View of the State of Europe during the Middle Ages Part 16

[334] Atterbury, p. 46.

[335] Rot. Parl. vol. ii. p. 64, 65.

[336] 18 E. III. stat. 3. Rot. Parl. vol. ii p. 151. This is the parliament in which it is very doubtful whether any deputies from cities and boroughs had a place. The pretended statutes were therefore every way null; being falsely imputed to an incomplete parliament.

[337] Rot. Parl. vol. ii. p. 151.

[338] 25 E. III. stat. 3.

[339] p. 368. The word _they_ is ambiguous; Whitelocke (on Parliamentary Writ, vol. ii. p. 346) interprets it of the commons: I should rather suppose it to mean the clergy.

[340] 50 E. III. c. 4 & 5.

[341] Rot. Parl. vol. iii. p. 25. A nostre tres excellent seigneur le roy supplient humblement ses devotes oratours, les prelats et la clergie de la province de Canterbirs et d'Everwyk. Stat. 1 Richard II. c. 13, 14, 15. But see Hody, p. 425; Atterbury, p. 329.

[342] Rot. Parl. vol. iii. p. 37.

[343] It might be argued, from a pa.s.sage in the parliament-roll of 21 R.

II., that the clergy of both provinces were not only present, but that they were accounted an essential part of parliament in temporal matters, which is contrary to the whole tenor of our laws. The commons are there said to have prayed that, "whereas many judgments and ordinances formerly made in parliament had been annulled _because the estate of clergy had not been present thereat_, the prelates and clergy might make a proxy with sufficient power to consent in their name to all things done in this parliament." Whereupon the spiritual lords agreed to intrust their powers to Sir Thomas Percy, and gave him a procuration commencing in the following words: "Nos Thomas Cantuar' et Robertus Ebor' archiepiscopi, ac praelati _et clerus utriusque provinciae Cantuar'

et Ebor' jure ecclesiarum nostrarum et temporalium earundem habentes jus interessendi in singulis parliamentis_ domini nostri regis et regni Angliae pro tempore celebrandis, necnon tractandi et expediendi in eisdem quantum ad singula in instanti parliamento pro statu et honore domini nostri regis, necnon regaliae suae, ac quiete, pace, et tranquillitate regni judicialiter justificandis, venerabili viro domino Thomae de Percy militi, nostram plenarie committimus potestatem." It may be perceived by these expressions, and more unequivocally by the nature of the case, that it was the judicial power of parliament which the spiritual lords delegated to their proxy. Many impeachments for capital offences were coming on, at which, by their canons, the bishops could not a.s.sist. But it can never be conceived that the inferior clergy had any share in this high judicature. And, upon looking attentively at the words above printed in italics, it will be evident that the spiritual lords holding by barony are the only persons designated; whatever may have been meant by the singular phrase, as applied to them, clerus utriusque provinciae.

Rot. Parl. vol. iii. p. 348.

[344] Atterbury. p. 346.

[345] 21 R. II. c. 12 Burnet's Hist. of Reformation (vol. ii. p. 47) led me to this act, which I had overlooked.

[346] Rot. Parl. vol. iii. p. 582. Atterbury, p. 61.

[347] The ensuing sketch of the jurisdiction exercised by the king's council has been chiefly derived from Sir Matthew Hale's Treatise of the Jurisdiction of the Lords' House in Parliament, published by Mr.

Hargrave.

[348] The words "privy council" are said not to be used till after the reign of Henry VI.; the former style was "ordinary" or "continual council." But a distinction had always been made, according to the nature of the business: the great officers of state, or, as we might now say, the ministers, had no occasion for the presence of judges or any lawyers in the secret councils of the crown. They become, therefore, a council of government, though always members of the _consilium ordinarium_; and, in the former capacity, began to keep formal records of their proceedings. The acts of this council though, as I have just said, it bore as yet no distinguis.h.i.+ng name, are extant from the year 1386, and for seventy years afterwards are known through the valuable publication of Sir Harris Nicolas.

[349] Rot. Parl. vol. iii. p. 84.

[350] Ibid. p. 266.

[351] 25 E. III. stat. 5, c. 4. Probably this fifth statute of the 25th of Edward III. is the most extensively beneficial act in the whole body of our laws. It established certainty in treasons, regulated purveyance, prohibited arbitrary imprisonment and the determination of pleas of freehold before the council, took away the compulsory finding of men-at-arms and other troops, confirmed the reasonable aid of the king's tenants fixed by 3 E. I., and provided that the king's protection should not hinder civil process or execution.

[352] 28 E. III. c. 3.

