INQUIRY INTO THE RISE AND GROWTH OF THE ROYAL PREROGATIVE IN ENGLAND. A NEW EDITION, WITH THE AUTHOR'S LATEST CORRECTIONS, BIOGRAPHICAL NOTICES, &c. TO WHICH IS ADDED AN INQUIRY INTO THE l#t@a$) tiS^VTO&ftsOF KING EADWIG. or THE UNIVERSITY BY 3<&%J3J$ik, ^ L "" "* -. \ " LATE MASTER ^OF^ClXlfWJCH COLLEGJC. LONDON: LONGMAN, BROWN, GREEN, AND LONGMANS, PATERNOSTER-ROW. MDCCCXLIX. PRINTED BY RICHARD AND JOHN EDWARD TAYLOR, RED LION COURT, FLEET STREET. EDITOR'S PREFACE. THIS edition is printed from a corrected copy of the work lent to me several years ago by the au- thor, who long before his lamented death in 1843 had contemplated a new edition of the * Inquiry/ with some alterations and additional matter. That his intention was not carried into effect is to be deeply regretted. The ' Inquiry into the Life and Character of King Eadwig' I selected from among a large num- ber of the author's manuscripts, which were kindly placed in my hands by the late Lady Holland, with permission to transcribe from them whatever I might deem desirable either for my own use or for publication. This tract, though powerfully written and bearing the impress of the author's mind on almost every page, yet seems to have been regard- ed by him as an unfinished publication. In his ' Reply to Dr. Lingard's Vindication/ he evidently alludes to it, when, speaking of " the tragic tale of Edwy and Elgiva/' he says, "The materials I had collected I put together ; but as the subject was of a2 iv EDITOR'S PREFACE. little interest, and of still less intrinsic import- ance, I threw my essay aside, and most probably should never have looked at it again, if I had not been a second time seduced into a review of one of Dr. Lingard's publications." The references to the Anglo-Saxon Laws are made to the ' Ancient Laws and Institutes of En- gland/ folio, printed under the late Record Com- mission, in place of the 'Leges Anglo-Saxonica?' of Wilkins, as in the former edition. For most of the Anglo-Saxon charters mentioned in the work, reference is given to their places in Kemble's 1 Codex Diplomaticus ^Evi Saxonici.' Prefixed are two biographical notices of their early and valued friend, the author, communicated, as a tribute to his memory, by Sir James Gibson Craig, Bart, and Major- General Fox ; also the no- tice of his work from the Edinburgh Review, and the ' Rapport ' on the same of M. Berenger, read before the National Institute of France, showing, if necessary, the high estimation in which the work is held, both at home and abroad. B. THORPE. CONTENTS. \ BIOGRAPHICAL NOTICES OF THE AUTHOR. Page SIR JAMES GIBSON CRAIG, BART., TO MAJOR-GENERAL Fox xi MAJOR-GENERAL Fox TO THE EDITOR xviii LORD BROUGHAM LORD BYRON THE EDITOR xxv FROM THE EDINBURGH REVIEW xxxi RAPPORT DE M. BERENGER Ixvi INQUIRY INTO THE RISE AND GROWTH OF THE ROYAL PREROGATIVE IN ENGLAND. ... 1 TRANSCENDENT ATTRIBUTES OF THE KING. King is a corporation sole 4 But different from other corporations sole 5 Ideal theory of the English monarchy 6 Corrections in practice 7 MONARCHICAL THEORY OF MODERN EUROPE. Antiquity of this theory 9 Not derived from the ancient Germans 11 But from the Roman Provincials 13 In what manner introduced among the Barbarians . . 14 Condition of the Provincials under their new masters 1 6 Progress of the monarchical theory among the Bar- barians 17 Imitations of the Imperial Court by the Kings of the Barbarians , 18 VI CONTENTS. Page But their real power continued limited 20 Gradual progress of royal authority 21 Divine origin attributed to monarchy 22 MONARCHICAL THEORY OF ENGLAND. Two bodies or capacities in the King of England. ... 26 Influence of his natural on his politic capacity 28 In making the crown hereditary ib. In protecting his Queen and eldest son from treason ib. Influence of his politic on his natural capacity 29 King cannot be nonsuit, nor appear in a court of law by attorney ib. There can be no laches in the King 30 King cannot be an infant, lunatic, or traitor ib. Reasons why the King cannot be a minor 31 No action can be raised against the King ib. King can do no wrong ib. King never dies 32 Legal consequence of this principle 33 Sovereignty of the King 34 Perfection of the King 35 TARDY GROWTH OF MANY OF THE ROYAL PREROGATIVES. Weregild and mundbreach of the Anglo-Saxon kings 36 Origin of the sacredness of character attributed to the King 41 Crown elective in former times 44 Some disadvantages of hereditary succession 48 Style and title of the King in ancient times 50 ALLEGIANCE. Doctrine of the English law 51 Some consequences of this doctrine 52 Measure of allegiance different in different countries 53 Obligations of allegiance considered historically .... 54 Unconditional oath of allegiance borrowed from the Roman empire ib. Coronation oath exacted from Kings 56 CONTENTS. Vll Page Homage derived from the Germans 57 Mutual engagements of Kings with their subjects and of lords with their men among the Anglo-Saxons. . 63 Changes effected by the Conqueror 69 Diffidation 72 Deposal of Edward II 75 And of Richard II ib. Right of the ricos omes in Spain to renounce their country 77 Question, whether allegiance is due to the King in his natural or in his politic capacity 78 Judgment against the Despensers 79 Opinions in the case of the postnati 81 Declaration of parliament in 1642 82 Oaths and declarations exacted after the Restoration 84 Abrogated after the Revolution 85 Opinion of Blackstone on the right of resistance .... 86 States where resistance has been authorized by law. . 87 JUDICIAL POWER. Said to emanate from the King 88 Judicial power among the ancient Germans 89 Changes after their establishment in the empire .... ib. Judicial power among the Anglo-Saxons 91 Kings assisted in person in the administration, of -jus- tice ' 92 Kings could be sued in the courts of justice formerly 93 But cannot now ; 94 Conclusions from this fact ..j ib. Proof of it ..:.. : ...;... 95 Opinion prevalent that there existed a legal control over the King ...... t 97 King of Spain may be sued in his own courts ...... 98 Criminal jurisprudence , 99 Prosecutions by appeal ib. Criminal jurisprudence among the ancient Germans. . 101 Pecuniary compositions 102 Crimes considered as offences against the state .... 104 Vlll CONTENTS. Page As offences against the King 105 But appeals maintained their ground ib. Different sorts of appeal. . , ib. Letters of security 106 Proceeding in compositions for homicide 107 Royal prerogative of mercy 108 Exception of impeachment ib. Palatine jurisdictions 109 Right of private war among the Anglo-Saxons .... Ill On the continent 115 Relaxation of the bonds of kindred 118 Relation of lord and vassal maintained the practice of private war 1 20 Private war in England after the Conquest 122 KING SAID TO BE THE FOUNTAIN OF HONOUR 124 TENURE OF LANDED PROPERTY: All landed property in England said to be derived originally from the bounty of the King 1 25 A mere fiction of law ib. Character and government of the ancient Saxons . . 127 Land belonged to the community among the ancient Germans 129 Commencement of private property in land 130 Partition of lands made by the Barbarians on their first establishment in the empire 131 Alodial lands 1 32 Lands of the fisc or public 133 Beneficiary lands 134 Alodial lands converted into feuds or hereditary bene- fices 135 Denominations of land among the Anglo-Saxons. . . . ib. Folcland ib. Bocland 136 Folcland exempted from many burthens when con- verted into bocland 137 Burthens to which bocland was subjected /'/>. CONTENTS. IX Folcland possessed by freemen of all ranks and con- ditions 138 By noblemen of the first rank 139 And by thegns or military servants of the state .... 140 Bocland possessed by freemen of all ranks and degrees 142 By ceorls 143 By gesiths ib. By thegns ib. By the higher nobility ib. Anglo-Saxon Kings possessed of bocland which did did not merge in the crown ib. Bocland at the disposal of the proprietor, unless limited by settlement 1 45 Consequences of that power 146 Folcland was the fund from which bocland was created 148 Folcland converted into bocland by public authority . 149 Appropriations of folcland to particular uses 151 Sources from which the Terra Regis of Domesday was derived 152 Private lands of the King merged in the crown .... 153 CONCLUSION 156 AUTHORITIES AND ILLUSTRATIONS 161 AN INQUIRY INTO THE LIFE AND CHARACTER OF KING EADWIG . 219 BIOGRAPHICAL NOTICES Sir James Gibson^a^n^aj or- General Fox. JOHN ALLEN was born at Redfoord, in the parish of Colinton, near Edinburgh, on the 3rd of February His father, James Allen, was a writer in Edin- burgh, and proprietor of the small estate of Red- foord, now part of the property of Mr. Trotter of Dreghorn. His mother was Beatrix Wight, daughter of Mr. Robert Wight, a most respectable farmer in the same parish. Mr. Wight was, before the marriage, tenant of the farm of Kingsknowes, the property of James Carmichael of Hailes, Esq., in which the great freestone quarry of Hailes is situated. Mr. Car- michael offered him a feu (a perpetual lease of the quarry) at a rent of 100 Scots (8. 65. Sd. ster- ling), but at that time there was only a country sale for the stone there was no demand for it Xll BIOGRAPHICAL NOTICES from Edinburgh, which was then a very insignifi- cant place, in comparison of what it now is The new town of Edinburgh was not then begun to be built, and Mr. Wight, thinking it an unsafe specu- lation, declined it. The successors of Mr. Carmi- chael have within the last fifty years drawn nearly 150,000 of rent from the quarry, and are now getting a large annual return from it. Mr. Allen's father died in bankrupt circum- stances when he was young, but he was enabled to complete his education by the kindness of his mo- ther's family and of Mr. Robert Cleghorn, a most respectable farmer, whom she took for her second husband. Mr. Allen was apprenticed to Mr. Arnot, a sur- geon in Edinburgh, with whom John (afterwards Professor) Thomson was also an apprentice ; they became most attached friends, and continued to be so till Mr. Allen's death. Professor Thomson was originally intended to be a weaver, and laid the foundation of his future eminence by laborious study while following that occupation. He had the books he was studying always lying open at the side of his loom, and never lost a moment he could spare in making use of them. Mr. Allen and I were both enthusiastic admirers of Mr. Fox, and of the first proceedings of the French revolution, which appeared to us to pro- mise the greatest blessings to mankind ; and not- OF THE AUTHOR. Xlll withstanding the horrors and miseries through which France has since passed, a candid person must admit that our anticipations have been in a great degree realised. On the taking of the Bastille, an idea was started, that it should be celebrated by a dinner in Edin- burgh. Mr. Allen and I took a leading part in the necessary preparations, and thus our acquaintance, and a friendship which lasted during his life, was then formed. Every effort was made by threats, promises and influence of all kinds to prevent the dinner taking place, and afterwards to lessen the effect of it. Those concerned in it were held out to be little better than traitors ; and James Laing, who then took the charge of the police of Edinburgh, sta- tioned himself at the door of Fortune's Tavern, where the dinner was to take place, noting down the names of all who entered the house. The party consisted of twenty-four, which was more than we expected, considering the means used against us. Our Chairman was Alexander Fergusson of Craigdarroch, father of the gentleman who signalized himself with Lord Thanet at the trial of O'Quigley at Maidstone. I regret to say that our Chairman became a re- negade to the principles he most strongly professed. He was killed by the carriage, in which he was, being overturned at Eriestane Brae on the Dum- fries road. XIV BIOGRAPHICAL NOTICES Of those who were present, I only remember, John Clerk, afterwards Lord Eldin. David Cathcart, afterwards Lord Alloway. Adam Gillies, afterwards Lord Gillies. Malcolm Laing the Historian. John Miller, advocate, son of Professor Miller of Glasgow. Thomas Wilson, advocate. Archibald Fletcher, advocate. Charles Ross, Esq., advocate. James Campbell, afterwards solicitor in London. John Allen. John Thomson. Amos Morrison, writer in Edinburgh. James Gibson, now Sir James Gibson Craig of Riccarton, Bart., believed to be the only sur- vivor. These formed the nucleus on which the liberal party of Scotland was founded. None of them ever swerved from their principles. They ever main- tained them in the most determined manner, and several of them lived to see them triumphant by the passing of the Reform Act. Mr. Allen became a member of the College of Surgeons and of several societies, in which he greatly distinguished himself. Some time after the taking of the Bastille had been celebrated, Thomas Muir was indicted to stand trial before the Court of Justiciary for sedition. He had never been of our party ; but Allen and some of OF THE AUTHOR. XV our friends hearing that he meant to defend him- self, strongly remonstrated against his doing so, heing convinced that a man " who is his own coun- sel has a fool for his client," and he was offered gratuitously the best assistance. The Honourable Henry Erskine agreed to be his counsel ; but he was a perverse, conceited person, and would take no advice. He was found guilty and sentenced to trans- portation. All were thunderstruck with the ex- treme severity of the sentence, and none more than the jury. They met immediately after the Court rose, and unanimously expressed their opinion that the sentence was beyond all measure severe. They thought Muir's guilt had been so trivial, that a few weeks' imprisonment would be a sufficient punish- ment, and they resolved to prepare a petition to the Court, and to meet next day for the purpose of signing it. But when they met, Mr. Innes of Stow produced a letter he had received, threatening to assassinate him for his concurring in the verdict of guilty, on which the jury separated, considering it impossible for them to interfere. Of this I was informed by my uncle, Mr. Balfour of Pilrig, who had been clerk to the jury. It is impossible to give an idea of the hostile feelings which actuated both parties at this time : society was in a great degree broken up. In ordi- nary dinner parties it was considered not safe to ask persons to meet who were opposed to each other XVI BIOGRAPHICAL NOTICES in politics, and the most extraordinary measures were resorted to. The late Lord Daer gave a dinner in Hunter's Tavern, Writers' Court, Edinburgh, to about twenty of the leading Liberals, of whom Allen, Thomson, and I were part. In the tavern there were two rooms, parallel, separated by a thin wooden partition : what passed in the one room could be distinctly heard in the other. Our party met in the one room, leaving our hats in it, and when dinner was served went into the other. After dinner, one of the party, ha- ving an engagement of business, left the dinner- table, went into the next room to get his hat, and almost instantly returned, saying, "Be on your guard in what you say the sheriff of the county and a celebrated professor of law (naming them) are in the next room, without wine before them, listening to what is going on." At this dinner a very amusing blunder was made by Mr. S. of Culcreuch, which occasioned great merriment. In the enthusiasm of giving a toast, he exclaimed, " May we all die like Hampden on the field, or Sydney on the scaffold." Allen became acquainted with the late Lord Lau- derdale, who soon entertained a very high opinion of him. He recommended him to Lord Holland, with whom he lived from 1802 till his lordship's death, and afterwards with Lady Holland till his own death. OF THE v^d QF * ^w I saw him often in London, and had by his means the honour of often dining with Lord Holland, conferred great obligations upon me, and showed me never-failing kindness, and afterwards with Lady Holland. At one of these dinners, while the Reform Bill was in progress, the late Lord Melbourne was pre- sent, and a great deal of conversation took place as to the political state of Scotland, when I gave the history of an election for the county of Bute, which greatly amused the party. The writ for election was transmitted to the sheriff, Mr. M c Leod Bannatine, afterwards Lord Bannatine. He named the day and issued his pre- cept for the election. When the day of election arrived Mr. Bannatine was the only freeholder pre- sent. As freeholder he voted himself chairman of the meeting. As sheriff he produced the writ and receipt for election ; read the writ and the oaths against bribery at elections. As sheriff he admi- nistered the oaths of supremacy, &c. to himself as chairman. He signed the oaths as chairman and as sheriff. As chairman he named the clerk to the meeting, and called over the roll of freeholders. He proposed the candidate, and declared him elected. He dictated and signed the minutes of election. As sheriff he made an indenture of elec- tion between himself as sheriff and himself as chair- man, and transmitted it to the Crown Office. This was certainly a very extreme case, and no- b XV111 BIOGRAPHICAL NOTICES thing could be a more perfect farce. But at that time Scots elections were little better. On one oc- casion Henry Dundas named the sixteen Scots peers and forty-three of the Scots commoners, the only exception having been the late Lord Archibald Hamilton and the present Lord Panmure. Mr. Allen was a most sincere, zealous and active friend, possessed of great and highly cultivated talents ; highly respected by Lord Holland and all the leaders of the liberal party ; of a very firm, de- cided and most independent character. His opi- nions and writings in literature and in politics were very highly appreciated and eagerly sought for. He was a very remarkable man ; and although he never sought for or attained a high station, he may be said to have been a great man. He was Warden, and afterwards Master, of Dul- wich College 1 , &c. &c. Major-General Fox to the Editor. Addison Road, August 6, 1849. MY DEAR SIR, You asked me for some memoranda or anecdotes regarding my late old friend John Allen. I only 1 He was elected Warden in 1811, and succeeded to the Mastership in 1820. OF THE AUTHOR. XIX wish that I had the power and the time to give you a sketch of his life and character, but I fear that I am not able to do him justice. You, I believe, knew him quite well enough to be able to give your readers a faithful idea of his great and varied attainments, as well as to describe the honest though peculiar points of his character. I will only briefly give you some of my recollections of him, and also send you with this an account of his earlier life, kindly drawn up, at my request, for your use by his intimate and now venerable friend Sir James Gibson Craig, Bart. I first remember, and never shall forget, John Allen when he came to Holland House in 1802, recommended to my father by the late Lord Lau- derdale, as a medical friend and companion for the continental tour which we then made during three years in France and Spain. He was a stout, strong man, with a very large head, a broad face, enor- mous round silver spectacles before a pair of pecu- liarly bright and intelligent eyes, and with the thickest legs I ever remember. His accent Scotch ; his manner eager but extremely good-natured ; all this made a lasting impression on me, then a boy of six years old. Our journey through France to Valencia was long and slowly performed ; the late John Kemble and Frederick Ponsonby 1 , at that time a young 1 Second son of Lord Bessborough, and afterwards a very distinguished cavalry officer, left for dead on the field of Water- b2 XX BIOGRAPHICAL NOTICES cornet of the 10th, were of our party. Allen used to be constantly reading, and also kept a very exact and minute journal of all he observed and heard, which was his practice whenever travelling. Whilst the post-horses were changing, he used to walk on at a rapid pace with his book, and frequently ar- rived at the next relay before the cortege of three large English carriages could overtake him, which to prevent he sometimes ran, an operation which was a great amusement to me, as though active and buoyant, his gait was most extraordinary, and he used to move from side to side in running in a manner not a little laughable. In Spain he studied with great assiduity, and made himself master of the early constitutions of the different provinces of that interesting country, and I believe knew them better than any foreigner of his time ; his articles in the c Edinburgh Review ' will fully bear this out. He had ample opportuni- ties of assisting his studies by conversation with eminent and learned Spaniards during the year we spent at Madrid. He there became intimate with Don Antonio Capmany, Don Manuel Quintana 1 , and many other literary men. loo. He was Governor of Malta in 1831 and 1832, and died much regretted and beloved shortly afterwards from the effects of his old wound. 1 Don Antonio Capmany, a native of Catalonia, and author of several works of great research, and subsequently a most zealous partisan against the French, and editor of the ' Centinella contra los Franceses,' which appeared at Cadiz. Quintana, the most cele- OF THE AUTHOR. XXI The capture and destruction of the four Spanish frigates by an equal squadron of ours in 1804, pre- vious to the declaration of war, obliged us to hasten out of the country, and afforded the then all-power- ful Prince of the Peace (Godoy) an opportunity of acting in that gentlemanlike and graceful manner for which his countrymen are so frequently and justly esteemed. We were at Valladolid when the news of this unlucky event arrived, attended with circumstances not a little likely to irritate the na- tional pride of the Spanish public, which with the recent example of the emperor Napoleon's conduct in detaining the English travellers, rendered my father anxious as to the course that the Spanish go- vernment, with a far greater appearance of justice, might be induced to pursue. Quite the contrary ; on his application to the Prince of the Peace, he wrote back, that not only might Lord Holland and his family leave Spain by such route and at such time as they pleased, but that they were at liberty to return to Madrid and remain there as long as suited them, which we did. We returned to England from Lisbon in 1805. Allen was always occupied with writing, and soon after the expulsion of the Whigs from office, pro- duced the historical portion of the * Annual Regis- brated of modern Spanish poets, also a very beautiful writer of prose, as known by his ' Lives of Illustrious Spaniards,' which has been translated into English. He is still living ; I had the pleasure of seeing him at Madrid in 1 840, respected and esteemed by all parties. XX11 BIOGRAPHICAL NOTICES ter ' of 1806-7, as also several articles in the ' Edin- burgh Review/ and a short memoir of Mr. Fox. He lived on at Holland House, when about 1810 he became Warden of Dulwich College, where he occasionally went to stay, and where his zeal for the good of the college, and his judicious manage- ment of it, when he subsequently became its mas- ter, and his attention to the schools and charities depending on it, will be long remembered with affection and gratitude. In 1808, on the breaking out of the War of Independence, my father and family again went to Spain, Allen and Lord John Russell being of the party. Allen's journal at this time is highly interesting : he took great pains to describe the operations that were taking place in that country, and also assisted in the discussions as to the method by which the Cortes were to be assembled, which however did not take place till after our departure. During our residence at Seville in 1809, Jovellanos was al- most daily at my father's house ; he was then a member of the Central Junta, and was as remark- able for his learning and knowledge of the laws and constitution of his country as he was for the up- rightness of his character and the easy dignity of his manners. The events of 1814 again enabled my father to go abroad, and Allen was with us in France, Italy and Germany. Allen's opinions were essentially republican ; he OF THE AUTHOR. XX111 had early imbibed them, and was an ardent ad- mirer of the early proceedings in France daring the first Revolution ; and although his kind disposition revolted at the horrors and cruelties that ensued, he for a long time had hopes of a return to an ho- nest and philanthropic republican government, and was always indignant at the idea of a reaction, and at the pretence set up by some for arbitrary mea- sures, on the plea that republicans must be such as Marat or Robespierre. It was not till Napoleon assumed the purple that these hopes were blasted ; and great was then his despair and indignation. The restoration of the Bourbons in 1814, the firm tenure of government by the ultra-Tories of that day in England, the desertion of liberal views by the Prince when he became Regent, were to Allen as a close of all his political hopes of seeing the country governed on principles he admired, so much so, that he seldom devoted his time to modern poli- ticks ; and from about this period gave his attention chiefly to the early history of our constitution and to the study of Anglo-Saxon. Though so eager a republican in theory, he was not one of those who would have overturned our constitution, for which he had a sincere admiration ; so also was he the most liberal of men towards others of all opinions, provided he deemed them honest in their profession of them. Violent often in language, and uttering the most terrifick expressions towards those he believed to be either hypocrites, XXIV BIOGRAPHICAL NOTICES or cruel, or bigoted, he was in acts and deeds most gentle and kind-hearted. A stranger hearing him discuss the Slave Trade and the punishments he would award to those found carrying it on, or to any one telling a falsehood, or for ill treatment of children especially, would have set hirn down as one of the most vindictive dispositions possible. I have nearly all Allen's manuscripts, and amongst them, as you know, a vast mass of notes and memoranda on Anglo-Saxon history and lite- rature. The rest are chiefly notes on Spanish sub- jects, and journals during his different journeys, and occasional diaries kept during remarkable pe- riods of public affairs in England. These are more remarkable for the precision and exactness with which he narrates what he saw and heard, than for general remarks or views of society and manners. All are written in the plainest and most simple style. He was a man of little imagination, but of the most capacious understanding, and with a me- mory rarely equalled as to facts or observation of what he had read and heard. He was not so re- markable for learning by heart, as for being able to give the whole details of any book that made an impression upon him. I have thus hastily written down what occurs to me as likely to be interesting to you of my dear old friend ; much more I might and would write, but at all events I am happy to be able to give my humble testimony to the good and honest qualities OF THE AUTHOR. XXV of John Allen, who, through nearly all my life till his lamented death, was ever kind, friendly and useful to me, and who was a man, as I have before said, gifted with very remarkable powers of mind and tenacity of attention and memory. Very truly yours, C. R. Fox. Of Mr. Allen, Lord Brougham, who knew him well, thus speaks : " It would be a very imperfect account of Lord Holland which should make no mention of the friend who for the latter and more important part of his life shared all his thoughts and was never a day apart from him, Mr. John Allen ; or the loss which in him the world of politics and of science, but still more, our private circle, has lately had to deplore^-another blank which assuredly cannot be filled up If it be asked what was the peculiar merit, the characteristic excellence of Mr. Allen's understanding, the answer is not difficult to make. It was the rare faculty of combining general views with details of facts, and thus at once availing himself of all that theory or specula- tion presents for our guide, with all that practical experience affords to correct those results of general XXVI BIOGRAPHICAL NOTICES reasoning. This great excellence was displayed by him in everything to which he directed his mind, whether it were the political questions of the day, which he treated as practically as the veriest drudge in any of the public offices, and yet with all the enlargement of view which marked the statesman and the philosopher ; or the speculations of history, which he studied at once with the acumen that extracts from it as an essence the general progress of our species, after the manner of Voltaire and Millar ; and with the minute observation of facts and weighing of evidence which we trace through the luminous and picturesque pages of Robertson and Gibbon. He for whom no theory