The supreme judicature, which had been exercised by the king's court,

was diverted, about the reign of John, into three channels; the

tribunals of King's Bench, Common Pleas, and the Exchequer.[347] These

became the regular fountains of justice, which soon almost absorbed the

provincial jurisdictions of the sheriff and lord of manor. But the

original institution, having been designed for ends of state, police,

and revenue, full as much as for the determination of private suits,

still preserved the most eminent parts of its authority. For the king's

ordinary or privy council, which is the usual style from the reign of

Edward I., seems to have been no other than the king's court (curia

regis) of older times, being composed of the same persons, and having,

in a principal degree, the same subjects of deliberation. It consisted

of the chief ministers; as the chancellor, treasurer, lord steward, lord

admiral, lord marshal, the keeper of the privy seal, the chamberlain,

treasurer, and comptroller of the household, the chancellor of the

exchequer, the master of the wardrobe; and of the judges, king's

serjeant, and attorney-general, the master of the rolls, and justices in

eyre, who at that time were not the same as the judges at Westminster.

When all these were called together, it was a full council; but where

the business was of a more contracted nature, those only who were

fittest to advise were summoned; the chancellor and judges for matters

of law; the officers of state for what concerned the revenue or

household.[348]

The business of this council, out of parliament, may be reduced to two

heads; its deliberative office as a council of advice, and its decisive

power of jurisdiction. With respect to the first, it obviously

comprehended all subjects of political deliberation, which were usually

referred to it by the king: this being in fact the administration or

governing council of state, the distinction of a cabinet being

introduced in comparatively modern times. But there were likewise a vast

number of petitions continually presented to the council, upon which

they proceeded no further than to sort, as it were, and forward them by

endorsement to the proper courts, or advise the suitor what remedy he

had to seek. Thus some petitions are answered, "this cannot be done

without a new law;" some were turned over to the regular court, as the

chancery or king's bench; some of greater moment were endorsed to be

heard "before the great council;" some, concerning the king's interest,

were referred to the chancery, or select persons of the council.

The coercive authority exercised by this standing council of the king

was far more important. It may be divided into acts, legislative and

judicial. As for the first, many ordinances were made in council;

sometimes upon request of the commons in parliament, who felt themselves

better qualified to state a grievance than a remedy; sometimes without

any pretence, unless the usage of government, in the infancy of our

constitution, may be thought to afford one. These were always of a

temporary or partial nature, and were considered as regulations not

sufficiently important to demand a new statute. Thus, in the second year

of Richard II., the council, after hearing read the statute-roll of an

act recently passed, confirming a criminal jurisdiction in certain cases

upon justices of the peace, declared that the intention of parliament,

though not clearly expressed therein, had been to extend that

jurisdiction to certain other cases omitted, which accordingly they

cause to be inserted in the commissions made to these justices under the

great seal.[349] But they frequently so much exceeded what the growing

spirit of public liberty would permit, that it gave rise to complaint in

parliament. The commons petition in 13 R. II. that "neither the

chancellor nor the king's council, after the close of parliament, may

make any ordinance against the common law, or the ancient customs of the

land, or the statutes made heretofore or to be made in this parliament;

but that the common law have its course for all the people, and no

judgment be rendered without due legal process." The king answers, "Let

it be done as has been usual heretofore, saving the prerogative; and if

any one is aggrieved, let him show it specially, and right shall be done

him."[350] This unsatisfactory answer proves the arbitrary spirit in

which Richard was determined to govern.

The judicial power of the council was in some instances founded upon

particular acts of parliament, giving it power to hear and determine

certain causes. Many petitions likewise were referred to it from

parliament, especially where they were left unanswered by reason of a

dissolution. But, independently of this delegated authority, it is

certain that the king's council did anciently exercise, as well out of

parliament as in it, a very great jurisdiction, both in causes criminal

and civil. Some, however, have contended, that whatever they did in this

respect was illegal, and an encroachment upon the common law and Magna

Charta. And be the common law what it may, it seems an indisputable

violation of the charter in its most admirable and essential article, to

drag men in questions of their freehold or liberty before a tribunal

which neither granted them a trial by their peers nor always respected

the law of the land. Against this usurpation the patriots of those times

never ceased to lift their voices. A statute of the fifth year of Edward

III. provides that no man shall be attached, nor his property seized

into the king's hands, against the form of the great charter and the law

of the land. In the twenty-fifth of the same king it was enacted, that

"none shall be taken by petition or suggestion to the king or his

council, unless it be by indictment or presentment, or by writ original

at the common law, nor shall be put out of his franchise or freehold,

unless he be duly put to answer, and forejudged of the same by due

course of law."[351] This was repeated in a short act of the

twenty-eighth of his reign;[352] but both, in all probability, were

treated with neglect; for another was passed some years afterwards,

providing that no man shall be put to answer without presentment before

justices, or matter of record, or by due process and writ original

according to the old law of the land. The answer to the petition whereon

this statute is grounded, in the parliament-roll, expressly declares

this to be an article of the great charter.[353] Nothing, however, would

prevail on the council to surrender so eminent a power, and, though

usurped, yet of so long a continuance. Cases of arbitrary imprisonment

frequently occurred, and were remonstrated against by the commons. The

right of every freeman in that cardinal point was as undubitable,

legally speaking, as at this day; but the courts of law were afraid to

exercise their remedial functions in defiance of so powerful a tribunal.

After the accession of the Lancastrian family, these, like other

grievances, became rather less frequent but the commons remonstrate

several times, even in the minority of Henry VI., against the council's

interference in matters cognizable at common law.[354] In these later

times the civil jurisdiction of the council was principally exercised in

conjunction with the chancery, and accordingly they are generally named

together in the complaint. The chancellor having the great seal in his

custody, the council usually borrowed its process from his court. This

was returnable into chancery even where the business was depending

before the council. Nor were the two jurisdictions less intimately

allied in their character, each being of an equitable nature; and

equity, as then practised, being little else than innovation and

encroachment on the course of law. This part, long since the most

important of the chancellor's judicial function, cannot be traced beyond

the time of Richard II., when, the practice of feoffments to uses having

been introduced, without any legal remedy to secure the cestui que use,

or usufructuary, against his feoffees, the court of chancery undertook

to enforce this species of contract by process of its own.[355]

Such was the nature of the king's ordinary council in itself, as the

organ of his executive sovereignty, and such the jurisdiction which it

habitually exercised. But it is also to be considered in its relation

to the parliament, during whose session, either singly or in conjunction

with the lords' house, it was particularly conspicuous. The great

officers of state, whether peers or not, the judges, the king's

serjeant, and attorney-general, were, from the earliest times, as the

latter still continue to be, summoned by special writs to the upper

house. But while the writ of a peer runs ad tractandum nobiscum et cum

caeteris praelatis, magnatibus et proceribus, that directed to one of the

judges is only ad tractandum nobiscum et cum caeteris de consilio nostro;

and the seats of the latter are upon the woolsacks at one extremity of

the house.

In the reigns of Edward I. and II. the council appear to have been the

regular advisers of the king in passing laws to which the houses of

parliament had assented. The preambles of most statutes during this

period express their concurrence. Thus the statute Westm. I. is said to

be the act of the king by his council, and by the assent of archbishops,

bishops, abbots, priors, earls, barons, and all the commonalty of the

realm being hither summoned. The statute of escheators, 29 E. I., is

said to be agreed by the council, enumerating their names, all whom

appear to be judges or public officers. Still more striking conclusions

are to be drawn from the petitions addressed to the council by both

houses of parliament. In the eighth of Edward II. there are four

petitions from the commons to the king and his council, one from the

lords alone, and one in which both appear to have joined. Later

parliaments of the same reign present us with several more instances of

the like nature. Thus in 18 E. II. a petition begins, "To our lord the

king, and to his council, the archbishops, bishops, prelates, earls,

barons, and others of the commonalty of England, show," &c.[356]

But from the beginning of Edward III.'s reign it seems that the council

and the lords' house in parliament were often blended together into one

assembly. This was denominated the great council, being the lords

spiritual and temporal, with the king's ordinary council annexed to

them, as a council within a council. And even in much earlier times the

lords, as hereditary counsellors, were, either whenever they thought fit

to attend, or on special summonses by the king (it is hard to say

which), assistant members of this council, both for advice and for

jurisdiction. This double capacity of the peerage, as members of the

parliament or legislative assembly and of the deliberative and judicial

council, throws a very great obscurity over the subject. However, we

find that private petitions for redress were, even under Edward I.,

presented to the lords in parliament as much as to the ordinary council.

The parliament was considered a high court of justice, where relief was

to be given in cases where the course of law was obstructed, as well as

where it was defective. Hence the intermission of parliaments was looked

upon as a delay of justice, and their annual meeting is demanded upon

that ground. "The king," says Fleta, "has his court in his council, in

his parliaments, in the presence of bishops, earls, barons, lords, and

other wise men, where the doubtful cases of judgments are resolved, and

new remedies are provided against new injuries, and justice is rendered

to every man according to his desert."[357] In the third year of Edward

II. receivers of petitions began to be appointed at the opening of every

parliament, who usually transmitted them to the ordinary, but in some

instances to the great council. These receivers were commonly three for

England, and three for Ireland, Wales, Gascony, and other foreign

dominions. There were likewise two corresponding classes of auditors or

triers of petitions. These consisted partly of bishops or peers, partly

of judges and other members of the council; and they seem to have been

instituted in order to disburthen the council by giving answers to some

petitions. But about the middle of Edward III.'s time they ceased to act

juridically in this respect, and confined themselves to transmitting

petitions to the lords of the council.

The great council, according to the definition we have given, consisting

of the lords spiritual and temporal, in conjunction with the ordinary

council, or, in other words, of all who were severally summoned to

parliament, exercised a considerable jurisdiction, as well civil as

criminal. In this jurisdiction it is the opinion of Sir M. Hale that

the council, though not peers, had right of suffrage; an opinion very

probable, when we recollect that the council by themselves, both in and

out of parliament, possessed in fact a judicial authority little

inferior; and that the king's delegated sovereignty in the

administration of justice, rather than any intrinsic right of the

peerage, is the foundation on which the judicature of the lords must be

supported. But in the time of Edward III. or Richard II. the lords, by

their ascendency, threw the judges and rest of the council into shade,

and took the decisive jurisdiction entirely to themselves, making use of

their former colleagues but as assistants and advisers, as they still

continue to be held in all the judicial proceedings of that house.[358]

Those statutes which restrain the king's ordinary council from

disturbing men in their freehold rights, or questioning them for

misdemeanours, have an equal application to the lords' house in

parliament, though we do not frequently meet with complaints of the

encroachments made by that assembly. There was, however, one class of

cases tacitly excluded from the operation of those acts, in which the

coercive jurisdiction of this high tribunal had great convenience;

namely, where the ordinary course of justice was so much obstructed by

the defending party, through riots, combinations of maintenance, or

overawing influence, that no inferior court would find its process

obeyed. Those ages, disfigured in their quietest season by rapine and

oppression, afforded no small number of cases that called for this

interposition of a paramount authority.[359] Another indubitable branch

of this jurisdiction was in writs of error; but it may be observed that

their determination was very frequently left to a select committee of

peers and councillors. These, too, cease almost entirely with Henry IV.;

and were scarcely revived till the accession of James I.

Some instances occur in the reign of Edward III. where records have been

brought into parliament, and annulled with assent of the commons as well

as the rest of the legislature.[360] But these were attainders of

treason, which it seemed gracious and solemn to reverse in the most

authentic manner. Certainly the commons had neither by the nature of our

constitution nor the practice of parliament any right of intermeddling

in judicature, save where something was required beyond the existing

law, or where, as in the statute of treasons, an authority of that kind

was particularly reserved to both houses. This is fully acknowledged by

themselves in the first year of Henry IV.[361] But their influence upon

the balance of government became so commanding in a few years

afterwards, that they contrived, as has been mentioned already, to have

petitions directed to them, rather than to the lords or council, and to

transmit them, either with a tacit approbation or in the form of acts,

to the upper house. Perhaps this encroachment of the commons may have

contributed to the disuse of the lords' jurisdiction, who would rather

relinquish their ancient and honourable but laborious function than

share it with such bold usurpers.

[Sidenote: General character of the government in these ages.]

Although the restraining hand of parliament was continually growing more

effectual, and the notions of legal right acquiring more precision, from

the time of Magna Charta to the civil wars under Henry VI., we may

justly say that the general tone of administration was not a little

arbitrary. The whole fabric of English liberty rose step by step,

through much toil and many sacrifices, each generation adding some new

security to the work, and trusting that posterity would perfect the

labour as well as enjoy the reward. A time, perhaps, was even then

foreseen in the visions of generous hope, by the brave knights of

parliament and by the sober sages of justice, when the proudest

ministers of the crown should recoil from those barriers which were then

daily pushed aside with impunity.

