7 H. 4. c. xv. 4 Inft. 10. quired of the people, by fhutting out men of learning who might give an oppofition to the measure. But this, like all arbitrary innova tions, was immediately cried down by the difcerning and active fpirit of the people. The reftriction attempted in the 5 Hen. 4. was fo far from being popular, that in 7 Hen. 4. on complaint of the commons, it was enact, ed, that thenceforth the election fhould be free and indifferent, or, in the emphatical language of the act, "non obftant aucun prier ou "commandement au contrarie." And it is beyond all controversy, that this took away the restrictions of the writ introduced in the 5 Hen. 4. though probably the nolumus, as to fheriffs, was not meant to be affected by it, and has been continued to this day, upon a ground peculiar to itself. The nolumus claufe, prohibiting the elec tion of fheriffs as reprefentatives of the people, has been ever fince continued as part of the writ, but in terms of greater latitude than those used in the statute or ordonance of E. * It seems never to have been doubted that a fheriff is ineligible for his own county, though queftions have arifen how far he is eligible for 3. fince the reign of E. 3. together with all revenues alienated by the crown, and all patents of penfions or annuities for life, fince the 40 E. 3. to be examined; and such as were undefervedly beftowed to be revoked. * For the opinions on the 46 E. 3. fee all the authorities brought together. Append. to Ruff. Stat. and 4 Dougl. 154. Southampton Ca. Dougl. 419. 448. Abingdon Ca. another another county, or a borough or city within his own, as in the next chapter will be more particularly noticed. 7 H. 4. c. xv. Pryn Brev. Parl Red. from p. 230 to 238. In the 8th year of H. 4. the form of the 8 H. 4. writ was altered in compliance with, and in conformity to, an act of the legislature, which had paffed the year preceding, to regulate the mode of election, but neither enlarged nor narrowed the right. The ftatute (after reciting the undue election of the knights of the counties' for parliament, which be fometimes made of affection of sheriffs, and otherwise against the form of the writs directed to the fheriff, to the great flander of the counties and hindrance of the business of the commonalty in the faid county) prescribes the mode of election thereafter to take place, and adds, "In the writs " of the parliament to be made hereafter, this "claufe fhall be added, " Et electionem tuam "in pleno comitatu tuo factum distincte et aperte fub figillo tuo et figillis eorum qui "electioni illi interfuerint nobis in cancellaria "noftra ad diem & locum in brevi contentos "certifices indilate." And, for more effectually preventing the sheriff's partiality, the writ was made to add " freely and indifferently to proceed to the election, and infert the name of the perfons chofen, "whether they were prefent or abfent." This latter part, it may be prefumed, was added, to leave the electors perfectly free in their choice, and to put it out of the power of the fheriff, under the pretence of abfence of the perfons chofen to return any 4 other 8 H. 6. c. 7. other whom he might procure to be present at the proclamation. The next alteration which took place in the 8th year of H. 6. was of much more effential nature than the former. For by an act of parliament of that year, reciting very fully the inconveniences of election by the great outrageous and exceffive number of people dwelling within the county, of which most part was of people of fmall fubftance and of no value, reftrains the right of voting to perfons who have frank tenements of clear yearly value of 40s. after all reprifes *. And 10 H. 6. c. 2. by the 10 H. 6. the freehold must be within the county, the perfons to be elected are alfo directed to be "commorantes et refidentes" within the county; and the fheriff is empowered to examine the freeholder on oath as to his qualification, and directed not to make a bad return, under the penalty of 100l. to be recovered against him before juftices of affize. The writs in 23 H. 6. are formed almost literally upon this act, and have continued nearly the fame fince that time, It is not clear whether any landed or freehold qualification was requifite to intitle a perfon to a vote at the county election before this ftatute. Mr. Prynne is almost the only one who holds that the right of voting was in the inhabitants of the county at large (which must be understood fubject to the common law difabilities, of in 23 H. 6. Prynne's Parl. *The French word is reprises. Ruffhead has tranflated it" charges," fancy, fancy, &c.), without a reference to any landed. property whatever. Lord Chief Juftice Holt, in the cafe of Afhby and White, speaking upon 1 Salk. 20. this fubject, fuppofes the right in freeholders only, though of ever fo fmall value. The current of opinions accords with that of Lord Holt. The recital of the writ extends indeed to "dwellers within the county of no value;" and the whole "commonalty" of the county are thereby required to confent and empower; and that word feems defcriptive of other perfons befides landholders, because it is applied to the inhabitants of cities and boroughs, who, for the most part, must be fuppofed not landholders, nor fpoken of as fuch. But thefe expreffions must be conftrued according to their subject matter. The object of reprefentation was, that the people should impose their own taxes. Escuage, which, if uncertain, was affeffed in refpect of lands held by knight fervice; and if certain, in respect of lands held by focage; was the principal tax then exifting which affected lands. None but those who had free land could therefore be called upon to contribute to it. Talliage, though it commenced about the latter end of the reign of H. 3 was upon the towns, and was a tax upon perfonal property only; and fubfidy, which was a tax upon income, whether real or perfonal, and confequently included all perfons of any property, whether their income arofe from free land or land of Sincl. Hift. Rev. bafe P. 29. Lytt. Hift. v. 3. Hift. Rev. p. 34. Reg. R. 2. base tenure, was the invention of a much more recent period. From these confiderations, as well as from the circumftance of the election being directed to be made before the sheriff, and by the perfons prefent in the county court, we cannot but affent to the doctrine generally Pryn. 4th part. laid down; and indeed Mr. Prynne himself, in the 4th part of his Parliamentary Writs, seems to have changed his former opinion. There are fome perfons who ftigmatize this act of H. 6. with the reproach of aristocratic principles, and affect to think that the conftitution was wounded by the alteration. If however the recital of the act be true, which has never been denied, that tumult and confufion overbore the voices of the fewer but more fubftantial voters, who, from the independence of their fituation, were more deeply interested in the choice of their reprefentatives; it may not perhaps be unreasonable to think that the rights of election were preferved Bl. Com. v. 1. rather than prejudiced by the alteration. Mr. Juftice Blackstone does not fcruple to attribute the greateft calamities of Rome, and even the final lofs of its liberty, to the confufion which arofe in the public elections, by indulging too large a number of perfons in the participation of the privilege of Roman citizens. The provifions which have been made by act of parliament fince this period, for the greater freedom of elections, extending to a more minute regulation of the conduct of the sheriff, have not been engrafted into the writ, and therefore |