FOOTNOTES

[1] Cæsar de bell. Gal. lib. 4. c. 18. Tacit. vit. Agric. Dion Cassius, vit. Sever.

[2] Bede, lib. 1.

[3] Bede, lib. 3. and 5.

[4] The division of laws, during the Anglo-Saxon period, into West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance. These differed not essentially from one another. “Our Saxons, says Sir Henry Spelman, though divided into many kingdoms, yet were they all one in effect, in manners, laws and language: So that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change amongst them touching laws. For, though we talk of the West-Saxon-law, the Mercian-law and the Dane-law, whereby the west parts of England, the middle parts, and those of Norfolk, Suffolk and the north, were severally governed; yet held they all an uniformity in substance, differing rather in their mulcts than in their canea; that is, in the quantity of fines and amerciaments, than in the course and frame of justice.” Relig. Spelm. p. 49.

[5] King Edward’s laws were compiled from those of former princes, and abolished any little peculiarities which distinguished the West-Saxon, Mercian and Danish laws, subjecting the whole kingdom to a common law. His code, accordingly, was termed lex Angliæ, or lex terræ. No correct copy of it has descended to us. Those regulations, which pass under his name in the editions of the Saxon-laws by Lambard and Wilkins, have evidently some interpolations. Traces of them are to be seen in Hoveden and Knyghton; and remains of them are likeways to be found in the laws of William I. From the time of this Prince to that of King John, they continued, with the addition of some Norman laws and customs, the law of the land. Præcipimus, says William, ut omnes habeant et teneant leges Edwardi regis in omnibus rebus, adauctis his quas constituimus ad utilitatem Anglorum. Leg. Guliel. ap. Wilkins, p. 229. By the influence of the Barons under the last Prince, they were drawn up in the form of Magna Charta. For the great charter was not what some partial writers have represented it, a concession of privileges extorted by violence, but a declaration of the principal grounds of the antient and fundamental laws of England, and a correction of the defects of the common law. See Lord Coke 2 Inst. and Lord Lyttelton’s hist. of Henry II. vol. I. p. 42. 526.

[6] Wittenagemot, imports a council of wise men; the Saxon word witta signifying a wise man; and the British word gemot expressing a synod or council. During the Heptarchy, each kingdom had its Wittenagemot.

[7] The lay lords were the earls, thanes, and other nobility of the kingdom. The spiritual lords were the bishops and dignitaries of the church, whose possessions were held in Frankalmoigne. After the conquest, they were subjected to military service and held by barony. What may seem extraordinary, Abesses were also in use to sit in the Saxon Wittenagemots. In Wightred’s great council at Beconceld, anno 694. the Abesses sat and deliberated, and several of them subscribed the decrees made in it. Spel. conc. vol. I. The abesses appeared also in Ethelwolf’s parliament at Winchester anno 855. Ingulph, edit. Savil. 862. And king Edward’s charter to the abbay of Croyland was subscribed by an abbess. Even in the time of Henry III. and in that of Edward I. it appears that four abbesses were summoned to parliament; those of Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. Tit. hon. p. 729, and Whitelock’s notes upon the king’s writ for choosing members of Parliament, vol. I. p. 479. 480.

[8] 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.

[9] The law was not then a particular profession.

[10] On the following record in the register of Ely, this notion seems 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.

[33] Hume, Hist. of England, vol. V. p. 462. This historian, the most accomplished, perhaps, who has written in modern times, has attempted to vindicate both James and Charles; but he has done nothing more than to produce evidence to shew, that in some respects they acted from precedents of administration in former princes; and this, if taken even in the fullest extent, is insufficient to justify them. Charles, however, it will be allowed, exceeded every violation of liberty, of which there had been any example; and when he had consented to reduce the exorbitancy of the regal power, his conduct created a suspicion of his sincerity. But on the supposition that he did not advance his authority beyond the practice of former times, he is not therefore to be vindicated. It is no exculpation of a crime in one individual, that it has been committed by others. The advantages of a free government belonged to the people of England; and they were the proper judges when to enforce their privileges against an invader. They might pardon in one sovereign what they would punish in another. They might overlook in Elizabeth what they did not wish to excuse in Charles. The doctrine of resistance is delicate. In a free constitution, like that of which we speak, the prince and the people will often fall into situations where they seem to encroach, or actually do so, on the rights of one another. But it is never on slight grounds that the people will be prevailed upon to take arms against their chief magistrate. After all, had England been an absolute monarchy, Was it thence proper and just that it should remain in that situation? There are rights which it is impossible that men can either lose or forfeit. No authority and no precedent, no usage and no law, can give a sanction to tyranny.

[34] Lord Clarendon applies to him, with great propriety, what was said of Cinna, ausum eum, quæ nemo auderet bonus; perfecisse, quæ a nullo, nisi fortissimo, perfici possent.

[35] Bill of rights, toleration act, act of settlement.

[36] L’Esprit des Loix, Liv. xi. ch. 3.

[37] Plut. Vit. Lycurg.

[38] Spencer, Dissert. de ratione Leg. Usuram prohibentis.

[39] Lindenbrogius, codex legum antiquarum.

[40] Conringius de Antiquitatibus Academicis. Bruckerus, Hist. Philos. Giannone’s hist. of Naples, lib. 1. chap. 10. § 1. and 11. lib. 11. chap. 6. § 1.

