[66] It is doubted by Mr. Merewether (arguendo) whether Edward and Mary created so many new boroughs as appears; because the returns under Henry VII. and Henry VIII. are lost. But the motive operated more strongly in the latter reigns. West Looe Case, 80.
[67] 25 Car. 2, c. 9. A bill had passed the Commons in 1624 for the same effect, but failed through the dissolution.
[68] Journals, 26th Feb. and 20th March 1676-7.
[69] Madox Firma, Burgi, p. 270 et post.
[70] The popular character of the elective franchise in early times has been maintained by two writers of considerable research and ability; Mr. Luders, Reports of Election Cases, and Mr. Merewether, in his Sketch of the History of Boroughs and Report of the West Looe Case. The former writer has the following observations, vol. i. p. 99: "The ancient history of boroughs does not confirm the opinion above referred to, which Lord Chief Justice Holt delivered in the case of Ashby v. White; viz. that inhabitants not incorporated cannot send members to parliament but by prescription. For there is good reason to believe that the elections in boroughs were in the beginning of representation popular; yet in the reign of Edward I. there were not perhaps thirty corporations in the kingdom. Who then elected the members of boroughs not incorporated? Plainly, the inhabitants or burghers [according to their tenure or situation]; for at that time every inhabitant of a borough was called a burgess; and Hobart refers to this usage in support of his opinion in the case of Dungannon. The manner in which they exercised this right was the same as that in which the inhabitants of a town, at this day, hold a right of common, or other such privilege, which many possess who are not incorporated." The words in brackets, which are not in the printed edition, are inserted by the author himself in a copy bequeathed to the Inner Temple library. The remainder of Mr. Luders's note, though too long for this place, is very good, and successfully repels the corporate theory.
[71] The following passage from Vowell's treatise, on the order of the parliament, published in 1571, and reprinted in Holingshed's Chronicles of Ireland (vi. 345) seems to indicate that, at least in practice, the election was in the principal or governing body of the corporation. "The sheriff of every county, having received his writ, ought, forthwith, to send his precepts and summons to the mayors, bailiffs, and head officers of every city, town corporate, borough, and such places as have been accustomed to send burgesses within his county, that they do choose and elect among themselves two citizens for every city, and two burgesses for every borough, according to their old custom and usage. And these head officers ought then to assemble themselves, and the aldermen and common council of every city or town; and to make choice among themselves of two able and sufficient men of every city or town, to serve for and in the said parliament."
Now, if these expressions are accurate, it certainly seems that, at this period, the great body of freemen or inhabitants were not partakers in the exercise of their franchise. And the following passage, if the reader will turn to it, wherein Vowell adverts to the form of a county election, is so differently worded in respect to the election by the freeholders at large, that we may fairly put a literal construction upon the former. In point of fact, I have little doubt that elections in boroughs were for the most part very closely managed in the sixteenth century, and probably much earlier. This, however, will not by any means decide the question of right. For we know that in the reigns of Henry IV. and Henry V. returns for the great county of York were made by the proxies of a few peers and a few knights; and there is a still more anomalous case in the reign of Elizabeth, when a Lady Packington sealed the indenture for the county of Worcester. Carew's Hist. of Elections, part ii. p. 282. But no one would pretend that the right of election was in these persons, or supposed by any human being to be so.
The difficulty to be got over by those who defend the modern decisions of committees is this. We know that in the reign of Edward I. more than one hundred boroughs made returns to the writ. If most of these were not incorporated, nor had any aldermen, capital burgesses and so forth, by whom were the elections made? Surely by the freeholders, or by the inhabitants. And if they were so made in the reign of Edward I. how has the franchise been restrained afterwards?
[72] 4 Inst. 48; Glanville, pp. 53, 66. That no private agreement, or by-law of the borough, can restrain the right of election, is laid down in the same book. P. 17.
[73] Glanville's case of Bletchingly, p. 33.