View of the State of Europe during the Middle Ages Part 21

The equitable jurisdiction of the Court of Chancery has been lately traced, in some respects, though not for the special purpose mentioned in the text, higher than the reign of Richard II. This great minister of the crown, as he was at least from the time of the Conquest,[471] always till the reign of Edward III. an ecclesiastic of high dignity, and honourably distinguished as the keeper of the king's conscience, was peculiarly intrusted with the duty of redressing the grievances of the subject, both when they sprung from misconduct of the government, through its subordinate officers, and when the injury had been inflicted by powerful oppressors. He seems generally to have been the chief or president of the council, when it exerted that jurisdiction which we have been sketching in the text, and which will be the subject of another note. But he is more prominent when presiding in a separate tribunal as a single judge.

The Court of Chancery is not distinctly to be traced under Henry III.

For a pa.s.sage in Matthew Paris, who says of Radulfus de Nevil--"Erat regis fidelissimus cancellarius, et inconcussa columna veritatis, singulis sua jura, praecipue pauperibus, juste reddens et indilate," may be construed of his judicial conduct in the council. This province naturally, however, led to a separation of the two powers. And in the reign of Edward I. we find the king sending certain of the pet.i.tions addressed to him, praying extraordinary remedies, to the chancellor and master of the rolls, or to either separately, by writ under the privy seal, which was the usual mode by which the king delegated the exercise of his prerogative to his council, directing them to give such remedy as should appear to be consonant to honesty (or equity, _honestati_).

"There is reason to believe," says Mr. Spence (Equitable Jurisdiction, p. 335), "that this was not a novelty." But I do not know upon what grounds this is believed. Writs, both those of course and others, issued from Chancery in the same reign. (Palgrave's Essay on King's Council, p.

15.) Lord Campbell has given a few specimens of pet.i.tions to the council, and answers endorsed upon them, in the reign of Edward I., communicated to him by Mr. Hardy from the records of the Tower. In all these the pet.i.tions are referred to the chancellor for justice. The entry, at least as given by lord Campbell, is commonly so short that we cannot always determine whether the pet.i.tion was on account of wrongs by the crown or others. The following is rather more clear than the rest:--"18 Edw. I. The king's tenants of Aulton complain that Adam Gordon ejected them from their pasture, contrary to the tenor of the king's writ. Resp. Veniant partes coram cancellario, et ostendat ei Adam quare ipsos ejecit, et fiat iis just.i.tia." Another is a pet.i.tion concerning concealment of dower, for which, perhaps, there was no legal remedy.

In the reign of Edward II. the peculiar jurisdiction of the chancellor was still more distinctly marked. "From pet.i.tions and answers lately discovered, it appears that during this reign the jurisdiction of the Court of Chancery was considerably extended, as the 'consuetudo cancellariae' is often familiarly mentioned. We find pet.i.tions referred to the chancellor in his court, either separately, or in conjunction with the king's justices, or the king's serjeants; on disputes respecting the wards.h.i.+p of infants, part.i.tion, dower, rent-charges, t.i.thes, and goods of felons. The chancellor was in full possession of his jurisdiction over charities, and he superintended the conduct of coroners. Mere wrongs, such as malicious prosecutions and trespa.s.ses to personal property, are sometimes the subject of proceedings before him; but I apprehend that those were cases where, from powerful combinations and confederacies, redress could not be obtained in the courts of common law." (Lives of Chanc. vol. i. p. 204.)

Lord Campbell, still with materials furnished by Mr. Hardy, has given not less than thirty-eight entries during the reign of Edward II., where the pet.i.tion, though sometimes directed to the council, is referred to the chancellor for determination. One only of these, so far as we can judge from their very brief expression, implies anything of an equitable jurisdiction. It is again a case of dower, and the claimant is remitted to the Chancery; "et fiat sibi ibidem just.i.tia, quia non potest juvari per communem legem per breve de dote." This case is in the Rolls of Parliament (i. 340), and had been previously mentioned by Mr. Bruce in a learned memoir on the Court of Star-Chamber. (Archaeologia, xxv. 345.) It is difficult to say whether this fell within the modern rules of equity, but the general principle is evidently the same.

