William Stubbs.

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

. (page 43 of 68)
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existed in the county courts, and that the analogy of the
borough elections, which went through two or three stages of
the kind, may have affected the county elections also. Here
again no evidence is at present forthcoming. But there can
^eSwrved ^® ^^**^® doubt that the indenture was intended rather as a
mdenture. ^^^ ^^ ^^® sheriff than as a restriction on ihe body of
electors : like the manucaption, it served to secure due com-
pliance with the writ. Occasionally the sealers may have
quietly * cooked' the return. The same inference may be drawn
from the fact that the borough members were often returned
by the same sealers as the knights of the shire : not that they
were chosen by them, but that the return was certified by
their authority. Unquestionably the power of the magnates
whenever it was exerted, the influence of the crown exercised
through the sheriff, the risk of popular tumult, and the per-
sistence of local usage, as well as the freedom of the county
courts, must be allowed to balance one another, and to affect
the result.

The strangest instance of local usage is found in the inden-
* Pryime^ Beg. iiL p. 171.



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XX.] Icrhhire EleetioM. 411

tores of return for Torksbire, which are quite unlike those of the Indentnref
other counties, but so consistent with one another for a series Yorkthire
of yean as to prove continuity of usage ^. The indentures xff from 1407
the reigns of Henry IV and Henry V, wid of Henry VI down '^*'
to his twenty-third year, show that the electors who sealed
the return were the attorneys of the great lords of the
franchises. The indentures for 141 1 and 14 14' may serre as
specimens of the series: in 141 1 the electors are the attorneys
of Ralph earl of Westmoreland, Lucia countess of Kent, Peter
baron de Mauley, William baron de Boos, Balph baron of
Qreystc^e, "Sir Alexander de Metham, and Sir Henry Percy ;
they represent their masters as common suitors to the county
court of Yorkshire from six weeks to six weeks; in 14 14
the indentures are sealed by the attorneys of the archbishop
of Tork, the earl of Westmoreland, the earl Harshall, Uie
lord le Scrope of Masham, Peter de Mauley, Sir William
Metham, the lord de Roos, Margaret lady Vavasour, and Henry
Percy. These indentures differ from the others not only in Cnrioiw
the character df the electors but in tibe nature of the interest ofthoB e
they represent ; for in the other counties it is rarely that any one
above the rank of esquire appears as a party to the election.
One condusion that can be safely drawn is that the sheriff
of Yorkshire in 141 1 understood the writ differently from the
other sheriffs, and that liis successors followed slavishly in his
steps. Of course it is possible that the Yorkshire county court
jurisdiction may have been long broken up among the courts

» Pryone. Reg. iii. pp. I5a-154» I55«

' The form in 1411 is this : The indenture made between the sheriff of
the one part and the attomeys of the lordi ' sectatonim commnnium [i. e.
the lords) annaatim ad oomitatum Ebor. de sex septimanis in sex septi-
manas, ex parte altera, testatur quod fnota proclamatione per dictum vice-
oomitem in comitatu pmedioto, virtute cujiudam brevis &c. &c. praedicti
attomati imanimi aasensn et voluntate in praedioto comitatu existentee
et plenariam potestatem de seotatoribus praediotis separatim habentes,
Hbere et indifferenter elegerunt duoe milites etc.* After the act of 1445
the form is changed: it then becomes an indenture between the sheriff
and forty-three squires and others *eleotores militum ad parUamentum,*
&c. ; but these persons still make the election * unanimi assensu et con-
sensu/ without any reference to the remainder of the county court.
Prynne seenui to imply that the first form was followed down to 1445,
but he gives no instances between 1429 and 1447.



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4^2 Constitutional History. [chap.

dect^r ^^ *^® wapentakes and great franchises; so that recourse in
petty causes was seldom had to it ; and it will be remembered
that in 1220^ the stewards of the lords were the leading members
of it. But although the great size of the coimty, and of the
private jurisdictions embraced in it, may have led to such an
attenuation of the six weeks' court, the assizes of the justices
were always largely attended, and there could have been no
difficulty in assembling a very large body of yeomen freeholders.
The simplest solution is to view the return simply as a cer-
tificate of an uncontested election. The anomaly, whatever its
cause, was remedied by the act of the 23rd Henry VI ; after
which date the returns were made in the common form.
Legisiatton The changes in the forms of the county elections made by the
House of later Lancastrian legislation may be briefly stated : the act of
on elections. 14 10 placed the conduct of the elections undar the cognisance
of the justices of assize and established the penalty of £100
on the sheriff, and forfeiture of wages as the punishment of
the members unduly returned*; the act of 1413* enforced
residence as a qualification of both electors and elected; and
that of 1427 gave the accused sheriff and knight the right to
traverse the decision of the justices *. The act of 1430 ', besides
establishing the forty shillings freehold as a qualification for
electors, gave the sheriff power to examine on oath the persons
who tendered their votes, as to the extent of their property;
and that of 1432 ordered that the freehold qualifying the elector



