The first in a three-part series examining late-medieval electoral law and parliamentary practices
The abiding image of the middle ages is best evoked with one quasi-derogatory word; ‘feudal’. It brings to mind foreboding castles, cruel and acquisitive nobles, peasants toiling under backbreaking conditions, mud and ploughs and dumpy little villages. And it is fair to say that these images have a basis in reality. But it also fails to capture, at least as far as England is concerned, the sophistication of its political system and its representative institutions.
The civil strife of the 13th-century, which had seen baronial rebellions against King John and his son Henry III, led to the creation of representative institutions involving not only the barons but also representatives of the more modest folk from the boroughs and shires. By the mid 14th-century, this representative body had settled into the form with which we are familiar today; a House of Commons of elected representatives, a House of Lords representing the peerage, and the monarch him/herself.
By the standards of European monarchs, the English kings subsisted in a state of relative poverty and were perpetually broke. They derived income from their feudal lands (the royal ‘demesne’), from customs charges (on wine, wool, etc), from court fines and payments made to the chancery for the issue of pardons, writs, charters and patents. With this revenue they were expected to cover all of the ordinary expenses of the court (food, clothing, servants, transportation, pensions, gifts, and magnificence in general) and government (judicial salaries, sheriffs’ expenses, castle upkeep, diplomatic missions, etc).
It was a constitutional principle, or at least a constitutional ideal, that the king should “live of his own”. In other words, he should make do with the revenues he had from his demesne and other sources without resort to direct taxation, except during wartime or national emergencies. If the king did require additional revenue through direct taxation, he could only secure it by parliamentary grant. By the 15th-century it was an entrenched constitutional convention that the consent of the House of Commons was the indispensable ingredient in grants of taxation. The Commons thereby had the opportunity to bargain their grant in exchange for the king’s agreement to petitions which, following a formal reading in both houses and the king’s consent, became statutes.
Composition and the Franchise
From the 13th-century, the Commons included representatives of the counties, known as ‘knights of the shire’, and representatives of the towns and cities, known as burgesses. In spite of the fact that perhaps no more than 10% to 15% of the population lived in urban areas, there were twice as many burgesses as there were knights of the shire in the House of Commons.
For example, in the 1399 parliament there were 74 knights of the shire and 181 burgesses (along with 49 lords temporal and 47 lords spiritual). Each county chose two knights of the shire, and each town two burgesses. How were these MPs selected? In each borough, the scope of the franchise was a decision for the borough itself and thus varied widely. In some boroughs, every free male householder was entitled to vote. In others, it was based on the property franchise (and there is some limited evidence of women voting under that franchise). In others still, the franchise solely encompassed members of the livery companies or even members of the town council only.
The evidence for the manner of selecting MPs in the shires is quite ambiguous before the late 14th-century. However, a statute passed in the parliament of 1406 enacts a procedure to be followed;
“Item, Prayer of the Commons: Election of knights of the counties. Considering the irregular election of knights of the shires for parliament, which are sometimes made in accordance with the sheriffs’ preferences or in other ways contrary to the form of the writs addressed to the sheriff, to the great disrepute of the counties and the delay of the business of the community of said county.
May it please our lord the king, by the assent of the lords spiritual and temporal, to ordain in this present parliament that henceforth elections of knights shall be carried out in the following manner. Namely, at the next county court to be held after the delivery of the said writ of parliament, proclamation should be made in full county court concerning the day and place of the parliament. And that all those who are there present, both suitors duly summoned for this reason as well as others, shall attend the election of their knights for the parliament; and then let the election be held in full county court, freely and impartially, notwithstanding any request or command to the contrary. And after they have been elected, whether the elected persons are present or absent, let their names be written in an indenture under the seals of all those who elected them and attached to the said writ of parliament. And this indenture thus sealed and attached shall be considered to be the return of the said writ with regard to the knights of the counties.”
An even more consequential statute was passed at the parliament of 1429. It enacted two provisions that were to form the essential basis of English electoral law from the late-medieval period.
“May it please your gracious lordship to consider the foregoing, and to provide and ordain by the authority of this present parliament that the elections of knights of the same counties in your realm of England, to be elected in future to the parliaments to be held henceforth, should be elected in every county by the people living and residing in them who each should have a free tenement worth 40 s . a year at least, in addition to the outgoings; and that those who will be thus elected should be living and residing in the same counties; and those who have the support of the majority of those who are able to spend 40 s . and above a year, as is said above, should be returned by the sheriffs of every county as knights for the parliament by sealed indentures to be made on this between the said sheriffs and the said electors”
The first enactment is to provide for an electoral franchise of those who have an annual landed income of 40 shillings (£2) clear of all charges. While this may seem, from our modern vantage point, a regressive and prejudiced act, it was in fact a very broad franchise by the standards of the day. The income necessary to support the lifestyle of a knight was £40 a year, an esquire £20. A gentleman would ordinarily have lands of at least £10 a year. 40 shillings (or £2 a year) went all the way down to the ranks of the yeoman farmer or prosperous peasant.
