all repre

took place in the county

court, the real

election of borough

members in the bor

oughs

of the statute of Henry IV. (1406), which provided that the election should take place in the first county court held after the receipt of the writ, that it should be had in full court by those present, and that after the election the names of the representatives chosen shall be written in an indenture under the seals of them that did choose them, which indenture tacked to the writ as the sheriff's return was to be sent into The formal chancery. During this period there can be no doubt that election of the formal election of all representatives of the commons sentatives took place in the county court; and it seems to be equally clear that the real election of the city and borough members took place in the several municipalities which they were chosen to represent. From the time of Edward I. it seems to have been the custom for the sheriff to send to such towns as he saw fit to recognize a precept or mandate commanding themselves. the town authorities to prepare for the formal election to take place in the county court in which they were cited to appear. The failure of the sheriffs to do their duty by sending the precepts or mandates to the cities and boroughs entitled thereto led no doubt to the act of 1445,2 which undertook to regulate the discharge of this duty by positive law. In the Sheriffs re- words of the Committee: "In cities and boroughs great irlaw to send regularity probably prevailed, for want of settled rules for the precepts to conduct both of the sheriffs of counties in issuing their prethe proper cepts, and the returning officers in returning writs in cities and boroughs; and therefore it was enacted in the 23d of Henry VI., that the sheriffs should issue precepts to the proper officers of cities and boroughs, containing a direction, that in cities the election should be by the citizens of the city, and in boroughs by burgesses of the borough." By this act, which sets forth the fact that the sheriffs have of late sometimes returned persons who were not chosen, and have failed to return persons who were chosen, and in some cases have failed to send precepts, it was provided, that the sheriffs should send to the magistrates of each borough a

quired by

officers of

cities and

towns.

1 "Soient lour nouns escriptz en endenture dessoutz les sealx de toutz ceux qui eux eslisent, et tacchez au dit brieve du parlement; ... et electionem tuam in pleno comitatu tuo factam distincte et aperte sub sigillo tuo et sigillis eorum qui electioni illi interfuerint nos

in cancellaria nostra."-7 Hen. IV. c. 15; Statutes, ii. p. 156.

2

340.

23 Hen. VI. c. 14; Statutes, ii. p.

8 Lords' Report, vol. i. p. 369. See, also, p. 375.

be made by

election in

court.

precept for the election to be held therein; that such election should be held between the hours of eight and eleven in the morning, that the return should be made by indenture be- Return to tween the sheriff and the electors, and that sheriffs, mayors, indenture. and bailiffs who failed to do their duty under the act should suffer a penalty. Such were the legal provisions touching the real election which took place in the boroughs themselves, prior to the formal election which took place in the county court on the day the boroughs were cited to appear therein. At the time appointed a delegation of burghers from each The formal city and town appeared in the county court and there an- the county nounced the names of those chosen in the town meeting, or as deputies of the town, and with its assent they themselves there chose its parliamentary representatives.1 Such is the reasonable inference as to the usual course of procedure which has been drawn from the existing evidence. Under this view the representatives of the borough were either elected primarily by the governing body of the town, and the fact then announced in the county court; or a deputation was elected by the town with power to make its choice in the county court. In either event the original question remains unanswered: Who were the electors who possessed the right to take part in the primary election which took place within the borough itself? This difficult question was vaguely answered by the Committee in the assertion that the sheriffs were directed to issue "precepts to the proper officers of cities and boroughs, containing a direction that in cities the election The elec should be by the citizens of the city, and in boroughs by the city were burgesses of the borough. But who should be deemed citi- the citizens, zens and burgesses seems still to have depended on usage, ough the where not regulated by charter of the crown."2 Where not who were expressly regulated by charter, the right of suffrage every-uizens where depended upon local usage or custom, and such usage depended was so various as to render anything like a perfect generaliza- usage, tion, even upon sufficient data, almost impossible. The near- regulated est approach to such a generalization is that one which has by charter. been made by the master of the constitutional history of the middle ages by the aid of the later evidence which exists

1 Cf. Stubbs, Const. Hist., vol. iii. pp. 2 Lords' Report, vol. i. p. 369.

413, 414.

tors in a

in a bor

burgesses.

citizens and

upon local

where not

tion of

Bishop Stubbs.

Generaliza- when our knowledge of the subject really begins: "The most ancient, perhaps, of the franchises, 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 firma burgi; in others the right still belonged to the whole body of freeholders; and this may be regarded as a second sort of franchise. A third custom placed the right to vote in the freemen of the borough, or of the guild which was coextensive with the borough; the character of a freeman being personal and not connected with tenure of land or contribution to the public burdens. A fourth gave the electoral vote to all householders paying scot and lot; that is, bearing their ratable proportion in the payments levied from the town for local or national purposes. A fifth lodged the right in the hands of the governing body, the corporation; the constitution of which again varied from comparative freedom in one place to oligarchic exclusiveness in another. The newer the constitution of the town was, the less liberal the constitution seems to have been, . . . it is obvious that the tendency of restriction set in from the first institution of charters of incorporation in the fifteenth century." The wonder is that this archaic system, under which as a general rule the right of suffrage was taken away from the main body of townsmen and vested in official oligarchies, should have so long survived as a monument of injustice and inequality. The bringing of order and equality out of this chaos of antiquated custom was the achievement of the Municipal Corporations Act of 1835,2 which reorganized all of the municipal corporations of England and Wales upon a uniform basis. The provisions of that act 3-which recognized the principles that the government of towns should be vested in councils chosen at short intervals by the citizens and burgesses, and that in that class should be included prac

Municipal Corpora. tions Act of 1835.