* VoL ii. p. 214.

' See above, p. 357 ; St. ii Hen. IV, 0. I ; Statutes, ii. i6a.
» St. I Hen. V, c. I ; Statutes, ii. 170.

* St. 6 Hen. VI, c. 4 ; Statutes, ii. 135.

* St. 8 Hen. VI, c. 7 : * quQ les chiviJen des countes deins le roialme
D'engleteire a esliers a yenir a les parlementz en apres a tenira, soient eslus
en chescun counte par gentz demeurantz et receantz en icelles dount che»-
cun ait frank tenement a le valu de xls. par an al meim outre lee
repriites ; et que ceux qui serront ensy esluz soient demeurantz et receants
deins mesmes les countes ; et ceux qui ount le greindre nombre de yceulx
que poient expendre par an xls. et outre, come desuis est dit, soient
retoumez par les viscontz de chescun countee chivalers pur le parlement
par endenturs ensealles parentre les ditz viscontz et les ditz eliiors ent
afi^ires ; et eit chescun vicont D'Engleterre poair par auctorite suisdite
examiner sur les snintz Evangelies chescun tiel elisour come bidn.il poet
expendre par an ' ; Statutes, ii. 243.



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XX.] Borough Elections. 413

should be situated within the county \ By the act of 1445 it is Preoepto for
further ordered that the sheriff shall send to the magistrates elecfcinis.
of the several cities and boroughs within their counties a pre-
cept for the election to be made by the citizens and burgesses
and returned by indenture between them and the sheriff'; the Penalties
penalty on the negligent sheriff is £100 to the king and £100 obeervanoe.
to the offended party, on the negligent mayor or bailiff £40 to
each ; the hours of the elections are fixed between eight and

eleven in the morning : the persons to be elected are not Ezolnsion

, , ofyecmen
to be of or below the degree of yeoman • ; and these directions from being

are to be inserted in the writs. If we may argue from the later

indentures none of these regulations made much change in the

form of the proceedings : the same class of men seal the returns

before and after the act of 1430, and the same class of men are

returned before and after the legislation of 1445.

422. The variations of the process of city and borough elec- City and
tions are, if not more extensive, at least more intelligible than el^^mis.
those of the county elections; the electoral bodies were more
definitely constituted and the factors more permanent. Yet the
historical difficulties of the subject are very great, and the
materials for a trustworthy conclusion very scanty.

Ab the formal election of the borough members took place, Formally
throughout the whole of this period, in the county court, and in the
the returns were made in ihe same document as those of the oow^
knights of the shire, the causes which disturbed the regular and
orderly elections of the latter, influence, custom and faction,
would also affect those of the former ; and to these was added the
iBd that many towns felt a great reluctance to send members at

' St. 10 Hen. VI, c. a ; Statutes, ii. 373.

* The statute of 1445 states that of late divers sherifiv have not made
due election, or returned good and true men ; sometimes no return has
been made of the persons really chosen, but persons have been returned
who have not been chosen ; and the returns of the boroughs have been
altered by the sheriff ; the sherifis have made no returns, or the writs have
been emoezzled ; they have sent no precept to the boroughs, and the
penalties were not sufficient to ensure obedience. See St. 33 Hen. VI,
c 14 ; Statutes, ii. 340. Compare the petition of 1436, below, p. 415.

' In 1447 the indenture for Surrey is in English, and the sealers say that
they * as notable squires and gentlemen,' have elected : Sussex makes a like
return in Latin ; Prynne, R^. iii. 173, 174.



