Unlike its European counterparts, most of which were provincial bodies, the English Parliament was a genuinely national assembly.
Although the English Parliament was enormous compared with its European counterparts, its size was not fixed, and consequently it continued to grow. In the Lords membership could be increased by creating new peers or by issuing writs of summons to the eldest sons of the nobility, while in the Commons it could be raised by fresh enfranchisements. Before the early seventeenth century the monarch controlled the expansion of both Houses, but under the early Stuarts a fundamental change took place, as the Commons came to assume responsibility for its own growth.
A similar development, no less significant, occurred in respect of the lower House’s right to determine its own membership. Prior to the early seventeenth century the Commons did not enjoy a free hand in deciding whether those elected were eligible to serve, as sheriffs could stop candidates they regarded as unsuitable from standing and Chancery might refuse to accept the returns of candidates it considered ineligible. Under the first two Stuarts, however, the lower House largely succeeded in shaking off these rival sources of control. In do doing, it did not always exercise its right to determine its own membership in an even-handed fashion. Indeed, it often put political considerations and self-interest above those of fairness and strict legality.
The expansion in membership
Between 1500 and 1629 the membership of the Commons underwent a dramatic expansion. At the beginning of the sixteenth century there were 296 places in the Commons,
The continued growth of the Commons owed a great deal to a widely held feeling that large sections of the political nation were either inadequately represented at Westminster or not represented at all. Aside from Cornwall and Wiltshire, which could muster thirty-seven enfranchised boroughs between them, most of England’s forty counties were only thinly represented. Before 1604 ten had only one enfranchised borough each,
Even shires that boasted several enfranchised boroughs were severely under-represented. Although Yorkshire had ten, each of which returned two Members, the populous clothing area of the West Riding entirely lacked seats.
Before 1621 the power to enlarge the House lay largely with the Crown, which enjoyed the right to add borough Members by means of royal charter. Parliament’s involvement in this process was limited to the enfranchisement of Wales and Cheshire under Henry VIII. Prior to 1586 Queen Elizabeth, though famously sparing in bestowing honours, was liberal in doling out parliamentary seats. Despite refusing an application from the earl of Rutland to enfranchise Newark in 1579 on the grounds ‘that there are over many [burgesses] already’, Elizabeth added sixty-four Members to the Commons by creating or restoring thirty-two parliamentary boroughs, ten of them in 1584.
Before the 1620s attempts to involve the Commons in its own enlargement proved singularly unsuccessful. In 1604 the Hampshire borough of Botley appealed to be allowed to return Members on the specious grounds that it had once been entitled to do so, but though its petition was referred to the committee for privileges the Commons took no action. That same year, the corporation of Harlech, sensible of the fact that Merioneth lacked borough representation, approached Sir William Maurice, the knight for Caernarvonshire, for help in obtaining a statutory grant of the franchise. However, if Maurice ever submitted a bill to the Speaker it failed to receive even a first reading.
Not until 1614 did the Commons, having recently won the right to judge election returns itself, seek to bring about its own enlargement. Following the abolition in 1607 of the Hostile Laws between England and Scotland, the case for continuing to exclude County Durham from the subsidy had vanished, with the result that in 1610 the county was taxed by Parliament for the first time. This development prompted Sir Edwin Sandys to declare in May 1614 that County Durham ‘now stands in a worse plight than any other part of the kingdom’.
The Commons’ attempt to extend its authority to include enfranchisement could not have come at a worse moment. By the spring of 1614 it was being said among the populace that the House was already too big, and that ‘paucity [is] better than number’.
By the early 1620s James and his ministers were determined to halt the Commons’ expansion. In March 1621 the privy councillor Sir Humphrey May opposed the re-enfranchisement of the Somerset borough of Ilchester, ‘seeing that we do already labour with a multitude’.
Although not many Members were willing to see rotten boroughs disenfranchised, several certainly shared James’s view that the lower House had become bloated. In a letter written to Charles I shortly before the 1626 Parliament, Sir Dudley Digges characterized the Commons as ‘a body much above 400 men (too much enlarged)’.
