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

Part VIII

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

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

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

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

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

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

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

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

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

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

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

     It is probable that in the age next after the Conquest few causes in
which the crown had no interest were carried before the royal tribunals; every
man finding a readier course of justice in the manor or county to which he
belonged. ^f But by degrees this supreme jurisdiction became for more
familiar; and, as it seemed less liable to partiality or intimidation than the
provincial courts, suitors grew willing to submit to its expensiveness and
inconvenience.  It was obviously the interest of the king's court to give such
equity and steadiness to its decisions as might encourage this disposition.
Nothing could be more advantageous to the king's authority, nor, what was
perhaps more immediately regarded, to his revenue, since a fine was always
paid for leave to plead in his court, or to remove thither a cause commenced
below.  But because few, comparatively speaking, could have recourse to so
distant a tribunal as that of the king's court, and perhaps also on account of
the attachment which the English felt to their ancient right of trial by the
neighboring freeholders, Henry II. established itinerant justices to decide
civil and criminal pleas within each county. ^g This excellent institution is
referred by some to the twenty-second year of that prince; but Madox traces it
several years higher. ^h We have owed to it the uniformity of our common law,
which would otherwise have been split, like that of France, into a multitude
of local customs; and we still owe to it the assurance, which is felt by the
poorest and most remote inhabitant of England, that his right is weighed by
the same incorrupt and acute understanding upon which the decision of the
highest questions is reposed. The justices of assize seem originally to have
gone their circuits annually; and as part of their duty was to set tallages
upon royal towns, and superintend the collection of the revenue, we may be
certain that there could be no long interval.  This annual visitation was
expressly confirmed by the twelfth section of Magna Charta, which provides
also that no assize of novel disseizin, or mort d'ancestor, should be taken
except in the shire where the lands in controversy lay.  Hence this clause
stood opposed on the one hand to the encroachments of the king's court, which
might otherwise, by drawing pleas of land to itself, have defeated the
suitor's right to a jury from the vicinage; and on the other, to those of the
feudal aristocracy, who hated any interference of the crown to chastise their
violations of law, or control their own jurisdiction. Accordingly, while the
confederacy of barons against Henry III. was in its full power, an attempt was
made to prevent the regular circuits of the judges. ^i

[Footnote f: Omnis causa terminetur comitatu, vel hundredo, vel halimoto socam
habentium.  Leges Henr. I. c. 9.]

[Footnote g: Dialogus de Scaccario, p. 38.]

[Footnote h: Hist. of Exchequer, c. iii. Lord Lyttelton thinks that this
institution may have been adopted in imitation of Louis VI., who half a
century before had introduced a similar regulation in his domains.  Hist. of
Henry II. vol. ii. p. 206.  Justices in Eyre, or, as we now call them, of
assize, were sometimes commissioned in the reign of Henry I.  Hardy's
Introduction to Close Rolls.  They do not appear to have gone their circuits
regularly before 22 Hen. II. (1176.)]

[Footnote i: Justiciarii regis Angliae, qui dicuntur itineris, missi
Herfordiam pro suo exequendo officio repelluntur, allegantibus his qui regi
adversabantur, ipsos contra formam provisionum Oxoniae nuper factarum venisse.
Chron. Nic. Trivet. A. D. 1260.  I forget where I found this quotation.]

     Long after the separation of the exchequer from the king's court, another
branch was detached for the decision of private suits.  This had its
beginning, in Madox's opinion, as early as the reign of Richard I. ^j But it
was completely established by Magna Charta.  "Common Pleas," it is said in the
fourteenth clause, "shall not follow our court, but be held in some certain
place." Thus was formed the Court of Common Bench at Westminster, with full,
and, strictly speaking, exclusive jurisdiction over all civil disputes, where
neither the king's interest, nor any matter savoring of a criminal nature, was
concerned.  For of such disputes neither the court of king's bench, nor that
of exchequer, can take cognizance, except by means of a legal fiction, which,
in the one case, supposes an act of force, and, in the other, a debt to the
crown.

[Footnote j: Hist. of Exchequer, c. 19.  Justices of the bench are mentioned
several years before Magna Charta.  But Madox thinks the chief justiciary of
England might preside in the two courts, as well as in the exchequer.  After
the erection of the Common Bench the style of the superior court began to
alter.  It ceased by degrees to be called the king's court.  Pleas were said
to be held coram rege, or coram rege ubicunque fuerit.  And thus the court of
king's bench was formed out of the remains of the ancient curia regis.]

