Chapter 6 - The Voting Constiuency
As far as the Mayor and Corporation were concerned, the voting constituency should consist of the resident freemen or inburgess inhabitants, living in the Town for 3 months or more before the election was called, had reached the age of 21 years and hadn’t been supported by the Town i.e. not paupers. For the Whigs they appeared to initially agree with these requirements but then, part way through the election, wanted to add out-burgesses and foreigners. Each of these requirements will be analysed in turn.
Traditionally this was someone who was a freeman living within the town (often given the name inburgess) with full rights in that town; to vote in elections for MP, mayor or bailiff; to serve on juries; to have the right to use common land for grazing and the right to trade being the main ones. Anyone who wanted to trade in the Town needed to be a freeman or “stallanged” which meant that you paid a fee in order to trade. The Corporation, through the auspices of the Mayor, had the exclusive right to admit someone to be a freeman; this could be “gratis” or by a nominal fee (at the time 7d.) The main criticism of this process being that it was arbitrary and could, and probably was, misused. Householders didn’t automatically have the right to be made a freeman or the right to query any decision the Mayor might make. It was also possible for a freeman to lose his rights; in 1641 Luke Hodgkinson had refused or neglected to produce a true set of accounts and was
disfranchised and deprived of all liberties, rights, immunities, franchises and privileges...and was forever to be a stranger and forrener within this toune.
Sons of freemen were also, by custom and practice, made freemen. An interesting case appears in the voting records for Jonathan and Henry Barker (1) and that they
were admitted as ye sons of John Barker but the mother’s first husband was living when she married Barker
Surprisingly the previous statement wasn’t queried at the cross-examination. Perhaps by the first husbands death, the sons automatically became legitimized.
These were freemen who now lived out of town and were often given the name of outburgess. Typically they would be freemen or the sons of freemen who had now chosen to live outside the town for a number of different reasons. By custom and practice, according to the Corporation, the only people who should vote should be inburgesses, so there was pressure to attract outburgesses back to live within the town. If they paid a “fine” of 7d, every twenty years at the Guild, they could remain freemen. According to Abram (2) the foreign burgesses could only be created every 20 years at a guild and the only benefit they had was that they, or their families, were exempt from paying a toll on goods bought within the Town.
A summary of the Corporation view (3) of who should be allowed to vote as well as the historic background can be found in the legal arguments surrounding the overturning of the result or in Abrams’ Sketches.
Overall the Mayor would allow far more Tory-voting outburgesses to return to vote than Whig-voting voters. All this would add to the argument that the Mayor was controlling the electorate and this, eventually, would be used later to help persuade Parliament that the election had been rigged.
On the second day of voting (4), three of the voters were queried for non-residence. As an example the objection for Henry Wood was:-
Obj: to for non-residence – being consid[ere]d as an Outvote. Admitted.
All three voters voted for Hoghton & Burgoyne.
It looks like Leicester and Standish were not quite as successful at recruiting non-resident voters but that may be a false impression. All along they declared that non-resident freemen should not be allowed to vote. By encouraging non-residents to return would have run contrary to that argument and opened the doors for the Whigs to bring in as many non-residents as they could afford.
Bartholomew Charnley was queried in the same way but having his “goods” in Preston turned him into an inburgess. Goods being the name given to tools or equipment as part of a trade or furniture such as beds, tables and chairs to indicate residence.
There is also a suspicion of corruption since Heald paid for the goods to be brought into Preston.
Obj: for non residence; Heald having p[ai]d for bringing his Goods to Preston. Admitted.
Charnley was allowed to vote for Leicester and Standish as a "resident". In a later court case James Heald was accused as being one of the rioters on the side of Leicester & Standish. There are also a number of other cross-examinations where Heald’s name is mentioned again - and not always in a positive light.
The examination of William Rigby illustrates all the factors associated with the inburgess/outburgess split. Having lodgings in Liverpool would have counted against him being resident in Preston.
Obj: to for nonresidence:- proved his residence for 2 m[onth]s. Proved contra* that he had a Lodging in Liverpoole furnished in Novr last. Rigby says he has not yet begun Business since he came to Preston. Rejected.
Margin Comment: Mr Tho: Case w[oul]d have proved that Rigby declared he must come to Preston to be a voter that he c[oul]d not vote with[ou]t taking a room or residing.
*The word “contra” indicates a counter argument.
The position of “Foreigners” or “non-freemen but resident” was to prove decisive in the election. Most Catholics and Whigs would have fallen into this category prior to the 1768 election but also there were foreigners who came into the town between the first canvas and the election. This caused some consternation on the part of the Corporation, as mentioned earlier, so much so that the information was recorded in a booklet of Foreigners (5).
