The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0091/00919.txt

Text File | 1992-08-07 | 33KB | 524 lines

$Unique_ID{bob00919}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Part XIX}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{footnote
parliament
boroughs
ii
knights
county
burgesses
upon
vol
members}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part XIX

     Whoever may have been the original voters for county representatives, the
first statute that regulates their election, so far from limiting the
privilege to tenants in capite, appears to place it upon a very large and
democratical foundation.  For (as I rather conceive, though not without much
hesitation), not only all freeholders, but all persons whatever present at the
county-court, were declared, or rendered, capable of voting for the knight of
their shire.  Such at least seems to be the inference from the expressions of
7 H. IV. c. 15, "all who are there present, as well suitors duly summoned for
that cause as others." ^u And this acquires some degree of confirmation from
the later statute, 8 H. VI. c. 7, which, reciting that "elections of knights
of shires have now of late been made by very great, outrageous, and excessive
number of people dwelling within the same counties, of the which most part was
people of small substance and of no value," confines the elective franchise to
freeholders of lands or tenements to the value of forty shillings.

[Footnote u: 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.]

     The representation of towns in parliament was founded upon two principles
- of consent to public burdens, and of advice in public measures, especially
such as related to trade and shipping.  Upon both these accounts it was
natural for the kings who first summoned them to parliament, little foreseeing
that such half-emancipated burghers would ever clip the loftiest plumes of
their prerogative, to make these assemblies numerous, and summon members from
every town of consideration in the kingdom.  Thus the writ of 23 E. I. directs
the sheriffs to cause deputies to be elected to a general council from every
city, borough, and trading town.  And although the last words are omitted in
subsequent writs, yet their spirit was preserved; many towns having constantly
returned members to parliament by regular summonses from the sheriffs, which
were no chartered boroughs, nor had apparently any other claim than their
populousness or commerce.  These are now called boroughs by prescription. ^v

[Footnote v: 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 that of unbiassed antiquaries.  If this be kept in view, the
lover of constitutional 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.]

     Besides these respectable towns, there were some of a less eminent figure
which had writs directed to them as ancient demesnes of the crown. During
times of arbitrary taxation the crown had set tallages alike upon its
chartered boroughs and upon its tenants in demesne.  When parliamentary
consent became indispensable, the free tenants in ancient demesne, or rather
such of them as inhabited some particular vills, were called to parliament
among the other representatives of the commons.  They are usually specified
distinctly from the other classes of representatives in grants of subsidies
throughout the parliaments of the first and second Edwards, till, about the
beginning of the third's reign, they were confounded with ordinary burgesses.
^w This is the foundation of that particular species of elective franchise
incident to what we denominate burgage tenure; which, however, is not confined
to the ancient demesne of the crown. ^x

[Footnote w: Brady on Boroughs, pp. 75, 80, and 163.  Case of Tewksbury, in
Peckwell's Reports, vol. i. p. 178.]

[Footnote x: Littleton, s. 162, 163.]

     The proper constituents therefore of the citizens and burgesses in
parliament appear to have been - 1. All chartered boroughs, whether they
derived their privileges from the crown, or from a mesne lord, as several in
Cornwall did from Richard King of the Romans; ^y 2. All towns which were the
ancient or the actual demesne of the crown; 3. All considerable places, though
unincorporated, which could afford to defray the expenses of their
representatives, and had a notable interest in the public welfare.  But no
parliament ever perfectly corresponded with this theory.  The writ was
addressed in general terms to the sheriff, requiring him to cause two knights
to be elected out of the body of the county, two citizens from every city, and
two burgesses from every borough.  It rested altogether upon him to determine
what towns should exercise this franchise; and it is really incredible, with
all the carelessness and ignorance of those times, what frauds the sheriffs
ventured to commit in executing this trust. Though parliaments met almost
every year, and there could be no mistake in so notorious a fact, it was the
continual practice of sheriffs to omit boroughs that had been in recent habit
of electing members, and to return upon the writ that there were no more
within their county.  Thus in the 12th of Edward III. the sheriff of
Wiltshire, after returning two citizens for Salisbury, and burg