CHAPTER 1
The Structure of Borough Government
Representation and Election
If the actual practice of consultation and consent did not correspond precisely to the theory that all governmental decisions had to be authorized by the whole membership of the community, this does not mean that statements in the records expressing the theory were insincere. In 1286 a Norwich thief was convicted before "Ballivis et tota Communitate totius civitatis in Tolboth";[131] but we cannot take literally, nor are we expected to believe, that every single townsman in one of England's largest cities could be fitted into the small building that housed local government. The practicality of day-to-day administration necessitated the device of representation, as Miss McKisack points out, "not indeed as a principle, but as an expedient."[132] From this fact alone we might reasonably suspect that some sort of conciliar machinery is likely to have existed from the early days of each borough's independence. The transfer of the focus of government from the open-air folkmoots held in the churchyards of St. Mary Tower in Ipswich and St. Michael de Motestow in Norwich, to the town halls in the market-places of each, reflects the convenience of representation.[133] One feature of this convenience was that it could be assumed that assent to the acts or decisions of government by those actually present at the time was equivalent to the assent of, and binding on, every member of the community. This is the understanding behind phrases such as "the bailiffs and the whole community".
Those present generally meant the town council, for attendance on behalf of the community was their duty. On 29 June 1200 the Ipswich folkmoot gathered, elected bailiffs and coroners (as per the town's new charter), and then decided to elect the portmen, to which body it would delegate "plenam potestatem pro se et tota villata ad gubernandum".[134] With that election the initiative of the community ended, and it left its representatives to sort out the details of administrative structure, reserving however the right to assent to (and therefore, theoretically, reject) any of these details. The record of the 1345 electoral assembly in Norwich states that the 24 were elected to govern on behalf of (pro) the community, and similar references may be found with regard to the councils of Lynn (1322, 1342), Ipswich (1312), and Colchester (c.1401-05).[135] In 1376, when a powerful but rebellious member of Lynn's community was threatening to take legal action against the borough government, the mayor and 33 other burgesses present that day in the gildhall drew up a declaration of hostility and united resistance to the rebel, signing it "pro se ipsis et omnibus absentibus."[136]
M.P.s are another of the more obvious examples of representation. The king insisted that they have full power to treat, speak and agree on behalf of their communities, who accordingly delegated this authority to the M.P.s via letters of attorney sealed with the common seal. It is interesting to note that the issuing of such letters in Lynn was particularly carefully recorded during the administration of the popularly supported reform party (1411-14). Parliaments were of course not the only meetings to which boroughs were enjoined to send representatives with power to act for the community.[137] Delegating authority involves the agreement of the delegator to accept the actions of the delegatee. This is usually implicit, although it was written into the record of the election in Lynn, in 1313, of a committee charged with determining how to further community business in parliament. On the other hand, delegation does not give carte blanche to the delegatee, who is expected to know the limitations of his power. Thus, when Colchester bailiff John atte Forde died in office in 1375, his associate continued in the ballivalty alone (rather than having a replacement elected, as was usually the case) "not of his own prompting, but by the counsel given him by the commonalty". And when an Ipswich man insisted on his right of having enrolled in borough records a deed drawn up by his wife, the bailiffs - although protesting that to enrol a deed that had no legal validity would only discredit borough government - were powerless to refuse him.[138]
The right of consent is one of the basic safeguards of a democracy; the other is control of elections. The device of indirect election has been blamed for contributing to the subversion of the democratic element in the borough constitution. Mrs. Green may be right that it "was admirably suited to the use and convenience of the minority", but there is no positive evidence that town rulers manipulated or influenced the process to ensure that men of their preference were elected.[139] The use of electoral committees was in fact a common and long-established method, whose intent shows no sign of having been to deprive the majority of their influence; it simply appealed to the taste for orderliness. The election of Ipswich's portmen in 1200 was made, apparently with full approval of the populace, by a committee of four men per parish, picked by the bailiffs; essentially the same method was used in 1309, when the electors were said to be acting on behalf of themselves and the rest of the community. Bailiffs and other officers were elected directly by the community, and this was still the case in 1434.[140] The first indication of indirect election that we have from Maldon is in the earliest recorded version of the custumal (1444), which reveals that officers were elected by the wardemen.[141] This must originally have had the same democratic quality as an electoral committee while the wardemen themselves were elected annually, but by 1444 they were becoming a life-membership body, thus removing elections from popular control. At Colchester the method of indirect election was introduced as part of the reform package of 1372 and was evidently thought of, along with the creation of receivers and auditors to supervise finances, as a check on ballival power. The process was as follows: the community was to choose 4 persons who would co-opt twenty others; these 24, none of whom was to have held ballival office, were to elect bailiffs, auditors and receivers; the electors were to take oath that, in the choices they made, they would not be influenced by love nor hatred, procurement, gift nor affinity."[142] In 1406 a second set of electors was introduced to elect town clerk, coroners, clavigers, and sergeants, who were elected on a different day from the more important officers; on this occasion the initial four of each electoral committee were deliberately chosen from the councillors, but this did not become standard practice. The basis of elections before 1372 is unknown, but the constables of the peace at least were elected by the community in 1312.[143]
