In the eleventh and twelfth centuries, “those Saxon swine” was the
usual appellation employed by a Norman knight when speaking of the
people of the land; and, “Do you take me for an Englishman?” his form
of indignant disclaimer. In the thirteenth, we find both Normans and
Saxons agreed in a league to expel “all foreigners.” And thus it was
that, at last, “in the thirteenth century, the great English people
was formed.”[19] A nation more warlike and more enterprising than the
Saxons, and more fond of home life and of personal liberty than the
Normans, gradually appeared. It was in Henry’s reign that the English
tongue, and the English desire for laws suited for free men, began to
be seen and heard: but that weak though well‐meaning sovereign was not
a leader or a ruler who could direct his subjects in such a path as
this.
The order and the governance of law scarcely existed in Henry’s reign.
When the sovereign needed corn or wine, or any other commodity, his
usual course was to seize it. On one occasion he angrily asked of his
earl marshal, “Cannot I send and seize your corn, and thresh and sell
it?” “And cannot I send you the heads of the threshers?” was the earl’s
angry reply.
One of the judges, accused of corrupt practices, came to court to
defend himself, attended by armed friends, one of whom offered wager of
battle. The king, exceedingly enraged, publicly declared, that “if any
one would kill Henry of Bath, (the judge,) he should have pardon for
the crime!” When even the bench of justice was thus occupied by violent
and corrupt men, it is no wonder that we hear that “the whole county of
Hampshire swarmed with felons and murderers,” or to find that “the king
himself was obliged to hold a court of justice at Winchester, trying
and sentencing the offenders, many of whom were wealthy, and some of
them his own servants.”
Several years after this, we find one of the greatest nobles in the
land setting an example of disorder. Matthew Paris narrates how, “in
consequence of some hasty words which passed between them, John de
Warenne, earl of Surrey, slew with his own hand, in Westminster Hall,
Alan de la Zouch, the king’s justiciary.” Probably, had Henry been at
that time without assistance, this outrage, committed by so potent a
nobleman, would have escaped retribution; but the prince was now at
his right hand. Collecting a sufficient force, Edward pursued the earl
to Reigate, besieged his castle, brought him to London a prisoner,
tried him, and only spared his life, after much deliberation, in
consideration of an enormous fine, equal to £100,000 of our present
money.
Nor was violence, even of the extremest kind, a privilege of the nobles
only. In July, 1263, during the excitement of “the Barons’ war,” queen
Eleanor desired to leave her residence in the Tower of London, and to
remove to Windsor Castle; but as her barge approached London Bridge,
she found that it was occupied by a crowd of earl Simon’s adherents,
who assailed her with cries of the grossest abuse, among which, “Drown
the witch!” was one of the mildest. Huge stones, as well as all kinds
of filth, were hurled at the barge, and the queen was glad to accept
of the protection of the mayor, who conveyed her to the house of the
bishop of London. Not many months after, when a body of these Londoners
took part in the battle of Lewes, prince Edward rejoiced to avenge
these insults, and to drive them in confusion at the spear’s point off
the field.
But more than ten years had passed since these calamitous times, and
most of those years had been spent in peace. No voices but those of
acclamation now greeted Edward and his queen in their progress through
the metropolis; and we may easily believe, without any violent stretch
of the imagination, that among the London citizens who partook of
the coronation‐banquet in 1274, there were many who, in the rawness
of their youth, had crowded London Bridge to cast stones at Edward’s
mother, and had fled before his vehement charge on the downs at Lewes
in 1264.
Such was the realm of England, and such was its state and condition,
over which Edward was now called to rule. It needed such a regulator,
such an organizer; and he, perhaps, could hardly have found anywhere a
better raw material out of which to build up a nation.
To him, in some measure, we owe the production and the formation of the
men who fought and conquered at Crécy, Poictiers, and Agincourt; but
we should be lothe to indicate this as his chief glory. We deem the
work performed in his reign in establishing law, and in giving England
a free legislature, to have been far more noble, far more glorious,
than the achievement of brilliant but barren victories on distant
battle‐fields.
England needed, most of all, at that peculiar conjuncture, precisely
what, in Edward, God gave to her, “a legislative mind.” The king seems
to have entirely appreciated the necessities and the difficulties
of his position; and to have applied himself to the great task, of
bringing everything into order, and of establishing the dominion of
wise and equitable laws.