was too abstract, no speculation too general, could so far stoop to the details of practical statesmanship as to give a friend, proceeding for the first time on a delicate and important mission, this sound advice : 'Don't ever appear anxious about any point, either in ar- guing to convince those you are treating with, or in trying to obtain a concession from them. It often may happen that your indifference will gain a much readier access to their minds. Earnestness and anxiety are necessary for one addressing a public assembly not so for a negotiator.' "The character of Mr. Allen was of the highest order. His integrity was sterling, his honour pure and untarnished. No one had a more lofty disdain of those mean tricks to which, whether on trifles or matters of importance, worldly men have too fre- OF THE AUTHOR. XXV11 quent recourse. Without the shadow of fanaticism in any of its forms, he was, in all essential parti- culars, a person of the purest morals ; and his in- dignation was never more easily roused than by the aspect of daring profligacy or grovelling baseness. His feelings, too, were warm ; his nature kind and affectionate. No man was a more steady or sincere friend; and his enmity, though fierce, was placable." From Historical Sketches of Statesmen in the Time of George III., Knight's edit. vi. pp. 175 seqq. Lord Byron in one of his letters has the follow- ing passage : " Allen (Lord Holland's Allen the best informed, and one of the ablest men I know a perfect Mag- liabecchi a devourer, a helluo of books, and an observer of men) has lent me a quantity of Burns's unpublished, and never-to-be published, letters." The preceding notices embrace that portion of the life of my late friend, in which, perhaps, is comprised almost every particular relating to him of interest either to those who shared the happi- ness of knowing him, or to the general reader. During the ten years that I enjoyed the benefit of XXV111 BIOGRAPHICAL NOTICES his acquaintance for which I am indebted to the kind introduction of a mutual friend 1 he was passing a life of tranquillity, apparently void of in- cident, with his old and affectionate friends, the late Lord and Lady Holland. Throughout the whole period of our intercourse I experienced re- peated proofs of the kindness of his heart and of the depth and extent of his knowledge. It was to him I had recourse in every case of doubt or diffi- culty, while engaged by the late Record Board 2 in editing the ' Ancient Laws and Institutes of Eng- land ;' for, without being a professed philologist, Mr. Allen's familiar acquaintance with the laws, institutes and history of the Germanic nations of the Continent, supplied him with the power of thoroughly comprehending and penetrating the language and the drift of the legal monuments be- queathed to us by their kin, our own Anglo-Saxon forefathers. Of this knowledge, his work on the Royal Prerogative is a lasting memorial. After the death of Lord Holland, an event which caused him the profoundest affliction, his literary pursuits seem to have been partially suspended; not because his energies were impaired, but because they were almost exclusively devoted to the cares which then devolved on him. In a letter I received from him at this time, he writes, " I have lost a much-loved friend of many years' standing, and 1 Sir Francis Palgrave. * Of which Mr. Allen was a most useful member. OF THE AUTHOR. XXIX have nothing to look forward to but to render such services as lie in my power to those who have still more reason than I have to deplore his loss." Of Mr. Allen's own last illness and decease, his friend Sir Stephen Hammick has obligingly sup- plied the following particulars : " Mr. Alien had been ill for a few days with a severe cold, attended with a soreness of the throat and a slight cough, to which he was occasionally subjected. It was not attended with fever, and did not prevent him from carriage exercise. Jaundice then appeared, and the disease soon as- sumed very alarming symptoms, which never were ameliorated. His strength rapidly gave way, and he died on the 10th of April 1843, being seven days from the first appearance of the jaundice. Mr. Allen was attended by Drs. Chambers and Holland, and Sir Stephen Hammick." Besides the two works contained in this volume, Mr. Allen was the author of the following : Two notices of Dr. Lingard's History of England, printed in the Edinburgh Review. A ' Reply to Dr. Lingard's Vindication, in a Letter to Francis Jeffray, Esq.' 1827. 'A Short History of the House of Commons, with reference to Reform.' 1831. ' Inquiry into the Tripartite Division of Tithes in England, by a Layman.' 1833. ' On Church Property.' 1834. ' Vindication of the An- cient Independence of Scotland.' 1833. A body XXX BIOGRAPHICAL NOTICES OF THE AUTHOR. of Notes on the Laws of Henry the First, in the 1 Ancient Laws and Institutes ' before mentioned ; together with many other articles, chiefly on histo- rical subjects, in the Edinburgh Review, also of some medical papers. Mr. Allen was also a con- tributor to the Annual Register. B. T. UNIVEESITY, From the Edinburgh Review, No. CHI. Oct. 1830. THIS is beyond all comparison the most important book upon constitutional antiquities and law that has appeared for many years. Indeed, it claims a very distinguished place among the great works upon those subjects which are familiar to the lawyer and the historian. Replete with profound and accu- rate learning, displaying everywhere extraordinary powers of reasoning and judging, clothed in a style at once simple and powerful, it possesses an ad- ditional title to the regards of those who love liberty, and value the institutions which are at once its best gifts and its surest safeguards ; it breathes through- out a warm love of freedom, and a firm spirit of resistance to the slavish maxims, which lawyers unhappily, as well as courtiers, have almost always been prone to inculcate. This spirit, however, has only guided Mr. Allen to investigate and expose the errors of his predecessors ; it has never warped his own judgment, or led him either to violent lan- guage or extravagant opinions. He exhibits the most calm determination always to search after the truth, and having found it, to make it known, but only as matter of legal and constitutional learning, XXX11 FROM THE EDINBURGH REVIEW. never as food for gratifying the factious and the clamorous. Indeed, the importance which our au- thor attaches to the authority of former ages, and which is avowed by the very undertaking of the enquiry, squares but little with the rash and sweep- ing nature of the modern zealots for liberty and popular rights. That school, generally speaking, not only disregards all appeals to the wisdom of past ages, and despises all enquiry into the ancient system of our civil polity, but actually holds an institution to be the more surely ill-founded if its origin can be traced to less refined times than our own. Conceiving that society is improving, the disciples of the new academy look with more than suspicion upon every produce of the wisdom of earlier days. If any proposed practice can be truly said to be without the warrant of precedent, so much the more likely do they hold it to be an im- provement ; and consequently, if any principle can be found to have been adopted and acted upon by ruder ages, by so much are its claims to their as- sent held to be lessened. One of the chief apostles of the creed held by the wholesale reformers, the late Major Cartwright, deviated somewhat from their prejudices against antiquity ; for the days of Runnimede and Magna Charta were the great bur- dens of his song ; and his predilection for annual parliaments was recommended to him not only by the practice of our ancestors, as far back as the sixth and seventh centuries, but also by the au- FROM THE EDINBURGH REVIEW. XXXlll thority of publicists in the seventeenth ; among whom he cited "Mr. Prynne's well-known work " recommending the revival of short parliaments," lucklessly mistaking the title of that book, so well known to him, that he could not possibly ever have seen it, ' Brevia Parliament aria Kediviva ' (Parlia- mentary Writs Revived). Since this very inau- spicious attempt to graft radical reform upon an- cient authority, we are not aware of any similar appeals to antiquity having been made, or any dis- play of learning tried by the wholesale reformers. The school of Mr. Bentham, not certainly charge- able themselves with any defect of learning, have uniformly held such things cheap in others ; and with them Mr. Allen is likely to pass either for a friend of popular rights, whose zeal leads him to take a trouble wholly superfluous, when he traces them to the remotest periods of history ; or as an ally, whose aid rather impedes than furthers the progress of a cause resting wholly on reason, and ostentatiously disclaiming every thing like defer- ence to authority. From such objectors we take leave to dissent entirely. They commit here, as elsewhere, their accustomed error, of forgetting that they have to work with men, through men, upon men that they have not to do with an ideal being, made by themselves, and fashioned to suit their theories a creature actuated by no passions and no feelings but such as their theories allow, and filled with only c XXXIV FROM THE EDINBURGH REVIEW. their own dogmas and their own views that the men for whom they are giving laws, or forming systems of polity, are made to their hands, and will not, nay, cannot change at all, the first nature im- pressed on them at their birth nor merely, except within certain narrow limits, and after a long time, the second nature with which habit has clothed them. They commit precisely the error which would condemn to lasting ridicule and ever-during lack of employment, a mechanist who should con- struct his engine without the least regard to either friction, or resistance, or the strength of materials ; he would produce something fair to behold, and resembling machinery, until it came to work, when it would either do nothing at all, or crush the work- men with its fragments. All the fundamental prin- ciples of dynamics, however, would be found to have been most learnedly complied with ; the artist would have chapter and verse to show for his ela- borate calculations ; he would probably be as angry at the bystanders for doubting the accuracy of his work, as at himself when it failed, for having left out the consideration of the air, and the beams, and the ropes ; but in this respect he would differ widely from the intolerant and dogmatical Utilitarians he would acknowledge the oversight ; whereas they only wax the more angr/'at all who doubt their in- fallibility, and call for more practical doctrines, and schemes more suited to the actual condition of human affairs. FROM THE EDINBURGH REVIEW. XXXV That it may not be imagined we are indulging in general description, or invective, which they like not, or what they hate worst of all, sneers they who are the greatest dealers in invective, the most unremitting callers of ill-names, the largest users of what they plainly intend for sarcasm we shall il- lustrate what we say by one or two examples, fami- liar, we should think, to the initiated, and suffi- ciently suited to our purpose. The characteristic mode of punishment is much recommended for its wholesome effects upon the minds of the beholders, the only legitimate object of all punishment. Let, say they, a woman convicted of stealing children, be placed in a conspicuous place, with the figure of a hollow child suspended round her neck, into which weights may be put, to annoy her in propor- tion to the atrocity of her offence. Now, here they forget one principle of human nature, which would, as men are at present constituted, operate to coun- teract the whole effect of this penal exhibition. Men all men, as at present made, would laugh vehemently, instead of feeling great terror, at such a grotesque exhibition of the true principles of pe- nal justice reduced to practice. And if men are to be made anew, so as not to laugh at such follies, it would be as easy at once to make them without the propensity to steal children. Again Jury trial is undervalued on account of its imperfections ; and the administration of justice is to be intrusted to judges, irremovable, except on proof of misconduct. c2 XXXVI FROM THE EDINBURGH REVIEW. But it is all the while forgotten that we must, as long as the nature of man remains feehle and cor- rupt, expect judges to share these defects ; that the control of a jury can alone afford a constant security against them ; and that were men no longer such frail and faulty creatures, the institution of both judges and juries would be superfluous. Further- more, say the Utilitarians, why perplex yourselves about patronage and government influence in filling up offices? Establish, by your code, the qualifica- tions required for candidates, and then let all places be offered for sale to the highest bidders. Now here, we say, they wholly overlook the tendency of men to follow corrupt courses for their personal interest ; the extreme difficulty of preventing indi- viduals from imitating the state, and selling their voices upon the question of qualification, as the state avowedly does its preference among the quali- fied ; the impossibility of laying down certain rules as to the qualifications required for office, as, for example, how much acuteness, sagacity, disinter- estedness, industry, shall entitle a man to be pro- moted ; the certain effect of the venal plan to ex- clude all competitors except the wealthy : so that the philosopher, while he fondly dreams that he has invented an easy rule of selection, and com- pounded a specific against abuse of patronage, has in reality, by totally overlooking the nature of men, contrived the most efficacious means for excluding all merit and honesty from the public service, and FROM THE EDINBURGH REVIEW. XXXV11 making the dominion of the most gross, and sordid, and impudent corruption, universal and perpetual, insomuch that it may fairly be doubted whether, under such a system, any human society could be held together twelve months. Something of the same oversight is committed by these ingenious and daring speculators, upon what are termed constitutional questions. First, they deny the existence of such a quality in any measure or plan, as is by other men called consti- tutional or unconstitutional. This means, say they, only something which somebody, for some reason, likes or dislikes. It is not lawful or unlawful ; for it is, avowedly, not to be tried by its legality. Therefore it means nothing. Cannot they com- prehend how a thing may be wrong, as inconsistent with the spirit of our political system, which yet the law has not prohibited ? Thus judges may lawfully be promoted from inferior to higher sta- tions on the bench. But is it not wrong to make this the rule in practice, which should be the ex- ception? The Chancellor may be a private or a common person, not bred to the law ; but were he often so chosen, the administration of justice would suffer severely. The King may levy troops if he can pay them ; and his foreign dominions and his savings may enable him to keep more on foot than Parliament has voted, though he cannot punish them for mutiny and desertion. Would not a mi- nister be answerable as for giving unconstitutional XXXV111 FROM THE EDINBURGH REVIEW. advice, who should recommend such a step to his sovereign ? -Nay, if Parliament were to vote twice as large an army as the public service demanded, and twice as large a civil list as the dignity of the crown required, have the words no sense by which all thinking men would condemn such resolutions as contrary to the spirit, and dangerous to the exist- ence, of the constitution in one word, as unconsti- tutional? Yet by the supposition they would be legal ; for the legislature itself would have sanc- tioned them. Next, the philosophers of whom we are speak- ing, (and, considering their great talents and im- portant services, more in sorrow than in anger,) hold exceedingly cheap all appeals to the sanction of past ages, that is of experience, and to the au- thority of other times, and of men wise in their generation. Are they well advised in this course ? Is it nothing in favour of any institution that it has existed so long ? Does not its endurance at least show the strength of its parts, the solidity of its foundations, and the harmony of its arrangements ? What signifies it, say our speculators, that men more ignorant than ourselves, and less experienced, adopted such a scheme ? But does it become us to brag of our great experience, if we shut our eyes to the experiments of those who preceded us ? What the better, then, are we for having lived after them ? We may admit that the mere fact of any establish- ment existing, or having long existed, is not suffi- FROM THE EDINBURGH REVIEW. XXXIX cient reason for holding it sacred, if its conse- quences are plainly hurtful. But where its effects are very doubtful, and the good hangs nearly in even balance with the mischief, the ancient origin and long continuance of the institution ought clearly to decide in its favour. Its mere existence is something ; but the adaptation of so many other things to it, the fact of so many other parts of our system being founded upon it, or connected with it, renders the change prejudicial and dangerous, un- less it be called for by some manifest expediency. There is, however, another light in which the subject never is viewed by those theorists, and one of great practical importance. Whatever be its foundation, how great or low soever its claims to the approval of rational and wise men, the ten- dency of the human mind to attach itself to any in- stitution of long continuance, is an undeniable fact ; it is as much the part of the nature of man to be- come fond of what has long existed within his knowledge, to feel a prepossession in favour of any establishment he has been long accustomed to, as it is a part of his nature to bear more easily, or do more readily, that which he has been accustomed to suffer or to perform. Indeed, the force of habit is one of the most marked features in our nature, and from it the kind of attachment we are speaking of mainly springs. Can anything be more wild nay, more truly unphilosophical, than to disregard this striking, this almost irresistible propensity of Xl FROM THE EDINBURGH REVIEW. human nature, while framing laws and devising systems for the government of human beings ? Is the omission a less oversight than that of the engi- neer, who should forget that the atmosphere is en- dowed with resistance ? Nay, is it not more akin to his blunder, who should forget that matter gra- vitates ? Yet this is not only the oversight of our philosophers ; it is with them a form of faith : as if the mechanist should begin his discussion with the postulate, that bodies do not attract or repel one another. The learned and sagacious author of the work before us belongs not to this school ; or if he does acknowledge its doctrines, it is only to endue him with the strength of mind, the firmness of purpose, which disregards all authority when balanced against reason, and examines the most generally received opinions with a determination to adopt them, or reject, solely as they shall be found entitled to credit upon their own merits, regardless of the high names by the authority of which they may have been sanctioned. Many things he finds laid down by antiquaries, more by historians, and not a few by eminently learned and slavish lawyers, which have no warrant in the true history of our institu- tions ; and all such errors he exposes with the un- flinching steadiness of purpose, which acknowledges only truth for a master. He has, accordingly, pro- duced a work which must command general assent, and be the manual of those who regard with inter- FROM THE EDINBURGH REVIEW. xli est the antiquities of the constitution. The minute accuracy of legal learning which its pages display throughout, must have a great effect in recom- mending them to the professional lawyer, who will be forced to admit that, but for the want of " addi- tion " in the title-page, the treatise might have been the work of a practising lawyer. The Inquiry opens with a striking and succinct statement of the regal power, as described by the abstract theory of our constitution, which clothes the monarch with every degree of power, and every kind of perfection. According to this theory, he is absolute ruler of the state ; supreme judge among its inhabitants ; sole owner of its land ; commander of its forces ; representative of its existence abroad ; fountain of its honours. He is also, in the eye of the same law, immortal, infallible, everywhere pre- sent, and incapable either of doing or meaning wrong. The person invested with such mighty au- thority is, no doubt, merely ideal ; he is a corpora- tion, and a creature of legal theory ; and in prac- tice, his power is checked, and his defects supplied, in various ways ; for he cannot act in any way without some adviser, or some instrument answer- able for what is done ; so that the power which in the contemplation of law is supreme, in practice is exceedingly limited. The same scheme may be traced in the polity of all the European nations which arose out of the ruins of the Roman Empire. The language of the law is everywhere nearly the Xlii FROM THE EDINBURGH REVIEW. same ; everywhere, too, the sovereign has claimed the rights theoretically ascribed to him, and at- tempted practically to enforce them : everywhere he has, at different times, met with resistance, grounded upon the usages of the state ; but this resistance has been attended with various fortune, leaving in some nations the crown, and in one or two the people, victorious. Whence has this fundamental notion of regal supremacy been originally derived ? Not certainly, Mr. Allen contends, from the German tribes, the fathers of all the Gothic monarchies for they ac- knowledged in their sovereigns only leading captains in war, and councillors in peace. But he justly, in our opinion, traces the pernicious and slavish principle to the Roman Empire, a system of the most unmixed despotism, both at home and abroad, that the world ever saw. " It was the doctrine of civilians that the Roman people had transferred to their emperor the whole power and authority of the state, in consequence of which he became the sole organ and representative of the commonwealth. Whatever he pleased to ordain, was law. Whatever he commanded, was to be obeyed. These maxims had been theoretically established and practically enforced for ages when the empire became a prey to the Barba- rians. The conquerors, accustomed to different notions of go- vernment, were not inclined to part with the liberty and freedom from restraint, which they had enjoyed in their native woods. But the new situation in which they were placed, their dispersion over a vast territory, amidst nations they had subdued and plun- dered, made it necessary, for their common safety, to strengthen the arm of government, and intrust to a few what had formerly been the property of the whole. In practice, they gave up as little as possible of their ancient independence, and when roused FROM THE EDINBURGH by a sense of real or imaginary wrong, they times to assert with their swords the rights they from their ancestors. But, in the changes that became necessary in their written laws, in the instructions to public officers for the administration of their internal government, and in the legal forms required for the secure possession and transmission of pro- perty, to which they had formerly been strangers, they were com- pelled to have the aid of provincial churchmen and lawyers, the sole depositaries of the religion and learning of the times. These men, trained in the despotic maxims of the imperial law, trans- fused its doctrines and expressions into the judicial forms and historical monuments of their rulers ; and thus it happened, that if the principles of imperial despotism did not regulate the govern- ments, they found their way into the legal instruments and offi- cial language of the Barbarians. An imaginary King or prince was created, in whom, by a legal fiction, was invested all the power and majesty of imperial Rome. The same names were even affected. The Barbarian, who had recently exchanged his title of heretoga for that of King, was persuaded to style himself Basileus, in imitation of the Eastern emperors, or to prefix the appellative Flavius to his name ; his sons and cousins were called Clitones or illustrious ; his servants became Palatine officers, and his crown an Imperial diadem." It was thus that the institutions of Roman de- spotism were introduced, its legal ideas inculcated, and its servile language naturalized, among the Barbarian conquerors of the Empire. The laws of Rome continued in force ; in many countries they finally predominated over the original customs ; and in all entered largely into the systems of juris- prudence framed for the government of the people. " Is it then," our author asks, " to be wondered at " that the political maxims and principles of her " government insinuated themselves into the states " erected on her ruins, and tainted, if not the sub- FROM THE EDINBURGH REVIEW. " stance, the forms at least and language of the " public law ? " But it by no means followed that the Barbarians, accustomed to freedom, and igno- rant of kingly supremacy, submitted to the reality of despotism, because its forms and language were borrowed from Rome, where both the name and the thing were united. " The Barbarian, who had "justice done to him in the ancient tribunals of " his nation, inquired not in whose name it was ad- " ministered. If he obtained the lands he wanted, " it was indifferent to him in what form they were " granted. He received them from the public au- " thorities of the state, and cared not whether, in 11 the act of donation, they were described as gifts " of the king, or of the kingdom." After describing the various ways in which the Kings of the Barbarians delighted to ape the Ro- man Emperors, our author thus proceeds to show how wide the difference was between the Roman theory of these monarchies, and the Gothic prac- tice : " But, amidst the honours and decorations with which royalty was clothed by its flatterers and admirers, the rough garment of the Barbarian was seen to peep from under the borrowed purple of the empire. The real King, to whom these imposing titles and high-sounding claims were attributed, remained, as before, the chief of a warlike and turbulent people, regardless and hardly conscious of this fictitious change in his condition. The ideal King of the churchmen and civilians was an absolute prince, in whom were centred the whole power and majesty of the state. The real King, limited in his authority by ancient usage, de- pended on his personal qualities for the degree of power he pos- FROM THE EDINBURGH REVIEW. xlv sessed ; and when seduced by his imaginary dignity to extend the bounds of his prerogative, he had not unfrequently to pay, with his life or deposal, the penalty of his rashness and pre- sumption. After a time, however, the language of adulation, repeated in every act and instrument of government, produced its effect. Men, accustomed to hear their prince described as the source and depositary of their laws, began to think there must have been some ground for the assertion. The real power of the King, as general in war, and chief magistrate in peace, when seasonably enforced and skilfully improved, enabled him to prosecute, on many occasions with success, his encroachments on the ancient usages and privileges of the nation. Order was maintained and justice administered in his name ; and as respect for order and justice gained ground, his subjects, who considered themselves indebted for these blessings to his care, were often induced to acquiesce in pretensions, and submit to usurpations, which had no other origin than a theory of government founded on fiction, borrowed from a foreign law, and fortified by time, because it had been suffered to pass without contradiction by those who, rejecting its authority in practice, were hardly aware of its existence in words. After many a struggle between liberty and prerogative, the result has been in England that the real power of the King has been limited and defined by constitutional law and usage, but that the old attributes are still ascribed to him in law books ; that an incongruous mixture of real and ima- ginary qualities has been formed, which has been called the union of his natural with his mystic or politic capacity ; and that many privileges and peculiarities have been assigned to him in his natural person, for reasons derived from his ideal or politic character." The pious sycophancy of churchmen carried the title of Kings a step higher than even the profane adulation of the Romans, who deified their princes, had ventured to do. Those holy slaves deduced the royal authority, not as the civilians had done from a grant of the people, divesting