[41] Præfat. ad Glossar.

[42] P. 55.

[43] Corvini jus feudale.

[44] See Craig, de Feud. lib. 1. dieg. 5. and Selden’s Titles of Honour, part second, chap. 1. § 23. Basnage, Coutume reformée de Normandie, tom. 1. p. 139.

[45] Selden. Ibid. Craig, lib. 1. dieg. 5.

[46] This Emperor, says Lampridius, gave the territories gained on the frontiers, limitaneis ducibus et militibus, ita ut eorum essent si hæredes illorum militarent, nec unquam ad privatos pertinerent; dicens attentius eos militaturos si etiam sua rura defenderent. Addidit sane his et animalia et servos; ut possent colere quod acceperunt, ne per inopiam hominum vel per senectutem possidentium defererentur rura vicina barbariæ, quod turpissimum esse dicebat. See also Molin. in consuet. Paris. tit. 1. de Fiefs, and Loyseau, des Off. lib. 1. chap. 1.

[47] De bell. Gall. lib. 4. chap. 22.

[48] Montesquieu, L’esprit des loix, liv. 30. chap. 2. and 6.

[49] Lib. Feud. 1. tit. 1.

[50] L’esprit des loix, liv. 31. chap. 31.

[51] Tacitus de moribus Germanorum. Cæsar de bell. Gall. lib. 6.

[52] Servis, non in nostrum morem descriptis per familiam ministeriis utantur. Suam quisque sedem, suos penates regit. Frumenti modum dominus, aut pecoris, aut vestis, ut colono injungit; et servus hactenus paret. Tacit. de mor. Germ. cap. 25.

[53] De mor. Germ. cap. 24.

[54] De mor. Germ. cap. 11.

[55] Ibid. cap. 7.

[56] L’esprit des loix, liv. 31.

[57] Mably, Observations sur l’histoire de France, liv. 1. cap. 3.

[58] De mor. Germ. cap. 13. and 14.

[59] L’Esprit des loix, liv. 31.

[60] De mor. Germ. cap. 7. 12. and 14.

[61] Ibid. cap. xi.

[62] Muratori, Antiq. Ital. vol. 4. p. 160. et Seq. Mably, Observations sur l’histoire de France, tom. 2. p. 96. et Seq. Madox, Firma Burgi, cap. 1. sect. 9.

[63] Tacit, de mor. Germ. c. 13. Spelman’s Glossary, voc. Miles.

[64] Tacit, de mor. Germ. cap. 12.

[65] Hi cuique sanctissimi testes, hi maximi laudatores. Tacit. de m. G. c. 7. Consult also c. 5. and c. 18.

[66] It is to be wished, that our ingenious Professor had here entered more at large into the history of property in land. The subject is important and little understood. The conceptions entertained by the antient inhabitants of Germany and Gaul concerning property have been explained and illustrated in a book, intituled, “An Historical Dissertation concerning the Antiquity of the English Constitution.” The author of this treatise seems to be the first who has remarked that land is originally the property of nations, and has attempted to account for the manner in which it comes to descend to individuals. See his Dissert. part 1. sect. 3. See also Professor Millar’s valuable work on the Distinction of Ranks in Society, p. 165. et seq. 2d edition.

[67] Cæsar, de bell. Gall. lib. 4. c. 1. Lib. 6. c. 22. Tacit. de mor. Germ. c. 26.

[68] Du Cange, Glossarium voc. Juramentum. Georgisch, corp. juris Germanici antiqui.

[69] Spelman, Gloss. voc. Lada et Ladare. Struv. Hist. jur. criminal. sect. 9.

[70] L’Esprit des loix, liv. 28. ch. 17.

[71] Georgisch, corp. juris Germanici antiqui, p. 347. and p. 368.

[72] Du Cange, Gloss. voc. Duellum. Spelman, voc. Campus. Selden’s Duello, or Treatise on Single Combat, ch. 5.

[73] Georgisch, corp. juris Germanici antiqui, p. 980, 1063, 1223, 1267, 1270.

[74] Selden, Analecta Anglo-Britannica, lib. 2. cap. 8.

[75] Brady’s Hist. of England, p. 65.

[76] Mr Barrington has remarked, that “the last trial by battle in England was in the time of Charles I. and that it did not end in the actual combat.” Observations on the Statutes, 3d edition, p. 202. The last instance which occurs of the judicial combat in the history of France, was the famous one between M. Jarnac and M. de la Chaistaignerie, A. D. 1547. Dr. Robertson’s Charles V. vol. 1. p. 298.

[77] Tacit. de mor. Germ. cap. 12. and 25.

[78] Lindenbrog. Cod. Leg. Antiq. p. 1404. Tacit. de mor. Germ. c. 21. LL. Wal. by Wotton, p. 192. 194. LL. Anglo-Saxon, ap. Wilkins, p. 18. 20. 41. Hickes. Dissert. Epist. p. 110. Georgisch, corpus jur. Germ. antiq.

[79] Montesquieu on the Rise and Decline of the Roman Empire. Dr. Geddes, in his Tract concerning the Nations which overturned the Empire of the Romans, p. 21.-26.

[80] Selden’s titles of honour, part 1. chap. 5. § 1.

