William Stubbs.

The constitutional history of England in its origin and development, Volume 3 online

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manently omitted ^ the sheriffs alone being disqualified. With
these exceptions the writs remain uniform until the year 1404,
when Henry IV stirred up strife by excluding lawyers from his
' unlearned parliament ".'

From this date all the changes in the writs are made in con- Chaiie;eB
sequence of the statutes by which ftt)m time to time the elections consequence
were regulated, and they generally reproduce the exact language tions in the
of the acts. The clause of the statute of 1406 ordering that the
election be made by the whole county in the next county court •,
and that the names chosen be returned in an indenture, appears as
part of the writ: this example is followed down to the year 1429.
In 1430, after the passing of the statute which fixes the forty
shillings franchise, the same rule is followed, the clause of the
act being inserted in the writ^. Again in 1445 the commons
petitioned that the statutes touching elections should be better
enforced : the king agreed, and added that the persons chosen

' Lonk' Report, iv. 693 : ' discretioribas, probioribos et ad laborandom
potentioribus.'

• LordB* Report, iv. 696.

* Lords' Report, iv. 725, 726.

♦ Lords' Report, iv. 731 ; Prynne, Reg. ii. 117.

• Lords' Report, iv. 792 ; Prynne, Reg. it 1 23.

* ' Quod fiicta proclamatione in proximo comitatu tuo lihere et

indifferenter per illos qui proclamationi interfuenint * ; Lords^ Report, iv.
802 ; Pirnne, Reg. ii. 126.

^ Lords' Report, iv. 877 ; Prynne, Reg. ii. 132.

VOL. in. D d n \

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4oa



Constitutional History,



[chap.



Final

changMin
the fonn.



General
inferences
from these
variations.



The king's
power to
alter the
writs.



His wish
to maintain
custom;



and to
enforoe
order.



should be notable knights of the shire which elected ihem, or
else notable squires, gentlemen of birth capable of becoming
knights, and that no man of the degree of jeoman er below it
should be eligible ^ The result of the petition and its answer
was a long statute, all the essential clauses of which were in-
serted in the writs from the jear 1446 to the end of the reigo.
Edward lY altered the form in his first year *, omitting specifie
references to the two statutes of Henry YI and the restrictions
inserted in 1446, but retaining the more essential parts of the
prescribed procedure. This form is obserred to the end of the
period before us.

It is difficult to draw any definite conclusions from the
variations which occur in the writs of Edward III ; they seem,
however, to imply a mistrust of the influences supposed to be
at work in the county courts ; and to have a general intention
of urging the election of men of knightly rank and education,
to the exclusion of professional lawyers and the maintainers (^
private suits. The mischief of faction and the danger of
sacrificing public interest to private emolument were sufficient
reasons for the restrictions inserted. The £Etct, that the king
could insert them without remonstrance, does not prove that by
dealing with the sherifib he could procure their enforcement :
the number of variations implies some power of resistance ; the
lawyers were not excluded and belted knights were not always
chosen. Yet the king no doubt felt that his power, even thus
liable to be thwarted, was safer as it was than it would be if
it were hampered with any constitutional change in the body
of electors. He maintained accordingly the customary right
of the county courts. The changes introduced under the
Lancaster kings have already been noticed : they possibly imply
a more important change in the constitution of country society,
and claim a more distinct place in social history. We cannot
question that the act of 1430 was demanded by the di8ord^r]y
condition of the county courts, or that that of 1445 was the result
of the choice of unfit and incompetent members. The lack of

' Lords* Report, iv. 913, 930. 934, &c. ; Prynne, R^. ii. p. 135.
* Lords' Report, iv. 951 sq.



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XX.] Proceedings at Elections. 403

governance common to the wbole Lancaster period is exem-
plified in both the complaints. The tenour of the history is
enough, without a statutory rehearsal, to prove that there were
riots even in the most solemn shiremoots, and that unworthy
members sat in the fickle and subservient parliaments.

