Multimedia Mania/abacus-multimedia-mania.iso/dp/0090/00909.txt

Text File | 1993-07-27 | 20KB | 321 lines

$Unique_ID{bob00909}
$Pretitle{}
$Title{History Of Europe During The Middle Ages
Part IX}
$Subtitle{}
$Author{Hallam, Henry}
$Affiliation{}
$Subject{footnote
england
edward
jurisdiction
henry
civil
feudal
law
nobility
private}
$Date{}
$Log{}
Title:       History Of Europe During The Middle Ages
Book:        Book VIII: The Constitutional History Of England
Author:      Hallam, Henry

Part IX

     It is deserving of remark, that, during the rebellions against this
prince and his son Henry III., not a syllable was breathed in favor of
Eleanor, Arthur's sister, who, if the present rules of succession had been
established, was the undoubted heiress of his right.  The barons chose rather
to call in the aid of Louis, with scarcely a shade of title, though with much
better means of maintaining himself.  One should think that men whose fathers
had been in the field for Matilda could make no difficulty about female
succession.  But I doubt whether, notwithstanding that precedent, the crown of
England was universally acknowledged to be capable of descending to a female
heir.  Great averseness had been shown by the nobility of Henry I. to his
proposal of settling the kingdom on his daughter. ^a And from a remarkable
passage which I shall produce in a note, it appears that even in the reign of
Edward III. the succession was supposed to be confined to the male line. ^b

[Footnote a: Lyttelton, vol. i. p. 162.]

[Footnote b: This is intimated by the treaty made in 1339 for a marriage
between the eldest son of Edward III. and the Duke of Brabant's daughter.
Edward therein promises that, if his son should die before him, leaving male
issue, he will procure the consent of his barons, nobles, and cities (that is,
of parliament; nobles here meaning knights, if the word has any distinct
sense), for such issue to inherit the kingdom; and if he die leaving a
daughter only, Edward or his heir shall make such provision for her as belongs
to the daughter of a king.  Rymer, t. v. p. 114.  It may be inferred from this
instrument that, in Edward's intention, if not by the constitution, the Salic
law was to regulate the succession of the English crown.  This law, it must be
remembered, he was compelled to admit in his claim on the kingdom of France,
though with a certain modification which gave a pretext of title to himself.]

     At length, about the middle of the thirteenth century, the lawyers
applied to the crown the same strict principles of descent which regulate a
private inheritance.  Edward I. was proclaimed immediately upon his father's
death, though absent in Sicily.  Something however of the old principle may be
traced in this proclamation, issued in his name by the guardians of the realm,
where he asserts the crown of England "to have devolved upon him by hereditary
succession and the will of his nobles." ^c These last words were omitted in
the proclamation of Edward II.; ^d since whose time the crown has been
absolutely hereditary.  The coronation oath, and the recognition of the people
at that solemnity, are formalities which convey no right either to the
sovereign or the people, though they may testify the duties of each. ^e

[Footnote c: Ad nos regni gubernaculum successione haereditaria, ac procerum
regni voluntate, et fidelitate nobis praestitia sit devolutum. Brady (History
of England, vol. ii. Appendix, p. I) expounds procerum volutate to mean
willingness, not will; as much as to say, they acted readily and without
command.  But in all probability it was intended to save the usual form of
consent.]

[Footnote d: Rymer, t. iii. p. 1.  Walsingham, however, asserts that Edward
II. ascended the throne non tam jure haereditario quam unanimi assensu
procerum et magnatum. p. 95.  Perhaps we should omit the word non, and he
might intend to say that the king had not only his hereditary title, but the
free consent of his barons.]

[Footnote e: [Note XIV.]]

