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POWERS WHICH RULE SOCIETY.

LECTURE IV.

The English Parliament in the earliest times of the Anglo-Norman Monarchy.-Different names given to the King's Great Council.Its characteristics. Its constitution.-Opinions of Whigs and Tories on this subject.

You have already seen what was the influence of the Norman Conquest on the political destinies of England; and what was the position in which the two peoples were placed by it. They did not unite, nor did they mutually destroy one another. They lived in a state of national and political conflict, the one people being invested with a large power of government, while the other was far from being destitute of the means of resistance. We have now to enquire what were those institutions upon which this struggie was founded. We shall not concern ourselves with all the institutions which then existed in society: we are now looking for the sources of representative government, and are therefore at present only interested in those in which the germs of a representative system existed.

In order to determine with some precision the object of our study, it will be necessary to form some idea of the different functions of the power which is applied to the government of society. In the foremost rank is presented the legislative power, which imposes rules and obligations on the entire mass of society and on the executive power itself. Next appears the executive power, which takes the daily oversight of the general business of society-war, peace, raising of men and of taxes. Then the judicial power, which adjusts matters of private interest according to laws previously established. Lastly, the administrative power, charged, under its own responsibility, with the duty of regulating matters which cannot be anticipated and provided for by any general laws.

During three centuries these powers have tended to

DIVISION OF POWERS IN ENGLAND.

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centralization in France; so much so, that if we would study the government of the country we must attend to them all, for they were all united and limited to the same individuals. Richelieu, Louis XIV, the Revolution, Napoleon, though in different positions, seem to have inherited the same projects and moved in the same direction. Such has not been the case in England. The administrative power there, for example, is to the present time divided and subdivided; it belongs either to those who are themselves interested in its movements, or to local magistrates, independent of the central power of the State, and forming no corporation among themselves. The judicial power itself is divided. It was so to some extent, through another and stronger cause, in the earlier times of England's social life, as in all societies which have made but small advancement. Different powers are then not only distributed but commingled. The legislative power is no more central than others: its functions are continually usurped by local powers. Judicial power is almost entirely local. Centralization commences with the executive power properly so called, and this for a long time remains the only one in which any centralizing tendency is found. The proof of this is furnished by the feudal system, when almost all powers-those connected with justice, militia, taxes, &c. were local, although the feudal hierarchy had at its head the king, and the assembly of the most important possessors of fiefs.

In this distribution and confusion of powers at the period we are considering, the institutions which we have especially to study in order to find the origin of representative government, are those which were central, that is to say, the Parliament and the king. On the Continent, centralization has resulted from an absolute power which has broken up and absorbed all local powers. In England, on the other hand, local powers have subsisted after a thousand vicissitudes, while they have increasingly regulated and defined their own action. A central government has emanated from them by degrees it has progressively formed and extended itself. We shall trace this formation step by step, and shall only study local institutions as they relate to this one fact; and we shall see that this circumstance has been the principal cause f the establishment of a free government in England.

U

290

THE ANGLO-NORMAN PARLIAMENT.

It is easily presumed that, in such a state of society, no other central institution, properly so called, existed for a long time, except royalty. There are certain maxims, certain habits of central political action, but no constant rule: the facts are varied and contradictory. Men of considerable influence, almost sovereigns in their own domains, are much less desirous of any participation in the central power; they rather attempt to defend themselves from it as often as it infringes upon their interests, than endeavour at all to control it beforehand, and to act upon it in a general manner. As in France, at the end of the Carlovingian dynasty, a king can hardly be met with, so in England, under the first Norman kings, a Parliament can hardly be found. That which existed bearing any resemblance to one differs but little from the Saxon Wittenagemot in the form which belonged to it immediately before the Conquest, or from the Council of Barons in Normandy. We find in the works of historians, and in charters, the following names: Curia de more, Curia regis, Concilium, Magnum Concilium, Commune Concilium, Concilium regni. But these are to be regarded only as vague expressions which designate assemblies, without giving any clue by which to determine their constitution and their power. Hale sees in them " a Parliament as complete and as real as has ever been held in England." Carte and Brady see in them only tribunals, privy councils dependent upon the king, or pompous gatherings for the celebration of certain solemnities. It will be better for us to examine each of these words, and seek for the actual facts which correspond to them in the period to which our attention is directed.