1 Stubbs, Const. Hist., vol. iii. pp. 419, 420. See, also, as to the original form of the elective franchise in bor. oughs, Merewether and Stephens on Boroughs, Introd., xxvi.

2

5 & 6 Will. IV. c. 76, amended by 22 Vict. c. 35.

8 See Dillon, Municipal Corporations, vol. i. p. 35.

of the

tatives from

sarily

tically all who occupied houses or shops, and paid taxes for the relief of the poor-will be specially considered hereafter. The questions which have now been asked and answered Eligibility as to the qualification of electors naturally suggest an inquiry elected as to the eligibility of the elected members. From the lan- members. guage of the writs it is evident that, so far as the shire representatives were concerned, an early effort was made to limit the honor to members of the knighthood only. Under the writs for the parliaments of 1290, 1294, and 1295, the election was to be made de discretioribus, et ad laborandum potentioribus, militibus.1 The difficulty, however, of forcing the at- Representendance of discreet and able knights made it necessary in the shires the reign of Edward II. to so modify the terms of the writs not necesas to allow the sheriffs to dispense with the original qualifica- knights. tion. The innovation thus brought about was definitely recognized by the statute of 23 Henry VI. c. 14, which declared that only notable knights, or such notable esquires and gentlemen of birth as may become knights, are to be elected; and by no means a man of the degree of yeoman (vadlet) or under. By the statute of Henry V. residence Residence was made a qualification of both electors and elected: the qualificaknights of the shire are to be resident within the shire at the electors and date of the writ, and the same thing is required of their elected by a choosers; and the citizens and burgesses are to be free and Henry V. resident citizens and burgesses. This requirement, after having been long disregarded in practice,5 was finally repealed by 14 Geo. III. c. 58, which made the residence of the Repealed electors and elected in their respective counties, cities, and III. c. 58. boroughs no longer necessary. After the qualified representatives of the shires and towns were duly elected, they were required to give security for their attendance, and the names of the bailsmen or manucaptors were entered in the return,

1 Parl. Writs, i. 21, 25, 29, etc.

2 This change was brought about by adding to the older form, "seu aliis, de comitatu tuo assensu et arbitrio hominum ejusdem comitatus nominandos." See Stubbs, Const. Hist., vol. iii. p. 397. 8 Men of this class had been elected prior to the passage of the act. Upon the subject of "Valetti in Parliament," see the editor's learned note to TaswellLangmead's Eng. Const. Hist., pp. 347,

41 Hen. V. c. I. By statute of 10 Hen. VI. c. 2, it was provided that the land which gave the vote should be situate within the county.

5 As to the statute of Henry V. perishing under the doctrine of desuetude, see Hallam, M. A., vol. iii. p. 115; Peckwell, Rep'ts of Contested Elections, i. 53, note D.

Luders' Reports, vol. i. p. 15.

made a

tion of both

statute of

by 14 Geo.

tatives re

quired to

give secu

rity for their attendance.

potestas.

Wages.

Represen- a practice which continued down to the end of the fifteenth century. The members thus bound over to appear were armed in the early days with a plena potestas,1 in the form of letters of attorney, authorizing them to represent their conThe plena stituents, whose duty it was to provide beforehand for the payment of their wages. Such wages, which were made to cover not only the period of attendance in parliament, but the journey to and fro, and which seem to have been allowed from the very beginning of the representative system, were first reduced to a certain sum by the day in the 16th of Edward II.2 By the writs de levandis expensis issued in that reign, the wages were fixed at four shillings a day for every knight, and two shillings for every citizen and burgess.3

The constitution of

through the

ment of the

writ pro

cess.

From what has now been said, the fact appears that parliament through the development of the writ process in its highest established form the constitution of parliament was finally established as develop- an assembly of estates. Although the name of parliament was not restricted in its earlier use to councils containing representative members, it was finally limited only to such assemblies of estates as contained all of the necessary parliamentary elements and no more, and which were convened under the authority of writs regularly issued.5 In a parliament thus constituted the lords spiritual and temporal appeared to represent themselves in response to the individual writs addressed to each member of the peerage; the representatives from the shires and towns appeared in obedience to the general writs directed to the sheriffs commanding their election; the representatives of the clergy appeared in obedience to the præmunientes clause in the writs directed to the bishops commanding them to cause the election and return of proctors armed with full powers from the chapters and parochial clergy.

The right to issue the parliamentary writs belonged primarily to the king, who, with the advice of his council, could

1 For instances in which it was bestowed, see Parl. Writs, i. pp. 21-23, 39, 41, 59.

2 Prynne, 4th Register, p. 53; Hallam, M. A., vol. iii. p. 114, note 2.

8 Such writs may be traced down to the end of the reign of Henry VIII. See Prynne, 4th Register, p. 495.

4 As to the early use of the term, see Lords' Report, vol. i. p. 20.

5 "The constitution of the legislative assembly of the kingdom must now be considered as resting in usage, as declared by statute in the 15th of Edward the Second." - Lords' Report, vol. i. p. 229