mons, were absent; and that the rest of the barons refused to answer the king's proposals then made to them on that account. And, as MAGNA CHARTA itself is acknowledged to have been no new grant to the people of England, but a confirmation of their ancient rights and liberties; it must necessarily follow, that the persons who held of the king in capite, were the representatives of most of the commons, called by some barones minores, lesser barons. For that the whole body of parliament had the title of baronage is evident from a writ of Henry III. to the sheriff of Herefordshire, in which it is said de communi concilio baronagii nostri, &c. And that the dependant tenant's consent was included in the assent of his immediate superior lord, or representative, whose presence was ever so required in these great councils, is a conclusion that seems naturally warranted by the premises.

Nor does it appear that the commons were otherwise represented than by these tenants in chief, for the most part of Henry III.'s reign, in the 9th year of which the Great Charter is said to be confirmed per commune concilium totius regni, by the common council of the whole kingdom.

It is, perhaps, notwithstanding all that has been advanced, however, only from the battle of Lewes, in which Henry III. and the prince his son were made prisoners by the celebrated earl of Leicester, that we are enabled to trace the confirmed outline of

Selden, Tit. of Honour, p. 708.

an English house of commons, as it exists at present, though, as we have shewn, the people were in those great and public councils certainly represented by the king's tenants in chief; but after this period by two knights for each county, and certain burgesses for several boroughs, &c.

It is remarkable, however, that Henry's precept for summoning two knights for each county, &c. was issued when the barons had him in their power, and exercised regal authority in his name; and though there were several parliaments before the 23d Edward I. yet there is no testimony upon record of any summons to them till that year, the form of which continued till the 6th Edward II. and is nearly the same as in use at this day.

It seems, at the time we are speaking of, that the lords, with their numerous attendants, were entertained at the king's charge, as appears by the writs bearing date 30th August next ensuing the date of the summons of parliament held that year (which was the 6th of July before): these were directed to the sheriffs of the following counties, for the provision of oxen, muttons, and hogs, at certain prices, for the said king's household, in respect of his then residence at Westminster, viz. to the shireeve of Devon for CC oxen, and a thousand muttons: to the shireeve of Hampshire for CCC oxen, two thousand muttons, and two thousand hogs: to the shireeve of Somerset and Dorset for CCCCCC oxen and a thousand muttons: and to the shireeve of Surry

and Sussex for CC oxen, a thousand muttons, and a thousand hogs'.

In thus tracing the rise and progress of the English parliament, we may perceive the consideration the people had been gaining since the gradual diminution of the feudal system. The establishment of corporation charters, by which many of the rustic slaves were in a capacity of rescuing themselves from the dominion of their masters, increased not only the power of the people, but their ardour to be free. As arts increased, the number of these little independent republics, if they may be so called, increased in proportion; and we find them at the present period of consequence enough to be adopted into a share of the legislature. Such was the beginning of an institution that has since been the guardian of British liberty, and the admiration of mankind. In this manner it owed its original to the aspiring aims of a haughty baron, who flattered the people with the name of freedom, with a design the more completely to tyrannize.

CHAP. III.

OF THE JUSTICE OF ENGLAND.

THAT the power of government, or right of administering justice, was at first vested in the father of the household, and when generations of men in

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creased, in the chief of the tribe, both reason and history sufficiently testify; or, in other words, when society grew too large to subsist with convenience in that pastoral state wherein the patriarchs appear to have lived, it necessarily subdivided itself by various migrations into more, as is excellently expressed by sir Walter Raleigh: "In tract of time," says he', as people grew numerous, and kindreds more remote, obedience, the fruit of natural reverence, waxing cold, and brotherly affection by little and little withering away; wisdome being likewise severed from power, and strength from charity, covetousness begot oppression, and the more powerful man encroached upon the weake; necessity, therefore (which maketh wise even the brute creatures as well as men), occasioned both the prudent and ignorant at once to understand that the condition of reasonable men would become far more miserable than that of the beasts; and that a general flood of confusion would a second time overflow them, did they not by a generall obedience to order and dominion prevent it for the mighty, who trusted in their own strength, found others again (by enterchange of times) more mighty than themselves; the feeble fell under the forcible, and the equal from equal received equal harmes; insomuch, that licentious disorder, which seemed to promise liberty upon the first acquaintance, proved, upon a better tryall, no less perillous than an unindurable bondage.'

'Hist. of World, lib. i. cap. 9. sect. I.

This increase of society requiring a magistrate with more extensive jurisdiction, the transfer of power from private to public hands, from the chief or father of a family, to the monarch, or father of a nation, naturally followed; and hence the king, as the depositary of that power, "and no other," says Bracton, "ought to judge, if he alone were able to perform the task, being thereunto obliged by the tenour of his oath to him, therefore, it belongs to exercise the power of the law, as God's vicegerent and officer on earth. But if the king cannot of himself determine every controversy, to the end his labour may be less by dividing the trouble amongst divers persons, he ought to choose men of wisdome, fearing God, and out of them to constitute judges."

The expression of Edward I. in the preface to his book of laws, called Breton, precisely agrees with this opinion; for, having declared that he is God's vicegerent, and has distributed his power into several portions, as not being able alone to hear and determine all the complaints of his subjects, he proceeds, nous volons que nostre jurisdiction, &c. We will that our own jurisdiction be superior to all the jurisdic tions of our realm; so that in all felonies, trespasses, contracts, and in all other actions, personal or real, we have power to give, or cause to be given, such judgments as do appertain (without any other process), wheresoever we know the direct truth, as judges.

Breton, impr. Lond. per Rob. Redman (temp Hen. 8. f. 1. b.).