There is a material distinction to be taken between the exercise of the

king's undeniable prerogative, however repugnant to our improved

principles of freedom, and the abuse or extension of it to oppressive

purposes. For we cannot fairly consider as part of our ancient

constitution what the parliament was perpetually remonstrating against,

and the statute-book is full of enactments to repress. Doubtless the

continual acquiescence of a nation in arbitrary government may

ultimately destroy all privileges of positive institution, and leave

them to recover, by such means as opportunity shall offer, the natural

and imprescriptible rights for which human societies were established.

And this may perhaps be the case at present with many European kingdoms.

But it would be necessary to shut our eyes with deliberate prejudice

against the whole tenor of the most unquestionable authorities, against

the petitions of the commons, the acts of the legislature, the

testimony of historians and lawyers, before we could assert that England

acquiesced in those abuses and oppressions which it must be confessed

she was unable fully to prevent.

The word prerogative is of a peculiar import, and scarcely understood by

those who come from the studies of political philosophy. We cannot

define it by any theory of executive functions. All these may be

comprehended in it; but also a great deal more. It is best, perhaps, to

be understood by its derivation, and has been said to be that law in

case of the king which is law in no case of the subject.[362] Of the

higher and more sovereign prerogatives I shall here say nothing; they

result from the nature of a monarchy, and have nothing very peculiar in

their character. But the smaller rights of the crown show better the

original lineaments of our constitution. It is said commonly enough that

all prerogatives are given for the subject's good. I must confess that

no part of this assertion corresponds with my view of the subject. It

neither appears to me that these prerogatives were ever given nor that

they necessarily redound to the subject's good. Prerogative, in its old

sense, might be defined an advantage obtained by the crown over the

subject, in cases where their interests came into competition, by reason

of its greater strength. This sprang from the nature of the Norman

government, which rather resembled a scramble of wild beasts, where the

strongest takes the best share, than a system founded upon principles of

common utility. And, modified as the exercise of most prerogatives has

been by the more liberal tone which now pervades our course of

government, whoever attends to the common practice of courts of justice,

and, still more, whoever consults the law-books, will not only be

astonished at their extent and multiplicity, but very frequently at

their injustice and severity.

[Sidenote: Purveyance.]

The real prerogatives that might formerly be exerted were sometimes of

so injurious a nature, that we can hardly separate them from their

abuse: a striking instance is that of purveyance, which will at once

illustrate the definition above given of a prerogative, the limits

within which it was to be exercised, and its tendency to transgress

them. This was a right of purchasing whatever was necessary for the

king's household, at a fair price, in preference to every competitor,

and without the consent of the owner. By the same prerogative, carriages

and horses were impressed for the king's journeys, and lodgings provided

for his attendants. This was defended on a pretext of necessity, or at

least of great convenience to the sovereign, and was both of high

antiquity and universal practice throughout Europe. But the royal

purveyors had the utmost temptation, and doubtless no small store of

precedents, to stretch this power beyond its legal boundary; and not

only to fix their own price too low, but to seize what they wanted

without any payment at all, or with tallies which were carried in vain

to an empty exchequer.[363] This gave rise to a number of petitions from

the commons, upon which statutes were often framed; but the evil was

almost incurable in its nature, and never ceased till that prerogative

was itself abolished. Purveyance, as I have already said, may serve to

distinguish the defects from the abuses of our constitution. It was a

reproach to the law that men should be compelled to send their goods

without their consent; it was a reproach to the administration that they

were deprived of them without payment.

The right of purchasing men's goods for the use of the king was extended

by a sort of analogy to their labour. Thus Edward III. announces to all

sheriffs that William of Walsingham had a commission to collect as many

painters as might suffice for "our works in St. Stephen's chapel,

Westminster, to be at our wages as long as shall be necessary," and to

arrest and keep in prison all who should refuse or be refractory; and

enjoins them to lend their assistance.[364] Windsor Castle owes its

massive magnificence to labourers impressed from every part of the

kingdom. There is even a commission from Edward IV. to take as many

workmen in gold as were wanting, and employ them at the king's cost upon

the trappings of himself and his household.[365]

[Sidenote: Abuses of feudal rights.]

Another class of abuses intimately connected with unquestionable though

oppressive rights of the crown originated in the feudal tenure which

bound all the lands of the kingdom. The king had indisputably a right to

the wardship of his tenants in chivalry, and to the escheats or

forfeitures of persons dying without heirs or attainted for treason. But

his officers, under pretence of wardship, took possession of lands not

held immediately of the crown, claimed escheats where a right heir

existed, and seized estates as forfeited which were protected by the

statute of entails. The real owner had no remedy against this

disposition but to prefer his petition of right in chancery, or, which

was probably more effectual, to procure a remonstrance of the house of

commons in his favour. Even where justice was finally rendered to him he

had no recompense for his damages; and the escheators were not less

likely to repeat an iniquity by which they could not personally suffer.

[Sidenote: Forest laws.]

The charter of the forests, granted by Henry III. along with Magna

Charta,[366] had been designed to crush the flagitious system of

oppression which prevailed in those favourite haunts of the Norman

kings. They had still, however, their peculiar jurisdiction, though,

from the time at least of Edward III., subject in some measure to the

control of the King's Bench.[367] The foresters, I suppose, might find a

compensation for their want of the common law in that easy and

licentious way of life which they affected; but the neighbouring

cultivators frequently suffered from the king's officers who attempted

to recover those adjacent lands, or, as they were called, purlieus,

which had been disafforested by the charter and protected by frequent

perambulations. Many petitions of the commons relate to this grievance.

[Sidenote: Jurisdiction of constable and marshal.]

The constable and marshal of England possessed a jurisdiction, the

proper limits whereof were sufficiently narrow, as it seems, to have

extended only to appeals of treason committed beyond sea, which were

determined by combat, and to military offences within the realm. But

these high officers frequently took upon them to inquire of treasons and

felonies cognizable at common law, and even of civil contracts and

trespasses. This is no bad illustration of the state in which our

constitution stood under the Plantagenets. No colour of right or of

supreme prerogative was set up to justify a procedure so manifestly

repugnant to the great charter. For all remonstrances against these

encroachments the king gave promises in return; and a statute was

enacted, in the thirteenth of Richard II., declaring the bounds of the

constable and marshal's jurisdiction.[368] It could not be denied,

therefore, that all infringements of these acknowledged limits were

illegal, even if they had a hundred fold more actual precedents in their

favour than can be supposed. But the abuse by no means ceased after the

passing of this statute, as several subsequent petitions that it might

be better regarded will evince. One, as it contains a special instance,

I shall insert. It is of the fifth year of Henry IV.: "On several

supplications and petitions made by the commons in parliament to our

lord the king for Bennet Wilman, who is accused by certain of his

ill-wishers and detained in prison, and put to answer before the

constable and marshal, against the statutes and the common law of

England, our said lord the king, by the advice and assent of the lords

in parliament, granted that the said Bennet should be treated according

to the statutes and common law of England, notwithstanding any

commission to the contrary, or accusation against him made before the

constable and marshal." And a writ was sent to the justices of the

King's Bench with a copy of this article from the roll of parliament,

directing them to proceed as they shall see fit according to the laws

and customs of England.[369]

It must appear remarkable that, in a case so manifestly within their

competence, the court of King's Bench should not have issued a writ of

habeas corpus, without waiting for what may be considered as a

particular act of parliament. But it is a natural effect of an arbitrary

administration of government to intimidate courts of justice.[370] A

negative argument, founded upon the want of legal precedent, is

certainly not conclusive when it relates to a distant period, of which

all the precedents have not been noted; yet it must strike us that in

the learned and zealous arguments of Sir Robert Cotton, Mr. Selden, and

others, against arbitrary imprisonment, in the great case of the habeas

corpus, though the statute law is full of authorities in their favour,

we find no instance adduced earlier than the reign of Henry VII., where

the King's Bench has released, or even bailed, persons committed by the

council or the constable, though it is unquestionable that such

committals were both frequent and illegal.[371]

If I have faithfully represented thus far the history of our

constitution, its essential character will appear to be a monarchy

greatly limited by law, though retaining much power that was ill

calculated to promote the public good, and swerving continually into an

irregular course, which there was no restraint adequate to correct. But

of all the notions that have been advanced as to the theory of this

constitution, the least consonant to law and history is that which

represents the king as merely an hereditary executive magistrate, the

first officer of the state. What advantages might result from such a

form of government this is not the place to discuss. But it certainly

was not the ancient constitution of England. There was nothing in this,

absolutely nothing, of a republican appearance. All seemed to grow out

of the monarchy, and was referred to its advantage and honour. The voice

of supplication, even in the stoutest disposition of the commons, was

always humble; the prerogative was always named in large and pompous

expressions. Still more naturally may we expect to find in the law-books

even an obsequious deference to power, from judges who scarcely ventured

to consider it as their duty to defend the subject's freedom, and who

beheld the gigantic image of prerogative, in the full play of its

hundred arms, constantly before their eyes. Through this monarchical

tone, which certainly pervades all our legal authorities, a writer like

Hume, accustomed to philosophical liberality as to the principles of

government, and to the democratical language which the modern aspect of

the constitution and the liberty of printing have produced, fell hastily

into the error of believing that all limitations of royal power during

the fourteenth and fifteenth centuries were as much unsettled in law and

in public opinion as they were liable to be violated by force. Though a

contrary position has been sufficiently demonstrated, I conceive, by the

series of parliamentary proceedings which I have already produced, yet

there is a passage in Sir John Fortescue's treatise De Laudibus Legum

Angliae, so explicit and weighty, that no writer on the English

constitution can be excused from inserting it. This eminent person,

having been chief justice of the King's Bench under Henry VI., was

governor to the young prince of Wales during his retreat in France, and

received at his hands the office of chancellor. It must never be

forgotten that, in a treatise purposely composed for the instruction of

one who hoped to reign over England, the limitations of government are

enforced as strenuously by Fortescue, as some succeeding lawyers have

inculcated the doctrines of arbitrary prerogative.

[Sidenote: Sir John Fortescue's doctrine as to the English

constitution.]

"A king of England cannot at his pleasure make any alterations in the

laws of the land, for the nature of his government is not only regal,

but political. Had it been merely regal, he would have a power to make

what innovations and alterations he pleased in the laws of the kingdom,

impose tallages and other hardships upon the people whether they would

or no, without their consent, which sort of government the civil laws

point out when they declare Quod principi placuit, legis habet vigorem.

But it is much otherwise with a king whose government is political,

because he can neither make any alteration or change in the laws of the

realm without the consent of the subjects, nor burthen them against

their wills with strange impositions, so that a people governed by such

laws as are made by their own consent and approbation enjoy their

properties securely, and without the hazard of being deprived of them,

either by the king or any other. The same things may be effected under

an absolute prince, provided he do not degenerate into the tyrant. Of

such a prince, Aristotle, in the third of his Politics, says, 'It is

better for a city to be governed by a good man than by good laws.' But

because it does not always happen that the person presiding over a

people is so qualified, St. Thomas, in the book which he writ to the

king of Cyprus, De Regimine Principum, wishes that a kingdom could be so

instituted as that the king might not be at liberty to tyrannize over

his people; which only comes to pass in the present case; that is, when

the sovereign power is restrained by political laws. Rejoice, therefore,

my good prince, that such is the law of the kingdom which you are to

inherit, because it will afford, both to yourself and subjects, the

greatest security and satisfaction."[372]

The two great divisions of civil rule, the absolute, or regal as he

calls it, and the political, Fortescue proceeds to deduce from the

several originals of conquest and compact. Concerning the latter he

declares emphatically a truth not always palatable to princes, that such

governments were instituted by the people, and for the people's good;

quoting St. Augustin for a similar definition of a political society.

"As the head of a body natural cannot change its nerves and sinews,

cannot deny to the several parts their proper energy, their due

proportion and aliment of blood; neither can a king, who is the head of

a body politic, change the laws thereof, nor take from the people what

is theirs by right against their consent. Thus you have, sir, the formal

institution of every political kingdom, from whence you may guess at the

power which a king may exercise with respect to the laws and the

subject. For he is appointed to protect his subjects in their lives,

properties, and laws; for this very end and purpose he has the

delegation of power from the people, and he has no just claim to any

other power but this. Wherefore, to give a brief answer to that question

of yours, concerning the different powers which kings claim over their

subjects, I am firmly of opinion that it arises solely from the

different natures of their original institution, as you may easily

collect from what has been said. So the kingdom of England had its

original from Brute, and the Trojans, who attended him from Italy and

Greece, and became a mixed kind of government, compounded of the regal

and political."[373]

[Sidenote: Erroneous views taken by Hume.]

