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

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viii
PREFACE.

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 established 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 nec Regis adesse Presentiam nec Authoritatem." An Inference by no Means deducible from the Words of the Historian. See Spelm. Gloss. Voce Parliamentum.—Some, who have treated of this Subject, tell us that the Members of the British Councils were their Edl ns, 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, & 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 expresssed 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

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