[375] The following is one example of these prejudices: In the 9th of Richard II. a tax on wool granted till the ensuing feast of St. John Baptist was to be intermitted from thence to that of St. Peter, and then to recommence; that it might not be claimed as a right. Rot. Parl. vol.
iii. p. 214. Mr. Hume has noticed this provision, as "showing an accuracy beyond what was to be expected in those _rude_ times." In this epithet we see the foundation of his mistakes. The age of Richard II.
might perhaps be called rude in some respects. But a.s.suredly in prudent and circ.u.mspect perception of consequences, and an accurate use of language, there could be no reason why it should be deemed inferior to our own. If Mr. Hume had ever deigned to glance at the legal decisions reported in the Year-books of those times, he would have been surprised, not only at the utmost _accuracy_, but at a subtle refinement in verbal logic, which none of his own metaphysical treatises could surpa.s.s.
[376] [Note XII.]
[377] During the famous process against the knights templars in the reign of Edward II., the archbishop of York, having taken the examination of certain templars in his province, felt some doubts which he propounded to several monasteries and divines. Most of these relate to the main subject. But one question, fitter indeed for lawyers than theologians, was, whereas many would not confess without torture, whether he might make use of this means, _licet hoc in regno Angliae nunquam visum fuerit vel auditum_? Et si torquendi sunt, utrum per clericos vel laicos? Et dato, qud _nullus omnino tortor inveniri valeat_ in Anglia, utrum pro tortoribus mittendum sit ad partes transmarinas? Walt. Hemingford, p. 256. Instances, however, of its use are said to have occurred in the 15th century. See a learned "Reading on the Use of Torture in the Criminal Law of England, by David Jardine, Esq., 1837."
[378] Rot. Parl. vol. iv. p. 65.
[379] Rot. Parl. vol. iv. p. 202.
[380] This was written in 1811 or 1812; and is among many pa.s.sages which the progress of time has somewhat falsified.
[381] Philip de Comines takes several opportunities of testifying his esteem for the English government. See particularly 1. iv. c. i. and 1.
v. c. xix.
[382] By a frankleyn in this place we are to understand what we call a country squire, like the frankleyn of Chaucer; for the word esquire in Fortescue"s time was only used in its limited sense, for the sons of peers and knights, or such as had obtained the t.i.tle by creation or some other legal means.
The mention of Chaucer leads me to add that the prologue to his Canterbury Tales is of itself a continual testimony to the plenteous and comfortable situation of the middle ranks in England, as well as to that fearless independence and frequent originality of character amongst them, which liberty and competence have conspired to produce.
[383] Brady"s Hist. vol. i.; Appendix, p. 148.
[384] Matt. Paris, p. 330; Lyttelton"s Hist. of Henry II. vol. iv. p.
41.
[385] If a man was disseised of his land, he might enter upon the disseisor and reinstate himself without course of law. In what case this right of entry was taken away, or _tolled_, as it was expressed, by the death or alienation of the disseisor, is a subject extensive enough to occupy two chapters of Littleton. What pertains to our inquiry is, that by an entry in the old law-books we must understand an actual repossession of the disseisee, not a suit in ejectment, as it is now interpreted, but which is a comparatively modern proceeding. The first remedy, says Britton, of the disseisee is to collect a body of his friends (recoiller amys et force), and without delay to cast out the disseisors, or at least to maintain himself in possession along with them. c. 44. This entry ought indeed, by 5 R. II. stat. i. c. 8, to be made peaceably; and the justices might a.s.semble the posse comitatus to imprison persons entering on lands by violence (15 R. II. c. 2), but these laws imply the facts that made them necessary.
[386] No lord, or other person, by 20 R. II. c. 3, was permitted to sit on the bench with the justices of a.s.sise. Trials were sometimes overawed by armed parties, who endeavoured to prevent their adversaries from appearing. Paston Letters, vol. iii. p. 119.
[387] From a pa.s.sage in the Paston Letters (vol. ii. p. 23) it appears that, far from these acts being regarded, it was considered as a mark of respect to the king, when he came into a county, for the n.o.blemen and gentry to meet him with as many attendants in livery as they could muster. Sir John Paston was to provide twenty men in their livery-gowns, and the duke of Norfolk two hundred. This ill.u.s.trates the well-known story of Henry VII. and the earl of Oxford, and shows the mean and oppressive conduct of the king in that affair, which Hume has pretended to justify.
In the first of Edward IV. it is said in the roll of parliament (vol. v.
p. 407), that, "by yeving of liveries and signets, contrary to the statutes and ordinances made aforetyme maintenaunce of quarrels, extortions, robberies, murders been multiplied and continued within this reame, to the grete disturbaunce and inquietation of the same."
