VI. Electoral Practice
Available from Boydell and Brewer
In view of the superiority of the shire knights among the Commons, it is hardly surprising that when the Crown took a special interest in the personal qualifications and eligibility of Members, it was mostly in relation to them. The requirement expressed in the writs of summons of 1373, that the citizens and burgesses should be men with considerable experience of seafaring, who were well versed in mercantile business (‘qui in navigio ac in excercitio mercandisarum noticiam habent meliorem’), was quite unusual, in that it only applied to the townsmen.1 There were, of course, some occasions when the writs introduced a special requirement without discriminating between the shire knights and the representatives of towns. For instance, prior to each of the successive Parliaments of 1351, 1352, 1354 and 1355, the writs demanded that none of those elected should be contestants at law, maintainers of disputes or individuals making a living out of such legal actions (‘perlitatores, querelarum manutentores, aut ex hujusmodi questu viventes’), but rather persons of substance and integrity, having the people’s good at heart (‘homines valentes et bone fidei, ac publicum commodum diligentes’). Those returned to the Parliament of 1358 were in general expected to be persons of some social distinction (‘de elegancioribus personis’).2 Overall requirements of this kind were, however, exceptional; and, when modifications of the common form of the writs of summons were made, they more often than not revealed some special royal intention affecting the shire knights alone.
Quite early in the history of the ‘representative parliament’ it became clear that not all the representatives of the shires would be of knightly rank. So much so that the designation ‘knight of the shire’ virtually became a technical term. Evidently, it was not always easy for a county court to find two knights proper, or even one, available and ready to serve; and it was sometimes possible for a county, when electing a representative of inferior rank (possibly a ‘valletus’ or yeoman), to bargain for a reduction of his daily expenses, paying him less than the customary 4s.3 Indeed, the Crown itself, at times and for particular reasons, was quite prepared to allow, even formally in the writs of summons, persons who had not actually been knighted to be returned for counties. For instance, in November 1330, supplementary writs were served upon the sheriffs, warning against a repetition of the election of shire knights suspected of fraudulent conspiracy and maintenance of parties to private quarrels (which had hindered attempts in Parliament to redress ‘les grevaunces du commun poeple’), it being clearly stated that those returned might be either knights proper or ‘serjeantz’ (possibly tenants under the rank of knight holding land by knight-service). Indeed, not until 1340 did the writs of summons first specifically require the election of ‘belted knights’ (‘milites gladio cinctos’).4 This move followed Edward III’s recourse to war against France, and ‘it is noteworthy that [in Edward’s reign] all the writs demanding “belted knights” were summonses to parliaments whose main objects were to provide means for defending the realm against invasion, and for conducting campaigns abroad’.5 Even so, such a requirement was not re-introduced until November 1348, when the stipulation was for knights girt with the sword, holding the rank of knight, and no others (‘milites gladio cinctos et ordinem militarem habentes, et non alios’). In fact, since the Parliament in question was prorogued and eventually cancelled because of the Black Death, this demand was not effectively renewed until 1355; and after peace with France had been negotiated in 1360, it was not again made until 1371, in anticipation of the first Parliament to meet following the resumption of the war. These writs of summons demanded not just belted knights, but those who had been thoroughly tested in the practice of arms and by feats of arms (‘in armis et actibus armorum magis probatos’). No such specific request was made with regard to the Parliament of 1372, and although the writs of summons issued in the following year did urge that belted knights should be returned, the election of esquires (‘armigeri’) was then expressly permitted. This concession or relaxation was, however, to apply exclusively to those qualified by considerable experience of feats of arms (‘in actibus armorum magis expertos’): belted knights or esquires well-acquainted with service in the field, therefore, but no-one of any other station in life (‘et non alterius conditionis’).6 These same writs of 1373 not only prohibited, for the first time explicitly, the return of sheriffs in office,7 but also, as is implied by the words ‘et non alterius conditionis’, the election of professional lawyers (although this was not for the first time).
In this context, it is surely significant that the previous Parliament had witnessed the passage of an ordinance forbidding the election as shire knights of both sheriffs and ‘gentz de ley’ engaged in business in the King’s courts on behalf of clients who had retained them for that purpose.8 The ordinance had been framed in answer to a petition submitted by the Commons; and their objection, so far as lawyers were concerned, was expressly to the way they exploited their Membership of the Lower House to promote their clients’ petitions ‘in the name of the Commons’, although these were really private petitions and thus of no concern to the Commons (‘qe rien lour touche’). No doubt the King had seen eye to eye with the Commons, hence the passage of the ordinance. Election of sheriffs continued to be regularly and, on the whole, effectively prohibited by the writs of summons themselves. The exclusion of lawyers, however, was to prove impossible to maintain. Indeed, on only one future occasion did the writs ever explicitly proscribe their election: namely, when Henry IV, summoning Parliament to meet at Coventry in October 1404, forbade the return of any apprentice-at-law or other lawyer (‘aut apprenticius sive aliquis alius homo ad legem’).9 It appears that this ruling was meant to apply generally, in towns as well as counties; and that, given the sobriquets the Coventry Parliament was accorded—‘Parliamentum illiteratum’, ‘Parliamentum indoctum’—it was, by and large, obeyed.10 Henceforward, however, it was a form of royal interference never repeated.