themselves of all rights, but from the gift of God himself, by whose grace the King himself was said to reign. Xlvi FROM THE EDINBURGH REVIEW. He was anointed with oil, consecrated by a priest, and saluted as the vic'ar or vicegerent of Christ. No matter by what steps he had mounted the throne, through what slaughter of its rightful oc- cupants, all deriving the same title from the same God. As soon as the sceptre was in his hand, he held it by divine right ; every text in the New Testament, inculcating submission, for the sake of peace, to the existing government, was pressed into the service of the prince, as if it had been devised for the support of regal authority alone ; and even the denunciations against kingly government by the prophets of the Old Testament, were cited to show the sinfulness of opposing the regal will. Such being the origin of the attributes given to the ideal person of the sovereign, our author pro- ceeds to show how, notwithstanding their admitted speculative nature, they have warped the judgment of lawyers and antiquaries, respecting the actual prac- tical rights and prerogatives of the real King, in- somuch that many of the latter have been surrep- titiously introduced and established under the co- lour of the ideal prototype. Many instances are given, familiar to most legal readers, to illustrate this kind of confusion or trans- ference, whereby the two capacities, natural and politic, of the King, are mixed together, as the one is considered in the premises and the other in the conclusion. Thus the King is supposed to be at all times present in all courts ; and upon this theore- FROM THE EDINBURGH REVIEW. tical fiction is grounded the practical consequence that he cannot he non-suited like a common party ; because that operation consists in his being sum- moned to appear, and making default. So he is perfect and cannot be guilty of laches, or neglect of his rights ; and therefore, at common law, those rights could never be lost by any length of non- usor, nor could any length of possession secure others against his claims. He can never die ; and therefore the same gift of lands to him, which would give a common person only an estate for his life, gives the King a fee simple, for his successors are comprehended in himself. These things are fami- liar to legal students ; but we are now approaching the parts of this Inquiry which are calculated to throw new and valuable light upon the subject, and to prove how little the prevailing notions of many lawyers are correct, upon the high antiquity of the prerogatives, at different periods of our more recent history, claimed by the crown. And here the learned author first mounts up to the Anglo-Saxon times. By the ancient laws of Kent, theft from the church was to be redeemed by paying twelve times the value of the thing stolen ; from the Archbishop, eleven times ; from the King, or a person in priest's orders, nine times ; and from a common layman, three times. Breach of the peace in a town belonging to the King or Bishop, was fined 1 20 shillings ; in an ealdorman's town, 80 shillings. xlviii FROM THE EDINBURGH REVIEW. The mundbreach (a violation of protection) of the King and Archbishop was the same in Kent ; by the law of the West Saxons it was 5 for the King, and only 3 for the Prelate. The iveregild (or compensation for the murder) of a common person of the lowest class was 200 shillings ; of a thegn, 1200 shillings; of the King, 7200 shillings; but as much more was payable to the state for the King's death, beside the weregild which went to his family. Among the North Angles and the Mercians, the King's weregild, which went to his family, was the same with that of the Ethelings, or princes ; and as much more went to the state : the whole sum was 1181 5s. sterling, that of an eal- dorman being about one-fourth as much. Mr. Allen justly concludes from hence, not only that the immeasurable distance at which the King is now placed above his subjects, was little known in the Saxon times, but that the best-established and most important principle of our law of prero- gative, the inviolability of the royal person, was wholly unknown in those ages. The monarch had the same kind of security for his person that any one else had, though to a larger amount. Indeed, our author very reasonably considers that the sanctity of the person originated in the relation be- tween the hlaford or lord, and the man, which was held peculiarly sacred, and the obligations of which were reciprocal, implying protection on the one hand, and allegiance on the other. This view is, FROM THE EDINBURGH REVIEW. we think, strongly borne out by the fact, that " the laws called Alfred's," and certainly collected by him, declare the compassing the death of a hlaford by his man, to be irredeemable by any weregild. The same protection is given by those laws to the King; the compassing of his death by his man, is inexpiable. In process of time, this was extended by the introduction of the principle that the King is as it were the hlaford of all his subjects ; and hence treason is to this day, by the law of En- gland, of two sorts high treason, or that committed against the King by his man ; and petty treason, or that committed against a master by his servant, evidently the remnant of the treason committed by the man against his hlaford ; but since the statute of Edward III. the crime consists in the intention only, where the King is the object ; where a com- mon person is concerned, the purpose must be car- ried into execution, otherwise the treason is not committed. No maxim of our constitution, not even the in- violability of the Sovereign's person, is better esta- blished than the hereditaryjdeggent. ofjiis crown ; yet in the early times of the monarchy it was elec- tive ; and the form of election, as often happens, long survived the reality of a choice. During the whole period of the Saxon monarchy, it was strictly elective ; though generally among the members of one family ; and so deeply rooted was this princi- ple in men's minds, that the Conqueror thought fit d 1 FROM THE EDINBURGH REVIEW. to undergo the ceremony of an election after he reached London. The three Kings who succeeded were raised to the throne by their followers ; and Henry II. was made King by force of his treaty with Stephen, ratified by the Barons. His eldest son, to secure his succession, was crowned in his lifetime, and predeceasing him, left Richard I. to succeed ; who, Mr. Allen observes, was the first King that took the crown by descent only, and without any interval after the decease of his prede- cessor. Between his death and John's accession there was an interregnum of nearly two months ; he was chosen King, and dated his reign from his coronation, and not from his brother's death. Henry III. succeeded his father, but after an inter- val of nine days. At his decease, Edward I. suc- ceeded peaceably, but dated his reign from his being recognised as King at his father's funeral, four days after he died. Since that time, 1271, there has been no interregnum, unless when the order of succession was broken by changes of dynasty. The slow steps by which the doctrine of alle- giance attained its present form, afford another illustration of the limited authority originally en- joyed by the Kings of this country. The oath of unconditional allegiance, unknown in form as in substance among the Barbarians, was borrowed from Rome, where the slavish people renewed it to each succeeding Emperor. But as it did not suit the Gothic taste for freedom, the monarch softened FROM THE EDINBURGH REVIEW. ll it by taking an oath himself, which made the obli- gation reciprocal ; and that a breach of promise on his part absolved the subject from his obligations, appears from a capitulary of Charles the Bald, ex- pressly authorizing rebellion in the event of his violating his duty. To the Roman allegiance, thus made mutual, was added a relationship peculiar to the northern tribes, that of vassalage, or the con- nexion between a follower and his military chief ; and this allegiance, or fealty, and the return made for the chief's protection and favour, was dissolved by his violation of the covenanted duty towards his man. The King had his immediate vassals, who, as well as his men, owed him fealty like those of the other great lords, of whom he was the princi- pal; but the subject, in general, only owed him allegiance without homage. Among the Anglo-Saxons, though there are in- stances of fealty being occasionally sworn to the Sovereign, there was not, as among the Franks, a regular oath taken by the subject ; but the King always took one at his coronation. The oath taken by subjects to the King was, in England, always *" the conditional and mutual oath of fealty and ho- Q mage, by a man to his hlaford ; and our author gives it entire as follows: " I shall be faithful and true to N, and love all that he loves, and shun all that he shuns, conformably to the laws of God and man, and never willingly, nor wittingly, by word or deed, do aught that is hateful to him, on d2 Hi FROM THE EDINBURGH REVIEW. condition that he keep me as I am willing to earn, and all that fulfil, which was agreed upon between us, when I submitted to him and chose his will." The most ancient oath of allegiance is that urged by the Laws called the Confessor's, in the tenth century : one of these expressly commands sub- jects to " swear such fealty to King Edward as a man owes to his lord." It is clear, therefore, that allegiance was held to be conditional. There is even an example on record of the condition being expressed; for Ethelred II., after being de- throned and banished by the Danes, was afterwards taken back by his subjects in 1014, upon a pledge of better conduct, and a promise " to be towards them a faithful hlaford." There are many in- stances of the council or witan dethroning kings for breach of their obligations. It deserves also to be mentioned, that the oath which vassals took to their mesne lords, contained no exception or qua- lification whatever in behalf of the King, should the lord and the King quarrel ; and in the king- doms of the Continent as well as in England, the lord could in sucri cases command his men's ser- vice against their\ommon sovereign. This was remedied by William the Conqueror, who made the oath of fealty to the crown be taken generally, and without any reserve ; and his example was followed in other countries. But in all the obligations of allegiance, fealty to the king was held to be dis- FROM THE EDINBURGH REVIEW. liii solved by his breach of duty to the people. Thus, in France, the oath to Philip Augustus contains a qualification " So long as he shall do justice in his court ;" and St. Lewis declares rebellion justi- fied against the King who denies justice, pro- nouncing the fief of the vassal forfeited who refuses to serve his mesne lord in the prosecution of the resistance. Mr. Allen traces the same remarkable principle in the English institutions, although the language is not so precise among our lawyers as among those of the Continent. Diffidation was the term used of old to designate the notice given by parties bound together by reciprocal ties, that the union was broken off. It is translated defiance, but originally meant a notice. Thus Henry III. sent a formal diffidation to William Earl Marischal, de- clared him out of protection, and made war on him. The Earl afterwards, on being asked to return to the King's protection, says, " I am no traitor; the King has, without judgment of my peers, deprived me of my honours and laid waste my lands ; twice he has put me out of his protection, while I de- manded and was ready to abide by the judgment of my peers in his court. I amVio longer his man, and by his own act have beeaabsolved from the homage I had rendered him. jt is therefore law- ful for me to defend myself, and to resist the evil counsellors that surround him, by all the means in my power." The confederate barons before the battle of Lewes liv FROM THE EDINBURGH REVIEW. broke off their allegiance to the same king, and gave him battle, upon his declaring them out of his protection, because they denounced his advisers as public enemies. When Edward II. was deposed, Tressell first approached him on the part of the lords spiritual and temporal, and withdrew their allegiance ; and a like ceremony was observed to- wards Richard II. Mr. Allen, in one of his valu- able and learned notes, has given the speeches made upon these memorable occasions. The persons sent with the diffidation to Richard II. were eminent lawyers, Thirnyng, Chief Justice of the King's Bench, and Markham, a puisne judge of the same court. The chief was the spokesman, and thus addressed the King: "And we procurators," he adds, " of all thes states and poeple forsayd, os we be charged by him and by hir autorite gyffen us, and in hir name, 3eld }owe uppe, for all the states and poeple forsayd, homage, liege and feaute, and all ligeance, and all other bondes, charges and services that long ther to. And that non of all thes states and poeple from this time forward ne bere }owe feyth ne do 3owe obeisance os to ther Kyng." The learned judges prefaced the notice which they thus served upon his Majesty, by read- ing to him " certain articles of defaute in his go- vernance, for which the Parliament had adjugged him to be deposed, and pryved of the astate of Kinge, and of all the dignitie and wyreshipp, and of all the administration that longed ther to." FROM THE EDINBURGH REV Our author, after referring to the p] dation in use among those who were both France and England, and the analogous rights of the Spanish proprietors to throw off their natural allegiance upon notice, traces the doctrine of allegi- ance ; which after much struggle, and long stand- ing doubts, was, in James First's reign, decided by the courtly spirit of the judges and crown lawyers in favour of its being due to the person, and not to the place of the sovereign. But this anomaly in the constitution, which was calculated to subvert every principle of liberty, by denying all right of resistance, was fated to enjoy a shortlived triumph. In 1642 the two Houses of Parliament declared the sounder principles of the monarchy, but pushed them to a fatal excess ; the Restoration abrogated this declaration, and put the prerogative upon the footing of passive obedience : the Revolution, founded upon the right of resistance, once more expunged this slavish doctrine from our statute book, and the principle was fully recognised, to use Blackstone's words, " that resistance to the person of the King is justifiable, when by his mis- government of the kingdom the existence of the state is endangered, and the public safety proclaims such resistance necessary." These rights he calls " inherent, (though latent) powers of society, which no climate, no time, no constitution, no contract, can ever destroy or diminish." (1 Com. 245, 251.) v FROM THE EDINBURGH REVIEW. This interesting and very learned deduction is thus closed : " Notwithstanding the zeal and success with which the mo- narchical theory was diffused over Europe by lawyers and church- men, there have been states where resistance to the King was, in certain cases, sanctioned by law. In Castille, if the King at- tempted aught to his own dishonour, or the prejudice of his king- dom, his subjects were entitled and even required by law to re- sist his will, and remove evil counsellors from his person. In Aragon the nobles enjoyed what was called the privilege of union, by virtue of which they were entitled to confederate against the crown, where any attempt was made by the King to invade or encroach on their liberties. The union was a legal and consti- tutional association, authorized and regulated by law. It issued its mandates, as a corporation, under a common seal, and could make war on the King without exposing its members to the penalties of treason or rebellion. In England we have one soli- tary instance of a similar institution. By one of the provisions contained in the Magna Charta of King John, twenty-five barons were to be elected, whose duty it was to take care that the liber- ties granted by that monarch were observed. If any infringe- ment of those liberties took place, or if any injustice or oppres- sion was committed by the King or his servants, any four of these barons might remonstrate to the King, or, in his absence, to the justiciary, and if redress was not obtained within forty days, the whole twenty-five, or a majority of them, were empowered to make war on the King till relief was given to their satisfaction. All persons were bound to assist this commission of twenty-five in the discharge of their duty, and the only limit to their hostili- ties was not to touch the persons of the King and Queen or their issue. This guarantee of our national liberties, which the cruel and perfidious character of John had probably suggested, was omitted in the charter of his son, and therefore forms no part of the Magna Charta of our statute book." The history of judicial rights and institutions affords our author similar illustrations of the limited powers in all ages enjoyed by the crown, though FROM THE EDINBURGH REVIEW. Ivii the Saxon Kings were sworn to assist personally in administering justice, and this practice continued long after the Conquest. But in those times he could also be sued in his courts like a common person. It was so before the reign of Edward I., in whose time the practice of obtaining redress against him by petition was first introduced. A judge is reported in the year book of Edward III. twice to have said that he had seen a writ begin- ning " PrfBcipe Henrico, reyi Anglic." This shows that he could be commanded, in spite of Finch's loyal exclamation, "Who shall command the King?" and that he had a superior, in spite of Bracton's civilian and Romish doctrine, that God only is over him. The author of Fleta more truly and more honestly says, that " the King has a superior in the law which made him King, and a superior in his court, his earls and barons." To the same pur- pose is the restraint, by means of appeal, upon the possible negligence or corruption of the crown in not prosecuting or in pardoning offences. The next subject of enquiry is the legal fiction, which holds all real property to be holden directly or indirectly of the crown a principle of alarming sound, and indeed of import no less portentous, if it had any foundation whatever in the fact. But our author, little disposed as he in general is to spare the lawyers and legal antiquaries, candidly admits that they have never maintained this doc- trine as having the least foundation in reality, with FROM THE EDINBURGH REVIEW. the single exception, perhaps, of Madox, who most absurdly says " that William the Conqueror was seized of all England in demesne ; that he re- tained part of it in his own seisine, and other part thereof he granted and transferred to others," a proposition refuted by every page of history, and every report of judicial proceedings at and after the Conquest. Our author shows at much length that the land of the community never, in the Saxon times, belonged to the King or chief; that when any conquest was made by the northern nations, the lands were divided among the leaders and their followers, and part reserved for the^sc or state, as well as part given to the chief leader or King ; that by degrees the first holders of the land surrendered it to powerful proprietors, from whom they again received grants of it, to be holden under their authority and protection, in return for which they rendered certain services ; and that thus alodial possessions ceased generally, and were supplanted by feudal tenures. This was the history of landed property all over the Continent, and England formed no exception to the rule. The Anglo-Saxons dis- tributed the lands in part to individuals, and re- served the residue to be at the disposal of the state. The opinion of Mr. Allen is, that the former con- stituted what was termed B6c-land, and held by book or charter ; the latter was termed Folc-land, land of the folk or people, and continued at the disposal of the folc-gem6t, or court of the district, FROM THE EDINBURGH REVIEW. llX reverting to the community after the expiration of the period for which it was granted out. The hoc- land might be held by the King as well as by other individuals ; the folc-land was subject to various burdens of a public nature. The hoc-land was held in free and absolute property, unless in cases where it had been originally granted upon condition of certain payments. Our author demonstrates, by the clearest evidence, the error of those antiquaries who have considered folc-land as held by the com- mon people, or by those in a state of villenage ; and shows that the same person possessed, in dif- ferent places, and by separate titles, land of both descriptions. The whole of the dissertation on the tenures of land is highly interesting and full of learning ; it certainly places this subject in a new light, and deserves the best attention of antiquaries and lawyers. But the matter most to our present purpose is that which regards the crown. The King, it seems, held land exactly as the subject did. This is clearly proved by King Alfred's will ; from which it appears that Alfred had had the rights of himself and his family to the landed inheritance of his grandfather Egbert determined in the courts of law, and that he afterwards had been empowered by a decision of the wiian to make a new settle- ment of his share. Mr. Allen demonstrates very fully that hoc-land might be held by any tenure, under any conditions, and by any class of persons ; and he illustrates the lx FROM THE EDINBURGH REVIEW. varieties of those holdings. It might be transferred, unless fettered by the terms of the grant ; and it continued to be boc-land as long as it passed by deed. When the conveyance was without charter, it became what was called l&n-land. Folc-land became boc-land by being granted out to indivi- duals ; and this gift was at first the act of the na- tional assembly, and afterwards of the King, but always with the advice and assent of the assembly, or witan; and while all the charters contain a statement of this consent, instances are not want- ing of such grants being revoked as invalid for want of it. Some of the folc-land was held by the thegns, or persons employed in military service, and called thegn-land ; some by those engaged in the civil administration, the ealdormen and gerefan, or reves, and this was called reve-land ; and some part was set apart for the expenses of the royal household, and said to be held in demesne, or let out to farm. Frequently folc-land was granted out, subject to certain services or payments, for the King's use : and this was the origin of the right of purveyance, afterwards so shamefully abused in the times of the Plantagenets and the Tudors. The land first known by the name of folc-land, after- wards came to be called Terra regia and crown land ; but the expression comprehended both what belonged to the King for his own use ; what he held as private property by a title unconnected with the crown ; and what he was only nominally FROM THE EDINBURGH REVIEW. Ixi the owner of, and could not alienate, or in any way affect without the consent of the national council. In process of time this distinction was obliterated : it became a maxim of the English law, that all lands holden by the King, even those which de- scended to him from relations unconnected with the crown, were held by him jure corona, and made part of the crown property ; and he obtained, on the other hand, an absolute control over the crown property, unfettered by the Parliament in all re- spects, except that of devising it by will. The pa- trimony of the crown was thus dilapidated with scandalous profusion, until the statute of Anne re- strained the power of alienation to grants for three lives, or 31 years; and it was only by a strange anomaly, that, in the reign of George III., the an- cient Anglo-Saxon scheme was restored ; the crown lands being vested in the public, and the King enabled to hold lands by purchase, in his private capacity, and to devise them by will. Such, then, was the Royal Prerogative in all ages of our history not absolute by law, though often- times stretched by violence and usurpation not monarchical in the continental sense of the word, but limited and restrained by the rights of the people. " Every one," says Mr. Allen, " has read with disgust the indecent attempts of churchmen to impress a character of divinity on Kings, to inculcate on their subjects the obligations of passive obedience and non-resistance as religious FROM THE EDINBURGH REVIEW. duties, to found their title on a delegation from heaven, and, with impious flattery, to exalt them above the Almighty, by maintaining, that the ' most high, sacred, and transcendent ' of rela- tions is the ' relation between King and subject.' Every one has heard of the distinction made by judges and lawyers, in the times of the Tudors and Stuarts, between the ordinary and extraor- dinary, or absolute, as they were pleased to call it, prerogative of the crown. Every one knows the abuses introduced into our government, under pretence of the sovereign power attributed in law books to the King of England. And every one must admire the resolution and firmness of our ancestors in combating and successfully resisting these pernicious doctrines." Sir Thomas Went- worth, afterwards Earl of Strafford, friend of the crown though he was, opposed the addition pro- pounded in the House of Lords to the Petition of Right, with these remarkable words, " Let us leave to his Majesty to punish malefactors, but these laws are not acquainted with sovereign power." " Sovereign power," says the illustrious Coke, the most learned of lawyers, yet one of the great patriarchs of English liberty, " sovereign power is no parliamentary word. Magna Charta and all our statutes are absolute, without any saving of sovereign power. Let us take heed what we yield unto. Magna Charta is such a fellow that he will have no sovereign." " I know (said Pym) FROM THE EDINBURGH REVIEW. 