The Hiftory of the Writ, with Obfervations on the Rife and Progrefs of Parliamentary RepreSentation. HE democratic part of the conftitution, THE which confifts in the right of chufing representatives by the commonalty of the realm, feems to owe its restoration to the weakness of the crown. The feeble remains of Saxon freedom, overpowered by the feudal system, were nearly extinguished, The people could hardly have recovered at fo early a period any fhare in the legiflation, had not many extraordinary circumstances concurred to have produced B Litt. Hift. v. 2. p. 429. duced fuch a revolution. The regular fubordination of every part of the feudal system, made it the inclination of those who shared its power to wifh for its continuation. The people were held in a state of vaffalage. In ftruggles for power, the conflict ufually was. between the king and the barons. The liberties of the people at large were feldom heard of, but as a covering or pretext for the latter to attack and weaken the former. Happily for the people, the continental dominions of the crown called for armies, fupported at first indeed by feudal tenure, which, in a fhort time, was bartered for pecuniary commutation, under the name of fcutage. This, together with the encreafing neceffities of the crown, and the proportionate independence of the barons, foon brought the people at large, especially the trading part of them, into fome confideration. The policy of the crown raised a counterbalance to the power of the barons, and by giving the people confequence, at the fame time erected for itself a tower of strength, and a treafury for fupplies. It was from this policy probably that Hen. 2. gave charters and immunities to the people, which meeting with no disturbance from the military genius of the 1ft Richard, folely occupied in foreign wars, and ftrengthened by 'the weakness of king John, prepared the way for that consequence to which they were arisen at the latter end of the reign of Hen. 3. The The extreme indigence of this monarch to wards the latter period of his reign, made it neceffary for him to look out for new fources for supply. Hitherto that burden had fallen upon the land; and the towns, fecure through their humility, had escaped taxation. But many of them, being now grown, wealthy by industry and. commerce, began to contribute their share to the public expence. Talliage, which was a tax upon perfonal property as fcutage was upon land, was adopted about this period, and was probably the first and active cause of fummoning delegates from thofe places, who might have the appearance of granting what they were not frong enough to refufe. The crown indeed would fometimes take it without attending to this form; but the ftatute de talliagio non concedendo, made in the 25 E. I. restrained this tyranny, and fecured the continuation of that right, which, though folemnly established by Hen. 3. would probably foon have grown into difufe. Though it seems probable that during the P. 8. Saxon æra the people had a share in legislation, yet it is from the end of the reign of Hen. 3. only that it is poffible for a lawyer to date the commencement of parliamentary reprefentation. The antiquary may indulge himself in amufing fpeculations upon a parliament anterior to the 49 Hen. 3. but there are no records which fhew that the people had a right to any voices in matters of state, much less in the form of the prefent conftitution, as Boden de Re- pub. lib. 1. c. 8. 7 Hume, v. 2. p. 272. Brady on Bor. p. 68. Carew's Pref. Pryn. Bre. Par. the authorities The king's Council not a parliament. fome have contended *. The crown had always indeed a council, to which it might fummon by writ any perfons whofe advice it wanted; but this was cafual, at the will of the crown, and for its own benefit. The fummons was perfonal, and arofe out of the prerogative, which called for fervice from the fubject at fuch times, and in fuch manner, as became convenient to the crown, and did not authorize or depend upon any elective delegation by the people. The charter of king John bound him only to fummons, by writ under his feal, the archbishops, bishops, ab bots, earls, and greater barons, and does not extend to milites, or any inferior description Who fummoned of perfons. This council confifted as well of clergy as fecular perfons, who might not happen to be lords or barons of the realm, as, namely, his treasurer, chancellor of the exchequer, judges, juftices in eyre, juftices affigns, barons of his exchequer, clerks, fecretaries of his council, and fometimes his ferjeants at law, Pryn. Parl. Red. With fuch other officers and perfons whom he chofe to fummon; and they were to affift the king and barons. The writs of fummons to to fuch council as affiftants. pt. 1. 341, & feq. * Modus tenendi parliamentum, which feems to be the principal authority relied upon by Elfing, Hackwell, Sadler, Harrington, Dugdale, Lambert, Petyt, lord Coke, and others, to prove a parliament exifting in the reign of Edward the Confeffor, is now univerfally admitted a fabrication of no earlier date than the reign of Edw. and probably of as late a date as the 31 H. 6. Pryn. Par. Red. pt. 2. 173. 3 pt. 230. Plea for Lords, p. 164 to 214. Har. Co. Lit. 69. b. n. 2. Selden rejects it as fpurious. Seld. 2. c. 5. f. 26. 1. Tit. Hon. 2d edit. pt. 3. thefe |