One of the chief obstacles to further expansion was physical, as the Commons’ chamber could not readily seat the existing complement of Members, let alone any additions to its ranks. During the Union debates of 1607, Thomas Wentworth of Henley, anticipating a union of parliaments, warned of the impact that an influx of Scottish Members would have on the Westminster Parliament, for ‘already this House is as great as one Speaker can moderate, as one room can contain, as we can hear one the other speak’.
Although the available space was inadequate, many Members saw no alternative to further expansion. Speaking during the debate on the Durham bill in 1621, Sir Walter Earle advocated the creation of four new seats despite confessing ‘that the number of burgesses here’ was ‘too great’.
Although many in the Commons assumed that the lower House would continue to grow, the Crown’s control over new creations meant that it was not immediately obvious how this was possible. Like his father before him, Charles I was hostile to further expansion. When the bailiffs and burgesses of the Dorset borough of Blandford Forum petitioned Charles in May 1625 for the right to return two Members they were curtly refused, despite claiming that their town was a place ‘where no beggar was ever suffered’.
Although they lacked the power to bestow the franchise on new boroughs, many Members saw no reason why they why they could not restore the franchise to those towns which, for one reason or another, had lost that privilege during the medieval period. Beginning with Ilchester and Pontefract in 1621, the House, on its own authority, restored no less than eight boroughs which had supposedly lost their right of representation in the medieval past.
Types of members
Although the size of the Commons was continually expanding, the types of Members remained fixed and can broadly be divided into two sorts. First, there were the county representatives, or knights of the shire, of whom there were ninety: one each for the twelve Welsh counties and two each for thirty-nine of the forty English shires. The second group, far larger than the first, consisted of the borough Members. Most were known simply as ‘burgesses’, but those who served for a city rather than a mere town were normally termed ‘citizens’. Under Elizabeth at least these citizens were expected to sit together, ‘on the right hand of the Speaker’, next to the privy councillors.
The distinction between ordinary burgesses and citizens was often made by the Commons. Indeed, ‘we … the knights, citizens and burgesses in the House of Commons assembled’ was a form of address occasionally used in communications with the king.
Those who served for one of the seventeen county boroughs – that is to say, boroughs that were counties in their own right, having sheriffs and magistrates of their own – were not treated as a separate category except by Chancery, which needed to distinguish between boroughs that had their own sheriffs (and therefore required their own writs of election) from those which did not.
Unlike the representatives of the county boroughs, those who served for towns within the jurisdiction of the lord warden of the Cinque Ports were considered a distinct group. Indeed, they were styled ‘barons’, an appellation which, when employed by a Commons’ messenger in 1607, not surprisingly provoked the ire of the Lords. The Commons succeeded in deflecting the peers’ criticism, however, by pointing out that ‘de baronibus’ was the form of words employed in the writs of election addressed to the Ports.
In theory it mattered little whether a man served for a county, a city or a borough: the need for Members to speak freely and without fear made it imperative that all be regarded as equal. For the same reason, none were permitted to plead special status or privilege to gain a hearing. When the solicitor general, Sir Thomas Fleming, asked to speak at the third reading of the assarts bill in 1604 ‘in respect to the place he held’ he was roundly attacked by Richard Martin, who declared ‘that any man is here as much of the king’s counsel as Mr Solicitor’.
It was not just the lack of a formal seating arrangement which helped create the impression that all Members were equal. Some duties were common to both knights of the shire and borough Members. These included the responsibility for appointing collectors of tenths and fifteenths in their constituencies.
The greater responsibilities of the county Members were also reflected in the sorts of committees to which they were appointed. Under the Tudors, knights of the shire had a better chance of being appointed to the most important committees than borough Members.
Despite the belief that all Members were equal, the knighthood of the shire carried with it a social cachet that mere borough representation never could. Those who aspired to the leadership of their counties looked to be returned as shire knights, and many were so sensitive of their honour that they would settle for nothing less than the senior seat. In 1604 Sir John Fortescue, expecting to be returned as the senior knight for Buckinghamshire, famously declined to accept the junior position, and in 1626 Sir Robert Harley, a knight of the Bath, declared himself unwilling to play second fiddle to Sir Walter Pye, who was only a knight bachelor.