Such overt intervention in the free conduct of parliamentary elections as was contained in the writs summoning the Coventry Parliament of 1404 appears to have been all but unique. Quite possibly the reason behind it was political. Certainly, this had once previously been the case, in 1387, when a departure from common form in the writs of summons issued on 17 Dec. can only be interpreted, as indeed it was at the time, as politically inspired, being instigated by Richard II himself. Since he had known for over a month that the most important of his supporters were to be tried for treason in the Parliament due to meet on 3 Feb. 1388, and had been warned by the sheriffs, at Nottingham in the previous summer (as the chronicler, Thomas Walsingham, tells us), that any attempt to pack Parliament in his own interest was bound to fail, Richard was now doing his best to prevent his opponents, led by the Lords Appellant, from packing it in theirs.11 Consequently, the writs issued on 17 Dec. expressly required that the shire knights should be men who had not taken sides in current disputes (‘in debatis modernis magis indifferentes’).12 Having easily overwhelmed a royalist army at Radcot Bridge in the meantime, the Lords Appellant were clearly responsible for the fresh writs issued on 1 Jan. 1388, cancelling the objectionable clausula as ‘contrary to the form of election anciently customary, and against the liberty of the lords and commons of the realm of England ... hitherto maintained’.13 These departures from common form in the writs highlight the current state of crisis; and, along with most others, also reveal just how politically important in the Lower House, and indeed in Parliament generally, the shire knights were deemed to be.
Apart from Richard II’s writs of summons of December 1387 demanding the election of knights who were considered to be politically impartial, and those of Henry IV prohibiting the return of lawyers to the Coventry Parliament of 1404, none of the writs after 1373 imposed any fresh requirement regarding the personal qualifications of Members of the Lower House, social or otherwise, until November 1430. The change in these writs, summoning the Parliament of January 1431, related only to the shire knights, who were now required to be resident in the counties which returned them.14 No doubt it had always been assumed that the shire knights would ‘belong’ their counties, as would the citizens and burgesses their towns. Not until 1375, however, had the writs of summons expressly drawn attention to the need for a knight to be ‘of the county’ (‘comitatus predicti’) he was to represent,15 although from then until 1429 they invariably did so. Whether or not this simply worded requirement came to be considered inadequate, the Commons in Henry V’s first Parliament (1413) evidently felt that the residential qualification ought to be emphasized, not just with regard to the shire knights, but to the townsmen as well. Their concern actually led them to request that all knights should be resident in their counties at the time of their election, and citizens and burgesses both resident and enfranchised in their towns. With the King’s agreement, this important petition was converted into a statute, his answer to the petition and the statute itself stipulating, moreover, that residence on the part of the knights should be defined as residence at the time of the issue of the writ of summons (‘le jour del date du brief’), not merely at the time of the election.16 Even so, the writs themselves continued unchanged until 1430; and it was only then, for the first time ever, that they were so revised as to lay sufficiently weighty stress on the residential qualification, doing so in compliance with a statute of the previous Parliament (1429-30), which, however, like the writs themselves, referred explicitly to the knights alone. (This statute is, of course, best known for its restriction of the electoral franchise in the counties to 40s. freeholders.) Shire knights were now obliged to live in the counties returning them (‘demurantz et receantz’ according to the statute, ‘commorantes et residentes’ in the writs); and it had taken another Commons’ petition to bring about the change.17 The next, hardly less remarkable, alteration to the writs did not take place until Parliament was summoned in December 1446 to meet at Cambridge in the following February, only to be reconvened on 20 Jan. to assemble that same day at Bury St. Edmunds instead. These changes also embodied the terms of a statute of the immediately preceding Parliament (1445-6):18 touching, inter alia, the personal qualifications of the shire knights, not only did the new writs continue to insist upon residence, but, when requiring the electors to return ‘notable knights of the same county for which they were elected, or else such notable esquires [or] gentlemen as were capable of becoming knights’, they actually stipulated that men in the latter category should even have been born there (‘del nativite des mesmes lez counteez’ according to the statute; ‘de natu eorundem comitatuum’ in the writs). In addition, both statute and writs expressly prohibited the election of anyone of the status of yeoman (‘vadlet’) or below.
However important the personal qualifications of parliamentary representatives elected by the local communities may have been, they were by no means the only factor leading to the Commons’ presentation of petitions and the enactment of statutes which changed the verbal form of the writs of summons. Indeed, of greater fundamental significance was the question of electoral procedures. For if reforms achieved freedom of local election (as was their intention), the return of suitable representatives of good standing, which was naturally in the interest of the communities themselves, could be left to the electors to make independently. Yet, because shire elections were held at meetings of one common local institution, namely, the county court, whereas the conduct of elections in the towns varied considerably according to the system of government adopted from place to place, attempts to regulate procedure from without naturally tended to affect the way the knights, rather than the burgesses, were chosen. In any case, the social and political superiority of the shire knights among the Commons made it inevitable that county elections would attract legislative interest to a more notable extent.19 It is, indeed, obvious that sooner or later, if only in the interest of law and order, the legal constitution of the electorate would need to be properly defined, in terms of a formal enactment, stipulating precisely who were entitled to participate in elections in the county courts. Clearly, in order to safeguard freedom of election, and ensure that a free choice of candidates was made fully effective, the authority, power or influence of the local sheriff would have to be controlled and limited. The latter’s role in any election was always potentially crucial. It was not just that, as the chief royal official in the county, to whom the writs of summons were addressed in the first place,20 the sheriff had to hold the election in his court and make the return, so affording him opportunity to bring undue pressure to bear upon the electors in his own interest (which sometimes involved returning himself) or, if this failed, to falsify or otherwise tamper with the return. If there were outside interference, especially on the part of the King or government, or even undue interference from within the county itself by interested groups or individuals, such meddling or ‘labouring’ would most likely owe much to the sheriff’s mediation or contrivance.21 Both sorts of intervention were always possible; and Richard II certainly strove more than once to limit the free choice of the county electors. As we have already seen, his attempt to do so in December 1387, by having the very writs of summons