forfeit and pay the sum of one thousand pounds of tobacco; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint, or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed.

III. And be it further enacted, That after publication of writs, and time and place for election of burgesses as aforesaid, every freeholder, actually resident within the county where the election is to be made, respectively shall appear accordingly, and give his vote at such election, upon penalty of forfeiting two hundred pounds of tobacco to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed.

IV. Provided always, That no freeholder being a feme-sole, or fem-covert, infant, under age, or recusant convict, shall be obliged to appear, and give his or her vote in any of the said elections; neither, if they do appear, shall they have liberty to vote, but shall be excluded therefrom, as though they were not freeholders. And if any person shall presume to give his vote for election of any burgess or burgesses, not being a freeholder in the county or town respectively where he shall give his vote, such person shall forfeit and pay five hundred pounds of tobacco; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to such person or persons as will inform and sue for the same: To be recovered, with costs, in any court of record within this dominion, by information, bill, plaint, or action of debt, wherein no essoin, protection, or wager of law, privilege, or any more than one imparlance shall be allowed. And if, upon any suit brought, the question shall arise, whether any person be a freeholder, or not? In such case, the Onus Probandi shall lie upon the defendant. And if the election of any burgess or burgesses cannot be determined, upon the view, by consent of the freeholders, the sheriff, or, in his absence, the under-sheriff shall proceed to take the poll in manner following; to wit, he shall appoint such and so many person or persons, as to him shall seem fit, to take in writing, the name of every freeholder who gives his vote, and the person or persons he votes for; which person or persons so appointed, shall first take an oath for his true and impartial taking the poll; which oath the sheriff, or, in his absence, the under-sheriff, is hereby impowered and required to administer; and then (the sheriff, or under-sheriff, as aforesaid, having provided one or more book or books for that purpose, as occasion shall require) in the court-house of the county, in presence of the several candidates nominated, if they will be present, or such other persons, as (if they think fit) they may appoint to see the poll fairly taken, the person or persons so appointed and sworn as aforesaid, shall take the poll as followeth; to wit, first he or they shall write down the names of all the candidates, every one in a several page of the book, or in a particular column; and then the name of every freeholder coming to give his vote, shall be fairly written in the several pages or columns respectively, under the name or names of such person or persons as he shall vote for: Provided, that no freeholder, who, at such election, shall have given his vote for two persons, shall be permitted to vote or poll for any more. And when every freeholder present, shall have given his vote in manner as aforesaid, (or upon proclamation three times made at the court-house door, if no more freeholders will give their votes) the sheriff, or under-sheriff as aforesaid, shall conclude the poll; and afterwards, upon examination thereof whatsoever person or persons of the candidates shall appear to have the most votes, the sheriff, or under-sheriff as aforesaid, shall return him or them burgess or burgesses; and if two or more candidates shall have an equal number of votes, the sheriff, or undersheriff as aforesaid, being a freeholder, shall and may return which of them he thinks fit: And every freeholder, before he is admitted to a poll at any election, if it be required by the candidates, or any of them, or any other freeholder in their behalf, shall take the following oath; which oath the sheriff, or under-sheriff as aforesaid, is hereby impowered and required to administer; to wit,

YOU shall swear, that you are a freeholder of the county of                         and that you have not been before polled at this election.

And in case any freeholder, or other person, taking the said oath, shall thereby commit wilful and corrupt perjury, and be thereof convicted; or if any person do unlawfully and corruptly procure or suborn any freeholder, or other person, to take the said oath, in order to be polled, whereby he shall commit such wilful and corrupt perjury, and shall be thereof convicted, he or they, for every such offence, shall forfeit and pay the sum of ten pounds current money; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to him or them that will inform or sue for the same: To be recovered, with costs, in any court of record within this dominion, by action of debt, bill, plaint, or information, in which no essoin, protection, or wager of law, shall be allowed.

V. And for prevention of disputes which may hereafter arise in elections of burgesses, who shall be accounted and pass for freeholders,

VI. Be it enacted, by the authority aforesaid, and it is hereby enacted and declared, That every person who hath an estate real for his own life, or the life of another, or any estate of any greater dignity, shall be accounted a freeholder, within the meaning of this act.

VII. And after the election shall be made, in manner as herein is before directed, the sheriff, or under-sheriff as aforesaid, shall make return thereof in manner following; to wit, upon the writ shall be indorsed thus;

The execution of this writ appears in a certain schedule hereto annexed.

And in the Schedule to the writ annexed, the execution thereof shall be certified as followeth, mutatis mutandis, viz.

