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

Part XXIII

     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 favor 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 recognized in theory, and never regarded
in effect. ^n

[Footnote n: This was written in 1811 or 1812; and is among many passages
which the progress of time has somewhat falsified.]

     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.

     By what means the English acquired and preserved this political liberty,
which, even in the fifteenth century, was the admiration of judicious
foreigners, ^o 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 burdens, 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, ^p
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.

[Footnote o: Philip de Comines takes several opportunities of testifying his
esteem for the English government.  See particularly l. iv. c. i. and l. v. c.
xix.]

[Footnote p: By a frankleyn in this place we are to understand what we call a
country squire, like the frankleyn of Chaucer; for the word esquire in
Fortescue's time was only used in its limited sense, for the sons of peers and
knights, or such as had obtained the title by creation or some other legal
means.

     The mention of Chaucer leads me to add that the prologue to his
Canterbury Tales it of itself a continual testimony to the plenteous and
comfortable situation of the middle ranks in England, as well as to that
fearless independence and frequent originality of character amongst them,
which liberty and competence have conspired to produce.]

     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 connection 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
ardor 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 vigor, 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 profits 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 expressed 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, or 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." ^q 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 neighbor's horse for breaking
fences.

[Footnote q: Brady's Hist. vol. i.; Appendix, p. 148.]

     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 honor," 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. ^r

[Footnote r: Matt. Paris, p. 330; Lyttelton's Hist. of Henry II. vol. iv. p.
41.]

     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 favorable 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 endeavored only to lighten its burden, 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 favor, 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.

     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. ^s Even proceedings
in courts of justice were often liable to intimidation and influence. ^t 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. ^u

[Footnote s: If a man was disseized of his land, he might enter upon the
disseizor and reinstate himself without course of law.  In what case this
right of entry was taken away, or tolled, as it was expressed, by the death or
alienation of the disseizor, is a subject extensive enough to occupy two
chapters of Littelton.  What pertains to our inquiry is, that by an entry in
the old law-books we must understand an actual repossession of the disseizee,
not a suit in ejectment, as it is now interpreted, but which is a
comparatively modern proceeding.  The first remedy, says Britton, of the
disseizee is to collect a body of his friends (recoiller amys et force), and
without delay to cast out the disseizors, or at least to maintain himself in
possession along with them.  c. 44.  This entry ought indeed, by 5 R. II.
stat. i. c. 8, to be made peaceably; and the justices might assemble the posse
comitatus to imprison persons entering on lands by violence (15 R. II. c. 2),
but these laws imply the facts that made them necessary.]

[Footnote t: No lord, or other person, by 20 R. II. c. 3, was permitted to sit
on the bench with the justices of assize.  Trials were sometimes overawed by
armed parties who endeavored to prevent their adversaries from appearing.
Paston Letters, vol. iii. p. 119.]

[Footnote u: From a passage in the Paston Letters (vol. ii. p. 23) it appears
that, far from these acts being regarded, it was considered as a mark of
respect to the king, when he came into a county, for the noblemen and gentry
to meet him with as many attendants in livery as they could muster.  Sir John
Paston was to provide twenty men in their livery-gowns, and the Duke of
Norfolk two hundred.  This illustrates the well-known story of Henry VII. and
the Earl of Oxford, and shows the mean and oppressive conduct of the king in
that affair, which Hume has pretended to justify.

     In the first of Edward IV. it is said in the roll of parliament (vol. v.
p. 407), that, "by yeving of liveries and signets, contrary to the statutes
and ordinances made aforetyme, maintenaunce of quarrels, extortions,
robberies, murders been multiplied and continued within this reame, to the
grete disturbaunce and inquietation of the same."]

     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, ^v more
often attested by records during the three centuries that the house of
Plantagenet sat on the throne.  Disseizin, or forcible dispossession of
freeholds, makes one of the most considerable articles in our law-books. ^w
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," ^x it may be perceived how
thoroughly these sentiments had pervaded the public mind.

[Footnote v: Thus to select one passage out of many: Eodem anno (1332) quidam
maligni, fulti quorundam magnatum praesidio, regis adolescentiam spernentes,
et regnum perturbare intendentes, in tantam turbam creverunt, nemora et saltus
occupaverunt, ita quod toti regno terrori essent. Walsingham, p. 132.]

[Footnote w: I am aware that in many, probably a great majority of reported
cases, this word was technically used, where some unwarranted conveyance, such
as a feoffment by the tenant for life, was held to have wrought a disseizin;
or where the plaintiff was allowed, for the purpose of a more convenient
remedy, to feign himself disseized, which was called disseizin by election.
But several proofs might be brought from the parliamentary petitions, and I
doubt not, if nearly looked at, from the Year-books, that in other cases there
was an actual and violent expulsion.  And the definition of disseizin in all
the old writers, such as Britton and Littleton, is obviously framed upon its
primary meaning of violent dispossession, which the word had probably acquired
long before the more peaceable disseizins, if I may use the expression, became
the subject of the remedy by assize.

