The first summons directed to the sheriff for the election of citizens and burgesses, is supposed to be in the 23d of Edward I. But in the sixth year of king John, says Whitelocke, there is extant on record a writ to the sheriff, which mentions “Bishops, earls, barons, and all our faithful people in England; by whose assent, lawes were then made.” 6. Jo. regis, rot. claus. m. 3. dors. et rot. pat. m. 2. Assensu archiepis. &c. et omnium fidelium nostrorum Angliæ. Notes on the king’s writ, vol. II. p. 120. An ordinance in this year of king John, directed to all the sheriffs in England, is mentioned from the records by Sir Robert Cotton, and has these words: Provisum est assensu Archiepiscoporum, comitum, baronum, et omnium fidelium nostrorum Angliae. Cotton. posth. p. 15.
In the conventio inter regem Johannem et barones the people are stated as parties; a circumstance which would not have happened if they had not been represented. Hæc est conventio facta inter dominum Johannem regem Angliæ ex una parte, et Robertum filium Walteri Marescallum, &c. et liberos homines totius regni ex altera parte. Blackstone’s Edition of the charters, ap. Law Tracts, vol. II. p. 39. 40. And what confirms this notion is, that we find the mayor of London and the constable of Chester in the list of those who were chosen conservators of the public liberties in consequence of the great charter. Other proofs, likeways, of the antiquity of the commons are to be found in the great charters. See Lyttelton, Hist. Henry II. Notes to the 2d book, p. 71.
It is also worthy of notice, that the 25th of Edward I. which confirms the great charter, observes, that it was made by the common assent of all the realm: And the 15th of Edward III. observes, that it was made par le roy, ses piers, et la communalté de la terre.
Nor must it be omitted, that the 5th of Richard II. has this remarkable passage: The king doth will and command, and it is assented in the parliament, by the prelates, lords and commons, that all and singular persons and commonalties, which from henceforth shall have the summons of the parliament, shall come from henceforth to the parliaments in the manner as they are bound to do, and have been accustomed within the realm of England of old times. And if any person of the same realm, which from henceforth shall have the said summons (be he archbishop, bishop, abbot, prior, duke, earl, baron, banneret, knight of the shire, citizen of city, burgess of borough, or other singular person, or commonalty) do absent himself, and come not at the said summons (except he may reasonably and honestly excuse him to our lord the king) he shall be amerced, and otherwise punished, according as of old times hath been used to be done within the said realm in the said case. And if any sheriff of the realm be from henceforth negligent in making his returns of writs of the parliament; or that he leave out of the said returns any cities or borough which be bound and of old time were wont to come to the parliament, he shall be amerced, or otherwise punished in the manner as was accustomed to be done in the said case in times past. Stat. 2. cap. 4.
The expression “of old time,” so often used here, must doubtless carry us farther back than the 23d of Edward I. or even the 49th of Henry III. The space of two or even three reigns does not make a period of antiquity. We do not say, that the accession of George I. was in ancient times.
I know well, that the expressions commonalty, communitas regni, baronagium Angliæ, magnates, nobiles, proceres, &c. have been considered as solely applicable to barons and tenants in capite. But one must beware of giving credit to this opinion. The great charter of king John bears to have been made per regem, barones et liberos homines totius regni; a certain proof that it was not made by the king and the barons only; yet Henry III. speaking of this parliament, calls it baronagium Angliæ. The magnates and proceres are said to have made the statute of Mortmain; but it is well known, that the parliament which gave authority to this act consisted of king, lords and Commons. In the 35th of Edward I. the expression cum comitibus, baronibus, proceribus, nobilibus, ac communitatibus, evidently refers to knights, citizens and burgesses: And in the 14th of Edward III. commonalty and Commons are used as synonymous. See farther, Whitelocke, vol. II. ch. 81. Coke, 2nd Inst. 583. Petyt, Rights of the Commons. Atkyns, on the power and jurisdiction of parliament.
Mr Hume, I am sensible, strenuously asserts the late origin of the Commons; and one would almost imagine, that his history of England had been written to prove it. His reasonings, however, on constitutional points, do not appear to me to be always decisive; and it is with pain I observe the respect which this great man has paid to the opinions of Dr Brady; a writer who is known to have disgraced excellent talents, by pleading the cause of a faction, and giving a varnish to tyranny.
The brevity which was necessary to this tract, has permitted me rather to hint at, than to treat the antiquity of the Commons. In a work which I hope one day to lay before the public, I shall have an opportunity of entering into it at greater length.
[25] Hist. Dissert. concerning the antiq. of the Engl. constitut. part 2.
[26] Madox, Hist. of the Excheq. Bar. Angl. The granting of supplies to the sovereign, naturally suggested to the people the petitioning for redress when under the pressure of any grievance; and the crown, where it expected much, would not naturally exercise a rigorous severity.