Barons; and it may possibly be true, that the "Populus Terræ" had reference to the proprietorship of Land. (a)

We have, moreover, sufficient evidence, that the Laws of Athelstan were proposed and confirmed in an Assembly of Archbishops, Nobles and Wisemen; and that, notwithstanding the implied opinion to the contrary, the Villani and Coloni had not the slightest concern in these Proceedings. It appears, that after the enactment of the Statutes in question, these persons, together with the Earls, took an oath to observe them, not in the Council Room, but in their own Guildhall (Fridgildo.)

Many other similar instances occur, in which the "Populus" had evidently no concurrent authority; and many others, in which, "omni Populo audiente et vidente," they gave a ready and spontaneous assent to the measures proposed, adopted and confirmed, by the Prelates and Nobles alone.

Though it is impossible to deny the general free spirit of the Saxon Institutions, it cannot, from any specific and precise evidence, be proved, that the Commons, as they are now considered, possessed a share in the Legislative Institutions of that People, corresponding in any respect with the participation and rights they now enjoy in the Parliaments of the British Empire. It was long before such a Privilege was obtained, and Parliaments, as they are now constituted, were never the ancient Constitution of England. The changes which have been effected were "the work of time, of accident, and circumstances, rather than of any legislative enactment."

In taking a retrospective survey of the Constitutions of England as they have existed from the earliest periods even to the æra at which we are now arrived, it is impossible to escape the conclusion or to repel the conviction, that, under all circumstances, the connection between the Church and the State, between the established Religion of the Country and its secular administration, has been of the most intimate and stringent kind. The Ministers of the National Faith have either themselves been the Founders and Executors of Laws, or have acted co-ordinately with the Functionaries of the Civil Government, giving a sanction to, and deriving authority from, the Power and Influence of the Temporal Rulers. If then, in these Realms, as in the history of all nations, from the Mosaic Institutions downwards, such an Alliance has existed, in spite of the superstitions which have prevailed, and the abuses which have been often times admitted, can it be doubted that the system is founded on some common principle, which induces a ready submission to the dictates and incentives of Religion, and approves of such a connection, as the most effectual preservative of good order, and the best safeguard for the integrity of existing Institutions.

The learned Editor of the Parliamentary Writs observes, that before the reign of Edward I., neither the principles nor the practice of the Constitution can be ascertained with certainty; but under the government of Edward, a settled and uniform usage may be discerned, from whence the Parliament received an organization nearly approaching to the form in which it now subsists. Considerable obscurity prevails with respect to the rights and functions of the individuals who enjoyed the privilege or were subjected to the duty of attendance. The fact, however, of such attendance is evinced by documents existing in a series, which though not entirely unbroken, is sufficiently complete, to afford a satisfactory view of the Estates, Orders and Members, who composed the great Councils of the Realm." (6)

(a) For the Divisions of Landed Property, consult Strutt's Chron. of England, ii. 186-7. He says, "Each County being divided into two descriptions of persons, one possessing the Land as Proprietors, and the other cultivating it as Vassals, the privilege of attending the Legislative Assemblies, as well as having a share in the judiciary Courts, was necessarily confined to the Landholders. As Land was the only original possession of our Saxon Ancestors, this Species of Property alone could entitle them to the right of Freemen." See also note p. 312, for the Privilege of Members of the Witena-gemote, and Wilkins Leg. Sax. p. 146, for Places of Meeting. (6) Preface, Vol. 1.

C

The Conqueror confirmed, to a considerable extent, the Saxon Laws and Customs, but established no Legislative Assembly, according to any known law in use under the Saxon Kings. It has been shewn, that such an Assembly existed, and its name imports that it consisted of a selected Body. How they were elected is a matter of great obscurity. The Earls, Faldormen and Thanes seem to have been selected personally by the Crown, but whether any others had a right to a seat and voice, as an hereditary dignity, as representing others, or as proprietors of Land, is a matter which cannot be determined. Information as to the constituent parts, and the rights of the members of these Assemblies, is wholly wanting.