     I would speak with deference of Lord Mansfield's elaborate judgment in
Taylor dem.  Atkins v. Horde, 1 Burrow 107, &c.; but some positions in it
appear to me rather too strongly stated; and particularly that the acceptance
of the disseizor as tenant by the lord was necessary to render the disseizin
complete; a condition which I have not found hinted in any law-book.  See
Butler's note on Co. Litt. p. 330; where that eminent lawyer expresses similar
doubts as to Lord Mansfield's reasoning.  It may, however, be remarked, that
constructive or elective disseizins, being of a technical nature, were more
likely to produce cases in the Year-books than those accompanied with actual
violence, which would commonly turn only on matters of fact, and be determined
by a jury.

     A remarkable instance of violent disseizin, amounting in effect to a
private war, may be found in the Paston Letters, occupying most of the fourth
volume.  One of the Paston family, claiming a right to Caistor Castle, kept
possession against the Duke of Norfolk, who brought a large force, and laid a
regular seige to the place, till it surrendered for want of provisions.  Two
of the besiegers were killed.  It does not appear that any legal measures were
taken to prevent or punish this outrage.]

[Footnote x: Difference between an Absolute and Limited Monarchy, p. 99.]

     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
neighborhood 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. ^y Nor were the nobility
ashamed to patronize men guilty of every crime. Several proofs of this occur
in the rolls.  Thus, for example, in the 22d 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." ^z

[Footnote y: The manner in which these were obtained, in spite of law, may be
noticed among the violent courses of prerogative.  By statute 2 E. III. c. 2,
confirmed by 10 E. III. c. 2, the king's power of granting pardons was taken
away, except in cases of homicide per infortunium.  Another act, 14 E. III. c.
15, reciting that the former laws in this respect have not been kept, declares
that all pardons contrary to them shall be holden as null.  This, however, was
disregarded like the rest; and the commons began tacitly to recede from them,
and endeavored to compromise the question with the crown.  By 27 E. III. stat.
1, c. 2, without adverting to the existing provisions, which may therefore
seem to be repealed by implication, it is enacted that in every charter of
pardon, granted at anyone's suggestion, the suggestor's name and the grounds
of his suggestion shall be expressed, that if the same be found untrue it may
be disallowed.  And in 13 R. II. stat. 2, c. 1, we are surprised to find the
commons requesting that pardons might not be granted, as if the subject were
wholly unknown to the law; the king protesting in reply that he will save his
liberty and regality, as his progenitors had done before, but conceding some
regulations, far less remedial than what were provided already by the 27th of
Edward II.  Pardons make a pretty large head in Brooke's Abridgment, and were
undoubtedly granted without scruple by every one of our kings.  A pardon
obtained in a case of peculiar atrocity is the subject of a specific
remonstrance in 23 H. VI.  Rot. Parl. vol. v. p. 111.]

[Footnote z: Ibid. vol. ii. p. 201.  A strange policy, for which no rational
cause can be alleged, kept Wales and even Cheshire distinct from the rest of
the kingdom.  Nothing could be more injurious to the adjacent counties.  Upon
the credit of their immunity from the jurisdiction of the king's courts, the
people of Cheshire broke with armed bands into the neighboring counties, and
perpetrated all the crimes in their power.  Rot. Parl. vol. iii. pp. 81, 201,
440; Stat. 1 H. IV. c. 18.  As to the Welsh frontier, it was constantly almost
in a state of war, which a very little good sense and benevolence in any one
of our shepherds would have easily prevented, by admitting the conquered
people to partake in equal privileges with their fellow-subjects.  Instead of
this, they satisfied themselves with aggravating the mischief by granting
legal reprisals upon Welshmen. Stat.  2 H. IV. c. 16.  Welshmen were
absolutely excluded from bearing offices in Wales.  The English living in the
English towns of Wales earnestly petition, 23 H. VI.  Rot. Parl. vol. vi. pp.
104, 154, that this exclusion may be kept in force.  Complaints of the
disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol.
vi. p. 8.

     It is curious that, so early as 15 E. II., a writ was addressed to the
Earl of Arundel, justiciary of Wales, directing him to cause twenty-four
discreet persons to be chosen from the north, and as many from the south of
that principality, to serve in parliament.  Rot. Parl. vol. i. p. 456.  And we
find a similar writ in the 20th of the same king.  Prynne's Register, 4th
part, p. 60.  Willis says that he has seen a return to one of these precepts,
much obliterated, but from which it appears that Conway, Beaumaris, and
Carnarvon returned members.  Notitia Parliamentaria, vol. i. preface, p. 15.]

     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 frankpledge, 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 after felons. ^a 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.

[Footnote a: The statute of Winton was confirmed, and proclaimed afresh by the
sheriffs, 7 R. II. c. 6, after an era of great disorder.]