we have found in it errors that require correction, and defects that ought to be supplied. Before it be too late, we are desirous to submit the result of our examination to the Committee. It is yet time for them to reconsider their work, and give it a thorough and careful revision. We confess we should be con ́cerned, if it were to go down to posterity, in its present state, as the deliberate judgment of one branch of the Legislature on the antient constitution of their country.

We must in candour, however, begin by acknowledging our obligations to the Committee for their researches. We have frequently profited by their remarks, and learned to hesitate from their doubts. We agree with them in their conclusion, that the present constitution of the English legislature is not older than the thirteenth century. We are ready to allow, that the supreme government of England was, before that time, in an exceedingly unsettled and indetermined state; and, in admitting that there is little similitude between our present legislature and that which existed before the time of Henry III. and Edward I., we acknowledge the difficulty of ascertaining then, or by what authority, the change was effected. We owe this further praise to the Committee, that their inquiries appear to have been conducted with every disposition to fairness and impartiality. We have not found in their Report any undue bias in favour of the Crown, and have been seldom offended with any of the ancient Tory prejudices against popular claims. When they have occasion to notice an act of doubtful authority on the part of the King, there is no attempt to mislead or deceive us, by saying it was done in virtue of the inherent prerogative of the Crown. When they relate the efforts of our forefathers to limit or resist the authority of the monarch, we are not deafened with exclamations against the usurpations of fac→ tion on his sacred and inalienable rights. Our early constitu→ tion is represented as irregular and unsettled, but not as arbitrary and despotical. We are not disgusted with having every vile and tyrannical act of our kings held up to us as samples of the government under which our ancestors were contented to live. A supreme authority, distinct from prerogative, is unequivocally recognised as subsisting in the worst of times, and under the most absolute of our princes. It is admitted, that, from powers irregularly and, perhaps, unconstitutionally assumed by the Crown, many parts of our present frame of government derive their origin. But the Committee distinctly acknowledge, that at all times a supreme authority existed ir England, different from prerogative. Their view of the various documents to which they have had recourse, has

tended to convince them, that, whatever may have happened in practice, the prince on the throne was at no time 'considered as constitutionally above the law; and that, to use the language of an eminent writer, Sir John Fortescue, Chief Justice of the King's Bench in the reign of Henry the Sixth, and afterwards his Chancellor when an exile in France, the government of the King of England was not simply regal, but political, and that the maxim, quod Principi "placeret, legis habet vigorem, was never a general maxim of the 'constitutional law of England. But though such was proba< bly in early, as well as in later times, the theory of the constitution of the English government, in practice the exertions of power by the Crown often went beyond their legal bounds; and there did not always exist that ready and constant control which now keeps the constitutional system in its true order. That control has been principally produced, and made effectual by the necessary expenses of the State, which gradually exceeded, and at length vastly exceeded, the hereditary revenue of the Crown; so that the government of the country 'could not be carried on by the King, without frequent, and, latterly, without constant recourse to the authority of the Legislature to provide the necessary supply.' We have quoted these passages at length, as a favourable specimen of the sentiments, as well as of the circumstantial and full, though somewhat redundant, style of the Lords' Committees. In their conclusions contained in the preceding paragraph, we entirely concur.. We have expressed the same opinions of our ancient government in one of our former Numbers, ‡ and had recourse to the same view of the subject, in order to explain how it happened, in practice, so frequently and so materially to vary from its theory.

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The Committee begin with the Norman conquest. They own, that the Saxon laws, and Saxon institutions for the administration of justice, were preserved, with some alterations, by. the Conqueror; and they are persuaded, that though the Saxon legislature may have been altered at the Conquest, the spirit of • its free institutions, after a lapse of years, so far prevailed as 'to force their way into the formation of what has been since ⚫ called the House of Commons. But, notwithstanding these admissions, they have renounced all inquiry into Saxon times, because they apprehend no authentic documents remain, from which the constitution of the Saxon legislature can be inferred;' and have therefore abandoned all hope of illustrating

No. 52, pp. 363-367.

their subject by referring to Saxon institutions, except as the general spirit of such of those institutions as clearly remained after the Norman conquest, may have influenced the formation of the Legislature' in the times of Henry III. and Edward I.

With all due respect for the Committee, we are not satisfied with these reasons. We do not see how the influence of Saxon institutions on the formation of the House of Commons can be properly estimated, without a preliminary inquiry into the nature of these institutions themselves. We cannot understand, for instance, how the influence of the County Courts, in giving a peculiar character to the representation of our landed interest, can be justly appreciated, without knowing the composition of these Courts in Saxon times, and without tracing them after the Conquest, and observing the different uses to which they were applied, till the period when our present county representation was fully established. We are as little able to comprehend, how the Committee can judge of the probability of citizens and burgesses having been, occasionally at least, called to the great Council of the nation, in times posterior to the Conquest, without knowing the condition of cities and boroughs before the arrival of the Normans, and without some inquiry into the importance and privileges they possessed under the Saxons, and into the rank and consequence then enjoyed by their inhabitants. It may be true, that we cannot now ascertain with certainty who were the constituent members of the Saxon Witenagemote; but we know something of the powers enjoyed by that assembly, and of the functions it exercised: And, if we are not mistaken, the want of that knowledge has led the Committee into an error of some importance at the very commencement of their inquiry.