According to the Tories in general, the words Curia de more, or Concilium, Curia regis, Magnum or Commune Concilium, represent different assemblies. Concilium is a privy council composed of men chosen by the king to serve him in the government. This Concilium was at the same time Curia regis, a tribunal to judge of matters brought before the king, and presided over by him, or, in his absence, by the chief justice. It was called also Curia de more, because its assemblies were held, according to ancient usage, three times in the course of the year, at Easter, Whitsuntide, and Christmas, and was even adjourned regularly from one

THE CURIA DE MORE.

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period to another, as is done to the present day by the Courts at Westminster.

According to the Whigs, all these words originally desig nated, and continued to the reign of Henry II. (1154-1189) to designate the general assembly of the nobles of the kingdom, who necessarily assembled before the king in order to try cases, to make laws, and to give their concurrence to the government.

The first of these opinions puts too great a restraint upon the meaning of the words; the second generalizes too much on isolated facts, and assigns to them an importance which does not belong to them.

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The

Curia de more, Curia regis, signified originally neither the merely privy council of the king nor his tribunal; it was evidently a grand assembly at which all the nobles of the kingdom were present, either to treat of the affairs of State, or to assist the king in the administration of justice. king," says the Saxon Chronicle, Iwas wont to wear his crown three times a year-at Easter in Winchester; at Whitsuntide in Westminster; at Christmas in Gloucester; and then there were present with him all the great men of all England, archbishops and bishops, abbots and counts, thanes and knights."- -"A royal ediet," says William of Malmesbury, "called to the Curia de more all the nobles of every grade, in order that those sent from foreign countries might be struck with the magnificence of the company, and with the splendour of the festivities.". "Under William Rufus," says Eadmer, "all the nobles of the kingdom came, according to usage, to the king's court, on the day of our Saviour's nativity." Anselm, Archbishop of Canterbury, having presented himself ad Curiam pro more, "was received with joy by the king and all the nobility of the kingdom." In 1109, at Christmas, "the kingdom of England assembled at London, at the court of the king, according to custom."

Curia regis designates generally the place of the king's residence, and by an extension of meaning the assembly held in that place; this assembly was general, and not a mere gathering of permanent judges. William I., summoning the Dukes of Norfolk and Hereford to attend and receive judgment in Curia regis, "convoked," says Ordericus

Vitalis, "all the nobility to his court." Several judicial assemblies held under William Rufus, are called ferme totius regni nobilitas, totius regni adunatio. Facts and expressions of the same kind are to be found in documents of the time of Stephen. Even under Henry II., when the Court of King's Bench had already become a distinct tribunal, the expression Curia regis is applied to the general assembly collected for the transaction of public business. Henry convoked his Curia at Bermondsey, cum principibus suis de statú regni et pace reformanda tractans. The second of the Constitutions of Clarendon orders all the immediate vassals of the crown interesse judiciis curia regis. The great Council of Northampton, which passed judgment in the complaints of the crown against Becket, is called Curia regis; it comprised not only the bishops, counts and barons, but besides these, the sheriffs and the barons secundæ dignitatis. Lastly, under Richard I., the general assembly of the nobles of the kingdom is still called Curia regis in the trial of the Archbishop of York: "On this occasion there were present the Earl of Morton and almost all the bishops, earls and barons of the kingdom."

A little consideration will show us the inferences to be drawn from all these facts. At this period the legislative and judicial powers were not separated; both of them belonged to the assembly of the nobles, as they had previously belonged to the Wittenagemot of the Saxons. When deliberations with reference to a subject or personage of importance were required, this was the assembly that judged, as it interposed on all great occasions in the government. Thus all these different expressions denote originally the same assembly, composed of the nobles of the kingdom who were called to bear their share in the government.

How did they interpose? What power, what functions belonged to them ?-these are questions which were futile at that time; for no one then had determinate functions, but everything was decided according to fact and necessity. The facts are these: "It was the ancient usage that the nobles of England should at Christmas time meet at the king's court, either to celebrate the festival, or to pay their respects to the king, or to deliberate concerning the affairs of the kingdom." We find that these assemblies were occupied in