urge the sheriffs to secure the election of shire knights who were ‘impartial in current disputes’ was thwarted by the issue of subsequent orders countermanding the injunction. Nor was this his first sortie into the field of electoral management, since in order to ensure the return of MPs favourable to the court party, similar efforts had apparently been made before. At all events, when, in the Merciless Parliament of 1388, the chief of Richard’s supporters were called to answer charges of treason laid by the Lords Appellant, they were accused of having had him order the Council to appoint sheriffs who, instead of holding proper elections, would themselves arbitrarily nominate the shire knights (obviously in the royal interest).22 Towards the end of his reign, moreover, Richard took steps, repeatedly it seems, to interfere in shire elections; and the sheriffs were once again expected to assume (and sometimes indeed played with success), a leading part. The long list of detailed charges of misconduct, presented in 1399 to justify Richard’s deposition, included the complaint that he had been wont to order the sheriffs (‘direxit mandata sua frequentius vicecomitibus suis’) to return nominees of his own as shire knights. The latter had, moreover, been subject to such pressure in Parliament, either through threats or gifts, as to have induced them to consent to ‘acts prejudicial to the realm and excessively burdensome to its people’, notably, in the Parliament of 1397-8, granting the King, for his lifetime, the wool subsidy, and, for a term of years, a subsidy on moveables.23
Despite this latter-day protest against Richard II’s interference in shire elections, his successor, Henry IV, apparently indulged in comparable practices. In the manifesto issued to justify their rebellion in 1403, the Percys alleged inter alia that Henry, in breach of his coronation oath to preserve laws and good customs, ‘had cunningly written to many of his supporters in all counties telling them to see to the election to every Parliament of such knights as would please him’ (with the result that ‘they themselves had been unable to obtain justice in their present quarrels with him’).24 And again, when Archbishop Scrope and the Earl Marshal drew up a list of grievances to vindicate their uprising in 1405, they demanded, according to versions of this manifesto contained in Thomas Walsingham’s chronicle, not only that Parliaments should meet in London, but also that the elections of shire knights should be held freely everywhere.25 The implications of this double-edged demand (that the rebels objected to the last Parliament being held at Coventry, and, in particular, to the formal exclusion of lawyers from it), are made explicit in what is virtually a gloss of this article of the manifesto provided by another contemporary chronicler who remains anonymous. In his words, in addition to demanding ‘the removal of royal councillors who, greedy and covetous, were obtaining from the King, to their own enrichment, assets assigned to help the State’, Scrope and his associates also demanded:
that lawyers [‘jurisperiti’] should come to Parliament, there to offer advice as prompted by their sagacity; that the knights of communities and burgesses of towns who were to be sent to Parliament should be elected by their counties and towns, and not appointed by the King; and that Parliament should be established at London, a proper public place where these matters could better be corrected.26
Notwithstanding the stern suppression of the revolt of 1405 (followed by the execution of the archbishop and the Earl Marshal), it seems, especially judging from what was to happen in the very next Parliament, that the insurgents’ demand for freedom of election for the shires had not only been fully justified, but was a matter of general concern.27 Indeed, the long Parliament of 1406 saw the adoption of a petition presented by the Commons and its conversion into a statute which, for the first time ever, provided in some detail for the better regulation of the conduct of such elections.28 Drawing attention to improper (‘noun-due’) elections, which brought the counties affected into serious disrepute (‘grand esclaundre’) and hindered the affairs of their communities, the statute attributed such abuses to either the partiality (‘affecioun’) of sheriffs or non-observance of the terms of the writs of summons. In so doing, it followed the Commons’ petition word for word, the only difference being an initial reference to the fact that it had, indeed, proceeded from their ‘grevous compleint’.
Although the provisions of the statute of 1406 were quite without precedent, this was not the first time that the Commons had asked for a statute designed at least to safeguard the county elections against misconduct on the part of sheriffs. Thirty years before, in the Good Parliament of 1376, they had requested legislation prohibiting knights of the shire from being returned by a sheriff who, on his own volition, had failed to hold a proper election (‘certifiez par le Viscont soul [seul] saunz due election’), and imposing a penalty for such an offence. The same petition, while insisting that the knights should be chosen ‘by common election’, had also proposed that the electors themselves should comprise only ‘the better sort of people ... of the shires’ (‘les meillours Gentz des ... Countees’).29 The government, however, refused to accept any such restriction, and the official response, made in the King’s name, stipulated that the knights attending Parliament should, on the contrary, have been elected ‘by common assent of the whole county’ (‘par commune assent de tout le contee’). In effect, the statute of 1406 now confirmed the royal decision of 1376 with regard to the county franchise, certainly in essence. At the same time it did far more to eliminate irregularities by providing the means to ensure correct behaviour on the part of the sheriffs as returning officers. In specific terms, it laid down that, at the next assembly of a county court after the delivery of a parliamentary writ of summons, proclamation should be made in open court (‘en plein counte’) of the time and place of Parliament’s meeting;30 and that all present, namely the suitors duly summoned for the purpose as well as others, should be required to proceed, there and then, to elect the knights of the shire, doing so, despite any pressure to the contrary, freely and impartially (‘liberalment et endifferentement’). In order to enforce this injunction, the statute introduced a completely new reform. Henceforward, once the election had been made, and whether or not the knights-elect were themselves present, their names were to be recorded in an indenture, which, having been sealed by all the electors,31 and attached to the writ of summons, would constitute the return of the writ, so far as the knights were concerned (‘quant as chivalers des contees’).32 And, finally, the statute prescribed the form of a new clause to be included in future writs of summons, as an additional order to the sheriff regarding the return as now involving the indenture. He was now instructed, ‘on the day and at the place specified in the writ of summons and without delay ... to certify in Chancery the election you have made in open county court, doing so distinctly and plainly under your seal and the seals of those who were present at that election’.33 In the writs of summons for the next Parliament, which met at Gloucester in 1407, and in subsequent writs, this clause was included. In fact, save that the longstanding prohibition of the election of sheriffs was omitted from the writs for the Parliaments of 1407, 1410 and 1411, but re-introduced for good in those summoning Henry IV’s last Parliament, the wording remained altogether unchanged until 1430 (that is until after the county electorate had been defined in new terms, to admit of the 40s. freehold franchise).