     I cannot conclude the present chapter without observing one most
prominent and characteristic distinction between the constitution of England
and that of every other country in Europe; I mean its refusal of civil
privileges to the lower nobility, or those whom we denominate the gentry.  In
France, in Spain, in Germany, wherever in short we look, the appellations of
nobleman and gentleman have been strictly synonymous. Those entitled to bear
them by descent, by tenure of land, by office or royal creation, have formed a
class distinguished by privileges inherent in their blood from ordinary
freemen.  Marriage with noble families, or the purchase of military fiefs, or
the participation of many civil offices, were, more or less, interdicted to
the commons of France and the empire.  Of these restrictions, nothing, or next
to nothing, was ever known in England.  The law has never taken notice of
gentlemen. ^f From the reign of Henry III. at least, the legal equality of all
ranks below the peerage was, to every essential purpose, as complete as at
present. Compare two writers nearly contemporary, Bracton with Beaumanoir, and
mark how the customs of England are distinguishable in this respect.  The
Frenchman ranges the people under three divisions, the noble, the free, and
the servile; our countryman has no generic class, but freedom and villenage.
^g No restraint seems ever to have lain upon marriage; nor have the children
even of a peer been ever deemed to lose any privilege by his union with a
commoner.  The purchase of lands held by knight-service was always open to all
freemen.  A few privileges indeed were confined to those who had received
knighthood. ^h But, upon the whole, there was a virtual equality of rights
among all the commoners of England.  What is most particular is, that the
peerage itself imparts no privilege except to its actual possessor.  In every
other country the descendants of nobles cannot but themselves be noble,
because their nobility is the immediate consequence of their birth.  But
though we commonly say that the blood of a peer is ennobled, yet this
expression seems hardly accurate, and fitter for heralds than lawyers; since
in truth nothing confers nobility but the actual descent of a peerage.  The
sons of peers, as we well know, are commoners, and totally destitute of any
legal right beyond a barren precedence.

[Footnote f: It is hardly worth while, even for the sake of obviating cavils,
to notice as an exception the statute of 23 H. VI. c. 14, prohibiting the
election of any who were not born gentlemen for knights of the shire.  Much
less should I have thought of noticing, if it had not been suggested as an
objection, the provision of the statute of Merton, that guardians in chivalry
shall not marry their wards to velleins or burgesses, to their disparagement.
Wherever the distinctions of rank and property are felt in the customs of
society, such marriages will be deemed unequal; and it was to obviate the
tyranny of feudal superiors who compelled their wards to accept a mean
alliance, or to forfeit its price, that this provision of the statute was
made.  But this does not affect the proposition I had maintained as to the
legal equality of commoners, any more than a report of a Master in Chancery at
the present day, that a proposed marriage for a ward of the court was unequal
to what her station in society appeared to claim, would invalidate the same
proposition.]

[Footnote g: Beaumanoir, c. 45.  Bracton, l. i. c. 6.]

[Footnote h: See for these, Selden's Titles of Honor, vol. iii. p. 806.]

     There is no part, perhaps, of our constitution so admirable as this
equality of civil rights; this isonomia, which the philosophers of ancient
Greece only hoped to find in democratical government. ^i From the beginning
our law has been no respecter of persons.  It screens not the gentleman of
ancient lineage from the judgment of an ordinary jury, nor from ignominious
punishment.  It confers not, it never did confer, those unjust immunities from
public burdens, which the superior orders arrogated to themselves upon the
continent.  Thus, while the privileges of our peers, as hereditary legislators
of a free people, are incomparably more valuable and dignified in their
nature, they are far less invidious in their exercise than those of any other
nobility in Europe.  It is, I am firmly persuaded, to this peculiarly
democratical character of the English monarchy, that we are indebted for its
long permanence, its regular improvement, and its present vigor.  It is a
singular, a providential circumstance, that, in an age when the gradual march
of civilization and commerce was so little foreseen, our ancestors, deviating
from the usages of neighboring countries, should, as if deliberately, have
guarded against that expansive force which, in bursting through obstacles
improvidently opposed, has scattered havoc over Europe.

[Footnote i: The advocate of democracy, in the discussion of forms of
government which Herodotus (Thalia, c. 80) has put into the mouths of three
Persian satraps, after the murder of Smerdis; a scene conceived in the spirit
of Corneille.]

