'proclamation' was made in the county court in pursuance of the parliamentary writ. That proclamation certainly was addressed not to the attorneys of half a dozen nobles, but to the whole body of persons entitled to attend the court. Thirdly, the attorneys are said to have made the election by unanimous assent and will.' It is most reasonable to construe that phrase as referring to the assent of the other persons present in the court. If the seven attorneys intended to speak merely of unanimity among themselves, they would probably have used the word consent, not assent. Assensus implies the adhesion of others rather than the concurrence of the parties themselves. And the word is continually so used in legal documents, and particularly in many parliamentary returns by indenture, in which the context expressly shows that the assent was that of the whole body of electors. It is very remarkable that the expressions unanimi assensu et voluntate and libere et indifferenter, which occur in this return, occur also in the nearly contemporaneous returns of burgesses in the same county court of York, which have been noticed in a previous page.* With respect to the return of burgesses, the context puts it beyond doubt that the whole body of citizens had been consulted. The similarity of the language fully justifies a similar inference with respect to the meaning of the phrase "unanimous assent and will' in the county return. Besides, if no more than agreement among themselves were intended, the expression would be utterly superfluous; for the mere fact that they signed the indenture would have been sufficient evidence of such agreement. The practice of appointing attorneys for suitors in the county court was, as we have shown in a former chapter, exceedingly common. An antient statute allowed every free man to send his substitute to do duty for him. Great lords and persons of wealth seem to have almost universally discharged in this way their obligation of attendance. In some cases we find that land was held on condition that the occupier should attend the county court on behalf of the landlord.† In the indenture just cited, the services of the common suitors were said to be required every six weeks, and, therefore, persons in the position of the Archbishop of York would certainly find substitutes to perform that onerous duty. The presence of the attorneys mentioned in the indenture is thus fully accounted for. If the document be understood to mean that the election was made by these seven attorneys, to the exclusion of the rest of the constituency, and that the transaction was under the cognisance of the Arch† Ante, chap. iv. * Ante, p. 126. bishop, the Earl of Westmoreland, and the other noble persons mentioned, it follows that a prelate of metropolitan dignity, and six other persons of exalted rank, not only engaged in an unlawful act, but placed upon record the evidence of their illegal conduct. It follows also that the sheriff gratuitously exposed himself to the severe penalties to which he was liable by statute for making a return without the consent of the constituency. When we turn to the parliamentary writ to which this return was originally sewn, and which is still preserved in the Record Office, we find that it directs that proclamation shall be made in the county court, and that the election shall be made freely and indifferently by those who shall attend upon that proclamation (libere et indifferenter per illos qui proclamationi hujusmodi interfuerint). This form is substantially the same as that which came into use immediately after the enactment of 7 Hen. IV. noticed in a previous page.* It will be observed that in the return the election is said to have been made freely and indifferently (libere et indifferenter). These words are evidently borrowed from the parliamentary writ. But they would be an impudent parody of it if the sheriff and the other parties to the indenture meant to put upon record a statement that only the attorneys of a few great personages made the election. The meaning of the indenture, it appears to me, is simply this: the sheriff, according to the usual practice, asked about half-a-dozen persons to sign the return as witnesses of its correctness, and for this purpose he applied to some of the most respectable people present at the court. The same course is adopted at every election at the present day. The returning officer gets a few of the electors to join in the indenture, and naturally applies to some of the more active and distinguished supporters of the successful candidates. There is no warrant for concluding that either in Yorkshire or any other county, or in any borough, elections were commonly under the control of a few individuals at the period in question. Abuses on the part of the sheriffs occasionally occurred, but the indignant manner in which they were resented by the constituencies is strong evidence that they were not general. The statutes passed in the petitions of the House of Commons in the reigns of Henry IV. and Henry V. conclusively show that the Legislature exercised the utmost vigilance to secure freedom and purity of elections. Until the time of Henry VI. we have not the slightest ground for supposing that Ante, p. 106. The writ of 12 Hen. IV., to which this return is made, is given in the first Appendix to the 'Report on the Dignity of a Peer,' p. 811. the popular rights of suffrage were frequently violated. On the contrary, an Act passed in the 23rd year of that reign (23 Henry VI., c. 14,) expressly states that elections of knights 'have been duly made until now of late that divers sheriffs of the counties of the realm of England, for their singular avail and lucre, have not made due elections.' We have ample evidence that under the earlier kings the people successfully maintained their constitutional right to choose their representatives freely and indifferently.' CHAPTER VIII. THE REPRESENTATION OF BOROUGHS. Boroughs distinguished by their separate jurisdiction, 133.