[81] Procop. de bel. Goth. ap. script. Byz. Jornandes, Paulus Warnefridus, Gregory of Tours. Mably, observations sur l’histoire de France, tom. 1. chap. 1.

[82] Giannone’s hist. of Naples, lib. II. cap. 4.

[83] Bouquet, le droit public de France, èclairci par les monuments de l’antiquité, p. 6.-10. Montesquieu, l’Esprit des loix, liv. 30. chap. 6, 7, 8, 9.

[84] Reliq. Spelm. p. 2.-7.

[85] Potgiesser, de stat. servorum, lib. 2. cap. 1. Montesquieu, l’Esprit des loix, liv. 30. chap. 14. Du Cange, voc. Servus.

[86] Spelman reliq. 12, 14, 248. Muratori antiq. Ital. vol. 5. p. 712.

[87] Brussel, usage des fiefs, liv. 2. Selden’s tit. of honour, part 2, cap. 1. § 23. and § 33.

[88] Mably, observations sur l’histoire de France, liv. 1. chap. 5. and 6.

[89] Gregor. Turonen. lib. 2. cap. 27. Usage des fiefs, par Brussel, liv. 2. cap. 6. Dissertation on the antiq. of the English constitution, part 3. § 2.

[90] Lib. feud. 1. tit. 1. Hume appendix, 2. Dalrymple, Essay on feudal property, cap. 5. § 1.

[91] Coke on Littleton, lib. 2. chap. 4.

[92] Montesquieu, l’Esprit des loix. liv. 30. chap. 13. Du Cange, voc. Alod. Schilteri Thesaur. voc. Alod.

[93] Heinnec. Elem. jur. Germ. lib. 3. § 26. Selden’s tit. of hon. part 2. chap. 1. Spelman, voc. Comites.

[94] Ripuar. L. L. tit. de diversis interfectionibus, p. 160, 161. ap. Georgisch, corp. jur. Germ. Du Cange, voc. Faida.

[95] Bacon’s Discourse on the Laws and Government of England, p. 11.-27. Monast. Anglican, passim. Mezeray, abr. chronol. tom. 1. p. 172.

[96] Montesquieu, l’Esprit de Loix, liv. 30. chap. 21. liv. 31. chap. 9. 10. 11.

[97] Lib. 1. Feud. tit. 1. Hanneton, de jur. feud. p. 139. Du Cange, voc. Fideles et Fidelitas.

[98] Mably, Observations sur l’histoire de France, liv. 1. chap. 6. Du Cange voc. Beneficium.

[99] Spelman’s Gloss. voc. Feodiem. Dalrymple on Feudal-Property, chap. 1. Hume, Append. 2.

[100] Du Cange, voc. Investitura. Spelman, voc. Pares Curiæ. Craig de feud. lib. 2. dieg. 2.

[101] Bracton, lib. 2. cap. 17. Spelman, voc. Fidelitas, et Seisina. Fleta, lib. 3. cap. 15.

[102] Spelman, Gloss. p. 266. Feud. lib. 2. tit. 6. Littleton, lib. 2. chap. 2. Basnage, contume reformée de Normandie, tit. Des fiefs et droits Feodaux, art. 107.

[103] Coke on Littleton, book 2. chap. 1. Du Cange, voc. Vassaticum. Wright on tenures, p. 55, 56.

[104] Feud. lib. 2. tit. 23. and 24. Dalrymple on Feud. property, chap. 2. Wright on tenures, p. 72.

[105] Madox, Antiquities of the Exchequer, vol. 1. p. 653. Coke on Littleton, lib. 2. chap. 2.

[106] Du Cange, voc. Auxilium. Madox, Antiq. Excheq. chap. 15.

[107] Feud. lib. 2. tit. 25.

[108] Bracton, lib. 3. p. 130. Spelm. voc. Escheata. Glanville, lib. 7. cap. 17. Dalrymple on feud. property, p. 62. Ed. 1757. Hengham Parva, chap. 6. Coke on Littleton, b. 1. chap. 1.

[109] Craig, de feud. lib. 2. dieg. 207.

[110] Craig, de feud. lib. 1. dieg. 11. and 12.

[111] Ibid.

[112] Ibid.

[113] Reliq. Spelm. p. 3, 7, 33, 43. Gervas. de Tilb. Dialog. de Scaccar. lib. 1. cap. 7. Madox, Antiq. Excheq. vol. 1. p. 272.

[114] Fortescue de Laud. leg. Angl. p. 99. Ed. 1737. Coke on Littleton, b. 2. chap. 7.

[115] Carte, hist. of England, vol. 2. p. 169. The reign of Edward I. in Kennet’s collect. of English historians, p. 197.

[116] Coke on Littleton, lib. 2. chap. 8. Madox, Antiq. Excheq. vol. 1. p. 321, 326.

[117] Madox, hist. of Excheq. vol. 1. p. 51.

[118] Ib. p. 40. 41.

[119] Ib. p. 43.

[120] It may not be improperly remarked in this place, that about the 18th year of Henry II. Geoffrey Martell held in England the office or serjeanty of Pincernaria, or Butlership. See Madox, hist. Excheq. vol. 1. p. 50.

[121] Lib. 2. cap. 9.

[122] Feud. lib. 1. tit. 8.

[123] Brussel, usage des Fiefs, tom. 1. p. 41. Du Cange, voc. Cavena and Canava.