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414 Constitutional History. [chap.

all, and bo to put themselves to the cost of their wages and ae-
knowledge themselves liable to the higher rate of taxation.
Po^«r of Accordingly in some of the earlier returns it is possible that the
to omit sheriff, or the persons who joined with him in electing the knights
of the shire, elected the borough members also ^ ; that boUi were
elected * in pleno comitato ' in a very parfonctory way ; and that
the sheriff omitted towns that he wished to favour and exercised
that irresponsible authority which the statute of 1382



Boroagh intended to abolish \ Bat as a rale it is more probable that a
repcHTted in delegation of burghers from each town attended the county
court. court and either announced to the sheriff their own choice made

on the spot, or declared the names of those whom their
The writ townsmen had chosen in their own town-meeting. From the

notified to ^_ . » -nt i-n-*. •! 1 ^ «.»

the borough returns of the reign of Edward 11 it is dear that the sheriff
communicated the royal writ to the towns of his county and
awaited their answer, before recording the names of their mem-
bers ; if they neglected to answer he noted the fact on the writ '.
And this may be regarded as the legal method of proceeding ;
the town authorities received notice to prepare for the formal
election at the time when they were cited to the county
ThesheriTs court. This notice or mandate of the sheriff to the towns was
^'^^^ known as the sheriff's precept, and we learn from the aet of
1445 that although at that date many of the sherifb ne§^eeted



^ Returns made by the bailifiB of pUces where the bailiflb haA the retmnB,
«re in Part Writs, i. 67, and others made by the sheriff where no sofik
intermediate transaction took place, ib. i. 70, 75. Instances in which tiie
return for the boroughs was made not only in the county court but by the
sealers of the indenture of the kni^^ts are given by Prynne, Beg. iiL
pp. 1 75 sq. Possibly these were the sole electors and the boroughs had
neglected their duty, but &r more probably the return is to be regarded as
a mere certificate of election.

• See above, vol. ii. p. 616.

' A very good instance of this practice occurs in 1533 ; the sheriff of
Suffolk gives on a schedule annexed to the writ not only the names of the
elected members and their manucaptors, but the names of the bailifib of the
boroughs who sent in the returns. The next year the same plan is adopted,
and, one of the elected knights not having a manucaptor, the sheriff iaraed
a 'precept* to the steward of the liberty of S. Edmund's, who replied thai
the knight in question was away on duty in the north ; Prynne, Reg. iii.
181-184. The *preoept' is the document by which the sheriff directs the
execution of the writ. The common return by the sheriff * Ballivi nullum
mihi dedenmt responsum' proves that this was the rule.



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XX.] Borough Elections. 415

to sefid the precept to their boroughs, the rule that it should Sherirs

be done was held binding, and by that act it was enforced ^. ^rd^

However negligently or pOTfunctorily then the sheriff might

conduct the business, the legal plan varied little; it was his

duty to transmit a copy of the writ with his precept to the town

magistrates; they superintended the real election; and by their

messengers or deputies the formal announcement, or formal eleo*

tion, was made in the county court ; and the same messengerf

or deputies, after the act of 1406, were parties to the indenture

of return. Of the part of the work done in the county court fastonce of

. , - i 1 . . , , ^^ bOTouff h

the ^ldenture for Dorsetshire m 141 4 may be taken as an elections

illustration ; in that yter in the shire moot the members for on the

indenture.
Dorchester were elected by the assent of the whole community

of the borough of Dorchester by burghers of the town ; those
for Bridport by four burghers of Bridport; and those of the
rest of the towns in exactly the same way ; all are returned on
one indenture, but the process takes place in each case uni^
formly ' ; four representative burghers attend, like the four men
and the reeve in the ancient folkmoots, and on behalf of their
neighbours transact the business of the day. That business
may have been the primary election ; but in many cases and
perhaps in all it was only the report of the election made at
home. It is probable that in the large and better organised
towns this formality was always observed, whilst in those which
had no chartered government the sheriff would be left to manage
the election as he pleased. It certainly appears from a petition
presented in 1436, that the interference of the sheriffs in the town
elections was both arbitrary and vexatious ; they returned mem-
bers who had not been duly elected ; the. commons prayed that
they might be compelled to do right, or be fined '.

When the time comes for the ancient towns of England to TTnoertdnty

. M to the

reveal the treasures of their municipal records, much light must oustomt of

, borooghfl in

be thrown upon the election proceedings of the middle ages, the matter
At present what little is known of them is to be gathered from
a few scattered sources ; but it would appear certain that the

^ See above, p. 415. * Ptynne, Beg. iii. p. 355.