It would occupy too much space to quote every other passage of the same

nature in this treatise of Fortescue, and in that entitled, Of the

Difference between an Absolute and Limited Monarchy, which, so far as

these points are concerned, is nearly a translation from the

former.[374] But these, corroborated as they are by the statute-book

and by the rolls of parliament, are surely conclusive against the

notions which pervade Mr. Hume's History. I have already remarked that a

sense of the glaring prejudice by which some Whig writers had been

actuated, in representing the English constitution from the earliest

times as nearly arrived at its present perfection, conspired with

certain prepossessions of his own to lead this eminent historian into an

equally erroneous system on the opposite side. And as he traced the

stream backwards, and came last to the times of the Plantagenet dynasty,

with opinions already biassed and even pledged to the world in his

volumes of earlier publication, he was prone to seize hold of, and even

exaggerate, every circumstance that indicated immature civilization, and

law perverted or infringed.[375] To this his ignorance of English

jurisprudence which certainly in some measure disqualified him from

writing our history, did not a little contribute; misrepresentations

frequently occurring in his work, which a moderate acquaintance with the

law of the land would have prevented.[376]

[Sidenote: Instances of illegal condemnation rare.]

It is an honourable circumstance to England that the history of no other

country presents so few instances of illegal condemnations upon

political charges. The judicial torture was hardly known and never

recognised by law.[377] The sentence in capital crimes, fixed

unalterably by custom, allowed nothing to vindictiveness and

indignation. There hardly occurs an example of any one being notoriously

put to death without form of trial, except in moments of flagrant civil

war. If the rights of juries were sometimes evaded by irregular

jurisdictions, they were at least held sacred by the courts of law: and

through all the vicissitudes of civil liberty, no one ever questioned

the primary right of every freeman, handed down from his Saxon

forefathers, to the trial by his peers. A just regard for public safety

prescribes the necessity of severe penalties against rebellion and

conspiracy; but the interpretation of these offences, when intrusted to

sovereigns and their counsellors, has been the most tremendous

instrument of despotic power. In rude ages, even though a general spirit

of political liberty may prevail, the legal character of treason will

commonly be undefined; nor is it the disposition of lawyers to give

greater accuracy to this part of criminal jurisprudence. The nature of

treason appears to have been subject to much uncertainty in England

before the statute of Edward III. If that memorable law did not give all

possible precision to the offence, which we must certainly allow, it

prevented at least those stretches of vindictive tyranny which disgrace

the annals of other countries. The praise, however, must be understood

as comparative. Some cases of harsh if not illegal convictions could

hardly fail to occur in times of violence and during changes of the

reigning family. Perhaps the circumstances have now and then been

aggravated by historians. Nothing could be more illegal than the

conviction of the earl of Cambridge and lord Scrope in 1415, if it be

true, according to Carte and Hume, that they were not heard in their

defence. But whether this is to be absolutely inferred from the

record[378] is perhaps open to question. There seems at least to have

been no sufficient motive for such an irregularity; their participation

in a treasonable conspiracy being manifest from their own confession.

The proceedings against Sir John Mortimer in the 2nd of Henry VI.[379]

are called by Hume highly irregular and illegal. They were, however, by

act of attainder, which cannot well be styled illegal. Nor are they to

be considered as severe. Mortimer had broken out of the Tower, where he

was confined on a charge of treason. This was a capital felony at common

law; and the chief irregularity seems to have consisted in having

recourse to parliament in order to attaint him of treason, when he had

already forfeited his life by another crime.

I would not willingly attribute to the prevalence of Tory dispositions

what may be explained otherwise, the progress which Mr. Hume's

historical theory as to our constitution has been gradually making since

its publication. The tide of opinion, which since the Revolution, and

indeed since the reign of James I., had been flowing so strongly in

favour of the antiquity of our liberties, now seems, among the higher

and more literary classes, to set pretty decidedly the other way. Though

we may still sometimes hear a demagogue chattering about the

witenagemot, it is far more usual to find sensible and liberal men who

look on Magna Charta itself as the result of an uninteresting squabble

between the king and his barons. Acts of force and injustice, which

strike the cursory inquirer, especially if he derives his knowledge from

modern compilations, more than the average tenor of events, are selected

and displayed as fair samples of the law and of its administration. We

are deceived by the comparatively perfect state of our present

liberties, and forget that our superior security is far less owing to

positive law than to the control which is exercised over government by

public opinion through the general use of printing, and to the diffusion

of liberal principles in policy through the same means. Thus disgusted

at a contrast which it was hardly candid to institute, we turn away from

the records that attest the real, though imperfect, freedom of our

ancestors; and are willing to be persuaded that the whole scheme of

English polity, till the commons took on themselves to assert their

natural rights against James I., was at best but a mockery of popular

privileges, hardly recognised in theory, and never regarded in

effect.[380]

This system, when stripped of those slavish inferences that Brady and

Carte attempted to build upon it, admits perhaps of no essential

objection but its want of historical truth. God forbid that our rights

to just and free government should be tried by a jury of antiquaries!

Yet it is a generous pride that intertwines the consciousness of

hereditary freedom with the memory of our ancestors; and no trifling

argument against those who seem indifferent in its cause, that the

character of the bravest and most virtuous among nations has not

depended upon the accidents of race or climate, but been gradually

wrought by the plastic influence of civil rights, transmitted as a

prescriptive inheritance through a long course of generations.

[Sidenote: Causes tending to form the constitution.]

By what means the English acquired and preserved this political liberty,

which, even in the fifteenth century, was the admiration of judicious

foreigners,[381] is a very rational and interesting inquiry. Their own

serious and steady attachment to the laws must always be reckoned among

the principal causes of this blessing. The civil equality of all freemen

below the rank of peerage, and the subjection of peers themselves to the

impartial arm of justice, and to a due share in contribution to public

burthens, advantages unknown to other countries, tended to identify the

interests and to assimilate the feelings of the aristocracy with those

of the people; classes whose dissension and jealousy has been in many

instances the surest hope of sovereigns aiming at arbitrary power. This

freedom from the oppressive superiority of a privileged order was

peculiar to England. In many kingdoms the royal prerogative was at least

equally limited. The statutes of Aragon are more full of remedial

provisions. The right of opposing a tyrannical government by arms was

more frequently asserted in Castile. But nowhere else did the people

possess by law, and I think, upon the whole, in effect, so much security

for their personal freedom and property. Accordingly, the middling

ranks flourished remarkably, not only in commercial towns, but among the

cultivators of the soil. "There is scarce a small village," says Sir J.

Fortescue, "in which you may not find a knight, an esquire, or some

substantial householder (paterfamilias), commonly called a

frankleyn,[382] possessed of considerable estate; besides others who are

called freeholders, and many yeomen of estates sufficient to make a

substantial jury." I would, however, point out more particularly two

causes which had a very leading efficacy in the gradual development of

our constitution; first, the schemes of continental ambition in which

our government was long engaged; secondly, the manner in which feudal

principles of insubordination and resistance were modified by the

prerogatives of the early Norman kings.

1. At the epoch when William the Conqueror ascended the throne, hardly

any other power was possessed by the king of France than what he

inherited from the great fiefs of the Capetian family. War with such a

potentate was not exceedingly to be dreaded, and William, besides his

immense revenue, could employ the feudal services of his vassals, which

were extended by him to continental expeditions. These circumstances

were not essentially changed till after the loss of Normandy; for the

acquisitions of Henry II. kept him fully on an equality with the French

crown, and the dilapidation which had taken place in the royal demesnes

was compensated by several arbitrary resources that filled the exchequer

of these monarchs. But in the reigns of John and Henry III., the

position of England, or rather of its sovereign, with respect to France,

underwent a very disadvantageous change. The loss of Normandy severed

the connexion between the English nobility and the continent; they had

no longer estates to defend, and took not sufficient interest in the

concerns of Guienne to fight for that province at their own cost. Their

feudal service was now commuted for an escuage, which fell very short of

the expenses incurred in a protracted campaign. Tallages of royal towns

and demesne lands, extortion of money from the Jews, every feudal abuse

and oppression, were tried in vain to replenish the treasury, which the

defence of Eleanor's inheritance against the increased energy of France

was constantly exhausting. Even in the most arbitrary reigns, a general

tax upon landholders, in any cases but those prescribed by the feudal

law, had not been ventured; and the standing bulwark of Magna Charta, as

well as the feebleness and unpopularity of Henry III., made it more

dangerous to violate an established principle. Subsidies were therefore

constantly required; but for these it was necessary for the king to meet

parliament, to hear their complaints, and, if he could not elude, to

acquiesce in their petitions. These necessities came still more urgently

upon Edward I., whose ambitious spirit could not patiently endure the

encroachments of Philip the Fair, a rival not less ambitious, but

certainly less distinguished by personal prowess, than himself. What

advantage the friends of liberty reaped from this ardour for continental

warfare is strongly seen in the circumstances attending the Confirmation

of the Charters.

But after this statute had rendered all tallages without consent of

parliament illegal, though it did not for some time prevent their being

occasionally imposed, it was still more difficult to carry on a war with

France or Scotland, to keep on foot naval armaments, or even to preserve

the courtly magnificence which that age of chivalry affected, without

perpetual recurrence to the house of commons. Edward III. very little

consulted the interests of his prerogative when he stretched forth his

hand to seize the phantom of a crown in France. It compelled him to

assemble parliament almost annually, and often to hold more than one

session within the year. Here the representatives of England learned the

habit of remonstrance and conditional supply; and though, in the

meridian of Edward's age and vigour, they often failed of immediate

redress, yet they gradually swelled the statute-roll with provisions to

secure their country's freedom; and acquiring self-confidence by mutual

intercourse, and sense of the public opinion, they became able, before

the end of Edward's reign, and still more in that of his grandson, to

control, prevent, and punish the abuses of administration. Of all these

proud and sovereign privileges, the right of refusing supply was the

keystone. But for the long wars in which our kings were involved, at

first by their possession of Guienne, and afterwards by their

pretensions upon the crown of France, it would have been easy to

suppress remonstrances by avoiding to assemble parliament. For it must

be confessed that an authority was given to the king's proclamations,

and to ordinances of the council, which differed but little from

legislative power, and would very soon have been interpreted by

complaisant courts of justice to give them the full extent of statutes.

It is common indeed to assert that the liberties of England were bought

with the blood of our forefathers. This is a very magnanimous boast, and

in some degree is consonant enough to the truth. But it is far more

generally accurate to say that they were purchased by money. A great

proportion of our best laws, including Magna Charta itself, as it now

stands confirmed by Henry III., were, in the most literal sense,

obtained by a pecuniary bargain with the crown. In many parliaments of

Edward III. and Richard II. this sale of redress is chaffered for as

distinctly, and with as little apparent sense of disgrace, as the most

legitimate business between two merchants would be transacted. So little

was there of voluntary benevolence in what the loyal courtesy of our

constitution styles concessions from the throne; and so little title

have these sovereigns, though we cannot refuse our admiration to the

generous virtues of Edward III. and Henry V., to claim the gratitude of

posterity as the benefactors of their people!

2. The relation established between a lord and his vassal by the feudal

tenure, far from containing principles of any servile and implicit

obedience, permitted the compact to be dissolved in case of its

violation by either party. This extended as much to the sovereign as to

inferior lords; the authority of the former in France, where the system

most flourished, being for several ages rather feudal than political. If

a vassal was aggrieved, and if justice was denied him, he sent a

defiance, that is, a renunciation of fealty to the king, and was

entitled to enforce redress at the point of his sword. It then became a

contest of strength as between two independent potentates, and was

terminated by treaty, advantageous or otherwise, according to the

fortune of war. This privilege, suited enough to the situation of

France, the great peers of which did not originally intend to admit more

than a nominal supremacy in the house of Capet, was evidently less

compatible with the regular monarchy of England. The stern natures of

William the Conqueror and his successors kept in control the mutinous

spirit of their nobles, and reaped the profit of feudal tenures without

submitting to their reciprocal obligations. They counteracted, if I may

so say, the centrifugal force of that system by the application of a

stronger power; by preserving order, administering justice, checking the

growth of baronial influence and riches, with habitual activity,

vigilance, and severity. Still, however, there remained the original

principle, that allegiance depended conditionally upon good treatment,

and that an appeal might be lawfully made to arms against an oppressive

government. Nor was this, we may be sure, left for extreme necessity, or

thought to require a long enduring forbearance. In modern times a king

compelled by his subjects' swords to abandon any pretension would be

supposed to have ceased to reign; and the express recognition of such a

right as that of insurrection has been justly deemed inconsistent with

the majesty of law. But ruder ages had ruder sentiments. Force was

necessary to repel force; and men accustomed to see the king's authority

defied by private riot were not much shocked when it was resisted in

defence of public freedom.