     This tendency to civil equality in the English law may, I think, be
ascribed to several concurrent causes.  In the first place the feudal
institutions were far less military in England than upon the continent. From
the time of Henry II. the escuage, or pecuniary commutation of personal
service, became almost universal.  The armies of our kings were composed of
hired troops, great part of whom certainly were knights and gentlemen, but
who, serving for pay, and not by virtue of their birth or tenure, preserved
nothing of the feudal character.  It was not, however, so much for the ends of
national as of private warfare, that the relation of lord and vassal was
contrived.  The right which every baron in France possessed of redressing his
own wrongs and those of his tenants by arms rendered their connection strictly
military.  But we read very little of private wars in England.
Notwithstanding some passages in Glanvil, which certainly appear to admit
their legality, it is not easy to reconcile this with the general tenor of our
laws. ^j They must always have been a breach of the king's peace, which our
Saxon lawgivers were perpetually striving to preserve, and which the Conqueror
and his sons more effectually maintained. ^k Nor can we trace many instances
(some we perhaps may) of actual hostilities among the nobility of England
after the Conquest, except during such an anarchy as the reign of Stephen or
the minority of Henry III.  Acts of outrage and spoliation were indeed very
frequent.  The statute of Marlebridge, soon after the baronial wars of Henry
III., speaks of the disseizins that had taken place during the late
disturbances; ^l and thirty-five verdicts are said to have been given at one
court of assize against Foulkes de Breaute, a notorious partisan, who
commanded some foreign mercenaries at the beginning of the same reign; ^m but
these are faint resemblances of that wide-spreading devastation which the
nobles of France and Germany were entitled to carry among their neighbors.
The most prominent instance perhaps of what may be deemed a private war arose
out of a contention between the earls of Gloucester and Hereford, in the reign
of Edward I., during which acts of extraordinary violence were perpetrated;
but, far from its having passed for lawful, these powerful nobles were both
committed to prison, and paid heavy fines. ^n Thus the tenure of
knight-service was not in effect much more peculiarly connected with the
profession of arms than that of socage.  There was nothing in the former
condition to generate that high self-estimation which military habits inspire.
On the contrary, the burdensome incidents of tenure in chivalry rendered
socage the more advantageous, though less honorable of the two.

[Footnote j: I have modified this passage in consequence of the just
animadversion of a periodical critic.  In the first edition I have stated too
strongly the difference which I still believe to have existed between the
customs of England and other feudal countries in respect of private warfare.
[Note XV.]]

[Footnote k: The penalties imposed on breaches of the peace, in Wilkin's
Anglo-Saxon Laws, are too numerous to be particularly inserted.  One
remarkable passage in Domesday appears, by mentioning a legal custom of
private feuds in an individual manor, and there only among Welshmen, to afford
an inference that it was an anomaly.  In the royal manor of Archenfeld in
Herefordshire, if one Welshman kills another, it was a custom for the
relations of the slain to assemble and plunder the murderer and his kindred,
and burn their houses until the corpse should be interred, which was to take
place by noon on the morrow of his death.  Of this plunder the king had a
third part, and the rest they kept for themselves.  P. 179.]

[Footnote l: Stat. 52 H. III.]

[Footnote m: Matt. Paris, p. 271.]

[Footnote n: Rot. Parl. vol. i. p. 70.]

     In the next place, we must ascribe a good deal of efficacy to the old
Saxon principles that survived the conquest of William and infused themselves
into our common law.  A respectable class of free socagers, having, in
general, full rights of alienating their lands, and holding them probably at a
small certain rent from the lord of the manor, frequently occur in Domesday
Book.  Though, as I have already observed, these were derived from the
superior and more fortunate Anglo-Saxon ceorls, they were perfectly exempt
from all marks of villenage both as to their persons and estates.  Most have
derived their name from the Saxon soc, which signifies a franchise, especially
one of jurisdiction, ^o and they undoubtedly were suitors to the court-baron
of the lord, to whose soc, or right of justice, they belonged.  They were
consequently judges in civil causes, determined before the manorial tribunal.
^p Such privileges set them greatly above the roturiers or censiers of France.
They were all Englishmen, and their tenure strictly English; which seems to
have given it credit in the eyes of our lawyers, when the name of Englishman
was affected even by those of Norman descent, and the laws of Edward the
Confessor became the universal demand.  Certainly Glanvil, and still more
Bracton, treat the tenure in free socage with great respect.  And we have
reason to think that this class of freeholders was very numerous even before
the reign of Edward I.

[Footnote o: It now appears strange to me that I could ever have given the
preference to Bracton's derivation of socage from soc de charue.  The word
sokeman, which occurs so often in Domesday, is continually coupled with soca,
a franchise or right of jurisdiction belonging to the lord, whose tenant, or
rather suitor, the sokeman is described to be.  Soc is an idle and improbable
etymology; especially as at the time when sokeman was most in use there was
hardly a word of a French root in the language.  Soc is plainly derived from
seco, and therefore cannot pass for a Teutonic word.