Another pet.i.tion is from the commonalty of Suffolk to the council, complaining of false indictments and presentments in courts-leet. It is answered--"Si quis sequi voluerit adversus falsos indicatores et procuratores de falsis indictamentis, sequatur in Cancell. et habebit remedium consequens." Several other entries in this list are ill.u.s.trative of the jurisdiction appertaining, in fact at least, to the council and the chancellor; and being of so early a reign form a valuable accession to those which later records have furnished to Sir Matthew Hale and others.

The Court of Chancery began to decide causes as a court of equity, according to Mr. Hardy, in the reign of Edward III., probably about 22 Edw. III. (Introduction to Close Rolls, p. 28.) Lord Campbell would carry this jurisdiction higher, and the instances already mentioned may be sufficient just to prove that it had begun to exist. It certainly seems no unnatural supposition that the great principle of doing justice, by which the council and the chancellor professed to guide their exercise of judicature, may have led them to grant relief in some of those numerous instances where the common law was defective or its rules too technical and unbending. But, as has been observed, the actual entries, as far as quoted, do not afford many precedents of equity. Mr.

Hardy, indeed, suggests (p. 25) that the _Curia Regis_ in the Norman period proceeded on equitable principles; and that this led to the removal of plaints into it from the county-court. This is, perhaps, not what we should naturally presume. The subtle and technical spirit of the Norman lawyers is precisely that which leads, in legal procedure, to definite and unbending rules; while in the lower courts, where Anglo-Saxon thanes had ever judged by the broad rules of justice, according to the circ.u.mstances of the case, rather than a strict line of law which did not yet exist, we might expect to find all the uncertainty and inconsistency which belongs to a system of equity, until, as in England, it has acquired by length of time the uniformity of law, but none at least of the technicality so characteristic of our Norman common law, and by which the great object of judicial proceedings was so continually defeated. This, therefore, does not seem to me a probable cause of the removal of suits from the county-court or court-baron to those of Westminster. The true reason, as I have observed in another place, was the partiality of these local tribunals. And the expense of trying a suit before the justices in eyre might not be very much greater than in the county-court.

I conceive, therefore, that the three supreme courts at Westminster proceeded upon those rules of strict law which they had chiefly themselves established; and this from the date of their separation from the original _Curia Regis_. But whether the king's council may have given more extensive remedies than the common law afforded, as early at least as the reign of Henry III., is what we are not competent, apparently, to affirm or deny. We are at present only concerned with the Court of Chancery. And it will be interesting to quote the deliberate opinion of a late distinguished writer, who has taken a different view of the subject from any of his predecessors.

"After much deliberation," says Lord Campbell, "I must express my clear conviction that the chancellor's equitable jurisdiction is as indubitable and as ancient as his common-law jurisdiction, and that it may be traced in a manner equally satisfactory. The silence of Bracton, Glanvil, Fleta, and other early juridical writers, has been strongly relied upon to disprove the equitable jurisdiction of the chancellor; but they as little notice his common-law jurisdiction, most of them writing during the subsistence of the _Aula Regia_; and they all speak of the Chancery, not as a court, but merely as an office for the making and sealing of writs. There are no very early decisions of the chancellors on points of law any more than of equity, to be found in the Year-books or old abridgments.... By 'equitable jurisdiction' must be understood the extraordinary interference of the chancellor, without common-law process or regard to the common-law rules of proceeding, upon the pet.i.tion of a party grieved who was without adequate remedy in a court of common law; whereupon the opposite party was compelled to appear and to be examined, either personally or upon written interrogatories: and evidence being heard on both sides, without the interposition of a jury, an order was made _secundum aequum et bonum_, which was enforced by imprisonment. Such a jurisdiction had belonged to the Aula Regia, and was long exercised by parliament; and, when parliament was not sitting, by the king's ordinary council. Upon the dissolution of the _Aula Regia_ many pet.i.tions, which parliament or the council could not conveniently dispose of, were referred to the chancellor, sometimes with and sometimes without a.s.sessors. To avoid the circuity of applying to parliament or the council, the pet.i.tion was very soon, in many instances, addressed originally to the chancellor himself." (Lives of Chancellors, i. 7.)

In the latter part of Edward III.'s long reign this equitable jurisdiction had become, it is likely, of such frequent exercise, that we may consider the following brief summary by Lord Campbell as probable by a.n.a.logy and substantially true, if not sustained in all respects by the evidence that has yet been brought to light:--"The jurisdiction of the Court of Chancery was now established in all matters where its own officers were concerned, in pet.i.tions of right where an injury was alleged to be done to a subject by the king or his officers in relieving against judgments in courts of law (lord C. gives two instances), and generally in cases of fraud, accident, and trust." (p. 291.)

