Yet the consequence of the statute of Henry IV. was not to let in too many voters, or to render elections tumultuous, in the largest of English counties, whatever it might be in others. Prynne has published some singular sheriff's indentures for the county of York, all during the interval between the acts of Henry IV. and Henry VI., which are sealed by a few persons calling themselves the attorneys of some peers and ladies, who, as far as appears, had solely returned the knights of that shire. 3 Prynne, p. 152. What degree of weight these anomalous returns ought to possess I leave to the reader.
[r] The majority of prescriptive boroughs have prescriptive corporations, which carry the legal, which is not always the moral, presumption of an original charter. But "many boroughs and towns in England have burgesses by prescription, that never were incorporated." Ch. J. Hobart in Dungannon Case, Hobart's Reports, p. 15. And Mr. Luders thinks, I know not how justly, that in the age of Edward I., which is most to our immediate purpose, "there were not perhaps thirty corporations in the kingdom." Reports of Elections, vol. i. p. 98. But I must allow that, in the opinion of many sound lawyers, the representation of unchartered, or at least, unincorporated boroughs was rather a real privilege, and founded upon tenure, than one arising out of their share in public contributions. Ch. J. Holt in Ashby v. White, 2 Ld. Raymond, 951. Heywood on Borough Elections, p. 11. This inquiry is very obscure; and perhaps the more so, because the learning directed towards it has more frequently been that of advocates pleading for their clients than of unbiassed antiquaries. If this be kept in view, the lover of constitutional history will find much information in several of the reported cases on controverted elections; particularly those of Tewksbury and Liskeard, in Peckwell's Reports, vol. i.
[] Brady on Boroughs, p. 75, 80, and 163. Case of Tewksbury, in Peckwell's Reports, vol. i. p. 178.
[t] Littleton, s. 162, 163.
[] Brady, p. 97.
[x] Brady on Boroughs, p. 110. 3 Prynne, p. 231. The latter even argues that this power of omitting ancient boroughs was legally vested in the sheriff before the 5th of Richard II.; and though the language of that act implies the contrary of this position, yet it is more than probable that most of our parliamentary boroughs by prescription, especially such as were then unincorporated, are indebted for their privileges to the exercise of the sheriff's discretion; not founded on partiality, which would rather have led him to omit them, but on the broad principle that they were sufficiently opulent and important to send representatives to parliament.
[y] Willis, Notitia Parliamentaria, vol. i. preface, p. 35.
[z] p. 117.
[a] It is a perplexing question whether freeholders in socage were liable to contribute towards the wages of knights; and authorities might be produced on both sides. The more probable supposition is, that they were not exempted. See the various petitions relating to the payment of wages in Prynne's fourth Register. This is not unconnected with the question as to their right of suffrage. See p. 115 of this volume. Freeholders within franchises made repeated endeavours to exempt themselves from payment of wages. Thus in 9 H. IV. it was settled by parliament that, to put an end to the disputes on this subject between the people of Cambridgeshire and those of the Isle of Ely, the latter should pay 200l. and be quit in future of all charges on that account. Rot. Parl. vol. iv. p. 383. By this means the inhabitants of that franchise seem to have purchased the right of suffrage, which they still enjoy, though not, I suppose, suitors to the county-court. In most other franchises, and in many cities erected into distinct counties, the same privilege of voting for knights of the shire is practically exercised; but whether this has not proceeded as much from the tendency of returning officers and of parliament to favour the right of election in doubtful cases, as from the merits of their pretensions, may be a question.
[] The wages of knights and burgesses were first reduced to this certain sum by the writs De levandis expensis, 16 E. II. Prynne's fourth Register, p. 53. These were issued at the request of those who had served, after the dissolution of parliament, and included a certain number of days, according to the distance of the county whence they came, for going and returning. It appears by these that thirty-five or forty miles were reckoned a day's journey; which may correct the exaggerated notions of bad roads and tardy locomotion that are sometimes entertained. See Prynne's fourth Register, and Willis's Notitia Parliamentaria, passim.