Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Amidst the lawless confusion introduced by the struggles between regal and aristocratical dominion, the constitutional rights of the Commons seem to have received a temporary interruption, and to have been insulted with a temporary disregard. Their assembling in parliament grew to be less frequent and less effectual; and for a season, perhaps, was altogether suspended. But notwithstanding the disorder occasioned by these struggles, they were in time productive of effects which were beneficial to the people. For if the charter, confirming their ancient liberties, which was granted by Henry I. renewed by Stephen, and continued by Henry II. had remained without a due and proper force; the confederacy of the barons produced under king John and Henry III. the revival and the exercise of the most important privileges. The magna charta brought back, in some measure, the golden times of the Confessor. It appeared to the barons, that they could not expect the assistance of the people, if, in treating with John, they should only act for their own emolument; they were therefore careful that stipulations should be made in favour of general liberty. The people were considered as parties to transactions which most intimately concerned them. The feudal rigours were abated; and the privileges, claimed by the more dignified possessors of fiefs, were communicated to inferior vassals. The cities and boroughs received a confirmation of their ancient immunities and customs[22]. Provisions were made for a proper execution of justice; and in the restraints affixed to the power of the king and the nobility, the people found protection and security.

The sovereign, no less than the nobles, was an enemy to public liberty; and yet both contributed to establish it. Stephen gave the example of a practice, which as it served to enfeeble the aristocracy, was not forgotten by his successors. In the event of the reversion to the crown of a great barony, he gave it away in different divisions; and the tenants in capite produced in this manner, threw naturally their influence into the scale of the commons. The partitions, also, which the extravagance of the nobility, and the failure of male-heirs, introduced into great estates, contributed to restore the democracy. It was a result, likeways, of the madness of the Crusades, that many adventurers to the east returned with more cultivated manners, and more improved notions of order and liberty; and the romantic glory of acquiring a renown there, had induced many potent barons to dispose of their possessions. The boroughs hastened to recover the shock, which they had received during the violent administrations of William and of Rufus[23]; and, if charters of corporation and community were granted seldom during the reigns of Henry I. and of Stephen, they were frequent under Henry II. Richard I. king John, and Henry III. During the sovereignty, accordingly, of the last, and during that of Edward I. the acquisitions secured by the Commons appeared so considerable, that their assembling in parliament became a matter of greater regularity, and they rose to their ancient importance from the disorder into which they had been thrown during agitated and turbulent times.

The 49th year of Henry III. and the 23d year of Edward I. which so many writers consider as the dates of the establishment of the Commons, were, of consequence, nothing more than memorable epochs in their history[24].

Under Edward I. the constitution received a stability to which it was no less indebted to his military than his civil capacity. The wars and expeditions in which he engaged, involved him in immense expence; and calling for supplies, rendered him particularly attentive to the people. The feudal force of the kingdom could not be employed by him with efficacy. In the decline of the gothic system, the nobles were not sufficiently in subjection to the prince; and their service was limited to a narrow period. In the reign, indeed, of Henry II. a pecuniary payment had been substituted in the place of the personal attendance of the military vassal; and the custom had prevailed of hiring soldiers of fortune. But, amidst the prevalence of private and mercenary views, the generous principles which had given solidity to the feudal fabric[25], having totally decayed, and the holding by a military tenure having ceased to be considered as an honour; vassals thought of eluding the duties to which they were bound by their possessions, and granting them away in fictitious conveyances, received them back under the burden of elusory or civil donations. It even grew to be usual among tenants to refuse the pecuniary payments, or the scutages to which they were liable: They denied the number of their fees; they alledged that the charge demanded of them was not justified by their charters; and, while the prince was ready to march against an enemy, it was not convenient to look into records and registers. The sovereign deprived of his service, and defrauded of his revenue, and under the necessity of levying a military force, had no resource so secure or abundant as the generosity of the people[26].

The admirable improvements with which Edward enriched the laws, and facilitated the preservation of domestic peace and order, contributed also with the greatest efficacy to advance and secure the liberties of England. He established the limits of the different courts; he gave a check to the insolence and encroachments of the clergy; he abrogated all inconvenient and dangerous usages; and the great charter, and the charter of the forest, received from him the most ample settlement[27]. The sagacity of his precautions and policy procured to him most deservedly the name of the English Justinian; and it may be mentioned as a convincing proof, both of his genius, and of his having studied the welfare of his people, that, to the form into which he modelled the common law, as to the administration of common justice, the wisdom of succeeding times has not been able to add any considerable improvements[28].

The crown of Edward I. but not his talents, descended to Edward II. The indolence, however, and the incapacity of the last prince, joined to his absurd passion for favourites, though they rendered his reign tumultuous and unhappy, were no less favourable to the dignity of parliament, and the power of the people, than the excellent administration of Edward III. and the necessities to which he was subjected by his ambition and his prowess. A weak prince may lose the prerogatives transmitted to him; but will never be the founder of a despotism. A high-spirited monarch, dependent for resources on his people, may carry destruction and ruin into the country of an enemy, but will not easily be induced to attack the liberty and the prosperity of his own kingdom.

The sons of Edward III. had contributed, while he lived, to his grandeur, and that of the nation; but no sooner was he laid in his grave, than they excited commotions. The ambition of their posterity was still more pestilent and fatal. The wars between the Houses of York and Lancaster deluged England with blood. The passions of men were driven into rage and phrenzy; and in the massacres, rather than the battles that ensued, conquest or death seemed the only alternative. But while we turn with sorrow from this bloody period of our story, our sympathy is softened by the recollection, that the contending princes brought accessions to liberty, by adding to the weight of the Commons. The favour and countenance of the people were anxiously solicited by both factions; and their influence failed not to grow, while the means of extending it were offered, and while they were courted to seize them[29].

The nation, when satiated with the calamities of civil war, thought of uniting the claims of the two hostile families. Henry VII. the heir of the House of Lancaster, was married to Elizabeth, the heiress of the House of York. This prince affected to be profound, and he has obtained that character. But the condition of Europe at the time in which he lived, and the situation in which he found himself, pointed out to him his strain of conduct. He was more mysterious than wise; more prudent than enterprizing; and more a slave to avarice than ambition. Without having intended it, he placed the grandeur of the Commons on the most solid foundation. In the liberty which he granted to the nobility of breaking their entails, he saw only the degradation of that order. The civil wars had involved them in great expence; and the growing commerce and refinement of the times, exposed them to still greater. Their princely possessions flowed from them to give dignity to the people[30].

Henry VIII. had no certain character, and was actuated by no fixed and determined maxims. He had not the ability to form, nor the firmness to put into execution a deliberate scheme to overturn the liberties of his country. With less capacity than his ancestor, his reign was more splendid; and, with a more imperious temper, he had the art or the felicity to preserve the affection of his subjects. The father removed the pillar which supported the power of the nobles: The son gave a mortal blow to the influence of the clergy. In the humiliation of both, the Commons found a matter of triumph. The Reformation, though it interrupted the progress of literature, was yet highly conducive to civil liberty. The church in losing an authority which it had never merited, and which it had often abused, sunk into a dependence on government. The supremacy returned to the sovereign to whom it originally belonged, and with whom it ought constantly to have remained. The visitation of the monasteries discovered more than the inventions of a pious fraud; vices and abuses which cannot be described, without conveying to the mind the impression of whatever is most wicked and most dishonourable: Their suppression gave encouragement to industry and to the arts; and their wealth diffused in a thousand channels, circulated through the kingdom.