The Great Charter of John was secured by the election of twenty-five

barons as conservators of the compact. If the king, of the justiciary in

his absence, should transgress any article, any four might demand

reparation, and on denial carry their complaint to the rest of their

body. "And those barons, with all the commons of the land, shall

distrain and annoy us by every means in their power; that is, by seizing

our castles, lands, and possessions, and every other mode, till the

wrong shall be repaired to their satisfaction; saving our person, and

our queen and children. And when it shall be repaired they shall obey us

as before."[383] It is amusing to see the common law of distress

introduced upon this gigantic scale; and the capture of the king's

castles treated as analogous to impounding a neighbour's horse for

breaking fences.

A very curious illustration of this feudal principle is found in the

conduct of William earl of Pembroke, one of the greatest names in our

ancient history, towards Henry III. The king had defied him, which was

tantamount to a declaration of war; alleging that he had made an inroad

upon the royal domains. Pembroke maintained that he was not the

aggressor, that the king had denied him justice, and been the first to

invade his territory; on which account he had thought himself absolved

from his homage, and at liberty to use force against the malignity of

the royal advisers. "Nor would it be for the king's honour," the earl

adds, "that I should submit to his will against reason, whereby I should

rather do wrong to him and to that justice which he is bound to

administer towards his people; and I should give an ill example to all

men in deserting justice and right in compliance with his mistaken will.

For this would show that I loved my worldly wealth better than justice."

These words, with whatever dignity expressed, it may be objected, prove

only the disposition of an angry and revolted earl. But even Henry fully

admitted the right of taking arms against himself if he had meditated

his vassal's destruction, and disputed only the application of this

maxim to the earl of Pembroke.[384]

These feudal notions, which placed the moral obligation of allegiance

very low, acting under a weighty pressure from the real strength of the

crown, were favourable to constitutional liberty. The great vassals of

France and Germany aimed at living independently on their fiefs, with no

further concern for the rest than as useful allies having a common

interest against the crown. But in England, as there was no prospect of

throwing off subjection, the barons endeavoured only to lighten its

burthen, fixing limits to prerogative by law, and securing their

observation by parliamentary remonstrances or by dint of arms. Hence,

as all rebellions in England were directed only to coerce the

government, or at the utmost to change the succession of the crown,

without the smallest tendency to separation, they did not impair the

national strength nor destroy the character of the constitution. In all

these contentions it is remarkable that the people and clergy sided with

the nobles against the throne. No individuals are so popular with the

monkish annalists, who speak the language of the populace, as Simon earl

of Leicester, Thomas earl of Lancaster, and Thomas duke of Gloucester,

all turbulent opposers of the royal authority, and probably little

deserving of their panegyrics. Very few English historians of the middle

ages are advocates of prerogative. This may be ascribed both to the

equality of our laws and to the interest which the aristocracy found in

courting popular favour, when committed against so formidable an

adversary as the king. And even now, when the stream that once was

hurried along gullies and dashed down precipices hardly betrays upon its

broad and tranquil bosom the motion that actuates it, it must still be

accounted a singular happiness of our constitution that, all ranks

graduating harmoniously into one another, the interests of peers and

commoners are radically interwoven; each in a certain sense

distinguishable, but not balanced like opposite weights, not separated

like discordant fluids, not to be secured by insolence or jealousy, but

by mutual adherence and reciprocal influences.

[Sidenote: Influence which the state of manners gave the nobility.]

From the time of Edward I. the feudal system and all the feelings

connected with it declined very rapidly. But what the nobility lost in

the number of their military tenants was in some degree compensated by

the state of manners. The higher class of them, who took the chief share

in public affairs, were exceedingly opulent; and their mode of life gave

wealth an incredibly greater efficacy than it possesses at present.

Gentlemen of large estates and good families who had attached themselves

to these great peers, who bore offices which we should call menial in

their households, and sent their children thither for education, were of

course ready to follow their banner in rising, without much inquiry into

the cause. Still less would the vast body of tenants and their

retainers, who were fed at the castle in time of peace, refuse to carry

their pikes and staves into the field of battle. Many devices were used

to preserve this aristocratic influence, which riches and ancestry of

themselves rendered so formidable. Such was the maintenance of suits, or

confederacies for the purpose of supporting each other's claims in

litigation, which was the subject of frequent complaints in parliament,

and gave rise to several prohibitory statutes. By help of such

confederacies parties were enabled to make violent entries upon the

lands they claimed, which the law itself could hardly be said to

discourage.[385] Even proceedings in courts of justice were often liable

to intimidation and influence.[386] A practice much allied to

confederacies of maintenance, though ostensibly more harmless, was that

of giving liveries to all retainers of a noble family; but it had an

obvious tendency to preserve that spirit of factious attachments and

animosities which it is the general policy of a wise government to

dissipate. From the first year of Richard II. we find continual mention

of this custom, with many legal provisions against it, but it was never

abolished till the reign of Henry VII.[387]

[Sidenote: Prevalent habits of rapine.]

These associations under powerful chiefs were only incidentally

beneficial as they tended to withstand the abuses of prerogative. In

their more usual course they were designed to thwart the legitimate

exercise of the king's government in the administration of the laws. All

Europe was a scene of intestine anarchy during the middle ages; and

though England was far less exposed to the scourge of private war than

most nations on the continent, we should find, could we recover the

local annals of every country, such an accumulation of petty rapine and

tumult as would almost alienate us from the liberty which served to

engender it. This was the common tenor of manners, sometimes so much

aggravated as to find a place in general history,[388] more often

attested by records during the three centuries that the house of

Plantagenet sat on the throne. Disseisin, or forcible dispossession of

freeholds, makes one of the most considerable articles in our

law-books.[389] Highway robbery was from the earliest times a sort of

national crime. Capital punishments, though very frequent, made little

impression on a bold and a licentious crew, who had at least the

sympathy of those who had nothing to lose on their side, and flattering

prospects of impunity. We know how long the outlaws of Sherwood lived in

tradition--men who, like some of their betters, have been permitted to

redeem by a few acts of generosity the just ignominy of extensive

crimes. These, indeed, were the heroes of vulgar applause; but when such

a judge as Sir John Fortescue could exult that more Englishmen were

hanged for robbery in one year than French in seven, and that, "if an

Englishman be poor, and see another having riches which may be taken

from him by might, he will not spare to do so,"[390] it may be perceived

how thoroughly these sentiments had pervaded the public mind.

Such robbers, I have said, had flattering prospects of impunity. Besides

the general want of communication, which made one who had fled from his

own neighbourhood tolerably secure, they had the advantage of extensive

forests to facilitate their depredations and prevent detection. When

outlawed or brought to trial, the worst offenders could frequently

purchase charters of pardon, which defeated justice in the moment of her

blow.[391] Nor were the nobility ashamed to patronise men guilty of

every crime. Several proofs of this occur in the rolls. Thus, for

example, in the 22nd of Edward III., the commons pray that, "whereas it

is notorious how robbers and malefactors infest the country, the king

would charge the great men of the land that none such be maintained by

them, privily or openly, but that they lend assistance to arrest and

take such ill-doers."[392]

It is perhaps the most meritorious part of Edward I.'s government that

he bent all his power to restrain these breaches of tranquillity. One of

his salutary provisions is still in constant use, the statute of

coroners. Another, more extensive, and, though partly obsolete, the

foundation of modern laws, is the statute of Winton, which, reciting

that "from day to day robberies, murders, burnings, and theft be more

often used than they have been heretofore, and felons cannot be

attainted by the oath of jurors which had rather suffer robberies on

strangers to pass without punishment than indite the offenders, of whom

great part be people of the same country, or at least, if the offenders

be of another country, the receivers be of places near," enacts that hue

and cry shall be made upon the commission of a robbery, and that the

hundred shall remain answerable for the damage unless the felons be

brought to justice. It may be inferred from this provision that the

ancient law of frank-pledge, though retained longer in form, had lost

its efficiency. By the same act, no stranger or suspicious person was to

lodge even in the suburbs of towns; the gates were to be kept locked

from sunset to sunrising; every host to be answerable for his guest; the

highways to be cleared of trees and underwood for two hundred feet on

each side; and every man to keep arms according to his substance in

readiness to follow the sheriff on hue and cry raised ofter felons.[393]

The last provision indicates that the robbers plundered the country in

formidable bands. One of these, in a subsequent part of Edward's reign,

burned the town of Boston during a fair, and obtained a vast booty,

though their leader had the ill fortune not to escape the gallows.

The preservation of order throughout the country was originally

intrusted not only to the sheriff, coroner, and constables, but to

certain magistrates called conservators of the peace. These, in

conformity to the democratic character of our Saxon government, were

elected by the freeholders in their county court.[394] But Edward I.

issued commissions to carry into effect the statute of Winton; and from

the beginning of Edward III.'s reign the appointment of conservators was

vested in the crown, their authority gradually enlarged by a series of

statutes, and their titles changed to that of justices. They were

empowered to imprison and punish all rioters and other offenders, and

such as they should find by indictment or suspicion to be reputed

thieves or vagabonds, and to take sureties for good behaviour from

persons of evil fame.[395] Such a jurisdiction was hardly more arbitrary

than, in a free and civilized age, it has been thought fit to vest in

magistrates; but it was ill endured by a people who placed their notions

of liberty in personal exemption from restraint rather than any

political theory. An act having been passed (2 R. II. stat. 2, c. 6), in

consequence of unusual riots and outrages, enabling magistrates to

commit the ringleaders of tumultuary assemblies without waiting for

legal process till the next arrival of justices of gaol delivery, the

commons petitioned next year against this "horrible grievous ordinance,"

by which "every freeman in the kingdom would be in bondage to these

justices," contrary to the great charter, and to many statutes, which

forbid any man to be taken without due course of law.[396] So sensitive

was their jealousy of arbitrary imprisonment, that they preferred

enduring riot and robbery to chastising them by any means that might

afford a precedent to oppression, or weaken men's reverence for Magna

Charta.

There are two subjects remaining to which this retrospect of the state

of manners naturally leads us, and which I would not pass unnoticed,

though not perhaps absolutely essential to a constitutional history;

because they tend in a very material degree to illustrate the progress

of society, with which civil liberty and regular government are closely

connected. These are, first, the servitude or villenage of the

peasantry, and their gradual emancipation from that condition; and,

secondly, the continual increase of commercial intercourse with foreign

countries. But as the latter topic will fall more conveniently into the

next part of this work, I shall postpone its consideration for the

present.

[Sidenote: Villenage of the peasantry. Its nature and gradual

extinction.]

In a former passage I have remarked of the Anglo-Saxon ceorls that

neither their situation nor that of their descendants for the earlier

reigns after the Conquest appears to have been mere servitude. But from

the time of Henry II., as we learn from Glanvil, the villein, so called,

was absolutely dependent upon his lord's will, compelled to unlimited

services, and destitute of property, not only in the land he held for

his maintenance, but in his own acquisitions.[397] If a villein

purchased or inherited land, the lord might seize it; if he accumulated

stock, its possession was equally precarious. Against his lord he had no

right of action; because his indemnity in damages, if he could have

recovered any, might have been immediately taken away. If he fled from

his lord's service, or from the land which he held, a writ issued de

nativitate probanda, and the master recovered his fugitive by law. His

children were born to the same state of servitude; and, contrary to the

rule of the civil law, where one parent was free and the other in

villenage, the offspring followed their father's condition.[398]

This was certainly a severe lot; yet there are circumstances which

materially distinguish it from slavery. The condition of villenage, at

least in later times, was perfectly relative; it formed no distinct

order in the political economy. No man was a villein in the eye of law,

unless his master claimed him: to all others he was a freeman, and might

acquire, dispose of, or sue for property without impediment. Hence Sir

E. Coke argues that villeins are included in the 29th article of Magna

Charta: "No freeman shall be disseised nor imprisoned."[399] For murder,

rape, or mutilation of his villein, the lord was indictable at the

king's suit; though not for assault or imprisonment, which were within

the sphere of his seignorial authority.[400]

This class was distinguished into villeins regardant, who had been

attached from time immemorial to a certain manor, and villeins in gross,

where such territorial prescription had never existed, or had been

broken. In the condition of these, whatever has been said by some

writers, I can find no manner of difference; the distinction was merely

technical, and affected only the mode of pleading.[401] The term in

gross is appropriated in our legal language to property held absolutely

and without reference to any other. Thus it is applied to rights of

advowson or of common, when possessed simply and not as incident to any

particular lands. And there can be no doubt that it was used in the same

sense for the possession of a villein.[402] But there was a class of

persons, sometimes inaccurately confounded with villeins, whom it is

more important to separate. Villenage had a double sense, as it related

to persons or to lands. As all men were free or villeins, so all lands

were held by a free or villein tenure. As a villein might be enfeoffed

of freeholds, though they lay at the mercy of his lord, so a freeman

might hold tenements in villenage. In this case his personal liberty

subsisted along with the burthens of territorial servitude. He was bound

to arbitrary service at the will of the lord, and he might by the same

will be at any moment dispossessed; for such was the condition of his

tenure. But his chattels were secure from seizure, his person from

injury, and he might leave the land whenever he pleased.[403]

From so disadvantageous a condition as this of villenage it may cause

some surprise that the peasantry of England should have ever emerged.

