[SECTION VIII.—The English Constitution]
Thus thought Sir John Fortescue, Chancellor of England under Henry VI, exiled in France during the Wars of the Roses, one of the oldest prose-writers, and the first who weighed and explained the constitution of his country.[165] He says:
"It is cowardise and lack of hartes and corage that kepeth the Frenchmen from rysyng, and not povertye;[166] which corage no Frenche man hath like to the English man. It hath ben often seen in Englond that iij or iv thefes, for povertie, hath sett upon vij or viij true men, and robbyd them al. But it hath not ben seen in Fraunce, that vij or viij thefes have ben hardy to robbe iij or iv true men. Wherfor it is right seld that Frenchmen be hangyd for robberye, for that they have no hertys to do so terryble an acte. There be therfor mo men hangyd in Englond, in a yere, for robberye and manslaughter, than ther be hangid in Fraunce for such cause of crime in vij yers."[167]
This throws a startling and terrible light on the violent condition of this armed community, where sudden attacks are an every-day matter, and everyone, rich and poor, lives with his hand on his sword. There were great bands of malefactors under Edward I, who infested the country, and fought with those who came to seize them. The inhabitants of the towns were obliged to gather together with those of the neighboring towns, with hue and cry, to pursue and capture them. Under Edward III there were barons who rode about with armed escorts and archers, seizing the manors, carrying off ladies and girls of high degree, mutilating, killing, extorting ransoms from people in their own houses, as if they were in an enemy's land, and sometimes coming before the judges at the sessions in such guise and in so great force that the judges were afraid and dared not administer justice.[168] Read the letters of the Paston family, under Henry VI and Edward IV, and you will see how private war was at every door, how it was necessary for a man to provide himself with men and arms, to be on the alert for defence of his property, to be self-reliant, to depend on his own strength and courage. It is this excess of vigor and readiness to fight which, after their victories in France, set them against one another in England, in the butcheries of the Wars of the Roses. The strangers who saw them were astonished at their bodily strength and courage, at the great pieces of beef "which feed their muscles, at their military habits, their fierce obstinacy, as of savage beasts."[169] They are like their bulldogs, an untamable race, who in their mad courage "cast themselves with shut eyes into the den of a Russian bear, and get their head broken like a rotten apple." This strange condition of a militant community, so full of danger, and requiring so much effort, does not make them afraid. King Edward having given orders to send disturbers of the peace to prison without legal proceedings, and not to liberate them, on bail or otherwise, the Commons declared the order "horribly vexatious"; resist it, refuse to be too much protected. Less peace, but more independence. They maintain the guarantees of the subject at the expense of public security, and prefer turbulent liberty to arbitrary order. Better suffer marauders whom they could fight, than magistrates under whom they would have to bend.
This proud and persistent notion gives rise to, and fashions Fortescue's whole work:
"Ther be two kynds of kyngdomys, of the which that one ys a lordship callid in Latyne Dominium regale, and that other is callid Dominium politicum et regale."
The first is established in France, and the second in England.
"And they dyversen in that the first may rule his people by such lawys as he makyth hymself, and therefor, he may set upon them talys, and other impositions, such as he wyl hymself, without their assent. The secund may not rule hys people by other laws than such as they assenten unto; and therfor he may set upon them non impositions without their own assent."[170]
In a state like this, the will of the people is the prime element of life. Sir John Fortescue says further: