Note 8 — A DISCOURSE concerning the LAWS and GOVERNMENT of ENGLAND.

The preambles of the Saxon laws express an anxiety to please the people, and allude to their consent in enacting them. The laws of king Ina begin thus: Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus meis senatoribus, et senioribus sapientibus populi mei, et multa etiam societate ministrorum Dei, consultabam de salute animæ nostræ, et de fundamento regni nostri, ut justæ leges, et justa statuta per ditionem nostram stabilita et constituta essent, ut nullus senator nec subditus noster post hæc has nostras leges infringeret. See LL. Anglo-Saxon, ap. Wilkins, p. 14. The preambles to the laws of the other princes are nearly similar; and those of Edgar, Ethelred and Canute, may serve as additional examples. 1. Leges Eadgari regis. Hoc et institutum quod Eadgarus cum sapientum suorum consilio instituit in gloriam Dei, et sibi ipsi in dignitatem regiam, et in utilitatem omni populo suo. 2. Leges Æthelredi regis. Hoc est consilium quod Æthelredus rex, et sapientes ejus consultaverunt ad emendationem pacis omni populo Wodstoci in regione Merciorum, secundum Angliæ leges. 3. Leges Cnuti regis. Hoc est consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex, cum sapientum suorum consilio sancivit, in laudem Dei, et sibi ipsi in ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus domini nostri Wintoniæ. See Wilkins, p. 76. 102. 126.

In the 8th law of Edward the Confessor we read, Hæc concessa sunt a rege, baronibus et populo; and in his 35th law we have the following words: Hoc enim factum fuit per commune consilium et assensum omnium episcoporum, principum, procerum, comitum, et omnium sapientum seniorum et populorum totius regni, et per præceptum regis Inæ prædicti. See Wilkins, p. 198. The laws of Edward are, I know, to be read with distrust; but they are allowed to contain genuine relics of that prince; and, in the present case, there seems no reason for suspicion. Their appeal of consequence to the assent of the people must be allowed to be of authority. For, if such assent was not known and believed in that age, how is it possible that they could appeal to it? The advocates for the late origin of the house of commons will not surely suppose, that the Confessor alluded prophetically to transactions which were not to happen till the reigns of Henry III. and Edward I.

In the Mirroire de Justices, it is expressly said, that no king, during the Saxon times, could change his money, nor enhance nor impair it, nor make any money but of silver, without the assent of the Lords and all the Commons. Part of this book is conceived by Sir Edward Coke to have been written before the conquest; and additions were made to it by Andrew Horn in the reign of Edward I. from old MSS. the authors of which must have seen ancient rolls and records. Matter, also, from more exceptionable materials, it is to be thought, was superadded by him. The book is notwithstanding of considerable weight and authority. Mirroire des Justices, cap. 1. sect. 3. Atkyns on the power of parliament.

Concerning the high antiquity of the commons, Sir Edward Coke is clear and explicit; and he has founded chiefly his opinion on the ancient tract, which bears this title: Modus quomodo parliamentum regis Angliæ et Anglorum suorum, tenebatur temporibus regis Edwardi, filii regis Ethelredi, qui modus recitatus fuit per discretiores regni coram Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc præcipiente, et per ipsum approbatus, et suis temporibus et temporibus successorum suorum regum Angliæ usitatus. Other authors beside Lord Coke have paid great respect to this treatise. It is to be acknowledged, however, that Mr Selden has demonstrated that this tract could not possibly be of the age of the Confessor, from its employing terms which were not in use till long after. But this does not wholly derogate from its force as to the point in question. For, allowing it to have been written in the reign of Edward III. the period which, with great probability, some writers have assigned to it, it yet proves that the sense of that period was full and strong with regard to the antiquity of the constitution, as consisting of king, lords and commons; a circumstance which must have great weight in opposition to those, who would make us believe, that our constitution, as so formed, was unknown till the times of Henry III. and Edward I. 4 Institute, p. 2. 12. Selden, tit. hon. p. 739. 743.

“In the time of king Canutus, says Whitelocke, to a charter then graunted to the monastery of St. Edmond’s Bury (probably in a publique councell) after the subscriptions of the queen and dukes, followes, I Oslaus, knight, I Thored, knight, I Thurkell, knight, and so of others. How many these were, or how for several counties, doth not appear; nor in that parlement of the same king (for so is testified by the discription of it) where it is sayd, that the king calling all the prælats of his kingdome, and the nobles, and great men to his parlement, there were present bishops, abbots, dukes, earles, with many militibus, butte the certain number is not extant; nor of those which are mentioned in the parlement of Edward the Confessor, where after the king, queen, archbishops, bishops, abbots, king’s chapleins, Thaines, knights are reckoned in that parlement.” Notes upon the king’s writ, vol. I. p. 437.

Lambard, Dugdale, and other antiquaries, produce a very strong evidence of the antiquity of the representation of boroughs, by evincing, “That in every quarter of the realm, a great many boroughs do yet send burgesses to parliament, which are nevertheless so ancient, and so long since decayed, and gone to nought, that it cannot be shewed that they have been of any reputation at any time since the Conquest; and much less that they have obtained this privilege by the grant of any king succeeding the same. So that the interest which they have in parliament groweth by an ancient usage before the Conquest, whereof they cannot shew any beginning.” Lambard Archeion, p. 256. 257. Coke Epist. 9. Rep. Dugdale, Jurid. p. 15.

This matter receives confirmation from what we are told of the boroughs of ancient demesne. “These, says Whitelocke, were tenants of the demesne lands of William I. and of Edward the Confessor; who (to the end that they might not be hindered from their business of husbandry of the king’s lands) had many privileges, whereof one was, that they should not be compelled to serve in parliament. Another was, that they should not contribute to the wages of knights of the shire. Which privileges they still enjoy, and had their beginning in the times of William I. and of the Confessor, whose tenants they first were, as appears in the book of Domesday, and is a strong proof, that knights and Burgesses were then in parliament.” Notes upon the Kings Writ, vol. II. p. 139.

See also the 22d note to the present tract.