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

Part XXII

     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. ^t 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. ^u 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 lord's jurisdiction, who would rather relinquish their
ancient and honorable but laborious function than share it with such bold
usurpers.

[Footnote t: The judgment against Mortimer was reversed at the suit of his
son, 28 E. III., because he had not been put on his trial.  The peers had
adjudged him to death in his absence, upon common notoriety of his guilt. 4 E.
III. p. 53.  In the same session of 28 E. III. the Earl of Arundel's attainder
was also reversed, which had passed in 1 E. III., when Mortimer was at the
height of his power.  These precedents taken together seem to have resulted
from no partiality, but a true sense of justice in respect of treasons,
animated by the recent statute.  Rot. Parl. vol. ii. p. 256.]

[Footnote u: Ibid. vol. iii. p. 427.]

     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 labor 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. ^v 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.

[Footnote v: Blackstone's Comment. from Finch, vol. i. c. 7.]

     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. ^w
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.

[Footnote w: Letters are directed to all the sheriffs, 2 E. I., enjoining them
to send up a certain number of beeves, sheep, capons, &c., for the king's
coronation.  Rymer, vol. ii. p. 21.  By the statute 21 E. III. c. 12, goods
taken by the purveyors were to be paid for on the spot if under twenty
shillings' value, or within three months' time if above that value. But it is
not to be imagined that this law was or could be observed.

     Edward III., impelled by the exigencies of his French war, went still
greater lengths, and seized larger quantities of wool, which he sold beyond
sea, as well as provisions for the supply of his army.  In both cases the
proprietors had tallies, or other securities; but their despair of obtaining
payment gave rise, in 1338, to an insurrection.  There is a singular
apologetical letter of Edward to the archbishops on this occasion. Rymer, t.
v. p. 10; see also p. 73, and Knyghton, col. 2570.]

     The right of purchasing men's goods for the use of the king was extended
by a sort of analogy to their labor.  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. ^x Windsor Castle owes its massive magnificence to laborers
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. ^y

[Footnote x: Rymer, t. vi. p. 417.]

[Footnote y: Ibid. t. xi. p. 852.]

     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 favor.  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.

     The charter of the forests, granted by Henry III. along with Magna
Charta, ^z had been designed to crush the flagitious system of oppression
which prevailed in those favorite 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. ^a 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
neighboring 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.

[Footnote z: Matthew Paris asserts that John granted a separate forest
charter, and supports his position by asserting that of Henry III. at full
length.  In fact, the clauses relating to the forest were incorporated with
the great charter of John.  Such an error as this shows the precariousness of
historical testimony, even where it seems to be best grounded.]

[Footnote a: Coke, fourth Inst. p. 294.  The forest domain of the king, says
the author of the dialogue on the Exchequer under Henry II., is governed by
its own laws, not founded on the common law of the land, but the voluntary
enactment of princes: so that whatever is done by that law is reckoned not
legal in itself, but legal according to forest law, p. 29, non justum
absolute, sed justum secundum legem forestae dicatur.  I believe my
translation of justum is right; for he is not writing satirically.]

     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 color 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 statue was
enacted, in the thirteenth of Richard II., declaring the bounds of the
constable and marshal's jurisdiction. ^b It could not be denied, therefore,
that all infringements of these acknowledged limits were illegal, even if they
had a hundredfold more actual precedents in their favor 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. ^c

[Footnote b: 13 R. II. c. 2.]

[Footnote c: Rot. Parl. vol. iii. p. 530.]

     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. ^d 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
favor, 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. ^e

[Footnote d: The apprehension of this compliant spirit in the ministers of
justice led to an excellent act in 2 E. III. c. 8, that the judges shall not
omit to do right for any command under the great or privy seal.  And the
conduct of Richard II., who sought absolute power by corrupting or
intimidating them, produced another statute in the eleventh year of his reign
(c. 10), providing that neither letters of the king's signet nor of the privy
seal should from thenceforth be sent in disturbance of the law. An ordinance
of Charles V., King of France, in 1369, directs the parliament of Paris to pay
no regard to any letters under his seal suspending the course of legal
procedure, but to consider them as surreptitiously obtained.  Villaret, t. x.
p. 175.  This ordinance which was sedulously observed, tended very much to
confirm the independence and integrity of that tribunal.]