1x111 how to add sovereign to the King's person, but not to his power. We cannot leave to him a so- vereign power ; for he was never possessed of it." We subjoin the concluding passage of this admi- rable treatise, as pregnant with sound wisdom, breathing the genuine spirit of the Constitution, and conveying, in language at once just and striking, the practical results of our author's profound re- searcheS; and inculcating a truth, at all times of the last importance to the well-being of the com- munity : " In modern times the prerogative of the crown has been so strictly defined by law, and since the Revolution there has been fortunately a succession of Princes so little disposed to contend for an illegal extension of its boundaries, that though the old doctrines of absolute sovereignty and transcendent dominion still disfigure our law books, they are little heard of elsewhere. Oc- casionally, however, it happens, that in parliamentary discus- sions, assertions are hazarded of latent prerogatives in the crown, which are supposed to be inherent in the very nature of sove- reignty. That such pretensions are unfounded, it is not difficult to make out. Every government that is not established by mili- tary force, or founded on the express consent of the people, must derive its authority from positive law or from long-continued usage. But, where law confers any power, it prescribes and di- rects the mode of administering the authority it bestows ; and what has been given by usage, is necessarily regulated by usage in its exercise. A prerogative founded on usage, which cannot be enforced because it has fallen into desuetude, is a contradic- tion in terms. No one will pretend, that any prerogative of the King of England is founded either on military force or on the express consent of the people. Every prerogative of the crown must therefore be derived from statute or from prescription, and in either case there must be a legal and established mode of ex- ercising it. Where no such mode can be pointed out, we may be assured that the prerogative so boldly claimed is derived nei- Ixiv FROM THE EDINBURGH REVIEW. ther from law nor usage, but founded on a theory of monarchy, imported from abroad, subversive of law and liberty, and alien to the spirit as well as to the practice of our constitution. In En- gland there are no latent powers of government, but those pos- sessed by the supreme and sovereign authority of the state. The King is our sovereign lord ; but he does not possess the sove- reign authority of the commonwealth, which is vested, not in the King singly, but in the King, Lords, and Commons jointly. When we hear of a prerogative inherent in the crown, which the King has no legal means of exercising, we may be certain that it has no existence but in speculative notions of government. Emergencies may arise, where it is necessary for the safety of the state to commit additional powers to the persons intrusted with its defence. But when such cases occur, we are to be guided by considerations of reason and expediency in the powers we confer, and not by vain and empty theories of prerogative, which the very act we are called upon to perform proves to be futile and unfounded." Independently, however, of this practical infer- ence, we hold the light which this book throws upon the early history of our Constitution to be of the greatest importance. It shows us that, what- ever the slavish propensities of priests or lawyers may have affected to believe, absolute power never was of right, and by law, naturalized in England ; that freedom never was an exotic or a stranger, but the birthright and inheritance of Englishmen ; that the presumption where no law or usage appears is always in favour of liberty, and against royal pre- rogative ; that it is in no case for the subject to show his title to be free, but for the monarch to prove his right to oppress. Those who deem all former times to have been less enlightened than our own, are, generally speaking, correct in their FROM THE EDINBURGH REVIEW. assumptions ; but it by no means follows that, the farther we go back into history, the less advanced we shall find the independence of the people, and the more absolute the rule of the prince. Men are not by any means less jealous of their rights in early than in advanced stages of society. It often, indeed, happens, that the same refinements which enlarge the intellect and polish the manners of a community, relax its love of independence, and prepare the way for encroachments upon its rights. And the proposition is anything rather than accu- rate, which regards the liberty of early times as on a level with their civilization. Ixvi Rapport fait a VAcademie des Sciences Morales et Politiques de VInstitutj par M. Berenyer, Membre de cette Academie. Seance du samedi 29 novembre 1834 *. [Prefixed to the French translation of the * Inquiry,' by Paul Guillot. Paris, M.DCCC.XXXIV.] LES recherches de M. John Allen, sur 1'origine et 1'accroissement de la prerogative royale en Angle- terre, me'ritaient de fixer 1'attention de 1'Academie, autant par 1'importance du sujet que par la superi- orite avec laquelle 1'auteur Fa traite*. C'est en efFet, messieurs, une chose digne d'inte- rt que d'envisager dans ses commencements une institution dont la naissance remonte presque de toutes parts a 1'etablissement des societes ; de suivre ses progres chez celui de tous les peuples modernes qui a porte le plus loin le sentiment de son inde- pendance ; et de voir comment cette institution, perfectionnee avec le temps, s'est montree protec- trice de tous les droits et est devenue le fondement le plus assure de 1'ordre public. Un point d'histoire a constater qui presente en meme temps un doute philosophique a resoudre, est, messieurs, cet assentiment presque unanime des nations a reconnaitre un pouvoir unique, et a 1 Lord Brougham, associe Stranger de TAcademie, assistait a la seance. RAPPORT. s'abandonner & sa direction supreme, sinon en toute et toujours, du moins dans ces moments de crise ou le peril reunit les volontes. Cette soumission a 1'autorite d'un seul est-elle dans la nature de 1'homme ? ou doit-on conclure des faits qui la demontrent, que Tunite du pouvoir soit une condition des societes ? C'est la, messieurs, une des plus graves questions que la philosophic puisse adresser a 1'histoire. Le besoin d'ordre est si puissant chez rhomme civilise ; les peuples comme les individus obeissent tellement a cet instinct de conservation qui est la loi commune de leur existence, que 1'institution la plus propre, soit a servir de garantie a la posses- sion, soit a maintenir lapaix de la cite, s'est presque en tous lieux formee comme d'elle-me'me, et qu'elle a pris sa force dans la confiante securite des interets places sous sa tutelle. M. Allen, avant de marquer 1'origine des diverses prerogatives de la royaute', nous montre le pouvoir souverain dans toute sa majeste et tel qu'il appa- rait aux publicistes anglais. Ces publicistes, comprenant le besoin de rendre respectable 1'autorite souveraine, enseignerent a 1'honorer presque a 1'egal de la divinite, ils lui sup- poserent tous les genres de perfection, ils lui en donnerent meme de tellement ideales, qu'ils ne craignirent pas de tomber dans les plus pueriles exagerations. Ainsi, selon eux, le roi est present partout, il jouit d'une immortalite indefmie, il est e2 Ixviii RAPPORT. aussi incapable de penser mal que de mal faire, et sa raison superieure n'admet ni faiblesse ni aberra- tion. Les attributs de sa puissance sont egalement tres-etendus : tout le sol de la Grande-Bretagne lui appartient ; ceux qui 1'habitent n'en ont que I'usu- fruit. II est le seul magistrat de la nation ; conser- vateur de la paix publique, les offenses faites a ses sujets lui deviennent personnelles, et c'est a ce titre que le droit de grace lui est devolu, parce qu'il est nature! que celui qui a re9u 1'injure ait le privilege du pardon. Le roi a le commandement des armies de terre et de mer, toutes les forteresses sont a lui ; il est le representant du royaume envers les puissances etrangeres ; il fait la paix et la guerre ; il He ses sujets par les engagements qu'il contracte et par les traites qu'il ratifie. Sous le rapport religieux, il ne reconnait pas d'autorite superieure a la sienne ; il ne peut done etre soumis a aucune censure spirituelle ; de meme que, dans un autre ordre d'idees, 1'impossibilite ou il est de faillir le place hors des atteintes de la loi commune. Cette figure du monarque, telle que nous la re- presente M. Allen d'apres les publicistes de sa na- tion, a, comme on le voit, quelque chose de sur- naturel et de mysterieux qui est tres-propre a frapper I'imagination et a pr^parer les esprits a Tobelssance. RAPPORT. Toutefois il n'est aucun des voir qui ne trouve son correctif maximes de la loi constitutionnelle. Ainsi, malgre la toute-puissance accordee au roi, il ne peut Pexercer que par 1'intermediaire d'un conseiller qui est toujours responsable de ses actes. S'il a le droit de lever et de commander les armees, il ne peut les tenir sur pied en temps de paix dans 1'interieur du royaume, sans le consentement du parlement ; il en est de meme de ses autres pre- rogatives. Qu'on ne pense pas que cette fiction, qui divini- sait en quelque sorte la royaute, fut propre seule- ment a 1'Angleterre. On la retrouve dans toutes les monarchies de 1'Europe, etablies sur les debris de 1'empire romain ; comme aussi on y remarque une limitation plus ou moins etroite apportee au pouvoir souverain, soit par des lois fondamentales, soit par des usages passes en force de loi. M. Allen signale chez les nations europeennes deux principes contraires, constamment aux prises Tun avec 1'au- tre. D'un cote, 1'autorite royale, qui cherche in- cessamment a s'etendre ; de 1'autre, le principe de liberte qui invoque d'anciens usages, qui oppose de vieilles franchises ; lutte incessante, dont les succes ont ete long-temps divers, mais qui, chez quelques peuples, et dans la plus belle partie du continent, a fini par amener une sorte de transac- tion entre les preventions du pouvoir et les exi- gences populaires. Ixx RAPPORT. Deux theories aussi opposees derivaient neces- sairement de deux sources differentes. On ne peut faire remonter aux anciens Germains celle qui consacrait le pouvoir absolu ; car les tribus les plus considerables de ce peuple avaient adopte la forme du gouvernement republicain, ou si quel- ques-unes avaient un chef, que les Remains deco- raient du nom de roi, son autorite etait ou tem- poraire, ou peu etendue ; elle cessait le plus souvent avec le besoin qu'on avait eu d'y recourir. II n'en etait pas de me'me parmi les sujets des provinces romaines ; le despotisme des empereurs non seulement n'etait pas restreint, il ne cherchait pas meme a se deguiser. Tous les pouvoirs, executif, legislatif et judiciaire, etant reunis dans la meme main, aucune barriere n'etait opposee a la volonte souveraine, si ce n'est Tinsurrection populaire, contre-poids terrible et dangereux qui apparaissait a certains intervalles, et qui devenait pour les mau- vais princes une sorte de justice vengeresse. Des deux theories qui tendaient a etendre ou a restreindre 1'autorite royale, la premiere avait done pris naissance dans les provinces soumises a la do- mination de Rome, 1'autre tait due au caractere independant des tribus germaines. Les vainqueurs etaient sans doute peu disposed a abandonner la liberte dont ils jouissaient ; mais une fois sortis de leurs forets, disperses sur un grand territoire, meles a des peuples mal soumis, et qu'il fallait contenir sans cesse, ils sentirent la RAPPORT. necessite d'armer le gouvernement d'assez de force pour assurer leur securite, et pour se faire obeir des vaincus. Obliges d'ailleurs d'approprier leur legis- lation a leur situation nouvelle, et incapables de s'acquitter eux-memes de ce soin, ils recoururent au clerge et aux legistes, qu'ils trouverent dans les provinces conquises. Ceux-ci, imbus des ma- ximes despotiques de la loi imperiale, firent passer ces maximes dans la legislation, ainsi que dans les actes judiciaires et les monuments historiques de leurs vainqueurs. De la cette opposition bizarre entre les formes du gouvernement et 1'esprit des institutions ; de la aussi ce langage du pouvoir ab- solu s'adressant a un peuple demeure libre. Les vaincus, le clerge surtout, plus eclaires, plus instruits que les guerriers dont ils subissaient le joug, acquirent bientot une grande influence sur les affaires, et, quoique places dans un rang infe- rieur, ils ne tarderent pas a s'elever aux plus hautes charges de Fetat. La loi romaine elle-meme, d'abord personnelle aux vaincus, triompha dans beaucoup de lieux des coutumes nationales, et c'est ainsi que les maximes du grand empire s'insinuerent dans les mceurs et les institutions des barbares, et altererent ce qu'il y avait de liberal dans leur principe. Les souve- rains du peuple conquerant prirent bientot les in- signes des monarques de Rome. Odoacre fut flatte du titre de patrice qu'il obtint de la cour de Con- stantinople ; Theodoric recut d'elle, avec le rneme IXXU RAPPORT. titre, le rang de consul ; les memes honneurs fu- rent conferes par Anasthase a Clovis, que ses sujets saluerent du nom d'Auguste. Justinien abandonna rnerae aux enfants de ce dernier tous les droits de 1'empire sur la Gaule ; concession superflue, puisque depuis long-temps 1'empereur avait perdu son au- torite sur les Francs, mais qui paraissait sanction- ner la conquete. Enfin, Charlemagne, apres avoir releve Tempire d'Occident, se decora du titre d'em- pereur, tout en conservant celui de roi des Francs, que Charles, son petit-fils, dedaigna bientot, pour adopter le fastueux ceremonial de la cour de By- zance et pour prendre les noms d'Auguste et d'empereur de tous les rois d'Occident. Les maximes repandues dans la legislation et les monuments publics, ainsi que les titres donnes par la flatterie, devaient insensiblement produire leur effet. Les rois se conduisirent avec habilete', et les sujets se virent sou vent amenes a acquiescer a des preventions qui n'avaient d'autre origine qu'une simple the'orie de gouvernement. Cette theorie se fortifia avec le temps, non sans combats, on 1'a deja dit ; mais de cette lutte il est resulte pour la royaute un melange de prerogatives imaginaires, de capacites mystiques, et de restric- tions legales qui forment souvent le contraste le plus etrange. Une prevention nouvelle surgit de ce conflit. Les empereurs romains, au dire des publicistes, et en vertu de la celebre loi Regia, s'honoraient de tenir RAPPORT. Ixxiii leur autorite de la delegation du peuple ; c'etait au moins un hommage rendu a ses droits : le roi des barbares, instruit par le clerge, qui cette fois aban- donnait la fiction romaine, fit deriver son pouvoir du ciel, et voulut ne relever que de Dieu ; il regut 1'onction sainte des mains d'un pretre, et quoique a cette epoque il fut encore eieve sur le trone par 1'election, il se declara roi par la grace de Dieu, prevention qui, selon M. Allen, est aussi ancienne que la periode anglo-saxonne de 1'histoire d'Angle- terre. Cette doctrine admise, il en decoulait qu'il n'ap- partenait a aucune puissance de la terre de s'elever centre les actes du souverain ; que c'etait un de- voir religieux de lui obeir ; que la rebellion consti- tuait un sacrilege, et que ceux qui s'en rendaient coupables etaient excommunies et voues a la dam- nation eternelle. C'est ainsi, et a quelques differences prds que nous signalerons plus tard, que se forma 1'autorite royale en Angleterre ; absolue dans son principe, elle re^ut dans la pratique de nombreuses limita- tions. Les publicistes ont epuise leur sagacitd a concilier les contradictions resultant de cette capa- cite indefinie et sans bornes attribuee au roi, et des restrictions qui y avaient ete apportees ; mais quelles que fussent ces contradictions, ce qui est reste de 1'ancien dogme de la puissance souveraine, c'est que le respect pour le prince, Tinviolabiiite, je dirais mme le culte de sa personne, ont passe Ixxiv RAPPORT. sans contestation dans les esprits et dans les moeurs de la nation anglaise. Toutefois et en realite, la distance immense qui separe actuellement le roi de la Grande-Bretagne de ses sujets, n'existait peut-etre pas au meme degre dans 1'enfance de la constitution. M. Allen en trouve la preuve dans la distinction etablie par la loi saxonne entre les diverses classes de la so- ciete, a Poccasion de la composition qui etait ac- cordee pour les offenses. Dans beaucoup de lieux le roi n'etait pas traite par la loi plus favorable- ment que ses sujets ; 1'autorite ecclesiastique etait meme souvent placee au-dessus de lui. Les com- positions variaient selon les divers peuples qui ha- bitaient la Grande-Bretagne, quoique chez tous, la maxime la plus ancienne et la plus respectee fut celle qui considerait la personne du monarque comme sacree, et qui declarait coupable de trahi- son celui qui attentait a sa vie, ou qui formait des complots centre lui. Dans ces cas, neanmoins, le roi n'avait pas droit a une protection plus etendue que ses sujets, il recevait comme eux la compo- sition, c'est-a-dire le prix de 1'offense et rien de plus. Encore faut-il reconnaitre que c'e'tait moins dans sa capacite de roi que dans son caractere de seigneur que la personne du souverain tait invio- lable, car rien n'etait plus venere que les liens vo- lontaires qui unissaient les vassaux a leurs sei- gneurs ; ces liens, tant qu'ils subsistaient, imposaient RAPPORT. 1XXV de part et d'autre des devoirs auxquels 1'autorite d'un long usage attribaait une sorte de caractere religieux. II n'y avait d'ailleurs dans les lois saxonnes au- cune difference entre la trahison contre le roi et celle contre les autres seigneurs. Seulement le roi etant considere comme le seigneur de la nation, la surete dont se prevalaient les seigneurs inferieurs contre leurs vassaux particuliers, lui etait accordee envers tous ses sujets. Cette legislation subsista ainsi pendant plusieurs siecles ; M. Allen nous dit que dans la suite des temps et a mesure que le monarque s'elevait en clignite et en puissance, on introduisit une distinc- tion entre la trabison contre le roi et celle contre les seigneurs. L'une fut appelee haute, et 1'autre petite trahison, distinction qui existe encore au- jourd'hui dans la loi anglaise. Sous les Saxons, la couronne etait elective ; a la veritd, elle residait ordinairement dans une famille particuliere, mais il y avait une liberte illimitee de choisir le souverain parmi les membres de cette famille ; 1'illegitimite meme n'etait pas une cause d'exclusion. II y avait ordinairement un interregne entre la mort du dernier roi et 1'intronisation de son successeur ; c'est dans cet intervalle qu'il etait precede a 1'election ; mais a dater d'Edouard I er , il n'y eut d'interregne que lorsque la ligne succes- sive se trouva rompue ; a 1'avenement de Jacques P r , on declara que Ja loi d'Angleterre n j en recon- IxXVi RAPPORT. naissait plus, et c'est maintenant une maxime con- stitutionnelle qu'immediatement apres la mort du roi, son heritier a de plein droit 1'investiture de la couronne. M. Allen suit une a une, et pour ainsi dire pas a pas, depuis leur naissance jusqu'a leur entier de- veloppement, chacune des prerogatives accordees aux monarques anglais. D'abord, et pendant 1'heptarchie, les petits rois se bornaient a prendre le nom des peuples sur lesquels ils regnaient ; il en fut de meme apres la reunion imparfaite de ces etats sous les Saxons de Touest. Ce fut Jean qui le premier grava sur son sceau le titre de roi d'Angleterre, et cette innova- tion, dont le principe est puise dans la fiction feo- dale qui attribuait primitivement au roi la propriete du sol anglais, a ete adoptee par ses successeurs. L'origine de V allegiance ou du serment de fide- lite est egalement ancienne. Get acte de soumission fut empruntd en partie a Fempire romain, en partie aux usages des Germains ; il etait absolu ou con- ditionnel, selon que les maximes de Tun des deux peuples prevalaient. Sous les Remains, Tarmee preta serment de fide- lit^ d'abord au general, et apres la chute de la republique a Tempereur. Plus tard nul n'en fut exempt, ni les magistrats ni les citoyens ; il fut prete non seulement a chaque avdnement, il le fut encore a des epoques periodiques pendant le meme regne. RAPPORT. Apres la cession que Justinien leur fit de ses droits sur la Gaule, les Francs firent revivre un usage qui favorisait leur puissance ; libres ou vas- saux, laiques ou ecclesiastiques, et jusqu'aux en- fants de douze ans, tous y e'taient soumis. Mais il parait que des le huiti&me siecle quelques personnes refuserent de preter le serment exige ; alors pour vaincre leurs scrupules, le roi s'obligea en retour a respecter leurs droits et privileges et a leur rendre la justice avec impartialite ; les obliga- tions devinrent done reciproques, et si le roi violait son serment, ses sujets etaient dispenses du leur. Charles-le-Chauve les autorisa meme par un capi- tulaire a s'unir contre lui s'il enfreignait leurs pri- vileges ou s'il se rendait coupable d'injustice a leur egard. Un autre acte qui avait beaucoup d'analogie avec 1'allegiance ou serment, Yhommage, devait a son tour son origine aux Germains. Les chefs de ces peuples avaient aupres d'eux des compagnons ou suivants qui formaient leur cour et les accompa- gnaient a la guerre. Ces chefs eux-memes s'atta- chaient au monarque au meme titre. Us venaient dans sons palais avec leurs suivants, et mettant la main dans la sienne, ils lui engageaient leur foi et lui juraient fidelite ; tel etait Fhommage, en vertu duquel on etait recu parmi les anstrustions ou hotes du roi. Ce titre pla^ait ceux auxquels il etait confere a un haut degre d'elevation. On recevait une plus forte composition pour les injures dont Ixxviii RAPPORT. on avait a se plaindre, et, afFranchi des juridictions inferieures, on jouissait du privilege de ne pouvoir etre cite que devant la cour du roi. De si grands avantages furent fort recberches, et insensiblement il se trouva pen d'hommes libres qui ne fussent ou vassaux immediats du roi ou vas- saux des seigneurs, qui 1'etaient eux-memes du monarque. Les principaux de Petat et les vassaux immediats du roi lui pretaient seuls hommage ; les autres su- jets se bornaient au serment de fidelite. M. Allen rapporte la formule de ce serment, qui, quoique redige dans les termes les plus etendus, formait cependant un contrat reciproque, de telle sorte que si le monarque manquait a la protection sous la condition de laquelle on 1'avait prete, les sujets etaient releves de leur allegiance ; et 1'his- toire de cette epoque reculee ofFre plusieurs exem- ples de rois chasses de leur trone pour avoir viole le contrat. Cependant, lors de la conquete des Normands, le caractere entreprenant de Guiilaume ne pouvait se contenter d'une obeissance aussi limitee que celle qui avait satisfait les rois saxons. Ce prince forca tous les proprietaires fonciers de 1'Angleterre a lui preter un serment absolu et sans condition et a de- venir ses vassaux, a quelques seigneurs qu'ils ap- partinssent. Dans le reste de 1'Europe, il fut admis long-temps encore que les vassaux d'un seigneur se devaient a r.F THE RAPPORT. [ { ]j ft I V IXXlx T Y lui de preference au monarque ; et de saint Louis, ils etaient, en France et erTcenainT cas, obliges par la loi de servir leurs seigneurs contre le roi. Mais en Italie, une diete convoquee par Frederic Barberousse declara que dans tout ser- ment de fidelite d'un vassal a son seigneur, 1'em- pereur serait excepte nominativement, c'est-^-dire, qu'au cas de collision entre le seigneur et le mo- narque, la fidelite serait due en premier lieu a ce- lui-ci, et M. Allen affirme qu'il en fut de meme au quinzime si&cle en Angleterre. De la la dis- tinction entre rhommage lige ou serment de fidelite, d'ou est venu le mot alUgiance, lequel etait du au roi cornme chef de Tetat, et rhommage simple qui n'etait du qu'au seigneur et auquel tait joint quelque vasselage ou service. D'autres coutumes naquirent de cette situation des choses. Lorsque des liens existaient qui impli- quaient de la part du roi et de son sujet, ou de la part des sujets entre eux, une foi mutuelle, on ne pouvait les rompre sans un avertissement prea- lable qui s'appelait diffidatio ou defi. Ainsi, avant la deposition d'Edouard II., les lords lui envoy ^rent un depute qui lui declara renoncer en leur nom a rhommage qu'ils lui avaient prete, et les memes formes furent observees lors de la deposition de Richard II. Les Anglais cependant, pour determiner le veri- table sens de Tallegiance, eurent soin de distinguer la couronne de la personne du roi. La declaration 1XXX RAPPORT. du parlement de 1642 etablit & cet egard des prin- cipes dignes d'etre remarques. Selon cette decla- ration, la volonte personnelle du roi, ses ordres me'mes, ne peuvent prevaloir sur les devoirs des dd- positaires de son autorite dans les actes qui se rat- tachent aux attributions de la couronne ; ainsi se trouva nettement posee la doctrine de la responsa- bilite des ministres. Le parlement de son cote a droit de controle sur les concessions faites par le roi lors- qu'elles peuvent prejudicier aux interets de 1'etat : comme pouvoir politique, il pourvoit aux necessi- ts du pays, a la paix publique et a la surete du royaume ; il manifeste en cela et il declare le su- preme plaisir du monarque, encore que celui-ci, seduit par de mauvais conseils, puisse personnelle- ment avoir une volonte differente. La capacite politique du roi est de la sorte pleinement separee de sa capacite personnelle, et Tautorite de la couronne, considered comme fiction politique, est entierement attribute aux deux chambres du parlement. On sent que la restauration devait repousser de telles doctrines, mais une nouvelle revolution ne tarda pas a demontrer combien il est dangereux pour le monarque de s'en affranchir entierement. Le principe de la resistance au roi, lorsque par son mauvais gouvernement il met I'^tat en danger, continua d'etre profess^ par les publicistes anglais. Blackstone n'en fit 1'objet d'aucun doute, en ajou- tant qu'il fallait laisser aux generations futures RAPPORT. Ixxxi le soin de determiner les cas ou la surete de tous imposerait la ne'cessite de recourir a Texercice d'un droit qui appartenait a toute societe, et qui sub- sisterait eternellement dans toute sa force. Malgre les progres de la theorie monarchique en Europe, il y avait des etats chez lesquels cette resistance au roi etait formellement consacree par la loi. En Castille, en Aragon, les nobles jouis- saient du privilege de I'union, qui consistait a s'as- socier contre la couronne, lorsque le roi attentait a leurs libertes ; cette union promulguait ses ordres sous un sceau commun, et pouvait faire la guerre au roi sans exposer ses membres aux peiries de la trahison ou de la rebellion. En Angleterre mme, la grande charte du roi Jean confiait a vingt-cinq barons librement elus le devoir de veiller a ce que les libertes accordees par le monarque fussent respectees ; ces barons etaient armes d'un pouvoir suffisant pour con- traindre le roi a accorder la satisfaction demandee. La seule restriction a ce droit d'hostilitd servait a marquer encore plus la distinction entre la capacite politique du roi et sa capacite' personnelle ; elle consistait dans la defense de ne toucher ni a la personne du roi, ni a celle de la reine et de leurs enfants. Mais cette garantie, dont le caractere de Jean avait suggere 1'idde, fut apres lui jugee inu- tile ou dangereuse, et elle ne fut pas inseree dans la grande charte de son fils. L'etablissement du pouvoir judiciaire remonte f RAPPORT. tres-haut et subit avec le temps de notables .mo- difications. C'est la encore qu'on retrouve la fic- tion politique inherente a la royaute. La maxime Tout e justice emane du roi fait partie ou est une suite de cette fiction ; car en realite le roi est inhabile a rendre la justice lui-meme. II existait, bien avant qu'il y eut des rois, des cours de justice chez les anciens Germains, d'ou sont descendus les Anglo-Saxons ; ces cours se composerent dans chaque district d'un chef assiste de tous les hommes libres. Les offenses capitales etaient jugees par les assemblers, de la nation, et ces tribunaux pronon^aient en dernier ressort. Apres Tetablissement de la royaute, le monarque devint president de 1'assernblee de la nation ; mais lorsque le peuple fut disperse sur un grand terri- toire, et que les hommes libres ne purent plus etre convoques en entier, les affaires furent portees devant un conseil preside par le roi. Une hierar- chic de tribunaux fut etablie, et on emprunta aux Romains 1'appel a la cour du roi, des decisions des jurisdictions inferieures. Le conseil que presidait le monarque formait la cour supreme de justice, il ratifiait les transactions civiles des citoyens, mais il n'elait permis de s'adres- ser a lui qu'autant que la justice avait ele refusee dans les tribunaux du comte' auquel on appartenait. Le roi d'abord dirigeait lui-meme les debats, ou il envoyait son sceau a quelque autre tribunal et lui deleguait le droit d'entendre et de decider Taffaire. RAPPORT. Ixxxiii Apres la conquete, les rois d'Angleterre per- dirent peu h peu 1'usage de sieger dans leurs cours de justice ; Henri II. et Henri III. s'y conformerent bien encore ; on rapporte meme qu'Edouard IV. siegea trois jours consecutifs dans le King's Bench, pour s'assurer si les lois etaient mises a execution ; on ne dit pas s'il participa au jugement ; mais au commencement du dix-septieme siecle, lorsque Jacques I er voulut sieger en personne, les juges lui dirent qu'il n'avait pas le droit d'emettre une opinion. Si done la maxime que tout justice emane du roi est maintenant recue, c'est, on le repete, une pure fiction, car cet autre principe est devenu in- contestable, que le roi peut bien assister a une cour de justice, mais qu'il ne peut personnellement de- cider aucune question ; il n'est habile a le faire que par 1'intermediaire des juges qu'il a investis de son autorite et qui tiennent leurs pouvoirs de lui. C'est encore une fiction que le roi n'est justi- ciable d'aucun tribunal ; car dans la pratique on peut plaider centre lui sur quelque question de propriete que ce soit ; a la ve'rite, on dira que la justice qu'on obtient ainsi est une pure grace, mais comme elle est due, il n'y a aucun dommage pour le plaideur. II y avait done des les premiers temps une idee vague de 1'existence d'un pouvoir legal et constitu- tionnel superieur au roi : sous le point de vue ju- diciaire, c'etait la justice elle-meme ; sous le point f 2 RAPPORT. de vue politique, c'etait la responsabilite des mini- stres : ces deux garanties comple'taient la theorie du gouvernement anglais. Le droit de poursuivre les crimes et les delits appartenait a la couronne et tout a la fois aux par- ticuliers : a la couronne, parce que c'est le roi d'An- gleterre qui est cense' injurie dans la personne de ses sujets ; aux citoyens, parce que la demande en reparation d'une offense est un droit naturel dont nul ne peut etre prive*. Mais il y avait cette difference, que si la personne raise en jugement sur les poursuites de 1'offense etait acquittee, elle ne pouvait plus tre poursuivie de nouveau sur le mme fait, et c'est le cas auquel s'appliquait la maxime non Ms in idem, tandis qu'un acquirement sur une accusation dirigee par la couronne n'affranchissait pas le prevenu d'etre poursuivi de nouveau par 1'offense et d'etre juge une seconde fois. II y avait encore cette difference, que dans le cas d'une condamnation apres poursuite intentee au nom de la couronne, le roi pouvait faire grace comme personne injuriee ; il ne le pouvait pas lorsque la declaration de la culpabilite avait eu lieu sur la poursuite de 1'offense : celui-ci dans ce cas etait autorisd a accorder un repit, et meme un pardon pour la felonie dont il etait 1'objet ; a son tour, il ne le pouvait pas, si 1'accusation avait ete ententee par la couronne. Les poursuites dirige'es par les particuliers pour RAPPORT. 