During the first half of the sixteenth century it was not unusual for borough Members to ‘trade up’ to a county seat whenever there was a vacancy.
Although the knighthood of the shire carried greater prestige than a mere burgess-ship, at a practical level the differences between borough and county Members were largely unimportant. What mattered most was not whether a man served for a borough or a county but whether he was represented his constituents and performed well in debate.
Rules of Membership
By the end of the sixteenth century a number of general rules prohibiting certain sorts of men from serving in the Commons had emerged. A few were imposed by statute but most were the result of convention. Foreigners were excluded, on the grounds that ‘persons not equally obliged to, or interested in, the state of this kingdom should be admitted to the secret and great council of the same’.
Sheriffs, who submitted election returns to Chancery, and mayors (or their equivalents), who presided over borough elections, were prohibited from returning themselves. However, there was no such prohibition in respect of under-sheriffs, who were capable of presiding over county elections. John Sparke, for instance, sat for Mitchell unchallenged in 1628 even though the House knew he was under-sheriff of Cornwall.
In both county and borough elections medieval law required that only residents were to stand.
Those whose returns were questioned as irregular were not normally permitted to sit until the matter had been settled. In February 1621 John Anketill was told to ‘forbear the House’ until the return for Hindon had been determined.
Members who lost the right to sit after they were elected were expected to leave immediately, although when Thomas, Lord Clinton was called to the Lords in February 1610 he lingered even after the election of his replacement, and only relinquished his seat in late May or early June, when his successor was sworn.
Some of the Commons’ rules of membership were so complex that they were not always clearly understood. Those governing the holders of courtesy titles were particularly baffling. The eldest sons of peers were entitled to sit in the Commons if they wished, but the monarch was equally entitled to summon them to the Lords, in which case they were required to surrender their Commons’ seats. For this reason the eldest sons of the earls of Lincoln and Suffolk were obliged to relinquish their places in the lower House in 1610. However, in October 1597 the newly created earl of Nottingham mistakenly assumed that his eldest son, having automatically become Lord Howard of Effingham, was no longer capable of sitting in the Commons, to which he had been elected five weeks earlier.
Lack of understanding was compounded by the fact that in some cases the rules had not yet been fully worked out. One unresolved area concerned the eligibility of men, like the Common Law judges, summoned to the Lords as legal assistants. In June 1604 the Commons veteran Sir Edward Hoby demanded to know whether Members summoned to the Lords as legal assistants ‘ought to have place in the higher House or sit here’.
Since dual membership was never regarded as a serious option, the Commons had either to eject those of its Members who had received writs of assistance or to demand that they be permitted to remain. However, this was a much more complicated matter than at first appeared, as the precedents in such cases were often inconsistent and Members frequently disagreed among themselves. Not surprisingly therefore, when Hoby put his question to the House there was ‘no resolution or further speech in it at that time’.
To make matters even more complicated, it was unclear which royal officers were not permitted, by virtue of their office, to serve in the Commons. It was certainly clear that a Member appointed as a judge in one of the Common Law courts was incapable of remaining in the Commons, as his presence was needed in the Lords to help reverse writs of error.
Although the Commons failed to sort out the position of the master of the Rolls, rather more progress was made in respect of those Members called to serve as judges in the Exchequer. In November 1605 the Commons learned that Sir Thomas Fleming and Sir George Snygge had been summoned to assist the Lords, having appointed barons in the Exchequer. Some Members, perhaps remembering that in 1566 the solicitor general, Richard Onslow, had been restored to the House despite having received a writ of assistance, thought that that both men should be recalled to their duties in the Commons. However, the chairman of the committee for privileges, Sir George More, persuaded the House that both men should be required to surrender their places.
The Commons failed to show similar resolution in respect of the attorney-general, whose right to sit was questioned following the appointment to that office of Sir Henry Hobart, one of the knights for Norfolk, in 1606. On the face of it the evidence was clear-cut, as previously the attorney had always assisted the Lords and there was no evidence that Hobart’s predecessors had ever sat. Nevertheless some Members of the House argued that Hobart should be recalled. Unfortunately the House then proved incapable of agreeing the correct procedure for deciding the issue, with the result that Hobart became the first man since John Jeffrey to be left free to serve both Houses simultaneously.