The law incapacitating a villein from acquiring property, placed, one

would imagine, an insurmountable barrier in the way of his

enfranchisement. It followed from thence, and is positively said by

Glanvil, that a villein could not buy his freedom, because the price he

tendered would already belong to his lord.[404] And even in the case of

free tenants in villenage it is not easy to comprehend how their

uncertain and unbounded services could ever pass into slight pecuniary

commutations; much less how they could come to maintain themselves in

their lands, and mock the lord with a nominal tenure according to the

custom of the manor.

This, like many others relating to the progress of society, is a very

obscure inquiry. We can trace the pedigree of princes, fill up the

catalogue of towns besieged and provinces desolated, describe even the

whole pageantry of coronations and festivals, but we cannot recover the

genuine history of mankind. It has passed away with slight and partial

notice by contemporary writers; and our most patient industry can hardly

at present put together enough of the fragments to suggest a tolerably

clear representation of ancient manners and social life. I cannot

profess to undertake what would require a command of books as well as

leisure beyond my reach; but the following observations may tend a

little to illustrate our immediate subject, the gradual extinction of

villenage.

If we take what may be considered as the simplest case, that of a manor

divided into demesne lands of the lord's occupation and those in the

tenure of his villeins, performing all the services of agriculture for

him, it is obvious that his interest was to maintain just so many of

these as his estate required for its cultivation. Land, the cheapest of

articles, was the price of their labour; and though the law did not

compel him to pay this or any other price, yet necessity, repairing in

some degree the law's injustice, made those pretty secure of food and

dwellings who were to give the strength of their arms for his advantage.

But in course of time, as alienations of small parcels of manors to free

tenants came to prevail, the proprietors of land were placed in a new

situation relatively to its cultivators. The tenements in villenage,

whether by law or usage, were never separated from the lordship, while

its domain was reduced to a smaller extent through subinfeudations,

sales, or demises for valuable rent. The purchasers under these

alienations had occasion for labourers; and these would be free servants

in respect of such employers, though in villenage to their original

lord. As he demanded less of their labour, through the diminution of his

domain, they had more to spare for other masters; and retaining the

character of villeins and the lands they held by that tenure, became

hired labourers in husbandry for the greater part of the year. It is

true that all their earnings were at the lord's disposal, and that he

might have made a profit of their labour when he ceased to require it

for his own land. But this, which the rapacity of more commercial times

would have instantly suggested, might escape a feudal superior, who,

wealthy beyond his wants, and guarded by the haughtiness of ancestry

against the desire of such pitiful gains, was better pleased to win the

affection of his dependants than to improve his fortune at their

expense.

The services of villenage were gradually rendered less onerous and

uncertain. Those of husbandry, indeed, are naturally uniform, and might

be anticipated with no small exactness. Lords of generous tempers

granted indulgences which were either intended to be or readily became

perpetual. And thus, in the time of Edward I., we find the tenants in

some manors bound only to stated services, as recorded in the lord's

book.[405] Some of these, perhaps, might be villeins by blood; but free

tenants in villenage were still more likely to obtain this precision in

their services; and from claiming a customary right to be entered in the

court-roll upon the same terms as their predecessors, prevailed at

length to get copies of it for their security.[406] Proofs of this

remarkable transformation from tenants in villenage to copyholders are

found in the reign of Henry III. I do not know, however, that they were

protected, at so early an epoch, in the possession of their estates. But

it is said in the Year-book of the 42nd of Edward III. to be "admitted

for clear law, that, if the customary tenant or copyholder does not

perform his services, the lord may seize his land as forfeited."[407] It

seems implied herein, that, so long as the copyholder did continue to

perform the regular stipulations of his tenure, the lord was not at

liberty to divest him of his estate; and this is said to be confirmed by

a passage in Britton, which has escaped my search; though Littleton

intimates that copyholders could have no remedy against their lord.[408]

However, in the reign of Edward IV. this was put out of doubt by the

judges, who permitted the copyholder to bring his action of trespass

against the lord for dispossession.

While some of the more fortunate villeins crept up into property as well

as freedom under the name of copyholders, the greater part enfranchised

themselves in a different manner. The law, which treated them so

harshly, did not take away the means of escape; nor was this a matter of

difficulty in such a country as England. To this, indeed, the unequal

progression of agriculture and population in different counties would

have naturally contributed. Men emigrated, as they always must, in

search of cheapness or employment, according to the tide of human

necessities. But the villein, who had no additional motive to urge his

steps away from his native place, might well hope to be forgotten or

undiscovered when he breathed a freer air, and engaged his voluntary

labour to a distant master. The lord had indeed an action against him;

but there was so little communication between remote parts of the

country, that it might be deemed his fault or singular ill-fortune if he

were compelled to defend himself. Even in that case the law inclined to

favour him; and so many obstacles were thrown in the way of these suits

to reclaim fugitive villeins, that they could not have operated

materially to retard their general enfranchisement.[409] In one case,

indeed, that of unmolested residence for a year and a day within a

walled city or borough, the villein became free, and the lord was

absolutely barred of his remedy. This provision is contained even in the

laws of William the Conqueror, as contained in Hoveden, and, if it be

not an interpolation, may be supposed to have had a view to strengthen

the population of those places which were designed for garrisons. This

law, whether of William or not, is unequivocally mentioned by

Glanvil.[410] Nor was it a mere letter. According to a record in the

sixth of Edward II., Sir John Clavering sued eighteen villeins of his

manor of Cossey, for withdrawing themselves therefrom with their

chattels; whereupon a writ was directed to them; but six of the number

claimed to be freemen, alleging the Conqueror's charter, and offering to

prove that they had lived in Norwich, paying scot and lot, about thirty

years; which claim was admitted.[411]

By such means a large proportion of the peasantry before the middle of

the fourteenth century had become hired labourers instead of villeins.

We first hear of them on a grand scale in an ordinance made by Edward

III. in the twenty-third year of his reign. This was just after the

dreadful pestilence of 1348, and it recites that, the number of workmen

and servants having been greatly reduced by that calamity, the

remainder demanded excessive wages from their employers. Such an

enhancement in the price of labour, though founded exactly on the same

principles as regulate the value of any other commodity, is too

frequently treated as a sort of crime by lawgivers, who seem to grudge

the poor that transient melioration of their lot which the progress of

population, or other analogous circumstances, will, without any

interference, very rapidly take away. This ordinance therefore enacts

that every man in England, of whatever condition, bond or free, of able

body, and within sixty years of age, not living of his own, nor by any

trade, shall be obliged, when required, to serve any master who is

willing to hire him at such wages as were usually paid three years

since, or for some time preceding; provided that the lords of villeins

or tenants in villenage shall have the preference of their labour, so

that they retain no more than shall be necessary for them. More than

these old wages is strictly forbidden to be offered, as well as

demanded. No one is permitted, under colour of charity, to give alms to

a beggar. And, to make some compensation to the inferior classes for

these severities, a clause is inserted, as wise, just, and practicable

as the rest, for the sale of provisions at reasonable prices.[412]

This ordinance met with so little regard that a statute was made in

parliament two years after, fixing the wages of all artificers and

husbandmen, with regard to the nature and season of their labour. From

this time it became a frequent complaint of the commons that the statute

of labourers was not kept. The king had in this case, probably, no other

reason for leaving their grievance unredressed than his inability to

change the order of Providence. A silent alteration had been wrought in

the condition and character of the lower classes during the reign of

Edward III. This was the effect of increased knowledge and refinement,

which had been making a considerable progress for full half a century,

though they did not readily permeate the cold region of poverty and

ignorance. It was natural that the country people, or uplandish folk, as

they were called, should repine at the exclusion from that enjoyment of

competence, and security for the fruits of their labour, which the

inhabitants of towns so fully possessed. The fourteenth century was, in

many parts of Europe, the age when a sense of political servitude was

most keenly felt. Thus the insurrection of the Jacquerie in France about

the year 1358 had the same character, and resulted in a great measure

from the same causes, as that of the English peasants in 1382. And we

may account in a similar manner for the democratical tone of the French

and Flemish cities, and for the prevalence of a spirit of liberty in

Germany and Switzerland.[413]

I do not know whether we should attribute part of this revolutionary

concussion to the preaching of Wicliffe's disciples, or look upon both

one and the other as phenomena belonging to that particular epoch in the

progress of society. New principles, both as to civil rule and religion,

broke suddenly upon the uneducated mind, to render it bold,

presumptuous, and turbulent. But at least I make little doubt that the

dislike of ecclesiastical power, which spread so rapidly among the

people at this season, connected itself with a spirit of insubordination

and an intolerance of political subjection. Both were nourished by the

same teachers, the lower secular clergy; and however distinct we may

think a religious reformation from a civil anarchy, there was a good

deal common in the language by which the populace were inflamed to

either one or the other. Even the scriptural moralities which were then

exhibited, and which became the foundation of our theatre, afforded fuel

to the spirit of sedition. The common original and common destination of

mankind, with every other lesson of equality which religion supplies to

humble or to console, were displayed with coarse and glaring features in

these representations. The familiarity of such ideas has deadened their

effects upon our minds; but when a rude peasant, surprisingly destitute

of religious instruction during that corrupt age of the church, was led

at once to these impressive truths, we cannot be astonished at the

intoxication of mind they produced.[414]

Though I believe that, compared at least with the aristocracy of other

countries, the English lords were guilty of very little cruelty or

injustice, yet there were circumstances belonging to that period which

might tempt them to deal more hardly than before with their peasantry.

The fourteenth century was an age of greater magnificence than those

which had preceded, in dress, in ceremonies, in buildings; foreign

luxuries were known enough to excite an eager demand among the higher

ranks, and yet so scarce as to yield inordinate prices; while the

landholders were, on the other hand, impoverished by heavy and unceasing

taxation. Hence it is probable that avarice, as commonly happens, had

given birth to oppression; and if the gentry, as I am inclined to

believe, had become more attentive to agricultural improvements, it is

reasonable to conjecture that those whose tenure obliged them to

unlimited services of husbandry were more harassed than under their

wealthy and indolent masters in preceding times.

The storm that almost swept away all bulwarks of civilized and regular

society seems to have been long in collecting itself. Perhaps a more

sagacious legislature might have contrived to disperse it: but the

commons only presented complaints of the refractoriness with which

villeins and tenants in villenage rendered their due services;[415] and

the exigencies of government led to the fatal poll-tax of a groat, which

was the proximate cause of the insurrection. By the demands of these

rioters we perceive that territorial servitude was far from extinct; but

it should not be hastily concluded that they were all personal villeins,

for a large proportion were Kentish-men, to whom that condition could

not have applied; it being a good bar to a writ de nativitate probanda

that the party's father was born in the county of Kent.[416]

After this tremendous rebellion it might be expected that the

legislature would use little indulgence towards the lower commons. Such

unhappy tumults are doubly mischievous, not more from the immediate

calamities that attend them than from the fear and hatred of the people

which they generate in the elevated classes. The general charter of

manumission extorted from the king by the rioters of Blackheath was

annulled by proclamation to the sheriffs,[417] and this revocation

approved by the lords and commons in parliament; who added, as was very

true, that such enfranchisement could not be made without their consent;

"which they would never give to save themselves from perishing all

together in one day."[418] Riots were turned into treason by a law of

the same parliament.[419] By a very harsh statute in the 12th of Richard

II. no servant or labourer could depart, even at the expiration of his

service, from the hundred in which he lived without permission under the

king's seal; nor might any who had been bred to husbandry till twelve

years old exercise any other calling.[420] A few years afterwards the

commons petitioned that villeins might not put their children to school

in order to advance them by the church; "and this for the honour of all

the freemen of the kingdom." In the same parliament they complained that

villeins fly to cities and boroughs, whence their masters cannot recover

them; and, if they attempt it, are hindered by the people; and prayed

that the lords might seize their villeins in such places without regard

to the franchises thereof. But on both these petitions the king put in a

negative.[421]

From henceforward we find little notice taken of villenage in

parliamentary records, and there seems to have been a rapid tendency to

its entire abolition. But the fifteenth century is barren of materials;

and we can only infer that, as the same causes which in Edward III.'s

time had converted a large portion of the peasantry into free labourers

still continued to operate, they must silently have extinguished the

whole system of personal and territorial servitude. The latter, indeed,

was essentially changed by the establishment of the law of copyhold.