[353] 42 E. III. c. 3, and Rot. Parl. vol. ii. p. 295. It is not surprising that the king's council should have persisted in these transgressions of their lawful authority, when we find a similar jurisdiction usurped by the officers of inferior persons. Complaint is made in the 18th of Richard II. that men were compelled to answer before _the council of divers lords and ladies_, for their freeholds and other matters cognizable at common law, and a remedy for this abuse is given by pet.i.tion in chancery, stat. 15 R. II. c. 12. This act is confirmed with a penalty on its contraveners the next year, 16 R. II. c. 2. The private gaols which some lords were permitted by law to possess, and for which there was always a provision in their castles, enabled them to render this oppressive jurisdiction effectual.

[354] Rot. Parl. 17 R. II. vol. iii. p. 319; 4 H. IV. p. 507; 1 H. VI.

vol. iv. p. 189; 3 H. VI. p. 292; 8 H. VI. p. 343; 10 H. VI. p. 403; 15 H. VI. p. 501. To one of these (10 H. VI.), "that none should be put to answer for his freehold in parliament, nor before any court or council where such things are not cognizable by the law of the land," the king gave a denial. As it was less usual to refuse promises of this kind than to forget them afterwards, I do not understand the motive of this.

[355] Hale's Jurisdiction of Lords' House, p. 46. c.o.ke, 2 Inst. p. 553.

The last author places this a little later. There is a pet.i.tion of the commons, in the roll of the 4th of Henry IV. p. 511, that, whereas many grantees and feoffees in trust for their grantors and feoffers alienate or charge the tenements granted, _in which case there is no remedy unless one is ordered by parliament_, that the king and lords would provide a remedy. This pet.i.tion is referred to the king's council to advise of a remedy against the ensuing parliament. It may perhaps be inferred from hence that the writ of subpoena out of chancery had not yet been applied to protect the cestui que use. But it is equally possible that the commons, being disinclined to what they would deem an illegal innovation, were endeavouring to reduce these fiduciary estates within the pale of the common law, as was afterwards done by the statute of uses. [Note X.]

[356] Rot. Parl. vol. i. p. 416.

[357] L. ii. c. 2.

[358] [Note XI.]

[359] This is remarkably expressed in one of the articles agreed in parliament 8 H. VI. for the regulation of the council. "Item, that alle the billes that comprehend matters terminable atte the common lawe shall be remitted ther to be determined; but if so be that the discresion of the counseill fele to grete myght on that syde, and unmyght on that other, or elles other cause resonable yat shal move him." Rot. Parl.

vol. iv. p. 343. Mr. Bruce has well observed of the articles agreed upon in 8 Hen. VI., or rather of "those in 5 Hen. VI., which were nearly the same, that in theory nothing could be more excellent. In turbulent times, it is scarcely necessary to remark, great men were too apt to weigh out justice for themselves, and with no great nicety; a court, therefore, to which the people might fly for relief against powerful oppressors, was most especially needful. Law charges also were considerable; and this, 'the poor man's court, in which he might have right without paying any money' (Sir T. Smith's Commonwealth, book iii.

ch. 7), was an inst.i.tution apparently calculated to be of unquestionable utility. It was the comprehensiveness of the last clause--the 'other cause resonable'--which was its ruin." Archaeologia, vol. xxv. p. 348.

The statute 31 Hen. VI. c. 2, which is not printed in Ruffhead's edition, is very important, as giving a legal authority to the council, by writs under the great seal, and by writs of proclamation to the sheriffs, on parties making default, to compel the attendance of any persons complained of for "great riots, extortions, oppressions, and grievous offences," under heavy penalties; in case of a peer, "the loss of his estate, and name of lord, and his place in parliament," and all his lands for the term of his life; and fine at discretion in the case of other persons. A proviso is added that no matter determinable by the law of the realm should be determined in other form than after the course of law in the king's courts. Sir Francis Palgrave (Essay on the King's Council, p. 84) observes that this proviso "would in no way interfere with the effective jurisdiction of the council, inasmuch as it could always be alleged in the bills which were preferred before it that the oppressive and grievous offences of which they complained were not determinable by the ordinary course of the common law" p. 86. But this takes the word "determinable" to mean _in fact_; whereas I apprehend that the proviso must be understood to mean cases legally determinable; the words, I think, will bear no other construction. But as all the offences enumerated were indictable, we must either hold the proviso to be utterly inconsistent with the rest of the statute, or suppose that the words "other form" were intended to prohibit the irregular process usual with the council; secret examination of witnesses, torture, neglect of technical formality in specifying charges, punishments not according to the course of law, and other violations of fair and free trial, which const.i.tuted the greatest grievance in the proceedings of the council.