The above poster, produced a couple of weeks before the election, demonstrates that the Tory party had the suspicion that the Whigs were going to ask "all the inhabitants at large" to vote. For the in-burgesses this would have been seen as a dilution of their privileges.
For the Tory party this would bring them a major dilemma; do they encourage out-burgesses of their own persuasion and thus accept the wider franchise or do they reject the idea completely and thereby risk these voters being allowed at a later stage.
It is probable that the "Foreigners Booklet" provided a way for the Corporation/Tory party to monitor these potential voters.
By the way the entries appear in the Foreigner booklet, the exact number is impossible to garner and a large number of foreigners arrived just before the vote. Although not all were specifically dated, there are a couple of references to individuals arriving on the 10th March, 1768 - so that would seem to indicate a latest date for the production of the document. Something like 38 foreigners arrived in early January, 1768; a large proportion of these between the 4th and 6th of January and giving the impression that outside forces were at play. This was just a week or so before the main rioting.
According to custom and practice anyone who received parish relief was classified as a pauper and was barred from voting. Henry Varley, the overseer of the poor, was ever present at the polls and was often called upon to provide information regarding the voter. This situation can be seen when Nicholas Wiggins wished to vote on the first day of voting.
Object: to as being a receiver of Alms, having his rent paid by the Town, - which was proved by Hy. Varley the Overseer. Rejected.
Varley was known to dispense relief unofficially - not as an overseer - and if this could be proved the voter was generally allowed. Whatever the truth of this, this happened to Henry Dickinson on the third day of voting.
Obj: to as a pauper – Varley having paid his rent but not as Overseer as Varley declared.
One situation posed was “if the wife received poor relief behind the husband’s back did he automatically become a pauper?” A similar argument was put forward that any relief provided by the church (through the representative as the local vicar) should not define a pauper otherwise the vicar would, in effect, have the ability to control the electorate. These two issues combine in the cross-examination of Henry Walmsley on the fourth day of voting.
Obj: to as rece[ivin]g pt of the Sacram[en]t money. The Parish Clerk – proves his wife has rece[ive]d pt of it monthly. Obj: & admitted that the Husb: did not know of it so obj: that he co[ul]d not be affected.
The cross examination continued
Hy Varley – says he frequently gives money to the wives where the Husb[an]ds names are entred in the List. Mr Andrews, the vicar – says the money is charity & that she has recd it pretty constantly for near 20 years last – that there are 66 to whom he usually gives Shares & if any overplus he gives it at Discretion to others. Obj: that rece[ivin]g any Alms disqualifies & quote the case of Ailesbury* – wch says any others Alms in general. - Ans: that if the Vicar's giving Alms to wives unknown to their Husbands wo[ul]d disqualify – it wo[ul]d be making the Vicars returning Officers in every Borough & lodging too great power in the clergy. Margin note: Mr Kennyon to the same effect. Mr Serjt. Aspinall. Thinks it wo[ul]d be dangerous to disq: for such Alms – as it wd. be putting too much power in a vicar.
* This probably refers to a 1704 prosecution in Aylesbury for refusing a “good” vote.
The cross-examination continued:-
That Lee & Lockhart has laid it down for Law in a former case that the wife's rece[ivin]g Alms could not affect the Husb[an]d unless he knew of it & put the opposite p[ar]ty to prove it & he tho[ugh]t there was weight in the Argum[en]t. Admitted.
The Parish Clerk, being indirectly employed by the Hoghton family, would probably have been a Hoghton supporter.
A number of questions were posed and these didn’t always produce a consistent answer.
Did relief from a different parish create a pauper in Preston? Did non-parish charity relief define a pauper? A number of un-official charities appear in the documents but did someone who accepted help from these charities mean they were paupers? As a consequence of the 1601 Poor Law it was generally up to the local parish to decide upon what the relief should be and, as we can see in a number of the presentations, this tended to be tailored to an individual or family.
The proceedings of the House of Commons in 1690 produced a less than clear statement that anyone in receipt of alms or charity should be disqualified as a voter but “returning officers should use their own judgement”. (6)
For Thomas Connell in the 17th tally it appears that the judgement, even though he had received charity money, was that he should be allowed to vote.
Holland, the Overseer of Walton, gave him a shilling part of some charity money last Good Friday which money is distributed among the poor not having Town's pay. Allowed
By receiving relief some time ago did this define a “permanent” pauper? The above cross-examination also shows the lengths that were taken to include or exclude a voter. In this case to bring in the overseer from Walton. A similar situation applied to David Cooke not being a permanent pauper. The important words in the examination being “last year”.
