ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY
Ancient government of England. —The government of England, in all
times recorded by history, has been one of those mixed or limited
monarchies which the Celtic and Gothic tribes appear universally to
have established, in preference to the coarse despotism of eastern
nations, to the more artificial tyranny of Rome and Constantinople, or
to the various models of republican polity which were tried upon the
coasts of the Mediterranean Sea. It bore the same general features, it
belonged, as it were, to the same family, as the governments of
almost every European state, though less resembling, perhaps, that
of France than any other. But, in the course of many centuries, the
boundaries which determined the sovereign's prerogative and the
people's liberty or power having seldom been very accurately defined
by law, or at least by such law as was deemed fundamental and
unchangeable, the forms and principles of political regimen in these
different nations became more divergent from each other, according
to their peculiar dispositions, the revolutions they underwent, or the
influence of personal character. England, more fortunate than the
rest, had acquired in the fifteenth century a just reputation for the
goodness of her laws and the security of her citizens from
oppression.
This liberty had been the slow fruit of ages, still waiting a happier
season for its perfect ripeness, but already giving proof of the vigour
and industry which had been employed in its
8
culture. I have endeavoured, in a work of which this may in a certain
degree be reckoned a continuation, to trace the leading events and
causes of its progress. It will be sufficient in this place briefly to point
out the principal circumstances in the polity of England at the
accession of Henry VII.
Limitations of royal authority. —The essential checks upon the royal
authority were five in number.—1. The king could levy no sort of new
tax upon his people, except by the grant of his parliament, consisting
as well of bishops and mitred abbots, or lords spiritual, and of
hereditary peers or temporal lords, who sat and voted promiscuously
in the same chamber, as of representatives from the freeholders of
each county, and from the burgesses of many towns and less
considerable places, forming the lower or commons' house. 2. The
previous assent and authority of the same assembly was necessary
for every new law, whether of a general or temporary nature. 3. No
man could be committed to prison but by a legal warrant specifying
his offence; and by an usage nearly tantamount to constitutional right,
he must be speedily brought to trial by means of regular sessions of
gaol-delivery. 4. The fact of guilt or innocence on a criminal charge
was determined in a public court, and in the county where the offence
was alleged to have occurred, by a jury of twelve men, from whose
unanimous verdict no appeal could be made. Civil rights, so far as
they depended on questions of fact, were subject to the same
decision. 5. The officers and servants of the Crown, violating the
personal liberty or other right of the subject, might be sued in an
action for damages, to be assessed by a jury, or, in some cases,
were liable to criminal process; nor could they plead any warrant or
command in their justification, not even the direct order of the king.
These securities, though it would be easy to prove that they were all
recognised in law, differed much in the degree of their effective
operation. It may be said of the first, that it was now completely
established. After a long contention, the kings of England had
desisted for near a hundred years from every attempt to impose taxes
without consent of parliament; and their recent device of demanding
benevolences, or half-compulsory gifts, though very oppressive, and
on that account just abolished by an act of the late usurper, Richard,
was in effect a recognition of the general principle, which it sought to
elude rather than transgress.
The necessary concurrence of the two houses of parliament in
legislation, though it could not be more unequivocally established
9
than the former, had in earlier times been more free from all attempt
or pretext of encroachment. We know not of any laws that were ever
enacted by our kings without the assent and advice of their great
council; though it is justly doubted, whether the representatives of the
ordinary freeholders, or of the boroughs, had seats and suffrages in
that assembly during seven or eight reigns after the conquest. They
were then, however, ingrafted upon it with plenary legislative
authority; and if the sanction of a statute were required for this
fundamental axiom, we might refer to one in the 15th of Edward II.
(1322), which declares that "the matters to be established for the
estate of the king and of his heirs, and for the estate of the realm and
of the people, should be treated, accorded, and established in
parliament, by the king, and by the assent of the prelates, earls, and
barons, and the commonalty of the realm, according as had been
before accustomed."[5]
It may not be impertinent to remark in this place, that the opinion of
such as have fancied the royal prerogative under the houses of
Plantagenet and Tudor to have had no effectual or unquestioned
limitations is decisively refuted by the notorious fact, that no alteration
in the general laws of the realm was ever made, or attempted to be
made, without the consent of parliament. It is not surprising that the
council, in great exigency of money, should sometimes employ force
to extort it from the merchants, or that servile lawyers should be
found to vindicate these encroachments of power. Impositions, like
other arbitrary measures, were particular and temporary, prompted by
rapacity, and endured through compulsion. But if the kings of England
had been supposed to enjoy an absolute authority, we should find
some proofs of it in their exercise of the supreme function of
sovereignty, the enactment of new laws. Yet there is not a single
instance from the first dawn of our constitutional history, where a
proclamation, or order of council, has dictated any change, however
trifling, in the code of private rights, or in the penalties of criminal
offences. Was it ever pretended that the king could empower his
subjects to devise their freeholds, or to levy fines of their entailed
lands?