[124] Spelman, and Du Cange, voc. Camera, et voc. Feudum. Craig, de Feud. lib. 1. Dieges. 10.

[125] Du Cange, voc. Soldata, et voc. Feudum. ædificii.

[126] Coke on Littleton, lib. 2. chap. 4.

[127] Du Cange, voc. Gastaldus.

[128] Gibson, Cod. Jur. Eccles. Anglican, tit. 23.

[129] Montesquieu, l’Esprit de Loix, liv. 31. chap. 11. Bacon, hist. and polit. disc. on the laws and government of England, ch. 59. Inett’s hist. of the English Church, vol. 2. ch. 2.

[130] Gibson, Cod. Jur. Eccles. Anglican. tit. 23.

[131] Ibid.

[132] Ibid. and tit. 30.

[133] Gibson, Cod. Jur. Eccles. Anglican, tit. 34.

[134] Gibson, tit. 1. and 2.

[135] Father Paul on beneficiary matters, ch. 2. and ch. 6. Selden’s history of tithes, ch. 4. sect. 1. Spelm. larger work of tithes, ch. 6.

[136] Selden’s hist. of tithes, ch. 6. and 7. Spelm. larger work of tithes, ch. 29.

[137] De non temerand. Eccles. tract. Spelm. p. 3.

[138] Montesquieu, l’Esprit des loix. liv. 31. chap. 12. Selden of tithes, ch. 7. Father Paul of benefices, ch. 11.

[139] Father Paul of benefices, ch. 14.

[140] Giannone’s hist. of Naples, b. 19. chap. 4. § 2.

[141] Selden on tithes, chap. 8. Bacon, hist. and polit. disc. on the Laws and Government of England, chap. 59. L. l. Angl. Sax. ap. Wilkins.

[142] Brady, Appendix to his hist. p. 15. Carte, hist. of England, vol. 1. p. 441.

[143] Selden on tithes, chap. 14.

[144] Carte’s hist. of England, vol. 3. p. 135, 143, 148, 149. Lord Herbert’s life and reign of Henry VIII. p. 186. et seq. ap. Kennet.

[145] Gibson, Cod. Jur. Eccles. Anglican. tit. 35. Hume, vol. 1. p. 51.

[146] Wood, Institute of the Laws of England, fol. 161. et seq.

[147] Madox, Baronia Angl.

[148] 4. Instit. 268. Scroggs of Courts Baron, p. 56.

[149] Coke on Littleton, lib. 2. chap. 12. § 215.

[150] Madox, Antiquities of the Excheq. vol. 1. p. 652.

[151] Coke on Littleton, lib. 2. chap. 12.

[152] Ibid.

[153] Coke, ut supra.

[154] Madox, Antiq. of the Excheq. chap. 13. The Statutes at Marlebridge, ap. Ruffhead, vol. 1. p. 30.

[155] Ruffhead, vol. 1. p. 37.

[156] Glanvil, lib. 9. c. 8. lib. 10. c. 3. lib. 11. c. 4.

[157] Houard, Anciennes loix des François conservées dans les coutumes Angloises, tom. 1. p. 32. et seq. Craig, lib. 1. dieg. 4.

[158] Bracton, lib. 2. c. 36. Hume, append. 2. Du Cange, voc. relevium. Spelman, voc. relevamen. Reliq. Spel. p. 32, 33.

[159] Fleta, lib. 3. c. 77. Feud. lib. 1. tit. 1. Dalrymple on feudal property, ch. 5. Madox, antiq. of the Exchequer, ch. 10. § 4.

[160] Wright on tenures, p. 95. 96.

[161] LL. Hen. 1. c. 1.

[162] Lib. 9. c. 4.

[163] Madox, antiq. of the Exchequer, ch. x.

[164] Ruffhead, vol. 1. p. 2.

[165] Bracton, lib. 2. fol. 86.

[166] Montesquieu, l’Esprit de Loix, liv. 31. chap. 1.

[167] St. Amand on the legislative power of England, p. 27. Montesquieu, l’Esprit des loix, liv. 31. ch. 8. Dr Robertson’s Charles V. vol. 1. p. 222.

[168] Mably, observations sur l’histoire de la France, tom. 1. l. 1. ch. 5. and 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 9.

[169] Spelman on feuds and tenures. Mably, observations sur l’histoire de France, tom. 1. l. 2. ch. 3, 4, 5, 6. Montesquieu, l’Esprit des loix, liv. 31. ch. 28, 29, 30, 31. Houard, anciennes loix des François, liv. 1. ch. 1. Basnage, coutume de Normandie, tom. 1. p. 146.

[170] See the authorities quoted above, and Selden’s titles of honour, part 2. chap. 5.

[171] Coke on Littleton, lib. 2. ch. 1.

[172] Houard, anciennes loix des François, liv. 2. ch. 1. Du Cange, voc. Hominium. Spelman, voc. Homagium.

[173] Wright on tenures, p. 154. et seq. Dalrymple on feudal property, chap. 2. § 2. Millar on the distinction of ranks in society, second edit. p. 215.

[174] Wright on tenures, p. 172.

[175] Coke on Littleton, lib. 3. chap. 13.

[176] Houard, anciennes loix des François, liv. 3. chap. 13. Coke, ut supra.

[177] Wright on tenures, p. 168, 169.

[178] Wright on tenures, p. 186.