In the reign of Richard II. the writ of _subpoena_ was invented by John de Waltham, master of the rolls; and to this a great importance seems to have been attached at the time, as we may perceive by the frequent complaints of the commons in parliament, and by the traditionary abhorrence in which the name of the inventor was held. "In reality," says lord Campbell, "he first framed it in its present form when a clerk in Chancery in the latter end of the reign of Edward III.; but the invention consisted in merely adding to the old clause, _Quibusdam certis de causis, the words 'Et hoc sub poena centum librarum nullatenus omittas_;' and I am at a loss to conceive how such importance was attached to it, or how it was supposed to have brought about so complete a revolution in equitable proceedings, for the penalty was never enforced; and if the party failed to appear, his default was treated, according to the practice prevailing in our own time, as a contempt of court, and made the foundation of compulsory process." (p.

296.)

The commons in parliament, whose sensitiveness to public grievances was by no means accompanied by an equal sagacity in devising remedies, had, probably without intention, vastly enhanced the power of the chancellor by a clause in a remedial act pa.s.sed in the thirty-sixth year of Edward III., that, "If any man that feeleth himself aggrieved contrary to any of the articles above written, or others contained in divers statutes, will come into the Chancery, or any for him, and thereof make his complaint, he shall presently there have remedy by force of the said articles or statutes, without elsewhere pursuing to have remedy." Yet nothing could be more obvious than that the breach of any statute was cognizable before the courts of law. And the mischief of permitting men to be sued vexatiously before the chancellor becoming felt, a statute was enacted, thirty years indeed after this time (17 Ric. II. c. 6), a.n.a.logous altogether to those in the late reign respecting the jurisdiction of the council, which, reciting that "people be compelled to come before the king's council, or in the Chancery, by writs grounded on untrue suggestions," provides that "the chancellor for the time being, presently after that such suggestions be duly found and proved untrue, shall have power to ordain and award damages, according to his discretion, to him which is so troubled unduly as aforesaid." "This remedy," lord Campbell justly remarks, "which was referred to the discretion of the chancellor himself, whose jurisdiction was to be controlled, proved, as might be expected, wholly ineffectual; but it was used as a parliamentary recognition of his jurisdiction, and a pretence for refusing to establish any other check on it." (p. 247.)

A few years before this statute the commons had pet.i.tioned (13 Ric. II., Rot. Parl. iii. 269) that the chancellor might make no order against the common law, and that no one should appear before the chancellor where remedy was given by the common law. "This carries with it an admission,"

as lord C. observes, "that a power of jurisdiction did reside in the chancellor, so long as he did not determine against the common law, nor interfere where the common law furnished a remedy. The king's answer, 'that it should continue as the usage had been heretofore,' clearly demonstrates that such an authority, restrained within due bounds, was recognised by the const.i.tution of the country." (p. 305.)

The act of 17 Ric. II. seems to have produced a greater regularity in the proceedings of the court, and put an end to such hasty interference, on perhaps verbal suggestions, as had given rise to this remedial provision. From the very year in which the statute was enacted we find bills in Chancery, and the answers to them, regularly filed; the grounds of demanding relief appear, and the chancellor renders himself in every instance responsible for the orders he has issued, by thus showing that they came within his jurisdiction. There are certainly many among the earlier bills in Chancery, which, according to the statute law and the great principle that they were determinable in other courts, could not have been heard; but we are unable to p.r.o.nounce how far the allegation usually contained or implied, that justice could not be had elsewhere, was founded on the real circ.u.mstances. A calendar of these early proceedings (in abstract) is printed in the Introduction to the first volume of the Calendar of Chancery Proceedings in the Reign of Elizabeth, and may also be found in Cooper's Public Records, i. 356.

