that of
his predecessor Athelstan. But the following year we have another writ
and another inquest; the former reciting that the second return had been
unduly and fraudulently made; and the latter expressly contradicting the
previous inquest in many points, and especially finding no proof of
Athelstan's supposed charter. Comparing the various parts of this
business, we shall probably be induced to agree with Willis, that it was
but an attempt of the inhabitants of Barnstaple to withdraw themselves
from the jurisdiction of their lord. For the right of returning
burgesses, though it is the main point of our inquiries, was by no means
the most prominent part of their petition, which rather went to
establish some civil privileges of devising their tenements and electing
their own mayor. The first and fairest return finds only that they were
accustomed to send members to parliament, which an usage of fifty years
(from 23 E. I. to 18 E. III.) was fully sufficient to establish, without
searching into more remote antiquity.[73]

It has, however, probably occurred to the reader of these two cases, St.
Albans and Barnstaple, that the representation of the commons in
parliament was not treated as a novelty, even in times little posterior
to those in which we have been supposing it to have originated. In this
consists, I think, the sole strength of the opposite argument. An act in
the fifth year of Richard II. declares that, if any sheriff shall leave
out of his returns any cities or boroughs which be bound and of old
times were wont to come to the parliament, he shall be punished as was
accustomed to be done in the like case in time past.[74] In the
memorable assertion of legislative right by the commons in the second of
Henry V. (which will be quoted hereafter) they affirm that "the commune
of the land is, _and ever has been_, a member of parliament."[75] And
the consenting suffrage of our older law-books must be placed in the
same scale. The first gainsayers, I think, were Camden and Sir Henry
Spelman, who, upon probing the antiquities of our constitution somewhat
more exactly than their predecessors, declared that they could find no
signs of the commons in parliament till the forty-ninth of Henry III.
Prynne, some years afterwards, with much vigour and learning, maintained
the same argument, and Brady completed the victory. But the current
doctrine of Westminster Hall, and still more of the two chambers of
parliament, was cert