Every one has heard of the Courts de more, held under our Norman Kings at the three great festivals of Christmas, Easter, and Whitsuntide. These Courts have been hitherto regarded as common Councils of the realm. The Committee consider them to have been mere Councils of State and Courts of Justice, attended by none but Judges and Privy Councillors. When a common Council of the realm was to be convened, they tell us it was usually assembled at the same time with one of these Courts. But an ordinary Court de more they regard as nothing but a meeting of the select Council of State, composed of the confidential advisers of the Crown, and of the supreme Court of Justice, which, they insinuate, was in those days regularly adjourned from time to time, in the same manner as is practised at this 6 day in the Courts of Westminster Hall.'

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If this be a correct view of the ancient Courts de more, the contemporary historians, who speak of them, have represented them in colours very unlike the truth. The Saxon Annalist, who flourished under the Conqueror, and lived at his court, describes what have been called the Courts de more, in the following manner. ، Thrice a year did the King wear his crown, when he was in England; in Easter he wore it at Winchester; in Whitsuntide at Westminster; and in Midwinter at Gloucester: And then were with him all the great men over all England; Archbishops and Bishops, Abbots and Earls, Thegns and Cnihts.’* It will hardly be said, that this description suits a convocation of mere Judges and Cabinet Ministers. The account of Malmsbury, who lived under Henry I. and Stephen, is not more favourable to the hypothesis of the Committee. After informing his readers that William, when in England, always kept his Christmas at Gloucester, his Easter at Winchester, and his Whitsuntide at Westminster, the historian adds, omnes eò cujuscunque professionis magnates regium edictum accersebat, ut exterarum gentium legati speciem multitudinis apparatumque deliciarum mirarentur. + Every one knows, that the term Magnates is one of the expressions used to describe the Members of the Common Council; and the multitude said to have been assembled on these occasions, is hardly reconcileable with a meeting of none but Judges and Cabinet Councillors. If from these general descriptions of the Courts de more we pass to particular accounts of these assemblies, we shall have still less reason to adopt the sentiments of the Committee. In the 19th of William I., says Henry of Huntingdon, the Conqueror held his Court de more at Gloucester. The historian does not inform us of what persons it was composed; but the Saxon Chronicle tells us, it was attended by his Witanthe expression usually employed in that venerable monument of our history to designate the Common Council of the realm. It happened once upon a time, says Eadmer, in his account of Rufus, cum gratiâ dominicæ nativitatis omnes regni primores ad curiam regis, pro more, venissent. ‡ Anselm, says the same historian, having gone to Court on a Christmas festival, hilariter a rege totaque regni nobilitate suscipitur. In Christmas 1109, regnum Angliæ ad Curiam Regis Lundoniæ pro more convenit. ** We leave our readers to decide, whether these descriptions of

* Chron. Saxon. 190.

§ H. Hunt. 212. f Eadmer, 15. ** Ib. 105.

+ W. Malinsb. ap. Savile, p. 112.

|| Chron. Saxon, 186.

¶ Eadmer, 21.

the Courts de more agree with the theory of the Lords' Committees.

One error frequently leads to another. Having settled that the Courts de more were mere assemblies of Judges and Councillors of State, the Committee were led to the supposition, that immediately after the Conquest, a Supreme Court of Judicature, distinct from the Legislature, was erected by the Conqueror; and whenever the term Curia Regis occurs in our ancient historians or records, they interpret it to mean, not the Legislature or Common Council of the realm, but a Court of Justice sitting in the King's palace, the members of which were appointed and removed at his pleasure. It is important,' they observe, always to bear in mind that the word Curia Regis did not denote originally a Legislative Assembly, but only the King's Select Council and Supreme Court of Justice.' This view of our ancient government we apprehend to be altogether

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erroneous.

The phrase Curia Regis signified originally the King's palace or place of residence, or rather the hall, court, or chamber of his palace, where he convened his subjects for the discussion and determination of public affairs. It was afterwards used to express the assembly so convened; and it is only from the context, or from extraneous sources of information, that we can collect, what was the description of persons assembled on any particular occasion, what authority they possessed, or for what purposes they were brought together. Now, so far is it from being true, that the term Curia Regis, in the time of the Conqueror and his immediate successors, meant the King's High Court of Justice, as distinguished from the Legislature, that it is doubtful whether such a court then existed.

The term Curia Regis frequently occurs in the time of the Conqueror and his sons. It is sometimes used for the King's court or residence-more frequently for meetings there convened-but never, as far as we have remarked, is it employed in the limited acceptation given to it by the Committee. It is applied indifferently to all public assemblies held in his palace, whether for legislative or judicial purposes, or merely as a council of advice in the ordinary administration of his government. Nor is there any reason to believe, that, when used to express a meeting convened solely or principally for judicial business, it designated a different description of persons from those who consti

The term Curia Regis is supposed to have been introduced by the Normans; but, in its primitive signification, it is repeatedly used by Asser in his Life of Alfred, pp. 5. 19.