BY virtue of this writ to me directed, in my full county, held at the court-house for my said county, upon the                         day of                                     in the                         year of the reign of                         by the grace of God, of England, Scotland, France, and Ireland, Queen, defender of the faith, &c. by the assent of my said county, I have caused to be chosen (two Burgesses) of my said county, to wit, A. B. and C. D. to act and do, as in the said writ is directed and required.

And for the College of William and Mary, or for any town, the form of the return shall be thus;

BY virtue of this writ to me directed, I did make lawful publication thereof; and afterwards, to wit, upon the                         day of                         in the                         year of the reign of                               by the grace of God, of England, Scotland, France, and Ireland, Queen, defender of the faith, (at the town of                               ) or (at the said College) by the assent of the (freeholders) or (President and masters, or Professors) thereof, I have caused to be chosen one Burgess for the said (town) or (College) to wit, A. B. of                         to act and do, as in the said writ is directed and required.

And if at any time, any candidate, or other person, in his behalf, shall desire a copy of the poll, the sheriff or under-sheriff, who manages the election, as soon as may be, shall cause a fair copy thereof to be made, and shall deliver it, attested with his own hand, unto such candidate, or other person, as shall require the same as aforesaid.

VIII. And if, upon the death or incapacity of any member or members of the house of burgesses, the sheriff of any county shall receive a writ for the election of one or more burgess or burgesses, during the session of the general assembly; in such case, he is hereby required to appoint such and so many persons as to him shall seem fit, to give notice thereof, and of the time and place of election, unto every particular freeholder residing within the county for which such election is to be made; which election shall be made as soon as possible, in manner as is herein before directed, and the person or persons so elected, shall be returned in form aforesaid. And if the sheriff of any county, or in his absence, the under-sheriff, (being thereunto required, before the return be made, by any candidate of freeholder) shall refuse to take the poll, or shall take it in other manner than is herein directed, or shall refuse to give a copy of the poll as aforesaid, or shall make any false return, or insufficient return, or shall fail to make any return, or shall make any return in any other form than is herein before directed, every such sheriff or under-sheriff as aforesaid, offending herein or in any of these cases respectively, shall forfeit and pay the sum of forty pounds sterling; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to him or them that will inform or sue for the same: To be recovered, with costs, in any court of record within this dominion, by action of debt, bill, plaint, or information, in which no essoin, protection, or wager of law, shall be allowed.

IX. And be it further enacted, That the sheriff of every county shall return every writ to him directed for the election of one or more burgess or burgesses, and shall cause the same to be safely delivered to the clerk of the secretary's office for the time being, or to such other person as shall attend in the said office, to receive the same, at least the day before the day mentioned in any such writ for the return thereof: And if any sheriff shall neglect or fail performing his duty herein, he shall forfeit and pay the sum of two thousand pounds of tobacco; one moiety thereof to our sovereign lady the Queen, her heirs and successors, for and towards the better support of the government of this her majesty's dominion, and the contingent charges thereof; and the other moiety thereof to him or them that will in form or sue for the same: To be recovered, with costs, in any court of record within this dominion, by action of debt, bill, plaint, or information, in which no essoin, protection, or wager of law, shall be allowed.

X. And be it further enacted by the authority aforesaid, That no person or persons hereafter to be elected to serve in the General Assembly for any county, town, or corporation, within this dominion, after the test, or issuing out or ordering of the writ or writs of election, upon the calling, or summoning of any General Assembly hereafter, or after any place becomes vacant hereafter, in the time of this present, or any succeeding General Assembly, shall or do by himself or themselves, or by any other ways or means, on his or their behalf, or at his or their charge, before his or their election, to serve in the General Assembly for any county, town, or corporation, within this dominion, directly or indirectly, give, present, or allow to any person or persons having voice or vote in such election, any money, meat, drink, entertainment, or provision; or make any present, gift, reward, or entertainment; or shall at any time hereafter make any promise, agreement, obligation or engagement, to give or allow any money, meat, drink, provision, present, reward, or entertainment, to or for any such person or persons in particular, or to any such county, town, or corporation in general, or to or for the use, advantage, benefit, emploiment, profit, or preferment of any such person or persons, county, town or corporation, in order to be elected, or for being elected to serve in the General Assembly for any such county, town, or corporation.

XI. And be it further enacted and declared, That every person or persons so giving, presenting or allowing, making, promising or engaging, doing, acting or proceeding, shall be, and are hereby declared and enacted to be disabled and incapacitated, , upon such election, to serve in the General Assembly for such county, town or corporation; and that such person or persons shall be deemed and taken, and are hereby declared and enacted to be deemed and taken no members of the General Assembly, and shall not act, sit, or have any vote or place in the General Assembly; but shall be, and are hereby declared and enacted to be, to all intents, constructions, and purposes, incapacitated, as if they had never been returned or elected members for the General Assembly.

