CHAP.

IV.

to have multiplied from the Northmen invasions ; for greater numbers of them are enumerated in Domesday-book, in the counties which the Danish population principally colonised, than in the others.? These desolating wars destroyed so many nobles and their families, that many of the servile must have often become liberated from no lords or thegns surviving to claim them; and corresponding with this idea, there are many passages in our laws which are directed against those who wander over the country without having a visible owner. All such, as well as every fugitive who could escape pursuit, became in time freemen in the burghs or towns - where they ultimately settled; yet these would not become electors in those places where none were allowed to be burgesses, who were not formally admitted to be such. They could only acquire a share in the elective franchise in those parts where mere house-holding was sufficient to constitute an elector; and as this large privilege was in after-times possessed in very few places, there is no reason to believe, that it was more extensively enjoyed in the Anglo-Saxon burghs.

If the freeholders of the Anglo-Saxon counties were not represented in their witena-gemot, at what other time did this most important privilege originate? That it should have begun after the Norman conquest is incredible. If the legislative council of the nation had been from immemorial custom confined to the king and nobles, their sturdy maintenance of all their exclusive rights and advantages is evidence that they would not have willingly curtailed their power by so great an innovation. The

7 See Domesday-book in Essex, Norfolk, &c.

VIII.

BOOK pride of nobility would not have admitted unnoble

freeholders to have shared in the most honourable of its privileges; and least of all would the fierce and powerful Norman lords have placed the AngloSaxon freemen, whom they had conquered, and with whom they were long in jealous enmity and proud hatred, in the possession of such a right. But the total absence of any document or date, of the origin of the election of representatives by the freeholders of counties, is the strongest proof we can have that the custom has been immemorial, and long preceded the Norman conquest. The facts that such representatives have been always called knights of the shire, and that milites, or an order like those afterwards termed knights, were a part of the witena-gemot, befriend this deduction. Milites or knights were not the nobles of the country, though noblemen courted the military honour of the Anglo-Saxon knighthood. So many charters of the witena.gemots exist, signed by knights or milites, that either milites had a right as such to be a part of the council, or they were sent there as the representatives of their counties. The first supposition is supported by no law or practice, and is improbable from the number of milites in the country. The latter has been the ancient custom, without any known origin or limitary date.

To the citizens and burgesses of parliament analogous remarks are equally applicable. We may find no existing writ ordering their election earlier than the 23d year of Edward 1.8 ; but the loss of the preceding records is no proof of their non-existence, and ought never to have been confounded

8 Brady gives this writ of summons, Hist. Treat. Boroughs, p. 54.

IV.

with it. All the writs of summons of the Anglo- CHAP. Saxon nobles to the witena-gemot have been lost; yet, who would infer from their non-appearance that the nobles were not summoned to the gemot, and had no right to be there. The earliest summons of the peers to parliament is usually, but erroneously, said to be that of the 49 Hen. III. ; but is this a proof that they were not in parliament before ?' There is nothing in the earliest writ which has survived that marks such writ to have been the commencement of the custom. The truth seems to be, that this privilege has been, like the county representation, immemorial. Authentic history can assign to it no limit.

It is in this way that the privilege is mentioned by our most venerable writers. When our ancient Littleton mentions burghs, he describes them as the most ancient towns of England, and as possessed of this privilege of representation, without any remark that this great right was a novelty, or at that time of modern origin. His words are: “ The ancient towns called burghs are the most ancient cities that are in England; for those towns

! that are called cities were burghs in ancient times, and were called burghs. For of such ancient cities, called burghs, come the burgesses to parliament, when the king has summoned his parliament.” It appears to me that our venerable judge, when he

9 The error on this subject shows the absurdity of dating the origin of any part of the parliamentary representation from the first writ that has happened to survive. Dugdale, and from him Hume, and a stream of writers on this subject, state the summons of the peers of the 49 Hen. III. as the most ancient that exists; and yet Selden had noticed one twenty-three years earlier. There is one to the archbishop of York, 26 Henry III. It is Dors. Claus. 26 Henry III. Mem. 13.

VIII.

BOOK wrote this passage, considered the custom of send

ing burgesses as ancient as the burghs themselves. 10

The ancient words of the writ to the sheriffs, cited by Lord Coke, correspond with the preceding view of the subject. They do not order him to return burgesses from this or that particular burgh, to which the king or parliament had at some late period granted a right; but they direct him to send from every burgh in his county two burgesses"; every burgh, as if it had been the common public right of all burghs, and not a special privilege granted to any in particular. The language of the oldest writ yet found, 23 Ed. I., is precisely the same. 12

In the same manner our ancient lawyer Bracton speaks generally of the English laws, as having been made by the three estates of king, lords, and commons. It must be observed that he is not here speaking of new laws, but of the ancient law of the kingdom. “ It will not be absurd to call the English laws by the name of laws, although not written, since whatever shall have been justly defined and approved by the council and consent of the magnates, and the common assent of the republic, the authority of the king or prince preceding has the vigour of law."13 Here our un. written common law is derived from the concurring authority of the king, the great, and the common assent of the republic. This third branch of au

.

IV.

thority is evidently that which arose from the po- CHAP. pular representation.

Ina, in his introduction to his laws, mentions distinctly the three orders of the nation as assisting and concurring in their formation. — “My bishops and all my ealdormen, and the eldest witan of my people, and a great collection of God's servants."14 Here the nobles, the people, and the clergy, are distinctly recognised.

That in addition to the clergy and greater nobles, there were other members of the witena-gemot; that thegns or ministri lý, and milites, or a rank in the community, called afterwards knights, were among these other members; and that there were other persons there, who were neither clergy, nobles, knights, thegns nor ministri, and who being mentioned without designation, in an age when all were so tenacious of their rank, may be reasonably considered to have been of an inferior order, are facts proved by the expressions used in many AngloSaxon charters, and by the signatures to them.

A charter of Ethalbeld, in 736, is signed by the king, two bishops, two comites, a dux, an abbas, and by six persons without any note of their quality. 16

A charter of Ethelred, expressed to be made “with the consent and licence of my optimates and other fideles," is signed by the king, two archbishops, six bishops, four duces, six abbots, ten ministri, and by two without

A charter of Ethelwulph is signed by the king, archbishop, two duces, and twenty-three without a title. It is indorsed

any title. 17

14 Wilk. Leg. Sax. p. 14.
15 The Saxon word used to express minister is thegn. In Henry