[360] The judgment against Mortimer was reversed at the suit of his son, 28 E. III., because he had not been put on his trial. The peers had adjudged him to death in his absence, upon common notoriety of his guilt. 4 E. III. p. 53. In the same session of 28 E. III. the earl of Arundel's attainder was also reversed, which had pa.s.sed in 1 E. III., when Mortimer was at the height of his power. These precedents taken together seem to have resulted from no partiality, but a true sense of justice in respect of treasons, animated by the recent statute. Rot.

Parl. vol. ii. p. 256.

[361] Rot. Parl. vol. iii. p. 427.

[362] Blackstone's Comment. from Finch, vol. i. c. 7.

[363] Letters are directed to all the sheriffs, 2 E. I., enjoining them to send up a certain number of beeves, sheep, capons, &c., for the king's coronation. Rymer, vol. ii. p. 21. By the statute 21 E. III. c.

12, goods taken by the purveyors were to be paid for on the spot if under twenty s.h.i.+llings' value, or within three months' time if above that value. But it is not to be imagined that this law was or could be observed.

Edward III., impelled by the exigencies of his French war, went still greater lengths, and seized larger quant.i.ties of wool, which he sold beyond sea, as well as provisions for the supply of his army. In both cases the proprietors had tallies, or other securities; but their despair of obtaining payment gave rise, in 1338, to an insurrection.

There is a singular apologetical letter of Edward to the archbishops on this occasion. Rymer, t. v. p. 10; see also p. 73, and Knyghton, col.

2570.

[364] Rymer, t. vi. p. 417.

[365] Idem, t. xi. p. 852.

[366] Matthew Paris a.s.serts that John granted a separate forest-charter, and supports his position by a.s.serting that of Henry III. at full length. In fact, the clauses relating to the forest were incorporated with the great charter of John. Such an error as this shows the precariousness of historical testimony, even where it seems to be best grounded.

[367] c.o.ke, fourth Inst. p. 294. The forest domain of the king, says the author of the Dialogue on the Exchequer under Henry II., is governed by its own laws, not founded on the common law of the land, but the voluntary enactment of princes: so that whatever is done by that law is reckoned not legal in itself, but legal according to forest law, p. 29, non justum absolute, sed justum secundum legem forestae dicatur. I believe my translation of _justum_ is right; for he is not writing satirically.

[368] 13 R. II. c. 2.

[369] Rot. Parl. vol. iii. p. 530.

[370] The apprehension of this compliant spirit in the ministers of justice led to an excellent act in 2 E. III. c. 8, that the judges shall not omit to do right for any command under the great or privy seal. And the conduct of Richard II., who sought absolute power by corrupting or intimidating them, produced another statute in the eleventh year of his reign (c. 10), providing that neither letters of the king's signet nor of the privy seal should from thenceforth be sent in disturbance of the law. An ordinance of Charles V., king of France, in 1369, directs the parliament of Paris to pay no regard to any letters under his seal suspending the course of legal procedure, but to consider them as surrept.i.tiously obtained. Villaret, t. x. p. 175. This ordinance, which was sedulously observed, tended very much to confirm the independence and integrity of that tribunal.

[371] Cotton's Posthuma, p. 221. Howell's State Trials, vol. iii. p. 1.

Hume quotes a grant of the office of constable to the earl of Rivers in 7 E. IV., and infers, unwarrantably enough, that "its authority was in direct contradiction to Magna Charta; and it is evident that no regular liberty could subsist with it. It involved a full dictatorial power, continually subsisting in the state." Hist. of England, c. 22. But by the very words of this patent the jurisdiction given was only over such causes quae in curia constabularii Angliae ab antiquo, viz. tempore dicti Gulielmi conquaestoris, seu aliquo tempore citra, tractari, audiri, examinari, aut decidi consueverunt aut _jure debuerant aut debent_.

These are expressed, though not very perspicuously, in the statute 13 R.

II. c. 2, that declares the constable's jurisdiction. And the chief criminal matter reserved by law to the court of this officer was treason committed out of the kingdom. In violent and revolutionary seasons, such as the commencement of Edward IV.'s reign, some persons were tried by martial law before the constable. But, in general, the exercise of criminal justice by this tribunal, though one of the abuses of the times, cannot be said to warrant the strong language adopted by Hume.

[372] Fortescue, De Laudibus Legum Angliae, c. 9.

[373] Id. c. 13.

[374] The latter treatise having been written under Edward IV., whom Fortescue, as a restored Lancastrian, would be anxious not to offend, and whom in fact he took some pains to conciliate both in this and other writings, it is evident that the principles of limited monarchy were as fully recognised in his reign whatever particular acts of violence might occur, as they had been under the Lancastrian princes.