I cannot presume to conjecture in what degree voluntary manumission is

to be reckoned among the means that contributed to the abolition of

villenage. Charters of enfranchisement were very common upon the

continent. They may perhaps have been less so in England. Indeed the

statute de donis must have operated very injuriously to prevent the

enfranchisement of villeins regardant, who were entailed along with the

land. Instances, however, occur from time to time, and we cannot expect

to discover many. One appears as early as the fifteenth year of Henry

III., who grants to all persons born or to be born within his village of

Contishall, that they shall be free from all villenage in body and

blood, paying an aid of twenty shillings to knight the king's eldest

son, and six shillings a year as a quit-rent.[422] So in the twelfth of

Edward III. certain of the king's villeins are enfranchised on payment

of a fine.[423] In strictness of law, a fine from the villein for the

sake of enfranchisement was nugatory, since all he could possess was

already at his lord's disposal. But custom and equity might easily

introduce different maxims; and it was plainly for the lord's interest

to encourage his tenants in the acquisition of money to redeem

themselves, rather than to quench the exertions of their industry by

availing himself of an extreme right. Deeds of enfranchisement occur in

the reigns of Mary and Elizabeth;[424] and perhaps a commission of the

latter princess in 1574, directing the enfranchisement of her bondmen

and bondwomen on certain manors upon payment of a fine, is the last

unequivocal testimony to the existence of villenage;[425] though it is

highly probable that it existed in remote parts of the country some time

longer.[426]

[Sidenote: Reign of Henry VI.]

From this general view of the English constitution, as it stood about

the time of Henry VI., we must turn our eyes to the political

revolutions which clouded the latter years of his reign. The minority of

this prince, notwithstanding the vices and dissensions of his court and

the inglorious discomfiture of our arms in France, was not perhaps a

calamitous period. The country grew more wealthy; the law was, on the

whole, better observed; the power of parliament more complete and

effectual than in preceding times. But Henry's weakness of

understanding, becoming evident as he reached manhood, rendered his

reign a perpetual minority. His marriage with a princess of strong mind,

but ambitious and vindictive, rather tended to weaken the government and

to accelerate his downfall; a certain reverence that had been paid to

the gentleness of the king's disposition being overcome by her

unpopularity. By degrees Henry's natural feebleness degenerated almost

into fatuity; and this unhappy condition seems to have overtaken him

nearly about the time when it became an arduous task to withstand the

assault in preparation against his government. This may properly

introduce a great constitutional subject, to which some peculiar

circumstances of our own age have imperiously directed the consideration

of parliament. Though the proceedings of 1788 and 1810 are undoubtedly

precedents of far more authority than any that can be derived from our

ancient history, yet, as the seal of the legislature has not yet been

set upon this controversy, it is not perhaps altogether beyond the

possibility of future discussion; and at least it cannot be

uninteresting to look back on those parallel or analogous cases by which

the deliberations of parliament upon the question of regency were

guided.

[Sidenote: Historical instances of regencies:]

[Sidenote: during the absence of our kings in France;]

While the kings of England retained their continental dominions, and

were engaged in the wars to which those gave birth, they were of course

frequently absent from this country. Upon such occasions the

administration seems at first to have devolved officially on the

justiciary, as chief servant of the crown. But Henry III. began the

practice of appointing lieutenants, or guardians of the realm (custodes

regni), as they were more usually termed, by way of temporary

substitutes. They were usually nominated by the king without consent of

parliament; and their office carried with it the right of exercising all

the prerogatives of the crown. It was of course determined by the king's

return; and a distinct statute was necessary in the reign of Henry V. to

provide that a parliament called by the guardian of the realm during the

king's absence should not be dissolved by that event.[427] The most

remarkable circumstance attending those lieutenancies was that they were

sometimes conferred on the heir apparent during his infancy. The Black

Prince, then duke of Cornwall, was left guardian of the realm in 1339,

when he was but ten years old;[428] and Richard his son, when still

younger, in 1372, during Edward III.'s last expedition into France.[429]

[Sidenote: at the accession of Henry III.;]

[Sidenote: of Edward I.;]

[Sidenote: of Edward III.;]

[Sidenote: of Richard II.;]

These do not however bear a very close analogy to regencies in the

stricter sense, or substitutions during the natural incapacity of the

sovereign. Of such there had been several instances before it became

necessary to supply the deficiency arising from Henry's derangement. 1.

At the death of John, William earl of Pembroke assumed the title of

rector regis et regni, with the consent of the loyal barons who had just

proclaimed the young king, and probably conducted the government in a

great measure by their advice.[430] But the circumstances were too

critical, and the time is too remote, to give this precedent any

material weight. 2. Edward I. being in Sicily at his father's death, the

nobility met at the Temple church, as we are informed by a contemporary

writer, and, after making a new great seal, appointed the archbishop of

York, Edward earl of Cornwall, and the earl of Gloucester, to be

ministers and guardians of the realm; who accordingly conducted the

administration in the king's name until his return.[431] It is here

observable that the earl of Cornwall, though nearest prince of the

blood, was not supposed to enjoy any superior title to the regency,

wherein he was associated with two other persons. But while the crown

itself was hardly acknowledged to be unquestionably hereditary, it would

be strange if any notion of such a right to the regency had been

entertained. 3. At the accession of Edward III., then fourteen years

old, the parliament, which was immediately summoned, nominated four

bishops, four earls, and six barons as a standing council, at the head

of which the earl of Lancaster seems to have been placed, to advise the

king in all business of government. It was an article in the charge of

treason, or, as it was then styled, of accroaching royal power, against

Mortimer, that he intermeddled in the king's household without the

assent of this council.[432] They may be deemed therefore a sort of

parliamentary regency, though the duration of their functions does not

seem to be defined. 4. The proceedings at the commencement of the next

reign are more worthy of attention. Edward III. dying June 21, 1377, the

keepers of the great seal next day, in absence of the chancellor beyond

sea, gave it into the young king's hands before his council. He

immediately delivered it to the duke of Lancaster, and the duke to Sir

Nicholas Bode for safe custody. Four days afterwards the king in council

delivered the seal to the bishop of St. David's, who affixed it the same

day to divers letters patent.[433] Richard was at this time ten years

and six months old; an age certainly very unfit for the personal

execution of sovereign authority. Yet he was supposed capable of

reigning without the aid of a regency. This might be in virtue of a sort

of magic ascribed by lawyers to the great seal, the possession of which

bars all further inquiry, and renders any government legal. The practice

of modern times requiring the constant exercise of the sign manual has

made a public confession of incapacity necessary in many cases where it

might have been concealed or overlooked in earlier periods of the

constitution. But though no one was invested with the office of regent,

a council of twelve was named by the prelates and peers at the king's

coronation, July 16, 1377, without whose concurrence no public measure

was to be carried into effect. I have mentioned in another place the

modifications introduced from time to time by parliament, which might

itself be deemed a great council of regency during the first years of

Richard.

[Sidenote: of Henry VI.]

5. The next instance is at the accession of Henry VI. This prince was

but nine months old at his father's death; and whether from a more

evident incapacity for the conduct of government in his case than in

that of Richard II., or from the progress of constitutional principles

in the forty years elapsed since the latter's accession, far more

regularity and deliberation were shown in supplying the defect in the

executive authority. Upon the news arriving that Henry V. was dead,

several lords spiritual and temporal assembled, on account of the

imminent necessity, in order to preserve peace, and provide for the

exercise of officers appertaining to the king. These peers accordingly

issued commissions to judges, sheriffs, escheators, and others, for

various purposes, and writs for a new parliament. This was opened by

commission under the great seal directed to the duke of Gloucester, in

the usual form, and with the king's teste.[434] Some ordinances were

made in this parliament by the duke of Gloucester as commissioner, and

some in the king's name. The acts of the peers who had taken on

themselves the administration, and summoned parliament, were confirmed.

On the twenty-seventh day of its session, it is entered upon the roll

that the king, "considering his tender age, and inability to direct in

person the concerns of his realm, by assent of lords and commons,

appoints the duke of Bedford, or, in his absence beyond sea, the duke of

Gloucester, to be protector and defender of the kingdom and English

church, and the king's chief counsellor." Letters patent were made out

to this effect, the appointment being however expressly during the

king's pleasure. Sixteen councillors were named in parliament to assist

the protector in his administration; and their concurrence was made

necessary to the removal and appointment of officers, except some

inferior patronage specifically reserved to the protector. In all

important business that should pass by order of council, the whole, or

major part, were to be present; "but if it were such matter that the

king hath been accustomed to be counselled of, that then the said lords

proceed not therein without the advice of my lords of Bedford or

Gloucester."[435] A few more councillors were added by the next

parliament, and divers regulations established for their

observance.[436]

This arrangement was in contravention of the late king's testament,

which had conferred the regency on the duke of Gloucester, in exclusion

of his elder brother. But the nature and spirit of these proceedings

will be better understood by a remarkable passage in a roll of a later

parliament; where the house of lords, in answer to a request of

Gloucester that he might know what authority he possessed as protector,

remind him that in the first parliament of the king[437] "ye desired to

have had ye governaunce of yis land; affermyng yat hit belonged unto you

of rygzt, as well by ye mene of your birth as by ye laste wylle of ye

kyng yat was your broyer, whome God assoile; alleggyng for you such

groundes and motyves as it was yought to your discretion made for your

intent; whereupon, the lords spiritual and temporal assembled there in

parliament, among which were there my lordes your uncles, the bishop of

Winchester that now liveth, and the duke of Exeter, and your cousin the

earl of March that be gone to God, and of Warwick, and other in great

number that now live, had great and long deliberation and advice,

searched precedents of the governail of the land in time and case

semblable, when kings of this land have been tender of age, took also

information of the laws of the land, of such persons as be notably

learned therein, and finally found your said desire not caused nor

grounded in precedent, nor in the law of the land; the which the king

that dead is, in his life nor might by his last will nor otherwise

altre, change, nor abroge, without the assent of the three estates, nor

commit or grant to any person governance or rule of this land longer

than he lived; but on that other behalf, the said lords found your said

desire not according with the laws of this land, and against the right

and fredome of the estates of the same land. Howe were it that it be not

thought that any such thing wittingly proceeded of your intent; and

nevertheless to keep peace and tranquillity, and to the intent to ease

and appease you, it was advised and appointed by authority of the king,

assenting the three estates of this land, that ye, in absence of my lord

your brother of Bedford, should be chief of the king's council, and

devised unto you a name different from other counsellors, not the name

of tutor, lieutenant, governor, nor of regent, nor no name that should

import authority of governance of the land, but the name of protector

and defensor, which importeth a personal duty of attendance to the

actual defence of the land, as well against enemies outward, if case

required, as against rebels inward, if any were, that God forbid;

granting you therewith certain power, the which is specified and

contained in an act of the said parliament, to endure as long as it

liked the king. In the which, if the intent of the said estates had been

that ye more power and authority should have had, more should have been

expressed therein; to the which appointment, ordinance, and act, ye then

agreed you as for your person, making nevertheless protestation that it

was not your intent in any wise to deroge or do prejudice unto my lord

your brother of Bedford by your said agreement, as toward any right that

he would pretend or claim in the governance of this land; and as toward

any pre-eminence that you might have or belong unto you as chief of

council, it is plainly declared in the said act and articles, subscribed

by my said lord of Bedford, by yourself, and the other lords of the

council. But as in parliament to which ye be called upon your faith and

ligeance as duke of Glocester, as other lords be, and not otherwise, we

know no power nor authority that ye have, other than ye as duke of

Glocester should have, the king being in parliament, at years of mest

discretion: We marvailing with all our hearts that, considering the open

declaration of the authority and power belonging to my lord of Bedford

and to you in his absence, and also to the king's council subscribed

purely and simply by my said lord of Bedford and by you, that you should

in any wise be stirred or moved not to content you therewith or to

pretend you any other: Namely, considering that the king, blessed be our

Lord, is, sith the time of the said power granted unto you, far gone and

grown in person, in wit, and understanding, and like with the grace of

God to occupy his own royal power within few years: and forasmuch

considering the things and causes abovesaid, and other many that long

were to write, We lords aforesaid pray, exhort, and require you to

content you with the power abovesaid and declared, of the which my lord

your brother of Bedford, the king's eldest uncle, contented him: and

that ye none larger power desire, will, nor use; giving you this that is

aboven written for our answer to your foresaid demand, the which we will

dwell and abide with, withouten variance or changing. Over this

beseeching and praying you in our most humble and lowly wise, and also

requiring you in the king's name, that ye, according to the king's

commandment, contained in his writ sent unto you in that behalf, come to

this his present parliament, and intend to the good effect and speed of

matters to be demesned and treted in the same, like as of right ye owe

to do."[438]

It is evident that this plain, or rather rude address to the duke of

Gloucester, was dictated by the prevalence of cardinal Beaufort's party

in council and parliament. But the transactions in the former parliament

are not unfairly represented; and, comparing them with the passage

extracted above, we may perhaps be entitled to infer: 1. That the king

does not possess any constitutional prerogative of appointing a regent

during the minority of his successor; and 2. That neither the heir

presumptive, nor any other person, is entitled to exercise the royal

prerogative during the king's infancy (or, by parity of reasoning, his

infirmity), nor to any title that conveys them; the sole right of

determining the persons by whom, and fixing the limitations under which,

the executive government shall be conducted in the king's name and

behalf, devolving upon the great council of parliament.