10
Has even the slightest regulation as to judicial procedure, or any
permanent prohibition, even in fiscal law, been ever enforced without
statute? There was, indeed, a period, later than that of Henry VII.,
when a control over the subject's free right of doing all things not
unlawful was usurped by means of proclamations. These, however,
were always temporary, and did not affect to alter the established
law. But though it would be difficult to assert that none of this kind
had ever been issued in rude and irregular times, I have not observed
any under the kings of the Plantagenet name which evidently
transgress the boundaries of their legal prerogative.
The general privileges of the nation were far more secure than those
of private men. Great violence was often used by the various officers
of the Crown, for which no adequate redress could be procured; the
courts of justice were not strong enough, whatever might be their
temper, to chastise such aggressions; juries, through intimidation or
ignorance, returned such verdicts as were desired by the Crown; and,
in general, there was perhaps little effective restraint upon the
government, except in the two articles of levying money and enacting
laws.
State of society and law. —The peers alone, a small body varying
from about fifty to eighty persons, enjoyed the privileges of
aristocracy; which, except that of sitting in parliament, were not very
considerable, far less oppressive. All below them, even their children,
were commoners, and in the eye of the law equal to each other. In
the gradation of ranks, which, if not regally recognised, must still
subsist through the necessary inequalities of birth and wealth, we find
the gentry or principal landholders, many of them distinguished by
knighthood, and all by bearing coat armour, but without any exclusive
privilege; the yeomanry, or small freeholders and farmers, a very
numerous and respectable body, some occupying their own estates,
some those of landlords; the burgesses and inferior inhabitants of
trading towns; and, lastly, the peasantry and labourers. Of these, in
earlier times, a considerable part, though not perhaps so very large a
proportion as is usually taken for granted, had been in the
ignominious state of villenage, incapable of possessing property but
at the will of their lords. They had, however, gradually been raised
above this servitude; many had acquired a stable possession of lands
under the name of copyholders; and the condition of mere villenage
was become rare.
The three courts at Westminster—the King's Bench, Common Pleas,
and Exchequer—consisting each of four or five judges,
11
administered justice to the whole kingdom; the first having an
appellant jurisdiction over the second, and the third being in a great
measure confined to causes affecting the Crown's property. But as all
suits relating to land, as well as some others, and all criminal
indictments, could only be determined, so far as they depended upon
oral evidence, by a jury of the county, it was necessary that justices
of assize and gaol-delivery, being in general the judges of the courts
at Westminster, should travel into each county, commonly twice a
year, in order to try issues of fact, so called in distinction from issues
of law, where the suitors, admitting all essential facts, disputed the
rule applicable to them.[6] By this device, which is as ancient as the 12
reign of Henry II., the fundamental privilege of trial by jury, and the
convenience of private suitors, as well as accused persons, was
made consistent with an uniform jurisprudence; and though the
reference of every legal question, however insignificant, to the courts
above must have been inconvenient and expensive in a still greater
degree than at present, it had doubtless a powerful tendency to knit
together the different parts of England, to check the influence of
feudality and clanship, to make the inhabitants of distant counties
better acquainted with the capital city and more accustomed to the
course of government, and to impair the spirit of provincial patriotism
and animosity. The minor tribunals of each county, hundred, and
manor, respectable for their antiquity and for their effect in preserving
a sense of freedom and justice, had in a great measure, though not
probably so much as in modern times, gone into disuse. In a few
counties there still remained a palatine jurisdiction, exclusive of the
king's courts; but in these the common rules of law and the mode of
trial by jury were preserved. Justices of the peace, appointed out of
the gentlemen of each county, enquired into criminal charges,
committed offenders to prison, and tried them at their quarterly
sessions, according to the same forms as the judges of gaol-delivery.
The chartered towns had their separate jurisdiction under the
municipal magistracy.