1XXXV offenses etaient nominees appels ; ce droit d'appel avait succede au droit de vengeance que les an- ciennes coutumes germaines accordaient aux pa- rents et aux amis de la personne offensee, et duquel etaient resultees les compositions pecuniaires. M. Allen fait connaitre dans les plus grands details les regies auxquelles 1'exercice de ce droit etait assujetti. Mais insensiblement de meilleures idees prevalurent, la jurisprudence criminelle suivit les progres de la civilisation ; les compositions pecu- niaires tombrent en desuetude pour les crimes graves, et la condamnation du coupable devint la seule reparation qui satisfit la societe. Depuis Alfred jusqu'au regne de Canut, on trouve un accroisse- ment graduel dans le nombre des offenses pour lesquelles la compensation pecuniaire cessait d'etre admissible, La fiction que le roi representait Tetat une fois admise, les offenses qui troublaient la paix pu- blique furent considerees comme lui etant per- sonnelles, et les poursuites dans 1'mteret de tous furent dirigees en son nom. L'ancienne procedure par appel, c'est-a-dire sur des accusations parti- culieres, ne subsista pas moins et devint le sujet d'une foule de statuts. Mais ces appels eux-memes finirent avec le temps par etre convertis en action civile ou abroges, et sous Edouard III. ce qui res- tait de cette ancienne procedure fut aboli par un acte du parlement. La poursuite fut done enti&re- ment devolue a la couronne. Le droit de grace lui 1XXXV1 RAPPORT. appartint exclusivement aussi, d'apres le meme droit qu'avait tout individu de revoquer Vappel par lui porte pour une offense personnelle ; le roi re- presentant, comme nous Pavons dit, 1'universalite des citoyens, et etant cense aux yeux de la loi la personne injuriee, il put, dans chaque crime qui afFecta la societe tout entiere, annuler par sa grace 1'accusation portee en son nom et remettre la peine prononcee par le tribunal. Ainsi, la poursuite et la grace font maintenant 1'attribut exclusif de la couronne. Mais les Anglais se montrerent excessivement jaloux dans 1'abandon qu'ils firent a la couronne de ce droit de grace ; il se passa bien du temps avant que cette concession fut complete ; differentes lois s sous Edouard III. et Richard II. limiterent, au cas de felonie, et declarrent sans valeur les graces accorde'es pour homicide hors du parlement, a moms que I'homicide n'eut ete commis pour sa propre defense ou par accident. Ce fut une autre fiction que celle dont nous avons deja parle, qui fit considerer le roi comme le seigneur universel et le proprietaire de toutes les terres de son royaume. Car en remontant tres-haut, on ne voit pas que les Saxons, qui les premiers occuperent PAngle- terre, eussent concede a leur general le territoire conquis. Les Normands, lors de la conquete, se gard^rent bien de faire une semblable concession ; loin de la, lorsque deux sicles plus tard le comte RAPPORT. de Varennes fut somme par les commissaires d'Edouard I er de produire ses titres de propriete sur les terres dont il avait herite de ses ancetres, il tira son epee et la presenta comme le seul titre qu'avaient eu ses peres, disant que Guillaume n'avait pas conquis pour lui seul. M. Allen explique avec une rare sagacite com- ment les proprietes se distribuerent en Europe a ces epoques reculees. Chez les anciens Germains, le territoire possede par la tribu etait considere comme propriete de la communaute ; des portions de terres etaient assig- nees aux families et aux individus pour etre reprises apres un certain temps, et distributes a d'autres families ; ces distributions etaient d'abord annuelles, elles 1' etaient du moins au temps de Cesar ; il est probable qu'a mesure que Tagriculture fit des pro- gres, les terres furent possedees plus long-temps, peut-etre pendant la vie de celui qui les avait re- cues. Au temps de Tacite les partages avaient encore lieu, mais on ne sait pas si les concessions etaient encore annales ; seulement on doit supposer qu'un certain droit patrimonial commen^a a se former sur le terrain ou la famille avait construit son habitation. Les villages germains consistaient en maisons separees les unes des autres. Selon toute apparence, ces maisons et leurs enclos con- stituerent la premiere propriete permanente de ces peuples; telle fut aussi 1'origine de la propriete fonciere chez les Anglo-Saxons. Ixxxviii RAPPORT. Lors de Pinvasion de Pempire remain, si beau- coup de vaincus furent reduits en esclavage et si quelques propriety's furent confisquees, en general les vainqueurs partagrent les terres et meme les meubles, les esclaves et les bestiaux avec les an- ciens proprietaires. Ainsi agirent les Bourguignons dans la Gaule, les Visigoths en Espagne et les Os- trogoths en Italic ; les Lombards seuls se bornerent a exiger une part des produits ; et quant aux Francs, quoiqu'on ne sache rien de positif sur la maniere dont ils distribuerent les terres apres la conquete de la Gaule, cependant il est hors de doute que les habitants des provinces romaines ne furent pas entitlement depouilles. Les terres, distributes aux vainqueurs selon leur rang, etaient transmissibles, et s'appelaient allo- diales. Celles qu'on ne distribuait pas, et qui res- taient a la communaute, s'appelaient terres du fisc ou domaine public. Le gouvernement en disposait ; beaucoup furent donnees a Peglise, ou envahies par elle ; d'autres etaient de temps en temps con- verties en terres allodiales, ou appliquees a Pen- tretien du gouvernement et de la cour ; d'autres enfin etaient donnees a charge de rente ou de ser- vices, et prirent le nom de lene'ficiaires ; ces pos- sessions etaient d'abord a vie, mais avec le temps elles devinrent hereditaires ; le roi en etait le di- spensateur, ^t on etait cense les tenir de lui. A Pexemple de la couroime, les grands proprie- taires allodiaux concederent a leurs vassaux de , RAPPORT. semblables benefices, qui avec le temps aussi se transformerent en fiefs hereditaires, a charge de certaines redevances. II arriva meme que les proprietaries allodiaux trouvant, dans ces temps d'anarchie et de guerres privees, de 1'avantage a se placer sous la protection d'un seigneur, faisaient un abandon fictif de leurs biens au roi ou a quelque grand, capable de les proteger, et les recevaient d'eux aussitot a titre de fiefs hereditaires ; ils se soumettaient a quelque rente ou service, en echange duquel le seigneur accordait sa protection. Selon toute apparence, les proprietes furent dis- tribuees de la meme maniere en Angleterre sous les Anglo-Saxons ; les unes furent concedees pour devenir patrimoniales, les autres derneurerent com- munes et furent laissees a la disposition de 1'etat ; celles-ci etaient possedees par la communaute, ou concedees a des particuliers pour un certain temps, mais tant qu'elles etaient communes, elles ne pou- vaient etre alienees a perpetuite, et elles revenaient a la communaute lorsque le temps de la concession etait expire. Les possesseurs de terres communes etaient tenus a une foule de charges dont les concessionnaires de terres patrimoniales etaient affranchis ; ceux-ci n'etaient tenus qu'aux contributions publiques, dont nul n'etait exempt. C'etaient principalement des terres concedees a titre de patrimoniales que possedait la haute no- xc RAPPORT. blesse. Les rois anglo-saxons en possedaient de semblables qui etaient pour eux des proprietes privees ; elles ne retournaient pas a la couronne, et ils pouvaient en disposer comme Faurait fait un sujet. Les propriety's communes furent d'abord con- verties en palrimoniales, dans Fassemblee publique de la tribu ; mais quand la fiction qui faisait con- siderer le roi comme representant de I'etat eut ete admise, cette conversion se fit par un acte du gou- vernement. Insensiblement et par une suite de la meme fiction, les terres communes furent censees la propriete du roi, et prirent le nom de terres roy- ales ou de la couronne. Plus tard encore, la distinction entre les terres possedees par le roi comme patrimoniales ou pri- vees, et les proprietes publiques, c'est-a-dire d'ori- gine communale, s'effa^a entierement. Ces deux sortes de proprietes furent confondues, et re^urent la meme denomination de terres de la couronne : possedees par le roi, il les transmettait egalement a ses successeurs ; quoiqu'il rut prive du droit de les donner par testament, il lui arriva souvent d'en disposer par actes entre-vifs, et meme par lettres patentes, sans le consentement de son grand con- seil ; mais les abus devinrent si grands, que le par- lement fut souvent oblige d'intervenir, et qu'en definitive, un statut de la reine Anne retablit les anciens principes a cet egard : les terres de la cou- ronne furent restituees a Tetat ; le roi conserva RAPPORT. XC1 seulement le droit d'acquerir des proprietes fon- cieres, et d'en disposer par testament comme une personne privee. Telle est, messieurs, 1'analyse a grands traits du savant ouvrage dont j'ai rhonneur de vous rendre compte ; je n'ai pas besoin, pour la completer, d'a- jouter que le roi est en Angleterre, aux yeux de la loi, la source de tous les honneurs et de toutes les d ignites ; cette prerogative, commune a tous les gouvernements qui ont un chef hereditaire, est Tun des caracteres les plus distinctifs et les moms contestes de la monarchic. Get ouvrage, dont le prix est rehausse par le jugement qu'en a porte le celebre ex-chancelier d' Angleterre, M. Brougham, rectifie beaucoup d'er- reurs que les publicistes avaient accreditees ; la plus saine critique dirige 1'auteur dans ses re- cherches, c'est par elle qu'il eclaire constamment les temps obscurs auxquels remontent la plupart de nos institutions politiques. Si Ton peut regretter quelque chose, c'est qu'il n'ait pas donne plus de developpement et d'extension a un sujet si digne d'en recevoir. L'ouvrage est tellement concis, resserre, que j'ai du souvent emprunter les pro- pres paroles de 1'auteur pour vous le faire con- naitre, et qu'il a fallu a son jeune traducteur une grande sagacite et une etude aussi appro fondie des institutions anglaises, pour le faire passer dans notre langue avec taut de succes. Du reste, ce n'est pas en vue de tel ou tel sys- XC11 RAPPORT. teme qu'il a ete ecrit ; on ne saurait dire, apres 1'avoir lu, a quelle nuance d'opinion M. Allen ap- partient ; c'est 1'interet de la verite qui parait 1'avoir constamment guide ; aussi ce livre est-il destine a jeter desormais un grand jour sur la plupart des questions qui se rapportent a la constitution des tats monarchiques et a la liberte des peuples. La royaute constitutionnelle apparait de toutes parts dans ce livre, corame un symbole d'ordre et de stabilite ; elle suit les mouvements de la civili- sation, elle prepare, elle favorise ses progres ; elle s'ameliore aussi elle-m^me, a mesure que les lu- mieres se repandent et que les nations s'instruisent. Comme institution, elle seule, entre toutes les au- tres, est durable ; elle peut se modifier, mais elle ne perit pas, ou si de folles entreprises la renver- sent un moment, elle reparait bientot avec plus d'eclat, apres s'etre epuree de ce qui genait son action protectrice. Elle s'accommode ainsi aux mceurs, elle se plie aux exigences des temps et au caractere des peuples. Les libertes publiques n'ont pas de plus solide garantie, car elle s'appuie elle-meme sur ces libertes, et elle ne s'affermit qu'autant qu'elle les protege. Cette lutte mme qui a existe si long-temps, et qui dure encore entre le principe monarchique et les partisans d'une liberte indefinie, t^raoigne de la bonte du principe ; car dans le combat, ce n'est pas lui qui succombe ; en pactisant avec les idees dont le temps a amene le triomphe, il cede sans RAPPORT. XC111 s'affaiblir, il se modifie sans se detruire, et la liberte satisfaite, en le protegeant a son tour, lui donne, au contraire, une plus grande force et une nouvelle vie. Enfin la royaute constitutionnelle est essentielle- ment perfectible, don qui n'est accorde au mme degre a aucune autre forme de gouvernement. Apres avoir lu le livre de M. Allen, on se sent done plus dispose' a aimer cette royaute, a s'y atta- cher et a la defendre. Avec elle, on n'a a envier aucun des a vantages de la rejpublique, car le gou- vernement constitutionnel les reunit tous sans avoir a redouter ses orages, sans craindre 1'instabilite qui s'attache aux resolutions toujours incertaines de la multitude. Loin de concentrer dans de certaines classes, a 1'instar des monarchies absolues et des etats aris- tocratiques, le privilege du pouvoir et 1'eclat des dignites, il assigne a chaque citoyen la valeur qui lui est propre, it enrichit la patrie des talents et des vertus de ses enfants, et en meme temps qu'il les fait servir a 1'avantage de tous, il en accroit ce patrimoine de gloire, la plus belle portion de la fortune publique. II tend ainsi a developper sans cesse les plus nobles facultes de 1'homme, mais en les dirigeant vers un bien commun et en n'assignant a toutes les ambitions d'autre but, comme d'autres limites, que les interets de la cite. La necessite qu'on sent le mieux encore, c'est, a Texemple des Anglais, d'environner Tautorite' royale d'une grande majeste, d'en faire un objet conti- XC1V RAPPORT. nuel de veneration, je dirais presque de culte de la part des peuples ; de lui rapporter ainsi tout le bien qui s'opere, et de la considerer comme une sorte de providence qui, dans aucun cas, ne saurait man- quer aux besoms, ni etre insensible aux voeux de la nation. Le principe de la responsabilite ministerielle, qui est la base la plus solide du gouvernement consti- tutionnel, sert merveilleusement a cet efFet, en ce que, placant le monarque tout-a-fait en dehors du mouvement quotidien des affaires, il ne permet a aucun blame, ni a aucun mecontentement d'arriver jusqu'a lui : principe conservateur, fecond et vivi- fiant, qui est la sauvegarde des rois et le gage le plus assure de la stabilite des institutions. Nous devrons enfin a M. Allen d'avoir mieux connu, mieux apprecie une forme de gouverne- ment qui a jusqu'ici pour elle Fepreuve d'une irre- cusable experience. Nous lui devrons d'etre plus pe'netre's de sa superiorite sur toutes les autres, et de mieux sentir combien le monarque en qui se personnifie 1'honneur et la gloire de la patrie, a besoin de compter sur notre affection, sur nos re- spects et notre appui, pour accomplir dans 1'interet de tous la noble tache qui lui est assignee. Cet ouvrage nous parait done meriter au plus haut degre le suffrage de 1'Academie des sciences morales et politiques, comme il me'ritera, nous n'en doutons pas, celui de tous les amis sinceres de leur pays et de la liberte des peuples. INQUIEY INTO THE RISE AND GROWTH OP THE ROYAL PREROGATIVE. INQUIRY THE RISE AND GROWTH THE ROYAL PREROGATIVE TRANSCENDENT ATTRIBUTES OF THE KING. unlearned persons desirous of understanding the constitution of England, the transcendent attri- butes ascribed to the king, in his high political ca- pacity, must prove a grievous stumbling-block at the very commencement of their studies. They may have heard that the law of England is ' founded in reason and wisdom. The first lesson they are taught will inform them, that the law of England attributes to the King absolute perfection 1 , absolute immortality 2 , and legal ubiquity 3 . They will be told, that the King of England is not only incapable of doing wrong, but of thinking wrong, that he cannot mean to do an improper thing, that in him there is no folly or weakness 4 . They will 1 Blackstone, i. 246. 2 Ib. i. 249. 3 Ib. i. 270. 4 Ib. i. 246. B 1: ON THE ROYAL PREROGATIVE. be informed that he never dies 1 , that he is invisible as well as immortal 2 , and that in the eye of the law he is present at one and the same instant in every court of justice within his dominions 3 . They may have been told, that the royal prero- gative in England is limited : but, when they con- sult the sages of the law, they will be assured, that the legal authority of the King of England is abso- lute and irresistible, that he is the minister and substitute of the Deity ; that all are under him, while he is under none but God 4 . They may have read of oriental despotism, and pitied the lot of nations that have no property in the soil they tread, and hold at the will of a master the lands they are permitted to cultivate. What then must be their surprise, when, turning to their domestic oracles, they are informed, that in the contemplation of law, the whole soil of England belongs to the King, and, if a learned judge is to be trusted, that for certain purposes he may enter thereon at his pleasure 5 ; that he is the universal lord and original proprietor of all the lands in his kingdom 6 ; that in the law of England there is no proper alodium, or land not held mediately or im- mediately of the King ; and that no subject can have more than the usufruct or beneficiary enjoy- ment of the land he occupies 7 ! If they have had the benefit of a liberal educa- tion, they may have been taught, that to obtain se- 1 Blackstone, i. 249. * Howell's State Trials, ii. 598. 3 Blackstone,!. 270; iii. 23. 4 Ib. i. 251. b Ib. ii. 415. 6 Tout fuit in luy et vient de luy al commencement. Y. B. 24 Edw. III. f. 65. b. 7 Blackstone, ii. 51, 59, 60; iv. 418. TRANSCENDENT ATTRIBUTES OF THE KING. O curity for persons and property, was the great end for which men submitted to the restraints of civil government ; and they may have heard of the in- dispensable necessity of an independent magistracy for the due administration of justice : but, when they direct their inquiries to the laws and constitu- tion of England, they will find it an established maxim in that country, that all jurisdiction ema- nates from the crown. They will be told, that the King is not only the chief but the sole magistrate of the nation, and that all others act by his com- mission and in subordination to him 1 . j Individuals, they know, are liable in every coun- try to suffer from violence and oppression ; but in England they will be assured, that though the ac- tual sufferer be a private individual, the person in- jured in the eye of the law is the King, because he is the general conservator of the public peace ; and from these premises, they will be told, arises the royal prerogative of pardoning offences, because it is reasonable that he who is injured should have the power to forgive 2 . In addition to these transcendent attributes pos- sessed by the King of England in his political ca- pacity, they will find that he has the power of the sword ; that the armed force of the nation is at his - sole disposal ; that the government and command of tne militia, that all the forces by sea and land, that all castles and fortresses belong to him ; and that an impassable barrier environs his dominions, of which he is the sole and undisputed lord 3 . They will also be told, that he is the fountain of honour 1 Blackstone, i. 250, 266. * Ib. i. 268, 269. 3 Ib. i. 262-264. B 2 ON THE ROYAL PREROGATIVE. and dignity ; that he represents the majesty of the whole community 1 ; that he is the delegate and re- presentative of the kingdom with respect to foreign powers ; that his acts are the acts of the nation ; that he can make peace or war at his pleasure, and bind his subjects by the engagements he contracts l_ and the treaties he ratifies 2 . As some of these transcendent attributes are in- compatible with our notions of a finite, corporeal, and mortal being, it may possibly occur to an in- quisitive and reflecting student, that they belong to an ideal personage, who has no existence in nature, and is a mere fiction of the imagination. On farther inquiry he will find this conjecture not entirely destitute of foundation. He will be corporation *^ ^at the king is, and ever has been, a corpo- 8ole ; ration sole 3 ; that a corporation is an artificial per- son that never dies 4 ; that is invisible, and exists only in intendment and consideration of law ; that r has no soul, and cannot therefore be summoned before an ecclesiastical court or subjected to spirit- L ual censure ; that can neither beat or be beaten in its body politic, nor commit treason or felony in its corporate capacity ; that can suffer no corporal punishment or corruption of blood, and can neither be imprisoned or outlawed, its existence being merely ideal 5 . So far he will be satisfied that the King of England, as described in law books, is in some sense an ideal personage. It may be said, indeed, that the King is not more an ideal personage than a parson or other 1 Blackstone, i. 271 ; iv. 2. Q Ib. i. 252, 257. 3 Ib. i. 469, 472. * Ib. i. 467, 468. 5 Ib. i. 477. TRANSCENDENT ATTRIBUTES OF THE KING. 5 corporation sole ; that it is merely the office, which is converted by a fiction of law into a person ; and that the object of this transmutation is to have the same identical rights kept on foot, and continued for ever by a succession of individuals, possessing the same privileges, and charged with the same duties. But, on reflection, it will appear that there but differ- is a wide difference between the King and other othercor- corporations sole. A parson, considered as a cor- poration, is an artificial and ideal personage as much as the King. But the rights a parson possesses, the qualities attributed to him, and the duties he has to perform in virtue of his office, are such as, in his personal capacity, he may sustain, exercise, and enjoy. The law, that converts him into a cor- poration, requires from him no impossibilities, and ascribes to him no attributes incompatible with his character as a limited and created being. He is bound to preach and pray, but he is not supposed, in the contemplation of law, to preach and pray at one and the same instant in every corner of his parish. He must be learned and orthodox, but he is not held to be perfect in learning or exempt from error in opinion. He must be moral in his conduct, and ought to be innocent in his thoughts ; but he is not esteemed incapable of doing or of thinking wrong. He has the same rights, and is reputed in law to be the same person with his predecessor, who lived centuries ago ; quatenus parson he never dies any more than the King. But it is not thought necessary for the continuance of his office, and the preservation of its rights and immunities, that one incumbent should follow another without interval O ON THE ROYAL PREROGATIVE. or interruption. When he dies, time is given for the appointment of a successor, and though the office is vested in no one during that period, the corporation is not supposed to be thereby extin- guished. But rule and government, as established in England, cannot exist for a moment without some one filling the office of King 1 . There is therefore something higher, more my- sterious, and more remote from reality, in the con- ception which the law of England forms of the King, than enters into the notion of a corporation sole. ^ e ^ ea ^ King of the law represents the power and iish mon- majesty of the whole community. His fiat makes laws 2 . His sentence condemns. His judgments give property, and take it away. He is the state 3 . It is true, that in the exercise of these powers, the real King, to whom they are necessarily entrusted, is advised, directed, and controlled by others. But in the contemplation of law the sovereignty and undivided power of the state are in the King. It is not my intention to dispute the truth or reality of this view of the constitution of England. However hazardous it may appear to make the rule and government of a great nation depend on the 1 Attorney- General's Speech in Hardy's Trial. Howell's State Trials, xxiv. 246. 2 In an argument before the Court of King's Bench, in 23 Edw. III. it was said, " Que le roy fist les leis par assent dez peres et de la commune, et non pas lez peres et la commune." Y. B. 23 Edw. III. f. 3. b. 3 " The person of the king, in name, is the state. He is to all intents and purposes the sole representative of the state." Solicitor- General's Speech in Hardy's Trial. Howell's State Trials, xxiv. 1183. TRANSCENDENT ATTRIBUTES OF THE KING. 7 life and health of a single individual, subject to all the casualties and infirmities of human nature ; however extravagant it may seem to attribute to one member of the community, as chief and repre- sentative of the commonwealth, the entire power and authority of the whole ; there cannot be a doubt that such is the constitution of England, as laid down most strongly and emphatically in the works of lawyers, and in the homilies of churchmen *. Still less am I about to question or discuss the wisdom or expediency of this artificial system of policy in the ordinary acts and operations of go- vernment. Where it seems most liable to objec- tion, it is qualified and corrected by other maxims and principles of constitutional law, that render it innoxious, or mitigate, at least, the dangerous con- sequences that seem at first sight necessarily to flow from it. The King, it is true, can do no wrong, Corrections and is not amenable to any earthly tribunal ; but, on the other hand, he can perform no one political act without an adviser, responsible for the same. He cannot be sued in a court of law ; but if any one has a demand against him in point of property, a petition or plea of right is due to the claimant, through which justice will be obtained with as much certainty and despatch as in actions between man and man 2 . He alone has the power of raising and regulating fleets and armies 3 ; but he cannot raise or keep a standing army within his kingdom in time of peace without consent of parliament 4 . By these and other checks the exorbitant prero- Blackstone, i. 251. 2 Ib. i. 243. iii, 256. 3 Ib. i. 262. 4 1 Gul. et Mar. Sess. ii. c. 2. 8 ON THE ROYAL PREROGATIVE. gative of the crown is kept in England within bounds. It is fortunate for us such restraints exist, and that on the whole they have been found effec- tual ; for the absolute sovereignty and transcend- ent dominion of the King, as laid down by lawyers without restriction or limitation, leave the subject without protection against the crown, and convert government, which was intended for the general good, into a private patrimony for the benefit of the King and of his heirs. But though these doc- trines are in practice harmless, the wonder is not the less how they were first invented, and through what means they found admission into the law 7 of England, so justly celebrated for its regard to the property and liberties of the people. The subject, though curious, seems to me to have attracted less attention from those who have traced the progress of our constitution, than its importance as an histo- rical question deserves. MONARCHICAL THEORY OF MODERN EUROPE. It is in the first place to be observed that the fiction of an ideal King, to whom all the powers of sovereignty are confided, is not peculiar to Eng- land. It is to be found in all the monarchies of v Europe, established on the subversion of the Roman empire. However different in other respects, all these governments agree in recognizing, as the fun- damental principle of their constitution, that the sovereign power of the commonwealth resides in the King. It is in the next place a coincidence MONARCHICAL THEORY OF MODER-rlWJl^I^. < ^ g I T Y not less remarkable, that, after layin^^J^^^^^\V^ principle in terms the most general andui they alt agree in admitting certain constitutional checks and limitations on the exercise of the su- preme and absolute authority with which he is vested. What the law appears to give, long-esta- blished usage is supposed, in the most arbitrary governments, to moderate and restrain. In theory the King of France, before the revolution, was held in law to be an absolute, but in practice to be a limited, monarch. His power was said to be su- preme, but it was to be administered according to fundamental laws. He was the source of all au- thority civil and political, but he was to govern by the fixed courts and magistracies of his kingdom. His will was law, and, as such, was to be obeyed ; but in issuing his commands, he was bound to re- spect the honour and even the prejudices of his subjects. He was the judge of his people, but he could not exercise any judicial function in person. He was the sole proprietor of land in his kingdom, but he could deprive no man of his inheritance, unless by a judgment of law, over which he had no control. If he transgressed these rules, he ceased to be a King, and degenerated into a despot 1 . This opposition between monarchy in theory and Antiquity in practice is as ancient as the existence of regal theory, government in modern Europe. We find it in the earliest records of the Barbarians after their esta- blishment in the empire, and the collisions to which it has given rise between kings and their subjects form none of the least interesting portions of the 1 Esprit des Lois, ii. 1,4; iii. 8, 10 ; vi. 5 ; viii. 6 ; xxvi. 15. 