At the same time we must not forget, that such a work, and one
embracing such a variety of details, could not have been performed by
any single mind or single hand. Edward must have been aided by one or
more of the most sound and competent of advisers. We cannot doubt that
in Robert Burnel he had found such an assistant. And it is, perhaps,
the best proof of the perfect unity and harmony which always existed
between the king and his wise and able chancellor, that we find it
difficult to separate the one from the other. We cannot tell when the
king himself speaks, and when we are listening to his chancellor. We
find, indeed, sometimes, language so evidently personal, as to make
us feel that it must have been the king’s own; but at other times we
seem to hear the great lawyer, the jurist, who is fitly interpreting
his master’s will. Take, for instance, that noble opening of Edward’s
reign, which we find in the preamble of the first statute of his first
parliament:—
“Because our lord the king hath great desire to redress the state of
the realm in such things as require amendment, for the common profit
of the holy church and of the realm; and because the state of the holy
church hath been evil kept, and the people otherwise entreated than
they ought to be; and the peace less kept, and the laws less used, and
offenders less punished than they ought to be—the king hath ordained by
his council, and by the assent of archbishops, bishops, earls, barons,
and all the commonalty of the realm, these acts under written, which he
intendeth to be necessary and profitable to the whole realm.”
We cannot doubt that this high and kingly purpose was truly Edward’s;
but we may with equal reason believe, that this right royal declaration
came immediately from the pen of Robert Burnel.
There is, however, another feature of this reign which ought never to
be overlooked. To frame good laws is a great merit in a ruler; but it
is a still higher merit to devise and to create a legislature. And
this is, in fact, the principal achievement of this sagacious and
high‐minded sovereign.
Until his time the nation, at least for centuries, had known no such
thing as a law‐making, still less a representative, body. Under the
Norman kings, from A.D. 1066 to 1216, every now and then, “great
councils” were held. The military despot who sat upon the throne, often
found it convenient and necessary to summon together his barons, the
great captains of his Norman soldiery, to ask an aid or contribution
from them. But nothing like the construction of a law is ever heard of
in these assemblies. At last, towards the end of the reign of John,
“Magna Charta” is extracted from him; but this is not so much a statute
as a treaty, dictated at the sword’s point by his armed barons.
Then followed the fifty‐six years of Henry’s reign. In the first forty
years of this reign, several “great councils” were held, usually, as
in Norman times, to consult about “granting the king an aid.” Once
in 1236, we find “The provisions of Merton,” which commences “It was
provided in the court of our lord the king.” In the same year we find a
“royal ordinance” concerning Ireland; and twenty years later, in 1256,
“a provision for leap year,” also a “royal ordinance.”
About this time the chroniclers begin to borrow the term “parliament”
from France, and we hear that “a parliament was held at Oxford,” at
which the barons dictated to the king certain “provisions,” which were
afterwards cancelled and set aside by king Louis of France.
Seven years after this, earl Simon, in the king’s name, summonses a
meeting in Westminster, and, as many of the nobles kept aloof from
him, so that only five earls and seventeen barons were called to this
“concilium,” he orders the sheriffs to send knights from the counties,
and burgesses from certain towns, so as to form a sufficiently numerous
body. But the earl’s object was merely to dictate certain terms to the
king. No such thought as that of a legislature—an assembly for agreeing
upon necessary laws—is anywhere to be perceived.
After the death of earl Simon, we hear of “a concilium” at Kenilworth;
which, like earl Simon’s parliament, is only a council for agreeing
upon certain terms, between the king on the one part and the barons on
the other. These terms are embodied in “the Dictum of Kenilworth.”
But at last the realm is quieted; king Henry is once more at peace
upon his throne, and his son, now arrived at the full manhood of his
twenty‐eighth year, is naturally the guide as well as the protector of
his weak though well‐meaning father. And now, in the year 1267, all
enemies and all perils having vanished, and the king and the prince
being left to their own free will, we hear, doubtless from Edward’s
lips, words, which for two centuries at least, had never been used
in this realm of England. The first document we possess, bearing the
name of a “Statute,” is “the Statute of Marlborough,” and of this, the
opening sentences run thus:—
“Our lord the king, providing for the better estate of his realm of
England, and for the more speedy ministration of justice, as belongeth
to the office of a king; the more discreet men of the realm being
called together, as well of the higher as of the lower degree; it was
provided, agreed, and ordained,” etc.
Here we have the first rough sketch or outline of what we now call “the
British Constitution.” This constitution, we are often told, was wrung
from the unwilling hands of successive sovereigns by the urgent demands
of the people, in times of royal exigency. With respect to some later
details, this may be true; but not less true is it, that the main and
general outline was freely given to the people by the “legislative
mind” of Edward, aided by his great chancellor, Robert Burnel.
