[3] Bede, lib. 3. and 5.
[4] The division of laws, during the Anglo-Saxon period, into West-Saxon-lage, Mercen-lage and Dane-lage, was not of any importance. These differed not essentially from one another. “Our Saxons, says Sir Henry Spelman, though divided into many kingdoms, yet were they all one in effect, in manners, laws and language: So that the breaking of their government into many kingdoms, or the reuniting of their kingdoms into a monarchy, wrought little or no change amongst them touching laws. For, though we talk of the West-Saxon-law, the Mercian-law and the Dane-law, whereby the west parts of England, the middle parts, and those of Norfolk, Suffolk and the north, were severally governed; yet held they all an uniformity in substance, differing rather in their mulcts than in their canea; that is, in the quantity of fines and amerciaments, than in the course and frame of justice.” Relig. Spelm. p. 49.
[5] King Edward’s laws were compiled from those of former princes, and abolished any little peculiarities which distinguished the West-Saxon, Mercian and Danish laws, subjecting the whole kingdom to a common law. His code, accordingly, was termed lex Angliæ, or lex terræ. No correct copy of it has descended to us. Those regulations, which pass under his name in the editions of the Saxon-laws by Lambard and Wilkins, have evidently some interpolations. Traces of them are to be seen in Hoveden and Knyghton; and remains of them are likeways to be found in the laws of William I. From the time of this Prince to that of King John, they continued, with the addition of some Norman laws and customs, the law of the land. Præcipimus, says William, ut omnes habeant et teneant leges Edwardi regis in omnibus rebus, adauctis his quas constituimus ad utilitatem Anglorum. Leg. Guliel. ap. Wilkins, p. 229. By the influence of the Barons under the last Prince, they were drawn up in the form of Magna Charta. For the great charter was not what some partial writers have represented it, a concession of privileges extorted by violence, but a declaration of the principal grounds of the antient and fundamental laws of England, and a correction of the defects of the common law. See Lord Coke 2 Inst. and Lord Lyttelton’s hist. of Henry II. vol. I. p. 42. 526.
[6] Wittenagemot, imports a council of wise men; the Saxon word witta signifying a wise man; and the British word gemot expressing a synod or council. During the Heptarchy, each kingdom had its Wittenagemot.
[7] The lay lords were the earls, thanes, and other nobility of the kingdom. The spiritual lords were the bishops and dignitaries of the church, whose possessions were held in Frankalmoigne. After the conquest, they were subjected to military service and held by barony. What may seem extraordinary, Abesses were also in use to sit in the Saxon Wittenagemots. In Wightred’s great council at Beconceld, anno 694. the Abesses sat and deliberated, and several of them subscribed the decrees made in it. Spel. conc. vol. I. The abesses appeared also in Ethelwolf’s parliament at Winchester anno 855. Ingulph, edit. Savil. 862. And king Edward’s charter to the abbay of Croyland was subscribed by an abbess. Even in the time of Henry III. and in that of Edward I. it appears that four abbesses were summoned to parliament; those of Shaftsbury, Berking, St. Mary of Winchester, and of Wilton. Tit. hon. p. 729, and Whitelock’s notes upon the king’s writ for choosing members of Parliament, vol. I. p. 479. 480.
[8] The preambles of the Saxon laws express an anxiety to please the people, and allude to their consent in enacting them. The laws of king Ina begin thus: Ego Ina Dei gratia Occiduorum Saxonum Rex, cum consilio et cum doctrina Cenredæ patris mei, et Heddæ Episcopi mei, et cum omnibus meis senatoribus, et senioribus sapientibus populi mei, et multa etiam societate ministrorum Dei, consultabam de salute animæ nostræ, et de fundamento regni nostri, ut justæ leges, et justa statuta per ditionem nostram stabilita et constituta essent, ut nullus senator nec subditus noster post hæc has nostras leges infringeret. See LL. Anglo-Saxon, ap. Wilkins, p. 14. The preambles to the laws of the other princes are nearly similar; and those of Edgar, Ethelred and Canute, may serve as additional examples. 1. Leges Eadgari regis. Hoc et institutum quod Eadgarus cum sapientum suorum consilio instituit in gloriam Dei, et sibi ipsi in dignitatem regiam, et in utilitatem omni populo suo. 2. Leges Æthelredi regis. Hoc est consilium quod Æthelredus rex, et sapientes ejus consultaverunt ad emendationem pacis omni populo Wodstoci in regione Merciorum, secundum Angliæ leges. 3. Leges Cnuti regis. Hoc est consilium quod Cnutus rex, totius Angliæ et Danorum et Norwegorum rex, cum sapientum suorum consilio sancivit, in laudem Dei, et sibi ipsi in ornamentum regium, et ad utilitatem populi; et hoc erat sacris natalibus domini nostri Wintoniæ. See Wilkins, p. 76. 102. 126.