Although the Commons found it difficult to resolve the problems associated with writs of assistance, the issue receded into the background after 1614. This was not because these writs were no longer issued to certain Members of the Commons but because many of their recipients failed to act upon them. In May 1614 Lord Chief Justice Coke, noticing that the King’s Serjeant Sir Henry Montagu continued to occupy a seat in the lower House, complained to the Lords: ‘Here is none of the King’s Counsel who ought to be all here. They are misplaced there. They have their writs to be here’.
If some of the Commons’ rules of membership were not yet fully worked out, others were subject to alteration. In 1614 the Commons significantly reinterpreted the rules regarding the admission of sheriffs by refusing to allow Sir George Selby, the sheriff of County Durham, permission to sit for Northumberland. Hitherto it had been accepted that a sheriff of one bailiwick was entitled to serve in Parliament for another. As Sir Edwin Sandys observed, it was generally understood that the words of the election writ were not intended to restrain the election of sheriffs but to prevent them from returning themselves. However, Sir Henry Montagu was adamant that ‘no sheriff can, by the law, be chosen’, as an Ordinance of 1372 required them to be permanently resident within their shrievalty. An addition to the election writs, introduced in 1373 and known as the nolumus clause, made this crystal clear.
Just as it developed old rules, so the House occasionally created new ones. One of the principal additions concerned Catholics. Although barred from sitting, Catholics – even avowed Catholics – sometimes obtained election.
Following the assassination of the French king Henri IV at the hands of a Catholic fanatic in 1610, fear of domestic Catholicism grew, and with it the realization that the House’s defences against Catholic penetration of its membership were inadequate. In addition to the Oath of Supremacy, Members were now required by statute to take the new Oath of Allegiance or risk expulsion. This was no idle threat, as Sir John Leedes discovered to his cost in 1621,
The Oath of Allegiance was not the only addition to the rules designed to fend off the Catholic threat. In 1614 the puritan Sir James Perrot persuaded his parliamentary colleagues to hold a communion service ‘to keep the Trojan horse out of the House’.
Not all of the proposed additions and amendments to the Commons’ rules were endorsed. In 1571 Francis Alford, arguing that it was a ‘great disorder that very young men not experienced for learning sake were oft chosen’, failed to convince his colleagues to raise the age of entry from 21 to 30.
One of the most radical amendments to the rules suggested during this period was proposed in April 1614, during the debate on the right of the attorney-general to sit. Sir Roger Owen, claiming ‘that anciently none so much as wore the king’s livery, or had any pension from the king, could have been admitted [to] the House’, argued that neither privy councillors nor the Crown’s law officers were entitled to sit in the Commons, where they were ‘out of their proper place’. Their presence, he said, merely served to overawe other Members. Under normal circumstances it would have been almost unthinkable to suggest that the king’s servants should be barred from membership, but in 1614 it was widely believed that the king had attempted to pack the House with his supporters and that there was a secret undertaking to manage the Commons. At the last moment, however, the House refrained from putting Owen’s ‘violent’ motion to the question despite the widespread sense of anger, and instead appointed a committee to investigate, which never reported.
Members of the Commons were not alone in trying to lay down new entry requirements. Shortly before the first Jacobean Parliament met, Lord Chancellor Ellesmere, fearful that the Elizabethan debates on reform of the church and the decisions reached at the Hampton Court Conference were about to be revisited, argued for the exclusion of ‘sectaries or men of turbulent faction … or disputers of the ecclesiastical governance and charge of the church’.
During the middle years of his reign, James’s well-known distaste for the Commons may have encouraged some outside observers to present schemes for altering its composition. In 1622 one anonymous writer advised the king to create a new honour, that of ‘vidom’, which would be sold to two gentlemen in every shire, whose rights would include automatic membership of the Commons.
Swaddon was by no means alone in drawing attention to the church’s lost representation, for in 1607 the civil lawyer Dr John Cowell argued that the absence of seats in the Commons had made the Church ‘weaker and weaker’.
