View of the State of Europe during the Middle Ages Part 8

At this epoch I terminate these inquiries into the English const.i.tution; a sketch very imperfect, I fear, and unsatisfactory, but which may at least answer the purpose of fixing the reader's attention on the princ.i.p.al objects, and of guiding him to the purest fountains of const.i.tutional 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 inst.i.tution, which none but a free and simple people could have conceived, trial by peers--an inst.i.tution 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 rigour, 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 a.s.sert that the const.i.tution had attained anything like a perfect state in the fifteenth century; but I know not whether there are any essential privileges of our countrymen, any fundamental securities against arbitrary power, so far as they depend upon positive inst.i.tution, which may not be traced to the time when the house of Plantagenet filled the English throne.

FOOTNOTES:

[1] The fullest account we possess of these domestic transactions from 1294 to 1298 is in Walter Hemingford, one of the historians edited by Hearne, p. 52-168. They have been vilely perverted by Carte, but extremely well told by Hume, the first writer who had the merit of exposing the character of Edward I. See too Knyghton in Twysden's Decem Scriptores, col. 2492.

[2] Walsingham, in Camden's Scriptores Rer. Anglicarum, p. 71-73.

[3] Edward would not confirm the charters, notwithstanding his promise, without the words, salvo jure coronae nostrae; on which the two earls retired from court. When the confirmation was read to the people at St.

Paul's, says Hemingford, they blessed the king on seeing the charters with the great seal affixed; but when they heard the captious conclusion, they cursed him instead. At the next meeting of parliament, the king agreed to omit these insidious words, p. 168.

[4] The supposed statute, De Tallagio non concedendo, is considered by Blackstone (Introduction to Charters, p. 67) as merely an abstract of the Confirmatio Chartarum. By that ent.i.tled Articuli super Chartas, 28 Edw. I., a court was erected in every county, of three knights or others, to be elected by the commons of the shire, whose sole province was to determine offences against the two charters, with the power of punishing by fine and imprisonment; but not to extend to any case wherein a remedy by writ was already provided. The Confirmatio Chartarum is properly denominated a statute, and always printed as such; but in form, like Magna Charta, it is a charter, or letters patent, proceeding from the crown, without even reciting the consent of the realm. And its "teste" is at Ghent, 2 Nov. 1297; Edward having engaged, conjointly with the count of Flanders, in a war with Philip the Fair. But a parliament had been held at London, when the barons insisted on these concessions.

The circ.u.mstances are not wholly unlike those of Magna Charta.

The Lords' Committee do not seem to reject the statute "de tallagio non concedendo" altogether, but say that, "if the ma.n.u.script containing it (in Corpus Christi College, Cambridge) is a true copy of a statute, it is undoubtedly a copy of a statute of the 25th, and not of a statute of the 34th of Edward I." p. 230. It seems to me on comparing the two, that the supposed statute de tallagio is but an imperfect transcript of the king's charter at Ghent. But at least, as one exists in an authentic form, and the other is only found in an unauthorized copy, there can be no question which ought to be quoted.

[5] Hody (Treatise on Convocations, p. 126) states the matter thus: in the Saxon times all bishops and abbots sat and voted in the state councils, or parliament, as such, and not on account of their tenures.

After the Conquest the abbots sat there not as such, but by virtue of their tenures, as barons; and the bishops sat in a double capacity, as bishops, and as barons.

[6] Hody, p. 128.

[7] [Note I.]

[8] Madox, Baronia Anglica, p. 138. Dialogus de Scaccario, 1. i. c. 17.

Lyttelton's Henry II. vol. ii. p. 217. The last of these writers supposes, contrary to Selden, that the earls continued to be governors of their counties under Henry II. Stephen created a few t.i.tular earls, with grants of crown lands to support them; but his successor resumed the grants, and deprived them of their earldoms.

