The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0090/00907.txt

Text File | 1992-08-07 | 30KB | 473 lines

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$Title{History Of Europe During The Middle Ages
Part VII}
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$Author{Hallam, Henry}
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Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part VII

     The statutes of those reigns do not exhibit to us many provisions
calculated to maintain public liberty on a broad and general foundation. And
although the laws then enacted have not all been preserved, yet it is unlikely
that any of an extensively remedial nature should have left no trace of their
existence.  We find, however, what has sometimes been called the Magna Charta
of William the Conqueror, published by Wilkins from a document of considerable
authority. ^w We will, enjoin, and grant, says the king, that all freemen of
our kingdom shall enjoy their lands in peace, free from all tallage, and from
every unjust exaction, so that nothing but their service lawfully due to us
shall be demanded at their hands. ^x The laws of the Conqueror, found in
Hoveden, are wholly different from those in Ingulfus, and are suspected not to
have escaped considerable interpolation. ^y It is remarkable that no reference
is made to this concession of William the Conqueror in any subsequent charter.
A charter of Henry I., the authenticity of which is undisputed, though it
contains nothing specially expressed but a remission of unreasonable reliefs,
wardships, and other feudal burdens, ^z proceeds to declare that he gives his
subjects the laws of Edward the Confessor, with the emendations made by his
father with consent of his barons. ^a The charter of Stephen not only confirms
that of his predecessor, but adds, in fuller terms than Henry had used, an
express concession of the laws and customs of Edward. ^b Henry II. is silent
about these, although he repeats the confirmation of his grandfather's
charter. ^c The people however had begun to look back to a more ancient
standard of law.  The Norman conquest, and all that ensued upon it, had
endeared the memory of their Saxon government.  Its disorders were forgotten,
or, rather, were less odious to a rude nation, than the coercive justice by
which they were afterwards restrained. ^d Hence it became the favorite cry to
demand the laws of Edward the Confessor; and the Normans themselves, as they
grew dissatisfied with the royal administration, fell into these English
sentiments. ^e But what these laws were, or more properly, perhaps, these
customs subsisting in the Confessor's age, was not very distinctly understood.
^f So far, however, was clear, that the rigorous feudal servitude, the weighty
tributes upon poorer freemen, had never prevailed before the Conquest.  In
claiming the laws of Edward the Confessor our ancestors meant but the redress
of grievances, which tradition told them had not always existed.

[Footnote w: [Note XI.]]

[Footnote x: Volumus etiam, as firmiter praecipimus et concedimus, ut omnes
liberi homines totius monarchiae praedicti regni nostri habeant et teneant
terras suas et possessiones suas bene, et in pace, libere ab omni exactione
injusta, et ab omni tallagio, ita quod nihil ab iis exigatur vel capiatur,
nisi servitium suum liberum, quod de jure nobis facere debent, et facere
tenentur; et prout statutum est iis, et illis a nobis datum et concessum jure
haereditario in perpetuum per commune concilium totius regni nostri
praedicti.]

[Footnote y: Selden, ad Eadmerum.  Hody (Treatise on Convocations, p. 249)
infers from the great alterations visible on the face of these laws that they
were altered from the French original by Glanvil.]

[Footnote z: Wilkins, p. 234.  The accession of Henry inspired hopes into the
English nation which were not well realized.  His marriage with Matilda, "of
the rightful English kin," is mentioned with apparent pleasure by the Saxon
Chronicler under the year 1100.  And in a fragment of a Latin treatise on the
English laws, praising them with a genuine feeling, and probably written in
the earlier part of Henry's reign, the author extols his behavior towards the
people, in contrast with that of preceding times, and bears explicit testimony
to the confirmation and amendment of Edward's laws by the Conqueror and by the
reigning king - Qui non solum legem regis Eadwardi nobis reddidit, quam omni
gaudiorum delectatione suscepimus, sed beati patris ejus emendationibus
roboratam propriis institutionibus honestavit.  See Cooper on Public Records
(vol. ii. p. 423), in which very useful collection the whole fragment (for the
first time in England) is published from a Cottonian manuscript.  Henry ceased
not, according to the Saxon Chronicle, to lay on many tributes. But it is
reasonable to suppose that tallages on towns and on his demesne tenants, at
that time legal, were reckoned among them.]

[Footnote a: A great impression is said to have been made on the barons
confederated against John by the production of Henry I.'s charter, whereof
they had been ignorant.  Matt. Paris, p. 212.  But this could hardly have been
the existing charter, for reasons alleged by Blackstone. Introduction to Magna
Charta, p. 6.]

[Footnote b: Wilkins, Leges Anglo-Saxon., p. 310.]

[Footnote c: Id., p. 318.]

[Footnote d: The Saxon Chronicler complains of a witenagemot, as he calls it,
or assizes, held at Leicester in 1124, where forty-four thieves were hanged, a
greater number than was ever before known; it was said that many suffered
unjustly, p. 228.  Mr. Turner translates this differently; but, as I conceive,
without attending to the spirit of the context.  Hist. of Engl., vol. i. p.
174.]

[Footnote e: The distinction between the two nations was pretty well
obliterated at the end of Henry II.'s reign, as we learn from the Dialogue on
the Exchequer, then written: jam cohabitantibus Anglicis et Normannis, et
alterutrum uxores ducentibus vel nubentibus, sic permixtae sunt nationes, ut
vix discerni possit hodie, de liberis loquor, quis Anglicus, quis Normannus,
sic genere; exceptis duntaxat ascriptitiis qui villani dicuntur, quibus non
est liberum obstantibus dominis suis a sui status conditione discedere.
Eapropter pene quicunque sic hodie occisus reperitur, ut murdrum punitur,
exceptis his quibus certa sunt ut dixmus servilis conditionis indicia. p. 26.
[Note XII.]]

[Footnote f: Non quas tulit, sed quas observaverit, says William of
Malmesbury, concerning the Confessor's laws.  Those bearing his name in
Lambard and Wilkins are evidently spurious, though it may not be easy to fix
upon the time when they were forged.  Those found in Ingulfus, in the French
language, are genuine, though translated from Latin, and were confirmed by
William the Conqueror.  Neither of these collections, however, can be thought
to have any relation to the civil liberty of the subject.  It has been deemed
more rational to suppose that these longings for Edward's laws were rather
meant for a mild administration of government, free from unjust Norman
innovations, than any written and definitive system.]

     It is highly probable, independently of the evidence supplied by the
charters of Henry I. and his two successors, that a sense of oppression had
long been stimulating the subjects of so arbitrary a government, before they
gave any demonstrations of it sufficiently palpable to find a place in
history.  But there are certainly no instances of rebellion, or even, as far
as we know, of a constitutional resistance in parliament, down to the reign of
Richard I.  The revolt of the earls of Leicester and Norfolk against Henry
II., which endangered his throne and comprehended his children with a large
part of his barons, appears not to have been founded even upon the pretext of
public grievances.  Under Richard I. something more of a national spirit began
to show itself.  For the king having left his chancellor William Longchamp
joint regent and justiciary with the Bishop of Durham during his c