The writs to the sherifis did not quite complete the com- yrit? <»

^ * the 8heri£Di

position of the lower house. Those cities and towns which were of cities,

made counties by themselves, or had sheriffs of their own,

London, Bnstol, York, Norwich, Lincoln, Ncwcastle-on-Tyne,

Hull, Southampton, Nottingham, Coventry, Canterbury, had

writs addressed to their sherilfe : the constable of Dover and to the

' Cinqoe Ports

warden of the Cinque Ports had the writ for the election of the "g^J^^**"
barons of the Cinque Ports; the duke of Lancaster, or more
generally the chancellor of the duchy or county palatine of
Lancaster, had the writ for Lancashire and its towns. None
of these writs exhibit any important dififerences.

420. The abbots, barons, and judges, on the receipt of their Proceedings
writs, had little to do except to obey : the bishops had besides receipt of
this to order the election of the clerical proctors, which they did
by forwarding the writ with a precept of their own to the arch-
deacons to enforce it ^ ; and, where the process was transacted at
all, it was transacted in much the same way as the elections to
cimvocation, by summoning the whole body of the beneficed
clergy in the several archdeaconries. The work of the sherifis
was much more critical and complicated. The method of
election to the house of commons, the questions of qualification
and suffrage, and the theory as compared with the practice of
the county court, open a wide field for discordant conjectures.

The writ was returnable, as we have seen, in about forty County
days, and the election was to be made in the county court:
and this is nearly all that can be certainly affirmed of the

1 Forms of electing olerioal proctors under the 'praamnnientet' cUnse
will be found, in the case of cathedrals, ParL Writs, I. 31, 34, 140, II.



393-396 ; and in the case of the diocesan dei^gy, one of A J). 1 304, Wake, State
of the Church, app. P- 31. A list of the clerical proctors in the parliament
of Carlisle is given. Pari. Writs, L 184-186. Atterbury gives a long series



of instances in which proctors were elected under this oljMise, coming ddwn
to the year 1678 ; Rights, Powers, and Privileges of Convocation, Additions
to the first edition, addenda, pp. 81-93.

D d 2

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404



Constitutional History,



[chap.



Proceedings of I406,
under the
Htatute of
1406.



Election in
the first
county
court.



early elections. It would be a waste of ingenuity to specu-
late on the diflTerent courses that a sheriff, unguided by custom,
may have adopted ; and, for the sake of a definite view, we must
advance at once to the period which was affected by the statute
This statute orders that proceedings shall begin in the
first county court holden after the receipt of the writ, and that
the election shall be made in full county court by the persons
present ; it specifies further the form of the return ^.

Unfortunately we have but few such data as would enable us to
determine the nature of the * plenus comitatus ' thus recognised
as the elective body. As the proceedings are to begin in the
first county court held within the forty days that elapse before
the return of the writ, it is obvious that the court in question
must be the court held every month or every three weeks by
the sheriff, and not the sheriff's toum which was held but twice
a year. That this was the practice appears from the cases in
which the sheriff, having to account for not returning knights
of the shire in time for the opening of the session, pleads
that no county court occurred before that date, and is excused *

' 7 Hen. lY, c. 15, Statutes, ii. p. 166: 'Item nostre seigneur le
roy al grevouse oompleint de sa commune del non dewe eleccion des
chivalerB des countees pur le parlement, queux auoune foitz sont faitz de
affeccion dee viscountz et autrement encountre la forme des briefs as ditz
visoountz directe, a grand esclaundre des countees et retardadon des
busoignes del communalte du dit countee, nostre soverein seigneur le roy
vuillant a ces purveier do remedie, de Tassent des seigneurs espiritnelx et
temporelx et de tout la commune en cest present parlement, ad ordeignez
et establiz que desore enavant les eleccions des tielz chivalers soient faitz
en la forme quenseute ; cest a saver que al proschein oountee a tenir apres
la livere du brief du parlement, procLemaacion soit fut en plein coantee de
le jour et lieu de parlement, et que toutz ceux qui illoeques sont presentz
sibien suturez duement somoinee pur cele cause come autres, attendent la
eleccion de lours chivalers pur le parlement ; et adonques en plein oounte
aillent al eleccion liberalment et endifferentement non obstant aucime
prior ou commaundement au contrarie ; et apres quils soient esluz, soient
les persones esluz presentz ou absentz, soient lour nouns escriptz en enden-
ture dessoutz les sealx de toutz ceux qui eux eslisent, et taochez au dit
brieve du parlement ; quele endenture issint ensealez et tacchez soit tenuz
pur retoume au dit brief quant as chivalers des countees, et que en briefr
de parlement affiiirs en temps advenir soit mys cest clause ; et electionem
tuam in pleno comitatu tuo factam distincte et aperte sub sigillo tuo et
sigillis eorum qui electioni illi interfueriot nos in cancellaria nostra ad diem
et locum in brevi contentum certifices indilate* ; cf. Rot. ParL iii. 601.