Just as there were rules to exclude certain sorts of people from membership, so there were others that determined whether those elected were ever entitled to step down. There were no circumstances in which a man who had been properly elected was permitted to refuse to serve. In May 1614 William Hakewill, discussing the Stockbridge election, announced that ‘a man cannot waive’ unless he were ‘chosen in another shire than where resident’. Ten years later the Commons declared ‘that a man, after he is duly chosen, cannot relinquish’.
If waiving was not permitted, resignation was almost impossible, as Members were normally expected to continue serving until Parliament was dissolved or they themselves died. When the corporation of Dorchester petitioned the Speaker in June 1604 to allow one of its parliamentary representatives to resign due to poor health it was ignored.
Members sent overseas by the king sometimes asked to surrender their seats, and in such cases the Commons distinguished between permanent appointments and those that were merely transitory. Diplomats were never permitted to surrender, as ambassadors could be recalled ‘when the king shall please’; consequently in 1605 and 1606 Sir Thomas Edmondes, Sir George Carew and Sir Charles Cornwallis were not permitted to step down. However, appointments to the Irish administration were viewed differently, as patents were made for life and as such precluded membership of the Commons.
Many Members had business interests that might suffer if they served in the Commons, and it is not surprising, particularly during the six-year long opening Parliament of James’s reign, that occasionally there were some who wanted to step down. In 1605 Thomas Provis wrote to the 1st earl of Salisbury expressing a desire to quit his Penryn seat because ‘my trade and adventures do necessarily require myself in person’, and in 1607 Joseph Field, recently returned for Hull, proved unwilling to serve because of his ‘private affairs in trade of merchandise’.
While some men who wanted to leave the Commons were denied the right to do so, others who preferred to stay were thrown out. Before the middle of Elizabeth’s reign Members could only be unseated if their circumstances had changed and they were no longer eligible to serve. However, in 1581 the Grantham Member Arthur Hall was expelled for publishing a document considered derogatory to the authority of the House. In 1607 the Commons, under pressure from the king, went one stage further and established the principle that a Member could also be expelled for misconduct in the House. The case involved the Buckinghamshire Member Sir Christopher Pigott, who was accused of slandering the Scots. Some said he should be sent to the Tower but retain his seat, while others argued that he should be ejected. During the ensuing debate some Members, forgetting the precedent established in Hall’s case, maintained ‘that the House could go no further in their punishment than committing him to the Tower’ as its power ‘was to sequester not to dismiss’. A division was narrowly avoided, and it was left to Speaker Phelips, always anxious to please James, to order that Pigott be expelled as well as imprisoned.
Pigott’s case necessarily established a precedent for the future. In 1621 Thomas Sheppard was ejected for his intemperate outburst against puritans, and in 1628 Sir Edmund Sawyer was not only expelled but declared ‘unworthy ever to serve as a Member of this House’ again after he advised a witness to conceal vital information from a Commons’ committee.
Just as James’s reign saw the Commons establish the principle that a Member could be expelled for misconduct inside the chamber, so too it saw the House decide that wrong-doing outside Parliament could serve as a bar to membership. The first movement in this direction occurred in 1604, when the Wallingford Member Griffith Payne was threatened with loss of his seat, ostensibly for being a mayor but actually for being a purveyor. In the event Payne was merely suspended.
The expulsion of Mompesson and Lloyd represented a dramatic departure from earlier practice. In 1601, when Sir Walter Ralegh had been forced to defend his tin-mining patent, there had been no question of expelling monopolist-Members.
Although it was not until 1640 that the House was prepared to make a clean sweep of all monopolists, the principle that a Member might be unseated for misconduct outside the Commons was now firmly established. Shortly after the ejection of Mompesson and Lloyd, the ecclesiastical judge Sir John Bennet was expelled for corruption. In 1626 Sir John Suckling and Sir Henry Marten were suspended from membership on the grounds that, as members of High Commission, they had infringed the parliamentary privilege of Sir Robert Howard. Marten subsequently tendered an apology and was readmitted to the House, but Suckling never resumed his seat, pleading sickness. In 1628 Christopher Sherland tried to have John Baber expelled for following orders to billet soldiers which, as a lawyer, he knew to be illegal. He was seconded by Selden, who argued that the Commons was no place for men who were not prepared to speak freely, as ‘he that for fear in the country will do that which he ought not, may fear to do what is fit here’.
