chise regu 7th Henry heretofore been reached that from the beginning of the representative system the right to choose the elected knights was not limited to the lesser tenants-in-chief, but was vested in the whole body of freeholders assembled in the county court. When in 1376 the commons, in order to prevent the malpractice of the sheriffs in returning members without due election, petitioned that the knights of the shire should be chosen by common election of the better folk of the shires, Edward III. answered that the knights should be chosen by the common assent of the whole county. This declaration of what was no doubt the earlier custom 3 was first incorporated into a positive law when the statute of 7th Henry IV. The franc. 15 undertook to fix the franchise upon a definite and popu- lated by lar basis by providing "that at the next county (court) to be statute in holden after the delivery of the writ, proclamation should be iv. made, in full county (court), of the day and place of the parliament, and that all they that be there present, as well suitors duly summoned for the same cause as others, shall attend to the election of the knights for the parliament; and then, in full county, they shall proceed to the election, freely and indifferently, notwithstanding any request or command to the contrary." This statute, which recognized the fact that the franchise was vested not only in all freeholders but in the whole body of persons assembled in the county court on the day of the election, was seriously modified, however, by the statute of 8th Henry VI. c. 7, which is said to be the first The disdisfranchising act to be found on the statute-books of Eng- statute of franchising land. This act, after complaining that the election of knights v. of the shire had lately been made "by very great, outrageous, and excessive number of people dwelling within the same counties, of the which most part was people of small substance and of no value," restricted the qualification of county electors not only to freeholders, but to such only as "have free land or tenement to the value of forty shillings by the year at least above all charges." The qualification of county electors, thus fixed at the end of the middle ages, remained 1 See above, pp. 467, 468. 2 Rot. Parl., ii. p. 355. 8 As to the effect of this act as a declaration of the earlier custom, see Stubbs, Const. Hist., vol. iii. p. 406 and note. It has been contended, however, 8th Henry The com mons regu unchanged until late in the first half of the present century. The omissions and commissions of which the sheriffs were late by law guilty in the execution of the writs under which the reprethe sheriff's sentative members were chosen soon brought about legislaprocedure in elec tion designed for their correction. In the 5th of Richard II. a statute was passed which provided that if any sheriff should fail to make return to a parliamentary writ, or should omit from such return any city or borough which had been formerly accustomed to send members to parliament, he should be punished by fine. In the next reign this regulation was followed by the notable statute of 1406 (7th Henry IV. c. 15), made "on the grievous complaint of the commons of the undue election of the knights of shires for parliament," which provided that the election should be held in the first county court holden after the receipt of the writ; that the election should be made in full county court by those present; and that after the election the names of the persons chosen "shall be written in an indenture under the seals of them that did choose them." 2 Prior to this statute it was the duty of the sheriff to report to parliament the names of the elected members, together with the writ; afterwards the return, which was declared to be the indenture tacked to the writ, was sent into chancery. A little later in the same reign (11th Henry IV. c. 1) an act was passed which gave to the justices of assize the power to inquire into the returns, and to fine the sheriffs for returning persons not duly elected. This measure was supplemented and rendered more effective by the act of 1445 (23d Henry IV. c. 14), to which reference has been made already." At a time when it was necessary for the crown to require security from the elected members for their appearance in parliament, it is hardly to be expected that we should find instances of contested elections in the sense in which that term is now understood. Such instances of disputed or contested elections as the medieval records do contain clearly disclose the fact that the house of commons in the early days did not presume to claim for itself the right to 1 5th Richard II. st. ii. c. 4. For specimens of these indentures, see Prynne, 2d Register, pp. 128-132. See above, p. 472. nally vested determine contested elections; that such right was originally Right origi claimed, and for a long time exercised, by the king with the in the king aid of his council, or with the help of the lords. After the in council. return was made the king, with the aid of the council or of the lords, took cognizance of all disputes which grew out of the election. The earliest instance of the commons being associated with the consideration of such questions occurred in the 7th Richard II. (1384), when the borough of Shaftesbury petitioned the king, lords, and commons, complained of a false return wherein the sheriff of Dorset had substituted the name of a person not elected, and prayed remedy.2 Twenty years later (1404) the commons prayed the king and lords in parliament that an improper return, wherein the sheriff of Rutland had returned a person as elected who had not been elected, might be examined in parliament, and punishment inflicted in the event the sheriff should be found guilty. The lords, after sending for the sheriff and the two contestants, and after due investigation, ordered the return to be amended by the substitution of