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

Part XXVI

     It may be conjectured, by the provision made in favor of the Prince of
Wales, then only two years, old that the king's condition was supposed to be
beyond hope of restoration.  But in about nine months he recovered sufficient
speech and recollection to supersede the Duke of York's protectorate. ^w The
succeeding transactions are matter of familiar, though not, perhaps, very
perspicuous history.  The king was a prisoner in his enemies' hands after the
affair at St. Albans, ^x when parliament met in July, 1455.  In this session
little was done, except renewing the strongest oaths of allegiance to Henry
and his family.  But the two houses meeting again after a prorogation to
November 12, during which time the Duke of York had strengthened his party,
and was appointed by commission the king's lieutenant to open the parliament,
a proposition was made by the commons that, "whereas the king had deputed the
Duke of York as his commissioner to proceed in this parliament, it was thought
by the commons that, if the king hereafter could not attend to the protection
of the country, an able person should be appointed protector, to whom they
might have recourse for redress of injuries; especially as great disturbances
had lately arisen in the west through the feuds of the Earl of Devonshire and
Lord Bonvile." ^y The Archbishop of Canterbury answered for the lords that
they would take into consideration what the commons had suggested.  Two days
afterwards the latter appeared again with a request conveyed nearly in the
same terms. Upon their leaving the chamber, the archbishop, who was also
chancellor, moved the peers to answer what should be done in respect of the
request of the commons; adding that "it is understood that they will not
further proceed in matters of parliament, to the time that they have answer to
their desire and request." This naturally ended in the reappointment of the
Duke of York to his charge of protector.  The commons indeed were determined
to bear no delay.  As if ignorant of what had been resolved in consequence of
their second request, they urged it a third time, on the next day of meeting;
and received for answer that "the king our said sovereign lord, by the advice
and assent of his lords spiritual and temporal being in this present
parliament, had named and desired the Duke of York to be protector and
defensor of this land." It is worthy of notice that in these words, and indeed
in effect, as appears by the whole transaction, the house of peers assumed an
exclusive right of choosing the protector, though, in the act passed to ratify
their election, the commons' assent, as a matter of course, is introduced.
The last year's precedent was followed in the present instance, excepting a
remarkable deviation; instead of the words "during the king's pleasure," the
duke was to hold his office "until he should be discharged of it by the lords
in parliament." ^z

[Footnote w: Paston Letters, vol. i. p. 81.  The proofs of sound mind given in
this letter are very decisive, but the wits of sovereigns are never weighed in
golden scales.]

[Footnote x: This may seem an improper appellation for what is usually termed
a battle, wherein 5,000 men are said to have fallen.  But I rely here upon my
faithful guide, the Paston Letters, p. 100, one of which, written immediately
after the engagement, says that only six score were killed.  Surely this
testimony outweighs a thousand ordinary chroniclers. And the nature of the
action, which was a sudden attack on the town of St. Albans, without any
pitched combat, renders the larger number improbable. Whethamstede, himself
Abbot of St. Albans at the time, makes the Duke of York's army but 3,000
fighting men, p. 352.  This account of the trifling loss of life in the battle
of St. Albans is confirmed by a contemporary letter, published in the
Archaeologia (xx. 519).  The whole number of the slain was but forty-eight,
including, however, several lords.]

[Footnote y: See some account of these in Paston Letters, vol. i. p. 114.]

[Footnote z: Rot. Parl. vol. v. pp. 284-290.]

     This extraordinary clause, and the slight allegations on which it was
thought fit to substitute a vicegerent for the reigning monarch, are
sufficient to prove, even if the common historians were silent, that whatever
passed as to this second protectorate of the Duke of York was altogether of a
revolutionary complexion.  In the actual circumstances of civil blood already
spilled and the king in captivity, we may justly wonder that so much regard
was shown to the regular forms and precedents of the constitution.  But the
duke's natural moderation will account for part of this, and the temper of the
lords for much more.  That assembly appears for the most part to have been
faithfully attached to the house of Lancaster. The partisans of Richard were
found in the commons and among the populace. Several months elapsed after the
victory of St. Albans before an attempt was thus made to set aside a
sovereign, not laboring, so far as we know, under any more notorious infirmity
than before.  It then originated in the commons, and seems to have received
but an unwilling consent from the upper house.  Even in constituting the Duke
of York protector over the head of Henry, whom all men despaired of ever
seeing in a state to face the dangers of such a season, the lords did not
forget the rights of his son.  By this latter instrument, as well as by that
of the preceding year the duke's office was to cease upon the Prince of Wales
arriving at the age of discretion.