[179] Fortescue de laud. leg. Angliæ, cap. 44. Glanvil, lib. 2. chap. 9. Spel. reliq. p. 25, 26. Du Cange, voc. Warda.

[180] Craig, de feud. lib. 2. dieg. 20. Wright on tenures, p. 86. et seqq. Dalrymple on feud. property, chap. 2. § 2.

[181] Ruffhead’s Statutes, p. 2, 3. Basnage, Coutume de Normandie, tit. des gardes.

[182] Coke on Littleton, lib. 2. ch. 5. sect. 123. Houard, anciennes loix des François, liv. 2. ch. 5.

[183] LL. Henry 1. c. 1. Bracton, lib. 2. c. 37. sect. 6. Craig, de feud. lib. 2. Dieges. 21. Du Cange, voc. Maritagium. Glanvil, liv. 7. c. 12.

[184] Wright on tenures, p. 97.

[185] Ruffhead’s statutes, fol. p. 19.

[186] Ibid. p. 6.

[187] Coke’s institutes, part 2. p. 440. Ruffhead, vol. I.

[188] 32 Henry VIII. c. 46. 12 Car. II.

[189] Craig, de feud. lib. 2. Dieges. 13. Dalrymple on feudal property, ch. 5. sect. 1.

[190] Craig de feud. lib. 2. dieges. 14.

[191] Basnage, coutume de Normandie, tit. De partage d’heritage. LL. Hen. 1. 70.

[192] Dalrymple on feud. property, chap. 5. § 1. Hume, appen. 2.

[193] Hale’s hist. of the common law, chap. 5. Bacon’s hist. and polit. discourse on the laws and government of England, part 1. chap. 45, 55, and 56.

[194] Id. chap. 57. See also Tyrrel’s history, and Kennet’s historians.

[195] Glanvil, lib. 7. cap. 3. Craig de feud. lib. 2. dieges. 15. Dalrymple on feudal property, chap. 5. § 2.

[196] Lib. Feud. 2. tit. 12.

[197] Lindenbrogius, cod. leg. antiq. p. 679.

[198] Dalrymple on feud. property, chap. 5.

[199] Craig. de feud. lib. 2. dieges. 14.

[200] Hale, hist. com. law, chap. 9.

[201] Giannone’s hist. of Naples. Selden’s tit. hon. part 2. chap. 9.

[202] Bouquet, le droit public de France, p. 30.-36.—Allodium, proprietas quæ a nullo recognoscitur. Tenere in allodium, id est, in plenam et absolutam proprietatem. Habet integrum ac directum dominium quale à principio de jure gentium fuit distributum et distinctum. Du Moulin, de l’ancienne coûtume de Paris, art. 46.

[203] Dalrymple on feud. property, ch. 3. sect. 1.

[204] Lib. 4. feud. tit. 34. Ruffhead’s statutes, v. 1. p. 122.

[205] Gibson, cod. jur. eccles. Anglican, tit. 28.

[206] Kennet’s collection of historians, vol. 1. p. 116. Carte, hist. of England, vol. 1. p. 469. 555.

[207] Hume, hist. of England, vol. 1.

[208] LL. Hen. 1. cap. 70.

[209] Lib. 7. c. 1.

[210] Glanvil, ut supra. Ruffhead’s statutes, vol. 1. p. 8.

[211] Britton, c. 18. Wright on tenures, p. 163. 164.

[212] Staunford, de prerog. Reg. cap. 7.

[213] An. 27. Hen. VIII. cap. 10. ap. Ruffhead, vol. 2. p. 226.

[214] Madox, hist. of Exchequer, ch. 17. Firma burgi.

[215] Du Cange, et Spelman, voc. Tallagium. Madox, antiq. of the Exchequer, ch. 17.

[216] Hume’s hist. of England, appendix 2. Madox, Firma burgi, ch. 1.

[217] Ruffhead, vol. 1. p. 115.

[218] An. 13. Ed. I. c. 18. apud Ruffhead, append.

[219] An. 23. Henry VIII. cap. 6. ap. Ruffhead, vol. 2. p. 167.

[220] An. 13. Eliz. c. 7. An. 1. James I. cap. 15. 21. James I. cap. 19. 5. George II. c. 30.

[221] Coke on Littleton, book 1. chap. 2. § 13.

[222] Wright on tenures, p. 186. et seq.

[223] Coke’s institutes, part 2. p. 332. Ruffhead, vol. 1. p. 79.

[224] Coke’s institutes, part 2. p. 336.

[225] Hume’s hist. of England, vol. 1. Carte’s hist. 382, 383, 384, 420. Brady’s hist. append.

[226] Selden, tit. hon. part 2. chap. 5. § 3.

[227] Ibid. § 8. and 9.

[228] Coke on Littleton, lib. 3. chap. 13. § 703, 709.

[229] Lib. 3. chap. 13. § 720.

[230] Saintgerman, cap. 50.

[231] Bacon, voc. Fine and Recovery. An. 4. Hen. VII. c. 24. ap. Ruffhead, vol. 2. p. 79.

[232] An. 32. Hen. VIII. c. 36. ap. Ruffhead, vol. 2. p. 296.

[233] Ruffhead, vol. 2. p. 216.

[234] Hottoman. Franco-Gall. Boulainvilliers on the antient parliaments of France. Fortescue de laud. leg. Angl. cap. 34. 36.