' This was the custom before the act was passed ; in 1327 the sheriff of
Surrey and Sussex reports that between the day on which he received the



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XX.] County Elections. 405

This monthly or three weeks county court had however very ^*®^? *"
much diminished in importance since the thirteenth century ; county
by the statute of Merton every free man was empowered to
appear by his attorney, and thus relieved from regular at-
tendance at the ordinary sessions;^ many of its earlier func-
tions had been handed over to the justices of the peace, and
its ordinary judicial work was the decision of pleas of. debt,
which required the attendance of the parties to suits and the rota
of qualified jurors, and of none others. As this would obviously
be no true representation of the county, we expect to find that
for the occasion of an election other persons were specially cited,
and it is clear from the act of 1406 that this was the case; *all that Persons
be there present as well suitors duly summoned for the same cause, to the
as others, shall attend to the election.' From this it appears
that although the court was the ordinary court, the persons com-
posing it, or forming the most important part in it, were summoned
for the purpose of the election. On the rolls of the parliament Order for
by which the statute was passed there is an article, enjoined under notice not

oath on the members of the council, ordering that in the writs to in the

. statute,
the sheriffs they should be directed to have proclamation made in

all the market towns of their counties, of the day and place of elec-
tion, fifteen days before the day fixed for the election. But although
enacted by the king and sworn by the council the clause was not
incorporated in the statute *. Some such warning was, however,

writ and the day fixed for the parliament no county court was held, and
therefore no election was made. In 13 14 the sheriff of Wilts received the
writ only three days before the day of parliament, and that on that day
the members were 'celeriter electi'; Piynne, Reg. iii. 173 ; Pari. Writs,
II. i. 149. A similar case occurred in Devon in 1449 J Pryntie, Reg. iii.
151 : there no county court was held until two days before the parliament
met. In Leicestershire in 1450 the election took place after the parliament
met, for the same reason ; ib. p. 163.

' The relaxation of the duty of attending the popular courts without special
summons was the result of three acts ; (i) the writ of Henry III in 1234,
Ann. Dunst. p. 140, in which it was ordered that there should not henceforth
be a 'generalis summonitio* to the hundred courts ; (2) the statute of Merton
in 1 236 quoted above ; and (3) the statute of Marlborough, which relieved all
barons and religious persons from attendance on the Sheriff's Toum. When
a general meeting was required the general summons continued to be issued ;
for example, to meet the itinerant justices ; but by Stat Marlb. 0. 24 those
justices were forbidden to amerce the townships for the non-attendance of
all inhabitants over twelve years old to make the inquests.

* Rot. Pari. iii. 588.



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4o6



Constitutional Hisiory.



[chap.



Power of
the sheriff
to cite
electors.



Possible
mUuse.



The plemt*
comitatui.



absolutely necessary, and even if tbe sheriff could, on the spnr of
the moment, get together a county court, the election of borough
members could not possibly be left to the chance of some of the
authorities of each town being present at the county oouit.
Strictly speaking then, the proceedings must have begun not in
the county court itself but in the citation of the electors by tbe
sheriff which preceded the holding of the court, whether according
to the article just mentioned or in conformity with established
custom. And the discharge of this function lodged great power
in the hands of the sheriff; he might issue a general notice, the
' summonitio generalis' such as was issued before the visits of the
itinerant justices, or he might summon the suitors who were bound
by their teuure to attend ^ or he might cite his especial friends, or
he might cite no one at all, and so transact the election in the
presence of the casual suitors as to deprive the county of its right
for the time. But that the county court, however composed, was
the ' plenuB comitatus,' and that all persons present had the right
of joining in the proceedings, seems certain from the wording of
the statute, and the statute does not appear in these points to

