this Time obtained some Share of Influence: But such was the little Regard paid to their Rights, that their Assent[1] was not, for a long Time after, held essential to the enacting of Laws.
Even the Barons themselves were, for some Time, considered merely as Counsellors, and, aspiring also to the Honours of the Chace, with the romantic Glory of Chivalry, they were glad to be relieved from the speculative Business of Legislation, which they willingly committed to the King and his Judges.[2]
But as greater Refinement took Place, they not only asserted their Right of Assent to Acts of Legislation, but, while their Influence was predominant, they, in fact, bid open Defiance to the Crown.
The Commons seem at first, among other Reasons, to have been opposed as a Counterbalance to their exorbitant Power: And they naturally adhered to the Sovereign, from Aversion to the Barons, who were no less their Oppressors, than Opponents to the Crown.[3]
- ↑ That their Assent was a Matter of Right, however it might be overruled by the arbitrary Practices of early Times, may be inferred from the Words of the Writ of Summons, which are ad audiendum & faciendum & consentiendum. It is observable that the Summons to the Bishops and Barons was de arduis Negotiis Regni tractaturi & Consilium impensuri. Yet there are many Instances on Record which prove that the Commons also were consulted about important Affairs of State, such as Peace and War, &c. For which see Cotton. Posthum.
- ↑ We find in the Statute Code, some Traces of this Prerogative exercised by the King. The Statute of Gavelet, 10 Ed. 2. for Instance, runs thus: "It is provided by our Lord the King and his Justices, &c." without any Mention either of Lords or Commons. That Laws in these early Times were made by the sole Authority of the King, without the Concurrence of any other legislative Branch, is farther evident from the Mirroir des Justices, the Author of which complains, "that Ordinances are only made by the King and his Clerks, and by Aliens and others, who dare not contradict the King, but study to please him. Whence," he concludes, "Laws are oftener dictated by Will, than founded on Right."
- ↑ If we confider the Influence the King had in Demesne Towns, he might as well have been absolute with a Parliament as without; and the Parliament at first, so far as it consisted of Commoners, was intended as a Support to Prerogative.
Conquest; or at least very early in the Reign of Hen. 3. For the 25th of Ed. I. which confirms Magna Charta, says, that it was made by the common Assent of all the Realm. And the 15th of Ed. 3. speaks more strongly, that Magna Charta was made par le Roy, ses Piers, & la Communalté de la Terre: And the Judgment of those early Times is more to be regarded than the partial Construction of modern Interpreters. Moreover, though the Summons of the 49 H. 3. is the first on Record, which comes near to the Form so long in Use, yet there are Instruments on Record long before this Time, from whence it may be inferred that the Commons were called to the Great Council, as appears from Whitlocke’s Notes's on the King's Writ for chusing of Members of Parliament; a MSS. the Property of Dr. Moreton, who favoured the Editor with the Perusal of it. ☞ Brady, however, with his usual Subtlety, would persuade us, that the Word Commnunalty antiently meant the Barons only, and Tenants in Capite, or military Men: But though he has cited some Instances where the Word maybe so understood, yet, in the 14 Ed. 3. Stat. 2. the Words Communalty and Commons are expressly used as synonymous Terms: And there are such innumerable Instances in the antient Records where the Words Communitas and Communaute are descriptive of the Commons only, that no unprejudiced Writer could overlook or suppress them. But Brady, who rests his Arguments on mere verbal Niceties, would farther persuade us that the Words Proceres, Nobiles, Optimates, Magnates, &c. constantly denote the Barons or Noblemen; whereas, however they maybe so taken in a classical Sense, yet, in the antient Records, they are often applied to distinguish the chief of the Commoners, that is, the representative Body; as in the Stat, de Asportatis Religiosorum, 35 Ed. I.—post deliberationem, &c. cum Comitibus, Baronibus, Proceribus et aliis Nobilibus, ac Communitatibus Regni, where the Words Proceribus, Nobilibus, ac Communitatibus, must be descriptive of the Knights, Citizens, and Burgesses. And of this Opinion is Lord Coke, 2 Inst. 583. Nay, it would not be difficult to produce many Records, where the Word Barones, notwithstanding Brady ridicules the Notion, was antiently applied to denote the Commons, and particularly the Burgesses. Whitlocke's MSS. above cited.