The struggle, however, in behalf of the common law was not at an end. It is more than probable that the pet.i.tions against encroachments of Chancery, which fill the rolls under Henry IV., Henry V., and in the minority of Henry VI., emanated from that numerous and jealous body whose interests as well as prejudices were so deeply affected. Certain it is that the commons, though now acknowledging an equitable jurisdiction, or rather one more extensive than is understood by the word "equitable," in the greatest judicial officer of the crown, did not cease to remonstrate against his transgression of these boundaries. They succeeded so far, in 1436, as to obtain a statute (15 Hen. VI. c. 4) in these words:--"For that divers persons have before this time been greatly vexed and grieved by writs of _subpoena_, purchased for matters determinable by the common law of this land, to the great damage of such persons so vexed, in suspension and impediment of the common law as aforesaid; Our lord the king doth command that the statutes thereof made shall be duly observed, according to the form and effect of the same, and that no writ of _subpoena_ be granted from henceforth until surety be found to satisfy the party so grieved and vexed for his damages and expenses, if so be that the matter cannot be made good which is contained in the bill." It was the intention of the commons, as appears by the preamble of this statute, and more fully by their pet.i.tion in Rot. Parl. (iv. 101), that the matters contained in the bill on which the _subpoena_ was issued should be not only true in themselves, but such as could not be determined at common law. But the king's answer appears rather equivocal.

The principle seems nevertheless to have been generally established, about the reign of Henry VI., that the Court of Chancery exercises merely a remedial jurisdiction, not indeed controllable by courts of law, unless possibly in such circ.u.mstances as cannot be expected, but bound by its general responsibility to preserve the limits which ancient usage and innumerable precedents have imposed. It was at the end of this reign, and not in that of Richard II., according to the writer so often quoted, that the great enhancement of the chancellor's authority, by bringing feoffments to uses within it, opened a new era in the history of our law. And this the judges brought on themselves by their narrow adherence to technical notions. They now began to discover this; and those of Edward IV., as lord Campbell well says, were "very bold men,"

having repealed the statute _de donis_ by their own authority in Taltarum's case--a stretch of judicial power beyond any that the Court of Chancery had ventured upon. They were also exceedingly jealous of that court; and in one case, reported in the Year-books (22 Edw. IV.

37), advised a party to disobey an injunction from the Court of Chancery, telling him that, if the chancellor committed him to the Fleet, they would discharge the prisoner by _habeas corpus_. (Lord Campbell, p. 394.) The case seems to have been one where, in modern times, no injunction would have been granted, the courts of law being competent to apply a remedy.

NOTE XI. Page 145.

This intricate subject has been ill.u.s.trated, since the first publication of these volumes, in an Essay upon the original Authority of the King's Council, by Sir Francis Palgrave (1834), written with remarkable perspicuity and freedom from diffusiveness. But I do not yet a.s.sent to the judgment of the author as to the legality of proceedings before the council, which I have represented as unconst.i.tutional, and which certainly it was the object of parliament to restrain.

"It seems," he says, "that in the reign of Henry III. the council was considered as a court of peers within the terms of Magna Charta; and before which, as a court of original jurisdiction, the rights of tenants holding _in capite_ or by barony were to be discussed and decided, and it unquestionably exercised a direct jurisdiction over all the king's subjects" (p. 34). The first volume of Close Rolls, published by Mr.

Hardy since Sir F. Palgrave's Essay, contains no instances of jurisdiction exercised by the council in the reign of John. But they begin immediately afterwards, in the minority of Henry III.; so that we have not only the fullest evidence that the council took on itself a coercive jurisdiction in matters of law at that time, but that it had not done so before: for the Close Rolls of John are so full as to render the negative argument satisfactory. It will, of course, be understood that I take the facts on the authority of Mr. Hardy (Introduction to Close Rolls, vol. ii.), whose diligence and accuracy are indisputable.

Thus this exercise of judicial power began immediately after the Great Charter. And yet, if it is to be reconciled with the twenty-ninth section, it is difficult to perceive in what manner that celebrated provision for personal liberty against the crown, which has always been accounted the most precious jewel in the whole coronet, the most valuable stipulation made at Runnymede, and the most enduring to later times, could merit the fondness with which it has been regarded. "Non super eum ibimus, nec super eum mittemus, nisi per legale judicium parium suorum, vel per legem terrae." If it is alleged that the jurisdiction of the king's council was the law of the land, the whole security falls to the ground and leaves the grievance as it stood, unredressed. Could the judgment of the council have been reckoned, as Sir P. Palgrave supposes, a "judicium parium suorum," except perhaps in the case of tenants in chief? The word is commonly understood of that trial _per pais_ which, in one form or another, is of immemorial antiquity in our social inst.i.tutions.