* BotParLiT. 511.



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4i6



Constitutional History,



[chap.



London
elections.



Custom at
Bristol.



Elections
at York.



whole order of proceeding rested upon local usage and might
be altered by local authority, and that the rule adopted in the
municipal elections of the particular town was generallj fol-
lowed. The custom of London in the reign of Edward I,
described in a former chapter, was that the election should be
made by the mayor, the aldermen and four or six good men of each
ward * ; a method likewise adopted for the election of the mayor
himself. In 1346 an ordinance was passed in the city directing
that twelve, eight, or six persons from each ward should come
to the assemblies for electing the lord mayor, sheriffs and mem-
bers of parliament. In 1375 another change took place; the
elections were to be made by the common councilmen, and the
common councilmen were to be nominated by the trading com-
panies. Notwithstanding an alteration made in the appointment
of common councilmen, the elections were transacted, from this
date to the fifteenth year of Edward IV, by a body summoned
by the lord mayor from a number of persons nominated for the
purpose by the companies ; and in the latter year the franchise
was formally transferred to the liverymen of the companies ^

It can hardly be supposed that the smaller chartered cities
whose privileges were modelled on those of London would
follow these changes, but the earlier custom might very well be
followed in places like Oxford. At Bristol, after the town was
made a county by Edward HE, the election seems to have fol-
lowed the custom of the county elections ; accordingly, when
the forty shillings suffrage was established the members were
returned by the forty shillings freeholders only ' ; of these fivm
twenty to thirty seal the indentures; it may be inferred that
the proceeding was direct and went through only one stage.
At York, which was likewise a county, a somewhat similar
practice appears as soon as there is any direct evidence, in the

* See above, vol. ii. p. 334. The London election of 1296 is described in
Pari. Writs, i. 49 ; that of 1 300, ib. p. 85. In 1314, the mayor, aldermen,
and probi homines of each ward, chose three citizens, out of whom the
mayor and aldermen chose two ; and the commons three, of whom again
they chose two ; these four or two of them had full powers given them ;
ib. II. i. 1 39 ; yet only two were simmioned in the writ.

' See below, chap, xxi ; Norton, Commentaries on London, pp. TI4,
115, 126. • Prynne, Register, iii. pp. 360, 368.



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XX.] Borough Elections. 417

reign of Elizabeth. On October 28, 1584, thirty-six freeholders Double
and commoners appeared and heard the writ in the council election at
chamber ; they then went into the exchequer court and voted
privately ; four names, the result of this conclave, were laid
before the assembled freeholders who chose two by a majority of
votes ; on the 9th of November the names were submitted to
and approved by the county court of the city^. Traces of the
same form may be found in the earlier York records, although
in 1484 the proceedings seem to have occupied but one sitting
of the council' and there is no noUce of any approbation of the
county court; earlier still, in 14 14, the indenture shows that the
lord mayor and thirteen 'co-citizens/ having full power from
the whole community, chose two citizens •. Unfortunately the
ambiguity of the word 'conmiunity' deprives this and many
other similar instances of any great significance. Other in-
stances seem to suggest that the favourite way of making the
election was a double one ; a small committee or jury of electors
was chosen, or otherwise nominated, or a pretaxation was made
by the ruling officers of the community. At Leicester, from Eieotiona at

lieicester

the time of Edward lY to the Restoration, the mayor and Norwich,'
twenty-four chose one member, the commons the other ^ At and
Norwich in 14 14 an agreement was made that the election
should be made by the common assembly and reported in the
county court'. At Shrewsbury in 1433 ^^ ^^ agreed that the
burgesses should be chosen in the same way as the auditors;
that is, after three peals of the common bell, by the assem-
bled commons, and not by a bill * afore contrived in disceit of
the said commons V At Worcester in 1466 the rule was that
the members should be chosen openly in the Quildhall by the in-
habitants of the franchise, * by the most voice, according to the
law and to the statutes in such case ordained, and not privily*^/

* Drake, Eboracum, pp. 358, 359.

* DavieB, York Recoidfl, pp. 138, 144, 181, 184. In 148a the entry is
* Deo. I3» &c. At thys di^ be the advise of the holl oounsell my lord the
mair, Riohard York, and John Tong war chosyn dtizins and knights of the
parlement for this honorabill dte and the shir of the same' ; p. 138.

