to be founded. _Abbas Wulfricus habuit fratrem, Guthmundum vocabulo; cui
filiam præpotentis viri in matrimonium conjungi paraverat; sed quoniam
ille XL. hidarum terræ dominium minus obtineret, licet nobilis esset,
inter proceres TUNC nuncupari non potuit_. It is somewhat remarkable,
that Mr Hume is among those, who, resting on this foundation, would make
us conceive, that a person who had 40 hides of land, could, without being
noble, give his voice in the Wittenagemot. _Hist. of Eng. vol. I. p.
145._ The passage, however, properly understood, serves to shew, that, in
the course of time, the attendance of the Nobles in parliament, having
been deemed an expensive service, a law was made to relieve those of
them from it who were not possessed of 40 hides of land. The reader may
consult _hist. Eliens. c. 36. 40. ap. Gale_, the authority appealed to by
Mr Hume.
[11] It is perhaps impossible to ascertain the æra of this invaluable
institution. It loses itself in a distant antiquity. The Saxon laws
mention it as a known invention. See _LL. Ethelr. c. 4. Senat. Consult.
de Mont. Wal. c. 3. ap. Wilkins_. See also _Nicolson, Præfat. ad Leg.
Anglo-Sax. Spelm. Gloss. and Coke’s 1st Institute_. Olaus Wormius traces
it to a remote age among the Danes; and Stiernhook among the Swedes.
_Monument. Dan. lib. 1. c. 10._ _De Jure Sueon. et Goth. vetusto. c. 4._
[12] Annal. lib. 14. c. 33. _Copia negotiatorum et commeatuum maxime
celebre._ The city of London in the Danish times was able to pay L.
11,000 as its proportion of L. 70,000, a tax then imposed on the nation.
Asser, in the life of Alfred, refers to above 120 cities, boroughs and
villages.
[13] Lib. 1. See also Holingh. Chron. p. 192.
[14] Spelman, life of Alfred, b. 2. p. 28. Malmesb. lib. 2. c. 4. A
writer in Du Chesne having occasion to mention the first return of duke
William to Normandy, after his invasion of England, has the following
passage: _Attulit quantum ex ditione trium Galliarum vix colligeretur
argentum atque aurum: Chari metalli abundantia multipliciter Gallias
terra illa [Anglia] vincit. Gest. Gul. Conques. p. 210._
[15] LL. Anglo-Saxon. ap. Wilkins, p. 71.
[16] The Confessor dying without issue, the competitors for the crown
were Edgar Atheling, Harold, and duke William. The first had not capacity
to sway the sceptre; and the succession of kings was not yet directed
by very regular maxims. Harold was a subject, and in possession of no
legal claim. William was related to Edward, and urged the destination of
that prince to succeed him. On these grounds he invaded England; and by
opposing Harold, he meant to secure what was his right of succession.
His victory accordingly gave him the capacity of a successor, and not
of a conqueror. That the quarrel was personal with Harold may be even
conceived from the circumstance that duke William offered to decide their
dispute by single combat. _Hale, hist. of the com. law, ch. v. Cook,
argument. antinorm._
With regard to William’s right of succession, the best account
appears to be that which is found in Ingulphus, William of Poictiers,
William Gemetensis, and Ordericus Vitalis, who were all of them his
contemporaries. These authors inform us, that king Edward sent Harold
into Normandy to assure duke William of his having destined him to be
his successor to the crown of England; a destination which he had before
observed to him by Robert Archbishop of Canterbury; and which appears
to have been made with the consent of the national council. And of this
relation there remains a very curious and decisive confirmation. It
is a tapestry found at Bayeux, and supposed to be work of Matilda the
wife of duke William, and of the ladies of her court, in which Harold
is represented on his embassy. See _a description of this tapestry by
Smart Lethieullier, Esq; ap. Du Carrel’s Anglo-Norman antiquities_. It is
surprising, when these particulars are considered, that Mr. Hume should
have given his sanction to the opinion that William’s right was entirely
by war, and that he should have conceived that those who refuse to this
prince the title of _Conqueror_ should rest solely or chiefly on the
pretence that the word _conqueror_ is in old books and records applied
to such as make an acquisition of territory by any means. _Hist. of Eng.
vol. 1. p. 200._ It is true, that Sir Henry Spelman and other antiquaries
have shown, that _conquestus_ and _conquisitio_ were in the age of duke
William synonymous with _acquisitio_; but it is no less true, that the
authors who refuse to duke William the title of Conqueror, rest on much
superior evidence. It is not with pleasure that I differ from this great
authority; but, no man has a title to enquire who will not think for
himself; and the most perfect productions of human wit have their errors
and their blemishes.