     The principal officers of state, who had originally been effective
members of the king's court, began to withdraw from it, after this separation
into three courts of justice, and left their places to regular lawyers, though
the treasurer and chancellor of the exchequer have still seats on the equity
side of that court, a vestige of its ancient constitution.  It would indeed
have been difficult for men bred in camps or palaces to fulfil the ordinary
functions of judicature under such a system of law as had grown up in England.
The rules of legal decision, among a rude people, are always very simple; not
serving much to guide, far less to control, the feelings of natural equity.
Such were those which prevailed among the Anglo-Saxons; requiring no subtler
intellect, or deeper learning, than the earl or sheriff at the head of his
county-court might be expected to possess.  But a great change was wrought in
about a century after the Conquest.  Our English lawyers, prone to magnify the
antiquity, like the other merits of their system, are apt to carry up the date
of the common law, till, like the pedigree of an illustrious family, it loses
itself in the obscurity of ancient time.  Even Sir Matthew Hale does not
hesitate to say that its origin is as undiscoverable as that of the Nile.  But
though some features of the common law may be distinguishable in Saxon times,
while our limited knowledge prevents us from assigning many of its
peculiarities to any determinable period, yet the general character and most
essential parts of the system were of much later growth.  The laws of the
Anglo-Saxon kings, Madox truly observes, are as different from those collected
by Glanvil as the laws of two different nations.  The pecuniary compositions
for crimes, especially for homicide, which run through the Anglo-Saxon code
down to the laws ascribed to Henry I., ^k are not mentioned by Glanvil.  Death
seems to have been the regular punishment of murder, as well as robbery.
Though the investigation by means of ordeal was not disused in his time, ^l
yet trial by combat, of which we find no instance before the Conquest, was
evidently preferred.  Under the Saxon government, suits appear to have
commenced, even before the king, by verbal or written complaint; at least, no
trace remains of the original writ, the foundation of our civil procedure. ^m
The descent of lands before the Conquest was according to the custom of
gavelkind, or equal partition among the children; ^n in the age of Henry I.
the eldest son took the principal fief to his own share; ^o in that of Glanvil
he inherited all the lands held by knight service; but the descent of socage
lands depended on the particular custom of the estate.  By the Saxon laws,
upon the death of the son without issue, the father inherited; ^p by our
common law, he is absolutely, and in every case, excluded. Lands were, in
general, devisable by testament before the Conquest; but not in the time of
Henry II., except by particular custom.  These are sufficient samples of the
differences between our Saxon and Norman jurisprudence; but the distinct
character of the two will strike more forcibly everyone who peruses
successively the laws published by Wilkins, and the treatise ascribed to
Glanvil.  The former resemble the barbaric codes of the continent, and the
capitularies of Charlemagne and his family, minute to an excess in
apportioning punishments, but sparing and indefinite in treating of civil
rights; while the other, copious, discriminating, and technical, displays the
characteristics, as well as unfolds the principles, of English law.  It is
difficult to assert anything decisively as to the period between the Conquest
and the reign of Henry II., which presents fewer materials for legal history
than the preceding age; but the treatise denominated the Laws of Henry I.,
compiled at the soonest about the end of Stephen's reign, ^q bears so much of
a Saxon character, that I should be inclined to ascribe our present common law
to a date, so far as it is capable of any date, not much antecedent to the
publication of Glanvil. ^r At the same time, since no kind of evidence attests
any sudden and radical change in the jurisprudence of England, the question
must be considered as left in great obscurity.  Perhaps it might be reasonable
to conjecture that the treatise called Leges Henrici Primi contains the
ancient usages still prevailing in the inferior jurisdictions, and that of
Glanvil the rules established by the Norman lawyers of the king's court, which
would of course acquire a general recognition and efficacy, in consequence of
the institution of justices holding their assizes periodically throughout the
country.

[Footnote k: C. 70.]

[Footnote l: A citizen of London, suspected of murder, having failed in the
ordeal of cold water, was hanged by order of Henry II., though he offered 500
marks to save his life.  Hoveden, p. 566.  It appears as if the ordeal were
permitted to persons already convicted by the verdict of a jury.  If they
escaped in this purgation, yet, in cases of murder, they were banished the
realm.  Wilkins, Leges Anglo-Saxon, p. 330.  Ordeals were abolished about the
beginning of Henry III.'s reign.]