Obj: to as a pauper, his Rent being paid by the Town for the last year. Admitted.
Most of these questions were satisfied by mutual agreement during the election but it always increased the tension if a “good vote” was disallowed.
In the years before compulsory civil registration of births (1837), the births and baptisms should normally have been recorded in church records. Unfortunately often records were lost or notes made in the family bible or some other book.
This occurs for James Rishton when he came to vote.
Obj: he has not proved his Age – he said he was upwards of 21, & that his Birthday is abt the 7: of ffeb: - Wm Rishton his ffather – says he can't swear whether he is or is not of Age but that he was born in ffeb. His mother says he was of Age the 6: of ffeb: last – is ask'd what year he was born in – hesitates at that, but says she has it entred in a Book wch she has at Home but that the Entry is not her own writing.
The cross examination continued with
Mr Lee insisted as she had refer'd to a Book it ought to be produced which Mr Serjt Aspinall denied to be Law. His mother – says she has a Dau[gh]tr living which is 23 years old & that she is not quite 2 years older than her son James. He says he was born in ffeb: 1747 & that is so entred in the Book.
The Court is of Opinion that if he is of Age he is a good vote. His name erased in the Mayor's pole book in the presence of Colonel Burgoyne – having been wrote therein by Mr Bradley the Mayor's clerk in Expectation the vote wo[oul]d be allowed. The Book sent for to be produced by the mo[th]er.
The Book produced & the vote disallowed. It appearing he was bapt in ffeb: 1747
Miles Connell, also in the 17th tally, required William ffisher to return the following day in order to confirm his age.
Obj: to his nonage wch is to be determd tomorrw. His fa[the]r Tho. Connell proves his Age.
The Court to determine Tomorrow morni'g whe[the]r Miles Connell be of Age or not & in the Interim his vote is taken de bene esse & John ffisher's son to be exam[ine]d re[gar]d[in]g it.
Margin note: Wm Son of John ffisher. I was play ffellow with Miles who was never reckon'd older than me. His vote admitted.
Both of the above cross-examinations illustrate the efforts that were put in to determine if the voter was valid or not, together with complex arguments. In the earlier tallies this was rare.
In the aftermath to the 1715 Jacobite rebellion new laws were brought in to control the power of Roman Catholics through the ballot box. These laws required them to swear the oaths of allegiance, supremacy and abjuration. The oath of allegiance, in effect, removed any latent support for the Jacobite cause by stating that all allegiance should be to the Hanoverian line (at this time King George III); the supremacy oath removed the Pope as having any religious control or jurisdiction in Great Britain and Ireland and the oath of abjuration confirmed the right of King George III and his heirs to be the rightful monarchs - in effect declaring the Stuart claim to the throne to be baseless. In the years following 1715 most Catholics would find it difficult to swear to these oaths and thus were deprived of the vote. A document "Advice to the Electors of Great Britain" contains all of the various oaths for 1768. (7)
With the entry of the Earl of Derby into the election and his support for Whigs, the Mayor and Council of Preston increased their lobbying the Roman Catholic population, offering them the possibility of becoming burgesses if they were to take the oaths. There is no doubt that there would be financial benefits to become a burgess and this was a powerful inducement.
The Tories/Corporation were so worried about the validity of the Catholic vote they consulted a legal expert, George Kenyon of Peel (8). His response, dated the 12th March 1768 and nine days before the election, was that as long as the Catholic voter was willing to swear the oaths mentioned above there should be no problem.
However Kenyon muddied the waters describing the following situation:-
Several of the above papists are lately Alarmed with Threats and Advertizemnts are printed off and publickly distributed amongst several of them by the ffriends of Colonel Burgoyne that they will be required (at the time of their polling) by a Justice of the Peace to make and subscribe the Declaration against Transubstantiation which they will all refuse to do, Tho ready and willing to take the above Oaths.
More than any other requirement, the belief in transubstantiation (by which the bread and wine in sacrament become, in reality, the body and blood of Christ) defines a Roman Catholic and was difficult to ignore. Kenyon also points out that he had heard that the Burgoyne camp had already approached several Roman Catholics in order to solicit votes.
In the squibbs (9) associated with the election we find the official oaths, which are to be declared, and include the declaration against transubstantiation:-
"I do declare, that I do believe, that there is not any Transubstantiation in the Sacrament of the Lord's Supper, or in the Elements of Bread and Wine, at or after the consecration thereof by any Person whatsoever."
