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

Part XXV

     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; ^w 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. ^x

[Footnote w: Stat. l.  R. II. c. 6; Rot. Parl. vol. iii. p. 21.]

[Footnote x: 30 E. I., in Fitzherbert.  Villenage, apud Lambard's
Perambulation of Kent, p. 632.  Somner on Gavelkind, p. 72.]

     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, ^y
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." ^z Riots were turned into treason by a law of the
same parliament. ^a By a very harsh statute in the 12th of Richard II. no
servant or laborer 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. ^b 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 honor 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. ^c

[Footnote y: Rymer, t. vii. p. 316, &c.  The king holds this bitter language
to the villeins of Essex, after the death of Tyler and execution of the other
leaders had disconcerted them: Rustici quidem fuistis et estis, in bondagio
permanebitis, non ut hactenus, sed incomparabiliter viliori, &c.  Walsingham,
p. 269.]

[Footnote z: Rot. Parl. vol. iii. p. 100.]

[Footnote a: R. II. c. 7.  The words are, riot et rumour n'autres semblables;
rather a general way of creating a new treason; but panic puts an end to
jealousy.]

[Footnote b: 12 R. II. c. 3.]

[Footnote c: Rot. Parl.  15 R. II. vol. iii. pp. 294, 296.  The statute 7 H.
IV. c. 17, enacts that no one shall put his son or daughter apprentice to any
trade in a borough, unless he have land or rent to the value of twenty
shillings a year, but that any one may put his children to school. The reason
assigned is the scarcity of laborers in husbandry, in consequence of people
living in Upland apprenticing their children.]

     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 laborers 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 dedonis 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. ^d So in the
twelfth of Edward III. certain of the king's villeins are enfranchised on
payment of a fine. ^e 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; ^f
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; ^g
though it is highly probable that it existed in remote parts of the country
some time longer. ^h

[Footnote d: Blomefield's Norfolk, vol. iii. p. 571.]

[Footnote e: Rymer, t. v. p. 44.]

[Footnote f: Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p.
420; Barrington on Ancient Statutes, p. 278.  It is said in a modern book that
villenage was very rare in Scotland, and even that no instance exists in
records of an estate sold with the laborers and their families attached to the
soil.  Pinkerton's Hist. of Scotland, vol. i. p. 147.  But Mr. Chalmers, in
his Caledonia, has brought several proofs that this assertion is too general.]

[Footnote g: Barrington, ubi supra, from Rymer.]

[Footnote h: There are several later cases reported wherein villenage was
pleaded, and one of them as late as the 15th of James I.  (Noy, p. 27.) See
Hargrave's argument, State Trials, vol. xx. p. 41.  But these are so briefly
stated, that it is difficult in general to understand them.  It is obvious,
however, that judgment was in no case given in favor of the plea; so that we
can infer nothing as to the actual continuance of villenage.

     It is remarkable, and may be deemed by some persons a proof of legal
pedantry, that Sir E. Coke, while he dilates on the law of villenage, never
intimates that it was become antiquated.]

     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.

     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. ^i 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; ^j and Richard his son, when still younger, in 1372, during Edward
III.'s last expedition into France. ^k

[Footnote i: 8 H. V. c i.]

[Footnote j: This prince having been sent to Antwerp, six commissioners were
appointed to open parliament.  Rot. Parl. 13 E. III. vol. ii. p. 107.]

[Footnote k: Rymer, t. vi. p. 748.]

     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. ^l 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. ^m It is
here observable that the Earl of Cornwall, though nearest prince of the blood,
was not supposed to enjoy any superior title of 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. ^n 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. ^o 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.

[Footnote l: Matt. Paris, p. 243.]

[Footnote m: Matt, Westmonast. ap. Brady's History of England, vol. ii. p. I.]

[Footnote n: Rot. Parl. vol. ii. p. 52.]

[Footnote o: Rymer, t. vii. p. 171.]

     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. ^p 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." ^q A few more councillors were added by the next
parliament, and divers regulations established for their observance. ^r

[Footnote p: Rot. Parl. vol. iv. p. 169.]

[Footnote q: Ibid., pp. 174, 176.]

[Footnote r: Ibid., p. 201.]

     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 ^s "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." ^t

[Footnote s: I follow the orthography of the roll, which I hope will not be
inconvenient to the reader.  Why this orthography, from obsolete and
difficult, so frequently becomes almost modern, as will appear in the course
of these extracts, I cannot conjecture.  The usual irregularity of ancient
spelling is hardly sufficient to account for such variations; but if there be
any error, it belongs to the superintendents of that publication and is not
mine.]

[Footnote t: Rot. Parl. 6 H. VI. vol. iv. p. 326.]

     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. ^u
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.

[Footnote u: Ibid. 8 H. vol. iv. p. 336.]

     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.  Kent, 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 endeavors 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. ^v

[Footnote v: Rot. Parl. vol. v. p. 241.]