[Footnote m: Hickes, Dissert Epistol. p. 8.]

[Footnote n: Leges Gulielmi, p. 225.]

[Footnote o: Leges Henr. I. c. 70.]

[Footnote p: Leges Henr. I. c. 70.]

[Footnote q: The Decretum of Gratian is quoted in this treatise, which was not
published in Italy till 1151.]

[Footnote r: Madox, Hist. of Exch. p. 122, edit. 1711.  Lord Lyttelton, vol.
ii. p. 267, had given reasons for supposing that Glanvil was not the author of
this treatise, but some clerk under his direction.]

     The capacity of deciding legal controversies was now only to be found in
men who had devoted themselves to that peculiar study; and a race of such men
arose, whose eagerness and even enthusiasm in the profession of the law were
stimulated by the self-complacency of intellectual dexterity in threading its
intricate and thorny mazes.  The Normans are noted in their own country for a
shrewd and litigious temper, which may have given a character to our courts of
justice in early times.  Something too of that excessive subtlety, and that
preference of technical to rational principles, which runs through our system,
may be imputed to the scholastic philosophy which was in vogue during the same
period, and is marked by the same features.  But we have just reason to boast
of the leading causes of these defects: an adherence to fixed rules, and a
jealousy of judicial discretion, which have in no country, I believe, been
carried to such a length.  Hence precedents of adjudged cases, becoming
authorities for the future, have been constantly noted, and form indeed almost
the sole ground of argument in questions of mere law.  But these authorities
being frequently unreasonable and inconsistent, partly from the infirmity of
all human reason, partly from the imperfect manner in which a number of
unwarranted and incorrect reporters have handed them down, later judges grew
anxious to elude by impalpable distinctions what they did not venture to
overturn.  In some instances this evasive skill has been applied to acts of
the legislature.  Those who are moderately conversant with the history of our
law will easily trace other circumstances that have co-operated in producing
that technical and subtle system which regulates the course of real property.
For as that formed almost the whole of our ancient jurisprudence, it is there
that we must seek its original character.  But much of the same spirit
pervades every part of the law.  No tribunals of a civilized people ever
borrowed so little, even of illustration, form the writings of philosophers,
for from the institutions of other countries.  Hence law has been studied, in
general, rather as an art than a science, with more solicitude to know its
rules and distinctions than to perceive their application to that for which
all rules of law ought to have been established, the maintenance of public and
private rights.  Nor is there any reading more jejune and unprofitable to a
philosophical mind than that of our ancient law-books. Later times have
introduced other inconveniences, till the vast extent and multiplicity of our
laws have become a practical evil of serious importance, and an evil which,
between the timidity of the legislature on the one hand, and the selfish views
of practitioners on the other, is likely to reach, in no long period, an
intolerable excess.  Deterred by an interested clamor against innovation from
abrogating what is useless, simplifying what is complex, or determining what
is doubtful, and always more inclined to stave off an immediate difficulty by
some patchwork scheme of modifications and suspensions than to consult for
posterity in the comprehensive spirit of legal philosophy, we accumulate
statute upon statute, and precedent upon precedent, till no industry can
acquire, nor any intellect digest, the mass of learning that grows upon the
panting student; and our jurisprudence seems not unlikely to be simplified in
the worst and least honorable manner, a tacit agreement of ignorance among its
professors.  Much indeed has already gone into desuetude within the last
century, and is known only as an occult science by a small number of adepts.
We are thus gradually approaching the crisis of a necessary reformation, when
our laws, like those of Rome, must be cast into the crucible.  It would be a
disgrace to the nineteenth century, if England could not find her Tribonian.
^s

