The Best of the Bureau/The_Best_of_the_Bureau_Bureau_Development_Inc._1992.iso/dp/0090/00908.txt

Text File | 1992-08-07 | 28KB | 444 lines

$Unique_ID{bob00908}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Part VIII}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{law
footnote
court
henry
king
king's
might
upon
ii
laws}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part VIII

     The opinions of eminent lawyers are undoubtedly, where legislative or
judicial authorities fail, the best evidence that can be adduced in
constitutional history.  It will therefore be satisfactory to select a few
passages from Bracton, himself a judge at the end of Henry's III.'s reign, by
which the limitations of prerogative by law will clearly appear to have been
fully established.  "The king," says he, "must not be subject to any man, but
to God and the law; for the law makes him king.  Let the king therefore give
to the law what the law gives to him, dominion and power; for there is no king
where will, and not law, bears rule." ^w "The king (in another place) can do
nothing on earth, being the minister of God, but what he can do by law; nor is
what is said (in the Padects) any objection, that whatever the prince pleases
shall be law; because by the words that follow in that text it appears to
design not any mere will of the prince, but that which is established by the
advice of his councillors, the king giving his authority, and deliberation
being had upon it." ^x This passage is undoubtedly a misrepresentation of the
famous lex regia, which has ever been interpreted to convey the unlimited
power of the people to their emperors. ^y But the very circumstance of so
perverted a gloss put upon this text is a proof that no other doctrine could
be admitted in the law of England.  In another passage Bracton reckons as
superior to the king, "not only God and the law, by which he is made king, but
his court of earls and barons; for the former (comites) are so styled as
associates of the king, and whoever has an associate has a master; ^z so that,
if the king were without a bridle, that is, the law, they ought to put a
bridle upon him." ^a Several other passages in Bracton might be produced to
the same import; but these are sufficient to demonstrate the important fact,
that however extensive or even indefinite might be the royal prerogative in
the days of Henry III., the law was already its superior, itself but made part
of the law, and was incompetent to overthrow it. ^b It is true that in this
very reign the practice of dispensing with statutes by a non-obstante was
introduced, in imitation of the papal dispensations. ^c But this prerogative
could only be exerted within certain limits, and, however, pernicious it may
be justly thought, was, when thus understood and defined, not, strictly
speaking, incompatible with the legislative sovereignty of parliament.

[Footnote w: l. i. c. 8.]

[Footnote x: l. iii. c. 9.  These words are nearly copied from Glanvil's
introduction to his treatise.]

[Footnote y: See Selden ad Fletam, p. 1046.]

[Footnote z: This means, I suppose, that he who acts with the consent of
others must be in some degree restrained by them; but it is ill expressed.]

[Footnote a: l. ii. c. 16.]

[Footnote b: Allen has pointed out that the king might have been sued in his
own courts, like one of his subjects, until the reign of Edward I., who
introduced the method of suing by petition of right; and in the Year Book of
Edward III. one of the judges says that he has seen a writ beginning -
Praecipe Henry regi Angliae.  Bracton, however, expressly asserts the
contrary, as Mr. Allen owns, so that we may reckon this rather doubtful.
Bracton has some remarkable words which I have omitted to quote; after he has
broadly asserted that the king has no superior but God, and that no remedy can
be had by law against him, he proceeds: Nisi sit qui dicat, quod universitas
regni et baronagium suum hoc facere debeant et possint in curia ipsius regis.
By curia we must here understand parliament, and not the lawcourts.]

[Footnote c: M. Paris, p. 701.]

     In conformity with the system of France and other feudal countries, there
was one standing council, which assisted the kings of England in the
collection and management of their revenue, the administration of justice to
suitors, and the despatch of all public business.  This was styled the king's
court, and held in his palace, or wherever he was personally present.  It was
composed of the great officers; the chief justiciary, ^d the chancellor, the
constable, marshal, chamberlain, steward, and treasurer, with any others whom
the king might appoint.  Of this great court there was, as it seems, from the
beginning, a particular branch, in which all matters relating to the revenue
were exclusively transacted. This, though composed of the same persons, yet,
being held in a different part of the palace, and for different business, was
distinguished from the king's court by the name of the exchequer; a separation
which became complete when civil pleas were decided and judgments recorded in
this second court. ^e

[Footnote d: The chief justiciary was the greatest subject in England. Besides
presiding in the king's court and in the Exchequer, he was originally, by
virtue of his office, the regent of the kingdom during the absence of the
sovereign, which, till the loss of Normandy, occurred very frequently.  Writs,
at such times, ran in his name, and were tested by him.  Madox, Hist. of
Excheq. p. 16.  His appointment upon these temporary occasions was expressed,
ad custodiendum loco nostro terram nostram Angliae et pacem regni nostri; and
all persons were enjoined to obey him tanquam justitiario nostro.  Rymer, t.
i. p. 181.  Sometimes, however, the king issued his own writ de ultra mare.
The first time when the dignity of this office was impaired was at the death
of John, when the justiciary, Hubert de Burgh, being beseiged in Dover Castle,
those who proclaimed Henry III. at Gloucester constituted the Earl of Pembroke
governor of the king and kingdom, Hubert still retaining his office.  This is
erroneously stated by Matthew Paris, who has misled Spelman in his Glossary;
but the truth appears from Hubert's answer to the articles of charge against
him, and from a record in Madox's Hist. of Exch. c. 21, note A, wherein the
Earl of Pembroke is named rector regis et regni, and Hubert de Burgh
justiciary.  In 1241 the Archbishop of York was appointed to the regency
during Henry's absence in Poitou, without the title of justiciary.  Rymer, t.
i. p. 410.  Still the office was so considerable that the barons who met in
the Oxford parliament of 1258 insisted that the justiciary should be annually
chosen with their approbation.  But the subsequent successes of Henry
prevented this being established, and Edward I. discontinued the office
altogether.]

[Footnote e: For much information about the Curia Regis, and especially this
branch of it, the student of our constitutional history should have recourse
to Madox's History of the Exchequer, and to the Dialogus de Scaccario, written
in the time of Henry II. by Richard Bishop of Ely, though commonly ascribed to
Gervase of Tilbury.  This treatise he will find subjoined to Madox's work.
[Note XIII.]]

     It is probable that in the age next after the Conquest few causes in
which the crown had no interest were carried before the royal tribunals; every
man finding a readier course of justice in the manor or county to which he
belonged. ^f But by degrees this supreme jurisdiction became for more
familiar; and, as it seemed less liable to partiality or intimidation than the
provincial courts, suitors grew willing to submit to its expensiveness and
inconvenience.  It was obviously the interest of the king's court to give such
equity and steadiness to its decisions as might encourage this disposition.
Nothing could be more advantageous to the king's authority, nor, what was
perhaps more immediately regarded, to his revenue, since a fine was always
paid for le