Enforcement of the rules
The Commons’ ability to enforce its rules depended to some extent on knowing that they had been broken. When it was argued in 1624 that Walter Steward, an unnaturalized Scot, should be granted admission because two unnaturalized foreigners, Levinus Munck and Sir Horatio Palavicino, had previously sat, Sir Edward Coke retorted that Munck and Palavicino had only been admitted because their true status had not been known at the time.
Although ignorance of a Member’s true status helps to explain why the rules were often inconsistently applied, the Commons sometimes failed to act despite being made aware of the facts. After Francis Tate observed in June 1604 that ‘some of this House be of the Convocation’, Speaker Phelips did nothing except to declare that those concerned ‘ought not to be here’.
The Commons’ decision to turn a blind eye to those of its Members with seats in Convocation illustrates that enforcement of the rules sometimes took second place to wider political considerations. Indeed, it is clear that the rules were sometimes seen as little more than a convenient stick with which to beat an unpopular Member. Take, for instance, the case of Griffith Payne, the mayor of Wallingford who was suspended in 1604 for having presided over his own election. Although Payne was clearly at fault, so too were five other Members, none of whom were subjected to similar punishment.
One of the clearest instances of the manipulation of the rules for political reasons concerns the Commons’ attitude towards the Scots. Although foreign nationals were prohibited from serving in the Commons, the same was not true of foreigners who had been naturalized by Act of Parliament. Following James’s accession the eligibility of foreign nationals who had been naturalized became a highly sensitive issue. In the Commons it was widely feared that unless care was taken, naturalized Scots would soon seek election for English constituencies. Consequently, when the bill to naturalize the Scotsman David Foulis was reported in April 1606, Nicholas Fuller, one of the Commons’ most violently anti-Scottish Members, ‘offereth a proviso to exclude him from the Parliament’ which passed without difficulty.
Hostility to Scottish membership of the Commons remained equally acute in 1614. When a bill to naturalize two Scotsmen was given a second reading Sir Robert Phelips revived Poole’s earlier proposal by suggesting that the bill committee should consider ‘of some course that neither these, nor any other of that nation that shall be naturalized hereafter, may be of this House’. Fuller, too, ‘desired to have a question put whether in passing bills of that nature there may not be a proviso that in the first naturalizing of any they should not be Parliament men’. However, this was deemed undesirable, not because it would antagonize the king but because it might imply ‘that those that are naturalized already might be of the Parliament’.
It was not until the latter part of James’s reign, when anti-Scottish feeling had subsided, that the Commons set aside its prejudices against Scots. The first Scot to sit was John Murray, who had been naturalized in 1610. His election for Guildford in December 1620 is chiefly remarkable for the fact that it entirely failed to elicit adverse comment in the Commons. Five other naturalized Scots subsequently went on to sit unchallenged at Westminster during the 1620s: Sir Robert Kerr and Sir James Fullerton in 1625; William Carr and William Murray in 1626; and Sir Francis Stewart, who sat in both 1626 and 1628. The only Scotsmen to be denied entry were Walter Stewart in 1624 and George Kirke in 1626. However, the reason they were barred was not that they were Scottish but that they had not been naturalized.
The Commons’ initial unwillingness to admit Scots, and if necessary to invent new rules to exclude them, provides a striking illustration of the fact that the Commons was not always prepared to uphold its existing rules. Indeed, some rules were so unpopular or held to be so inconvenient that they were broken with great regularity. When, in April 1604, the former Member Arthur Hall inspected a copy of the list of the names of those who had recently been returned to Parliament, he was so struck by the number of ‘misbegotten Members’ that it contained that he advised the king to dissolve Parliament and issue fresh writs.
One of the most widely disregarded rules was the convention barring minors from sitting. Under Elizabeth there were hardly any parliaments in which no under-age Members were returned,
Few seem to have treated the presence of minors seriously. Indeed, as Sir Edward Coke observed in 1624, ‘many under the age of 21 years sit here by connivancy’.