In the meantime, however, in 1410 and 1413 respectively, two statutes designed further to affect the conduct of the local elections, had been passed by Parliament, both in response to petitions presented by the Commons.34 The object of the first of these, which in its preamble referred to the statute of 1406 as having been ‘en conservacioun de les franchises et libertees del eleccioun des chivalers de countees usez parmy le roialme’, was to supplement it in a clearly advisable and practical way. Drawing attention to the omission from the 1406 statute of any special penalty to be incurred by a recalcitrant sheriff,35 that of 1410 empowered the justices of assize to inquire at the sessions into such cases and, on finding that an illegal return had been made, to fine the sheriff £100, payable to the King. Aware of the fact that any shire knights who had been improperly returned were bound to have attended Parliament before the official inquiry could take place, and implying that they themselves must have been party to the sheriff’s malfeasance, the Commons had requested, and the statute also ruled, that they should forfeit their usual wages (‘perdent lour gages du parlement d’ancien temps acustumez’). The second of the two statutes, which was passed in 1413 by Henry V’s first Parliament, not only confirmed the previous statutes and, additionally, required shire knights and parliamentary burgesses to be resident in their constituencies, but also expressly applied the same residential qualification to the county electors. (Seemingly, it was assumed that it could be taken for granted that electors in the towns would be resident.) However, on this occasion there were obvious differences, not merely in the wording, between the statute and the Commons’ petition which lay behind it. Curiously, although the petition had demanded that sheriffs should attend elections in person, and that, in their absence, any message, agreement or command on their part should be ignored (‘nemye par voice, ne l’assent, ne maundement, de ceux qui sont absentz’), the resulting statute made no mention of this. Clearly of greater importance was the question of exactly how ‘residence’ was to be interpreted with regard to the shire knights, for whereas the Commons’ petition had simply requested that they should be living in the county at election time, the King’s answer and the resulting statute stipulated residence at the date of issue of the writs of summons, a more precise and exacting requirement, probably designed to prevent, or at least discourage, potential nominees from interloping, just moving in for an election. The Commons’ petition and the King’s response also differed over a point concerning the additional matter of the shire electors, since the petition had demanded that shire knights should only ever be elected by ‘chivalers, esquiers et communes des contees’, while Henry V’s reply, having expressly required the electors to be resident, had referred only to knights and esquires. Yet although the statute followed the King’s response in making residence on the part of the electors obligatory, it none the less described them as knights, esquires ‘et autres’. So perhaps the differences, such as they were, were only of emphasis. Certainly, the distinctive reference—in the Commons’ petition, the King’s answer and the statute alike—to knights and esquires as electors seems potentially more significant. Both King and Parliament might conceivably have intended to suggest that no-one above the rank of knight ought so to involve himself in any shire election as actually to attend it. But however this may be, the particular mention of knights and esquires surely points to a general recognition that they would naturally, in view of their superior rank and standing in their local communities, be bound to fill a prominent role at elections, and would indeed be expected to discharge a special responsibility on such occasions. But it is just as obvious that others took part. In fact, early in the reign of Henry VI the number and relatively humble status of many electors became a serious embarrassment. The preamble to a Commons’ petition presented in the Parliament of 1429-30 (a preamble which served also for the famous statute of 1430 which resulted), stated that many recent shire elections had been made by people who, although admittedly resident in the counties affected, had been present in excessively large numbers (‘trop graunde et excessive nombre’); and that the majority of them, moreover, were poor or without any property of value (‘sinoun de petit avoir, ou de null value’), each claiming, none the less, to take part on an equal footing with the worthiest knights and esquires living there (‘dount chescun pretende d’avoir vois equivalent ... ove les pluis vaillantz Chivalers ou Esquiers, demurrantz deinz mesmes les Countees’).36 Although the statute of 1430 referred to and, in effect, confirmed those of 1406 and 1410 (which together had gone some way to ensure that the ‘common assent’ of the community of a shire to its elections would emerge without undue interference or malfeasance on the part of the local sheriff as returning officer), its main object was to redefine and amplify the statute of 1413 in its insistence upon residence in the county as a requirement for both the knights of the shire and their electors. Avowedly in order to prevent popular disturbance, and thus to reduce the number of electors, the statute of 1430 went on to require that all of them should own freehold land worth a minimum of 40s. a year, net (‘chescun ait frank tenement a le value de xls. par an al meins, outre les reprises’). The sheriff was to establish this new qualification by examining would-be electors on oath sworn upon the Gospels; and then (the possibility of a contested election being assumed) to return in his indenture, as duly elected, the two nominees chosen by the majority (‘ceux qi ount le greindre nombre’). Any sheriff subsequently found, by inquest taken before the justices of assize (following the procedure laid down by the statute of 1410), to have contravened the ‘ordinance’ was not only to pay the existing fine of £100, but to undergo a year’s imprisonment as well, without option of release on bail or by mainprise. As before, knights of the shire wrongfully returned were to lose their wages. And, finally, mention of the ‘ordinances’ was ordered to be made in all future parliamentary writs of summons (as previously had been ruled by the statute of 1406, but not that of 1413), a requirement which, in fact, was fully implemented at the first opportunity, and thereafter. In 1432 another statute, declaratory of the statute of 1430, further decreed that each elector should derive the minimum income of 40s.p.a., which qualified him to vote, from freehold lands in the county where he exercised his right.37 Otherwise nothing more was done by way of legislation until 1445.