^ On this point the Lords' Report (i. 149) expresses the opinion that the
county ooiirt in which elections were held was the court baron of the
county, and the proper suitors were only those who held land in the oounty,
as distinguished from the sherifiTs toum which was to be attended by iJl
residents. The three weeks or six weeks or monthly court is certainly the
one meant by the next county court ; but it could hardly be regarded as
a full county court if it contained only the persons legally liable to attend-
ance, who were allowed moreover under the statute of Merton to appear
by their attorneys. The reason for holding that originally the fullest
assembly of the shire was intended are given above, vol. ii. pp. 225 sq.
If the theory of the Lords' Report went no further, it might be accepted
as stating one at least of the intelligible ways in which the franchise was
lodged in ^he hands of the freeholders ; but the report inclines to the
belief that the freeholders electing were freeholders holding directly under
the king (p. 151), and that accordingly the article of Magna Carta ordering
the general summons of the minor tenants was carried into e£Eect. It is
evident however that the elections were attended by many who were not
freeholders, or even proper suitors. The subject is obscure, and the
custcons were probably various. On the theory maintained in voL ii, the
original electors under Edward I were the persons legally constituting
the county court, all landowners and fr^m every township the reeve and
four men ; before the close of the reign of Edward III the whole body of
persons assembled made the election whether they were legal suitors or
not; the act of 1406 does not venture to alter this, but that of 1430
reestHbliahes the right of the freeholders, although only in the persons of
the 40a. freeholders.



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XX.] County Elections. 407

have made any change in law or usage. The petition of 1376 ff*^®^®'

shows that the election was often carried through in the absence ooort*

of the better people of the county^; the act of 1430 declares

that it was often dispatched by the rabble^ ; the variations of

the writs show that the persons whose influence was most

dreaded were lawyers and promoters of litigation. The petition

of 1376 again shows that the sheri& exercised an influence

which threw the electoral right of the suitors into the shade ; influence of

the act of 1382', which forbids the sheriff to omit the regular in making

cities or boroughs from his returns^ proves that hb influence ^^

was used even to extinguish the right of certain boroughs to

return representatives; a petition of Rutland in 1406 shows

that he was able oceasionally to return members who had not

been duly elected'. On any theory the Gondusion is inevitable Theprivi-

that the right of electing was not duly valued^ that the duty of presentation

representation was in ordinary times viewed as a burden and dentiv

not as a privilege ; that there was much difficulty in finding

duly qualified members, and that the only people who coveted

the office w^e the lawyers who saw the advantage of combining

the transaction of their clients^ business in London with the

right of receiving wages as knights of the shire at the same

time. Thus, whilst in theory the right of election was so free

that every person who attended the county court might vote,

in practice the privily was not valued, the power of thfe

sheriff, and of the crown exercised through him, was almost un-

oontroUed in peaceful times, and in disturbed times the whole

proceeding was at the mercy of faction *. This is of course a

view of the worst phase of the business : no doubt in many cases

the sheriff were honest and faithful men, and the elections were

duly held, but custom and not law prescribed the process, and

until the act of 1406 neither law nor custom remedied the abuse.

421. This consideration enables us to see the importance of Change

"^ , under

the one change introduced by the act of Henry IV. It directs Henry iv.

that after the election the names of the persons chosen ' shall be

' Rot. Pari. ii. 355 ; above, vol. ii. p. 433. * Above, p. 358.

» Above, vol. u. p. 433. * St; 5 Rich. II, stat. a. c. 4.

• See below, p. 422. • See below, p. 415.



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4o8 Constitutional Hiaiory. [chap.

Law for written in an indenture under the seals of them that did choose

the return .1,,..,

to be made them ; this mdenture is to be tacked to the wnt and is to be

indenture holdcn as the sheriflTs return. By this rule the arbitrary power

sheriff and of the sheriff is directly abolished ; the return is made essentially

by the voters, and the crown is enabled by examining tiie inden-

ture to see at once the character of the persons who have taken

part in the election. The indenture itself was not new; under

that name or under the name of ' pannel ' the sheriff's return had

from the first been endorsed on or sewed to the writ; the

novelty was in the security which the form of the indenture

gave to the authenticity of the return.

imnortMioe A great number of these indentures are preserved \ and from

indenturee. these some inferences more or less conclusive may be drawn.