10 ON THE ROYAL PREROGATIVE. history of the middle ages. The farther back we carry our researches the stronger is the evidence we discover, that, however the monarchical theory , may have been proclaimed in law books and mag- nified by churchmen, it was never reduced, strictly and completely, to practice ; nor was it ever recog- nized or quietly submitted to by the people as the government handed down to them by their an- cestors. We meet with continual struggles between Kings and their subjects, in which both parties appeal to their rights in support of their pretensions. If the King claims the prerogative vested in him by law, the people oppose to him ancient usages and privileges that restrain its exercise. On some occasions the King has proved victorious. At other times his subjects have had the advantage. Every nation in its turn has been threatened with anarchy or subjected to despotism. Like the good and evil principles of the Persian magi, liberty and pre- rogative have been in perpetual conflict ; and though in this country, and latterly in France, the better principle has gained the ascendency, arbi- trary power has more frequently prevailed, and by force or artifice has extended its empire over the fairest portions of the continent. But in no coun- try, where the forms of royalty have been retained, has the feud been ever completely extinguished. In the most limited monarchy the King is repre- sented in law books as in theory an absolute sove- reign. In countries, where the constitutional checks to his will are the least powerful, there are obsta- cles, more or less effective, to his caprices. But where a government presents such contradictions MONARCHICAL THEORY OF MODERN EUROPE. 11 between its theory and practice, it cannot have been founded originally on any uniform or systematic plan. The theory, which ascribes absolute power to the monarch, cannot have been derived from the same principles that oppose constitutional checks to his prerogative. Such a government is mani- ^ festly the result of two separate, independent forces, acting in different directions, and producing, as they alternately preponderate, an inclination, some- ^ times to liberty, at other times to despotism. Nor is it difficult to discover from what sources these impelling forces had their origin. It is plain the monarchical theory cannot have Not derived been derived from the ancient Germans. In the ancient most considerable of the Germanic tribes the form of government was republican. Some of them had a chief, whom the Romans designated with the ap- pellation of King, but his authority was limited, and in the most distinguished of their tribes the name as well as the office of King was unknown (A). The supreme authority of the nation resided ^ in the freemen of whom it was composed. From them every determination proceeded that affected the general interests of the community, or decided the life or death of any member of the common- wealth. The territory of the state was divided into districts, and in every district there was a chief, who presided in its assemblies, and, with the assist- ance of the other freemen, regulated its internal concerns, and in matters of inferior importance ad- ministered justice to its inhabitants. These chiefs met in council by themselves, and discussed, in private, affairs relating to the general welfare ; but 12 ON THE ROYAL PREROGATIVE. their resolutions had no authority till they had been confirmed and ratified by the general assembly of the tribe (B). When a national war was under- taken, one of the chiefs was selected to command the army ; but on the return of peace his rank and authority as general ceased, and he reverted to his L former station. This form of government subsisted among the Saxons of the continent so late as the close of the seventh century, and probably con- tinued in existence till their final conquest by Charlemagne (C). Long before that period, how- ever, the tribes, that quitted their native forests and established themselves in the empire, had converted the temporary general of their army into a per- manent magistrate, with the title of King (D). But that the person decorated with this appellation was invested with the attributes ascribed to royalty in after times is utterly incredible. Freemen, with arms in their hands, accustomed to participate in the exercise of the sovereign power, were not likely, without cause, to divest themselves of that high prerogative, and transfer it totally and inalienably to their general. Chiefs, who had been recently his equals, might, in consideration of his military talents, and from regard to their common interest, acquiesce in his permanent superiority as com- mander of their united forces ; but it cannot be sup- posed that they would gratuitously and universally submit to him as their master. There are no written accounts, it is true, of the conditions stipu- lated by the German warriors with their general when they converted him into a King. But there is abundance of facts recorded by historians, which MONARCHICAL THEORY OF MODERN EUROPE. 13 show beyond a doubt, that, though he might occa- sionally abuse his power by acts of violence and in- justice, the authority he possessed by law was far from being unlimited (E). Widely different was the condition of the Pro- but from vincials. Whatever were the artifices by which Augustus had disguised his usurpation of the sove- reign power, they had been long since laid aside. Whatever had been the moderation he affected in the exercise of that authority, it had been long since discarded by his successors. The govern- ment of the Roman world had been for ages a pure, unmitigated despotism, in its worst and most odious colours. The prince possessed in theory, and exer- * cised in practice, every power of the state. He was invested with the most ample and most abso- lute authority ever enjoyed by man. The legis- lative, judicial, and executive functions of govern- ment, were united in his person, and used accord- ing to his caprice. He was the sole magistrate of the commonwealth, the others being merely his delegates, and answerable only to him. The lives, liberties, and properties of his subjects were at his mercy. His word was law, his sentence without appeal, and the course of judiciary proceeding de- pendent on his will. He could impose what taxes he pleased, and levy them at his discretion. He had the right of peace and war, the sole and exclu- sive command of the army, the power to levy troops, to appoint and displace their officers, to regulate their discipline, and to reward or punish them without control. There was no authority in the state, civil or political, that was not derived 14 ON THE ROYAL PREROGATIVE. from him, and was not revocable at his pleasure. The 'only barrier against his vices was the power of the military, whose support or defection raised him to the purple or precipitated him from the throne. The Christian clergy had acquired a sec- tarian influence over their flocks, but they had not yet ventured to interfere with the civil power, or attempted to regulate and disturb the state. If they ever exercised control over the imperial de- spot, it was by their authority over his conscience, and by appeals to his piety or superstition. It was an ascendency entirely spiritual, unconnected with temporal dominion. in what From this contrast of imperial despotism with manner . r f introduced the free institutions and independent character of Barbarian! the Germanic tribes, it is impossible to mistake the origin of that monarchical theory, which soon be- gan to rear its head in every country occupied by the Barbarians. Repugnant to the genius, and at variance with the usages and ideas of the Germans, it was a phantom borrowed from imperial Rome, and insinuated by its servile ministers into the legal forms and language of their conquerors. It was the doctrine of civilians that the Roman people had transferred to their emperor the whole power and authority of the state, in consequence of which he became the sole organ and representative of the commonwealth. Whatever he pleased to ordain, was law. Whatever he commanded, was to be obeyed. These maxims had been theoretically established and practically enforced for ages when the empire became a prey to the Barbarians. The conquerors, accustomed to different notions of go- MONARCHICAL THEORY OF MODERN EUROPE. 15 vernment, were not inclined to part with the liberty and freedom from restraint, which they had enjoyed in their native woods ; but the new situation in which they were placed, their dispersion over a vast territory, amidst nations they had subdued and plundered, made it necessary, for their com- mon safety, to strengthen the arm of government, and entrust to a few what had formerly been the property of the whole. In practice, they gave up as little as possible of their ancient indepen- dence, and when roused by a sense of real or ima- ginary wrong, they were ready at all times to assert with their swords the rights they had inherited from their ancestors. But, in the changes that became necessary in their written laws, in the in- structions to public officers for the administration of their internal government, and in the legal forms required for the secure possession and transmission of property, to which they had formerly been stran- gers, they were compelled to have the aid of pro- vincial churchmen and lawyers, the sole deposi- taries of the religion and learning of the times. These men, trained in the despotic maxims of the imperial law, transfused its doctrines and expres- sions into the judicial forms and historical monu- ments of their rulers ; and thus it happened, that if the principles of imperial despotism did not regu- late the governments, they found their way into the legal instruments and official language of the Barbarians (F). An imaginary King or prince was created, in whom, by a legal fiction, was invested all the power and majesty of imperial Rome (G). The same names were even affected. The Bar- 16 ON THE ROYAL PREROGATIVE. barian, who had recently exchanged his title of heretoga for that of King (H), was persuaded to style himself Basileus, in imitation of the eastern emperors, or to prefix the appellative Flavius to his name ; his sons and cousins were called Cli- tones or illustrious ; his servants became Palatine officers, and his crown an Imperial diadem. Condition Abject and degraded as the Provincials had be- of the Pro- come in the last ages or the empire, they were superior in knowledge and mental attainments to their conquerors, and speedily acquired an influ- ence in the direction of their affairs. As a body they were placed on an inferior footing, the life of a Barbarian being estimated at twice the value of that of a Roman of the same condition ; but indi- vidually they found admission into the courts and palaces of their new masters, and were elevated to the highest offices of the state, and received among the guests or companions of the King. Churchmen ' for several generations were taken almost exclu- sively from their ranks 1 ; and as the Barbarians, on their conversion, transferred to the Christian clergy the veneration and deference they had enter- tained for their ancient priests, the class from which churchmen were selected could not fail to obtain consideration and respect. Bishops were employed in secular concerns, entrusted with em- bassies, invested with judiciary authority, and placed on a par with the chiefs and magistrates who directed the affairs of government. Though the empire was subverted, everything Roman was 1 Fleury, Hist. Eccles. xiii. 27. Edition of 1721. Montesq. Espr. des Lois, lib. 30. ch. 12. MONARCHICAL THEORY OF MODERN EUROPE. 17 not destroyed. The distinctions of rank and con- dition in the great body of the provincials were maintained. The Roman proprietor was despoiled of part of his lands, but he was secured in the pos- session of the rest. The Roman .law continued in force, as the personal law of the vanquished, in every part of the continent subjected to the domi- nion of the Barbarians. In many of the countries they subdued, it finally predominated over their original customs ; and in all it entered largely into the collections and codes of law which they subse-j quently framed for their own use. The municipal institutions of Rome survived, in all or in most of her provinces, the destruction of her empire, and came at length to be amalgamated and indissolubly united with the inferior magistracies of her con- querors 1 , Is it then to be wondered at that the political maxims and principles of her government insinuated themselves into the states erected on her ruins, and tainted, if not the substance, the forms at least and language of their public law ? When the servile language of the empire was first addressed to their rulers, the rude and illite- theory rate Germans must have disregarded and despised among the the unmeaning flattery of the abject herd they had subdued. They could hear with indifference their Kings invested with the plenitude of despotic au- thority, and proclaimed the representatives and sole depositaries of the national power. They looked, not to parchments and to legal forms, but to their valour and to the recollections of their 1 Savigny's History of the Roman Law in the Middle Ages, i. 274, 295-306, 387-433. 18 ON THE ROYAL PREROGATIVE. ancient freedom, for the preservation of their rights ; and with the carelessness and improvidence of Bar- barians, they tolerated and tacitly acquiesced in the exaltation of their rulers, so long as it was con- fined to words and empty declarations. When roused by long-continued and wide-spreading op- pression, or provoked by taxes and impositions without their consent, they flew to arms, and punished with merciless severity the authors and instigators of these iniquities. But if the oppres- sion was local and occasional, it excited no general sympathy in their minds. They were accustomed to inflict or endure violence and injustice ; and whether these proceeded from governments or indi- viduals, none but the actual sufferers complained or called for redress. We must not, therefore, judge from particular acts of power of the general spirit of their government ; nor allow ourselves to be misled by the judicial forms and expressions it was suffered to employ. The Barbarian, who had justice done to him in the ancient tribunals of his nation, inquired not in whose name it was admi- nistered. If he obtained the lands he wanted, it was indifferent to him in what form they were granted. He received them from the public au- thorities of the state, and cared not whether, in the act of donation, they were described as gifts of the King or of the kingdom. imitations The Kings of the Barbarians were delighted with periai Court the titles and trappings of the empire, and indulged K y ing 8 e of with childish vanity in the imitation of Roman f rms and customs. Edwin, a petty King of the Northumbrians, bad a standard-bearer to precede MONARCHICAL THEORY OF MODERN EUROPE. 19 him in his progresses through the kingdom, and was not content to go from one house to another without a Roman tufa carried in procession before him 1 . Leuvigild, the Visigoth, had a diadem fa- shioned for his use, and assumed with it the style and purple robes of the empire. The fierce Odoa- cer was flattered with the title of Patrician, which, at the request of the Roman senate, he obtained from Constantinople. Even the great Theoderic condescended to accept from the same quarter the rank of Consul and Patrician ; and though his good sense rejected the appellation and emblems of the Imperial dignity, he established in his court at Ra- venna all the titles, offices, and gradations of au- thority, that had dazzled the Provincials while subjects of the empire 2 . Clovis, in imitation of Theoderic, received from the Emperor Anastasius the empty honours of the Consulate ; and after having been decorated with a purple mantle, he had the satisfaction to hear himself saluted Consul and Augustus by his subjects 3 . His sons obtained from Justinian the concession of all the rights of the empire in Gaul ; a transaction from which the Abbe Dubos 4 has inferred that the Kings of France acquired a legal right to the absolute authority they afterwards possessed. It is possible that, in the eyes of the Provincials, the cession of Justinian gave a sort of legal sanction to the right of con- 1 Bed. Hist. Eccl. ii. 16. a Theoderic not only restored the state and household of the Emperors, but preserved entire their provincial government, and filled with Romans almost all the offices in those various depart- ments. Savigny, i. 320. 3 Gregor. Tur. ii. 38. 4 Hist. Crit. v. 10; vi. 1, 16. C 2 20 ON THE ROYAL PREROGATIVE. quest. But the grant was nominal. Gaul had been long separated from the empire. At all events Justinian had no authority and could confer no dominion over the Franks. When Charlemagne revived the western empire, he had too much sense to ape the manners of the Imperial Court in his intercourse with his Germanic subjects. In his dress he retained the ancient sim- plicity of his countrymen 1 ; and in his public acts, with the title of Emperor, he continued to style himself King of the Franks. His feeble successors were not satisfied with this moderation. His grand- son Charles wore the ornaments and introduced the ceremonial of the Byzantine Court ; and disdaining the appellation of King, he insisted on being called Augustus, and Emperor over all the Kings of the West 2 . In imitation of this folly, under pretence of maintaining their independence, the petty kings and princes in England and Spain assumed and made ridiculous the Imperial titles they affected 3 . but their But, amidst the honours and decorations with which royalty was clothed by its flatterers and ad- mirers, the rough garment of the Barbarian was seen to peep from under the borrowed purple of the empire. The real King, to whom these imposing titles and high-sounding claims were attributed, re- mained, as before, the chief of a warlike and tur- bulent people, regardless and hardly conscious of this fictitious change in his condition. The ideal King of the churchmen and civilians was an abso- 1 Eginhard. tt Th^orie des Lois Politiques de France, viii. Preuves, 283. 8 Ducange, Gloss, voce Imperator. MONARCHICAL THEORY OF MODERN EUROPE. 21 lute prince, in whom were centred the whole power and majesty of the state. The real King, limited in his authority by ancient usage, depended on his personal qualities for the degree of power he pos- sessed ;(^and_when seduced by his imaginary dig- nity to extend the bounds of his prerogative, he had not unfrequently to pay, with his life or deposal, the penalty of his rashness and presumption. After Gradual a time, however, the language of adulation, repeated JJJJiwJ in every act and instrument of government, pro- thorit y- duced its effect. Men, accustomed to hear their prince described as the source and depositary of their laws, began to think there must have been some ground for the assertion. The real power of the King, as general in war and chief magistrate in peace, when seasonably enforced and skilfully im- proved, enabled him to prosecute on many occa- sions with success his encroachments on the ancient usages and privileges of the nation. Order was maintained and justice administered in his name ; and as respect for order and justice gained ground, his subjects, who considered themselves indebted for these blessings to his care, were often induced to acquiesce in pretensions and submit to usurpa- tions, which had no other origin than a theory of government, founded on fiction, borrowed from a foreign law, and fortified by time, because it had been suffered to pass without contradiction by those who, rejecting its authority in practice, were hardly aware of its existence in words, (f After many a struggle between liberty and prerogative, the re- sult has been in England that the real power of the King has been limited and defined by constitutional 22 ON THE ROYAL PREROGATIVE. law and usage, but that the old attributes are still ascribed to him in law books ; that an incongruous mixture of real and imaginary qualities has been formed, which has been called the union of his na- tural with his mystic or politic capacity ; and that many privileges and peculiarities have been assigned to him in his natural person, for reasons derived from his ideal or politic character. In one respect the ideal King of the Barbarians was induced by his churchmen to make a higher pretension than had been ever claimed or asserted by the Roman Emperors. The latter, however ty- rannical in their conduct, professed to derive their power by delegation from the people ; and in proof of that delegation, their lawyers referred to the ce- lebrated Lex Regia, by which the Roman people were supposed to have conferred on their prince Divine ori- the whole power of the commonwealth 1 . But the gin Bttri- butedto ideal King of our ancestors, under the tuition of his clergy, was taught to derive his power from Heaven. Though raised to the station he held by the election of his people, the nomination of his predecessor, or the cabals of his partisans, the in- stant he attained that dignity, he was made to style himself King by the Grace of God 2 . In imitation 1 Quod principi placuit, legis habet vigorem ; utpote cum Lege Regia quae de imperio ejus lata est, populus ei et in eum omne suum imperium et potestatem conferat. Pandect. 1. 1. t. 4. See also Instit. Tit. 2. 6 ; and Codex, 1. 1. t. 17. 7. a Ancient Laws and Institutes : Preamble to Dooms of Ine ; and Codex Diplomaticus, passim. Selden's Works, iii. 128. Mabillon de Re diplom. 1. 2. c. 3. The letter of Pope Gregory to ^Ethelbert, King of the Kentishmen, insinuates to that prince, in no ambiguous terms, that he had been set over his people by the special appointment of Providence. Beda, H. E. i. 32. MONARCHICAL THEORY OF MODERN EUROPE. 23 of the Jewish rnonarchs, he was anointed with oil and consecrated by a priest ; and to impress a greater sanctity on his character, he was saluted as the Vicar of Christ over Christian people 1 . These pretensions, which have given rise to so much idle discussion in times comparatively modern, are as ancient as the Anglo-Saxon period of our history. Under the Normans and Plantagenets they were not abandoned. Henry I., notwithstanding the irre- gular steps by which he mounted the throne, styles himself King by the Grace of God 2 ; and his grand- son, one of the most imperious of our princes, in a controversy he maintained with the Bishop of Chichester concerning the immunities of Battle Abbey, had the hardihood, in the presence of his assembled nobles and clergy, to assert that his royal dignity was given to him by God 3 , though there were many present who must have known that he had obtained it by a convention with Stephen gua- ranteed by the great men of the kingdom. But if Kings derive their power from Heaven, it was held there could be none on earth to con- trol them, or call them to account. However ca- 1 Laws of ^Ethelred, ix. 2, 42. In the acts of a synod or coun- cil held at Cealchythe in 785, the petty King of the Mercians is repeatedly called christus Domini ; and texts are accumulated from Scripture, to show that his person is sacred and inviolable. Wilk. Cone. i. 148. In a Saxon homily quoted by Wheloc (Beda, 151) the King is styled Vicar of Christ, consecrated to be Shepherd of the Christian people whom Christ has redeemed, and Christ is said to have given him authority under himself. * Charter to Archbishop William, and to the minister of Christ Church, Canterbury. Lye's Diction. App. 3 Spelman, Cone. ii. 58. 24 ON THE ROYAL PREROGATIVE. pricious or tyrannical their conduct, it was the duty of subjects to obey, or at least to oppose no active resistance to their commands. Rebellion was declared to be sacrilege ; and the persons guilty of so heinous a crime were excommunicated, and devoted to eternal perdition in company with the devil and his angels 1 . Texts from St. Paul, in- tended to inculcate obedience on Christian people under every species of government, were restricted by these commentators to the government of Kings ; and, what is almost incredible, the prophetic de- nunciations of Samuel against kingly government were adduced as proofs from Holy, Writ, that Kings may lawfully do what they please, and that it is sinful to oppose their will 2 . MONARCHICAL THEORY OF ENGLAND. On this double basis has been erected in Eng- land, as in other parts of Europe, the theory of monarchical government. The King has been in- vested by law and religion with a character at once despotic and divine. His office has been deemed sacred as a delegation from Heaven, and the sacred- ness of his office has been communicated to his person. In law, his prerogative has been held to be the same with that claimed or possessed by the Roman Emperors. In practice, it is true, his power has been differently considered. There is no coun- try in Europe where some limitation has not been opposed to the ideal despotism of the monarch. In 1 Cone. Tolet. iv. 75. * Mably, Obs. sur 1'Hist. de France, 1. 1, ch. 3. MONARCHICAL THEORY OF ENGLAND. 25 England the checks are numerous and powerful ; but still, in theory, the authority of the King is held to be supreme. In the language of the greatest lawyers even of the present day, the whole power of the state is said to be vested in the King l . To reconcile practice and theory, without abandoning the fiction on which theory was founded, many evasions and subterfuges have been invented. The King is the supreme and sole legislator, say the lawyers ; but, according to the constitution of Eng- land, he can neither enact nor alter laws without the advice and consent of his Lords and Commons. He is lord of the soil ; but, by the law of England, he can dispossess no man of his inheritance, except by judgment of his peers. He is universal oc- cupant ; but he " cannot touch a blade of grass or " take an ear of corn " without leave of his Com- mons 2 . He is supreme in his judicial functions ; but, by long-continued usage, it is an established maxim of the constitution, that he must exercise them by his judges. He is supreme and absolute in the execution of the laws ; but he can perform no one act of executive magistracy without the as- sistance of others who are responsible for what they have done 3 . It is not, however, to these checks 1 Attorney- General's speech in Hardy's Trial. Howell's State Trials, xxiv. 243. When Louis XIV, in the pride of despotism exclaimed, " L'etat ! c'est moi," he claimed no more than Mr. Attorney ascribes to the King of England. 2 Bacon's Abr. Prerogative, b. 1. 3 The monarchical theory of the English government, with some of its most important practical corrections, is thus laid down by one of the most eminent lawyers of the present day : " The power of the King, in name, is the state itself. All the 26 ON THE ROYAL PREROGATIVE. and limitations of the royal prerogative that I wish at present to direct the attention of my readers. My object is to show in what manner the reason- ings of lawyers and established maxims of constitu- tional law, with respect to the real King, have been warped and perverted by considerations drawn from his ideal prerogative. For this purpose it will be necessary to go back to the more ancient au- thorities, as modern lawyers, while they repeat the expressions and adopt the conclusions of their pre- decessors, bring less distinctly into view the ori- i ginal theory on which they were founded. orca b ad- es r ^ e student, who consults our early authorities ties in the O n constitutional law, will be told, that the King of King of England. England has in him two bodies or capacities ; that he has a natural body, and a politic or mystical body ; that his natural body is subject to the casu- alties and infirmities of other men, but that his body politic is utterly exempt from weakness or passion, secure alike from the helplessness of infancy and from the imbecility of age : that these two bodies, thus differently constituted, exist not apart, but are incorporated in one person, making one body, and not two bodies corpus incorporatum in corpore powers of the state, legislative and executive, are nominally in him. Not really, because the King can make no law but by the advice and with the assent of the Lords and Commons in parliament. He can execute no law but by his judges and other ministers of justice, according to a formed and regular establishment. He really does nothing, but he nominally does everything. The consequence is, that he is, to all intents and purposes, the state ; and in his name every act is done." Solicitor- General's Speech in Hardy's Trial. Howell's State Trials, xxiv. 1183. MONARCHICAL THEORY OF ENG natural!, et corpus naturale in corpore^corporato in such a manner that the politic body it the natural body, and the natural body the politic body. He will be further told, that, when the King dies, his politic body escapes from his natural body, and, by a sort of legal metem- psychosis, enters into the natural body of his suc- cessor ; but, while he is alive, that the two bodies are indissolubly united and consolidated in one, the whole possessing the properties, qualities, and de- grees of the politic body, which is the greater and more worthy, and, as such, draws to itself the other, and communicates to it its own virtues and endowments ; and he will be assured it is for this reason that acts done by the King in his politic capacity cannot be set aside or impaired for defects or disabilities in his natural body. It will be after- wards explained to him, that if the natural body of the King is thus magnified by its conjunction with his politic body, it communicates to the latter in return qualities and powers which, as an impassible body it could not otherwise have enjoyed. It is, for instance, by means of his natural body that the King is enabled to have children to inherit his kingdom ; for, as we are told by Lord Chief Justice Dyer, to engender issue is the office of his natural and not of his politic body l . From this mystical union of the ideal with the real King, the inquirer after constitutional informa- tion will be led, through childish reasonings and 1 Howell's State Trials, ii. 624. Calvin's Case. Plowden, 213. 