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that, * from the reign of Henry III. at least, the legal equality of all ranks below the peerage was, to every essential purpose, as complete as at present.
He has surely forgotten the statute of Morton, which declares, that lords shall not marry those they have in ward to villeins or others, as burgesses, where they be disparaged. It is quite clear, that when this act was passed, burgesses were considered an inferior class to freeholders.
We agree, with Mr Hallam, that " we read very little of private wars in England;' but we are not satisfied that they were never legal.' He quotes a passage from Glanvil, where that author expresses his doubts, whether a lord was entitled to demand an aid from his vassal ad guerram suam manutenendam, but thinks this expression must relate to the military service due from the lord to his sovereign.' If such had been the meaning of Glanvil, he would not have expressed himself doubtfully; for there can be no question, that the military tenants of a tenant in chief were bound to assist him in performing his military service to the Crown, either by their personal attendance in the field, or by contributing, according to the extent of their fees, to the scutage imposed on him. But the following passage, from the same author, which seems to have escaped Mr Hallam, places beyond a doubt the right of private war in England; and, notwithstanding the dubious expressions in the former quotation, establishes the principle, that vassals were bound to assist their lords in their private quarrels. Si quis plura homagia pro diversis feodis suis fecerit diversis dominis, qui se invicem infestant, si capitalis dominus ejus ei preceperit, quod secum in propria persona sua eat contra alium dominum suum, oportet eum enis precepto in hoc obtemperare, salvo tamen servitio altorius domini de feodo quod de eo tenet. If a vassal holds tenements of different lords, says Bracton, et si inter dominos suos capitales oriantur inimicitiæ, in propria persona semper stabit cum eo cui fecit ligeantiam, et per attornatum cum aliis.' + • The most prominent instance,' says Mr Hallam, of what may be deemed a private war in England, arose out of a contention between the Earls of Gloucester and Hereford, in the reign of Edward I., during which acts of extraordinary violence were perpetrated; but, far from its having passed for lawful, those powerful nobles were both committed to prison,
and paid heavy fines.' This statement is not quite correct. These noblemen were not fined and imprisoned, because they made war smply, but because they made war after they had been prohibited by the king in Parliament. The punishment that attend
• Glanvil, lib. 9, c. 1.
+ Bracton, llb. 2, c. 35, sect. 5.
ed them is a proof, not of the illegality of private war, but of the supremacy of Parliament, to which the King himself, as well as the proudest baron of the land, was bound to give obedience. Nor is this the only remarkable instance on record of a private war in England. Mr Hallam might have found in Madox a formal truce, or cessation of hostilities, between the Earl Marshall and the Earl of Gloucester, in the reign, probably, of Henry III. ț He has himself, indeed, in a subsequent part of his book, related some acts of violence, amounting in effect to a private war.'s But he is mistaken in classing Foulkes de Breauté among the confederate barons at the accession of Henry III. That worthy partisan was a sturdy royalist, and steady adherent of John. His subsequent misfortunes arose from the error of supposing he might commit the same excesses, with impunity, under Hubert de Burgh, which he had successfullv practised by the favour and example of his old master.
We were inclined to have entered into some discussion with Mr Hallam concerning the state of the English boroughs at the time of the Conquest; but the subject is too extensive for our limits. We are apprehensive, that, notwithstanding his well-founded suspicions of Brady, he has confided too implicitly in that author's history of boroughs, the most imperfect and unfair of all his works. He is inclined, we perceive, to doubt the existence of municipal jurisdiction among the Saxons. He quotes indeed the charter of Lincoln, which refers to municipal privileges of jurisdiction enjoyed by the citizens under the Confessor;' but supposes, that as Lincoln was one of the five Danish towns,
it might be in a more advantageous situation than the nerality ? of boroughs. If he had looked to the charter of Henry II. to the burgesses of Wallingford, published by Brady himself, he would have found a similar recognition of municipal jurisdiction under the Confessor, and, in particular, a confirmation of their mercantile gild, with all its laws and customs, as then enjoyed, among which was this privilege, ne prepositus meus, vel aliqua justicia mea de gilda eorum se intromittat, nisi proprie aldermannus et minister eorum. * From a charter of Henry I. published by Madox, it appears, that the Cnihtengild of London had a soke or manor within the city, which they had enjoyed under the Confessor, and probably from the time of Edgar, with sac and soc and other privileges of Saxon jurisdiction. These privileges they transferred in the time of Henry I. to the priory of the Holy Trinity, in consequence of which the
Formulare Anglican. p. 84. The Fædera, I. 471.
ġ p. 375. 377.
prior of that monastery became one of the aldermen of London, and continued to exercise that office till the suppression of convents in 1531. The ward governed so long in this extraordinary manner, is now called Portsoken ward. +
We are not in the least disposed to enter on the controversy concerning the origin of the House of Commons. We are inclined, in the main, to agree with Mr Hallam ; but we cannot help remarking to him, that the villani mentioned in the 16 Henry III. were not villeins, but townsmen, as he will at once perceive, if he takes the trouble to peruse the writ. We are agreed also, that some of his Parliaments, after the 49 Henry III. must be rejected as spurious. The citizens and burgesses were not summoned to a Parliament in 1269, but to assist at a religious ceremony. The instance at the accession of Edward I. is a case more in point; but the chief object of the meeting was to swear fealty to the King.
But, without searching further for errors and omissions unavoidable in a work like this, we shall proceed to the more pleasing task of giving some extracts, as specimens of the tone and spirit of Mr Hallam's constitutional remarks. After relating the impeachment of Suffolk, and the appointment of a parliamentary commission for reform, in the tenth of Richard II., he makes the following observations.