It was further in support of the intention and recommendations of the statutes of 1406, 1410, 1413 and 1430 that the last of the series of electoral laws of the Lancastrian period was passed by the Parliament of 1445-6. In pursuance of the King’s answer to the Commons’ original petition, it required that shire knights should in future be ‘notable local knights or else notable esquires or gentlemen locally born who would qualify for knighthood, but certainly not any of the rank of yeoman or below’.38 However, its main purpose, still following the Commons’ petition, was to prevent irregularities at elections, to some extent those committed by mayors or bailiffs of towns, but once again, and of greater importance, by sheriffs. According to the preamble, the previous electoral statutes had been lawfully observed for a while, although a number of sheriffs, for their personal advantage and private gain (‘pur lour singuler availl et lucre’), had recently been conducting county elections improperly, and at inconvenient times (‘ne en temps convenable’). So far as this latter point was concerned, the statute provided for elections to take place in open county court between 8 and 11 a.m., and without any previous collusion (‘saunz collusioun en ceste partie’). An obviously more serious complaint was that, instead of returning as shire knights those lawfully elected, sheriffs had substituted others. Indeed, some had actually intervened in borough elections held within their bailiwicks, exploiting their office and overruling the returns of the mayors or bailiffs, here too returning substitutes of their own. By ‘embezzling’ the writs of summons, they had occasionally even omitted to send to such local officials in the first place the necessary precepts ordering them to hold elections (possibly taking advantage of the imprecise wording of the writs which, on the face of things, seemed to permit elections of knights, citizens and burgesses to be held altogether in the county courts). But the statute now formally required each sheriff honestly (‘saunz fraude’) to deliver a precept under his seal to the appropriate local authorities. They, in turn, were to make their return to the sheriff in the form of an indenture drawn up between him and themselves, which he was obliged to submit to Chancery as part of a comprehensive return for the county as a whole. In the matter of penalties for malfeasance generally, the statute went much further than any of its predecessors: not only, as before, were sheriffs liable to be fined, but so too, for the very first time, were town officials responsible for electoral abuses, as well as anyone irregularly returned for either a shire or town. Moreover, apart from penalties leviable, as previously, by the Crown, provision was made for fines to be paid to any knight, citizen or burgess who, having been lawfully elected but subsequently displaced (‘ouste’), began litigation (or, in the event of his failing to do so within three months from the start of the Parliament in question, to anyone else suing the offender or offenders). The action thus brought was to be for debt, on the specific ground that, if the plaintiff were successful, full recovery of the fine would lie not only against the offender himself but, in case of his early death, against his executors or administrators. Regarding process, action was to be as upon a writ of trespass against the peace, and according to common law, save that a defendant was to be disallowed ‘wager of law’ and, in order to expedite matters, any recourse to essoins (a tactic commonly deployed by those who wished to delay legal proceedings).39 Under the terms of the new statute, successful actions arising from malfeasance on the part of officials were to result in substantial penalties. Indeed, so far as a sheriff was concerned, they were extremely severe: not only were those laid down by the statute of 1430 ratified (a fine of £100 payable to the Crown and a year’s imprisonment), but a sheriff who defaulted would now also be required to pay another £100, with costs, to any plaintiff. The fine payable to the Crown by a guilty mayor or bailiff(s) was fixed at £40, and the same amount was to be assigned, again with costs, to the plaintiff. Anyone who had willingly allowed himself to be returned by a sheriff in place of a lawfully elected knight, citizen or burgess was to be fined in the same sums as the sheriff. This statute of 1445 made no mention of the requirement (imposed in 1410 and 1430) that, pending prosecution, a usurper should forego his parliamentary wages; but perhaps, in view of the general confirmation of earlier statutes, this now went without saying.
Of all the statutes which, over a period of 40 years, had progressively established a reasonably coherent legislative framework of electoral practice—the statutes of 1406, 1410, 1413, 1430, 1432 and 1445—the most important still remained the first, and not just because it represented an innovation. The statute of 1406, simply by providing for indentures which attested the lawfulness of county elections and authenticated the returns, must have helped to ensure that such elections were conducted with all due propriety, as well as putting a bridle on the sheriff. And the later statutes, setting up the machinery for legal inquiry and prosecution and applying monetary and other sanctions, clearly tightened the reins still further: the statute of 1410, with its institution of a procedure of inquiry into a sheriff’s malfeasance by assize judges and its imposition of a heavy fine of £100 for his failure to carry out the 1406 statute, a fine payable to the Crown and, for this reason, all the more likely to be exacted; the statute of 1430, with its additional penalty of imprisonment; and, finally, the statute of 1445, with its more elaborate and stringent process of prosecution and its imposition of an extra fine, again of £100, now liable to be paid to one who, properly elected as a knight of the shire or parliamentary burgess, had been displaced (‘ouste’) by a false return on the sheriff’s part, and who, no doubt encouraged by the possibility of monetary compensation as well as of restoration to his seat in Parliament, had himself been prepared to prosecute. Moreover, sheriffs must have felt further constrained by those parliamentary acts which had as their common object the genuine representation of communities, not just through local men, but through local men elected by local men. For whereas the 1406 statute seems merely to have assumed that all those taking part in shire elections, regular suitors to the county court and others, would be local men, in 1413 the franchise was explicitly restricted to persons actually living in the county. This residential qualification, confirmed in 1430, was then more rigorously defined by the limitation of the franchise to freeholders identified by oaths administered by the sheriffs; and, two years later, more stringently still with the requirement that the freehold land in question should lie within the county. That only residents, whether in shires or boroughs, should be eligible to sit in Parliament (as had been first specifically demanded by statute in 1413), was also confirmed in 1430 and 1445.