In 1344 the town council of Norwich was elected by the community; the method of electing bailiffs is not indicated at this point, but in 1365 election was made by a committee of 24 which may or may not have been the popularly-elected council. The 1415 composition produced a compromise electoral form whereby the freeman assembly might nominate two mayoral candidates, one of whom would be selected by the then-mayor and upper council; as already noted, by this time the community had lost control of election of that council. Only after the disturbances of the 1440s was a move made towards displacing the open assembly, by requiring Common Council and ward constables to select a mayor from two nominees put forward by mayor and aldermen; but this was only a version of the electoral committee, since councillors and constables were still elected democratically.[144] In Lynn too the council of jurats was initially elected by the community (1305, 1322), but by 1346 a 12-man electoral committee was choosing the jurats and all other officers; during the 1370s and '80s the committee elected only 12 of the jurats and then joined them to make up the full 24, but this experiment was subsequently dropped. The electoral committee was no innovation in Lynn in 1346, for it had been used to select the parliamentary committee of 1313; we find the system operating also for the selection of officers of socio-religious gilds.[145] The system itself was not viewed as undemocratic, even by the fifteenth century reformers, who used it during their administration to elect M.P.s. What they objected to, however, was that the first four electors, who co-opted the remainder, were chosen by the Gild Merchant alderman. The reformers gave (or returned, they claimed) this task to the assembly, but the alteration did not outlive their administration. The reformers proposed to amend mayoral elections so that the assembly would nominate two jurats, from whom mayor and jurats would select one for the following year's mayor. Again this did not survive, the electoral committee being restored and the alderman sworn to choose the first four electors without favour or fraud "de indifferentibus et non suspectis."[146]
It has been claimed that Yarmouth had a wider electorate than other East Anglian towns, but the evidence for this rests on a single document the nature of which is by no means clear.[147] Two small membranes contain a list of 89 names, the identities of these townsmen suggesting a date circa the last decade of the thirteenth century, so that "22 E.I" added in a later hand may be correct. We are told that "Isti in istis .ij. cedalis composuerunt cartam de sigillo communitatis sigillatam ad ballivos in villa ista eligendos", but this helps us little. Whether these were merely the witnesses to some document setting out the electoral method, or were those participating in an election, or were a list from whom an electoral committee was chosen (some names having marks beside them), we simply cannot tell. Clear evidence of Yarmouth's electoral system is not forthcoming until 1386, when we see the community electing the council of 24, which in turn was to elect the town officers; there is no indication whether this method was traditional or an innovation. The herring warders instituted in 1413 were to be elected annually by the community, although it is not inconceivable that this might have meant the community as represented by the 24. In 1491 reforms, said to be based on custom and earlier ordinances, produced a complicated system of indirect election, one feature of which was the selection of an electoral committee by an illiterate man pulling names out of hats.[148]
Borough parliamentary elections have received the attention of many historians and we may look briefly at these. Parliamentary returns from Norfolk and Suffolk are fairly detailed, compared to those for most other counties; they provide not only the names of M.P.s but also those of the returning officers of the towns. Many of the local indentures of the fifteenth century survive too; at first glance they seem informative, but can be misleading as to electoral method. As Houghton has pointed out, the purpose of an indenture was not to detail the course of the election, but to satisfy Chancery that it was conducted according to the specifications of the royal government - essentially, open election of suitable delegates who were residents of the locality represented.[149] At Lynn, as far back as the records show (1373), each election of M.P.s was by a 12-man committee usually chosen for that sole purpose and mostly from members of the corporation, although this was a question of convenient practice, not a constitutional principle.[150] Regarding the election of November 1420, the indenture tells us that the steward of Lynn (who had return of writs) and 12 named burgesses unanimously elected the M.P.s, whereas local record indicates that election was made by the usual committee, which has only two names in common with the indenture list.[151] The names found on this, and other indentures, were in actuality persons testifying that the election was conducted properly.
