Page:Ruffhead - The Statutes at Large, 1763.djvu/12

From Wikisource
Jump to: navigation, search
This page has been proofread, but needs to be validated.

deemed a Statute. Other Statutes likewiſe, mentioned by Serjeant Hawkins, ſuch as Quia emptores terrarum, which is worded as "an Ordinance at the Inſtance of the great Men;" Articiili ſuper chartas:, which only mentions the Prelates, Earls, and Barons; and the Statute of Money, which runs in the ſame Form, have been univerſally received as Acts of the whole Legiſlature, though particularly penned, and omitting the Commons.

But the Doctrine laid down by Lord Coke and others, will appear the more indefenſible, if we take a retroſpective View of the antient Method of paſſing Acts of Parliament, wherein we ſhall find, that the concurring Aſſent of the ſeveral Orders of the State was not for ſome time held eſſentially requiſite; and that after the Commons were reſtored, as a Part of the Legiſlature, their Influence was ſo inconſiderable, that it was many Years before their Right of Aſſent in particular was fully acknowledged and eſtablſhied in Practice.

Concerning the antient Method of paſſing Laws, during the Britiſh and Saxon Times, we can conclude little with Certainty. The Britiſh Kifrithin, or Great Council, ſeems to have been rather an occaſional and tumultuary Meeting, than an Aſſembly compoſed of regular and diſtinct Orders [1]. With regard however to the Saxon Conſtitution, though we cannot trace the Forms on which the ſeveral Orders of the State concurred in the Buſineſs of Legiſlation, yet we frequently find expreſs Mention of the People in the Saxon Laws[2]: And it may, among other Circumſtances, be collected even from the Nature and Deſign of the Folcmote[3], that they

  1. Many have undertaken to prove that the Commons were conſtituent Members of the Britiſh Great Council. Of this Opinion is Lord Coke, Pref. to 9th Rep. Petyt likewiſe adopts the ſame Notion on the Authority of Dion Caſſius, who aſſures us, in the Life of Severus, that apud Britannos Populus magna ex parte Principatum tenet. But the Word Populus here, according to Brady, can only mean the great Men or Leaders; ſince Tacitus in the Life of Agricola, long before the Time of Severus, informs us that Britanni olim Regibus parebant, nunc per Principes factonibus & Studiis trabuntur.—Brady however ſeems to have miſtaken the Senſe of this Paſſage, which he tranſlates, or rather amplifies thus. "In Times paſt, the Britains obeyed their Kings, and lived under Monarchy; now they are drawn into Factions and Parties by their Chiefs and great Men." From the Words in Italicks, which are not to be found in the Original, may be inferred, what Brady indeed ſuppoſes, that the Britains no longer lived under Monarchy, but had degenerated into a Populacy, or, as he expreſſes it, a Compound of Ariſtocracy and Democracy. Whereas the Fact is, that the Britains, at that Time, lived under their Kings; and the Hiſtorian, within a few Pages of the Paſſage cited, ſpeaks of King Cogidunus and Queen Voadicea. Brady, with ſome others, ſeems to have been betrayed into this Miſconſruction, by taking the Words Regibus and Principes as oppoſed to each other; Whereas the Oppoſition is between the Words Parebant and Factionibus trahuntur. See the Annotator on the Amſterdam Edition of Tacitus.—It is obſervable that the learned Spelman has fallen into the ſame Error: For, after quoting the above Paſſage from Tacitus, he ſays, "Vides in hiſce Conſillis nee Regis adeſſe Preſentiam nee Authoritatem." An Inference by no Means deducible from the Words of the Hiſtorian. See Spelm. Gloff. Voce Parliamentum.—Some, who have treated of this Subject, tell us that the Members of the Britiſh Councils were their Edlns, who were of princely Race: Together with the Governors of Diſtricts and Lords of Villages. But this Inquiry is involved in ſuch Obſcurity, that perhaps it is not ſafe to form any poſitive Concluſion.
  2. They are expreſsly named in the Wittanagemot held by Ethehwolf in the Year 855, when a Tenth was given to the Church by the King, cum Thanis, Baronibus, y populo. They are again expreſsly named in the 8th Law of Edward the Confeſſor. And in the 35th Law, we find the Aſſent of the People expreſſed as follows. Hoc enim factum fuit per Commune Conſilium & Assensum omnium Epiſcoporum, Principum, Procerum, Comitum, & omnium Sapientum Seniorum, & Populorum totius Regni.
  3. The Folcmote was of two Kinds; the Folcmote Comitatus, or Shiremote, and the Folcmote Civitatis vel Burgi, that is, the Burgmote. The former was an yearly Aſſembly of the People of all Ranks, in the Nature of an annual Parliament, and the Laity there took the Oath of Fealty, before the Biſhops: At