The number of minors elected at any one time was small by comparison with those who, by medieval law, should have been barred as non-residents. During the fifteenth and sixteenth centuries borough seats were much sought after by members of the gentry, and by the end of Elizabeth’s reign only a handful of enfranchised towns regularly returned residents. Many parliamentary boroughs welcomed this development, or at least saw the necessity, as non-residents invariably served without wages.
By the early seventeenth century the habit of returning non-residents was so ingrained that Thomas Scott of Canterbury claimed that over two hundred Members of the 1626 House of Commons were legally incapable of representing their constituents.
One possible solution to the problem was to replace the inconvenient medieval statutes. To that end, in 1571 a bill ‘for the validity of burgesses not resident’ was laid before the Commons, but though popular it failed to command universal support.
Just as the Commons was unwilling to observe the medieval requirement that its Members reside in the constituencies they represented, so too it proved reluctant to uphold the medieval law requiring borough Members to be freemen of the town for which they served at the time the election writs were issued. Many gentry Members represented boroughs which either disregarded the law altogether or swore in its parliamentary representatives as freemen at around the time of the election. The Commons refused to take seriously the suggestion that a man might be disabled from serving because he had not been free at the time of his election. When Sir Edwin Sandys tried to have his return for Sandwich quashed in 1621 on the grounds that he was not a freeman of the borough the House simply ignored him.
The Commons’ unwillingness to uphold medieval law was mirrored by its reluctance to exclude from its ranks those who had been outlawed for debt. On the face of it this was extraordinary, for if the Commons became a refuge for debtors its reputation would be tarnished. Besides, according to the Crown’s lawyers, in 1456/7 the judges had ruled ‘that matter of outlawry was a sufficient cause of dismission of any Member out of the House’.
In 1604 the right of outlaws to sit was put to the test after Sir Francis Goodwin was returned for Buckinghamshire in spite of a royal proclamation forbidding the election of outlaws. As a result of this case the Commons came close to reversing its earlier position. In order to mollify the king, who was aggrieved that it had chosen to side with Goodwin against the privy councillor Sir John Fortescue, the Commons offered to pass legislation to prevent outlaws from sitting in future. However, the lower House never made good this promise, for a bill to bar outlaws was later thrown out of the House without a single dissenting voice. A further bill ‘for disabling of recusants, persons attainted of forgery and perjury, outlawry and condemners of the law, to be of the Parliament’, subsequently received two readings before it disappeared.
The Commons never explained this change of heart, but it seems likely that its Members were influenced by the same considerations that were voiced twenty years later in the case of Ferdinand Huddleston, who was returned for Cumberland despite there being twenty-four outlawries against him. In the ensuing debates on Huddleston’s right to sit it was observed that ‘outlawries … are for the most part gotten behind men’s backs and without their privity’. This fear that a Member might discover only belatedly that he had been outlawed was certainly present in 1604, as a bill to prohibit ‘lurking and secret outlawries’ was twice read in April.
The Buckinghamshire election dispute of 1604 not only put to the test the right of the Commons to admit outlaws; it also raised the wider question of whether the Commons was entitled to determine its own rules of membership. For much of the sixteenth century the authority to determine disputed elections had ultimately rested with Chancery rather than with the Commons. Such elections often involved men whose right to sit was questionable even if they were not guilty of electoral malpractice. However, in 1593 the lower House took a major step towards claiming the right to settle controverted elections itself by placing its election committee on a firm footing.
As is well known, the Commons triumphed over Egerton, now Lord Chancellor Ellesmere, in the ensuing Buckinghamshire election dispute, as the new king reluctantly recognized that the Commons had as much right to determine the validity of returns as Chancery.
After 1604 Chancery ceased to pose a serious obstacle to the Commons’ right to determine its own membership. Even so, the Commons was forced to remain vigilant. In 1624 the House refused to admit as evidence witness statements drafted the masters in Chancery in case they were used at some future date to justify a revival of Chancery’s claim to be able to judge election returns.