[235] Craig, de feud. lib. 1. dieges. 16. Du Cange voc. Dominicum.

[236] Madox, hist. Excheq. Carte’s hist. of England, vol. 1. p. 423.

[237] Carte, ibid. Hume, append. 2. Madox, antiq. of the Excheq. passim.

[238] Firma Burgi, ch. 4. 5. 11.

[239] Bibliotheca politica, Dial. 5. and 10.

[240] Biblioth. polit. 320. 330. 333. 339. 356. 357. 370.

[241] L’Esprit des loix, liv. 11 chap. 6.

[242] Asser, de Gestis Alfredi. Tyrrel, gen. introduct. to the hist. of England.

[243] Lib. 3. cap. 9. fol. 107.

[244] Giannone’s hist. of Naples, lib. 11. chap. 2. Hume’s hist. of England, vol. 2. p. 441.

[245] Dissertatio Seldeni ad Fletam, cap. 7.

[246] Bacon, hist. and polit. discourse on the laws and government of England, part 2. ch. 1. and 2. The reign of Rich. II. in Kennet’s collection of historians.

[247] Hume’s hist. of England, vol. 2.

[248] Camden’s reign of Elizabeth, passim.

[249] Wilson’s life and reign of James I. ap. Kennet.

[250] Bibliotheca politica, dial. 11. Bacon, hist. and political discourse, part 1. chap. 64.

[251] Madox, Antiq. of the Exchequer, vol. 1. p. 197, 198. Baronia Anglica, book 1. chap. 1. Spelman, voc. Baro.

[252] Brady’s introduction, in append. Baronia Anglica, p. 33.

[253] Selden’s titles of honour, part 2. chap. 5. Baronia Anglica, book 1. chap. 2.

[254] Camden, Britan. p. 122.

[255] Selden, tit. Honour, part 2. chap. 5. § 21.

[256] Baronia Anglica, book 2. chap. 1. Selden’s tit. Hon. part 2. chap. 5. § 22.

[257] Coke on Littleton, lib. 2. chap. 8. § 159. Baronia Anglica, p. 164. et seq.

[258] Coke on Littleton, p. 166. St. Amand on the legislative power of England, p. 193.

[259] Selden, tit. Hon. part 2. chap. 5. § 27. and 28.

[260] Camden’s Introd. to his Britan. p. 234. et seq. Baronia Anglica. Selden, tit. hon. part 2. chap. 5. § 29. 30. 31.

[261] Selden, tit. hon. part 2. ch. 1.

[262] Du Bos, hist. critique de L’etablissments de la monarchie Françoise, tom. 3. 497, &c. Mascou’s hist. of the antient Germans, b. 16. § 36.

[263] Spelman’s treatise of Feuds and Tenures.

[264] Selden, tit. hon. part 2. ch. 5.

[265] Selden, tit. hon. part 2. ch. 5. § 10.

[266] Baronia Anglica, p. 150, et seq. Selden, tit. hon. part 2. chap 5. § 8. Bacon, hist. and polit. discourse on the laws of England, part 1. ch. 29.

[267] Coke on Littleton, lib. 2. § 135. Selden, tit. hon. part 2. ch. 5. § 19.

[268] Robertson’s hist. of Scotland, book 1. p. 68. Essays on Brit. Antiq. Ess. 2.

[269] Gibson, cod. jur. eccles. Angl. vol. 1. p. 143.

[270] Privileges of the Baronage, by Selden, ch. 2. p. 1537 of the edition of his works by Wilkins. Coke’s institute, second part, p. 49. and 50.; third part, p. 26.-31.

[271] Spelman, voc. Armiger. Du Cange, voc. Armigiri.

[272] Selden, tit. hon. part 2. ch. 5. § 33. Camden’s introd. to his Britan, 242.

[273] Selden, tit. hon. part 2. ch. 5. § 39.

[274] Spelm. reliq. dissert. de milite. Coke’s inst. part 2. p. 593.

[275] Selden, tit. hon. part 2. ch. 5. § 46. Cotton’s posthumous works.

[276] Madox, Firma Burgi, ch. 1.

[277] Madox, Firma Burgi, ch. 2. Ruffhead, vol. 1. p. 4.

[278] Ruffhead, vol. 1. p. 156.

[279] Gurdon’s history of Parliament. Tyrrel’s introduction to his history. L. L. Anglo Saxon, ap. Wilkins.

[280] History of the common law of England, p. 107.

[281] Biblioth, polit. dial. 6, 7, 8. Hume, vol. 1.

[282] Ruffhead, vol. 1. p. 544.

[283] Spelman, voc. Parlamentum. Hales on Parliaments. Ellys on Temporal Liberty.

[284] Elsringe, on the method of passing bills in Parliament. Gurdon’s hist. of Parliament.

[285] Ruffhead’s preface to the statutes.

[286] Kennet’s English Historians, vol. 2. p. 587, 606. Carte, vol. 2. p. 828. Hume, vol. 2. and 3.

[287] Lord Bacon’s life of Henry VII. ap. Kennet, vol. 2. p. 612.

[288] Irish statutes, vol. 1. p. 23. Coke, 4. instit. chap. 76.

[289] Irish Statutes, p. 48.

[290] Irish Stat. vol. 1. p. 143.