The same act also provided for a residency requirement, both as a limitation on the franchise and as an eligibility requirement for election as a knight of the shire. Finally, it provided that the knight who has the support of the majority of franchisees will be elected; the first provision in statute law enacting a democratic mode of political selection.
The ’40 shilling freeholder’ franchise was to survive all the way until the Reform Act 1918, when the property franchise was abolished for men (for women, until 1928 the franchise only covered those over the age of 30 occupying land with a rateable value of £5 or above).
As set out in the statutes above, the elections were held at the county court. Every four weeks, the sheriff of a county would hold a court to hear pleas for causes below 40 shillings in value, and to deal with certain criminal matters such as receiving indictments and remanding prisoners. The county court was in some ways the administrative heart of English medieval local government. Local gentlemen would assemble to sit on juries and grand juries (with the usual 40 shilling property qualification). On some occasions other county business might be transacted, such as the election of a coroner or a meeting called to facilitate a commission of inquiry or a commission of array. Proclamations and outlawries would also be read out at county courts.
Those in attendance would span the spectrum from ‘belted knights’ with incomes exceeding £100 right down to the prosperous peasant farmer with an income of £2. The richest landowners in the county would often send an attorney as their proxy, and we know that noblewomen, where they were a rich and influential force in the county, might also send their attorney (continued below…)
If the writs had been promulgated to hold a parliament, the election of the ‘knights of the shire’ would be held at the next county court. As the 1429 statute provides, the knights were to be chosen by a majority of those in attendance who met the property qualification. But by what procedure?
A Common Pleas case from 1553, Buckley v Rice Thomas (Plowd. 119a), sheds some light on the manner of choosing. Henry IV’s 1406 statute provided that falsely returning a candidate was actionable and made the sheriff liable for £100 to the wronged candidate. In Buckley, a plaintiff was suing the sheriff for falsely returning another candidate. The defendant, Rice Thomas, replied that if Buckley was to assert he was the one truly chosen then he should be able to stipulate precisely how many votes he received, and how many against. The court disagreed, and in deciding the case thankfully provided some insight into the manner of how the candidates were chosen at the county court, before (as the statute above sets out) the writ naming the successful candidates was engrossed by the sealed indentures of the electors, and returned to the chancery.
“As to the second exception, it seems to me that the plaintiff shall not be forced to shew the certain number of the electors; for perhaps he was elected by voices or hands, as hath been said, in which case he could have no certain knowledge of the numbers, although by seeing the Hands or hearing the Voices it might be easily told who had the majority” – Saunders J
Contested elections seem to have been the exception rather than the norm. It appears likely that the local county families would often agree on the candidates before the vote itself. The fact that two candidates were elected might have made such compromises easier. But where the elections were contested, they could be very heated indeed.
A contested election
The election of 1461 occurred at a particularly unsettled time. It was the first parliament called by Edward IV after deposing the Lancastrian monarch, Henry VI. Yorkist and Lancastrian magnates vied for influence and sought to get their candidates returned. Writs were issued on 23rd May for a parliament to be held at Westminster, and after some delay it assembled in November that year.
In this election we find a particularly contentious selection for the county seat of Norfolk. Mid-15th century East Anglia was a place of intense magnate competition, colourfully recounted in the Paston letters. The two major magnates of East Anglia were the Mowbray Dukes of Norfolk and the de la Pole Dukes of Suffolk. That year, the Pastons (an untitled gentry family of moderate wealth, derived in large part from the labours of William Paston, who served as a Justice of the Common Pleas), had two of their properties seized by force. The castle of Caister, inherited from Sir John Fastolf, was taken by retainers of the Duke of Norfolk, while the manor of Dedham was seized by men of the Duke of Suffolk. In July of 1461 the county coroner was murdered.
In the context of this disorder it is unsurprising that that the election for the county seats of Norfolk would be highly contentious. John Paston, the head of the family, was a candidate for the seat, along with three other men. The other candidates were John Berney of Great Witchingham, Henry Grey the younger (son of a Mowbray retainer of the same name who had been returned for Norfolk in the parliament of 1450), and Sir William Chamberlain, another of the Duke of Norfolk’s affinity who had sought unsuccessfully to be elected in 1450.