     But what had long been propagated in secret, soon became familiar to the
public ear: that the Duke of York laid claim to the throne.  He was
unquestionably heir general of the royal line, through his mother, Anne,
daughter of Roger Mortimer Earl of March, son of Philippa, daughter of Lionel
Duke of Clarence, third son of Edward III.  Roger Mortimer's eldest son,
Edmund, had been declared heir presumptive by Richard II.; but his infancy
during the revolution that placed Henry IV. on the throne had caused his
pretensions to be passed over in silence.  The new king, however, was induced
by a jealousy natural to his situation to detain the Earl of March in custody.
Henry V. restored his liberty; and, though he had certainly connived for
awhile at the conspiracy planned by his brother-in-law the Earl of Cambridge
and Lord Scrope of Masham to place the crown on his head, that magnanimous
prince gave him a free pardon, and never testified any displeasure.  The
present Duke of York was honored by Henry VI. with the highest trusts in
France and Ireland; such as Beaufort and Gloucester could never have dreamed
of conferring on him if his title to the crown had not been reckoned obsolete.
It has been very pertinently remarked that the crime perpetrated by Margaret
and her counsellors in the death of the Duke of Gloucester was the destruction
of the house of Lancaster. ^a From this time the Duke of York, next heir in
presumption while the king was childless, might innocently contemplate the
prospect of royalty; and when such ideas had long been passing through his
mind, we may judge how reluctantly the birth of Prince Edward, nine years
after Henry's marriage, would be admitted to disturb them.  The queen's
administration unpopular, careless of national interests, and partial to his
inveterate enemy the Duke of Somerset; ^b the king incapable of exciting fear
or respect; himself conscious of powerful alliances and universal favor - all
these circumstances combined could hardly fail to nourish those opinions of
hereditary right which he must have imbibed from his infancy.

[Footnote a: Hall, p. 210.]

[Footnote b: The ill-will of York and the queen began as early as 1449, as we
learn from an unequivocal testimony, a letter of that date in the Paston
collection, vol. i. p. 26.]

     The Duke of York preserved through the critical season of rebellion such
moderation and humanity that we may pardon him that bias in favor of his own
pretensions to which he became himself a victim.  Margaret perhaps, by her
sanguinary violence in the Coventry parliament of 1460, where the duke and all
his adherents were attainted, left him not the choice of remaining a subject
with impunity.  But with us, who are to weigh these ancient factions in the
balance of wisdom and justice, there should be no hesitation in deciding that
the house of Lancaster were lawful sovereigns of England.  I am, indeed,
astonished that not only such historians as Carte, who wrote undisguisedly
upon a Jacobite system, but even men of juster principles, have been
inadvertent enough to mention the right of the house of York.  If the original
consent of the nation, if three descents of the crown, if repeated acts of
parliament, if oaths of allegiance from the whole kingdom, and more
particularly from those who now advanced a contrary pretension, if
undisturbed, unquestioned possession during sixty years, could not secure the
reigning family against a mere defect in their genealogy, when were the people
to expect tranquillity?  Sceptres were committed, and governments were
instituted, for public protection and public happiness, not certainly for the
benefit of rulers, or for the security of particular dynasties.  No prejudice
has less in its favor, and none has been more fatal to the peace of mankind,
than that which regards a nation of subjects as a family's private
inheritance.  For, as this opinion induces reigning princes and their
courtiers to look on the people as made only to obey them, so, when the tide
of events has swept them from their thrones, it begets a fond hope of
restoration, a sense of injury and of imprescriptible rights, which give the
show of justice to fresh disturbances of public order, and rebellions against
established authority. Even in cases of unjust conquest, which are far
stronger than any domestic revolution, time heals the injury of wounded
independence, the forced submission to a victorious enemy is changed into
spontaneous allegiance to a sovereign, and the laws of God and nature enjoin
the obedience that is challenged by reciprocal benefits.  But far more does
every national government, however violent in its origin, become legitimate,
when universally obeyed and justly exercised, the possession drawing after it
the right; not certainly that success can alter the moral character of
actions, or privilege usurpation before the tribunal of human opinion, or in
the pages of history, but that the recognition of a government by the people
is the binding pledge of their allegiance so long as its corresponding duties
are fulfilled. ^c And thus the law of England has been held to annex the
subject's fidelity to the reigning monarch, by whatever title he may have
ascended the throne, and whoever else may be its claimant. ^d But the statute
of 11th of Henry VII. c. 1, has furnished an unequivocal commentary upon this
principle, when, alluding to the condemnations and forfeitures by which those
alternate successes of the white and red roses had almost exhausted the noble
blood of England, it enacts that "no man for doing true and faithful service
to the king for the time being be convict or attaint of high treason, nor of
other offences, by act of parliament or otherwise."