"Though this jurisdiction," he proceeds, "was more frequently called into action when parliament was sitting, still it was no less inherent in the council at all other times; and until the middle of the reign of Edward III. no exception had ever been taken to the form of its proceedings." He subjoins indeed in a note, "Unless the statute of 5 Edw. III. c. 9, may be considered as an earlier testimony against the authority of the council. This, however, is by no means clear, and there is no corresponding pet.i.tion in the parliament roll from which any further information could be obtained" (p. 34).

The irresistible conclusion from this pa.s.sage is, that we have been wholly mistaken in supposing the commons under Edward III. and his successors to have resisted an illegal encroachment of power in the king's ordinary council, while it had in truth been exercising an ancient jurisdiction, never restrained by law and never complained of by the subject. This would reverse our const.i.tutional theory to no small degree, and affect so much the spirit of my own pages, that I cannot suffer it to pa.s.s, coming on an authority so respectable, without some comment. But why is it a.s.serted that this jurisdiction was inherent in the council? Why are we to interpret Magna Charta otherwise than according to the natural meaning of the words and the concurrent voice of parliament? The silence of the commons in parliament under Edward II.

as to this grievance will hardly prove that it was not felt, when we consider how few pet.i.tions of a public nature, during that reign, are on the rolls. But it may be admitted that they were not so strenuous in demanding redress, because they were of comparatively recent origin as an estate of parliament, as they became in the next long reign, the most important, perhaps, in our early const.i.tutional history.

It is doubted by Sir F. Palgrave whether the statute of 5 Edw. III. c.

9, can be considered as a testimony against the authority of the council. It is, however, very natural so to interpret it, when we look at the subsequent statutes and pet.i.tions of the commons, directed for more than a century to the same object. "No man shall be taken," says lord c.o.ke (2 Inst. 46), "that is, restrained of liberty, by pet.i.tion or suggestion to the king or to his council, unless it be by indictment or presentment of good and lawful men, where such deeds be done. This branch and divers other parts of this act have been wholly explained by divers acts of parliament, &c., quoted in the margent." He then gives the t.i.tles of six statutes, the first being this of 5 Edw. III. c. 9.

But let us suppose that the pet.i.tion of the commons in 25 Edw. III.

demanded an innovation in law, as it certainly did in long-established usage. And let us admit what is justly pointed out by Sir F. Palgrave, that the king's first answer to their pet.i.tion is not commensurate to its request, and reserves, though it is not quite easy to see what, some part of its extraordinary jurisdiction.[472] Still the statute itself, enacted on a similar pet.i.tion in a subsequent parliament, is explicit that "none shall be taken by pet.i.tion or suggestion to the king or his council, unless it be by indictment or presentment" (in a criminal charge), "or by writ original at the common law" (in a civil suit), "nor shall be put out of his franchise of freehold, unless he have been duly put to answer, and forejudged of the same by due course of law."

Lord Hale has quoted a remarkable pa.s.sage from a Year-book, not long after these statutes of 25 Edw. III. and 28 Edw. III., which, if Sir F.

Palgrave had not overlooked, he would have found not very favourable to his high notions of the king's prerogative in council. "In after ages,"

says Hale, "the constant opinion and practice was to disallow any reversals of judgment by the council, which appears by the notable case in Year-book, 39 Edw. III. 14." (Jurisdiction of Lords' House, p. 41.) It is indeed a notable case, wherein the chancellor before the council reverses a judgment of a court of law. "Mes les justices ne pristoient nul regard al reverser devant le council, par ceo que ce ne fust place ou jugement purroit estre reverse." If the council could not exercise this jurisdiction on appeal, which is not perhaps expressly taken away by any statute, much less against the language of so many statutes could they lawfully entertain any original suit. Such, however, were the vacillations of a motley a.s.sembly, so steady the perseverance of government in retaining its power, so indefinite the limits of ancient usage, so loose the phrases of remedial statutes, pa.s.sing sometimes by their generality the intentions of those who enacted them, so useful, we may add, and almost indispensable, was a portion of those prerogatives which the crown exercised through the council and chancery, that we find soon afterwards a statute (37 Edw. III. c. 18), which recognises in some measure those irregular proceedings before the council, by providing only that those who make suggestions to the chancellor and great council, by which men are put in danger against the form of the charter, shall give security for proving them. This is rendered more remedial by another act next year (38 Edw. III. c. 9), which, however, leaves the liberty of making such suggestions untouched.