Indentures from Yarmouth usually tell us that the bailiffs "made to be elected" M.P.s in the presence of, or sometimes by, 4 named witnesses; although in 1449 we are told that bailiffs, coroners and community unanimously elected the M.P.s. As regards Ipswich, named witnesses testify that bailiffs, coroners and burgesses, some occasionally named, unanimously elected their representatives. Whilst from Colchester we hear that in 1455 12 men, by the assent of all the burgesses, made the election; whereas in 1472 it was made by the greater part of the more sufficient resident burgesses.[152] From local sources we learn that Norwich M.P.s were to be chosen by common assembly (1415). Those of Maldon, it is stated in the sixteenth century recension of the custumal, were customarily made by bailiffs, burgesses, freemen, and commonalty. Ipswich elections of the fifteeth century are frequently recorded as made by bailiffs, portmen, and the whole community.[153]
How literally we may take these statements is another matter. Wedgwood was willing to take the Yarmouth indentures at their face value, whereas Saul, dealing with the previous century, concluded from the absence of references to popular election that M.P.s were probably appointed by the bailiffs.[154] The Ipswich ordinance of 1474, stressing that resident burgesses were the rightful electors of M.P.s and town officials, was not, as McKisack believed, an assertion of democratic election in the face of monopolisation by the persons named in the indentures, but a measure to prevent participation (i.e. interference) by outsiders.[155] Only in Lynn do we encounter a genuine complaint when, in 1419, several burgesses objected to the use of the electoral committee, arguing that M.P.s should be elected openly by the whole community, which had to pay their expenses. However, this objection, by the die-hards of the defeated reform party, was quickly refuted by reference to the recent constitutional settlement.[156] If we hear little of electoral practice before the late fourteenth century, it is probably because M.P.s were only functionaries acting under the instructions of their local governments; control of the election of M.P.s at any time in the Middle Ages was of far less importance than control of the election of those governments.
The same problem holds true of elections of other officers: that when we hear that executive or council are elected by "totam communitatem unanimi consensu", or some such phrase, we are reluctant to take this literally. The question of the 'whole community' is accounted for by the theory of representation. As for unanimity, it was evidently considered desirable to project the image that the borough community acted 'one for all, and all for one', as was implied in the taking of an oath of loyalty by every freeman. Perhaps the royal government was a particular target for this myth, to avoid the risk of royal intervention in internal affairs. Susan Reynolds doubts that in borough elections or decision-making generally "the votes of the townspeople were considered equal and counted, or that the process was intended to be democratic."[157] Yet occasionally we are afforded glimpses that suggest otherwise. Norwich's 1415 composition provided that each of the mayoral candidates be nominated by majority shout, a crude method which contrasts with the choice between candidates made by majority vote of mayor and aldermen, as determined by secret ballot. Similarly in Lynn, a dissenting voice on 29 August 1412 led to a vote as to whether the assembly could proceed with the election scheduled, and those in favour were asked to sit; whether a careful head count would have been taken is unknown, since in this case only half a dozen people remained conspicuously aloft (perhaps the intended effect). In 1419 we hear that, of the two men nominated as Common Councillor for one of the constabularies, the electors of that constabulary chose John Muriell by a vote of 27 to 14; whilst in 1430 John Emneth was elected by 6 votes more than the alternate candidate. Furthermore the vote on a proposed ordinance was recorded in 1427, and shows the names of the 16 councillors who voted against and the 5 who voted in favour; it should be noted, however, that the ordinance was subsequently passed when the jurats cast their votes in support.[158] The circumstances which led to recording of the votes in the cases mentioned above may have been out of the ordinary, but there is no reason to think that counting votes individually was. The principle of majority vote was sometimes written into the constitution, partly because not all members of the legislature were able to attend every meeting and lack of a quorum could hinder the transaction of business. But more often it was because minorities in opposition were no longer willing to acquiesce in their defeat.[159]
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