-Saxon government of boroughs, 134.-Saxon municipal charters, 136.-Norman charters, 139.— Royal domain boroughs, 144.-Charters granted to towns not of Royal domain, 146.—Electoral franchise not originally confined to towns of Royal demesne, 148.-Boroughs excused on account of their poverty from sending members, 156.-Revival of discontinued franchise, 158.—The power of the Crown to enfranchise or disfranchise boroughs considered, 159. THE origin of a complete system of representative government in England is, by common accord, referred to the period when the delegates of boroughs first sat in parliament. Before the celebrated assembly of 49 Henry III. A.D. 1265 was convoked by the influence of Simon de Montfort, Earl of Leicester, there had been several parliamentary councils in which knights of shires took part. The convention of Simon de Montfort was distinguished from its predecessors by the presence of citizens and burgesses. Their number is not known; nor is there any record extant which shows the cities and towns which made returns to the summonses then issued. It is certain that this assembly, called together in a revolutionary period, was not regarded after the re-establishment of the royal authority as a lawful precedent. There was no subsequent general summons of citizens and burgesses to a complete parliament until 23 Edward I., A.D. 1295, when Edward I., by his own free authority, convened all the estates of the realm. Happily a copy of the parliamentary returns of that date have been preserved, and we know the names of upwards of 120 boroughs which were then represented. Upon what principle were these towns selected? and who were the electors? In order to answer these questions we must consider what was the constitution of the boroughs themselves in the thirteenth century. It is obvious that a borough must have been distinguished from other towns by something more precise than the mere number and density of its population. These are matters of degree: the law recognised a criterion more sharply defined. The characteristic legal distinction between boroughs and other populous places was the possession of a separate jurisdiction and local government. It has been already explained that the general administration of justice was conducted in the courts of counties and hundreds. But to this general system there were various exceptions. Many great feudal proprietors had by grant or prescription their own jurisdictions, exempt from the authority of the sheriffs and other county officers. Another class of special jurisdictions were those of boroughs which had their own judicial and administrative institutions. It is necessary to revert briefly to the Saxon period in order to understand how those institutions arose, and what was their nature at the time when they became a part of the machinery of representative government. The Conquest did not abrogate the Saxon political system: on the contrary, it was continued in full force in all essential respects at the time when cities and towns were first bidden to send their delegates to parliament. The collection of Saxon laws which we now possess does not give a very copious or specific account of the constitution and privileges of boroughs. But these antient and venerable documents show with sufficient clearness some of the characteristics of the government in those places. For instance, the distinction between the folkmotes of boroughs and of counties is clearly pointed out. The Laws of Edgar' provide (cap. 2, § 5) that the borough gemot shall be holden thrice a year. These assemblies appear to have answered, among other things, the purpose of the sheriffs' turns in shires; for the next section requires that every man shall be under pledge (borh) both within boroughs and without. Certain persons, to the number of thirty-three in the larger towns and twelve at least in the smaller, are to be appointed as witnesses or compurgators, in the presence of whom the sales of chattels are to take place; and each of these witnesses on his election is to take an oath that 'he never, neither for money, nor for love, nor for fear, will deny any of those things of which he is witness, nor declare any other things above what he saw and heard.'* Apparently these provisions refer to the same subject as the 'Laws of Athelstan' (I. § 12, 13), by which 'no man can buy any property out of "port" over 20 pence, but let him buy them within on the witness of the port-reeve or of another unlying man; or further on the witness of the reeves of the folkmote. And we ordain that every borough be repaired 14 days after Rogation Sunday; secondly, that every marketing be within port.' + The Laws of Ethelred' (Articles of Peace, § 6) make some remarkable provisions respecting the preservation of the peace Supplement to Edgar's 'Laws.' * |