"A king of England cannot at his pleasure make any alterations in the laws of the land, for the nature of his government is not only regal, but political."
"In the body politic, the first thing which lives and moves is the intention of the people, having in it the blood, that is, the prudential care and provision for the public good, which it transmits and communicates to the head, as to the principal part, and to all the rest of the members of the said body politic, whereby it subsists and is invigorated. The law under which the people is incorporated may be compared to the nerves or sinews of the body natural.... And as the bones and all the other members of the body preserve their functions and discharge their several offices by the nerves, so do the members of the community by the law. And as the head of the body natural cannot change its nerves or sinews, cannot deny to the several parts their proper energy, their due proportion and aliment of blood, neither can a king who is the head of the body politic change the laws thereof, nor take from the people what is theirs by right, against their consents.... For he is appointed to protect his subjects in their lives, properties, and laws, for this very end and purpose he has the delegation of power from the people."
Here we have all the ideas of Locke in the fifteenth century, so powerful is practice to suggest theory! so quickly does man discover, in the enjoyment of liberty, the nature of liberty! Fortescue goes further; he contrasts, step by step, the Roman law, that inheritance of all Latin peoples, with the English law, that heritage of all Teutonic peoples: one the work of absolute princes, and tending altogether to the sacrifice of the individual; the other the work of the common will, tending altogether to protect the person. He contrasts the maxims of the imperial jurisconsults, who accord "force of law to all which is determined by the prince," with the statutes of England, which "are not enacted by the sole will of the prince,... but with the concurrent consent of the whole kingdom, by their representatives in Parliament,... more than three hundred select persons." He contrasts the arbitrary nomination of imperial officers with the election of the sheriff, and says:
"There is in every county a certain officer, called the king's sheriff, who, amongst other duties of his office, executes within his county all mandates and judgments of the king's courts of justice: he is an annual officer; and it is not lawful for him, after the expiration of his year, to continue to act in his said office, neither shall he be taken in again to execute the said office within two years thence next ensuing. The manner of his election is thus: Every year, on the morrow of All-Souls, there meet in the King's Court of Exchequer all the king's counsellors, as well lords spiritual and temporal, as all other the king's justices, all the barons of the Exchequer, the Master of the Rolls, and certain other officers, when all of them, by common consent, nominate three of every county knights or esquires, persons of distinction, and such as they esteem fittest qualified to bear the office of sheriff of that county for the year ensuing. The king only makes choice of one out of the three so nominated and returned, who, in virtue of the king's letters patent, is constituted High Sheriff of that county."
He contrasts the Roman procedure, which is satisfied with two witnesses to condemn a man, with the jury, the three permitted challenges, the admirable guarantees of justice with which the uprightness, number, repute, and condition of the juries surround the sentence. About the juries he says:
"Twelve good and true men being sworn, as in the manner above related, legally qualified, that is, having, over and besides their movables, possessions in land sufficient, as was said, wherewith to maintain their rank and station; neither inspected by, nor at variance with either of the parties; all of the neighborhood; there shall be read to them, in English, by the Court, the record and nature of the plea."[171]
Thus protected, the English commons cannot be other than flourishing. Consider, on the other hand, he says to the young prince whom he is instructing, the condition of the commons in France. By their taxes, tax on salt, on wine, billeting of soldiers, they are reduced to great misery. You have seen them on your travels....
"The same Commons be so impoverishid and distroyyd, that they may unneth lyve. Thay drink water, thay eate apples, with bred right brown made of rye. They eate no fleshe, but if it be selden, a litill larde, or of the entrails or heds of bests sclayne for the nobles and merchants of the land. They weryn no wollyn, but if it be a pore cote under their uttermost garment, made of grete convass, and cal it a frok. Their hosyn be of like canvas, and passen not their knee, wherfor they be gartrid and their thyghs bare. Their wifs and children gone bare fote.... For sum of them, that was wonte to pay to his lord for his tenement which he hyrith by the year a scute payth now to the kyng, over that scute, fyve skuts. Wher thrugh they be artyd by necessite so to watch, labour and grub in the ground for their sustenance, that their nature is much wasted, and the kynd of them brought to nowght. Thay gone crokyd and ar feeble, not able to fight nor to defend the realm; nor they have wepon, nor monye to buy them wepon withal.... This is the frute first of hyre Jus regale.... But blessed be God, this land ys rulid under a better lawe, and therfor the people thereof be not in such penurye, nor therby hurt in their persons, but they be wealthie and have all things necessarie to the sustenance of nature. Wherefore they be myghty and able to resyste the adversaries of the realms that do or will do them wrong. Loo, this is the fruit of Jus politicum et regale, under which we lyve."[172] "Everye inhabiter of the realme of England useth and enjoyeth at his pleasure all the fruites that his land or cattel beareth, with al the profits and commodities which by his owne travayle, or by the labour of others, hae gaineth; not hindered by the iniurie or wrong deteinement of anye man, but that hee shall bee allowed a reasonable recompence.[173]... Hereby it commeth to passe that the men of that lande are riche, havying aboundaunce of golde and silver, and other thinges necessarie for the maintenaunce of man's life. They drinke no water, unless it be so, that some for devotion, and uppon a zeale of penaunce, doe abstaine from other drinks. They eate plentifully of all kindes of fleshe and fishe. They weare fine woolen cloth in all their apparel; they have also aboundaunce of bed-coveringes in their houses, and of all other woolen stuffe. They have greate store of all hustlementes and implementes of householde, they are plentifully furnished with al instruments of husbandry, and all other things that are requisite to the accomplishment of a quiet and wealthy lyfe, according to their estates and degrees. Neither are they sued in the lawe, but onely before ordinary iudges, where by the lawes of the lande they are iustly intreated. Neither are they arrested or impleaded for their moveables or possessions, or arraigned of any offence, bee it never so great and outragious, but after the lawes of the land, and before the iudges aforesaid."[174]
All this arises from the constitution of the country and the distribution of the land. Whilst in other countries we find only a population of paupers, with here and there a few lords, England is covered and filled with owners of lands and fields; so that "therein so small a thorpe cannot bee founde, wherein dwelleth not a knight, an esquire, or suche a housholder as is there commonly called a franklayne, enryched with greate possessions. And also other freeholders, and many yeomen able for their livelodes to make a jurye in fourme afore-mentioned. For there bee in that lande divers yeomen, which are able to dispend by the yeare above a hundred poundes."[175] Harrison says:[176]
"This sort of people, have more estimation than labourers and the common sort of artificers, and these commonlie live wealthilie, keepe good houses, and travell to get riches. They are for the most part farmers to gentlemen," and keep servants of their own. "These were they that in times past made all France afraid. And albeit they be not called master, as gentlemen are, or sir, as to knights apperteineth, but onelie John and Thomas, etc., yet have they beene found to have done verie good service; and the kings of England, in foughten battels, were wont to remaine among them (who were their footmen) as the French kings did among their horssemen: the prince thereby showing where his chiefe strength did consist."
Such men, says Fortescue, might form a legal jury, and vote, resist, be associated, do everything wherein a free government consists; for they were numerous in every district; they were not down-trodden like the timid peasants of France; they had their honor and that of their family to maintain; "they be well provided with arms; they remember that they have won battles in France."[177] Such is the class, still obscure, but more rich and powerful every century, which, founded by the down-trodden Saxon aristocracy, and sustained by the surviving Saxon character, ended, under the lead of the inferior Norman nobility and under the patronage of the superior Norman nobility, in establishing and settling a free constitution, and a nation worthy of liberty.