Four hundred years after Edward’s day we had a philosopher in England,
John Locke, who had read and pondered much, and who explained to us
that the very nature of a civilized and free society is “to have a
standing rule to live by, common to every one of that society, and made
by the legislative power erected in it.” The very object, he adds, “of
civil society is to authorize a legislature to make laws for us, as the
public good shall require.” These principles, as we have said, arose in
John Locke’s mind, in the course of study and cogitation. But several
centuries before this, the same thoughts had occurred to an English
prince, to whom “study,” as we understand the word, was impossible,
and who must have owed these conclusions, in a large measure, to that
sagacity and true nobility of soul with which God had endowed him. Yet
we ought not to overlook the fact, that in Edward’s youth one of the
earliest of our great lawyers, Bracton, had thus written:—
“The king ought not to be subject to man, but to God, and to the law;
for the law maketh the king. Let the king, therefore, render to the law
what the law hath invested in him with regard to others, dominion and
power; for he is not truly king where will and pleasure rule, and not
the law.” And again, “The king also hath a superior, namely, God, and
also the law, by which he was made a king.”
Just while Edward was rising into early manhood, did this great lawyer
appear, and the probability surely approaches to something like a
certainty, that Robert Burnel had been a student of Bracton’s writings,
had felt the truth and force of the above words, and had made the young
prince acquainted with those invaluable pages.
Edward’s coronation had taken place in August. His four years’ absence
on the Continent must have occasioned an accumulation of matters
needing regulation; his castles and palaces, his forests and royal
domains, would require to be visited and brought into order. A new
state of things must be established. We see immediately an important
change in the “Exchequer Issues.” In Henry’s reign, we read: “To
Humphrey de Rohan, earl of Hereford, £120 for 50 casks of wine, _taken
from him_ by Imbert Pugeis (a soldier), for the king’s use.” “To Gerard
de Bosco, a merchant of Bordeaux, 70 marks, for 20 casks of wine
_taken from him_ for the queen’s use.” But on Edward’s accession these
seizures disappear, and the entries run thus, “To Raymund de Alemaunt,
of Bordeaux, £46 13s. for 20 casks of wine, _purchased from him_, for
the king’s use, by Gregory de Rokesle and Matthew de Columbius, the
king’s butlers.”
The royal revenues and the royal expenditure were now, for the
first time for a century, to be brought into order and under proper
regulation. Christmas would naturally approach, long before all this
business could be despatched, and it is not surprising that, however he
may have desired it, Edward found it impossible to convene his first
parliament earlier than the February of 1275.
In that month—the same which, in modern times, has been found the
most suitable and convenient, did this first of English parliaments
assemble.[20] And when the clerk, sitting at the chancellor Burnel’s
feet, took pen in hand to record its proceedings, his entry ran in the
following terms:—
“These be the acts of king Edward, made at Westminster, at the first
parliament‐general after his coronation; by his council, and by the
assent of archbishops, bishops, earls, barons, and all the commonalty
of the realm, thither summoned.”
Here we find, set forth rather more fully, the same idea and purpose
which we had seen expressed at Marlborough in 1267;—a legislature, a
council summoned for the purpose of making and establishing laws;
which council was not to consist of great barons only, or of barons and
prelates only, but, “of the lower as well as of the higher degree,” of
“bishops, earls, barons, _and all the commonalty of the realm_.”
This idea was, as yet, but vaguely expressed. In Edward’s after
years we shall see it more fully worked out, until the whole British
Constitution rises to completeness under his creative hand. In this
first attempt he merely recognizes the principle that the “lower degree
as well as the higher” ought to be present,—ought to be consulted. What
“the commonalty of the realm, hither summoned,” may mean, we cannot now
define with any certainty. The most probable view of the matter is,
that the London corporation, then fully existing and on the spot, was
invited to represent “the commonalty of the realm,” and did appear,
doubtless with awe and reverence, as a portion of the first parliament,
the first real legislature, that had been assembled in England in
Anglo‐Norman times.
But what was the work which this first “parliament of England” had to
do? And the answer to this question reveals to us the real greatness
of Edward’s wise counsellor. Robert Burnel, who had accompanied his
master to Palestine, and who had, at Acre, been named one of his
executors, seems to have been despatched to England, when the king,
on his homeward journey, was delayed by business in Gascony and in
Flanders. We find him in England, acting as one of the regents or
guardians of the realm, several months before the king landed at
Dover. He, doubtless, possessed his master’s entire confidence,
maintained a regular correspondence with him, and was fully occupied
in bringing all things into order, before Edward himself appeared
at Dover. To some such mind as this we owe it, that so soon as the
king had landed, and had conferred on two of his greatest nobles the
honour of a visit while passing from the coast to London, he found,
on reaching the metropolis, the whole ceremony of the coronation,
with its great banquet and rejoicings, only awaiting his arrival.