[388] Thus to select one pa.s.sage out of many: Eodem anno (1332) quidam maligni, fulti quorundam magnatum praesidio, regis adolescentiam spernentes, et regnum perturbare intendentes, in tantam turbam creverunt, nemora et saltus occupaverunt, ita quod toti regno terrori essent. Walsingham, p. 132.
[389] I am aware that in many, probably a great majority of reported cases, this word was technically used, where some unwarranted conveyance, such as a feoffment by the tenant for life, was held to have wrought a disseisin; or where the plaintiff was allowed, for the purpose of a more convenient remedy, to feign himself disseised, which was called disseisin by election. But several proofs might be brought from the parliamentary pet.i.tions, and I doubt not, if nearly looked at, from the Year-books, that in other cases there was an actual and violent expulsion. And the definition of disseisin in all the old writers, such as Britton and Littleton, is obviously framed upon its primary meaning of violent dispossession, which the word had probably acquired long before the more peaceable disseisins, if I may use the expression, became the subject of the remedy by a.s.sise.
I would speak with deference of Lord Mansfield"s elaborate judgment in Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it appear to me rather too strongly stated; and particularly that the acceptance of the disseisor as tenant by the lord was necessary to render the disseisin complete; a condition which I have not found hinted in any law-book. See Butler"s note on Co. Litt. p. 330; where that eminent lawyer expresses similar doubts as to Lord Mansfield"s reasoning. It may however be remarked, that constructive or elective disseisins, being of a technical nature, were more likely to produce cases in the Year-books than those accompanied with actual violence, which would commonly turn only on matters of fact, and be determined by a jury.
A remarkable instance of violent disseisin, amounting in effect to a private war, may be found in the Paston Letters occupying most of the fourth volume. One of the Paston family, claiming a right to Caistor Castle, kept possession against the duke of Norfolk, who brought a large force, and laid a regular siege to the place, till it surrendered for want of provisions. Two of the besiegers were killed. It does not appear that any legal measures were taken to prevent or punish this outrage.
[390] Difference between an Absolute and Limited Monarchy, p. 99.
[391] The manner in which these were obtained, in spite of law, may be noticed among the violent courses of prerogative. By statute 2 E. III.
c. 2, confirmed by 10 E. III. c. 2, the king"s power of granting pardons was taken away, except in cases of homicide per infortunium. Another act, 14 E. III. c. 15, reciting that the former laws in this respect have not been kept, declares that all pardons contrary to them shall be holden as null. This however was disregarded like the rest; and the commons began tacitly to recede from them, and endeavoured to compromise the question with the crown. By 27 E. III. stat. I, c. 2, without adverting to the existing provisions, which may therefore seem to be repealed by implication, it is enacted that in every charter of pardon, granted at any one"s suggestion, the suggestor"s name and the grounds of his suggestion shall be expressed, that if the same be found untrue it may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find the commons requesting that pardons might not be granted, as if the subject were wholly, unknown to the law; the king protesting in reply that he will save his liberty and regality, as his progenitors had done before, but conceding some regulations, far less remedial than what were provided already by the 27th of Edward II. Pardons make a pretty large head in Brooke"s Abridgment, and were undoubtedly granted without scruple by every one of our kings. A pardon obtained in a case of peculiar atrocity is the subject of a specific remonstrance in 23 H. VI.
Rot. Parl. vol. v. p. 111.
[392] Rot. Parl. vol. ii. p. 201. A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injurious to the adjacent counties. Upon the credit of their immunity from the jurisdiction of the king"s courts, the people of Cheshire broke with armed bands into the neighbouring counties, and perpetrated all the crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H.
IV. c. 18. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly pet.i.tion, 23 H. VI. Rot.
Parl. vol. v. p. 104, 154, that this exclusion may be kept in force.
Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8.
It is curious that, so early as 15 E. II., a writ was addressed to the earl of Arundel, justiciary of Wales, directing him to cause twenty-four discreet persons to be chosen from the north, and as many from the south of that princ.i.p.ality, to serve in parliament. Rot. Parl. vol. i. p. 456.
And we find a similar writ in the 20th of the same king. Prynne"s Register, 4th part, p. 60. Willis says that he has seen a return to one of these precepts, much obliterated, but from which it appears that Conway, Beaumaris, and Carnarvon returned members. Not.i.tia Parliamentaria, vol. i. preface, p. 15.
[393] The statute of Winton was confirmed, and proclaimed afresh by the sheriffs, 7 R. II. c. 6, after an era of great disorder.