We must take it for granted that the persons who sealed the

indenture were those who were specially cited by the sheriff, or

drawn from the same class of society; and that the ordinary

suitors or the persons who attended in consequence of any general

proclamation must be regarded as included in the term ' plures

alios' or * cum multis aliis,' or * in pleno comitatu,' in which the

indenture embraces the residue of the electors'.

Number of The number of persons who seal the indenture, is in every

the persons ^ , «. /^

seahnjrthe case Comparatively small: in 1407 the indenture for Cambridge
was sealed by twelve persons, for Huntingdon by eight; in
141 1 twelve join in the return for Kent, six 'cum multis aliis
de communitate' for Derbyshire; in 141 3 twenty-six persons
elect for Wiltshire; in 14 14 fourteen elect for Cumberland,
sixteen / ex assensu totius communitatb ' for Somersetshire,
twelve for Kent, nineteen for Smrey, twenty-four for Sussex,
the same number for Dorset and Somerset, eleven and many
others for Warwickshire; in 1424 eighteen for Lancashire;
in 1447 thirty-one for Gloucestershire, thirty for Surrey; the
number of names rarely if ever exceeds forty.

The quality of the persons who seal the indentures is less

* See Prynne, Reg. ii. 128-133 ; iii. 173-177, 252-3x3.

^ * Plures alios ' ; see the indenture for Cornwall, Prynne, Reg. ii. p. 1 38 ;
* per assensura et consensum . . . . et omnium aliorum fid^um ibidem ex-
istentium*; ibid. pp. 139, 130.



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XX,] Returns on Indentures, 409

easily tested. A comparison however of the names given in Quality of
the indentures with the lists of sheriflFs and knights of the shire
for the respective counties^ seems to show that whilst a fair
proportion of the electors belonged to the families that furnished
sheriffs and knights, the majority of the names are of a less
distinguished class ; either ordinary squires who would not
aspire to the office of sheriff or, as possibly may be inferred
from the character of the surnames, simple yeomen. Unfor-
tunately the smallness of the number of indentures copied by
Prynne makes it impossible to argue very confidently on this
point.

As for the character in which the persons who thus represent Quegtions
T . . i./v X • as to the

themselves as electors acted, opimons may diner. It is most character

probable that they acted primarily as certifying the return, and they acted,
making themselves responsible for its correctness, and not as the
only electors or as a body deputed by the coimty court to make
the election for the whole constituency. Notwithstanding the
terms of the act, directing that the indenture shall be sealed by
all who have taken part in the election, it is certain that others
who did not seal, and who probably had no seals, joined in it.
One remarkable instance proves that such was occasionally
the case, and suggests that it was also the rule. In 1450 the Election for
electors for Huntingdonshire suspected that the sheriff was denshire'
going to make a false return, and accordingly sent in a letter to *° ^
the king which is found in company wth the return. The
indenture contains the names of three squires and two other per-
sons who with * alii notabiles armigeri, generosi et homines libere
tenentes qui expendere possunt quadraginta solidos per annum'
had made the election. The letter to the king is sealed by 124
who declare that they, with 300 more good commoners of the same
shire, had elected two knights ; 70 others had voted for a person
whom they regarded as disqualified by his birth ^. Besides the
interest of this document, which is an important illustration of a
contested election, it proves that whilst five names were sufficient
for the indenture, 119 more were included in the general clause

' Piynne, 'Etjdg. iii. pp. 156-159.

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410 Caastilutional History. [chap.

gfic^^'" * alii notabiles,' and that 300 more freeholders had voted in tiie

donshire. majority against 70 in the minority. In the election thwi for

this small coimty, which had in 174 1 about 1600 Toters, and

in 1852 contained only 2892 registered electors, in 1450, 494

freeholders voted.

^^J^ But although this case conclusively provds that the right of

sealers may election was not exercised by those only who sealed the inden-

have been ^ ,

^oon^ttoe ture, it is quite possible that in some instances they were dele-
gated representatives of the whole body of suitors. In 14 14
the indenture for Somersetshire states that the sealers made
the election ' ex assensu totius communitatis\' a form borrowed
no doubt from the ancient return by t^e sheriff ; but possibly
implying that the election, like the ecclesiastical election ' per
compromissionem/ passed through two stages. And although
tiiere are no words in the returns tiiat imply such to have been
the case, at the same time it must not be forgott«[i that the
custom of electing committees for various purpoeeB had long



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 42 of 68)