The Saxon Institutions were then, in a degree, the basis on which the Laws stood under William I., but he made many alterations, and some particularly affecting the constitution of the Legislative Assemblies of his time. The Norman Conquest was a subversion of the Titles to landed Property, which was distributed to his own followers, and to the Saxon Proprietors, by Tenures different from those enjoyed under the Saxon Institutions; and as Property is the principal object of Laws, and property in Land was then the most valuable property, its influence probably decided on the nature of the Constitution of the Legislature by which that property was to be regulated. It is evident, that, under such circumstances, far the largest portion of the people could have no influence in the government, or have any claim to a participation in the function of enacting Laws.

Supposing, however, that the Saxons were in possession of such legal and constitutional Assemblies, and that they were or were not maintained by the Conqueror and his Successors, the influence of the free Saxon Institutions, may still have gradually prevailed, and may have been operative in the formation of those Parliamentary Councils, which were convened in the 49th Henry III., if not before, in the reign of Edward I., and of all his Successors to the present period.

It has been stated, that, under the Normans, the Public Assemblies of the Kingdom were distinguished by the appellations, Concilium, Magnum and Commune Concilium, Curia, and Baronagium. (c)

Of these, the First was the King's Ordinary Council, consisting of Prelates, Earls and Barons, selected by himself, and assisted by the Chancellor, Chief Justiciar, the Judges and other Officers of State. It was not only a Council of State, but the supreme Court of Justice, and met three times every year at the great Festivals of Easter, Whitsuntide and Christmas; sometimes, at Michaelmas, and, at other times, also, by adjournment.

The Magnum Concilium was a larger Assembly of Persons of Rank and Property, convened on extraordinary occasions.

The Commune Concilium was a still more numerous body collected together for more general purposes.

The two last Councils of State were usually convened on an adjournment of the King's ordinary supreme Court of Justice. They were, in fact, the King's great Court, constituted differently, according to their different functions. The term, "Curia" was, on this account, applied to them, as it was also, to the Assemblage collected at the seasons above mentioned, for the purposes of Hospitality and royal Dignity, and for the administration of Justice.

The Commune Concilium of the Charter of John is so mentioned with respect only to the Imposition of Scutage and Aids, and depended solely on Tenure in Chief of the Crown.

At the close of the reign of Henry III. the Curia Regis was called the King's Parliament, a term then employed to express any Assembly met for purposes of Conference; and at length this Court was distinguished as the

(c) See the Lords' Reports touching the Dignity of a Peer of the Realm, for many of the following observations.

King's Parliament, and is supposed to have possessed all the powers of the Four Courts, of Chancery, the King's Bench, the Common Pleas, and the Exchequer. It thus appears, that the words "Curia Regis," and " Parliamentum Regis," did not originally denote a Legislative Assembly, but only the King's Select Council and Supreme Court of Justice. With this might, however, also be convened an extraordinary Legislative Assembly.

The King's Ordinary Council assisted him in the exercise of his Royal Prerogative, and gave a sanction to his Acts. It was his Prerogative to make Laws to a certain extent on his own authority, but beyond certain limits, the consent of a larger Assembly, the Magnum or Commune Concilium, was necessary.

Under Edward I. the Four Courts were denominated Parliaments, and in the 27th Edward I. the meetings of the King's Ordinary Council and Court of Justice were usually termed Parliaments, as well as the Great Council of the Realm. (d)

In the 3d of Edward II. the word Parliament was beginning to be used to express a Legislative Assembly, rather than in the sense in which it was originally used as expressive of a Meeting of the King's Ordinary Council, and Great Court of Justice.

The Term Baronage seems first to have been used under Henry III., and then evidently meant the Great Council, consisting only of Barons. It was also so employed by the Ordainers, under Edward II., who included under it the elected Prelates, Earls, and Barons. In other and later instances, it seems to have been meant to extend to all who had a voice in Parliament. (e)

The Persons, who were convened to the Great and Common Councils of the earlier Sovereigns, are variously described by the words Barones, Proceres, Magnates, Primates, Antiquiores or Nobiliores Regni, grantz Seigneurs, Grantz, or more particularly, as Archbishops, Bishops, Abbots, Priors, Earls, and Barons.