In Rymer's Foedera, vol. i. p. 3, we find a grant of Matilda, creating Milo of Gloucester earl of Hereford, with the moat and castle of that city in fee to him and his heirs, the third penny of the rent of the city, and of the pleas in the county, three manors and a forest, and the service of three tenants in chief, with all their fiefs; to be held with all privileges and liberties as fully as ever any earl in England had possessed them.

[9] Selden's Works, vol. iii. p. 713-743.

[10] Lyttelton's Henry II. vol. ii. p. 212.

[11] Hody on Convocations, p. 222, 234.

[12] Lib. ii. c. 9.

[13] Hody and Lord Lyttelton maintain these "barons of the second rank"

to have been the sub-va.s.sals of the crown; tenants of the great barons to whom the name was sometimes improperly applied. This was very consistent with their opinion, that the commons were a part of parliament at that time. But Hume, a.s.suming at once the truth of their interpretation in this instance, and the falsehood of their system, treats it as a deviation from the established rule, and a proof of the unsettled state of the const.i.tution.

[14] [Note II.]

[15] M. Paris, p. 785. The barons even tell the king that this was contrary to _his_ charter, in which nevertheless the clause to that effect, contained in his father's charter, had been omitted.

[16] Henry II., in 1175, forbad any of those who had been concerned in the late rebellion to come to his court without a particular summons.

Carte, vol. ii. p. 249.

[17] Upon the subject of tenure by barony, besides the writers already quoted, see West's Inquiry into the Method of creating Peers, and Carte's History of England, vol. ii. p. 247.

[18] Hody on Convocations, p. 293.

[19] Brady, Introduction to History of England. Appendix, p. 43.

[20] Brady's History of England, vol. i. Appendix, p. 182.

[21] Brady's Introduction, p. 94.

[22] Hist. of Common Law, vol, i. p. 202.

[23] This a.s.sembly is mentioned in the preamble, and afterwards, of the spurious laws of Edward the Confessor; and I have been accused of pa.s.sing it over too slightly. The fact certainly does not rest on the authority of Hoveden, who transcribes these laws _verbatim_; and they are in substance an ancient doc.u.ment. There seems to me somewhat rather suspicious in this a.s.sembly of delegates; it looks like a pious fraud to maintain the old Saxon jurisprudence, which was giving way. But even if we admit the fact as here told, I still adhere to the a.s.sertion that there is no appearance that these twelve deputies of each county were invested with any higher authority than that of declaring their ancient usages. Any supposition of a real legislative parliament would be inconsistent with all that we know of the state of England under the Conqueror. And what an anomaly, upon every const.i.tutional principle, Anglo-Saxon or Norman, would be a parliament of twelve from each county!

Nor is it perfectly manifest that they were chosen by the people; the word summoneri fecit is first used; and afterwards, electis de (not _in_) singulis totius patriae comitatibus. This might be construed of the king's selection; but perhaps the common interpretation is rather the better.

William, the compiler informs us, having heard some of the Danish laws, was disposed to confirm them in preference to those of England; but yielded to the supplication of the delegates, omnes compatriotae, qui leges narraverant, that he would permit them to retain the customs of their ancestors, imploring him by the soul of King Edward, cujus erant leges, nec aliorum exterorum. The king at length gave way, by the advice and request of his barons, consilio et precatu baronum. These of course were Normans; but what inference can be drawn in favour of parliamentary representation in England from the behaviour of the rest? They were supplicants, not legislators.

[24] 2 Prynne's Register, p. 16.