[17] See farther, an Historical Dissertation concerning the antiquity of
the English constitution. Part 2.
[18] Ibid.
[19] Ibid.
[20] It is a very curious fact, that even some of the Anglo-Saxon nobles
had all the prerogatives of earls-palatine. Alfred, we are told, put to
death one of his judges for having passed sentence on a malefactor for
an offence which had been committed _where the king’s writ did not pass.
Mirroire de Justices, ch._ v. And in Selden we meet with earls who had
entirely the civil and criminal jurisdiction in their own territories.
_Tit. Hon. part 2. ch._ v. If there were no other proofs than these, they
would be sufficient to evince the reality of fiefs among the Anglo-Saxons.
[21] Madox, hist. of Excheq. _Erant in Anglia quodammodo_, says an old
writer concerning the age of Stephen, _tot reges vel potius tyranni, quot
domini Castellorum. Gul. Neubrigens._
[22] _Civitas London. habeat omnes ANTIQUAS LIBERTATES et LIBERAS
CONSUETUDINES SUAS tam per terras quam per aquas. Præterea volumus et
concedimus quod OMNES ALIAE CIVITATES et BURGI et VILLAE et PORTUS
habeant OMNES LIBERTATES, et LIBERAS CONSUETUDINES SUAS._ _Magna charta
ap. Blackstone, Law Tracts, vol. III. p. 21._
[23] They had suffered considerably, even from the time of the Confessor
to that of Domesday-book. Authors ought therefore to be cautious in
reasoning back from that monument to the Saxon period. It is a pity,
that the survey of the kingdom taken by Alfred did not yet remain.
The comparison of it with that of William would lead to very curious
discoveries.
[24] The first summons of knights extant on record is supposed to be in
the 49th of Henry III. But this, though it were true, does not prove that
knights were not known till that time. The writ does not say so; nor can
it be gathered from it, that _knights of the shire_ were then _newly_
established. If there remained, indeed, an uniform series of records
from the earliest times, in which there was no mention of _knights_
till the age of Henry III. there might thence arise a strong argument
against their antiquity. But this is not the case; and it happens, that
in the 15th year of king John, there is a writ to the sheriff to summon
_FOUR knights of the county_; _15. Jo. Rs. rot. claus. pt. 2. m. 7.
dorso. 4 discretos milites, de comitatu suo, ad loquendum nobiscum_.
There is also similar evidence, that in the 32d and 42d years of Henry
III. _knights_ made their appearance in parliament. _Whitelocke, Notes,
vol. I. 438. vol. II. 120._ In the close roll, also, of the 38th year of
Henry III. there is extant a writ of summons directed to the sheriffs
of Bedfordshire and Buckinghamshire, requiring _TWO knights_ to be sent
for each of these counties. _Lyttelton, Hist. Henry II. notes to the 2d
book, p. 70. 79._ In ancient times, it was usual to summon sometimes
_FOUR knights_, sometimes THREE, sometimes TWO, and even sometimes _ONE
knight_. But from the reign of Edward III. it has been the constant
practice for the sheriff to return _TWO knights_ for each county.
_Whitelocke, vol. I. 439._
The first summons directed to the sheriff for the election of _citizens_
and _burgesses_, is supposed to be in the 23d of Edward I. But in the
sixth year of king John, says Whitelocke, there is extant on record a
writ to the sheriff, which mentions “Bishops, earls, barons, and _all our
faithful people in England_; by whose assent, lawes were then made.” _6.
Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis.
&c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol.
II. p. 120._ An ordinance in this year of king John, directed _to all the
sheriffs_ in England, is mentioned from the records by Sir Robert Cotton,
and has these words: _Provisum est ASSENSU Archiepiscoporum, comitum,
baronum, et OMNIUM FIDELIUM NOSTRORUM ANGLIAE._ _Cotton. posth. p. 15._
In the _conventio inter regem Johannem et barones_ the people are stated
as parties; a circumstance which would not have happened if they had
not been represented. _Hæc est conventio facta inter dominum Johannem
regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c.