217. 234, &c. ; cases of the Duchy of Lancaster, and of Wyllion v. Barkly. 28 ON THE ROYAL PREROGATIVE. Influence of his natural on his politic capacity : in making the crown hereditary : in protect- ing his Queen and eldest son from trea- son. unintelligible jargon, to practical consequences that are obviously founded on expediency ; he will be conducted to other conclusions, that have neither reason nor convenience to plead in their favour ; he will meet with vain attempts to reconcile im- possibilities, and unnecessary arguments to prove what no man in his senses ever questioned or de- nied ; he will find, in the same author, contradic- tory assertions on the self-same points ; and before his inquiries are brought to a close, he may possi- bly be led to the conclusion, that many of the pre- rogatives of the real King have been surreptitiously introduced and established under the colours of his ideal prototype. He may have imagined that it was in order to prevent the mischiefs of an elective monarchy that royalty was made hereditary in England. But when he turns to his learned instructors, he will be told, that it is in consequence of the King's natural body having an operation on his politic body, that the crown goes by descent, and not by succession, as in other corporations 1 . He may have heard that the life of the Queen, and the life of the King's eldest son, are protected by the statute of treason ; and he may have fancied it was from respect for the King and regard to the succession, that this protection was extended to them. But when he looks more deeply into the matter, he will find that it arises from the " mutual " aid and reciprocal intercourse, influence, and " communication of qualities " between the King's natural body and his body politic. His politic 1 Howell's State Trials, ii. 598. MONARCHICAL THEORY OF ENGLAND. 29 body gives dignity to bis natural body. His natural body enables him to have a wife and child ; and from the dignity it has acquired by its incorpora- tion with his politic body, it confers on them the same protection from treason which he enjoys him- self, though the body politic be entirely in him and no part of it in them. That the protection given by the statute of treason to the Queen and eldest son of the King is effected by an operation of law proceeding from the dignity of the natural person of the King, no one can doubt, "for you shall " never find," says Sir Edward Coke, " that any " other corporation whatsoever, of a bishop or " master of a college, or mayor of London, worketh " any thing in law upon the wife or son of the " bishop or the mayor 1 ." It would be idle to ask how it happens that the dignity of the King's na- tural body stops short at his eldest son, and extends not to his other children ; or why a protection by statute was necessary, if the object was already accomplished by an operation of law. If in these instances there is a communication of qualities from the real to the ideal personage, we shall find, in other cases, the attributes of the ideal city. King transferred with a liberal hand to his visible representative. When we say that the King is always present in Kin s can - / J not be non- ius courts of law, this must be understood of his suit, nor ideal and not of his actual presence, as it is impos- comtofTaw sible for the real King to be in two places at once. b y attorne y- But when we are told that, in consequence of this legal ubiquity, the King can never be nonsuit, for 1 Howell's State Trials, ii. 598. 30 ON THE ROYAL PREROGATIVE. nonsuit is a desertion of the suit or action by the non-appearance of the party in court ; and that he can never appear in court by his attorney, for in the contemplation of law he is always present ; it is plain that we pass from his ideal to his real ex- istence, and invest him with qualities in his real person that belong to him only in his ideal cha- racter. It is because the ideal King is held to be always present in his courts of justice, that the law has determined the real King can never be nonsuit, nor appear by attorney 1 . When we are told it is a standing maxim of En- in the King. gli s h law, that in the King there can be no negli- gence or laches, and therefore no delay will bar his rights, because in the intendment of law he is al- ways busied for the public good, and has not leisure to assert his rights within the times limited to his L- subjects 2 , it is clear that in the premises we con- sider the ideal King, who is supposed to be always occupied for the public good, and from this hypo- thesis draw a conclusion which we apply to the real King, who may be employed, without a thought of the public, in his own private pleasures and amusements. King can- AS the ideal King is all-perfect, free from stain not he an infant, lu- or blemish, and equally competent at all times to traitor? r discharge his royal functions, it is held that the real King, though an infant, is of full age ; though a lunatic, in his senses; and though an adjudged traitor, it has been decided that his assumption of the crown purges him at once from all attain- ders 8 . ' Blackstone, i. 270. Ib. i. 247. s Ib. i. 247. can e a MONARCHICAL THEORY OF ENGLAND. 31 We are gravely told by lawyers 1 , that the King as King cannot be a minor, because " the politic King ' . not b ;t rules of government have thought it necessary minor. " that he, who is to govern and manage the whole " kingdom, should never be considered as a person " incapable of governing himself." 'That is to say, because the law has attributed to the ideal King the entire management and government of the realm, it considers the real King, though a babe in swaddling-clothes, to be a person of years and dis- cretion. How much more sensibly has another author of the name of Bacon 2 considered the ques- tion ! " There is no infancy," he observes, " in the *' crown, though in the person ; because the wisdom " of the crown is not intended to rest in one person, " but in the counsels of many, who are equally wise, ;< whether the person of the King be old or young." j The ideal King is the fountain of justice, and ^ ^ c e tion therefore no court can have jurisdiction over him. raised -n . , . . i A i i against the rrom this principle it is deduced as a consequence, King. that no suit or action can be brought against the real King, and that his person must be sacred, be- cause there can be no tribunal that has a power to try him 3 . It is held that the King can do no wrong, for King can do no wrong. two reasons : first, because his prerogative was created for the benefit of his people, and cannot therefore be exerted to their prejudice 4 ; and, secondly, because, if such a case occurred, the law 1 Bacon's Abridg. Prerogative A. a N. Bacon, Discourses on the Law and Government of Eng- land. 3 Blackstone, i. 242. 4 Ib. i. 246; Hi. 255. 32 ON THE ROYAL PREROGATIVE. would be incapable of furnishing any adequate remedy, and it would be weakness and absurdity to admit of any possible wrong without the possi- i_ bility of redress 1 . On this species of logic it may be remarked, that to say there can be no wrong because there is no redress for it, is as reasonable as to maintain there can be no disease for which a physician has not a cure ; and to argue that the prerogative cannot be exerted to the prejudice of the subject, because it was created for his benefit, is much the same as to assert, that an army, which had been raised in defence of the liberties of a country, cannot be employed for their destruction. But whence arises the impossibility of redress for wrongs done by the King ? Because, in the con- templation of law, the King is sovereign and su- preme. King never The ideal King is immortal in law ; but as it is impossible to extend that privilege to his visible re- presentative, the lawyers have been compelled to devise an expression, which should obscurely and circuitously convey in words a fact, the possibility of which the law is very tender of acknowledging 2 . When the real King dies, they term it his demise, " an expression," says Blackstone, " which signifies " merely a transfer of property ; for, as Plowden " has observed, when we say the demise of the " crown, we mean only, that in consequence of the " disunion of the King's natural body from his " body politic, the kingdom is transferred or de- " raised to his successor." Sir Edward Coke 3 is 1 Blackstone, i. 244. Ib. i. 249. 3 Ho well's State Trials, ii. 624. MONARCHICAL THEORY OF ENGLAND. 33 so cautious of admittitig the King's natural mor- tality, in opposition to the plain language and positive asseverations of the law, that he thinks it necessary to establish the truth of the fact by the dangerous consequences that would result from, denying it. " The King in genere" says that ~~\ learned judge, " dieth not ; but, no question, in " individuo, he dieth ; as for example, King Henry our <>5 _ K } " and in secret, loving what he " what he rejects ] ." It follows from these words, that the fealty sworn to the King was the same which a man owed to his lord ; and that to judge of the nature and extent of the obligation which this oath imposed on the subject, it is necessary to know exactly what was the engagement of the man. Mably laments 2 that the oath of the Antrustion to the King is not given by Marculfus ; and from the silence of subsequent authors it may be inferred, that the loss is not supplied by any collection of laws or judicial forms extant on the continent. We have been more fortunate in England. The oath of a man to his hlaford is preserved among the Anglo-Saxon laws 3 . It is called the hyld-ath or oath of fealty, and its tenor is as follows. " I shall " be faithful and true to N, and love all that he " loves, and shun all that he shuns, conformably " to the laws of God and man, and never willingly, " nor wittingly, by word or deed, do aught that is 1 Ut omnes jurent in nomine Domini, pro quo sanctum illud sanctum est, fidelitatem Edmundo Regi, sicut homo debet essefide- lis domino suo, sine omni controversia et seditione, in manifesto, in occulto, in amando quod amabit, nolendo quod nolet, et ante- quam juramentum hoc dabitur, ut nemo concelet hoc in fratre vel proximo suo plusquam in extraneo. Bromton, c. 859. I have not translated the last part of the oath, because I do not understand it. The qualifying clause is taken from the oath to Charlemagne, preserved in the Formul. Lindenbrog., 40, where the person swears fealty, sicut recte debet esse homo domno suo. 2 Obs. sur 1'Hist. de France, 1. 3. ch. 3. note 3. s Anc. LL. and Inst. p. 76. This oath is preserved in the Textus Roffensis, f. 38 b. Hickes, in his Dissert. Epist. p. 112, refers it to the Dano-Saxon period of the language ; but in sub- stance it must be of far greater antiquity, as the connexion it describes existed in the woods of Germany. F 66 ON THE ROYAL PREROGATIVE. " hateful to him, on condition that he keep me as " I am willing to earn, and all that fulfil, which was " agreed upon between us, when I submitted to " him and chose his will 1 ." From these words it is clear, that the engagement of a man with his hlaford was voluntary, inasmuch as it was founded on compact ; and conditional on the part of the man, inasmuch as he was released from the engagement he had contracted, in case the hlaford failed in performing his part of the agreement. When exacted from subjects to their King, it ceased to be voluntary, but it continued to be conditional. It was not absolute, unlimited fealty, which the subject swore to the King, but 1 Among the Formulae Sirmondicse there is one, 44, entitled, " Qui se^in alterius potestate commendat," which describes an engagement between an inferior freeman and his lord, similar to the one implied in the hyld-ath of the Anglo-Saxons ; but the terms of the engagement intimate a greater disparity of condi- tion between the parties than appears in the Anglo-Saxon oath, the inferior being represented in a forlorn and destitute condition, and in these circumstances soliciting admission into the service and protection of his lord. That the reader may judge for him- self, I subjoin the formula entire. " Domino magnifico illo, ego enim ille. Dum et omnibus habetur percognitum qualiter ego minime habeo unde me pascere vel vestire debeam, ideo petii pietati vestrae et mihi decrevit voluntas, ut me in vestrum mun- deburdum tradere vel commendare deberem, quod ita et feci, eo videlicet modo, ut me tarn de victu quam et de vestimento, juxta quod vobis servire et promereri potuero, adjuvare et consolare debeas, et dum ego in caput advixero, ingenuili ordine tibi ser- vitium vel obsequium impendere debeam, et me de vestra potes- tate vel mundeburdo tempore vitae meae potestatem non habeam subtrahendi, nisi sub vestra potestate vel defensione diebus vitae meae debeam permanere. Unde convenit ut si unus ex nobis de his convenientiis se emutare voluerit, solidos tantos pari suo componat et ipsa convenientia firma permaneat." ALLEGIANCE. 67 such fealty as a man owed to his lord. If a breach of compact on the part of the hlaford released his man from the engagement he had sworn, it follows, that as far as the oath of fealty was concerned, a breach of compact on the part of the King must equally have released his subjects from their allegiance. What terms or compact the King was understood to have made with his subjects we are not informed. They were probably of a loose, indeterminate na- ture, and settled by custom rather than regulated by law ; but if broken on the part of the King, the subject by the very terms of his oath was released from the fealty he had sworn (P). One instance is recorded where stipulations more formal than usual appear to have been made be- tween the King and his people. ^Ethelred II. had been expelled from his kingdom by the Danes, after giving innumerable proofs of his incapacity and unfitness to reign. On the death of the Danish monarch, who had been raised to the throne in his place, his former subjects, desirous to have again a king of their own nation, sent him word that they would take him back as their King, pro- vided he would govern them better than he had done before. The exiled prince gladly accepted their offer, and assuring them he would be a faith- ful hlaford to them in future, pledged himself to amend whatever they disliked in his government. On these terms, with mutual promises and stipu- lations on both sides, he was restored to his king- dom 1 . This is the only instance I have found in Anglo- 1 Saxon Chronicle in 1014. F2 68 ON THE ROYAL PREROGATIVE. Saxon history of a formal compact between the King and people. But there are several examples of princes deposed for misgovernment, which im- plies, that in the opinion of that people, the rela- tion of King and subject was founded on a com- pact, tacit or expressed, and that a breach of con- ditions on the side of the King released the subject from his allegiance. In the eighth century a King of the West Saxons, of the name of Sige- bryht, was driven from the throne for his illegal conduct by sentence of his witan 1 . Nearly about the same time the unjust and tyrannical government of Beornred, King of the Mercians, excited a ge- neral combination of his subjects, of all ranks and degrees, against him, which led to his deposal and to the election of Offa, a distant relation of the royal family, in his place 2 . Many similar instances might be given ; but, without referring to such ex- treme cases, the general fact is undeniable, that the authority of the Anglo-Saxon Kings over their subjects was precarious, weak, and ill defined. An author, who lived under the Conqueror, mentions the unbridled ferocity of the northern and western parts of England, where the people under their an- cient Kings had prided themselves on rendering no greater obedience to the laws than was agreeable to themselves 8 . 1 Saxon Chronicle in 755. * Westm. in 758. 9 Orderic. Vital. 1. 4. apud Maseres, 209. Speaking of the state of England soon after the Conquest, he observes, " Circa terminos regni, occidentem aut plagam septentrionalera versus, effraenis adhuc ferocia superbiebat ; et Angliae regi, nisi ad libi- tum suum, famulari, sub rege Edwardo aliisque prioribus, olim despexerat." ALLEGIANCE. 69 There is another observation to be made on the Anglo-Saxon oath of a man to his hlaford. It con- tains no reservation of fealty or obedience to the King ; and the question naturally occurs, what was the duty of a man, who had contracted that obli- gation, when a quarrel arose between the King and his immediate lord. There is no provision in the oath for this contingency, and no clear indication from history what was considered to be the duty of the man in such an event. In the account given by the Saxon Chronicle of the civil war between the Confessor and Earl Godwin, there are some obscure intimations that the thegns of the latter were bound to maintain the quarrel of their imme- diate lord till released from the engagement they had contracted with him ; but the facts are not stated with such precision as to enable us to draw any certain conclusion from them 1 . When such cases occurred, and in those remote times they were not unfrequent, it is probable that in England, as on the continent, the men ranged themselves on one side or the other, as interest, fear, or affection dictated. The law of England appears to have continued in changes this respect in the same unsettled state till the thfcon- Norman conquest was completely established. The queror - Conqueror was not a prince to content himself with the qualified obedience that had satisfied the Anglo- Saxon Kings. At the very outset of his reign he gave a sample of the different spirit of his govern- ment in his conduct towards the inhabitants of Exeter. Having intelligence that they were pre- 1 Sax. Chron. in 1051. 70 ON THE ROYAL PREROGATIVE. paring to take up arms against him, he sent to the principal citizens and ordered them to take the oath of fealty. They declined, and refused even to admit him within their walls, but offered to pay him the customary tribute due from their town. He replied, that it was not his fashion to have subjects on such terms, and marching against them, he compelled them, after a slight resistance, to sur- render at discretion 1 . The same character is visi- ble in all the other acts of his reign. One of his laws obliges every freeman in his dominions to take an oath of fealty to his person without reserve or qualification 2 ; and in the latter part of his life, he assembled all the landholders of any account throughout England, whose men soever they were, and compelled them to become his men, and to swear fealty to him against all persons whatever without any exception 3 . This was an important step in the system of feu- l dal subordination. Charlemagne had enacted, that no person should take an oath of fealty to any one except to the King and to his own lord ; but he had placed the King and private lord on the same footing, and in the event of any difference between them, he had not ventured to declare, that the obligations of the vassal must give way to the duty of the subject 4 . So late, indeed, as the time of St. Lewis, the vassals of a mesne lord in France were in certain cases bound by law to serve their lord 1 Orderic. Vital, lib. 4. apud Maseres, 210. 2 Leg. Will. Conq. iii. 2. 3 Saxon Chronicle in 1086. * Capit. 2. in 805. 9. ALLEGIANCE. 71 against the King 1 . In Italy, after an interval of seventy years, the example of the Conqueror was followed by Frederick Barbarossa. In a diet held by that prince at Roncaglia, soon after his short- lived triumph over the Lombard republics, it was enacted by his authority, that in every oath of fealty from a vassal to his lord, the Emperor should be excepted by name 2 . In England, when Glanvile wrote, it was an established principle of law, that in every oath of fealty to a subject the tenant was to except the fealty he owed to the King and to his heirs 3 . This innovation led to the distinction of liege homage and fealty, from simple, feudal, or predial homage and fealty 4 . Liege homage, from which comes the word allegiance, was due to the King as sovereign lord of the state, and had no relation to tenure 5 . Simple homage, though originally a per- sonal engagement, was in latter times, in England at least, necessarily connected with some fief, no one in this country being permitted to do homage to a subject for vassalage alone, without some tene- ment or service 6 . It was some time, however, be- fore the term liege-homage was restricted by En- glish lawyers to the homage rendered by a subject to the King. So late as the reign of Edward I., the words liege lord and liegeance were used to express 1 Etablissemens de St. Louis, ch. 49. Montlosier, 1. 434. 2 Muratori, Script. Ital. vi. 789. 3 Glanvile, 1. 9. c. 1. 4 Spelman's Remains, 36. Hale, P. C. 65. 70. 5 Spelman's Glossary, Homagium. 6 Glanvile, 1. 9. c. 2. Bracton, 1. 2. c. 35. 6. Nee pro solo dominio fit homagium, nisi soli regi vel principi, sine tenementp vel servitio. 72 ON THE ROYAL PREROGATIVE. feudal relations between subjects. He was said to be liege lord, from whom the tenant held his prin- cipal messuage or tenement, or to whom he had Arcade his first profession of homage 1 . The oath required by the Conqueror from his subjects, though tinged with feudal expressions, seems to have been an absolute, unconditional en- gagement of service and fealty against all the ene- mies of his crown and kingdom. But, while the feudal system was in vigour, there can be little doubt that in England as in France, the obligation was considered to be conditional, and liable to be cancelled by the injustice or misgovernment of the King. In France we are told, that the faith and homage rendered to Philip Augustus contained a promise of fealty so long only as the King did jus- tice in his court. St. Lewis admits the legality of private war against the King who denies justice to his subject ; and if any near vassal refused to serve his lord in the prosecution of the quarrel, he de- clares the fee of the vassal legally forfeited to his lord 2 . Similar notions, though not admitted into our law books, prevailed about the same period, in a less degree, in England. Diffidation. When two persons, whether King and subject or two subjects, were living in amity, and connected by any tie that implied mutual faith and confidence, it was reckoned traitorous for either party to com- mit a hostile or violent act against the other, with- 1 Glanvile, 1. 9. c. 1. Bracton, 1. 2. c. 35 and 37. Fleta, 1. 3. c. 16. 16. Britton, ch. 68. 2 Montlosier, Monarchic Francaise, i. 434. Etablissemens de Saint Louis, 1. 1. ch. 49. ALLEGIANCE. 73 out giving him due notice of the intended aggres- sion. This notice was called diffidatio, which is usually translated defiance, though, properly speak- ing, it means to undo, break off, renounce or with- draw the faith or protection due or promised to another. If two barons, two knights, or even two burghers, who had the right of private war, were living in peace and security with respect to each other, it was not lawful for the one to attack or use violence against the other without a regular notifi- cation of his purpose 1 . Innumerable regulations on this subject are to be found in the laws and insti- tutions of the continent ; and neither the name nor practice of diffidation were unknown in England. William of Malmsbury censures Stephen for at- tacking by surprise the Earl of Chester and his brother, because he had parted from them in friend- ship some time before, and had not previously, ac- cording to ancient usage, put them out of his protection, or, as it is called, defied them 2 . Philip Augustus, before he received the homage of Arthur, Duke of Brittany, declared John, King of England, out of his faith and protection as a vassal of France 3 . Henry III. began hostilities against William, earl mareschal, by sending him a formal diffidation through the bishop of St. Asaph ; and when the earl was afterwards solicited to submit himself to 1 Ducange, Gloss. Diffidare, Diffiduciare. Diffidare proprie est a fide quam quis alicui debet aut pollicitus est, per literas aut epistolam deficere. Item, declarare aliquem a fide, quam debebat, defecisse. Ib. Supp. Vel inter dominum et vasallum, vel inter affidatos. Spelman, Gloss. ' 2 Malmsb. Hist. Novell, lib. 2. f. 105. b. quod diifidiare dicunt. 3 Spelman, Gloss. Diffidatio. 74 ON THE ROYAL PREROGATIVE. the King's mercy, he justified his refusal on the ground that the King had, without trial by his peers, declared him out of his royal protection, and made war on him as a public enemy. " I am no traitor," says the earl; " the King has, without judgment " of my peers, deprived me of my honours and laid " waste my lands ; twice he has put me out of his " protection 1 , while I demanded and was ready to " abide by the judgment of my peers in his court. " I am no longer his man, and by his own act have " been absolved from the homage I had rendered 11 him. It is therefore lawful for me to defend my- " self, and to resist the evil counsellors that sur- " round him by all the means in my power 2 ." The same reign affords another illustration of this usage. Before the battle of Lewes the confederate barons sent a message to the King, professing fealty and obedience to him, but complaining of those about him, who they said were as much his ene- mies as theirs. The King in reply took part with his friends, declaring all persons, who were enemies to them, out of his protection ; and the barons of his party, retorting the taunts of their adversaries, gave the lie to their accusations, and renounced all alliance of faith and amity with them. Having received these letters of diffidation from the King and his partizans, the confederates prepared for battle 3 . 1 " Semel et iterum me diffidavit ; cum semper paratus essem in curia sua juri parere, et stare judicio parium meorum. Unde homo suus non fui ; xsed ab ipsius homagio, non per me, sed per ipsum, licenter absolvebar." 2 Matt. Paris, 388. 3 Ib. 994. The King's reply to the barons is called litera ALLEGIANCE. 75 A still more remarkable act of diffidation is one Deposal of that took place at the deposal of Edward II. With- out entering into the justice or necessity of that measure, the mode of conducting it deserves notice as illustrative of the opinions entertained in that age with respect to the mutual relations of King and subject. While Edward was still King, Sir William Trussell appeared before him as proxy for the lords spiritual and temporal and others, and in their name, and in virtue of the full and sufficient powers with which they had invested him, he re- nounced and withdrew the homage and fealty apper- taining to Edward as King of England, from his constituents, declaring them free and quit from such homage and fealty in time to come, in the best manner that law and custom warranted, pro- testing that thenceforward they were not to be deemed in his fealty or allegiance, or to hold any thing from him as King, but were to consider him as a private person altogether divested of royal dignity 1 . From this proceeding, however question- able in other respects, it appears that according to the notions of that time the subject had a right, for good and sufficient reasons, to renounce his homage and fealty to the King, in the same manner as the King had for similar reasons a right to put the sub- ject out of his faith and protection. The same forms were observed at the deposal of and of Richard II. diffiduciationis. The expression he uses, when praising his friends, is eorum inimicos diffidamus. The barons of his party consider themselves diffidatos by the confederates, and in return treat them tanquam hostes publicos a hostibus diffidatos. 1 Knyghton, 2550. 