The second opinion of Lord Coke’s to which allusion has already been made, is, that if an act mentions only that the king enacts, and the Lords assent, without naming the Commons, the omission cannot be supplied by any intendment. Lord Coke expressly says, if an act be penned, that “the king with the assent of the Lords,” or “with the assent of the Commons,” it is no act of Parliament, for three ought to assent to it, the King, the Lords, and the Commons; or otherwise it is not an act of Parliament; and by the record of the act it is expressed which of them gave their assent; and that excludes all other intendments that any other gave their assent. (Lord Coke, 8th Report, p. 20, b.) How dangerous it would be to decide on the validity of our statutes, on such ground, will be seen by a single instance. The act of the first of Edward the sixth against exporting horses without a licence, after the recital in the preamble, runs thus; “For remedy whereof, be it therefore enacted by our sovereign lord the king, and by the Commons in this present Parliament assembled, and by the authority of the same,”—the Lords being not once mentioned in the statute, which is accurately printed from the original act. Now it appears by the Lords’ Journals, (vol. 1. p. 303, a,) that this act had not only the assent of the House of Lords, but that it had its origin in that House, where it passed unanimously, (p. 306, a.) was returned from the Commons with a proviso, which was agreed to by the Lords, (p. 312, a.) and is in the Journals among the acts passed that session. (p. 313, a.) There has not been found in the Records, the slightest foundation for an opinion, that there was any election of representatives of the Commons earlier than the 49th of Henry the third, 1265, except in the entry respecting the borough of St. Alban’s, so often referred to by different writers. It is, however, certain that those who held _in capite_ of the king, were a necessary part of the great council, as early as king John’s time, when aids and escuage were to be granted to the sovereign. In the 52d of Henry the third, 1268, a parliament, or more properly a great council, of Barons only, was held at Marlborough, where the great charter was confirmed. The members of this parliament or council were such of the great Barons and Tenants _in capite_, as the king pleased to summon thereto. King Edward the first, at Easter, 1276, held a parliament at Westminster, of Archbishops, Bishops, Abbots, Priors, Earls, Barons, and _Commons_, wherein many excellent laws were made, called the Statutes of Westminster the first. It is proper to mention that the _Commons_ here spoken of, were not Knights of shires, or Burgesses, but the smaller Tenants who held in chief of the king, or Tenants _in capite_.