[Footnote c: Upon this great question the fourth discourse in Sir Michael
Foster's Reports ought particularly to be read.]

[Footnote d: Hale's Pleas of the Crown, vol. ii. pp. 61, 101 (edit. 1736).]

     Though all classes of men and all parts of England were divided into
factions by this unhappy conquest, yet the strength of the Yorkists lay in
London and the neighboring counties, and generally among the middling and
lower people.  And this is what might naturally be expected.  For notions of
hereditary right take easy hold of the populace, who feel an honest sympathy
for those whom they consider as injured; while men of noble birth and high
station have a keener sense of personal duty to their sovereign, and of the
baseness of deserting their allegiance.  Notwithstanding the wide-spreading
influence of the Nevils, most of the nobility were well affected to the
reigning dynasty.  We have seen how reluctantly they acquiesced in the second
protectorate of the Duke of York after the battle of St. Albans.  Thirty-two
temporal peers took an oath of fealty to Henry and his issue in the Coventry
parliament of 1460, which attainted the Duke of York and the earls of Warwick
and Salisbury. ^e And in the memorable circumstances of the duke's claim
personally made in parliament, it seems manifest that the lords complied not
only with hesitation but unwillingness, and in fact testified their respect
and duty for Henry by confirming the crown to him during his life. ^f The rose
of Lancaster blushed upon the banners of the Staffords, the Percies, the
Veres, the Hollands, and the Courtneys.  All these illustrious families lay
crushed for a time under the ruins of their party.  But the course of fortune,
which has too great a mastery over crowns and sceptres to be controlled by
men's affection, invested Edward IV. with a possession which the general
consent of the nation both sanctioned and secured.  This was effected in no
slight degree by the furious spirit of Margaret, who began a system of
extermination by acts of attainder and execution of prisoners that created
abhorrence, though it did not prevent imitation.  And the barbarities of her
northern army, whom she led towards London after the battle of Wakefield, lost
the Lancastrian cause its former friends, ^g and might justly convince
reflecting men that it were better to risk the chances of a new dynasty than
trust the kingdom to an exasperated faction.

[Footnote e: Rot. Parl. vol. v. p. 351.]

[Footnote f: Id., p. 375.  This entry in the roll is highly interesting and
important.  It ought to be read in preference to any of our historians. Hume,
who drew from inferior sources, is not altogether accurate.  Yet one
remarkable circumstance, told by Hall and other chroniclers, that the Duke of
York stood by the throne, as if to claim it, though omitted entirely in the
roll, is confirmed by Whethamstede, Abbot of St. Albans, who was probably then
present.  (P. 484, edit. Hearne.) This shows that we should only doubt, and
not reject, unless upon real grounds of suspicion, the assertions of secondary
writers.]