There is also in the “Advice” a “Declaration against Popery” but this doesn’t appear to have been used - the other oaths probably negating the need for this one.
The 1768 election wasn’t the first where Catholics voted. There is a call-book (10) (or canvas) produced for the 1764 election of Mayor and it records 12 or 13 Roman Catholics (shown as RC). Unfortunately it is a very degraded document so the figures may be slightly inaccurate. Something like 500 names are to be found in this document whereas, by 1768, the canvas number had increased to a minimum of 618.
Other restrictions on the voting electorate include, since this was 1768, being male and of voting age. Only in the case of Evan Heath junior did the gender requirement appear (see later.) After the third day of voting, when the cross examinations became more intense, this class of voter coming to vote became less common.
The Military were another group that caused debate in this election. If they were refused the vote due to their nomadic lifestyle then they would, effectively, be disenfranchised everywhere. Where should they vote? It would be very unlikely that they would be allowed to return to their "home" area to vote so, effectively, they were disenfranchised.
Late in the election, Thomas Turner, and officer in the 42nd regiment turned up and a complex debate ensued.
Mr Lee – I have a pleasure in defending it as a Military character, the legislature has entitled them to ffavours more than the body at large – The Question is whether Capt Turner has a right to vote as an Inhitant of Preston bona fide – He is here in the way of his Duty – and is confined in his Duty – can't go where he pleases.
Mr Lockhart – Mr Lee has spoke ably – speaks in Favor of the Military Body, won't eng: whether the Court was Right as to the Soldier – he will enquire via Superior Court and there claim his right. His coming recruiting very Diff[eren]t from coming with a ffurlough – the latter being a limited Resid: the o[the]r by choice. Capt. Turner not resid: in Ireland, tho' his wife and the Reg. Are there, comes under the Express Com[man]d of the Crown, and will stay as long as he is permitted.
The voter plumped for Hoghton & Burgoyne but it was rejected but, in doing so, a reference is made to a “superior court” that would need to make the final decision. Perhaps, even now, Hoghton and Burgoynes were looking to the future and a possible plea to the highest court - the House of Commons.
The next voter, Captain Rigby, was allowed to vote – possibly the difference being that he had family in Preston.
Mr Rigby is a Capt. In the Army, dont know in what Regiment – he resides here with his Parents. A.R. - the voter – my Regimt is in Scotland – I am absent from it upon leave – I have been with my ffather here ever since August – can't tell when I shall join the Regimt, there is no certain time.
According to Abram, Captain Rigby was the son of Townley Rigby Esq. of Goosnargh and thus an important person in the area.
At the end of the "register of Tallies" (DDPr 11/50)) there are several scraps of paper including one titled "Account of the Militia and persons Voted as Inhabitants who were not residents." There are 67 names in the list but only 11 that specifically mention that they were in the Lancashire Militia. These would become a significant factor in the election if all of their votes were allowed.
The Corporation was obviously worried about all of the potential voter categories mentioned that, prior to the election, John Dunning (who had recently become the Solicitor-General) was consulted over these, and other, matters. The Corporation
Called for an opinion with respect to the necessary qualifications of those who have or shall claim a right of being polled…. and directions as to the conduct of the returning officers
His response (11), dated the 1st January, appears to have been less than helpful. Comprehensive research appears to have been undertaken but his answers, couched in flowery language, give no definitive opinion. One of his responses was
the election officers should follow the constitution of the borough as they see it; adding that if they are censored it would "ensure ... they will at least have the Consolation of feeling that they do not deserve it".
The useless response of a politician.
1. Lancashire Archives – Poll Book (similar but different to DDPr 11/50) – DDKE Box87/6. Most of the examples in this section will have been gleaned from this or DDPr 11/51
2. Abram – Sketches 38
3. Lancashire Archives – Petition, Answers & Orders – Hoghton & Burgoyne against the Election return – DDPr 131/8.
4. Lancashire Archives – Register of Preston voters, with examinations as to their validity - DDPd 11/51
5. Lancashire Archives – Register of Foreign Voters - DDPr 138/7
6. Abram - Sketches 38
7. Lancashire Archives - MS Book of Squibs - DDPR 131/7
8. Lancashire Archives – DDX 123/48
9. Lancashire Archives – Ms Book of Squibs/Stubbs – Official Oaths - DDPr 131/7
10. Lancashire Archives – Call Book for the 1764 election - DDPR/138/6
11. Lancashire Archives - DDPr 131/8a - Concerning the franchise in Preston