[291] Coke on Littleton, lib. 2. ch. 11. § 172.

[292] Bracton, lib. 4. cap. 28.

[293] Reliq. Spelm. 251. Barington on the statutes 270. et seq. Gurdon’s hist. of Court-Baron and Court-Leet, p. 573.

[294] Coke on Littleton, lib. 2. chap. 11.

[295] Lib. 2. § 194.

[296] Littleton, § 187, 188.

[297] Littleton, § 174.

[298] Coke on Littleton, lib. 2. ch. 11.

[299] Cap. 42.

[300] Wilkins, Leg. Anglosax.

[301] Formulare Anglicanum, tit. Grants and Manumissions of Villeins.

[302] Hickes. dissert. epist. p. 13. et seq. Brady’s hist. p. 82. Fitzherbert’s natura brevium, p. 187, 189, 190. Cowell’s interpreter, voc. copiehould. Coke on Littleton, lib. 2. chap. 11.

[303] Carte, hist. of England, vol. 2. p. 844. 845. 846.

[304] Fitzherbert’s natura brevium, p. 28. Kitchen on Courts.

[305] Coke on Littleton, lib. 1. chap. 8.

[306] Madox, Hist. of the Excheq. vol. 1. p. 295. Cowell’s Interpreter, voc. Demaine. Spel. Gloss. voc. Dominicum.

[307] Bacon’s discourse on the Laws and Government of England, part 1. chap. 16.

[308] Tyrrel’s general Introduction to his Hist. of England. Hume, append. 1.

[309] Spelm. Gloss. voc. Comitatus, hundredus, et trithinga. Tyrrel’s introduction to his Hist. Carte’s Hist. vol. 1. p. 310. Spelm. life of Alfred. Gurdon’s Hist. of Court Baron and Court Leet.

[310] Gurdon’s hist. of Court Baron and Court Leet. Cowel’s Interpreter, voc. Frank-pledge. Bacon’s Discourse on the Laws and Government of England, part. 1. chap. 23.

[311] Bacon, chap. 24.

[312] Bacon’s discourse on the Laws and Government of England, chap. 25, 26.

[313] Dugdale’s Origines Juridiciales, chap. 9, 10, 11, 12, 13, 14, 15.

[314] Madox, Hist. of Exchequer, chap. 1.

[315] Madox, Hist. Excheq. Dalrymple on Feudal Property, ch. 7. § 1.

[316] Dugdale, orig. Jurid. ch. 25. 26. Nicholson, præfat. ad leg. Anglo. Sax. Du Cange, voc. Duellum et Juramentum. Spel. voc. Campus et Judicium Dei. Muratori antiq. Ital. Dissertat. 38.

[317] Stiernhook de jure vetusto Sueonum et Gothorum. c. 4. Dissert. on the antiquity of the English Constitution, part. 4. § 4.

[318] Mirroir des Justices, chap. 2.

[319] Tacit. de Mor. Germ. c. 21. L. L. Wal. p. 192. 194. L. L. Anglo, Sax. ap. Wilkins p. 18. 20. 41. Hickes. dissert. Epist. p. 110. Lindenbrog, p. 1404.

[320] Selden’s tit. of Hon. part 2. ch. 5. Hume, vol. 1.

[321] 1 Inst. 76. Bacon on the Government of Engl. p. 75. Saltern de antiq. leg. Brit. c. 8.

[322] Spelman on Feuds and Tenures. ch. 6.

[323] Taylor and Somner on Gavelkind, and Harris in his Hist. of Kent, p. 457.

[324] Spel. gloss. voc. Burghbote et Brughbote.

[325] Tyrrel’s Introd. p. 120. Spel. Reliq. p. 22.

[326] Dr. Brady’s Glossary to his Tracts, p. 3. Spelman on Feuds and Tenures, p. 17. and 18.

[327] Madox, Hist. of the Exchequer, vol. 1. chap. 10. § 4.

[328] Spelm. on Feuds and Tenures, chap. 21.

[329] Wright on tenures, chap. 2.

[330] Hale’s hist. Com. Law, chap. 5, and 7.

[331] Bacon’s hist. and polit. discourse, chap. 44, 45. &c. Tyrrel’s hist.

[332] LL. Anglo Saxon, ap. Wilkins, p. 228. Wright on tenures, p. 66.

[333] P. 69.

[334] LL. Anglo. Saxon. ap. Wilkins. Wright on tenures, p. 72.

[335] Madox, Baronia Angl. p. 25. Seld. tit. hon. part 2. ch. 5.

[336] Dugdale’s orig. jurid. c. 34. Madox, hist. of Excheq. ch. 2. La coutume de Normandie.

[337] Baron Gilbert’s hist. of Excheq. p. 55. Lord Littleton’s hist. of Henry II. 4to. vol. 1. p. 43. 457. Carte, vol. 1. p. 419. 420.

[338] Madox, Excheq. ch. 1. Bacon on the laws and government of England, part 1. ch. 59. and 66. Brady, Carte and Tyrrel.

[339] Hale, hist. com. law, ch. 7. Bacon, hist. and polit. discourse, p. 129. &c.

[340] Tyrrel’s Introduct. to his hist.

[341] Carte, vol. 1. p. 452, 453.

[342] Kennet’s historians, and Carte.

[343] Hale, hist. com. law, chap. 7. Carte, vol. 1. p. 480. et seq.