[Footnote g: The abbey of St. Albans was stripped by the queen and her army
after the second battle fought at that place, Feb. 17, 1461; which changed
Whethamstede, the abbot and historiographer, from a violent Lancastrian into a
Yorkist.  His change of party is quite sudden, and amusing enough. See, too,
the Paston Letters, vol. i. p. 206.  Yet the Paston family were originally
Lancastrian, and returned to that side in 1470.]

     A period of obscurity and confusion ensues, during which we have as
little insight into constitutional as general history.  There are no
contemporary chroniclers of any value, and the rolls of parliament, by whose
light we have hitherto steered, become mere registers of private bills, or of
petitions relating to commerce.  The reign of Edward IV. is the first during
which no statute was passed for the redress of grievances or maintenance of
the subject's liberty.  Nor is there, if I am correct, a single petition of
this nature upon the roll.  Whether it were that the commons had lost too much
of their ancient courage to present any remonstrances, or that a wilful
omission has vitiated the record, is hard to determine; but we certainly must
not imagine that a government cemented with blood poured on the scaffold, as
well as in the field, under a passionate and unprincipled sovereign, would
afford no scope for the just animadversion of parliament. ^h The reign of
Edward IV. was a reign of terror.  One-half of the noble families had been
thinned by proscription; and though generally restored in blood by the
reversal of their attainders - a measure certainly deserving of much
approbation - were still under the eyes of vigilant and inveterate enemies.
The opposite faction would be cautious how they resisted a king of their own
creation, while the hopes of their adversaries were only dormant.  And indeed,
without relying on this supposition, it is commonly seen that, when temporary
circumstances have given a king the means of acting in disregard of his
subjects' privileges, it is a very difficult undertaking for them to recover a
liberty which has no security so effectual as habitual possession.

[Footnote h: There are several instances of violence and oppression apparent
on the rolls during this reign, but not proceeding from the crown. One of a
remarkable nature (vol. v. p. 173) was brought forward to throw an odium on
the Duke of Clarence, who had been concerned in it.  Several passages indicate
the character of the Duke of Gloucester.]

     Besides the severe proceedings against the Lancastrian party, which might
be extenuated by the common pretences, retaliation of similar proscriptions,
security for the actual government, or just punishment of rebellion against a
legitimate heir, there are several reputed instances of violence and barbarity
in the reign of Edward IV. which have not such plausible excuses.  Everyone
knows the common stories of the citizen who was attainted for treason for an
idle speech that he would make his son heir to the crown, the house where he
dwelt; and of Thomas Burdett, who wished the horns of his stag in the belly of
him who had advised the king to shoot it.  Of the former I can assert nothing,
though I do not believe it to be accurately reported.  But certainly the
accusation against Burdett, however iniquitous, was not confined to these
frivolous words; which indeed do not appear in his indictment, ^i or in a
passage relative to his conviction in the roll of parliament.  Burdett was a
servant and friend of the Duke of Clarence, and sacrificed as a preliminary
victim.  It was an article of charge against Clarence that he had attempted to
persuade the people that "Thomas Burdett his servant, which was lawfully and
truly attainted of treason, was wrongfully put to death." ^j There could
indeed be no more oppressive usage inflicted upon meaner persons than this
attainder of the Duke of Clarence - an act of for which a brother could not be
pardoned had he been guilty, and which deepens the shadow of a tyrannical age,
if, as it seems, his offence toward Edward was but levity and rashness.

[Footnote i: See in Cro. Car. 120, the indictment against Burdett for
compassing the king's death, and for that purpose conspiring with Stacie and
Blake to calculate his nativity and his son's, ad sciendum quando iidem rex et
Edwardus ejus filius morientur: Also for the same end dispersing divers rhymes
and ballads de murmurationibus, seditionibus et proditoriis excitationibus,
factas et fabricatas apud Holbourn, to the intent that the people might
withdraw their love from the king and desert him, ac erga ipsum regem
insurgerent, et guerram erga ipsum regem levarent, ad finalem destructionem
ipsorum regis ac domini prinsipis, &c.]