[394] Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.
[395] 1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R.
II. c. 5. The inst.i.tution excited a good deal of ill-will, even before these strong acts were pa.s.sed. Many pet.i.tions of the commons in the 28th E. III., and other years, complain of it. Rot. Parl. vol. ii.
[396] Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E.
II. c. 16, was not founded on a pet.i.tion, but on the king"s answer; so that the commons were not real parties to it, and accordingly call it an ordinance in their present pet.i.tion. This naturally increased their animosity in treating it as an infringement of the subject"s right.
[397] Glanvil, 1. v. c. 5.
[398] According to Bracton, the b.a.s.t.a.r.d of a nief, or female villein, was born in servitude; and where the parents lived on a villein tenement, the children of a nief, even though married to a freeman, were villeins, 1. iv. c. 21; and see Beames"s translation of Glanvil, p. 109.
But Littleton lays down an opposite doctrine, that a b.a.s.t.a.r.d was necessarily free; because, being the child of no father in the contemplation of law, he could not be presumed to inherit servitude from any one; and makes no distinction as to the parent"s residence. Sect 188. I merely take notice of this change in the law between the reigns of Henry III. and Edward IV. as an instance of the bias which the judges showed in favour of personal freedom. Another, if we can rely upon it, is more important. In the reign of Henry II. a freeman marrying a nief, and settling on a villein tenement, lost the privileges of freedom during the time of his occupation; legem terrae quasi nativus amitt.i.t.
Glanvil, 1. v. c. 6. This was consonant to the customs of some other countries, some of which went further, and treated such a person for ever as a villein. But, on the contrary, we find in Britton, a century later, that the nief herself by such a marriage became free during the coverture, c. 31. [Note XIII.]
[399] I must confess that I have some doubts how far this was law at the epoch of Magna Charta. Glanvil and Bracton both speak of the _status villenagii_, as opposed to that of liberty, and seem to consider it as a civil condition, not a merely personal relation. The civil law and the French treatise of Beaumanoir hold the same language. And Sir Robert Cotton maintains without hesitation that villeins are not within the 29th section of Magna Charta, "being excluded by the word liber."
Cotton"s Posthuma, p. 223. Britton, however, a little after Bracton, says that in an action the villein is answerable to all men, and all men to him. p. 79. And later judges, in favorem libertatis, gave this construction to the villein"s situation, which must therefore be considered as the clear law of England in the fourteenth and fifteenth centuries.
[400] Littleton, sect. 189, 190, speaks only of an appeal in the two former cases; but an indictment is a fortiori; and he says, sect. 194, that an indictment, though not an appeal, lies against the lord for maiming his villein.
[401] Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181.
Blomefield"s Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell"s State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probanda, and the peculiar evidence it required, which may be found in Fitzherbert"s Natura Brevium, or in Mr. H."s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.
[402] [Note XIV.]
[403] Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.
[404] Glanvil, 1. iv. c. 5.
[405] Dugdale"s Warwickshire, apud Eden"s State of the Poor, vol. i. p.
13. A pa.s.sage in another local history rather seems to indicate that some kind of delinquency was usually alleged, and some ceremony employed, before the lord entered on the villein"s land. In Gissing manor, 39 E. III., the jury present, that W. G., a villein by blood, was a rebel and ungrateful toward his lord, for which all his tenements were seized. His offence was the having said that the lord kept four stolen sheep in his field. Blomefield"s Norfolk, vol. i. p. 114.
[406] Gurdon on Courts Baron, p. 574.
[407] Brooke"s Abridgm. Tenant par copie, 1. By the extent-roll of the manor of Brisingham in Norfolk, in 1254, it appears that there were then ninety-four copyholders and six cottagers in villenage; the former performing many, but determinate services of labour for the lord.
Blomefield"s Norfolk, vol. i. p. 34.
[408] Littl. sect. 77. A copyholder without legal remedy may seem little better than a tenant in mere villenage, except in name. But though, from the relation between the lord and copyholder the latter might not be permitted to sue his superior, yet it does not follow that he might not bring his action against any person acting under the lord"s direction, in which the defendant could not set up an illegal authority; just as, although no writ runs against the king, his ministers or officers are not justified in acting under his command contrary to law. I wish this note to be considered as correcting one in my first volume, p. 200, where I have said that a similar law in France rendered the distinction between a serf and a homme de poote little more than theoretical.
[409] See the rules of pleading and evidence in questions of villenage fully stated in Mr. Hargrave"s argument in the case of Somerset.
Howell"s State Trials, vol. xx. p. 38.