The laws against theft were severe, and capital punishments
unsparingly inflicted. Yet they had little effect in repressing acts of
violence, to which a rude and licentious state of manners, and very
imperfect dispositions for preserving the public peace, naturally gave
rise. These were frequently perpetrated or instigated by men of
superior wealth and power, above the control of the mere officers of
justice. Meanwhile the kingdom was increasing in opulence, the
English merchants possessed a large share of the trade of the north;
and a woollen manufacture, established in different parts of the
kingdom, had not only enabled the legislature to restrain the import of
cloths, but begun to supply foreign nations. The population may
probably be reckoned, without any material error, at about three
millions, but by no means distributed in the same proportions as at
present; the northern counties, especially Lancashire and
13
Cumberland, being very ill peopled, and the inhabitants of London
and Westminster not exceeding sixty or seventy thousand.[7]
Such was the political condition of England, when Henry Tudor, the
only living representative of the house of Lancaster, though
incapable, by reason of the illegitimacy of the ancestor who
connected him with it, of asserting a just right of inheritance, became
master of the throne by the defeat and death of his competitor at
Bosworth, and by the general submission of the kingdom. He
assumed the royal title immediately after his victory, and summoned
a parliament to recognise or sanction his possession. The
circumstances were by no means such as to offer an auspicious
presage for the future. A subdued party had risen from the ground,
incensed by proscription and elated by success; the late battle had in
effect been a contest between one usurper and another; and England
had little better prospect than a renewal of that desperate and
interminable contention, which the pretences of hereditary right have
so often entailed upon nations.
A parliament called by a conqueror might be presumed to be itself
conquered. Yet this assembly did not display so servile a temper, or
so much of the Lancastrian spirit, as might be expected. It was
"ordained and enacted by the assent of the Lords, and at the request
of the Commons, that the inheritance of the crowns of England and
France, and all dominions appertaining to them, should remain in
Henry VII. and the heirs of his body for ever, and in none other."[8]
Words studiously ambiguous, which, while they avoid the assertion of
an hereditary right that the public voice repelled, were meant to
create a parliamentary title, before which the pretensions of lineal
descent were to give way. They seem to make Henry the stock of a
new dynasty. But, lest the spectre of indefeasible right should stand
once more in arms on the tomb of the house of York, the two houses
of parliament showed an
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earnest desire for the king's marriage with the daughter of Edward
IV., who, if she should bear only the name of royalty, might transmit
an undisputed inheritance of its prerogatives to her posterity.
Statute for the security of the subject under a king de facto.—This
marriage, and the king's great vigilance in guarding his crown,
caused his reign to pass with considerable reputation, though not
without disturbance. He had to learn by the extraordinary, though
transient, success of two impostors (if the second may with certainty
be reckoned such), that his subjects were still strongly infected with
the prejudice which had once overthrown the family he claimed to
represent. Nor could those who served him be exempt from
apprehensions of a change of dynasty, which might convert them into
attainted rebels. The state of the nobles and gentry had been
intolerable during the alternate proscriptions of Henry VI. and Edward
IV. Such apprehensions led to a very important statute in the eleventh
year of this king's reign, intended, as far as law could furnish a
prospective security against the violence and vengeance of factions,
to place the civil duty of allegiance on a just and reasonable
foundation, and indirectly to cut away the distinction between
governments de jure and de facto. It enacts, after reciting that
subjects by reason of their allegiance are bound to serve their prince
for the time being against every rebellion and power raised against
him, that "no person attending upon the king and sovereign lord of
this land for the time being, and doing him true and faithful service,
shall be convicted of high treason, by act of parliament or other
process of law, nor suffer any forfeiture or punishment; but that every
act made contrary to this statute should be void and of no effect. "[9]
The endeavour to bind future parliaments was of course nugatory; but
the statute remains an unquestionable authority for the constitutional
maxim, that possession of the throne gives a sufficient title to the
subject's allegiance, and justifies his resistance of those who may
pretend to a better right. It was much resorted to in argument at the
time of the revolution, and in the subsequent period.[10]
15
It has been usual to speak of this reign as if it formed a great epoch in
our constitution; the king having by his politic measures broken the
power of the barons who had hitherto withstood the prerogative, while
the commons had not yet risen from the humble station which they
were supposed to have occupied. I doubt, however, whether the
change was quite so precisely referable to the time of Henry VII., and
whether his policy has not been somewhat over-rated. In certain
respects, his reign is undoubtedly an æra in our history. It began in
revolution and a change in the line of descent. It nearly coincides,
which is more material, with the commencement of what is termed
modern history, as distinguished from the middle ages, and with the
memorable events that have led us to make that leading distinction,
especially the consolidation of the great European monarchies,
among which England took a conspicuous station. But, relatively to
the main subject of our enquiry, it is not evident that Henry VII.