The expression used in the lords' address to the duke of Gloucester,

relative to the young king, that he was far gone and grown in person,

wit, and understanding, was not thrown out in mere flattery. In two

years the party hostile to Gloucester's influence had gained ground

enough to abrogate his office of protector, leaving only the honorary

title of chief counsellor.[439] For this the king's coronation, at eight

years of age, was thought a fair pretence; and undoubtedly the loss of

that exceedingly limited authority which had been delegated to the

protector could not have impaired the strength of government. This was

conducted as before by a selfish and disunited council; but the king's

name was sufficient to legalize their measures, nor does any objection

appear to have been made in parliament to such a mockery of the name of

monarchy.

[Sidenote: Henry's mental derangement.]

[Sidenote: Duke of York made protector.]

In the year 1454, the thirty-second of Henry's reign, his unhappy

malady, transmitted perhaps from his maternal grandfather, assumed so

decided a character of derangement or imbecility, that parliament could

no longer conceal from itself the necessity of a more efficient ruler.

This assembly, which had been continued by successive prorogations for

nearly a year, met at Westminster on the 14th of February, when the

session was opened, by the duke of York, as king's commissioner. Kemp,

archbishop of Canterbury and chancellor of England, dying soon

afterwards, it was judged proper to acquaint the king at Windsor by a

deputation of twelve lords with this and other subjects concerning his

government. In fact, perhaps, this was a pretext chosen in order to

ascertain his real condition. These peers reported to the lords' house,

two days afterwards, that they had opened to his majesty the several

articles of their message, but "could get no answer ne sign for no

prayer ne desire," though they repeated their endeavours at three

different interviews. This report, with the instruction on which it was

founded, was, at their prayer, entered of record in parliament. Upon so

authentic a testimony of their sovereign's infirmity, the peers,

adjourning two days for solemnity or deliberation, "elected and

nominated Richard duke of York to be protector and defender of the realm

of England during the king's pleasure." The duke, protesting his

insufficiency, requested "that in this present parliament, and by

authority thereof, it be enacted that, of yourself and of your ful and

mere disposition, ye desire, name, and call me to the said name and

charge, and that of any presumption of myself I take them not upon me,

but only of the due and humble obeisance that I owe to do unto the king

our most dread and sovereign lord, and to you the peerage of this land,

in whom by the occasion of the infirmity of our said sovereign lord

resteth the exercise of his authority, whose noble commandments I am as

ready to perform and obey as any of his liegemen alive, and that, at

such time as it shall please our blessed Creator to restore his most

noble person to healthful disposition, it shall like you so to declare

and notify to his good grace." To this protestation the lords answered

that, for his and their discharge, an act of parliament should be made

conformably to that enacted in the king's infancy, since they were

compelled by an equal necessity again to choose and name a protector and

defender. And to the duke of York's request to be informed how far the

power and authority of his charge should extend, they replied that he

should be chief of the king's council, and "devised therefore to the

said duke a name different from other counsellors, not the name of

tutor, lieutenant, governor, nor of regent, nor no name that shall

import authority of governance of the land; but the said name of

protector and defensor;" and so forth, according to the language of

their former address to the duke of Gloucester. An act was passed

accordingly, constituting the duke of York protector of the church and

kingdom, and chief counsellor of the king, during the latter's pleasure;

or until the prince of Wales should attain years of discretion on whom

the said dignity was immediately to devolve. The patronage of certain

spiritual benefices was reserved to the protector according to the

precedent of the king's minority, which parliament was resolved to

follow in every particular.[440]

It may be conjectured, by the provision made in favour of the prince of

Wales, then only two years old, that the king's condition was supposed

to be beyond hope of restoration. But in about nine months he recovered

sufficient speech and recollection to supersede the duke of York's

protectorate.[441] The succeeding transactions are matter of familiar,

though not, perhaps, very perspicuous history. The king was a prisoner

in his enemies' hands after the affair at St. Albans,[442] when

parliament met in July, 1455. In this session little was done, except

renewing the strongest oaths of allegiance to Henry and his family. But

the two houses meeting again after a prorogation to November 12, during

which time the duke of York had strengthened his party, and was

appointed by commission the king's lieutenant to open the parliament, a

proposition was made by the commons that, "whereas the king had deputed

the duke of York as his commissioner to proceed in this parliament, it

was thought by the commons that, if the king hereafter could not attend

to the protection of the country, an able person should be appointed

protector, to whom they might have recourse for redress of injuries;

especially as great disturbances had lately arisen in the west through

the feuds of the earl of Devonshire and Lord Bonvile."[443] The

archbishop of Canterbury answered for the lords that they would take

into consideration what the commons had suggested. Two days afterwards

the latter appeared again with a request conveyed nearly in the same

terms. Upon their leaving the chamber, the archbishop, who was also

chancellor, moved the peers to answer what should be done in respect of

the request of the commons; adding that "it is understood that they will

not further proceed in matters of parliament, to the time that they have

answer to their desire and request." This naturally ended in the

reappointment of the duke of York to his charge of protector. The

commons indeed were determined to bear no delay. As if ignorant of what

had been resolved in consequence of their second request, they urged it

a third time, on the next day of meeting; and received for answer that

"the king our said sovereign lord, by the advice and assent of his lords

spiritual and temporal being in this present parliament, had named and

desired the duke of York to be protector and defensor of this land." It

is worthy of notice that in these words, and indeed in effect, as

appears by the whole transaction, the house of peers assumed an

exclusive right of choosing the protector, though, in the act passed to

ratify their election, the commons' assent, as a matter of course, is

introduced. The last year's precedent was followed in the present

instance, excepting a remarkable deviation; instead of the words "during

the king's pleasure," the duke was to hold his office "until he should

be discharged of it by the lords in parliament."[444]

This extraordinary clause, and the slight allegations on which it was

thought fit to substitute a vicegerent for the reigning monarch, are

sufficient to prove, even if the common historians were silent, that

whatever passed as to this second protectorate of the duke of York was

altogether of a revolutionary complexion. In the actual circumstances of

civil blood already spilled and the king in captivity, we may justly

wonder that so much regard was shown to the regular forms and precedents

of the constitution. But the duke's natural moderation will account for

part of this, and the temper of the lords for much more. That assembly

appears for the most part to have been faithfully attached to the house

of Lancaster. The partisans of Richard were found in the commons and

among the populace. Several months elapsed after the victory of St.

Albans before an attempt was thus made to set aside a sovereign, not

labouring, so far as we know, under any more notorious infirmity than

before. It then originated in the commons, and seems to have received

but an unwilling consent from the upper house. Even in constituting the

duke of York protector over the head of Henry, whom all men despaired of

ever seeing in a state to face the dangers of such a season, the lords

did not forget the rights of his son. By this latter instrument, as well

as by that of the preceding year, the duke's office was to cease upon

the prince of Wales arriving at the age of discretion.

[Sidenote: Duke of York's claim to the crown.]

But what had long been propagated in secret, soon became familiar to the

public ear; that the duke of York laid claim to the throne. He was

unquestionably heir general of the royal line, through his mother, Anne,

daughter of Roger Mortimer earl of March, son of Philippa, daughter of

Lionel duke of Clarence, third son of Edward III. Roger Mortimer's

eldest son, Edmund, had been declared heir presumptive by Richard II.;

but his infancy during the revolution that placed Henry IV. on the

throne had caused his pretensions to be passed over in silence. The new

king however was induced by a jealousy natural to his situation to

detain the earl of March in custody. Henry V. restored his liberty; and,

though he had certainly connived for a while at the conspiracy planned

by his brother-in-law the earl of Cambridge and Lord Scrope of Masham to

place the crown on his head, that magnanimous prince gave him a free

pardon, and never testified any displeasure. The present duke of York

was honoured by Henry VI. with the highest trusts in France and Ireland;

such as Beaufort and Gloucester could never have dreamed of conferring

on him if his title to the crown had not been reckoned obsolete. It has

been very pertinently remarked that the crime perpetrated by Margaret

and her counsellors in the death of the duke of Gloucester was the

destruction of the house of Lancaster.[445] From this time the duke of

York, next heir in presumption while the king was childless, might

innocently contemplate the prospect of royalty; and when such ideas had

long been passing through his mind, we may judge how reluctantly the

birth of prince Edward, nine years after Henry's marriage, would be

admitted to disturb them. The queen's administration unpopular, careless

of national interests, and partial to his inveterate enemy the duke of

Somerset;[446] the king incapable of exciting fear or respect; himself

conscious of powerful alliances and universal favour; all these

circumstances combined could hardly fail to nourish those opinions of

hereditary right which he must have imbibed from his infancy.

The duke of York preserved through the critical season of rebellion such

moderation and humanity that we may pardon him that bias in favour of

his own pretensions to which he became himself a victim. Margaret

perhaps, by her sanguinary violence in the Coventry parliament of 1460,

where the duke and all his adherents were attainted, left him not the

choice of remaining a subject with impunity. But with us, who are to

weigh these ancient factions in the balance of wisdom and justice, there

should be no hesitation in deciding that the house of Lancaster were

lawful sovereigns of England. I am, indeed, astonished that not only

such historians as Carte, who wrote undisguisedly upon a Jacobite

system, but even men of juster principles, have been inadvertent enough

to mention the right of the house of York. If the original consent of

the nation, if three descents of the crown, if repeated acts of

parliament, if oaths of allegiance from the whole kingdom, and more

particularly from those who now advanced a contrary pretension, if

undisturbed, unquestioned possession during sixty years, could not

secure the reigning family against a mere defect in their genealogy,

when were the people to expect tranquillity? Sceptres were committed,

and governments were instituted, for public protection and public

happiness, not certainly for the benefit of rulers, or for the security

of particular dynasties. No prejudice has less in its favour, and none

has been more fatal to the peace of mankind, than that which regards a

nation of subjects as a family's private inheritance. For, as this

opinion induces reigning princes and their courtiers to look on the

people as made only to obey them, so, when the tide of events has swept

them from their thrones, it begets a fond hope of restoration, a sense

of injury and of imprescriptible rights, which give the show of justice

to fresh disturbances of public order, and rebellions against

established authority. Even in cases of unjust conquest, which are far

stronger than any domestic revolution, time heals the injury of wounded

independence, the forced submission to a victorious enemy is changed

into spontaneous allegiance to a sovereign, and the laws of God and

nature enjoin the obedience that is challenged by reciprocal benefits.

But far more does every national government, however violent in its

origin, become legitimate, when universally obeyed and justly exercised,

the possession drawing after it the right; not certainly that success

can alter the moral character of actions, or privilege usurpation before

the tribunal of human opinion, or in the pages of history, but that the

recognition of a government by the people is the binding pledge of their

allegiance so long as its corresponding duties are fulfilled.[447] And

thus the law of England has been held to annex the subject's fidelity to

the reigning monarch, by whatever title he may have ascended the throne,

and whoever else may be its claimant.[448] But the statute of 11th of

Henry VII. c. 1, has furnished an unequivocal commentary upon this

principle, when, alluding to the condemnations and forfeitures by which

those alternate successes of the white and red roses had almost

exhausted the noble blood of England, it enacts that "no man for doing

true and faithful service to the king for the time being be convict or

attaint of high treason, nor of other offences, by act of parliament or

otherwise."

[Sidenote: War of the Lancastrians and Yorkists.]

Though all classes of men and all parts of England were divided into

factions by this unhappy contest, yet the strength of the Yorkists lay

in London and the neighbouring counties, and generally among the

middling and lower people. And this is what might naturally be

expected. For notions of hereditary right take easy hold of the

populace, who feel an honest sympathy for those whom they consider as

injured; while men of noble birth and high station have a keener sense

of personal duty to their sovereign, and of the baseness of deserting

their allegiance. Notwithstanding the wide-spreading influence of the

Nevils, most of the nobility were well affected to the reigning dynasty.

We have seen how reluctantly they acquiesced in the second protectorate

of the duke of York after the battle of St. Albans. Thirty-two temporal

peers took an oath of fealty to Henry and his issue in the Coventry

parliament of 1460, which attainted the duke of York and the earls of

Warwick and Salisbury.[449] And in the memorable circumstances of the

duke's claim personally made in parliament, it seems manifest that the

lords complied not only with hesitation but unwillingness, and in fact

testified their respect and duty for Henry by confirming the crown to

him during his life.[450] The rose of Lancaster blushed upon the banners

of the Staffords, the Percies, the Veres, the Hollands, and the

Courtneys. All these illustrious families lay crushed for a time under

the ruins of their party. But the course of fortune, which has too great

a mastery over crowns and sceptres to be controlled by men's affection,

invested Edward IV. with a possession which the general consent of the

nation both sanctioned and secured. This was effected in no slight

degree by the furious spirit of Margaret, who began a system of

extermination by acts of attainder and execution of prisoners that

created abhorrence, though it did not prevent imitation. And the

barbarities of her northern army, whom she led towards London after the

battle of Wakefield, lost the Lancastrian cause its former friends,[451]

and might justly convince reflecting men that it were better to risk

the chances of a new dynasty than trust the kingdom to an exasperated

faction.