[25] Brady's Introduction, Appendix, pp. 41 and 44. "The language of these writs implies a distinction between such as were styled barons, apparently including the earls and the four knights who were to come from the several counties ad loquendum, and who were also distinguished from the knights summoned to attend with arms, in performance, it should seem, of the military service due by their respective tenures; and the writs, therefore, apparently distinguished certain tenants in chief by knight-service from barons, if the knights so summoned to attend with arms were required to attend by reason of their respective tenures in chief of the king. How the four knights of each county who were thus summoned to confer with the king were to be chosen, whether by the county, or according to the mere will of the sheriff, does not appear; but it seems most probable that they were intended by the king as representatives of the freeholders of each county, and to balance the power of the hostile n.o.bles, who were then leagued against him; and the measure might lead to conciliate the minds of those who would otherwise have had no voice in the legislative a.s.sembly." Report of Lords'

Committee, p. 61.

This would be a remarkable fact, and the motive is by no means improbable, being perhaps that which led to the large provisions for summoning tenants in chief, contained in the charter of John, and afterwards pa.s.sed over. But this parley of the four knights from each county, for they are only summoned ad loquendum, may not amount to bestowing on them any legislative power. It is nevertheless to be remembered that the word parliament meant, by its etymology, nothing more; and the words, ad loquendum, may have been used in reference to that. It is probable that these writs were not obeyed; we have no evidence that they were, and it was a season of great confusion very little before the granting of the charter of Henry III.

[26] Brady's Hist. of England, vol. i. Appendix, p. 227.

[27] 2 Prynne, p. 23.

[28] "This writ tends strongly to show that there then existed no law by which a representation either of the king's tenants in capite or of others, for the purpose of const.i.tuting a legislative a.s.sembly, or for granting an aid, was specially provided; and it seems to have been the first instance appearing on any record now extant, of an attempt to subst.i.tute representatives elected by bodies of men for the attendance of the individual so to be represented, personally or by their several procurators, in an a.s.sembly convened for the purpose of obtaining an aid." Report, p. 95.

[29] 2 Prynne, p. 27.

[30] 12 Ric. II. c. 12. Prynne's 4th Register.

[31] Pinkerton's Hist. of Scotland, vol. i. p. 120, 357. But this law was not regularly acted upon till 1587. p. 368.

[32] What can one who adopts this opinion of Dr. Brady say to the following record? Rex militibus, liberis hominibus, et _toti communitati_ comitatus Wygorniae tam intra libertates quam extra, salutem. c.u.m comites, barones, milites, liberi homines, et communitates comitatuum regni nostri vicesimam omnium bonorum suorum mobilium, civesque et burgenses et communitates omnium civitatum et burgorum ejusdem regni, necnon tenentes de antiquis dominicis coronae nostrae quindecimam bonorum suorum mobilium n.o.bis concesserunt. Pat. Rot. 1 E.

II. in Rot. Parl. vol. i. p. 442. See also p. 241 and p. 269. If the word communitas is here used in any precise sense, which, when possible, we are to suppose in construing a legal instrument, it must designate, not the tenants in chief, but the inferior cla.s.s, who, though neither freeholders nor free burgesses, were yet contributable to the subsidy on their goods.

[33] Madox, Firma Burgi, p. 99 and p. 102 note Z.

[34] Prynne's 2nd Register, p. 50.

[35] Carte's Hist. of England, ii. 250.

[36] The present question has been discussed with much ability in the Edinburgh Review, vol. xxvi. p. 341. [Note III.]

[37] Wilkins, p. 71.

[38] Burgensis Exoniae urbis habent extra civitatem terram duodecim carucatarum: quae nullam consuetudinem reddunt nisi ad ipsam civitatem.

Domesday, p. 100. At Canterbury the burgesses had forty-five houses without the city, de quibus ipsi habebant gablum et consuetudinem, rex autem socam et sacam; ipsi quoque burgenses habebant de rege triginta tres acras prati in gildam, suam. p. 2. In Lincoln and Stamford some resident proprietors, called Lagemanni, had jurisdiction (socam et sacam) over their tenants. But nowhere have I been able to discover any trace of munic.i.p.al self-government; unless Chester may be deemed an exception, where we read of twelve judices civitatis; but by whom const.i.tuted does not appear. The word lageman seems equivalent to judex.