The truth is, that the act of 25 Edw. III. went to annihilate the legal and equitable jurisdiction of the Court of Chancery--the former of which had been long exercised, and the latter was beginning to spring up. But the 42 Edw. III. c. 3, which seems to go as far as the former in the enacting words, will be found, according to the preamble, to regard only criminal charges.

Sir Francis Palgrave maintains that the council never intermitted its authority, but on the contrary "it continually a.s.sumed more consistency and order. It is probable that the long absences of Henry V. from England invested this body with a greater degree of importance. After every minority and after every appointment of a select or extraordinary council by authority of the legislature, we find that the ordinary council acquired a fresh impulse and further powers. Hence the next reign const.i.tutes a new era" (p. 80). He proceeds to give the same pa.s.sage which I have quoted from Rot. Parl. 8 Hen. VI., vol. v. p. 343, as well as one in an earlier parliament (2 Hen. VI. p. 28). But I had neglected to state the whole case where I mention the articles settled in parliament for the regulation of the council. In the first place, this was not the king's ordinary council, but one specially appointed by the lords in parliament for the government of the realm during his minority. They consisted of certain lords spiritual and temporal, the chancellor, the treasurer, and a few commoners. These commissioners delivered a schedule of provisions "for the good and the governance of the land, which the lords that be of the king's council desireth" (p.

28). It does not explicitly appear that the commons a.s.sented to these provisions; but it may be presumed, at least in a legal sense, by their being present and by the schedule being delivered into parliament, "baillez en meme le parlement." But in the 8 Hen. VI., where the same provision as to the jurisdiction of this extraordinary council is repeated, the articles are said, after being approved by the lords spiritual and temporal, to have been read "coram domino rege in eodem parliamento, in presentia trium regni statuum" (p. 343). It is always held that what is expressly declared to be done in presence of all the estates is an act of parliament.

We find, therefore, a recognition of the principle which had always been alleged in defence of the ordinary council in this parliamentary confirmation--the principle that breaches of the law, which the law could not, through the weakness of its ministers, or corruption, or partiality, sufficiently repress, must be reserved for the strong arm of royal authority. "Thus," says Sir Francis Palgrave, "did the council settle and define its principles and practice. A new tribunal was erected, and one which obtained a virtual supremacy over the common law.

The exception reserved to their 'discretion' of interfering wherever their lords.h.i.+ps felt too much might on one side, and too much unmight on the other, was of itself sufficient to embrace almost every dispute or trial" (p. 81).

But, in the first place, this lat.i.tude of construction was not by any means what the parliament meant to allow, nor could it be taken, except by wilfully usurping powers never imparted; and, secondly, it was not the ordinary council which was thus const.i.tuted during the king's minority; nor did the jurisdiction intrusted to persons so specially named in parliament extend to the regular officers of the crown. The restraining statutes were suspended for a time in favour of a new tribunal. But I have already observed that there was always a cla.s.s of cases precisely of the same kind as those mentioned in the act creating this tribunal, tacitly excluded from the operation of those statutes, wherein the coercive jurisdiction of the king's ordinary council had great convenience, namely, where the course of justice was obstructed by riots, combinations of maintenance, or overawing influence. And there is no doubt that, down to the final abolition of the Court of Star Chamber (which was no other than the _consilium ordinarium_ under a different name), these offences were cognizable in it, without the regular forms of the common law.[473]

"From the reign of Edward IV. we do not trace any further opposition to the authority either of the chancery or of the council. These courts had become engrafted on the const.i.tution; and if they excited fear or jealousy, there was no one who dared to complain. Yet additional parliamentary sanction was not considered as unnecessary by Henry VII., and in the third year of his reign an act was pa.s.sed for giving the Court of Star Chamber, which had now acquired its determinate name, further authority to punish divers misdemeanours." (Palgrave, p. 97.)

It is really more than we can grant that the jurisdiction of the _consilium ordinarium_ had been engrafted on the const.i.tution, when the statute-book was full of laws to restrain, if not to abrogate it. The acts already mentioned, in the reign of Henry VI., by granting a temporary and limited jurisdiction to the council, demonstrate that its general exercise was not acknowledged by parliament. We can only say that it may have continued without remonstrance in the reign of Edward IV. I have observed in the text that the Rolls of Parliament under Edward IV. contain no complaints of grievances. But it is not quite manifest that the council did exercise in that reign as much jurisdiction as it had once done. Lord Hale tells us that "this jurisdiction was gradually brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 Hen.