[Sidenote: Edward IV.]

A period of obscurity and confusion ensues, during which we have as

little insight into constitutional as general history. There are no

contemporary chroniclers of any value, and the rolls of parliament, by

whose light we have hitherto steered, become mere registers of private

bills, or of petitions relating to commerce. The reign of Edward IV. is

the first during which no statute was passed for the redress of

grievances or maintenance of the subject's liberty. Nor is there, if I

am correct, a single petition of this nature upon the roll. Whether it

were that the commons had lost too much of their ancient courage to

present any remonstrances, or that a wilful omission has vitiated the

record, is hard to determine; but we certainly must not imagine that a

government cemented with blood poured on the scaffold, as well as in the

field, under a passionate and unprincipled sovereign, would afford no

scope for the just animadversion of parliament.[452] The reign of Edward

IV. was a reign of terror. One half of the noble families had been

thinned by proscription; and though generally restored in blood by the

reversal of their attainders--a measure certainly deserving of much

approbation--were still under the eyes of vigilant and inveterate

enemies. The opposite faction would be cautious how they resisted a king

of their own creation, while the hopes of their adversaries were only

dormant. And indeed, without relying on this supposition, it is commonly

seen that, when temporary circumstances have given a king the means of

acting in disregard of his subjects' privileges, it is a very difficult

undertaking for them to recover a liberty which has no security so

effectual as habitual possession.

Besides the severe proceedings against the Lancastrian party, which

might be extenuated by the common pretences, retaliation of similar

proscriptions, security for the actual government, or just punishment of

rebellion against a legitimate heir, there are several reputed instances

of violence and barbarity in the reign of Edward IV. which have not such

plausible excuses. Every one knows the common stories of the citizen who

was attainted of treason for an idle speech that he would make his son

heir to the crown, the house where he dwelt; and of Thomas Burdett, who

wished the horns of his stag in the belly of him who had advised the

king to shoot it. Of the former I can assert nothing, though I do not

believe it to be accurately reported. But certainly the accusation

against Burdett, however iniquitous, was not confined to these frivolous

words; which indeed do not appear in his indictment,[453] or in a

passage relative to his conviction in the roll of parliament. Burdett

was a servant and friend of the duke of Clarence, and sacrificed as a

preliminary victim. It was an article of charge against Clarence that he

had attempted to persuade the people that "Thomas Burdett his servant,

which was lawfully and truly attainted of treason, was wrongfully put to

death."[454] There could indeed be no more oppressive usage inflicted

upon meaner persons than this attainder of the duke of Clarence--an act

for which a brother could not be pardoned had he been guilty, and which

deepens the shadow of a tyrannical age, if, as it seems, his offence

toward Edward was but levity and rashness.

But whatever acts of injustice we may attribute, from authority or

conjecture, to Edward's government, it was very far from being

unpopular. His love of pleasure, his affability, his courage and beauty,

gave him a credit with his subjects which he had no real virtue to

challenge. This restored him to the throne, even against the prodigious

influence of Warwick, and compelled Henry VII. to treat his memory with

respect, and acknowledge him as a lawful king.[455] The latter years of

his reign were passed in repose at home after scenes of unparalleled

convulsions, and in peace abroad after more than a century of expensive

warfare. His demands of subsidy were therefore moderate, and easily

defrayed by a nation which was making rapid advances towards opulence.

According to Sir John Fortescue, nearly one fifth of the whole kingdom

had come to the king's hand by forfeiture at some time or other since

the commencement of his reign.[456] Many indeed of these lands had been

restored, and others lavished away in grants, but the surplus revenue

must still have been considerable.

Edward IV. was the first who practised a new method of taking his

subjects' money without consent of parliament, under the plausible name

of benevolences. These came in place of the still more plausible loans

of former monarchs, and were principally levied on the wealthy traders.

Though no complaint appears in the parliamentary records of his reign,

which, as has been observed, complain of nothing, the illegality was

undoubtedly felt and resented. In the remarkable address to Richard by

that tumultuary meeting which invited him to assume the crown, we find,

among general assertions of the state's decay through misgovernment, the

following strong passage:--"For certainly we be determined rather to

aventure and committe us to the perill of owre lyfs and jopardie of

deth, than to lyve in such thraldome and bondage as we have lyved long

tyme heretofore, oppressed and injured by extortions and newe

impositions ayenst the lawes of God and man, and the libertie, old

policie, and lawes of this realme, whereyn every Englishman is

inherited."[457] Accordingly, in Richard III.'s only parliament an act

was passed which, after reciting in the strongest terms the grievances

lately endured, abrogates and annuls for ever all exactions under the

name of benevolence.[458] The liberties of this country were at least

not directly impaired by the usurpation of Richard. But from an act so

deeply tainted with moral guilt, as well as so violent in all its

circumstances, no substantial benefit was likely to spring. Whatever

difficulty there may be in deciding upon the fate of Richard's nephews

after they were immured in the Tower, the more public parts of the

transaction bear unequivocal testimony to his ambitious usurpation.[459]

It would therefore be foreign to the purpose of this chapter to dwell

upon his assumption of the regency, or upon the sort of election,

however curious and remarkable, which gave a pretended authority to his

usurpation of the throne. Neither of these has ever been alleged by any

party in the way of constitutional precedent.

[Sidenote: Conclusion.]

At this epoch I terminate these inquiries into the English constitution;

a sketch very imperfect, I fear, and unsatisfactory, but which may at

least answer the purpose of fixing the reader's attention on the

principal objects, and of guiding him to the purest fountains of

constitutional knowledge. From the accession of the house of Tudor a new

period is to be dated in our history, far more prosperous in the

diffusion of opulence and the preservation of general order than the

preceding, but less distinguished by the spirit of freedom and jealousy

of tyrannical power. We have seen, through the twilight of our

Anglo-Saxon records, a form of civil policy established by our

ancestors, marked, like the kindred governments of the continent, with

aboriginal Teutonic features; barbarous indeed, and insufficient for the

great ends of society, but capable and worthy of the improvement it has

received, because actuated by a sound and vital spirit, the love of

freedom and of justice. From these principles arose that venerable

institution, which none but a free and simple people could have

conceived, trial by peers--an institution common in some degree to other

nations, but which, more widely extended, more strictly retained, and

better modified among ourselves, has become perhaps the first, certainly

among the first, of our securities against arbitrary government. We have

seen a foreign conqueror and his descendants trample almost alike upon

the prostrate nation and upon those who had been companions of their

victory, introduce the servitudes of feudal law with more than their

usual rigour, and establish a large revenue by continual precedents upon

a system of universal and prescriptive extortion. But the Norman and

English races, each unfit to endure oppression, forgetting their

animosities in a common interest, enforce by arms the concession of a

great charter of liberties. Privileges wrested from one faithless

monarch are preserved with continual vigilance against the machinations

of another; the rights of the people become more precise, and their

spirit more magnanimous, during the long reign of Henry III. With

greater ambition and greater abilities than his father, Edward I.

attempts in vain to govern in an arbitrary manner, and has the

mortification of seeing his prerogative fettered by still more important

limitations. The great council of the nation is opened to the

representatives of the commons. They proceed by slow and cautious steps

to remonstrate against public grievances, to check the abuses of

administration, and sometimes to chastise public delinquency in the

officers of the crown. A number of remedial provisions are added to the

statutes; every Englishman learns to remember that he is the citizen of

a free state, and to claim the common law as his birthright, even though

the violence of power should interrupt its enjoyment. It were a strange

misrepresentation of history to assert that the constitution had

attained anything like a perfect state in the fifteenth century; but I

know not whether there are any essential privileges of our countrymen,

any fundamental securities against arbitrary power, so far as they

depend upon positive institution, which may not be traced to the time

when the house of Plantagenet filled the English throne.

FOOTNOTES:

[1] The fullest account we possess of these domestic transactions from

1294 to 1298 is in Walter Hemingford, one of the historians edited by

Hearne, p. 52-168. They have been vilely perverted by Carte, but

extremely well told by Hume, the first writer who had the merit of

exposing the character of Edward I. See too Knyghton in Twysden's Decem

Scriptores, col. 2492.

[2] Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73.

[3] Edward would not confirm the charters, notwithstanding his promise,

without the words, salvo jure coronae nostrae; on which the two earls

retired from court. When the confirmation was read to the people at St.

Paul's, says Hemingford, they blessed the king on seeing the charters

with the great seal affixed; but when they heard the captious

conclusion, they cursed him instead. At the next meeting of parliament,

the king agreed to omit these insidious words, p. 168.

[4] The supposed statute, De Tallagio non concedendo, is considered by

Blackstone (Introduction to Charters, p. 67) as merely an abstract of

the Confirmatio Chartarum. By that entitled Articuli super Chartas, 28

Edw. I., a court was erected in every county, of three knights or

others, to be elected by the commons of the shire, whose sole province

was to determine offences against the two charters, with the power of

punishing by fine and imprisonment; but not to extend to any case

wherein a remedy by writ was already provided. The Confirmatio Chartarum

is properly denominated a statute, and always printed as such; but in

form, like Magna Charta, it is a charter, or letters patent, proceeding

from the crown, without even reciting the consent of the realm. And its

"teste" is at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with

the count of Flanders, in a war with Philip the Fair. But a parliament

had been held at London, when the barons insisted on these concessions.

The circumstances are not wholly unlike those of Magna Charta.

The Lords' Committee do not seem to reject the statute "de tallagio non

concedendo" altogether, but say that, "if the manuscript containing it

(in Corpus Christi College, Cambridge) is a true copy of a statute, it

is undoubtedly a copy of a statute of the 25th, and not of a statute of

the 34th of Edward I." p. 230. It seems to me on comparing the two, that

the supposed statute de tallagio is but an imperfect transcript of the

king's charter at Ghent. But at least, as one exists in an authentic

form, and the other is only found in an unauthorized copy, there can be

no question which ought to be quoted.

[5] Hody (Treatise on Convocations, p. 126) states the matter thus: in

the Saxon times all bishops and abbots sat and voted in the state

councils, or parliament, as such, and not on account of their tenures.

After the Conquest the abbots sat there not as such, but by virtue of

their tenures, as barons; and the bishops sat in a double capacity, as

bishops, and as barons.

[6] Hody, p. 128.

[7] [Note I.]

[8] Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. c. 17.

Lyttelton's Henry II. vol. ii. p. 217. The last of these writers

supposes, contrary to Selden, that the earls continued to be governors

of their counties under Henry II. Stephen created a few titular earls,

with grants of crown lands to support them; but his successor resumed

the grants, and deprived them of their earldoms.

In Rymer's Foedera, vol. i. p. 3, we find a grant of Matilda, creating

Milo of Gloucester earl of Hereford, with the moat and castle of that

city in fee to him and his heirs, the third penny of the rent of the

city, and of the pleas in the county, three manors and a forest, and the

service of three tenants in chief, with all their fiefs; to be held with

all privileges and liberties as fully as ever any earl in England had

possessed them.

[9] Selden's Works, vol. iii. p. 713-743.

[10] Lyttelton's Henry II. vol. ii. p. 212.

[11] Hody on Convocations, p. 222, 234.

[12] Lib. ii. c. 9.

[13] Hody and Lord Lyttelton maintain these "barons of the second rank"

to have been the sub-vassals of the crown; tenants of the great barons

to whom the name was sometimes improperly applied. This was very

consistent with their opinion, that the commons were a part of

parliament at that time. But Hume, assuming at once the truth of their

interpretation in this instance, and the falsehood of their system,

treats it as a deviation from the established rule, and a proof of the

unsettled state of the constitution.

[14] [Note II.]

[15] M. Paris, p. 785. The barons even tell the king that this was

contrary to _his_ charter, in which nevertheless the clause to that

effect, contained in his father's charter, had been omitted.

[16] Henry II., in 1175, forbad any of those who had been concerned in

the late rebellion to come to his court without a particular summons.

Carte, vol. ii. p. 249.

[17] Upon the subject of tenure by barony, besides the writers already

quoted, see West's Inquiry into the Method of creating Peers, and

Carte's History of England, vol. ii. p. 247.

[18] Hody on Convocations, p. 293.

[19] Brady, Introduction to History of England. Appendix, p. 43.

[20] Brady's History of England, vol. i. Appendix, p. 182.

[21] Brady's Introduction, p. 94.

[22] Hist. of Common Law, vol, i. p. 202.