* Prynne, Beg. iii 268. * Nichols' Leicestershire, i. 432.

* Blomfield's Norfolk, ii 95. • Rot ParL iv. 478 ; ▼. 175.



V Smith's Gilds, p. 393.
VOL. ui. Be



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41 8 Constitutional History. [chap.

In towns of simple constitution the election may have been
transacted by the older machinery of the leet ; and the leet jury
Complex would elect the members. In others it was very complex. At
Lynn and Lynn in 1 384 the members were elected by John a Titleshall
" and eleven others forming a jury \ How this jury was chosen
we learn from the Lynn records of 1432 and 1433 : the mayor,
with the assent of the town meeting, nominated two of the
twenty-four, and two of the common council ; these four chose
four more, two out of each body ; and these eight co-opted two
more, and the ten two more ; these twelve, being sworn accord-
ing to custom to preserve the liberty of the town, chose two
burgesses to go to parliament'. A similar rule was adopted at
Cambridge, whence probably it had been borrowed by Lynn ;
in 1426 the members were elected by a select body of eight
burgesses; this election by eight is described in the year 1502 :
the mayor and his assessors nominated one person, and the com-
monalty another, these two elected eight, and the eight elected
the members. The custom had been maintained, and is called
the custom of the borough, notwithstanding an ordinance of the
corporation made in 1452 directing that the election of the
burgesses of the parliament should be made ^ by the most part
of the burgesses in the guildhall at the election, and not one for
the bench by the mayor and his assistants and another by the
commonalty as of old time hath been used'.'
Variety of These instances are sufficient to prove that the exercise of the
of voten. local franchise was a matter of local regulation until the cogni-
sance of elections was claimed and recognised as a right and
duty of the house of commons. As it is difficult even conjec-
turally to realise the formal process of the election, it is more
difficult to say in whom the right of suffirage in the boroughs

* Beloe, Our Borough, p. 25.

' ' 1433) June 17. The king's writ was then publicly read for electing
memben of parliament. And for electing them the mayor called two d^
the twenty-four and two of the common council, which four chose two
more of the twenty-four and two of the common council, and they chose
four others, who aU unanimously chose John Waterden and Thomas Spicer
to be burgesses in parliament.' 1437, Jan. 7, a similar election was held,
the mayor nominating the first two by the assent of the whole congrega-
tion : Extracts from the Records of Lynn, Archaeologia xxiv. 320.

' Cooper, Annals of Cambridge, i. pp. 173, 205, 272.



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XX.] Borough Elections, 419

was supposed to lie : the whole of our medieval history scarcely Obscurity

*► . 1 1 . m , arismg firom

famishes more than one or two mstances of a contested county diversity or
election: the town histories are altogether silent. And the^
differences and difficulties, which arise as sooji as political
life wakes again in the seventeenth century, show that this
obscurity is not new. The franchise, as soon as its value was
ascertained, became a subject of dispute between different
classes of men, or different candidates for the representation, in
every town : the great addition of borough members to the
house of commons, caused by the measures of the Tudor sove-
reigns, brought an influx of strange novelties; the old towns
which had never been troubled with a contest had no precedents
of custom to allege ; in some instances the rules for municipal
elections were applied to the parliamentary elections, in others
the custom of the county courts was followed, and in others the
inhabitants were left to follow their own political instincts of
freedom or repression. The increased strength and exclusive-
ness of the corporations in the chartered towns had in some
instances withdrawn the choice of the members altogether from
the body of townsmen : in others the weakness of the magis^
trates had let it slip altogether into the hands of the freemen.
In all cases the elections were becoming direct and primary.

It is impossible to argue back fr*om the parliamentary uinstrations
judgments of the seventeenth century to the practice of themod^
middle ages : but, as it is improbable that any completely new ^ ^"**
system of franchise was introduced in the sixteen^ century, we
may briefly indicate the several theories or customs which are
found in working when our knowledge of the subject begins.
The most ancient, perhaps, of the frtinchises was that depending
on burgage tenure ; this was exactly analogous in origin to the
freeholder's qualification in the counties ; but as the repressive
principle extended, the right of a burgage vote had become in
many places attached to particular houses or sites of houses,
probably those which were originally liable for a quota of the



Online LibraryWilliam StubbsThe constitutional history of England in its origin and development, Volume 3 → online text (page 43 of 68)