The need for this last regulation, in towns as well as counties, and as early as the beginning of Henry V’s reign, is a matter of particular interest. During the first half of Henry VI’s reign borough seats were, as a matter of historical fact, being acquired in increasing numbers by non-residents (some from the immediate region, others from further afield), a development which, although it was soon to intensify and become more pervasive, was already strengthening the conversion of the knights and gentlemen in the Commons into a clear, numerical majority. But, given that the intention behind the statute of 1413, with its demand that all MPs should qualify by local residence, was to tackle a manifest practical problem, this tendency must already have been sufficiently pronounced to require an attempt at instant legislative correction. Since the statute of 1445, in stressing the need for locally resident representatives, refers only to the shire knights, and does not mention the burgesses in this connexion, we may perhaps be justified in concluding that the invasion of borough seats by gentry and other outsiders had gone too far to be arrested, or even resisted. Perhaps all that could be demanded of the towns, and all that they could fairly demand of themselves, was that they might independently chose whomsoever they would, and certainly be free of interference or artifice on the part of the sheriff at any stage of an election.
Of course, these statutes were not always observed, especially in the shires; and it is important to remember that in this period generally the fulfilment of legal obligations, including those regarding elections, was all too prone to be adversely affected by the operation of ‘bastard feudalism’ (a social and political phenomenon deriving from the mutual dependence of great lords and their retainers, especially men of middling rank and status, prominent among whom would be those eligible to sit in Parliament and occupy such influential posts as shrievalties). Furthermore, when parliamentary elections for a county were impending, there was normally a desire to have matters fixed in advance by ‘labouring’ (or canvassing the merits of a particular candidate), and, on election days, a risk of manipulation or collusion, interference from outside or by the over-mighty from within. All the same, whether direct or mediated by the sheriff among others, such a threat to ‘the common assent of the whole county’ was apt to cause such local resentment that it could well result in internal opposition, possibly rejection. Interference, especially if by outsiders in favour of outsiders, seemed detrimental to ‘the worship of the shire’, its self-respect and good name as a community.
Regarding the exercise by a sheriff of such power and influence over elections as was all but inherent in his office, there had been no need to confirm or amplify, by later statute, the ordinance of 1372, prohibiting his own return to Parliament for his bailiwick. And although, thenceforward, it had been deemed necessary for the writs of summons expressly to reiterate the prohibition, extending it to cover any sheriff in office elsewhere, the abuse of the self-returning sheriff had declined considerably since the days of Edward III. If, as occasionally happened, a sheriff did get himself elected to Parliament, it was usually for a different county; and there were, indeed, a few glaring instances of this every now and then. Sometimes, however, good reasons could have been advanced for ignoring the prohibition, not least by the government, especially when its own interests were at stake. For example, Sir Walter Hungerford, the steward of the duchy of Lancaster south of Trent, was in office as sheriff of Somerset and Dorset when Parliament met at Leicester in April 1414, but his return for Wiltshire none the less made him eligible for the Speakership; and his successor as Speaker in the following November was Thomas Chaucer, the King’s chief butler and a cousin of Henry Beaufort, the chancellor, who was sheriff of Hampshire when elected (as usual) for Oxfordshire.40 Even so, both Hungerford and Chaucer had ample estates in their respective constituencies and bailiwicks alike. From time to time, a knight of the shire would be appointed as a sheriff, in his constituency or elsewhere, while the Parliament in which he served was still in session. But this was a different matter: admittedly against the spirit of the prohibition, but not to be impugned as strictly illegal.
Ref Volumes: 1386-1421
Author: J. S. Roskell
- 1. Reps. Lords’ Cttees. iv. 661.
- 2. Ibid. 590, 593, 603, 605, 616.
- 3. K. Wood-Legh, 'Sheriffs, Lawyers, and Belted Knights', EHR, xlvi. 384. G.H. Tupling, S. Lancs. in Reign Edw. II (Chetham Soc. ser. 3, i), 119, gives a translation from KB27/254, for the year 1323: 'The jurors present ... that when a certain writ of the king had come to the same William [le Gentil] for the election of two knights to go to the king's parliament, which knights ought to have been elected by the whole community of the county, the same William elected Gilbert de Haydok and Thomas de Thornton without the consent of the community; and when they returned from the parliament, they brought a writ for levying their expenses by which ... Richard [de Bold] and William de Wynwyk, the bailiffs, were ordered to levy twenty pounds for the expenses of the aforesaid knights; whereas the community of the county could have had by their own election two sufficient men [sufficientes homines] to go to the parliament for ten marks or ten pounds'. The Parliament in question had been summoned to meet at Westminster on 6 Oct. 1320.
- 4. Foedera ed. Rymer (orig. edn.), iv. 453; Reps. Lords’ Cttees. iv. 517.
- 5. Wood-Legh, 386.
- 6. Reps. Lords’ Cttees. iv. 580, 583, 608, 648, 661. For the numbers of knights by rank elected between 1386 and 1421, see Appendix B1.
- 7. This was in fact the case, although as early as in 1339 the Commons had petitioned successfully that the writs of summons to the next Parliament should prohibit the return of the sheriffs (RP, ii. 104). The writs, as issued, contained no such prohibition, but even so the petition itself had apparently served to check a practice which, in the preceding Parliaments of Edward III's reign, had been quite common. However, between 1357 and 1369 the return of sheriffs became even more widespread than before; and in this particular respect, the ordinance of 1372 proved effective during what remained of Edward's reign. Although it was less strictly observed under Richard II, the abuse against which it was directed now posed far less of a problem. The reason given in 1372 for the exclusion of sheriffs was that they were 'communes Ministres au Poeple, et devient demurer sur lour office pur droit faire a checuny': a reason which was ostensibly administrative rather than political (Wood-Legh), 373-4, 376).