[Footnote j: Rot. Parl. vol. vi. p. 193.]

     But whatever acts of injustice we may attribute, from authority or
conjecture, to Edward's government, it was very far from being unpopular. His
love of pleasure, his affability, his courage and beauty, gave him a credit
with his subjects which he had no real virtue to challenge.  This restored him
to the throne, even against the prodigious influence of Warwick, and compelled
Henry VII. to treat his memory with respect, and acknowledged him as a lawful
king. ^k The latter years of his reign were passed in repose at home after
scenes of unparalleled convulsions, and in peace abroad after more than a
century of expensive warfare.  His demands of subsidy were therefore moderate,
and easily defrayed by a nation which was making rapid advances towards
opulence.  According to Sir John Fortescue, nearly one-fifth of the whole
kingdom had come to the king's hand by forfeiture at some time or other since
the commencement of his reign. ^l Many indeed of these lands had been
restored, and others lavished away in grants, but the surplus revenue must
still have been considerable.

[Footnote k: The rolls of Henry VII.'s first parliament are full of an absurd
confusion in thought and language, which is rendered odious by the purposes to
which it is applied.  Both Henry VI. and Edward IV. are considered as lawful
kings; except in one instance, where Alan Cotterell, petitioning for the
reversal of his attainder, speaks of Edward, "late called Edward IV." (vol.
iv. p. 290.) But this is only the language of a private Lancastrian.  And
Henry VI. passes for having been king during his short restoration in 1470,
when Edward had been nine years upon the throne. For the Earl of Oxford is
said to have been attainted "for the true allegiance and service he owed and
did to Henry VI. at Barnet field and otherwise." (P. 281.) This might be
reasonable enough on the true principle that allegiance is due to a king de
facto; if indeed we could determine who was the king de facto on the morning
of the battle of Barnet.  But this principle was not fairly recognized.
Richard III. is always called, "in deed and not in right King of England." Nor
was this merely founded on his usurpation as against his nephew.  For that
unfortunate boy is little better treated, and in the act of resumption, 1 H.
VII., while Edward IV. is styled "late king," appears only with the
denomination of "Edward his son, late called Edward V." (P. 336.) Who then was
king after the death of Edward IV.?  And was his son really illegitimate, as a
usurping uncle pretended?  Or did the crime of Richard, though punished in
him, enure to the benefit of Henry?  These were points which, like the fate of
the young princes in the tower, he chose to wrap in discreet silence.  But the
first question he seems to have answered in his own favor.  For Richard
himself, Howard Duke of Norfolk, Lord Lovel, and some others, are attainted
(p. 276) for "traiterously intending, compassing, and imagining" the death of
Henry; of course before or at the battle of Bosworth; and while his right,
unsupported by possession, could have rested only on an hereditary title which
it was an insult to the nation to prefer.  These monstrous proceedings explain
the necessity of that conservative statute to which I have already alluded,
which passed in the eleventh year of his reign, and afforded as much security
for men following the plain line of rallying round the standard of their
country as mere law can offer.  There is some extraordinary reasoning upon
this act in Carte's History (vol. ii. p. 844), for the purpose of proving that
the adherents of George II. would not be protected by it on the restoration of
the true blood.]

[Footnote l: Difference of aof Absolute and Limited Monarchy, p. 83.]