Can we see there assembled, awaiting the king’s arrival, the king
of Scotland, the duke of Bretagne, all the nobles of the land, with
their countless retinues; can we remark the new buildings prepared,
and the vast provision for the banquet, and all these and many other
preparations, all concentrating to one point, and all involving a large
expenditure—without acknowledging that in bringing such a variety of
affairs to a ripeness on a day before appointed, there is visible the
mind of a man of vast ability? All, at last, is in readiness. The
king arrives at Dover, passes on with kingly state and deliberation
to the castle of his greatest subject, the earl of Gloucester; then
to Reigate, to earl Warenne’s,—then to the metropolis, and to his own
palace of Westminster. He rests apparently but a single night, and then
proceeds from his palace into the abbey, and is at once crowned king.
And his very first act, after thus taking his rightful place, is, to
make his trusted friend and most able counsellor, Robert Burnel, the
chancellor of England.
To this great man, we doubtless owe that noble production, the “Statute
of Westminster.” In the five or six months which intervened before the
meeting of parliament; while the king was examining and regulating the
condition of his castles, palaces, establishments, and household, his
chancellor, looking forward to the great event which was to follow
immediately after Christmas, was occupied, we may safely assert,
with the preparation of the work of legislation; a work then to be
commenced, but never afterwards to be discontinued in this realm.
Parliaments, such as we now possess, were new things in England. The
“concilium,” or great council, which we find in Anglo‐Norman history,
was a gathering of earls, barons, and prelates, for the decision,
usually, of a simple question—most generally, of granting an aid to the
king. All through the long reign of Henry III., the idea that it was
necessary occasionally to meet for the purpose of making laws, never
once appears in any record. Of course parliaments holding protracted
sittings, for weeks or months together, were wholly unthought of.
Provision for the residence and maintenance of the prelates and barons
would have been difficult. All that was contemplated was, one meeting,
to do one thing and then to separate. Very naturally, therefore,
Chancellor Burnel, while he had discovered the need of several laws on
different subjects, combined his various reforms in one great statute.
Lord Campbell observes that, “The ‘Statute of Westminster’ deserves the
name of a code, rather than an act of parliament. Its object was, to
correct abuses, to supply defects, and to remodel the administration of
justice.” * * * “It protects the property of the church from violence
and spoliation; it provides for the freedom of popular elections; it
contains a strong declaration to enforce the enactments of ‘Magna
Charta’ against excessive fines; it enumerates and corrects the great
abuses of tenure, particularly with regard to the marriage of wards; it
regulates the levying of tolls; it corrects and restrains the power of
the king’s escheator, and other officers under the crown; it amends the
criminal law; it embraces the subject of procedure, both in civil and
criminal matters, introducing many regulations with a view to render it
cheaper, more simple, and more expeditious.”
This great measure was in fact the beginning of English legislation.
Up to this period, for centuries, the law of England had been a mere
tradition, an unwritten collection of rules and principles, handed down
from one generation to another, and deposited in the minds and memories
of the judges and students of law. Recollections and traditions of
Saxon laws, confirmed in “Magna Charta,” doubtless constituted its
substance. Such a traditionary code is now of great value, under
the name of “common law,” because it is expounded in books, and
administered by judges of known integrity. But in the days of which
we are speaking, books, _i.e._, manuscripts, were rare and of great
price, and the judges, as a rule, were corruptible. Hence, Burnel,
having observed and learned what provisions were chiefly needed,
began, in this first of parliaments, to apply the remedy of written
and authoritative law. A legislative system, worked by a new power; a
real legislature, meeting usually every year, but in some years twice
or thrice, began now to be known in England. This legislature, under
Edward’s watchful eye, was enlarged and strengthened from time to time,
until, before his reign had closed, we find it closely resembling the
parliament of our own day—consisting, in 1304, of “the prelates, nine
earls, ninety‐four barons, the knights of the shire, and the burgesses
sent by 159 towns.”
In the great “Statute of Westminster”—the beginning of our English
Statute law—there is one provision which, if the mind dwells upon it,
suggests many inquiries. It runs thus:—
“And because elections ought to be free, the king commandeth, upon
great forfeiture (_i.e._, penalties), that no man by force of arms,
nor by malice nor menacing, shall disturb (or hinder) any to make free
election.”
Almost six hundred years after, in the parliament now sitting, serious
and prolonged inquiries have been entered into, as to how “elections
can be free,” and how to provide that neither “by force of arms, nor by
menace” shall any be hindered from making a free choice or election.
Thus, after so many centuries of parliamentary legislation, we find
ourselves again trying to effect that which Edward and his great
chancellor commanded in the very first law that they placed upon our
statute‐book.
But does not the question naturally arise, “What were these elections
which Robert Burnel thus saw to need protective legislation?” After all
the violence and disorders of such reigns as those of Stephen, Richard,
and John, the idea of “a free election” seems a strange one to have
existed in this realm of England.
Yet elections there must have been, of two kinds. The Londoners had
preserved from days long preceding the Conquest, their “hustings,” both
name and thing, and one of the laws in use in the days of Edward the
Confessor, fixes the time for holding these meetings.