VII." (Hist. of Lords' Jurisdiction, p. 38.) And the famous statute in that year, which erected a new court, sometimes improperly called the Court of Star Chamber, seems to have been prompted by a desire to restore, in a new and more legal form, a jurisdiction which was become almost obsolete, and, being in contradiction to acts of parliament, could not well be rendered effective without one.[474]

We cannot but discover, throughout the learned and luminous Essay on the Authority of the King's Council, a strong tendency to represent its exercise as both const.i.tutional and salutary. The former epithet cannot, I think, be possibly applicable in the face of statute law; for what else determines our const.i.tution? But it is a problem with some, whether the powers actually exerted by this anomalous court, admitting them to have been, at least latterly, in contravention of many statutes, may not have been rendered necessary by the disorderly condition of society and the comparative impotence of the common law. This cannot easily be solved with the defective knowledge that we possess. Sometimes, no doubt, the "might on one side, and unmight on the other," as the answer to a pet.i.tion forcibly expresses it, afforded a justification which, practically at least, the commons themselves were content to allow. But were these exceptional instances so frequent as not to leave a much greater number wherein the legal remedy by suit before the king's justices of a.s.sise might have been perfectly effectual? For we are not concerned with the old county-courts, which were perhaps tumultuary and partial enough, but with the regular administration, civil and criminal, before the king's justices of oyer and terminer and of gaol delivery.

Had not they, generally speaking, in the reign of Edward III. and his successors, such means of enforcing the execution of law as left no sufficient pretext for recurring to an arbitrary tribunal? Liberty, we should remember, may require the sacrifice of some degree of security against private wrong, which a despotic government, with an unlimited power of restraint, can alone supply. If no one were permitted to travel on the high road without a licence, or, as now so usual, without a pa.s.sport, if no one could keep arms without a registry, if every one might be indefinitely detained on suspicion, the evil doers of society would be materially impeded, but at the expense, to a certain degree, of every man's freedom and enjoyment. Freedom being but a means to the greatest good, times might arise when it must yield to the security of still higher blessings; but the immediate question is, whether such were the state of society in the fourteenth and fifteenth centuries. Now, that it was lawless and insecure, comparatively with our own times or the times of our fathers, is hardly to be disputed. But if it required that arbitrary government which the king's council were anxious to maintain, the representatives of the commons in parliament, knights and burgesses, not above the law, and much interested in the conservation of property, must have complained very unreasonably for more than a hundred years. They were apparently as well able to judge as our writers can be; and if they reckoned a trial by jury at _nisi prius_ more likely, on the whole, to insure a just adjudication of a civil suit, than one before the great officers of state and other const.i.tuent members of the ordinary council, it does not seem clear to me that we have a right to a.s.sert the contrary. This mode of trial by jury, as has been seen in another place, had acquired, by the beginning of the fifteenth century, its present form; and considering the great authority of the judges of a.s.sise, it may not, probably, have given very frequent occasion for complaint of partiality or corrupt influence.

NOTE XII. Page 156.

The learned author of the Inquiry into the Rise and Growth of the Royal Prerogative in England has founded his historical theory on the confusion which he supposes to have grown up between the ideal king of the const.i.tution and the personal king on the throne. By the former he means the personification of abstract principles, sovereign power, and absolute justice, which the law attributes to the _genus_ king, but which flattery or other motives have transferred to the possessor of the crown for the time being, and have thus changed the Teutonic _cyning_, the first man of the commonwealth, the man of the highest weregild, the man who was so much responsible that he might be sued for damages in his own courts or deposed for misgovernment, into the sole irresponsible person of indefeasible prerogatives, of attributes almost divine, whom Bracton and a long series of subsequent lawyers raised up to a height far beyond the theory of our early const.i.tution.

This is supported with great acuteness and learning; nor is it possible to deny that the king of England, as the law-books represent him, is considerably different from what we generally conceive an ancient German chieftain to have been. Yet I doubt whether Mr. Allen has not laid too much stress on this, and given to the fictions of law a greater influence than they possessed in those times to which his inquiry relates; and whether, also, what he calls the monarchical theory was so much derived from foreign sources as he apprehends. We have no occasion to seek, in the systems of civilians or the dogmas of churchmen, what arose from a deep-seated principle of human nature. A king is a person; to persons alone we attach the attributes of power and wisdom; on persons we bestow our affection or our ill-will. An abstraction, a politic idea of royalty, is convenient for lawyers; it suits the speculative reasoner, but it never can become so familiar to a people, especially one too rude to have listened to such reasoners, as the simple image of the king, the one man whom we are to love and to fear.