carried the authority of the Crown much beyond the point at which
Edward IV. had left it. The strength of the nobility had been grievously
impaired by the bloodshed of the civil wars, and the attainders that
followed them. From this cause, or from the general intimidation, we
find, as I have observed in another place, that no laws favourable to
public liberty, or remedial with respect to the aggressions of power,
were enacted, or (so far as appears) even proposed in parliament,
during the reign of Edward IV.; the first, since that of John, to which
such a remark can be applied. The Commons, who had not always
been so humble and abject as smatterers in history are apt to fancy,
were by this time much degenerated from the spirit they had
displayed under Edward III. and Richard II. Thus the founder of the
line of Tudor came, not certainly to an absolute, but a vigorous
prerogative, which his cautious dissembling temper and close
attention to business were well calculated to extend.
Statute of Fines. —The laws of Henry VII. have been highly praised by
Lord Bacon as "deep and not vulgar, not made upon the spur of a
particular occasion for the present, but out of providence for the
future, to make the estate of his people still more and more happy,
after the manner of the legislators in ancient and heroical times." But
when we consider how very few kings or statesmen have displayed
this prospective wisdom and benevolence in legislation, we may
hesitate a little to bestow so rare a praise upon Henry. Like the laws
of all
16
other times, his statutes seem to have had no further aim than to
remove some immediate mischief, or to promote some particular end.
One, however, has been much celebrated as an instance of his
sagacious policy, and as the principal cause of exalting the royal
authority upon the ruins of the aristocracy; I mean, the Statute of
Fines (as one passed in the fourth year of his reign is commonly
called), which is supposed to have given the power of alienating
entailed lands. But both the intention and effect of this seem not to
have been justly apprehended.
In the first place it is remarkable that the statute of Henry VII. is
merely a transcript, with very little variation, from one of Richard III.,
which is actually printed in most editions. It was re-enacted, as we
must presume, in order to obviate any doubt, however ill-grounded,
which might hang upon the validity of Richard's laws. Thus vanish at
once into air the deep policy of Henry VII. and his insidious schemes
of leading on a prodigal aristocracy to its ruin. It is surely strange that
those who have extolled this sagacious monarch for breaking the
fetters of landed property (though many of them were lawyers) should
never have observed, that whatever credit might be due for the
innovation should redound to the honour of the unfortunate usurper.
But Richard, in truth, had no leisure for such long-sighted projects of
strengthening a throne for his posterity which he could not preserve
for himself. His law, and that of his successor, had a different object
in view.
It would be useless to some readers, and perhaps disgusting to
others, especially in the very outset of this work, to enter upon the
history of the English law as to the power of alienation. But I cannot
explain the present subject without mentioning that, by a statute in
the reign of Edward I, commonly called de donis conditionalibus,
lands given to a man and the heirs of his body, with remainder to
other persons, or reversion to the donor, could not be alienated by
the possessor for the time being, either from his own issue, or from
those who were to succeed them. Such lands were also incapable of
forfeiture for treason or felony; and more, perhaps, upon this account
than from any more enlarged principle, these entails were not viewed
with favour by the courts of justice. Several attempts were
successfully made to relax their strictness; and finally, in the reign of
Edward IV., it was held by the judges in the famous case of Taltarum,
that a tenant in tail might, by what is called suffering a common
recovery, that is, by means of an
17
imaginary process of law, divest all those who were to come after him
of their succession, and become owner of the fee simple. Such a
decision was certainly far beyond the sphere of judicial authority. The
legislature, it was probably suspected, would not have consented to
infringe a statute which they reckoned the safeguard of their families.
The law, however, was laid down by the judges; and in those days
the appellant jurisdiction of the House of Lords, by means of which
the aristocracy might have indignantly reversed the insidious
decision, had gone wholly into disuse. It became by degrees a
fundamental principle, that an estate in tail can be barred by a
common recovery; nor is it possible by any legal subtlety to deprive
the tenant of this control over his estate. Schemes were indeed
gradually devised, which to a limited extent have restrained the power
of alienation; but these do not belong to our subject.
The real intention of these statutes of Richard and Henry was not to
give the tenant in tail a greater power over his estate (for it is by no
means clear that the words enable him to bar his issue by levying a
fine; and when a decision to that effect took place long afterwards (19
H.