- 8. RP, ii. 310.
- 9. Reps. Lords’ Cttees. iv. 792.
- 10. J. Trokelowe et al., Chrons. et Annales ed. Riley, 391. Of the 99 Members whose names are known, no more than six were believed to have received some form of legal training: Henry Bruyn (Worcs.), John Burley I (Salop), Thomas Crewe (Warws.), Roger Flore (Rutland), John Gurney (Norf.) and John Lake (Exeter). The five shire knights were all evidently well versed in the law as it related to the tenure and management of property, being much in demand as foeffees-to-uses, executors and advisors to prominent landowners of their localities. Bruyn and Crewe were both retainers to Richard, earl of Warwick, the one being a former steward, the other a future chief steward of his estates; Burley was closely attached to Thomas, earl of Arundel; Flore gave counsel to Edward, duke of York; and Gurney was a member of the circle of Sir Thomas Erpingham KG. Lake, the only parliamentary burgess included here, had previously served not only as town clerk of Exeter (for 20 years), but also as clerk to the j.p.s in Devon. It should be noted, however, that none of these six Members are known to have established legal practices at Westminster which might have involved them for long periods of time in litigation in the central courts, so they were not likely to be diverted by their clients' business there from attending to the matters now placed before the Commons. For men of law as Members of Parliament on other occasions between 1386 and 1421, see Appendix B2.
- 11. T. Walsingham, Hist. Ang. ed. Riley, ii. 161.
- 12. Reps. Lords’ Cttees, iv. 725.
- 13. Ibid 726-7; ‘contra formam electionis antiquitus usitate, ac contra libertatem dominorum et communitatis regni ... Anglie hactenus optentam’.
- 14. Reps. Lords’ Cttees. iv. 877.
- 15. Ibid. 661.
- 16. RP, iv. 8; Statutes, ii. 170 (1 Hen. V, c. 1). For the extent of non-residence of Members in the period 1386 to 1421, see Appendix B3.
- 17. Statutes, ii. 243-4; Reps. Lords’ Cttees. iv. 877.
- 18. Reps. Lords’ Cttees. iv. 913; Statutes, ii. 340-2.
- 19. Regarding the political significance of this superiority in the Lower House, it is worth noting the reason why Edward IV, early in 1463 (after his second Parliament had been twice postponed and its venue changed), had finally cancelled the previous writs of summons, exonerated all those already returned, and ordered fresh elections. He had taken his unusual step because (as was now to be made known in special proclamations) he understood that 'th'elleccion of knyghtes of right many of the shires ... hath ... proceeded right inordinatly. Whereof to [too] grete and perilious inconvenience and evyll example ... myght grewe [grow] if the same Parliament shulde have bene kepte'. Only those who, in accordance with the statute of 1430 had 'interesse therin by frehold to the yerly value of forty shillings' were now allowed to take part in the county elections; and each of them was, moreover, to attend 'in pesible manner' and 'upon payn of imprisonment of his body, at oure pleasir, that dothe the contrarie, and forfaiture of all he may forfaite unto us'. Many of the previous elections, now set aside, had not been such as 'accordeth with oure lawes and theire [the electors'] freedom and liberte' (Reps. Lords' Cttees. iv. 964). There was evidently little doubt in Edward IV's mind as to which were more important, county or borough elections, and for what basic reasons.
- 20. The only exception to this was Lancs., the writs of summons for which were addressed to Henry, duke of Lancaster (or his lieutenant), from 1354 to 1360; to John, duke of Lancaster (or his lieutenant or the chancellor of the duchy), from 1377 to 1397; to Henry, duke of Lancaster (or the chancellor), in 1399; thereafter to the chancellor of the duchy or county palatine. It was always the sheriff of Lancs., however, who, in his county court, held the election.
- 21. The Paston letters supply detailed evidence of a kind unavailable before the second half of the 15th century about the ‘labouring’ which then preceded elections in East Anglia, notably by important magnates and their retainers and friends: K.B. McFarlane, ‘Parl. and Bastard Feudalism’, Bull. IHR, xx. 161-80.
- 22. RP, iii. 235, art. xxxvi.
- 23. Ibid. 420, art. xxxvi. The extreme compliancy of at least some shire knights in the September 1397 session at Westminster (which witnessed the condemnation for treason of the chief of the King’s enemies of 1387-8) is revealed by the fact that, after the prelates and temporal lords had sworn oaths at the Confessor’s shrine in Westminster abbey to uphold the decisions of the Parliament to date, the shire knights then present, when asked by the King if they would follow suit, made the same undertaking, ovesqe hautes voices ensemble ... addressantz toutz ensemble leur mains dextres en signe de affirmance de leur serementz’ (RP, iii. 356).
- 24. J. Hardyng, Chron. ed. Ellis, 393n.
- 25. J. Trokelowe et al., 402; Hist. Ang. ii. 422.
- 26. Eulogium ed, Haydon, iii. 406: 'Item quod consiliarii avari et cupidi regem surgentes ab eo bona ad commune subsidium ordinata, semetipsos ditantes, amoveantur. Item quod juris periti ad Parliamentum veniant, et sua sapientia consulant, quod milites communitatuum et burgensium civitatum mittendi ad Parliamentum per comitates eligantur, et non per Regem assignentur. Et quod Parliamentum statuatur Londoniis, qui locus est magis publicus, et ubi haec melius corrigi possunt.' Yet another version (Historians Church of York ed. Raine, ii. 305) says that Archbishop Scrope also demanded that sheriffs in every county should be freely elected to office 'without coercion on the part of the king or barons' (no. 6), and that 'barons, nobles and the community of the realm' should, in their 'causes', be able 'freely to speak their minds in Parliament' (no.7).