[344] Carte; and Kennet’s historians.

[345] Kennet’s historians. Hume, vol. 1. p. 243.

[346] Bacon, hist. and polit. disc. p. 103, &c. Carte, vol. 1. p. 525. et seq.

[347] Kennet’s historians.

[348] Hale, hist. com. law, chap. 7. Carte.

[349] Gervas. de Tilbury, dial. de Scaccario.

[350] Madox, hist. of Excheq. ch. 16.

[351] Lib. 9. c. 4.

[352] Coke on Littleton, fol. 153.

[353] Ibid.

[354] Bracton, lib. 4.

[355] Hale’s hist. Com. Law, chap. 7. Dugdale, orig. jurid. p. 27. Hoveden, p. 590.

[356] Hale’s hist. Com. Law, ch. 7.

[357] Fitzherbert, Nat. brev. p. 41.

[358] Dugdale, orig. jurid. chap. 20. Madox, hist. of Exchequer, chap. 3. § 10. Bracton, lib. 3. chap. 10, 11. M. Paris, an. 1176.

[359] 4. Instit. p. 184, 266. Hale, hist. com. law. chap. 7.

[360] 2. Instit. p. 24. et seq. 4. Instit. p. 162. Selden’s notes on Hengham.

[361] Dugdale, orig. jurid. chap. 17.

[362] 4. Institute, p. 70. et seq.

[363] d’Anver’s abrigement, vol. 2.

[364] 4. Institute, p. 79.

[365] Dugdale, orig. jurid. ch. 16. 4. Inst. p. 80.

[366] 4. Inst. p. 79. 80. 84. 88.

[367] Ibid. p. 225. 113. 80. 76.

[368] 4. Inst. p. 155. 79. 206.

[369] 4 Inst. ch. 8. Bacon, hist. and polit. discourse, part. 2. ch. 18.

[370] Baron Gilbert’s history of the Court of Common Pleas. Madox, hist. Excheq. ch. 2. sect. 9. 2 Institute, p. 53. 407. 4 Institute, ch. 8.

[371] 2 Institute, p. 405.

[372] 2. Institute, p. 21, 22.

[373] Bracton, lib. 1. cap. 1. Fortescue de laud. leg. Angliæ, cap. 34.

[374] Baron Gilbert, Hist. of the court of Com. Pleas. 4. Inst. ch. 10.

[375] 2d. Inst. p. 196. 197. 255. 551.

[376] 4th Inst. ch. xi.

[377] 4th Inst. ch. 13.

[378] Hales of the power and jurisdiction of Parliament. Selden of the Judicature of Parliament. See his works vol. 3. 4. Inst. ch. 1.

[379] Giannone’s hist. of Naples, b. 1. Bower’s hist. of the Popes, vol. 1.

[380] Lord Lyttelton’s hist. of Henry II. b. 3.

[381] Daniel, ap. Kennet. Carte.

[382] Hoveden. edit. Savil. 494-549. Mat. Paris. an. 1164. Lord Lyttelton’s hist. of Henry II. book 3. Brady’s history.

[383] Hume, Carte, Lyttelton, &c.

[384] Hale, hist. com. law, chap. 7.

[385] Mare Claus. 386. Kennet’s historians. Hume. Carte.

[386] Brady, Daniel, Tyrrel, and the general histories of England.

[387] Kennet’s historians. Hume. Carte.

[388] Blackstone’s discourse concerning the hist. of the charters. Gurdon’s hist. of Parliament. Hale, hist. com. law, ch. 7.

[389] Sir Robert Atkins on the dispensing power. Bibliotheca Politica. The general histories of England.

[390] Ruffhead, vol. 1.

[391] Lib. 3. p. 129. 137.

[392] Cap. 5.

[393] Lib. 1. cap. 28.

[394] Cap. 5.

[395] 2 Inst. p. 37.

[396] 2 Inst. 38. 41. Barrington on the Statutes, p. 15. 16.

[397] Mirror, cap. 5. sect. 2. Glanvil, lib. 14. cap. 3. Bracton, lib. 3. p. 121. Fleta, lib. 1. cap. 23.

[398] 2 Inst. p. 43. 45.

[399] 2. Institut. p. 48. 49.

[400] 2. Institut. p. 51.

[401] 2 Inst. p. 51. 55.

[402] Father Paul, of beneficiary matters.

[403] 4 Institut.

[404] 2 Inst. p. 46.

[405] 2 Institut. p. 51.-55.

[406] 2 Inst. p. 47.

[407] 2 Inst. p. 47.

[408] Ibid.

[409] 2 Inst. p. 48.

[410] 2 Inst. p. 48.

[411] 2 Institut. p. 55, 56.

[412] 2 Institut. p. 56.

[413] 2 Institut. p. 57. et seq. Barrington on the statutes. p. 23. 25.

[414] 2 Institut, p. 64.

[415] 2 Inst. p. 65.-67.

[416] 2 Inst. p. 68. Barrington, p. 25.

[417] Ibid. p. 68. 69.

[418] 2 Inst. p. 69. 74.

[419] 2 Inst. p. 74, 75. Barrington, p. 27.

[420] Ibid. p. 76. See also Inst. lib. 2. cap. Escuage. Barrington, p. 28.-31.

[421] 2 Inst. p. 76.-78.