XII. And be it further enacted and declared, That no person under the age of one and twenty years, shall be capable of being elected to serve in the General Assembly; neither shall any person be capable to be a burgess for any county, unless, at the time of such election, he shall be a freeholder in the same county; but every such election shall be, and is hereby declared to be, illegal and void.

XIII. And be it further enacted and declared, That all and every member and members of the General Assembly are, and ought to be, and for ever hereafter shall be, in their persons, servants, and estates, both real and personal, free, exempted, and privileged, from all arrests, attachments, executions, and all other process whatsoever, (save only for treason, felony, or breach of the peace,) during his or their attendance upon the General Assembly, by the space of ten days before the beginning, and ten days after the conclusion of every session of assembly: And if any process shall be depending against any such member or members before his or their election, such process shall be staied, and shall not be proceeded upon against such member or members, by the space of ten days before and after every session as aforesaid, and shall then be again revived, and may be prosecuted, as otherwise it might have been, without any discontinuance or abatement thereof, by reason of such being staied as foresaid. And if at any time hereafter, the General Assembly shall be prorogued or adjourned for any longer time than twenty days; in such case it shall be lawful to commence any process against any member or members of the General Assembly: Provided always, that such process be staied as aforesaid, by the space of ten days before and after every session or meeting, by prorogation or adjournment as aforesaid.

XIV. And be it further enacted by the authority aforesaid, That the allowances for burgesses attending at the General Assembly, shall be as followeth; that is to say, for every burgess coming by land, shall be allowed and paid by the county for which he serves, one hundred and thirty pounds of tobacco and cask, a day, besides the necessary charge of ferriage. And for every burgess which cannot come to the General Assembly, otherwise than by water, there shall be allowed and paid as aforesaid, one hundred and twenty pounds of tobacco and cask, a day. And over and above the said daily allowances, there shall be paid and allowed, for going and returning to and from the General assembly as followeth; to wit, To every burgess for the counties of James-City, York, Warwick, Elizabeth-City, New-Kent, Gloucester, Charles-City, Surry, and Isle of Wight, the allowance of one day for coming, and one day for returning. And to every burgess for the counties of Henrico, Nansemond, Norfolk, Princess-Anne, King-William, Prince-George, King and Queen, Middlesex, and Essex, the allowance of two days for coming, and two days for returning. And to every burgess for the counties of Lancaster and Richmond, the allowance of three days for coming, and three days for returning. And to every burgess for the counties of Stafford, Northumberland, Westmoreland, Northampton, and Accomack, the allowance of four days for coming, and four days for returning. And where the burgesses come by water, the sheriff is hereby required and impowered, by impressing, or otherwise, to provide a boat or two men, to carry the burgesses of his county respectively, to and from the General Assembly; for which boat, men, and their necessary provision, shall be allowed and paid as aforesaid, thirty-six pounds of tobacco for every day, during the time they are preforming that service. But forasmuch as the burgesses for the counties of Accomack and Northampton cannot come in a boat to attend the General Assembly, therefore the sheriff of each of those two counties is hereby required and impowered, by impressing, or otherwise, to provide a sloop and men, to carry the burgesses of his county respectively, to and from the General Assembly; for which sloop, men, and their necessary provisions, shall be allowed and paid as aforesaid, sixty pounds of tobacco for every day, during the time they are performing that service.

XV. And be it further enacted, by the authority aforesaid, That at the time and place of election of burgesses for any county within this dominion, the sheriff, or in his absence, the under-sheriff of such county respectively, at the door of the court-house, by proclamation to be there three times made, between the hours of one and three of the clock in the afternoon, shall give public notice of the time appointed for a court to be held, for receiving and certifying to the next session of the General Assembly the propositions and grievances, and the public claims of all and every person and persons within his county; which propositions and grievances shall be signed by the person or persons presenting the same to the court; and thereupon the chief magistrate then present, or the clerk, by the direction of the court, shall certify the same to the General Assembly, and shall deliver the same to the burgesses for the county, to be by them presented accordingly. And in like manner, a court for receiving and certifying propositions and grievances, and public Claims as aforesaid, shall be appointed and held in each county respectively, before every session of the General Assembly: And the sheriff of the county is hereby required to cause public notice to be given of the time appointed for the holding such court at every respective church an chapel within his county.

XVI. And be it further enacted, That all and every other act and acts, and every clause and article thereof heretofore made, for so much thereof as relates to regulating the elections of burgesses, or settling their privileges, or ascertaining their allowances, is, and are hereby repealed, and made void, to all intents and purposes, as if the same had never been made.