ET LIBEROS HOMINES TOTIUS REGNI ex altera parte_. Blackstone’s Edition
of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms
this notion is, that we find the _mayor of London_ and the _constable of
Chester_ in the list of those who were chosen conservators of the public
liberties in consequence of the great charter. Other proofs, likeways, of
the antiquity of the commons are to be found in the great charters. See
Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.
It is also worthy of notice, that the 25th of Edward I. which confirms
the great charter, observes, that it was made by the _common assent of
all the realm_: And the 15th of Edward III. observes, that it was made
_par le roy, ses piers, et la communalté de la terre_.
Nor must it be omitted, that the 5th of Richard II. has this remarkable
passage: _The king doth will and command, and it is assented in the
parliament, by the prelates, lords and COMMONS, that all and singular
persons and commonalties, which from henceforth shall have the summons
of the parliament, shall come from henceforth to the parliaments in the
manner as they are bound to do, and have been accustomed within the realm
of England OF OLD TIMES. And if any person of the same realm, which
from henceforth shall have the said summons (be he archbishop, bishop,
abbot, prior, duke, earl, baron, banneret, KNIGHT of the shire, CITIZEN
of city, BURGESS of borough, or other singular person, or commonalty)
do absent himself, and come not at the said summons (except he may
reasonably and honestly excuse him to our lord the king) he shall be
amerced, and otherwise punished, according as OF OLD TIMES hath been used
to be done within the said realm in the said case. And if any sheriff of
the realm be from henceforth negligent in making his returns of writs
of the parliament; or that he leave out of the said returns ANY CITIES
OR BOROUGH WHICH BE BOUND AND OF OLD TIME WERE WONT TO COME TO THE
PARLIAMENT, he shall be amerced, or otherwise punished in the manner as
was accustomed to be done in the said case_ in times past. _Stat. 2. cap.
4._
The expression “of old time,” so often used here, must doubtless carry us
farther back than the 23d of Edward I. or even the 49th of Henry III. The
space of two or even three reigns does not make a period of antiquity. We
do not say, that the accession of George I. was in _ancient times_.
I know well, that the expressions _commonalty_, _communitas regni_,
_baronagium Angliæ_, _magnates_, _nobiles_, _proceres_, _&c._ have been
considered as solely applicable to barons and tenants _in capite_. But
one must beware of giving credit to this opinion. The great charter of
king John bears to have been made _per regem, barones et liberos homines
totius regni_; a certain proof that it was not made by the king and
the barons only; yet Henry III. speaking of this parliament, calls it
_baronagium Angliæ_. The _magnates_ and _proceres_ are said to have made
the statute of Mortmain; but it is well known, that the parliament which
gave authority to this act consisted of king, lords and _Commons_. In the
35th of Edward I. the expression _cum comitibus, baronibus, proceribus,
nobilibus, ac communitatibus_, evidently refers to KNIGHTS, CITIZENS and
BURGESSES: And in the 14th of Edward III. _commonalty_ and _Commons_ are
used as synonymous. See farther, _Whitelocke, vol. II. ch. 81_. _Coke,
2nd Inst. 583._ _Petyt, Rights of the Commons._ _Atkyns, on the power and
jurisdiction of parliament._
Mr Hume, I am sensible, strenuously asserts the late origin of the
Commons; and one would almost imagine, that his history of England had
been written to prove it. His reasonings, however, on constitutional
points, do not appear to me to be always decisive; and it is with pain
I observe the respect which this great man has paid to the opinions of
Dr Brady; a writer who is known to have disgraced excellent talents, by
pleading the cause of a faction, and giving a varnish to tyranny.
The brevity which was necessary to this tract, has permitted me rather
to hint at, than to treat the antiquity of the Commons. In a work which
I hope one day to lay before the public, I shall have an opportunity of
entering into it at greater length.
[25] Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.
[26] _Madox, Hist. of the Excheq. Bar. Angl._ The granting of supplies
to the sovereign, naturally suggested to the people the petitioning for
redress when under the pressure of any grievance; and the crown, where it
expected much, would not naturally exercise a rigorous severity.