According to the usual obligations of feudal Tenure, the immediate free Tenants of every superior Lord were bound to attend the Court of that Superior, and the King's immediate Tenants were bound to attend his Court. The Constitutions of Clarendon, in the reign of Henry II. shew, that the King had a right to require the attendance, at his Court, of such as were deemed his Barons, Spiritual, as well as Temporal; and the Charter of John proves that all those who held in Chief of the Crown, or at least by Military Service, had a right to be summoned to a Common Council of the Realm, in order to give validity to the grant of an extraordinary aid. It appears, however, that such attendance was not always necessary for Legislative Acts, which brought no charge upon the People. General powers of legislation were deemed to belong to the King, by his own Authority, or with the sanction of his Select Council.

It is not evident that any of the Conqueror's Assemblies, ordinarily convened at Easter, Whitsuntide, and Christmas, ever acted legislatively. All who composed the Great Council of the Realm were included under the general appellation of Barons, whether distinguished by Ecclesiastical Dignities, or by that of Earl. All Ecclesiastics who held possessions of the King, in Capite, were deemed to hold, "Sicut Baroniam," and were required, like other Barons, to do homage for them, and attend the King's Council until it exercised Criminal Jurisdiction. The Earls, before John, were created by Patents of the Crown, giving a Title of Dignity, which was not a consequence of Tenure of Lands. As such they were distinguished from the rest of the Barons.

(u) See Introduction, Chap. 2.

(e) Matthew Paris applies the term Barnagium to the Assembly consisting of all the "Magnates Angliæ," 26 Hen. 3, 1242. Lords' Report i. 89.

But, though this had been the true Constitution of the Government long previous to the Charter of John, the practice was often otherwise. The inconvenience and expense of attendance probably induced many to neglect their duty, and though owing Suit to the King's Court rendered the Tenant one of the King's Barons, none probably attended but such as were specially summoned.

Under Henry II. the lay and ecclesiastical Jurisdictions were completely separated, and the Clergy became amenable to no other than Ecclesiastical Jurisdiction. The King assumed a right to compel the attendance of the Prelates in respect of their Lay Fees alone, and the Clergy claimed the right to be taxed as such, only of their own gift, and in their separate and distinct Conventions.

It is the opinion of some writers that, in the Councils of our Saxon Kings, Knights, Citizens, and Burgesses, were included with the Nobles under the term Sapientes, an opinion chiefly derived from a volume, intitled, "Modus tenendi Parliamentum," the spurious character of which has been completely demonstrated by Prynne, in his Brief Register of Writs. Others refer their origin to the Parliamentary Council held at Salisbury, 16 Henry I,, which opinion the same distinguished Antiquary has refuted in his "Plea for the Lords." (f) Cotton, Selden, and this Author, believe that Writs were first issued for electing Knights, Citizens, and Burgesses, about the latter end of Henry III., and that the first Writ now extant, as is confirmed by more recent inquiries, was that of 49 Henry III., before which it cannot be established by History or Records, that any Commoners, elected by the People or others, were called to our Great Councils and Parliaments, as Members of the same. The most ancient Writ which seems to prove that such Summons existed, was that of 6 John. But the evidence is quite insufficient to determine that the "omnes Fideles nostri Angliæ" had reference to any Knights, Citizens, or Burgesses, while the Great Charter indicates very clearly who were the Persons thus designated. After mentioning the Summons of the Archbishops, Bishops, Abbots, Earls, and Greater Barons, it adds, "et præterea faciemus in generali per Vice Comites et Ballivos Nostros omnes alios qui de Capite tenent de Nobis, &c."

The first apparent attempt to summon the Tenants of Mesne Lords who had no voice in the Legislative Assembly, and also the inferior immediate Tenants of the Crown, was in the 15th of John, when, either on the authority of the King's Prerogative, or at the mere will of the Sheriff, certain Knights were summoned to Oxford in arms, and Four discreet Knights from each County, to be elected in the first County Court, "ad loquendum." This proceeding seems to have been without precedent, and the first example of Representation.