• Those, who have written our history with more or less of a Tory bias, exclaim against this parliamentary commission as an unwarrantable violation of the King's sovereignty; and even impartial men are struck at first sight by a measure that seems to overset the natural balance of our constitution. But it would be unfair to blame either those concerned in this commission, some of whose names at least have been handed down with unquestioned respect, or those highspirited representatives of the people, whose patriot firmness has been hitherto commanding all our sympathy and gratitude, unless we could distinctly pronounce by what gentler means they could restrain the excesses of government. Thirteen Parliaments had already met since the accession of Richard ; in all, the same remonstrances had been repeated, and the same promises renewed. Subsidies, more frequent than in any former reign, had been granted for the supposed exigencies of the war; but this was no longer illuminated by those dazzling victories, which give to fortune the mien of wisdom. The coasts of England were perpetually ravaged, and her trade destroyed; while the administration incurred the suspicion of diverting to private uses that treasure which they so fully and unsuccessfully applied to the public service. No voice of his people, until it spoke in
+ Firma Burgi, 23- Stow's Survey of London, I. 348.
thunder, would stop an intoxicated boy in the wasteful career of dissipation. He loved festivals and pageants, the prevailing folly of his time, with unusual frivolity; and his ordinary living is represented as beyond comparison more showy and sumptuous than even that of his magnificent and chivalrous predecessor. Acts of Parliament were no adequate barrier to his misgovernment. Of what avail are statutes, says Walsingham, since the king, with his privy council, is wont to abolish what Parliament has just enacted? The constant prayer of the Commons in every session, that foriner statutes might be kept in force, is no slight presumption that they were not secure of being regarded. It may be true that Edward III.'s government had been full as arbitrary, though not so unwise as his grandson's; but this is the stronger argument, that nothing less than an extraordinary remedy could preserve the still unstable liberties of England.
• The best plea that could be made for Richard was his inexperience, and the misguiding suggestions of favourites. This, however, made it more necessary to remove those false advisers, and to supply that inexperience. Unquestionably, the choice of ministers is reposed in the sovereign ; a trust, like every other attribute of legitimate power, for the public good: not, what no legitimate power can ever be, the instrument of selfishness or caprice. There is something more sacred than the prerogatiye, or even than the constitution ; the public weal, for which all powers are granted, and to which they must all be referred. For this public weal, it is confessed to be sometimes necessary to shake the possessor of the throne out of his seat : could it never be permitted to suspend, though but indirectly and for a time, the positive exercise of misapplied prerogatives? He has learned in a very different school from myself, who denies to Parliament, at the present day, a preventive as well as vindictive control over the administration of affairs ; a right of resisting, by those means which lie within its sphere, the appointment of unfit ministers. These means are now indirect ; they need not be the less effectual, and they are certainly more salutary on that account.
After this opinion of the conduct and character of Richard, the reader of Mr Hallam will not be surprised to find him approving of his subsequent deposition, and of the elevation of Henry of Lancaster to the throne.
• His government, for nearly two years, was altogether tyrannical ; and, upon the same principles that cost James Iļ. his throne, it was unquestionably far more necessary, unless our fathers would have abandoned all thought of liberty, to expel Richard II.' The revo-, Jution which elevated Henry IV. to the throne, was certainly so far accomplished by force, that the king was in captivity; and those who might still adhere to him, in no condition to support his authority. But the sincere concurrence, which most of the prelates and nobility, with the mass of the people, gave to changes that could not have
been otherwise effected by one so unprovided with foreign support as Henry, proves this revolution to have been, if not an indispensable, yet a national act, and should prevent our considering the Lancastrian Kings as usurpers of the throne. '- The claim of Henry, as opposed to that of the Earl of March, was indeed ridiculous; but it is by no means evident, that, in such cases of extreme urgency, as leave no security for the common weal but the deposition of a reigning prince, there rests any positive obligation upon the Estates of the realm to fill his place with the nearest heir. “A revolution of this kind seems rather to defeat and confound all prior titles, though in the new settlement it will commonly be prudent, as well as equitable, to treat them with some regard.
In diseussing the claim of the House of York, he does justice to the moderation and humanity of the excellent person who first brought forward that pretension; and remarks, that the sanguinary violence of Margaret left him not the choice of reinaining a subject with impunity.
But with us, who are to weigh these antient factions in the bas lance of wisdom and justice, there should be no hesitation in deciding, that the House of Lancaster were lawful sovereigns of England. I am indeed astonished,' says Mr Hallam, “ that not only such historians as Carte, who wrote undisguisedly upon a Jacobite system ; but even men of juster principles, have been inadvertent enough to mention the right of the house of York. If the original consent of the nation, --if three descents of the throne,-if repeated acts of parliament,-if oaths of allegiance from the whole kingdom, and more particularly from those who now advanced a contrary pretension,-if undisturbed, unquestioned possession during sixty years, could not secure the reigning family against a mere defect in their genealogy, when were the people to expect tranquillity? Sceptres were committed, and governments were instituted, for public protection and public happiness, --not certainly for the benefit of rulers, or for the security of particular destinies. No prejudice has less in its favour ; and none has been more fatal to the peace of mankind, than that which regards a nation of subjects as a family's private inheritance. For, as this opinion induces reigning princes and their courtiers, to look on the people as made only to obey them; so, when the tide of events has swept them from their thrones, it begets a fond hope of restoration, a sense of injury and imprescriptible rights, which give the show of justice to fresh disturbances of public order, and rebellious against established authority.'
On the Regency question we have the misfortune to differ from Mr Hallam. The narrative on the rolls of Parliament, to which he refers, (p. 398), does not, in our opinion, prove, that, during the infancy or infirmity of the King, the right of determining the persons by whoin, and fixing the limitations under