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rectum,' read rectum.'
' unanimitas,' read unanimiter.'
'writs,' read aids.'
'their tenures made them liable,
they were liable by their tenures.'
'banghers, read burghers.'
ART. I. Report from the Lords' Committees appointed to search the Journals of the House, Rolls of Parliament, and other Records and Documents, for all matters touching the Dignity of a Peer of the Realm, &c. &c. Folio. pp. 448. (Ordered to be printed 25th May, 1820.)
N July 1814, a petition from Lewis Dymoke, lord of the manor of Scrivelsby, claiming the barony of Marmyon, as a feudal honour incident to the possession of the manor of Scrivelsby, was referred to the House of Lords. Evidence was heard before the Committee of Privileges in support of the allegations of this petition; but doubts having arisen with respect to the grounds of the claim, certain Lords' Committees were appointed, on the 3d of July 1815, to search the Journals of the House, the rolls of Parliament, and other records and documents, for all matters touching the dignity of a Peer of the realm, which may appear to the Committee to be material for the information of the House on claims of such dig nity; and to report the same to the House.' The same Lords' Committees, we believe, have been reappointed in every succeeding Session of Parliament, and have continued their investigations ever since. In June 1816, they printed a short Report, stating the nature and object of the inquiries in which they were engaged: And in May 1820 they made a second Report, infinitely more voluminous than the first, containing the results of an elaborate inquiry into the constitution of the supreme legislature of England, from the Conquest to the present time. On this Report we intend to offer a few remarks.
We trust no apology is necessary for commenting on a work, which, though printed for the use of the House of Lords, has not yet been published. On examining the Report, we think VOL. XXXV. No. 69.
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 concerned, 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 when, 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 faction on his sacred and inalienable rights. Our early constitution 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 in 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 probably 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 con'trol 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.
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 day in the Courts of Westminster Hall.'