The ordinances of Worcester (6 Edward IV., 49)—“Also that every eleccion of citizens for to come to the Parliament, that they be chosen openly in the gelde Halle of such as ben dwellynge within the fraunches and by the moste voice, accordinge to the lawe and to the statutes in such cases ordayned and not privily” (“Early English Gilds,” J. Toulmin Smith).
In Shrewsbury, prior to the Reform Act, the right of returning members of Parliament for the Borough was vested exclusively in Burgesses paying Scot and Lot. (“Mun. Com.,” p. 2014.)
Rhuddlan—“Here, as in the other contributory boroughs to Flint, the franchise is exercised by all resident inhabitants paying Scot and Lot.” (“Mun. Com.,” p. 2840.)
In the Reports of Controverted Elections, Luders mentions that of Lyme Regis, 1789. The dispute was whether non-resident burgesses could record their vote. Among the old burgess lists brought forward to elucidate the qualifications for electors, that of 29 Sept., 19 Eliz., was produced. The first three names on the list were of three women—“Burgenses sive liberi tenentes Elizabetha filiæ Thomæ Hyatt, Crispina Bowden Vidua, Alicia Toller Vidua,” then follow the names of several men. To these were added in 21 Eliz. two names of “liberi burgenses jure uxoris.” Later records show an increased number of women’s names on the register of this borough.
The case of Holt v. Lyle or Coats v. Lisle in 14 James I., in discussing the right of a clergyman to vote, affirms as a side issue that “a feme sole, if she have a freehold, can vote for a Parliament man, but if she is married, her husband must vote for her.” A limitation again expressed in Catherine v. Surrey, preserved in Hakewell’s “Manuscript Cases.”
As some have attempted to throw doubts on the authenticity of these cases, quoted as they were by the Lord Chief-Justice from the Bench in 1739, it may be well to note here that “William Hakewell was a great student of legal antiquities, and a Master of Precedents” (“Dictionary of National Biography”). He left parliamentary life in 1629, the year after he had, in the Committee of Parliamentary Privileges, helped to decide on the Gatton case. He was one of the six lawyers appointed to revise the Laws, and was thereafter created Master of Chancery. So one might be tempted to consider him rather an exceptionally good and trustworthy witness. He helped to decide other points in connection with the Franchise, which it is important for us to remember. He not only decided that inhabitant suffrage must supersede freeholding, that taxation gave the right to representation, but that, from its very nature, no desuetude could take away the right of voting. “On 9th April, 1614, it was pleaded, Sithence Durham last drawn in to charge to join in petition to the King that Durham may have writs for Knights and Burgesses. Said to be dumb men because no voices. Mr. Ashley said, They of Durham had held it a privilege not to be bound to attendance to Parliament. On 31st May was read An Act for Knights and Burgesses to have places in Parliament, for the County Palatine, City of Durham and the Borough of Castle Barnard.” “On 14th March, 1620, members were allowed for the Palatinate of Durham, which had hitherto sat free from taxation, and consequently sent no members to the House of Commons. It was allowed without discussion by the House,” taxation and representation being constitutionally inseparable. (See Commons Journal, 14th March, 1620.)
“Regarding towns that had discontinued long sending of any burgesses, and yet were allowed.” Hakewell had discovered this of “Millborne Port, County Somerset, and Webly, County Hereford, that, either from poverty or ignorance of their right, or neglect of the Sheriff, had ceased voting. After 321 years they elected again.” “In 21 Jac. I. also, Amersham, Wendover, Great Marlowe, in Buckinghamshire, were in the same condition, but received writs for return upon application.” (See Addit. MS., Brit. Mus. 8980.) Thus the doctrine that the right to the Franchise never lapses, and that non-user never deprives an Elector of this privilege, was affirmed by the Committee of Privileges in the Parliament of which Coke and Hakewell were members.
CHAPTER VII.
THE LONG EBB.
“Ye have made the law of none effect by your tradition.”