The term _petitioners_ indeed, has, by some authors, been considered as
reproachful to the _Commons_; but how a petition, as the spring of a
law, could have meanness in it, is inconceivable. Even in the free age
of Charlemagne, this mode of application was employed. _Baluz. capit.
reg. Franc. tom. 1._ The behaving with reverence to the sovereign is very
different from acting with servility. And as to the petitioning against
grievances, it is to be remembered, that respectful requisitions of
ancient and constitutional privileges, which had suffered invasion, are
not to be considered as mean solicitations for acts of favour.
[27] _Conf. Cart. an. 25. Ed. I._ It is singular, that even after the
times of Edward I. some writers will not allow, that the Commons were any
essential branch of the legislature; yet the writ of summons expresses
in strong terms their right of assent: _Ad audiendum et faciendum et
consentiendum_; and a multitude of examples may be produced of their
actually consulting and determining about peace and war and other
important matters of state.
There is evidence that Edward I. called a parliament, and consulted
with the Lords and _Commons_ about the conquest of Wales; and that on
receiving information that the French King intended to invade some of his
dominions in France, he summoned a parliament _ad tractand. ordinand. et
faciend. cum prælatis, proceribus et aliis incolis regni quibuslibet,
hujusmodi periculis et excogitatis malis sit objurand_. Inserting in the
writ these memorable words, _Lex justissima, provida circumspectione
stabilita_: QUOD OMNES TANGIT, AB OMNIBUS APPROBETUR.
Edward II. consulted with his PEOPLE in his first year _pro solemnitate
sponsalium et coronationis_; and in his sixth year he consulted them,
_super diversis negotiis statum regni et expeditionem GUERRAE SCOTIAE
specialiter tangentibus_[A].
Edward III. summoned the peers and _Commons_ in his first year to consult
them, Whether they would resolve on peace or war with the Scottish king.
In his sixth year, he assembled the lords and _Commons_, and required
their advice, Whether he should undertake an expedition to the Holy Land.
The lords and _Commons_ consulted accordingly; and while they applauded
his religious and princely forwardness to the holy enterprize, advised
a delay of it for that season. In his thirteenth year, the parliament
assembled _avisamento prælatorum, procerum, necnon COMMUNITATIS_ to advise
_de expeditione GUERRAE in partibus transmarinis_; and ordinances were
made for provision of ships, arraying of men for the marches, and defence
of the isle of Jersey. In his fortieth year, the Pope demanding the
tribute of king John, the parliament assembled, where, after consultation
apart, the prelates, lords and _Commons_ advise the refusal of it,
_although it be by the dint of the sword_.
Richard II. in the first year of his reign, advised with the peers and
_Commons_, How he should best resist his enemies? In the second year,
he consulted his _people_ how to withstand the Scots; who had combined
against him with France. In the sixth year, he consulted the parliament
about the defence of the borders; his possessions beyond sea, _Ireland_
and _Gascoyne_, his subjects in _Portugal_, and safe keeping of the
seas; and whether he should proceed by treaty or alliance, or the duke
of Lancaster by force? The lords approved the duke’s intention for
Portugal; and the _Commons_ advised, that Thomas bishop of Norwich,
having the Pope’s _croiceris_, should invade France. In his fourteenth
year, this prince advised with the lords and _Commons_ for the war with
Scotland, and would not, without their counsels, conclude a final peace
with France. And the year ensuing the _Commons_ interested the king to
use moderation in the law of provisions, and proposed that the duke of
Aquitaine should be employed to negotiate the peace with France.