the name of Thorp, the person really elected, in lieu of that of Ondeby, improperly returned by the sheriff, who, by reason of his misconduct, was removed from office.3 Two years after this occurrence the act of 1406 was passed requiring the sheriff to make return by indenture, which, together with the writ, were sent into chancery. After the arbitrary power of the sheriffs was thus cut off by a regulation which virtually permitted the electors themselves to make the return, the act of 1410 was passed, which gave to the justices of assize the power to Justices of inquire into the returns, and to fine the sheriffs for returning power to inpersons not duly elected. But even after the passage of this act placing the conduct of elections under the supervision of the justices of assize, it is probable that the ultimate right to pass upon the validity of the return remained to the king, assisted by the lords, or by the judges only. It seems to be clear that down to the end of the fifteenth century the commons had never thought of claiming the right to hear and determine all matters touching the validity of their own 1 Cf. Stubbs, Const. Hist., vol. iii. pp. 421-423. 2 Prynne, 4th Register, p. 261; Carew on Elections, p. 118. 8 Rot. Parl., iii. p. 530; Hallam, assize given quire into the returns. Right to determine validity of election first asserted by the commons in the reign of Elizabeth. elections. In the reign of Elizabeth this right was for the first time distinctly asserted in a case in which the lower house ventured to examine into the circumstances attending an irregular election that had occurred in the county of Norfolk. Owing to some defect in the first return from that county, the chancellor had issued a second writ, under which a different member was chosen. Although the queen, after the matter had been noticed by the commons, directed the speaker to express her displeasure that "the house had been troubled with a thing impertinent for them to deal with, and only belonging to the charge and office of the lord chancellor," a committee was nevertheless appointed to investigate the matter, and a report was made in favor of the members elected under the first writ. In their report, which was agreed to by the whole house, the committee took occasion to say that "they had not thought it proper to inquire of the chancellor what he had done, because they thought it prejudicial to the privilege of the house to have the same determined by others than such as were members thereof." 1 An important issue again arose between the crown and the tled in the commons when upon the accession of James I. a royal proclamation was issued which undertook to specify what kind of persons should be chosen, "bankrupts and outlaws" being specially excepted. Under the terms of the exception the clerk of the crown refused to receive the return of the election of Sir F. Goodwin, chosen for the county of Buckingham, for the reason that some years before he had been outlawed. A second writ was issued, under which Sir John Fortescue was chosen. When the matter was brought before the house the election of Goodwin was sustained, and he was ordered to take his seat. In the course of the controversy which followed, the king maintained not only that outlaws had no right to sit, but that the house had no right to meddle with returns which were made into the court of chancery, and which were within its exclusive jurisdiction. James further declared that "he had no purpose to impeach their privileges, but since they derived all matters of privilege from him, and by his grant, he expected that they should not be turned against him." He then invited the commons to confer with 1 D'Ewes, Journal, p. 393; Hallam, Const. Hist., vol. i. p. 275. Right finally set reign of James I. the judges, and upon their failure to do so he attempted to force them to confer by commanding them as an absolute king. Finally, as a compromise of the whole matter, the commons brought in a bill prohibiting outlaws from sitting in parliament in future, and as a personal favor to the king the elections of both Goodwin and Fortescue were set aside; James admitting on his part, in an interview with a committee of the commons, that they were the proper judges of the returns.1 From that time the commons never failed to assert their exclusive right to decide upon the legal validity of the returns, and the conduct of the returning officers in making them, a right which was recognized and affirmed in turn by the house of lords, by the courts of law, and finally by an act of parliament (7 William III. c. 7) which declared that "the last determination of the house of commons concerning the right of elections is to be pursued." 2 of members of councils ments from molesta Æthel Leaving out of view the immunity from arrest which the Immunity peers enjoy, not merely as members of the upper house but as barons of the realm, a brief statement will be made of the and parliaorigin of the right of freedom from personal molestation and personal legal arrest which, from the earliest times, has belonged to tion. members of the English national assembly. From the very beginning of national councils in England, the persons of those who attended such assemblies were protected by law while going to and fro. By a law of Æthelberht, provision Laws of was made that "if the king called his 'leod' (people) to him berht, Cnut, (i. e. to the gemot) and any one there do them evil, let him and Eadcompensate with a twofold 'bot' (satisfaction) and fifty shillings to the king." This law, made at the end of the sixth century, was succeeded early in the eleventh by a law of Cnut, which provided "that every man be entitled to grith (freedom from molestation) to the gemot and from the gemot, except he be a notorious thief." The same immunity was recognized in the laws of the Confessor in favor of persons going to and from the synods.5 After the Conquest, the ward. |