Although Chancery no longer posed a threat this did not mean that the lower House’s monopoly over the right to determine the suitability of its Members was now secure. Many returning officers thought that it was their duty rather than that of the Commons to exclude ineligible candidates. In 1566, for instance, the sheriff of Hampshire refused to return Sir William Paulet on the grounds that Paulet’s residence was in Dorset, and in 1621 Leicestershire’s sheriff declined to return Sir George Hastings for a similar reason. This was entirely understandable, for under Elizabeth sheriffs were sometimes encouraged by the Crown to use their powers as returning officers to prevent unsuitable men from being returned. In August 1597, for instance, the Council sent out a circular to all sheriffs declaring that the queen required them to ensure that no ‘unmeet’ men were chosen to serve for the boroughs. Any borough found to be ‘evil supplied’ was to be made the subject of an official inquiry.
Returning officers were not alone in posing a threat to the Commons’ right to determine its own membership. In February 1626 the House admitted Sir Robert Howard even though he had been excommunicated by the ecclesiastical commissioners as it had no wish to allow High Commission to determine the right of one of its Members to sit.
Prior to 1603 the monarch had refrained from making public pronouncements on the type of men entitled to serve in the Commons except – as in the case of a Council circular of 1597 – in the vaguest of terms. However, James twice issued proclamations concerning the sorts of men who should be permitted to sit in the Commons. In the first, dated January 1604, he prohibited religious extremists as well as bankrupts and outlaws, and in his second, dated November 1620, he not only excluded troublesome lawyers but also granted boroughs the power to dispense with the legal requirement to choose residents if none were suitable.
It was not until the reign of Charles I that the king’s attempts to exclude certain sorts of individuals from the Commons became contentious. Ahead of the 1626 Parliament Charles hit upon two schemes to alter the composition of the Commons. The first was to require that the widely disregarded medieval laws barring the return of non-residents be observed, in the hope that many gentlemen opposed to voting adequate supply would be unable to find seats.
Charles’s attempt to exclude eight particular individuals – among them Sir Thomas Wentworth and Sir Robert Phelips – proved wholly successful. The only one of the eight to seek to defy the ban was Sir Edward Coke who, having been pricked as sheriff of Buckinghamshire, got himself returned for his native Norfolk. Coke’s act of defiance played right into Charles’s hands, as it provided the king with a golden opportunity to embarrass the Commons. Either the House would be forced to undergo the humiliation of ejecting Coke, one of the Commons’ most prized former Members, or it would seek to defend him, in which case the weight of precedent was so firmly behind Charles that the Commons would suffer an embarrassing defeat.
On learning that Coke had got himself elected, Charles sent a message to the Commons in which he declared that he hoped the House would ‘do him that right’ as to order the issue of a new writ. The Commons was thereupon thrown into disarray, for it was perfectly clear from the exclusion of Sir George Selby in 1614 that even if a sheriff was not guilty of returning himself he had no right to sit. However, it was equally clear to the Commons that the king was cynically using the rules of membership as a weapon to deprive the Commons of one of its most effective spokesmen. Charles’s interference not only struck at the House’s right to determine its own membership but also at its very independence. As Thomas Meautys observed, if Charles prevailed ‘we shall have a tame House’ and ‘the king will master his own ends without much ado’. To make matters worse, the previous day the House had declared that attorney-general Heath was disabled from sitting by virtue of his office. Since the Commons had excluded Heath, how could it now admit Coke, especially as in both cases the question of eligibility was clear from rulings made in 1614? Records were ‘looked up and brought into the House’, and for the first time it was asked whether the 1372 Ordinance which forbade the election of sheriffs was ‘equal to an Act of Parliament’. However, the Commons could find no plausible way to acknowledge Coke as a Member. Rather than rule against him the House did the only sensible thing remaining to it – it quietly let the matter drop.
By leaving the issue of Coke’s membership unresolved the Commons ensured that Charles was deprived of complete victory. Charles, however, did not give up, and in 1628 the issue resurfaced, as Walter Long was elected for Bath despite having been pricked as sheriff of Wiltshire. This time the Commons refused to acknowledge that there was a problem, and permitted Long to take his seat. Unable to compel the House to observe the legal requirement that no sheriff should return himself, Charles was forced to resort to Star Chamber, where Long was charged with desertion of his shrievalty.