     I once thought the etymology of Bracton and Lyttelton curiously
illustrated by a passage in Blomefield's Hist. of Norfolk, vol. iii. p. 538
(folio).  In the manor of Cawston a man with a brazen hand holding a
ploughshare was carried before the steward as a sign that it was held by
socage of the duchy of Lancaster.]

[Footnote p: The feudal courts, if under that name we include those of
landholders having grants of soc, sac, infangthef, &c., from the crown, had
originally a jurisdiction exclusive of the county and hundred.  The Laws of
Henry I., a treatise of great authority as a contemporary exposition of the
law of England in the middle of the twelfth century, just before the great
though silent revolution which brought in the Norman jurisprudence, bear
abundant witness to the territorial courts, collateral to and independent of
those of the sheriff.  Other proofs are easily furnished for a later period.
Vide Chron. Jocelyn de Brakelonde, et alia.

     It is nevertheless true that territorial jurisdiction was never so
extensive as in governments of a more aristocratical character, either in
criminal or civil cases.  I.  In the laws ascribed to Henry I. it is said that
all great offences could only be tried in the king's court, or by his
commission. c. 10.  Glanvil distinguishes the criminal pleas, which could only
be determined before the king's judges, from those which belong to the
sheriff.  Treason, murder, robbery, and rape were of the former class; theft
of the latter. l. xiv.  The criminal jurisdiction of the sheriff is entirely
taken away by Magna Charta. c. 17.  Sir E. Coke says the territorial
franchises of infangthef and outfangthef "had some continuance afterwards, but
either by this act, or per desuetudinem, for inconvenience, these franchises
within manors are antiquated and gone." 2 Inst. p. 31.  The statute hardly
seems to reach them; and they were certainly both claimed and exercised as
late as the reign of Edward I. Blomefield mentions two instances, both in
1285, where executions for felony took place by the sentence of a court-baron.
In these cases the lord's privilege was called in question at the assizes, by
which means we learn the transaction; it is very probable that similar
executions occurred in manors where the jurisdiction was not disputed.  Hist.
of Norfolk, vol. i. p. 313; vol. iii. p. 50.  Felonies are now cognizable in
the greater part of boroughs; though it is usual, except in the most
considerable places, to remit such as are not within benefit of clergy to the
justices of gaol delivery on their circuit.  This jurisdiction, however, is
given, or presumed to be given, by special charter, and perfectly distinct
from that which was feudal and territorial.  Of the latter some vestiges
appear to remain in particular liberties, borough; but most, if not all, of
these local franchises have fallen, by right or custom, into the hands of
justices of the peace.  A territorial privilege somewhat analogous to criminal
jurisdiction, but considerably more oppressive, was that of private gaols.  At
the parliament of Merton, 1237, the lords requested to have their own prison
for trespasses upon their parks and ponds, which the king refused.  Stat.
Merton, c. II.  But several lords enjoyed this as a particular franchise;
which is saved by the statute 5 H. IV. c. 10, directing justices of the peace
to imprison no man, except in the common gaol.  2. The civil jurisdiction of
the court-baron was rendered insignificant, not only by its limitation in
personal suits to debts or damages not exceeding forty shillings, but by the
writs of tolt and pone, which at once removed a suit for lands, in any state
of its progress before judgment, into the county court or that of the king.
The statute of Marlebridge took away all appellant jurisdiction of the
superior lord, for false judgment in the manorial court of his tenant, and
thus aimed another blow at the feudal connection. 52 H. III. c. 19.  3. The
lords of the counties palatine of Chester and Durham, and the Royal franchise
of Ely, had not only a capital jurisdiction in criminal cases, but an
exclusive cognizance of civil suits; the former still is retained by the
bishops of Durham and Ely, though much shorn of its ancient extent by an act
of Henry VIII.  (27 H. VIII. c. 24), and administered by the king's justices
of assize; the bishops or their deputies being put only on the footing of
ordinary justices of the peace.  Id. s. 20.]

     But, lastly, the change which took place in the constitution of
parliament consummated the degradation, if we must use the word, of the lower
nobility: I mean, not so much their attendance by representation instead of
personal summons as their election by the whole body of freeholders, and their
separation, along with citizens and burgesses, from the house of peers.  These
changes will fall under consideration in the following chapter.