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tional

a

CHAP. composition and consistency of authority do not seem I.

to have belonged to the earlier councils of the realm. 1066-1215

On certain regularly-recurring occasions the Norman The Na

kings were in the habit of gathering round them their Council under the vassals. The king wore his crown, his greater barons Norman kings.

appeared in all their state, with long trains of attendants, who heightened the splendour of their lords. Such an assembly was calculated to overawe subject people, and to inspire respect in strangers who visited what was then perhaps the most splendid court

of Europe. Discussions At such times state business was sometimes disin the Council.

cussed if the king willed it; sometimes there was no discussion; if it appeared inconvenient to hold the assembly, there was no scruple in omitting it altogether. The subjects discussed were only those which the king chose to bring forward ; with him rested all initiative ; until Stephens reign there seem to be no records of such discussions as could have led

to a division. The Coun

Next to the object of displaying a somewhat barcil as a

baric magnificence, the purpose of these assemblies Court of Justice. was primarily judicial. But justice resided only in

the king, or in those to whom he delegated his authority ; there is little trace of a great feudal court of justice ; the tendency was more and more to look on the king alone as holder of the scales. The prejudices of the barons in favour of judgment by their peers were satisfied so long as the Curia and the Exchequer were recruited from their ranks. Although important trials were sometimes carried on before the Great

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Stubbs, Const. Hist. i. 357. 2 Gneist, Verw. i. 241 seq.

I.

:

Council, yet the permanent courts, and commissions CHAP. named at will by the king, usurped more and more

1066—1215 its claim to judicial functions. Further, there is no

Legislative trace of any constitutional authority which might be power of supposed to be conferred on legislative acts by the the counfact that they were made by the king in council. But here a different tendency at once appears. The moral force which such acts would gain if backed by the magnates of the realm was too evident to be neglected. Thus the heading of the so-called Laws of under WilWilliam I, which in their oldest extant form are said by Professor Stubbs to date from the reign of Henry I, states that the said laws were made by the Conqueror, with his chief men,' although the terms of the statutes themselves hint at nothing but an act of the king's sovereign will.? So too the charter issued by Henry I on his accession speaks of the laws of Edward having been granted by his father, with additions made by him, 'with the counsel of his barons;' and in the Act separating the ecclesiastical and civil jurisdictions, the one authentic monument of Williams jurisprudence," the king declares it to be done in common council and by counsel of the higher clergy and all the great men of the realm.'

Whatever argument may be deduced on behalf of under Wilparliamentary authority from these enactments of the Conqueror is considerably weakened by the fact that there are said to be no traces of legislative assemblies under his successor. On the other hand, the

liam II :

! The form given in Fæd. i. 1 is said by the same author to be a fabrication of the 13th century.

? Volo, interdicimus, hoc præcipio et volo, ego prohibeo, and the like are the terms used.-Stubbs, Sel. Chart. 8o. • Stubbs, Const. Hist. i. 213.

+ Lords' Report i. 36.

CHAP.

I.

The National Council under

charter of Henry I attributes his coronation to the

mercy of God and the common counsel of the barons 1066—1215 of all England ;' and it is just this right of corona

tion and the form of election, still kept up, which seem

more than anything else to have preserved the notion Henry I : of constitutional rights from complete oblivion. The

consent of the barons' is stated to have been given to the kings tenure of forests; while concessions were made by the kings free gift,' and assemblies summoned by royal authority and power." Florence of Worcester declares the queen to have acted in Henry's absence with common counsel of the great men,' but the vague use of terms by the chroniclers renders such testimony very unsafe. It is evident however that ) the theory of assent to legislation was partially recognised, even if it be true that Henry I never called

together a legislative assembly except at his accesunder sion. Of Stephens reign it is scarcely necessary to Stephen.

speak. His election is said in his charter to have been made by assent of clergy and people;' we hear of a General Council in 1136, at which the bestowal of temporalities on a bishop was made in the hearing and with the acclamation of certain vassals; and at the end of his reign a convention of bishops and other chief men of the kingdom'swore to the terms of peace made between Stephen and his successor. But except on these and a few similar occasions com

stitutionalism was dormant. Influence There is the same scarcity of proof that the Great tional Councils had any real weight in the matter of taxation Council in

under the Norman kings. William the Conqueror under the and his sons, owing to their immense revenues, were Norman kings :

Fæd, i. 8. 2 Cf. the Lords' Report on this head.

of the Na

taxation

СНАР.

I.

increased

tolerably independent of the assent of their tenantsin-chief, and would seldom have required to tax them beyond the regular feudal aids. Personal service took 1066-1215 the place of a war budget ; the taxation of socage tenants, the tallage exacted from towns and other royal demesne, were limited by nothing but the kings will and the length of the purses to be emptied. The Conqueror was lord of both nationalities, and used both systems—the feudal, which he brought with him and improved; the native, which he found and adapted : he needed the aid of neither party to tax the other, and was thus independent of both. The royal power in this respect was somewhat limited, or somewhat at least reduced from the dimensions to which it had under grown under William II, by the charter of Henry I ;

Henry I, but even here the limitation is the kings own gift.' The same king speaks of an aid which the barons have given me;' but not much stress can be laid on the use of such a word to imply that the barons were entitled to withhold the gun. We find no instance in which the right to a share in the taxation is stated ; no parliamentary opposition to the king on this head or that of legislation, in the declaration of war or the regulation of the Church, appears in the records preserved to us. The difficulties to be met by the king are such as spring from the isolated resistance of feudal barons, not from a Parliament with traditional rights to defend. The Peers' Committee thinks but hardly that the consent of military tenants-in-chief was, nominal. considered necessary in the case of extraordinary takation ; but the theory, if it existed, seems to have gone no further than this, that the levying of such

Stubbs, Const. Hist. i. 370. Anselm was not supported by the Church.

more than

I.

CHAP. , taxes without the form of approval by a council was

held to be in some way or other unjust. As to legis1066—1215, lation, the rights of the baronage seem to have been Slight influence of confined to that of being present and supporting, but the National

not opposing, the kings acts. New laws, properly Council so called, during this period there were none; royal under the Norman edicts and charters, of so fleeting a character that it kings.

seems to have been considered needful to confirm them at the beginning of each reign, supplied their place. Sir John Fortescue says, some three centuries later, that it never was a maxim in England that 'that which the prince wills has the force of law;' but it is very much to be doubted whether it did not hold

good during the first century after the Conquest. Composi

It is very hard to decide, owing to the constant tion of the variation of terms, what were the component parts of National Council a Great Council under the Norman kings. The eleNorman ments and size of the councils vary according to kings.

circumstances, time, and place, from the small councils, or rather courts, consisting of the higher officers of the realm and the regular attendants of royalty, with whose aid the king transacted the ordinary business of government, to the great assemblies of all feudal tenants, whether tenants-in-chief or subtenants, possibly of the whole body of landowners, such as that, of 1086, at which the Domesday survey was ordained. Such great assemblies were however very rare, and even those that occurred can hardly have been attended by all who might have been expected to be present. The ordinary Great Council appears to have been attended by archbishops, bishops, abbots, earls, and persons called, sometimes alone, and sometimes in conjunction with the rest of the proceres or magnates,

under the

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