[Footnote e: Cotton's Posthuma, p. 221.  Howell's State Trials, vol. iii. p.
1.  Hume quotes a grant of the office of constable to the Earl of Rivers in 7
E. IV., and infers, unwarrantably enough, that "its authority was in direct
contradiction to Magna Charta; and it is evident that no regular liberty could
subsist with it.  It involved a full dictatorial power, continually subsisting
in the state." Hist. of England, c. 22.  But by the very words of this patent
the jurisdiction given was only over such causes quae in curia constabularii
Angliae ab antiquo, viz. tempore dicti Gulielmi conquaestoris, seu aliquo
tempore citra, tractari, audiri, examinari, aut decidi consueverunt aut jure
debuerant aut debent.  These are expressed, though not very perspicuously, in
the statute 13 R. II. c. 2, that declares the constable's jurisdiction.  And
the chief criminal matter reserved by law to the court of this officer was
treason committed out of the kingdom. In violent and revolutionary seasons,
such as the commencement of Edward IV.'s reign, some persons were tried by
martial law before the constable. But, in general, the exercise of criminal
justice by this tribunal, though one of the abuses of the times, cannot be
said to warrant the strong language adopted by Hume.]

     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 honor.  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.

     "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 burden 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." ^f

[Footnote f: Fortescue, De Laudibus Legum Angliae, c. 9.]

     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." ^g

[Footnote g: Fortescue, De Laudibus Legum Angliae, c. 13.]

     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. ^h 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. ^i 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. ^j

[Footnote h: The latter treatise having been written under Edward IV., whom
Fortescue, as a restored Lancastrian, would be anxious not to offend, and whom
in fact he took some pains to conciliate both in this and other writings, it
is evident that the principles of limited monarchy were as fully recognized in
his reign, whatever particular acts of violence might occur, as they had been
under the Lancastrian princes.]

[Footnote i: The following is one example of these prejudices: In the 9th of
Richard II. a tax on wool granted till the ensuing feast of St. John Baptist
was to be intermitted from thence to that of St. Peter, and then to
recommence; that it might not be claimed as a right.  Rot. Parl. vol. iii. p.
214.  Mr. Hume has noticed this provision, as "showing an accuracy beyond what
was to be expected in those rude times." In this epithet we see the foundation
of his mistakes.  The age of Richard II. might perhaps be called rude in some
respects.  But assuredly in prudent and circumspect perception of
consequences, and an accurate use of language, there could be no reason why it
should be deemed inferior to our own.  If Mr. Hume had ever deigned to glance
at the legal decisions reported in the Year-books of those times, he would
have been surprised, not only at the utmost accuracy, but at a subtle
refinement in verbal logic, which none of his own metaphysical treatises could
surpass.]

[Footnote j: [Note XXVII.]]

     It is an honorable circumstance to England that the history of no other
country presents so few instances of illegal condemnation upon political
charges.  The judicial torture was hardly known and never recognized by law.
^k The sentence in capital crimes, fixed unalterably by custom, allowed
nothing to vindictiveness and indignation.  There hardly occurs an example of
anyone 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 ^l 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 2d of Henry VI. ^m 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.

[Footnote k: During the famous process against the knights templars in the
reign of Edward II., the Archbishop of York, having taken the examination of
certain templars in his province, felt some doubts which he propounded to
several monasteries and divines.  Most of these relate to the main subject.
But one question, fitter indeed for lawyers than theologians, was, whereas
many would not confess without torture, whether he might make use of this
means, licet hoc in regno Angliae nunquam visum fuerit vel auditum?  Et si
torquendi sunt, utrum per clericos vel laicos?  Et dato, quod nullus omnino
tortor inveniri valeat in Anglia, utrum pro tortoribus mittendum sit ad partes
transmarinas?  Walt.  Hemingford, p. 256. Instances, however, of its use are
said to have occurred in the 15th century.  See a learned "Reading on the Use
of Torture in the Criminal Law of England, by David Jardine, Esq., 1837."]

[Footnote l: Rot. Parl. vol. iv. p. 65.]

[Footnote m: Ibid. vol. iv. p. 202.]