[Footnote s: Whitelocke, just after the Restoration, complains that "Now the
volume of our statutes is grown or swelled to a great bigness." The volume!
What would he have said to the monstrous birth of a volume triennially, filled
with laws professing to be the deliberate work of the legislature, which every
subject is supposed to read, remember, and understand!  The excellent sense of
the following sentences from the same passage may well excuse me for quoting
them, and, perhaps, in this age of bigoted averseness to innovation, I have
need of some apology for what I have ventured to say in the text.  "I remember
the opinion of a wise and learned statesman and lawyer (the Chancellor
Oxenstiern), that multiplicity of written laws do but distract the judges, and
render the law less certain; that where the law sets due and clear bounds
betwixt the prerogative royal and the rights of the people, and gives remedy
in private causes, there needs no more laws to be increased; for thereby
litigation will be increased likewise.  It were a work worthy of a parliament,
and cannot be done otherwise, to cause a review of all our statutes, to repeal
such as they shall judge inconvenient to remain in force; to confirm those
which they shall think fit to stand, and those several statutes which are
confused, some repugnant to others, many touching the same matters, to be
reduced into certainty, all of one subject into one statute, that perspicuity
and clearness may appear in our written laws, which at this day few students
or sages can find in them." Whitelocke's Commentary on Parliamentary Writ,
vol. i. p. 409.]

     This establishment of a legal system, which must be considered as
complete at the end of Henry III.'s reign, when the unwritten usages of the
common law as well as the forms and precedents of the courts were digested
into the great work of Bracton, might, in some respects, conduce to the
security of public freedom.  For, however highly the prerogative might be
strained, it was incorporated with the law, and treated with the same
distinguished and argumentative subtlety as every other part of it. Whatever
things, therefore, it was asserted that the king might do, it was a necessary
implication that there were other things which he could not do; else it were
vain to specify the former.  It is not meant to press this too far; since
undoubtedly the bias of lawyers towards the prerogative was sometimes too
discernible.  But the sweeping maxims of absolute power, which servile judges
and churchmen taught the Tudor and Stuart princes, seem to have made no
progress under the Plantagenet line.

     Whatever may be thought of the effect which the study of the law had upon
the rights of the subject, it conduced materially to the security of good
order by ascertaining the hereditary succession of the crown.  Five kings out
of seven that followed William the Conqueror were usurpers, according at least
to modern notions.  Of these, Stephen alone encountered any serious opposition
upon that ground; and with respect to him, it must be remembered that all the
barons, himself included, had solemnly sworn to maintain the succession of
Matilda.  Henry II. procured a parliamentary settlement of the crown upon his
eldest and second sons; a strong presumption that their hereditary right was
not absolutely secure. ^t A mixed notion of right and choice in fact prevailed
as to the succession of every European monarchy.  The coronation oath and the
form of popular consent then required were considered as more material, at
least to perfect a title, than we deem them at present.  They gave seizin, as
it were, of the crown, and, in cases of disputed pretensions, had a sort of
judicial efficacy.  The Chronicle of Dunstable says, concerning Richard I.,
that he was "elevated to the throne by hereditary right, after a solemn
election by the clergy and people:" ^u words that indicate the current
principles of that age.  It is to be observed, however, that Richard took upon
him the exercise of royal prerogatives without waiting for his coronation. ^v
The succession of John has certainly passed in modern times for a usurpation.
I do not find that it was considered as such by his own contemporaries on this
side of the Channel.  The question of inheritance between an uncle and the son
of his deceased elder brother was yet unsettled, as we learn from Glanvil,
even in private succession. ^w In the case of sovereignties, which were
sometimes contended to require different rules from ordinary patrimonies, it
was, and continued long to be, the most uncertain point in public law.  John's
pretensions to the crown might therefore be such as the English were justified
in admitting, especially as his reversionary title seems to have been
acknowledged in the reign of his brother Richard. ^x If indeed we may place
reliance on Matthew Paris, Archbishop Hubert, on this occasion, declared in
the most explicit terms that the crown was elective, giving even to the blood
royal no other preference than their merit might challenge. ^y Carte rejects
this as a fiction of the historian; and it is certainly a strain far beyond
the constitution, which, both before and after the Conquest, had invariably
limited the throne to one royal stock, though not strictly to its nearest
branch.  In a charter of the first year of his reign, John calls himself king,
"by hereditary right, and through the consent and favor of the church and
people." ^z

[Footnote t: Lyttelton, vol. ii. p. 14.]

[Footnote u: Ibid., vol. ii. p. 42.  Haereditario jure promovendus in regnum,
post cleri et populi solennem electionem.]

[Footnote v: Gul. Neubrigensis, l. iv. c. I.]

[Footnote w: Glanvil, l. vii. c. 3.]

[Footnote x: Hoveden, p. 702.]

[Footnote y: p. 165.]

[Footnote z: Jure haereditario, et mediante tam cleri et populi consensu et
favore.  Gurdon on Parliaments, p. 139.]