     Edward IV. was the first who practised a new method of taking his
subjects' money without consent of parliament, under the plausible name of
benevolences.  These came in place of the still more plausible loans of former
monarchs, and were principally levied on the wealthy traders. Though no
complaint appears in the parliamentary records of his reign, which, as has
been observed, complain of nothing, the illegality was undoubtedly felt and
resented.  In the remarkable address to Richard by that tumultuary meeting
which invited him to assume the crown, we find, among general assertions of
the state's decay through misgovernment, the following strong passage: - "For
certainly we be determined rather to aventure and committe us to the perill of
owre lyfs and jopardie of deth, than to lyve in such thraldome and bondage as
we have lyved long tyme heretofore, oppressed and injured by extortions and
newe impositions ayenst the lawes of God and man, and the libertie, old
policie, and lawes of this realme, whereyn every Englishman is inherited." ^m
Accordingly, in Richard III.'s only parliament an act was passed which, after
reciting in the strongest terms the grievances lately endured, abrogates and
annuls forever all exactions under the name of benevolence. ^n The liberties
of this country were at least not directly impaired by the usurpation of
Richard. But from an act so deeply tainted with moral guilt, as well as so
violent in all its circumstances, no substantial benefit was likely to spring.
Whatever difficulty there may be in deciding upon the fate of Richard's
nephews after they were immured in the Tower, the more public parts of the
transaction bear unequivocal testimony to his ambitious usurpation. ^o It
would therefore be foreign to the purpose of this chapter to dwell upon his
assumption of the regency, or upon the sort of election, however curious and
remarkable, which gave a pretended authority to his usurpation of the throne.
Neither of these has ever been alleged by any party in the way of
constitutional precedent.

[Footnote m: Rot. Parl. vol. vi. p. 241.]

[Footnote n: 1 R. III. c. 2.]

[Footnote o: The long-debated question as to the murder of Edward and his
brother seems to me more probably solved on the common supposition that it was
really perpetrated by the orders of Richard, than on that of Walpole, Carte,
Henry, and Laing, who maintain that the Duke of York, at least, was in some
way released from the Tower, and reappeared as Perkin Warbeck.  But a very
strong conviction either way is not readily attainable.]

     At this epoch I terminate these inquiries into the English constitution:
a sketch very imperfect, I fear, and unsatisfactory, but which may at least
answer the purpose of fixing the reader's attention on the principal objects,
and of guiding him to the purest fountains of constitutional knowledge.  From
the accession of the house of Tudor a new period is to be dated in our
history, far more prosperous in the diffusion of opulence and the preservation
of general order than the preceding, but less distinguished by the spirit of
freedom and jealousy of tyrannical power.  We have seen, through the twilight
of our Anglo-Saxon records, a form of civil policy established by our
ancestors, marked, like the kindred governments of the continent, with
aboriginal Teutonic features; barbarous indeed, and insufficient for the great
ends of society, but capable and worthy of the improvement it has received,
because actuated by a sound and vital spirit, the love of freedom and of
justice.  From these principles arose that venerable institution, which none
but a free and simple people could have conceived, trial by peers - an
institution common in some degree to other nations, but which, more widely
extended, more strictly retained, and better modified among ourselves, has
become perhaps the first, certainly among the first, of our securities against
arbitrary government. We have seen a foreign conqueror and his descendants
trample almost alike upon the prostrate nation and upon those who had been
companions of their victory, introduce the servitudes of feudal law with more
than their usual rigor, and establish a large revenue by continual precedents
upon a system of universal and prescriptive extortion.  But the Norman and
English races, each unfit to endure oppression, forgetting their animosities
in a common interest, enforce by arms the concession of a great charter of
liberties. Privileges wrested from one faithless monarch are preserved with
continual vigilance against the machinations of another; the rights of the
people become more precise, and their spirit more magnanimous, during the long
reign of Henry III.  With greater ambition and greater abilities than his
father, Edward I. attempts in vain to govern in an arbitrary manner, and has
the mortification of seeing his prerogative fettered by still more important
limitations.  The great council of the nation is opened to the representatives
of the commons.  They proceed by slow and cautious steps to remonstrate
against public grievances, to check the abuses of administration, and
sometimes to chastise public delinquency in the officers of the crown.  A
number of remedial provisions are added to the statutes; every Englishman
learns to remember that he is the citizen of a free state, and to claim the
common law as his birthright, even though the violence of power should
interrupt its enjoyment.  It were a strange misrepresentation of history to
assert that the constitution had attained anything like a perfect state in the
fifteenth century; but I know not whether here are any essential privileges of
our countrymen, any fundamental securities against arbitrary power, so far as
they depend upon positive institution, which may not be traced to the time
when the house of Plantagenet filled the English throne.