In the 8th law of Edward the Confessor we read, Hæc concessa sunt a rege, baronibus et populo; and in his 35th law we have the following words: Hoc enim factum fuit per commune consilium et assensum omnium episcoporum, principum, procerum, comitum, et omnium sapientum seniorum et populorum totius regni, et per præceptum regis Inæ prædicti. See Wilkins, p. 198. The laws of Edward are, I know, to be read with distrust; but they are allowed to contain genuine relics of that prince; and, in the present case, there seems no reason for suspicion. Their appeal of consequence to the assent of the people must be allowed to be of authority. For, if such assent was not known and believed in that age, how is it possible that they could appeal to it? The advocates for the late origin of the house of commons will not surely suppose, that the Confessor alluded prophetically to transactions which were not to happen till the reigns of Henry III. and Edward I.
In the Mirroire de Justices, it is expressly said, that no king, during the Saxon times, could change his money, nor enhance nor impair it, nor make any money but of silver, without the assent of the Lords and all the Commons. Part of this book is conceived by Sir Edward Coke to have been written before the conquest; and additions were made to it by Andrew Horn in the reign of Edward I. from old MSS. the authors of which must have seen ancient rolls and records. Matter, also, from more exceptionable materials, it is to be thought, was superadded by him. The book is notwithstanding of considerable weight and authority. Mirroire des Justices, cap. 1. sect. 3. Atkyns on the power of parliament.
Concerning the high antiquity of the commons, Sir Edward Coke is clear and explicit; and he has founded chiefly his opinion on the ancient tract, which bears this title: Modus quomodo parliamentum regis Angliæ et Anglorum suorum, tenebatur temporibus regis Edwardi, filii regis Ethelredi, qui modus recitatus fuit per discretiores regni coram Willielmo duce Normanniæ conquestore et rege Angliæ, ipso conquestore hoc præcipiente, et per ipsum approbatus, et suis temporibus et temporibus successorum suorum regum Angliæ usitatus. Other authors beside Lord Coke have paid great respect to this treatise. It is to be acknowledged, however, that Mr Selden has demonstrated that this tract could not possibly be of the age of the Confessor, from its employing terms which were not in use till long after. But this does not wholly derogate from its force as to the point in question. For, allowing it to have been written in the reign of Edward III. the period which, with great probability, some writers have assigned to it, it yet proves that the sense of that period was full and strong with regard to the antiquity of the constitution, as consisting of king, lords and commons; a circumstance which must have great weight in opposition to those, who would make us believe, that our constitution, as so formed, was unknown till the times of Henry III. and Edward I. 4 Institute, p. 2. 12. Selden, tit. hon. p. 739. 743.
“In the time of king Canutus, says Whitelocke, to a charter then graunted to the monastery of St. Edmond’s Bury (probably in a publique councell) after the subscriptions of the queen and dukes, followes, I Oslaus, knight, I Thored, knight, I Thurkell, knight, and so of others. How many these were, or how for several counties, doth not appear; nor in that parlement of the same king (for so is testified by the discription of it) where it is sayd, that the king calling all the prælats of his kingdome, and the nobles, and great men to his parlement, there were present bishops, abbots, dukes, earles, with many militibus, butte the certain number is not extant; nor of those which are mentioned in the parlement of Edward the Confessor, where after the king, queen, archbishops, bishops, abbots, king’s chapleins, Thaines, knights are reckoned in that parlement.” Notes upon the king’s writ, vol. I. p. 437.