- 27. As recently as in the Parliament of January 1404, the Commons had petitioned the King and Lords for steps to be taken regarding a false return made by the sheriff of Rutland. The Lords, ordered by the King 'in full Parliament' to investigate and adjudicate upon the matter, summoned John Arblaster, the sheriff, William Oudeby, who had been returned by him, and Thomas Thorpe, the man originally elected in open county court but later replaced by Oudeby. Following the inquiry, the Lords ruled that the sheriff's return had been at fault, that the sheriff's return had been at fault, that the sheriff should correct it by returning Thorpe as one of the properly elected shire knights and that he should be dismissed from office, committed to the Fleet and obliged to make fine and ransom to the King (RP, iii. 530). Thorpe was in fact re-instated as shire knight (OR, i. 265); and incidentally, it was he who, on 12 Feb. 1404 (while the Parliament was still in session), replaced Arblaster as sheriff (PRO List 'Sheriffs', 112). The Parliament in question had first been summoned on 20 Oct. 1403 to meet at Coventry on 3 Dec. only to be prorogued on 24 Nov. to meet at Westminster on 14 Jan. 1404 instead. This being the case, some elections, at the very least, would have taken place before prorogation. The new writs of summons insisted, however, that any previous returns should be disregarded and fresh elections held freely, all over again ('de novo': Reps. Lords' Cttees. iv. 789). Oudeby had perhaps been elected at an earlier meeting of the county court, and then, at a later meeting, Thorpe, only for the sheriff to refuse to register the change in the new return. Alternatively, Thorpe may have been elected to begin with, but then replaced by Oudeby, simply on the initiative of the sheriff, who failed to hold a second election as ordered. Either explanation is possible but the first seems preferable.
- 28. RP, iii. 601.
- 29. RP, ii. 355.
- 30. Parliament had agreed that sheriffs should make proclamation of the holding of elections in the county court 15 days in advance, doing so in all market towns of the shire. Nothing was said of this in the statute (RP, iii. 588, art. xxiii; Statutes, ii. 156).
- 31. The statute of 1406, as worded, required all those present at an election to append their seals to the indenture. It was, of course, essential that those actually attesting the validity of the return should be named, but there was sound practical reasons (not least with a view to economy of effort in transcribing the names in each of the three identical parts of the indenture and in affixing the seals) for the number of witnesses to be limited. Normal practice, in fact, was only ever to include the names of some of those present, and, as a general rule, the names were comparatively few. Rarely exceeding 40 or so, seldom can those named have been more than a small fraction of those attending. As to how many these might be, the indentures themselves are a very imperfect guide. For example, whereas only 14 individuals attested the Oxon. electoral indenture of 1407, roughly 190 were named at the next election in 1410. Even such as unusually large number can hardly be taken as indicating the total present, which may well have been far more. Certainly, at times, such a number was greatly exceeded, even after the statute of 1430 which, prompted by the threat of the King's peace in many shires afforded by the presence at elections of 'trop graunde et excessive nombre des gentz', limited the county franchise to 40s. freeholders. In 1442 the Yorks. indenture listed about 450 names. And lest it be thought that only the largest of the English counties could muster such a turn-out, we may note what happened in 1450 at the shire election for Hunts., a relatively small shire. This election was attended by about 500; and although, since it took place at a time of great political excitement, it was not only contested but also so tumultuous that the outcome was actually disputed, it was claimed, none the less, that of the 500 or so who attended, over 420 were allegedly freeholders and 'good commoners', all resident in the county (J.G. Edwards, 'Hunts. Parl. Election of 1450', Essays presented to B. Wilkinson ed. Sandquist and Powwicke, 383-95). For further evidence of large electorates derived from indentures relating to contested elections for Notts. held in 1449, 1460 and 1467, see S.J. Payling, 'The Widening Franchise', Eng. in 15th cent. ed. Williams, 167-85; and for problems in Cambs. R. Virgoe, 'Cambs. Election of 1439,' Bull IHR, xlvi. 95-101.
- 32. The words ‘quant as chivalers des contees’ were necessary, since the sheriffs were also always ordered to provide for the election of representatives from the towns in their bailiwicks. However, the use of indentures was, in the event, applied by the writs of summons to the latter as well.
- 33. ‘Et eleccionem tuam, in pleno comitatu tuo factam, distincte et aperte sub sigillo tuo et sigillis eorum qui eleccioni illi interfuerint, nos in Cancellaria nostra, ad diem et locum in brevi contenta, certificies indilate.’
- 34. RP, iii. 641; iv. 8; Statutes,ii. 162, 170.
- 35. It may be noted that the particular item in the petition about elections presented in the Good Parliament of 1376, requesting that sheriffs found responsible for improper elections should be fined, had been ignored in the official response (RP, ii. 355).
- 36. RP, iv. 350; Statutes, ii. 243-4. Before the presentation of this petition disputed elections had recently occurred in four different counties: the first, in Notts., in 1427, the remaining three (in Cumb., Bucks. and Hunts.) immediately preceding the Parliament of 1429-30. All but the Hunts. return were, however, disputed only on grounds of malfeasance on the part of the local sheriff. In Notts. in 1427 the suitors of the county court had not been summoned to elect, and the sheriff
- 37. RP, iv. 402.
- 38. Statutes, ii. 340-2; RP, v. 115-16.
- 39. In view of the confirmation of previous statutes, it was unnecessary for that of 1445 to specify inquiry by judges of assize; and subsequent writs of summons continued to do so.
- 40. J.S. Roskell, Speakers, 157, 160. For the election of sheriffs to the Parliaments of 1386-1421, see Appendix B4.