[249] Rot. Parl. vol. iii. p. 244.
[250] c.o.ke"s 4th Inst.i.tute, p. 15.
[251] Glanvil"s Reports of Elections, edit. 1774; Introduction, p. 12.
[252] 4 Prynne, p. 261.
[253] Glanvil"s Reports, ibid. from Prynne.
[254] Glanvil"s Reports, ibid. from Prynne.
[255] Id. ibid. and Rot. Parl. vol. iii. p. 530.
[256] Rot. Parl. vol. v. p. 7.
[257] 3 Prynne"s Register, p. 187. This hypothesis, though embraced by Prynne, is, I confess, much opposed to general opinion; and a very respectable living writer treats such an interpretation of the statute 7 H. IV. as chimerical. The words cited in the text, "as others," mean only, according to him, suitors not duly summoned. Heywood on Elections, vol. i. p. 20. But, as I presume, the summons to freeholders was by general proclamation; so that it is not easy to perceive what difference there could be between summoned and unsummoned suitors. And if the words are supposed to glance at the private summonses to a few friends, by means of which the sheriffs were accustomed to procure a clandestine election, one can hardly imagine that such persons would be styled "duly summoned." It is not unlikely, however, that these large expressions were inadvertently used, and that they led to that inundation of voters without property which rendered the subsequent act of Henry VI.
necessary. That of Henry IV. had itself been occasioned by an opposite evil, the close election of knights by a few persons in the name of the county.
Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff"s indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.
[258] The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated."
Ch. J. Hobart in Dungannon Case, Hobart"s Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather a _real_ privilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbia.s.sed antiquaries. If this be kept in view, the lover of const.i.tutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell"s Reports, vol. i.
[259] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell"s Reports, vol. i. p. 178.
[260] Littleton, s. 162, 163.
[261] Brady, p. 97.
[262] Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff"s discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.
[263] Willis, Not.i.tia Parliamentaria, vol. i. preface, p. 35.
[264] p. 117.
[265] It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various pet.i.tions relating to the payment of wages in Prynne"s fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume.
Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200_l._ and be quit in future of all charges on that account.
Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.
[266] The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne"s fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day"s journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne"s fourth Register, and Willis"s Not.i.tia Parliamentaria, pa.s.sim.
The latest entries of writs for expenses in the close rolls are of 2 H.
V.; but they may be proved to have issued much longer; and Prynne traces them to the end of Henry VIII."s reign, p. 495. Without the formality of this writ a very few instances of towns remunerating their burgesses for attendance in parliament are known to have occurred in later times.
Andrew Marvel is commonly said to have been the last who received this honourable salary. A modern book a.s.serts that wages were paid in some Cornish boroughs as late as the eighteenth century. Lysons"s Cornwall, preface, p. x.x.xii; but the pa.s.sage quoted in proof of this is not precise enough to support so unlikely a fact.
[267] 3 Prynne, p. 165.
[268] 4 Prynne, p. 317.
[269] 4 Prynne, p. 320.
[270] 3 Prynne, p. 241.
[271] 5 R. II. stat. ii. c. 4.
[272] Luders"s Reports, vol. i. p. 15. Sometimes an elected burgess absolutely refused to go to parliament, and drove his const.i.tuents to a fresh choice. 3 Prynne, p. 277.
[273] 3 Prynne, p. 252.
[274] 3 Prynne, p. 257, de a.s.sensu totius communitatis praedictae elegerunt R. W.; so in several other instances quoted in the ensuing pages.
[275] Brady on Boroughs, p. 132, &c. Mr. Allen, than whom no one of equal learning was ever less inclined to depreciate popular rights, inclines more than we should expect to the school of Brady in this point. "There is reason to believe that originally the right of election in boroughs was vested in the governing part of these communities, or in a select portion of the burgesses; and that, in the progress of the house of commons to power and importance, the tendency has been in general to render the elections more popular. It is certain that for many years burgesses were elected in the county courts, and apparently by delegates from the boroughs, who were authorised by their fellow-burgesses to elect representatives for them in parliament. In the reigns of James I. and Charles I., when popular principles were in their greatest vigour, there was a strong disposition in the house of commons to extend the right of suffrage in boroughs, and in many instances these efforts were crowned with success." Edin. Rev. xxviii. 145. But an election by delegates chosen for that purpose by the burgesses at large is very different from one by the governing part of the community. Even in the latter case, however, this part had generally been chosen, at a greater or less interval of time, by the entire body. Sometimes, indeed, corporations fell into self-election and became close.
[276] Willis, Not.i.tia Parliamentaria, vol. iii. p. 96, &c.; 3 Prynne, p.
224, &c.
[277] In 4 Edw. II. the sheriff of Rutland made this return: Eligi feci in pleno comitatu, loco duorum militum, eo quod milites non sunt in hoc comitatu commorantes, duos homines de comitatu Rutland, de discretioribus et ad laborandum potentioribus, &c. 3 Prynne, p. 170. But this deficiency of actual knights soon became very common. In 19 E. II.
there were twenty-eight members returned from shires who were not knights, and but twenty-seven who were such. The former had at this time only two shillings or three shillings a day for their wages, while the real knights had four shillings. 4 Prynne, p. 53. 74. But in the next reign their wages were put on a level.
[278] Rot. Parl. vol. ii. p. 310.
[279] Rot. Parl. 1 H. V. c. 1.
[280] See the case of Dublin university in the first volume of Peckwell"s Reports of contested elections. Note D, p. 53. The statute itself was repealed by 14 G. III. c. 58.
[281] By 23 H. VI. c. 15, none but gentlemen born, generosi a nativitate, are capable of sitting in parliament as knights of counties; an election was set aside 39 H. VI. because the person returned was not of gentle birth. Prynne"s third Register. p. 161.
[282] Willis, Not.i.tia Parliamentaria, Prynne"s fourth Register, p. 1184.
A letter in that authentic and interesting accession to our knowledge of ancient times, the Paston collection, shows that eager canva.s.s was sometimes made by country gentlemen in Edward IV."s reign to represent boroughs. This letter throws light at the same time on the creation or revival of boroughs. The writer tells Sir John Paston, "If ye miss to be burgess of Malden, and my lord chamberlain will, ye may be in another place; there be a dozen towns in England that choose no burgess, which ought to do it: ye may be set in for one of those towns an" ye be friended." This was in 1472. vol. ii. p. 107.
[283] Glanvil"s Reports of Elections, edit. 1774, Introduction, p. xii.
[284] Prynne"s third Register, p. 171.
[285] 28 E. I. c. 8; 9 E. II. It is said that the sheriff was elected by the people of his county in the Anglo-Saxon period; no instance of this however, according to lord Lyttelton, occurs after the Conquest.
Shrievalties were commonly sold by the Norman kings. Hist. of Henry II.
vol. ii. p. 921.
[286] Vita Ricardi II. p. 85.
[287] Otterbourne, p. 191. He says of the knights returned on this occasion, that they were not elected per communitatem, ut mos exigit, sed per regiam voluntatem.
[288] Prynne"s second Reg. p. 141; Rot. Parl. vol. v. p. 367.
[289] Prynne"s second Reg. p. 450.
[290] vol. i. p. 96, 98; vol. ii. p. 99, 105; vol. ii. p. 243.
[291] Upon this dry and obscure subject of inquiry, the nature and const.i.tution of the house of lords during this period, I have been much indebted to the first part of Prynne"s Register, and to West"s Inquiry into the Manner of creating Peers; which, though written with a party motive, to serve the ministry of 1719 in the peerage bill, deserves, for the perspicuity of the method and style, to be reckoned among the best of our const.i.tutional dissertations.