But this Summons appears rather to require attendance at a Military Camp, than at a Parliament, or Parliamentary Council, and the four discreet Knights to have been called rather as Inquisitors or Grand Jurymen upon a special occasion, well described by Matthew of Paris, than as Knights of the Shire to a Parliament then held. (g)

The Charter of John affords the first authentic evidence as to the Constitution of the Legislative Assembly, called the Great Council. It consisted of certain persons, who were required to be personally summoned by the King's Writ, and of others, as above stated, who were to be summoned generally; the latter, certainly, the former, probably, with reference to their holding Lands in Chief of the Crown. From this Charter, no inference can be drawn, that Cities or Boroughs had any share in such Assemblies.

By whatever Authority other Laws might be made, such an Assembly was alone competent to grant an extraordinary Aid to the Crown.

Plea for the Lords, p. 165, 183

(g) Hist. Angliæ, p. 224, 231, &c.

In this Charter, the Majores Barones are first distinguished from the rest of the Tenants in Chief. They may have been those whose Persons and Property made them well known to the King's Officers, and who were, therefore, summoned to perform their military duty by special Writs, whilst the more numerous body of Tenants in Chief were summoned only generally. (h)

From the Conquest to the close of John, the King's Council was a Council of Barons. The Proceres with the Prelates represented all the Landed, if not the Conimercial Interest, of the Country.

The Charter of John was not, however, considered as definitively settling the Constitution of the great Legislative Assembly even for granting Aids. The Charters of the 1st and 9th of Henry III., omit the Clauses respecting such Constitution, and reserve the subject for future consideration. The Charter of John was, in fact, superseded by that of the 9th of Henry III., which has ever since been recognized as the Great Charter of Liberties.

In the 38th Henry III., occurs the first unequivocal instance of an attempt to substitute Representatives, elected by bodies of men, for the attendance of individuals, in an Assembly convened for obtaining an Aid. Writs were issued for the election of Two Knights (Milites) in each County. This again seems to have been a Convention of Military Tenants only, and the elected Knights might also be summoned personally as such.

It is, moreover, evident, from a perusal of the Writ itself, that these Knights were not summoned to a Parliament, but only to appear "Coram Consilio nostro;" not to confer with the Nobles, who were summoned to appear a week afterwards, not to make a Parliamentary Grant in a Parliament then not in esse, but to declare to the King's Council what voluntary Aids, the different Counties would afford, under very pressing circum

stances.

The Parliament at Oxford, in the 42nd Henry III., consisted only of persons to whom the appellation of Barons might be applied.

In the 45th Henry III, three Knights out of every County were summoned by the Barons, then at variance with the King, to treat with them concerning the common affairs of the Realm. Our Histories make no mention of this Writ, or of the election of the Knights, who were probably nominated by the Barons themselves. By other Writs, the King, to divert them from confederating and meeting with the Barons, summoned them to attend him at Windsor, as witnesses of the Treaty of Peace intended between him and his Barons.

In the 48th Henry III., a Parliamentary Council of Prelates, Lords, Nobles, and Barons, summoned by name, granted a Tenth to the King, and that the " alii Fideles" of the Writ, meant the rest of the Prelates, Barons, and Nobles, is clearly evinced by the Writ to the Clergy, which declares that the Grant was made "per Prælatos et Magnates" only.

In a Writ of the same year, "Milites et alii qui Servicium debent" are summoned to a Military Council at Oxford, "cum Equis et Armis," at which Council, the Barons and great men alone counselled and advised the King, as is declared by the Clause "De Baronum Consilio et Magnatum Nobiscum existentium provisum est." These Writs supply a clear proof that in the 48th Henry III., no Knights, Citizens, and Burgesses, but only the Spiritual and Temporal Lords were summoned to Parliament.

The very first Writ wherein express mention is made of Writs to Sheriffs or others to send Knights, Citizens, and Burgessess to Parliament, is in the 49th Henry III.

In this year, a great Council was convened, consisting of certain persons,

(h) See Selden's Titles of Honour, p. 738, for his discussion " on the alteration of great moment, which from the later time of John to the middle of Richard 2, fell among the Barons and Baronies of the Kingdom."