The election proceeded as follows. For some reason it appears that it took three weeks for the election writ of 23rd May to reach Norfolk, where it was delivered to undersheriff William Pryce on 14th June. On the morning of 15th June the county court met for its normal four-weekly session, and also to transact the business of electing the parliamentary knights. Each of the four candidates brought along their supporters to vote for them. It seems that there was a dispute as to the extent of the electoral franchise and whether certain supporters met the property qualification. The sheriff, Sir John Howard (also nephew of the Duke of Norfolk and later to become Duke of Norfolk himself), alleged that the supporters of John Berney had behaved in a threatening manner, forcing the undersheriff Pryce to abandon the court and slip away under the protection of several local gentlemen.
Pryce wrote to Paston three days later to say that he believed that Grey and Paston had been duly elected and he intended to engross this result on the writ, although ultimately subject to his master, the sheriff. No such writ was returned, however, and as a result of the need to delay the parliament until November new writs were issued out of chancery on 13th June for the election of knights and burgesses.
By early July questions were raised as to whether a new election should be held. According to Sir John Howard, the undersheriff was prevented from holding the next county court on 13th July. The popular mood in Norfolk was increasingly ugly and primarily directed against the undersheriff, particularly by Berney’s supporters. Berney wrote to Paston on 17th July;
“And as for my playn dysposysson towards the undershrewe, I wyll hym no bodyli hurt, nor shalnot be hurt by me nor by no man that I may rewle; but the comynnes throw all the shyer be movyd again him for cause of his lyght demeanyng towardes them for this elexsyon of knygttes of the shyer for the parlement”
By 10th August the second writ had been received and John Howard attempted to hold a new election. According to his account, the 40 shilling freeholders assembled in the shire house elected Henry Grey junior and Sir William Chamberlain, however John Paston arrived on horseback, asserted a claim of a general franchise independent of income and then a mob of he and Berney’s supporters threatened the sheriff. Howard relocated the proceedings to the castle yard where, so Howard claims, Paston and his supporters prevented him from examining the assembled crowd as to their income, and forced him to seal an indenture electing Berney and Paston as knights of the shire.
In the following week, there was an altercation between Paston and Howard, in which Paston was stabbed with a dagger by one of Howard’s retainers. On 7th September the shire court was again assembled, however Howard asserts it was disrupted. No election indenture was returned for Norfolk, and when Howard returned the bundle of indentures for the other constituencies in his bailiwick (the county of Suffolk, for he was also its sheriff, along with the boroughs of Ipswich, Bishop’s Lynn, Dunwich and Great Yarmouth) he returned in place of the Norfolk indenture a report explaining the disruption at the county courts on 15th June, 13th July, 10th August and 7th September.
In mid-November the Lord Chancellor turned the bundle over to the Lord Chief Justice, John Markham, placing it within the rolls of the king’s bench where it remains to this day. All other indentures from that election (and indeed all elections between 1461 and 1523, excepting 1467) have been lost from the Chancery files.
On 17th November a writ of attachment was promulgated in the king’s bench against Paston, Berney and their followers, and on 1st December John Paston appeared in the Court of Exchequer to sue Sir John Howard for failing to make a return. The case report for Paston’s Exchequer claim, for the customary £100 set out in the statute of Henry VI, is extant and can be seen here at the link below.
It reads, in part;
“Johannes Paston, armiger, venit coram baronibus huius scaccarij primo die Decembris hoc termino per Thomam Harryson, attornatum suum, et queritur per billam de Johanne Howard, chivaler, nuper vicecomite comitatuum Norff’ er Suff’, presente hic in curia eodem die super visu compoti sui de officio vicecomitatus comitatum predictorum hic ad scaccarium reddendo per Thomam Depden, attornatum suum, de eo quod predictus nuper vicecomes ei iniuste detinet centum libras argenti quas ei debet”
“John Paston, esquire, comes to the court of the barons of exchequer on the first day of December this term by Thomas Harryson, his attorney, and complains by bill against John Howard, knight, late sheriff of the counties of Norfolk and Suffolk, and is present in court …. the said previous sheriff unjustly detains £100 of silver which he owes”
The 15th-century is said to be the most unsettled and disordered period in English history since the Norman Conquest, and yet we have the outcome of a (if not democratic, then) representative election being litigated in a court of law, to be decided according to statutes enacted by parliament. Paston’s claim in Exchequer is an early, and possibly the first, instance of a long and honourable tradition of election litigation that reaches from the late-medieval all the way to modern cases like Erlam & Ors v Rahman .
In these unsettled times, with the framework and principles of our democratic order under assault by extremists and despots, I think it’s worth remembering just how far back our record of representative government and the rule of law goes.