The other idea is a sort of monarchical pantheism, of which the vanis.h.i.+ng point is a republic. And to this the prevalent theory, that kings are to reign but not to govern, cannot but lead. It is a plausible, and in the main, perhaps, for the times we have reached, a necessary theory; but it renders monarchy ultimately scarcely possible.

And it was neither the sentiment of the Anglo-Saxons, nor of the Norman baronage; the feudal relation was essentially and exclusively personal; and if we had not enough, in a more universal feeling of human nature, to account for loyalty, we could not mistake its inevitable connexion with the fealty and homage of the va.s.sal. The influence of Roman notions was not inconsiderable upon the continent; but they never prevailed very much here; and though, after the close alliance between the church and state established by the Reformation, the whole weight of the former was thrown into the scale of the crown, the mediaeval clergy, as I have observed in the text, were anything rather than upholders of despotic power.

It may be very true that, by considering the monarchy as a merely political inst.i.tution, the scheme of prudent men to avoid confusion, and confer the _minimum_ of personal authority on the reigning prince, the principle of his irresponsibility seems to be better maintained. But the question to which we are turning our eyes is not a political one; it relates to the positive law and positive sentiments of the English nation in the mediaeval period. And here I cannot put a few necessary fictions grown up in the courts, such as, the king never dies, the king can do no wrong, the king is everywhere, against the tenor of our const.i.tutional language, which implies an actual and active personality.

Mr. Allen acknowledges that the act against the Despensers under Edward II., and re-confirmed after its repeal, for promulgating the doctrine that allegiance had more regard to the crown than to the person of the king, "seems to establish, as the deliberate opinion of the legislature, that allegiance is due to the person of the king generally, and not merely to his crown or politic capacity, so as to be released and destroyed by his misgovernment of the kingdom" (p. 14); which, he adds, is not easily reconcilable with the deposition of Richard II. But that was accomplished by force, with whatever formalities it may have been thought expedient to surround it.

We cannot, however, infer from the declaration of the legislature, that allegiance is due to the king's person and not to his politic capacity, any such consequence as that it is not, in any possible case, to be released by his misgovernment. This was surely not in the spirit of any parliament under Edward II. or Edward III.; and it is precisely because allegiance is due to the person, that, upon either feudal or natural principles, it might be cancelled by personal misconduct. A contrary language was undoubtedly held under the Stuarts; but it was not that of the mediaeval period.

The tenet of our law, that all the soil belongs theoretically to the king, is undoubtedly an enormous fiction, and very repugnant to the barbaric theory preserved by the Saxons, that all unappropriated land belonged to the folk, and was unalienable without its consent.[475] It was, however, but an extension of the feudal tenure to the whole kingdom, and rested on the personality of feudal homage. William established it more by his power than by any theory of lawyers; though doubtless his successors often found lawyers as ready to shape the acts of power into a theory as if they had originally projected them. And thus grew up the high schemes of prerogative, which, for many centuries, were in conflict with those of liberty. We are not able, nevertheless, to define the const.i.tutional authority of the Saxon kings; it was not legislative, nor was that of William and his successors ever such; it was not exclusive of redress for private wrong, nor was this ever the theory of English law, though the method of remedy might not be sufficiently effective; yet it had certainly grown before the Conquest, with no help from Roman notions, to something very unlike that of the German kings in Tacitus.

NOTE XIII. Page 172.

The reduction of the free ceorls into villenage, especially if as general as is usually a.s.sumed, is one of the most remarkable innovations during the Anglo-Norman period; and one which, as far as our published records extend, we cannot wholly explain. Observations have been made on it by Mr. Wright, in the Archaeologia (vol. x.x.x. p. 225). After adverting to the oppression of the peasants in Normandy, which produced several rebellions, he proceeds thus:--"These feelings of hatred and contempt for the peasantry were brought into our island by the Norman barons in the latter half of the eleventh century. The Saxon laws and customs continued; but the Normans acted as the Franks had done towards the Roman coloni; they enforced with harshness the laws which were in their own favour, and gradually threw aside, or broke through, those which were in favour of the miserable serf."

In the Laws of Henry I. we find the weregild of the twyhinder, or villein, set at 200 s.h.i.+llings in Wess.e.x, "quae caput regni est et legum"