With regard to the power of the _Commons_ as to _judicature_ in the
times of which we speak, there are not wanting decisive proofs. In the
reign of Edward II. the peers and _Commons_ gave consent and judgment
to the revocation and reversement of the sentence of banishment of the
two Spencers[B]. In the first year of Edward III. when _Elizabeth_ the
widow of _Sir John de Burgo_ complained in parliament, that Hugh Spencer
the younger, Robert Baldock and William Cliffe his instruments, had
by duress forced her to make a writing to the king, in consequence of
which she was despoiled of her inheritance, sentence was given for her
by the prelates, lords and _Commons_. In the 4th year of Edward III. it
appears by a letter to the pope, that to the sentence given against the
earl of Kent, the _Commons_ were parties as well as the peers, for the
king directed their proceedings in these words: _Comitibus, magnatibus,
baronibus, et aliis de COMMUNITATE dicti regni ad parliamentum illud
congregatis injunximus, ut super his discernerent et JUDICARENT quod
rationi et justiciæ conveniret_. When in the first year of Richard
II. William Weston and John Jennings were arraigned in parliament for
surrendering certain forts to the king; the _Commons_ were parties to
the sentence against them, as appears from a writing annexed to the
record. In the first year of Henry IV. although the _Commons_ refer by
protestation, the pronouncing the sentence of deposition against King
Richard II. to the lords, yet they were equally interested in it, as is
evident from the record; for there were made proctors or commissioners
for the whole parliament, one bishop, one earl, one abbot, one baronet,
and two knights. “And to infer, says a learned and accurate author[C],
that because the lords pronounced the sentence, the point of judgment
should be only theirs, were as absurd as to conclude that no authority
was left in any other commissioner of _oyer and terminer_ than in the
person of that man solely that speaketh the sentence.” In the second year
of Henry V. the petition of the Commons imported no less than a _RIGHT to
act and assent to all things in parliament_; and the king allowed that
they possessed this right.
These examples of the importance of the people are striking; and they are
supported by the authority of the parliament-rolls, or by records above
exception. The curious reader may see them, and other proofs to the same
purpose, in the posthumous pieces of Sir Robert Cotton.
[A] In his history of this prince, Mr Hume has the following
very strange assertion: “The Commons, though now an estate in
parliament, were yet of so little consideration, _that their
assent was never demanded_.” Vol. II. p. 139.
[B] The share the _Commons_ had in this act, Sir Robert Cotton
authenticates from the parliament rolls. _Cottoni posthuma, p.
348._ Yet Mr Hume, in the most positive terms, denies that the
_Commons_ had any concern in it. Vol. 2. p. 140.
[C] Sir Robert Cotton.
[28] _Hale, hist. of the com. law, ch. vii._ It has been sometimes
insisted upon, that much improvement was brought to England by the canon
and civil laws. I cannot, however, but imagine, that these laws, have, on
the whole, been rather attended with disadvantage. For tyrannical maxims
do not suit a limited government. They may have assisted, indeed, the
invention, and extended the views of some lawyers; but they have filled
the heads of more with illiberal prejudices.
[29] The reader, who is desirous of seeing proofs of the consideration
of the people during the wars between the Houses of York and Lancaster,
may consult Cotton’s abridgment of the records; and Bacon on the laws and
government of England. Part II.
[30] In the year 1546, there were 126 boroughs that returned members to
parliament; and the greatest number of these were wealthy and populous.
_Brown Willis, notit. parliam. vol. I._ In the reign of Edward VI. 23 new
boroughs were summoned to send burgesses to parliament. Philip and Mary
added 13 more, Elizabeth 30, James the 2 universities and 12 boroughs,
Cha. I. 8 boroughs, and Cha. II. the county of Durham and 2 boroughs.
_Ellys on temporal liberty._ Anciently the king might incorporate any
town, and enable it to send burgesses to parliament; but this privilege
remains not at present with the crown. If the king was now to venture on
the creation of a parliamentary borough, it would rest with the house of
commons whether they would receive the members.
[31] “As for her government, says a great authority, I assure myself I
shall not exceed, if I do affirm, that this part of the island never had
45 years of better times; and yet not all through the calmness of the
season, but through the wisdom of her regiment.” _Lord Bacon._
[32] “She loved not to be tied, but would be knit unto her people. Of
13 parliaments called during her reign, not one became abortive by
unkindness; and yet not any one of them passed without subsidy granted by
the people, but one wherein none was desired. And sometimes the aid was
so liberal, that she refused the one half, and thanked the people for the
remnant; a courtesy that rang loud abroad, to the shame of other princes.
She never altered, continued, repealed, nor explained any law, otherwise
than by act of parliament, whereof there are multitudes of examples
in the statutes of her reign.” _Nat. Bacon, Discourse on the laws and
government of England, part 2._
I do not mean to say, that Elizabeth, and the princes who preceded her,
never acted against the spirit of our government. Her reign, and those
of many of her predecessors, were doubtless stained with bold exertions
of authority. But bold exertions of authority must not be interpreted
to infer despotism in our government. We must separate the personal
qualities of princes, and the principles of the constitution. The
government of England, and the administrations of its chief magistrates,
are very different things.