Forty-Shilling Freeholders.
They equally set forth that these knights shall be elected with the assent of the community of the county, de assensu communitatis comitatûs. Further, the returns of the sheriffs declare that the election has been made "in full county, by the whole of the community of the county," in pleno comitatu, per totam communitatem comitatûs. Under the succeeding reigns, terms yet more formal were employed; thus, about the middle of the reign of Edward III. the writs contain, that the election ought to be made "according to the will, and with the consent, of the men of the county," de arbitrio et consensu hominum comitatûs. Finally, facts which have come down to us from later times prove that all freeholders possessed an equal right of participation in these elections. In 1405, a statute of Henry IV., intended to prevent certain abuses committed on these occasions by sheriffs under the preceding reign, orders among other things, that "all those who should be present at the county-court, even when they had not been duly summoned thither by the sheriff, should take part in the election." Lastly, under Henry VI., the great number of the freeholders having given rise to many disturbances during the elections, two statutes (the first issued in 1429, and the second in 1432) limited the right of suffrage to freeholders possessing an annual income of forty shillings: this was the first and last limitation of the kind, and it still continues to subsist in England.
Thus, moral probabilities and historical facts alike indicate, that since the origin of the Parliament in its actual form, the representatives of counties have been elected not only by the direct vassals of the king, but by all the freeholders, whether mediate or immediate vassals, who composed the county court. In order definitively to establish this opinion, nothing remains but to examine the proofs that are alleged in favour of the opposite opinion. These may be reduced to two: first, it is said, that as the direct vassals of the king alone possessed originally the right of sitting in the general assembly, and as the election of knights of the shire arose entirely from the impossibility of assembling in Parliament all the direct vassals of the king, the latter alone must have been the electors of the representatives who were sent in their place. Secondly, the vassals of the barons long demanded exemption from the obligation of contributing to the payment of the fees allotted to the county members, which proves that they could not have shared in the election; for had they done so their claim would have been absurd.
Refutation Of Tory Theories.
Both these proofs have the fault of being indirect, and of resting upon consequences deduced from general facts, and not upon special and positive facts, such as those I have just adduced in support of the contrary opinion. Moreover, the first argument supposes the existence of a general and absolute principle which was invariably followed; and that the county members were summoned to Parliament only to represent the direct vassals of the king. This supposition is neither probable nor conformable to facts. We again repeat, that there was at this period no general principle, no fixed and invariable rule. General principles and their consequences exist only in a calm and settled state of society; they are incompatible with a rude population and long-continued disorder. How, then, could social classifications and their corresponding rights have remained fixed and distinct in the midst of such chaotic confusion? Besides, the feudal system never exercised such complete sway in England as to insure anything like a strict observance of its principles. It is true that the right possessed by all the direct vassals of the king to appear in the central assembly, was one of the sources of county representation; but when this right, after having fallen into desuetude, began to revive in the persons of representatives, it was outweighed by an actual and more powerful circumstance, the formation of the general class of freeholders, meeting at the county-court, and there exercising the same functions and equal rights. This fact is incontestible; so the Tories are compelled to acknowledge that the deputies were elected by all present at the county-court. But how do they attempt to escape from the consequences of this confession? They maintain that the direct vassals alone sat in the county-court: an opinion too much opposed to the nature of things and to all the facts which I have brought forward, to require refutation.
There is another difficulty which perplexes Tory writers, and which they are equally unsuccessful in their attempts to surmount. It is impossible for them to deny that under the reigns subsequent to that of Edward I., and especially under Henry IV., all the freeholders in the county took part in the election: now, to avoid this embarrassment, it is pretended, that taking advantage of the disorder of the times they had usurped the right of suffrage, and that the statute of Henry IV. (in 1405) for the first time legalized this abuse, and lawfully summoned the freeholders to the election of deputies. There is no probability in this supposition, which is not supported by a single fact. Between the reigns of Edward I. and Henry IV., nothing can be discovered which indicates the usurpation of the electoral right by a portion of the freeholders who had remained till then strangers to the election. No trace of change in the composition of the county-courts is to be found, nor any alteration in the form or language of the writs of convocation. Everything indicates, on the contrary, that the elections continued to be conducted as in former times; and that the statute of Henry IV. has evidently no other object than to prevent the illegal practices of the sheriffs, which had become scandalous under the reign of Richard II. Thus, in whatever light it is viewed, this first argument is utterly valueless.