76 ON THE ROYAL PREROGATIVE. Richard II. with this difference, that before the sub- jects of that prince renounced their allegiance by a formal and public act, he had abdicated the govern- ment and absolved his lieges from the homage and fealty they had sworn to him (P). There is still preserved in the law of England a remnant of this ancient right. If an alien enemy, who has the benefit of the King's protection, com- passes the King's death, he is guilty of treason. But if he publicly renounces the King's protection, he is to be dealt with, say the lawyers, as an enemy ; a proceeding, observes Sir Matthew Hale, that has some analogy to what was anciently called diffidatio or defiance 1 . While Normandy and other transmarine posses- sions were attached to the crown of England, per- sons who had estates on both sides of the channel must frequently have been placed in situations where they were compelled to exercise the right of diffidation. The same must have happened while England and Scotland were in general habits of amity, interrupted occasionally by temporary hos- tilities. At the battle of the Standard we are told that Robert de Brus, a Norman baron, who had estates in Scotland, thought it necessary, before the action commenced, to renounce his homage and fealty to the Scottish crown. But with the loss of Normandy and adjacent provinces of France, and with the cessation of all friendly intercourse with Scotland, this necessity was at an end ; and, when the practice fell into disuse, the right appears in 1 Hale, P. C. 60, 92. ALLEGIANCE. 77 the case of individuals to have been extinguished, though in the instances just quoted it continued to be exerted on the part of the public. The great men had not in England, as in Spain, a right to Ris htofthe ' ncos omes renounce their country on the ground of some per- in Spain to re , . 11 renounce sonal offence ; nor having made that renunciation, their coun- could they lawfully enter into the service of a foreign prince and assist him in making war on their native land. This singular privilege, which was called desnaturalizarse, appears to have been frequently exercised by the Spanish nobles, and to have been not only sanctioned by law, but subjected to various minute regulations, on the due perform- ance of which its legality depended. If any great man, who thought himself aggrieved, was desirous to renounce his country with all the rights, privi- leges, and obligations of a natural-born subject, he was bound in the first instance to renounce his vassalage and allegiance, and give back to the King all the lands and castles he held from the crown. He was then to demand the term allowed him by law to quit the country, with as many of his fol- lowers and adherents as chose to accompany him. In his route to the frontiers he was entitled to have provisions for himself and his companions on making payment for them, and in return he was bound to commit no devastations in the district through which he passed. He. might afterwards .enter into the service of a foreign prince, and under certain restrictions, engage in hostilities against his country, without incurring the imputation of having failed in his allegiance to his natural lord (Q). This privilege of the Ricos omes in Spain was 78 ON THE ROYAL PREROGATIVE. favoured by the division of that peninsula into a number of independent states ; and, with many other peculiarities in the Spanish constitution, it had most probably its origin in the loose connexion between the petty princes of that country and the private adventurers, by whose assistance it was re- covered from the Moors. Many of these adven- turers were foreigners, who owed no natural allegi- ance to Spain ; and, though actuated by the same spirit that led other crusaders to the Holy Land, it was customary for them, before lending their aid against the infidels, to make a bargain for them- selves and followers with the prince under whom they were to serve, reserving in the territories they might subdue greater privileges and immunities than were possessed by persons of the same rank in other parts. But though England was gained by conquest, and gradually reduced to subjection by William and his followers, the latter obtained no such privileges from their chief. It appears in- deed from the celebrated answer of Earl Warenne 1 to the commission of quo warranto issued by Ed- ward I., that a vague notion was prevalent among the descendants of the first conquerors, that they held their lands and possessions in England by the same tenure as the King held his crown. No pre- tension, however, was made of any right to quit his service, when they pleased, and transfer their allegiance to another prince. Question, But, though the maxim nemo potest exuere patriam which, according to Foster, comprehends tne whole doctrine of natural allegiance, is held in 1 Rapin, Hume, &c. ALLEGIANCE. 79 the law of England to have no exception, and the natural or in his politic violation of it to admit of no excuse, a question has capacity. arisen, to whom is that inalienable allegiance due? We are told, that it is due to the person of the King l ; and, as the King in his politic or ideal capacity constitutes the state, there can be no doubt of the general truth and correctness of this propo- sition. But the King has a natural as well as a politic capacity, and both are united in the same person. If the King, in his natural capacity, should act in opposition to the duties he owes in his politic capacity, it may be asked, does the alle- giance to his person remain indefeasible ? If it does, what becomes of the doctrine maintained by one of the highest of our law authorities, " that " resistance to the person of the King is justifiable, c< when the being of the state is endangered and " the public voice proclaims such resistance neces- " sary 2 ?" If it does not, it cannot be true, that, in all cases, allegiance to the person of the King is indefeasible and inalienable. The question whether the allegiance due to the King be applicable to him solely in his regal and political capacity, has been frequently stirred in former times, and the most contradictory answers to it have been given. It was one of the charges against the Despensers. Jud s ment 00 r ' against the the favourites of Edward II., that they had drawn up and promulgated a bill or paper, wherein they maintained, that homage and allegiance had more regard to the crown than to the person of the King, and bound the subject more to his crown than to 1 Blackstone, i. 371. 2 Ib. i. 251. 80 ON THE ROYAL PREROGATIVE. his person ; from which they inferred, that if the King was not guided by reason in his administra- tion of the kingdom, it was the duty of his lieges, if they kept their oath to the crown, to bring him back to reason, and even to employ force, if neces- sary, to redress the errors of his government ; for, if he is bound by his oath to govern his people and his lieges, his lieges are equally bound by their oath to govern in aid of him and in default of him l . For these and other offences the Despensers were banished and their estates confiscated. It is singular enough, that the act against them was obtained by persons who were at that very time in arms against the King ; that it was repealed as soon as he had recovered his authority; and that it was renewed in the first parliament of his son, immediately after the doctrine it condemned had been practically en- forced by the deposal of the King and formal re- nunciation on the part of his subjects of the faith and allegiance they had sworn to him. The renewal of the act against the Despensers, " in all its points according to the tenor of every " article contained therein 2 ," seems to establish as the deliberate opinion of the legislature, that alle- giance is due to the person of the King generally, and not merely to his crown or politic capacity, so as to be released and discharged by his misgo- vernment of the kingdom. But, notwithstanding this parliamentary recognition of the law, the de- positions of Edward II. and of Richard II. were formidable precedents the other way, and though effected by force, as every measure of the kind must 1 Statutes at large, i. 182, folio. 2 1 Edw. III. c. 2. ALLEGIANCE. 81 be, they were conducted with all the forms and solemnities of a judicial proceeding. It was pro- bably in consequence of this inconsistency between the act of Edward III. and the determinations of parliament on these important occasions, that when the question was again started, whether allegiance was due to the King in his politic or in his natural capacity, the opinion of lawyers was divided on the subject. Soon after the accession of James I. to the En- Opinions in . . the case of gush throne a question arose, whether his subjects the post- born in Scotland after that event were entitled to " the privileges of natural-born Englishmen. When the case was argued before the House of Lords, it was maintained by Doddridge, solicitor-general, and by Hyde, Brook, Crewe, and Headley, professors of the common law, " that ligeance is tyed to the "kingdome and not to the person of the King," the very doctrine asserted by the Despensers. It was held on the other hand by Chief Justice Pop- ham, Sir Edward Coke, and Chief Baron Fleming, that allegiance is " tyed to the body natural of the " King and not to his body politick," and to this latter opinion all the judges, save one, gave their assent. The case was afterwards tried in the Ex- chequer chamber, and decided in favour of the post- nati l . The decision was conformable to the judg- ment against the Despensers, but the differences of opinion on the subject show, that the constitutional point it involved was not considered as having been at that time thoroughly settled. 1 Howell's State Trials, ii. 566-570. Journals of the House of Lords, 24th Feb. 160f . G 82 ON THE ROYAL PREROGATIVE. Some of the arguments urged on this occasion afford a curious illustration of the points of view from which professional lawyers are apt to consider constitutional questions. Ligeance, it was said, must be due to the natural body of the King, for indictments of treason charge the accused with ha- ving, contrary to their duty of allegiance, com- passed the death of the King, which cannot be un- derstood of his politic body, because his politic body is immortal. Every subject, it was argued, is pre- sumed to have sworn fealty to the King, which must be to his natural person, for in his politic person he is invisible, and being invisible he can receive neither homage nor fealty. The coronation oath, it was added, which he takes at his accession, cannot be administered to him in his politic capa- city, for in his politic capacity he never dies, and can never therefore begin to reign l . Such were the weighty reasons advanced by the first lawyers of England to convince the hereditary counsellors of the crown, that allegiance is due to the King in his natural as well as in his politic capacity. Declaration Within a few years after this decision the ques- mentln*" *ion was in substance revived between Charles I. and his parliament. It was maintained by the two houses of parliament, and could not be denied by their opponents, that though the King is the foun- tain of justice and protection, particular acts of justice and protection are not exercised by him in his own person, nor depend on his pleasure, but are exercised by his courts and ministers, who must do their duty therein, though the King in his own ' Howell's State Trials, ii. 624. ALLEGIANCE. 83 person should forbid them; and such acts and judgments, it was said, are considered the King's acts and judgments, though done againsth is will and personal command. To this doctrine, unex- ceptionable as far as it relates to the courts of law, it was added, that the high court of parliament, meaning by that court the lords and commons, is not only a high court of judicature, with control over grants and patents of the King which they may deem prejudicial to the public, but a council to provide for the necessities, to prevent the im- minent dangers and preserve the public peace and safety of the kingdom, and to declare the King's pleasure in those things that are requisite thereunto ; and that what they do therein, hath the stamp of royal authority, although His Majesty, seduced by evil counsel, do in his own person oppose or inter- rupt the same, the King's supreme and royal plea- sure being exercised and declared in that court after a more eminent and obligatory manner than it can be done by any personal act or resolution of his own !. By this memorable declaration, which was the groundwork of all the subsequent proceedings of the parliament in the civil wars that ensued, it is obvious that the two houses not only separated the politic from the natural capacity of the King, but transferred to themselves the sovereign authority attributed to him by lawyers in his ideal cha- racter. They assumed to themselves the supreme 1 Declaration of the Lords and Commons in Parliament, Rush- worth, iv. 551. Commons' Journals, 5th and 6th June, 1642. Lords' Journal, 6th June. G2 84 ON THE ROYAL PREROGATIVE. Oaths and declara- tions ex- acted after the Resto- ration. power of the state, retaining nothing of monarchy but the name. What they accomplished was the reverse of what had been attempted by lawyers and churchmen, when they bestowed on the Kings of the Barbarians all the rights and pretensions of the Roman Emperors. In the one case despotism was established under a semblance of law ; in the other, a republic was constituted in fact. It is curious to observe how, on this occasion, the subtleties of the prerogative lawyers were re- torted against themselves. The customary oath of allegiance to the King having been continued to the period of his death, it was contended by the attor- ney-general of the Commonwealth, in the trial of Duke Hamilton, that this allegiance was due to him in his natural only in consequence of its union with his politic capacity, and so long as they were thus united ; and when separated, that it followed his politic capacity as the more worthy, and though nominally sworn to his person, was in sound con- struction of law an obligation to his kingdom l . At the Restoration, as was naturally to be ex- pected, these pretensions of the two houses were abrogated and annulled ; and the current setting strongly in the opposite direction, laws were passed and declarations enforced, which, if acted on lite- rally, must have converted our limited government into an absolute monarchy. All persons, bound to take the oath of allegiance, were made to swear, that it is not lawful on any pretence whatever to take up arms against the King, and were called upon to renounce with abhorrence the traitorous posi- 1 Howell's State Trials, iv. 1173. ALLEGIANCE. 85 tion, that arms may be taken by his authority against his person or against those who are com- missioned by him ] . This was the day of triumph for the monarchical theory, which had never before obtained a parlia- mentary sanction for its extravagances. But in a few years the Revolution followed, and demon- strated the futility of oaths and declarations as se- curities to a King of England in his endeavours to subvert the fundamental laws of the kingdom. To have retained as part of the oath of allegiance a de- claration, in direct violation of which the kingdom had been rescued from arbitrary power, and the na- tion restored to its ancient rights and liberties, would have been preposterous and indecorous. The Abrogated declaration required by the militia act and act of uniformity was accordingly abrogated by the first parliament of William and Mary 2 . By some over- sight it was left in force under the Corporation Act, and was not finally expunged from our statute book till the accession of the house of Brunswick 3 . By the repeal of the declaration required in the statutes of Charles II., allegiance to the King was placed on the footing in which it had been left by the judges in the time of James I., amended and corrected by the principles acted on at the Revolu- tion. It is due, as has been observed, by every natural-born subject to the person of the King, and 1 These declarations were required by the Corporation Act, 13 Ca. II. st. 2. c. 1. 5, 12 ; by the Militia Act, 13 and 14 Ca. II. c. 2. 18, 19 ; and by the Act of Uniformity, 13 and 14 Ca. II. c. 4. 9. 2 1 W. &M. Sess. I.e. 8. 11. 3 5 Geo. I. c. 6. 2. 86 ON THE ROYAL PREROGATIVE. cannot be forfeited, cancelled, or altered but by an act of the legislature. No one born in any part of the King's dominions, and within his protection, can by any act of his own renounce his allegiance 1 . But notwithstanding this unqualified language of our law books, when treating in general terms of allegiance, we are told by the same high authori- ties, that circumstances may arise, where the King, by inference from his conduct, shall be held to have abdicated his throne and absolved his subjects from Opinion of their allegiance, and that " resistance to his person Blackstone , . . onthenght is justifiable, when, by his misgovernment of the " kingdom, the existence of the state is endangered " and the public safety proclaims such resistance " necessary 2 ." It becomes us not to state by anti- cipation what conjunction of circumstances would justify the exercise of this right, or authorise the conclusion, that a King in possession has abdicated his crown, and that the throne is thereby become vacant. In the words of a learned judge, we must leave " to future generations, whenever necessity " and the safety of the whole shall require it, the " exertion of those inherent (though latent) powers " of society, which no climate, no time, no con- 11 stitution, no contract, can ever destroy or di- "minish 8 ." Notwithstanding the zeal and success with which the monarchical theory was diffused over Europe by lawyers and churchmen, there have been states where resistance to the King was, in certain cases, 1 Bacon's Abridgment. Prerogative C. 1. Blackstone, i. 245, 251. 3 Ibid. ALLEGIANCE. sanctioned by law. In Castille, if tha .King at- tempted aught to his own dishonour, or the preju- sistanceluw dice of his kingdom, his subjects were entitled and Sized by even required by law to resist his will, and remove law * evil counsellors from his person 1 . In Aragon the nobles enjoyed what was called the privilege of union, by virtue of which they were entitled to confederate against the crown, where any attempt was made by the King to invade or encroach on their liberties. The union was a legal and consti- tutional association, authorized and regulated by law. It issued its mandates, as a corporation, under a common seal, and could make war on the King without exposing its members to the penalties of treason or rebellion 2 . In England we have one solitary instance of a similar institution. By one of the provisions contained in the Magna Charta of King John, twenty-five barons were to be elected, whose duty it was to take care that the liberties granted by that monarch were observed. If any infringement of those liberties took place, or if any injustice or oppression was committed by the King or his servants, any four of these barons might re- monstrate to the King, or in his absence to the jus- ticiary, and if redress was not obtained within forty days, the whole twenty-five, or a majority of them, were empowered to make war on the King till relief was given to their satisfaction. All persons were bound to assist this commission of twenty-five in the discharge of their duty, and the only limit to 1 Partidas, part 2. t. 13. 1. 25. * Robertson's Introd. to Charles V. note 32d. Hallam's Mid- dle Ages, ii. 68. 8vo. 88 ON THE ROYAL PREROGATIVE. their hostilities was not to touch the persons of the King and Queen or their issue 1 . This guarantee of our national liberties, which the cruel and per- fidious character of John had probably suggested, was omitted in the charter of his son, and therefore forms no part of the Magna Charta of our statute- book. JUDICIAL POWER. Said to Justice is said to emanate from the Kins;. All emanate ..... . , . , . , .. . from the jurisdiction is exercised in his name, and all sub- ordinate magistrates derive their authority from his commission. No action can be raised against him. No one can summon him to appear in a court of justice. Every breach of the peace is a transgres- sion against the King. He alone can prosecute criminals ; and when sentence is passed upon them, he alone can remit the punishment awarded to their guilt. No person can pursue his rights in a court of law without the King's writ ; and no one must presume of his own authority to exact ven- geance from those who have wronged him. These prerogatives follow naturally from the at- tributes ascribed to the King in his ideal capacity ; but though necessary consequences of that theory, it was some time before the finesse and subtilty of lawyers were able to transfer to the real King all the rights and privileges with which they had in- vested him in his ideal character (R). Among the ancient Germans, from whom our Anglo-Saxon forefathers were descended, there were 1 Foedera, i. 132. JUDICIAL POWER. 89 courts of justice before there were Kings. Capital Judicial offences were tried in assemblies of the whole na- among the tion. Inferior causes were decided in the places Germans, where the contention arose. In every district there was a court of justice, consisting of a chief or pre- sident, assisted by all the freemen of the district, or by a certain number selected for the purpose 1 . The freemen decided on the merits of the case brought before them : the chief maintained order, assisted the freemen in their deliberations, and after collecting their opinions, pronounced sentence and saw it carried into execution 2 . There seems to have been no appeal from these tribunals. Every court was supreme as far as its competence went 3 . After the conquests of the Barbarians and the changes establishment of royalty among them, considerable changes were introduced in their judiciary system. The King became president of the general assembly of the nation ; and when the dispersion of the people over an extensive territory made it inconvenient to collect the whole body of freemen in the same place, ordinary business came gradually to be transacted in a select council of chiefs, of which he was the head. A gradation of tribunals was also established with different degrees of competence ; and, in imi- tation of the Roman law, appeals were introduced 1 Tacitus de Mor. Germ. 12. 2 Savigny, 1. 171, 179, 198-206, 236-238. Mayer, Instit. Judic. i. 381-395. Theorie des Lois polit. en France, viii. 77-83. Preuves, 25. Bouquet, Droit public de France, 135-165. 3 Montesquieu, Esp. des Lois, 1. 28. ch. 28. The remarks of Montesquieu apply to the administration of justice in France under the second race, but they are equally true of anterior times. 90 ON THE ROYAL PREROGATIVE. to the King's court from the inferior judicato- ries (S). The delegation of authority for particular pur- poses was a notion familiar to the ancient Ger- mans. Matters of small importance were settled by their chiefs. Affairs of greater magnitude were discussed among the chiefs, and then submitted for decision to the people 1 . When the Salic Franks determined to reduce their ancient customs to writing, they selected four of their rulers to collect, digest, and promulgate them 2 . The earliest laws of the Anglo-Saxons appear to have been a selec- tion of precedents or decisions of their courts of law, revised, confirmed, and committed to writing by the chiefs or elders of the people, in the presence and with the assistance of the King 3 . Every chief among the Germans had a hundred companions or assessors, to assist him with their advice, and sup- port him by their authority in the distribution of justice within his district 4 . When it was found inconvenient to assemble on every trifling occasion all the freemen of the district for the adjustment of differences and administration of justice in their local courts, a plan was adopted by the Franks of nominating a select number of persons, called Sca- bini, who were bound to attend for the others, without however depriving them of their rights, or preventing them from resuming at pleasure their 1 Tacit, de Mor. Germ. 11. 2 Pact. Leg. Salic. Antiq. Prolog. 9 Prologues to the Laws of Hlothhsere and Eadric, Wihtraecl, Ine, and Alfred. 4 Tacitus de Mor. Germ. 12. JUDICIAL POWER. 91 judicial functions 1 . A similar institution, though little noticed by historians, is to be found among the Anglo-Saxons. In every burh and hundred, a certain number of witan were appointed, who were to witness every transaction, and were thereby qualified to judge and decide in every question of property that arose within their district 2 . Accustomed as the Germanic nations were to the delegation of authority, it is not extraordinary that, when spread over an extensive territory, they intrusted or resigned to a few the power, which had been formerly exercised by the whole body of the people. They were improvident enough to be- lieve, that the authority they gave they could re- sume at pleasure. They had not yet learned from experience how easily delegated power, granted for a temporary purpose, slides imperceptibly into per- petual, irrevocable, and unlimited dominion. Soon after the Anglo-Saxons were established in Judicial England they substituted permanent Kings for the Tmong the temporary leaders that had formerly conducted their armies. The Kings thus appointed appear at a very early period to have had a court or council, in which they presided, for administering justice 1 Savigny, i. 172, 217-231. 2 The fullest account of these elected witnesses is to be found in the Supplement to the laws of Edgar, Anc. LL. and Inst. pp. 116, 117. They are also mentioned in LL. Edw. 5, and fre- quently alluded to in other places, particularly in the laws of ^Ethelstan. The connexion between the qualifications required by the Germanic nations for a witness, and those demanded by their laws to enable a freeman to sit and vote in a court of jus- tice, has been pointed out by Savigny (i. 228, 240), and illus- trated from the Capitularies. 92 ON THE ROYAL PREROGATIVE. and ratifying civil transactions between their sub- jects 1 . Penalties were assigned to them as pro- tectors of the peace and guardians of the laws. The tribunal of the King was the supreme court of judicature, but no one could apply to it for redress till he had been refused justice at home in the hun- dred and shire to which he belonged 2 . The chiefs, who continued to preside in the inferior tribunals, were styled the King's ealdormen, gerefan, and thegns, and in the contemplation of law, they were held to derive their jurisdiction from him. They still, however, retained some vestiges of their an- cient independence. They required no writ from the King for their proceedings 3 . When any affair within the competence of their court was brought before them, they cited the parties to appear, and took cognizance of the case, as they would have done before royalty was established. Kings as- When an application was made to the King for person in redress, he either presided in his own court at the strlSon'of" trial 4 , or sent his signet to some other tribunal 5 , justice. w - t k Directions to hear and decide the cause. It was not till long after the Conquest that the Kings of England ceased, occasionally at least, to attend and take part in the proceedings of their courts of law. In the time of Henry II. the King used to assist in the administration of justice both in the curia regis and in the exchequer 6 . Henry III. is 1 LL. Hloth. et Eadr. 7,16. Heming, Text. Roffens., see passim. 2 LL. Atheist, i. 3. Edg. ii. 2. Cnut, sec. 17. Will. Conq. 43. Hen. I. xxxiv. 6. ' Hickes, Diss. Epist. 2, 8, 48. 4 Ib. 1 14. * Ib. 5, 43. 6 Dialog, de Scacc. 1. i. c. 4. JUDICIAL POWER. 93 mentioned as having repeatedly sat in Westminster Hall with his judges ; and, on one occasion, when a verdict had been given against him, and the opposite party demanded judgment, he withdrew his suit in open court 1 . We are told that Edward IV. sat in the King's Bench for three days together, in order to see how his laws were executed ; but it is not said that he interfered with the proceedings of the court 2 . It is reported of James I. that he also sat there in person, but that he was told by his judges he could not deliver an opinion 3 . It is now an undisputed principle, that, though the King should be present in a court of justice, he is not empowered to determine any cause or motion but by the mouth of his judges, to whom he has com- mitted his whole judicial authority. It is a remarkable fact, that the same reign, which, ****, 7 could be for the last time, exhibited a Kins; of England inter- sued in the . , . . ,. , . . , .. c courts of posing in his own person in the administration of justice justice, should also be the last, during which he could be sued like a subject in the courts of law. When he ceased to be amenable, like other magis- trates, to civil process in the ordinary course of law, he ceased to exercise in person his judicial functions. The ideal King has continued to be the source of justice ; but since the reign of Henry III. his visible representative on earth has been unable to disturb the fountain or to divert the stream from its proper channel, except through the agency of his judges. 1 Madox, Exchequer, ch. 3. 6; ch. 20. $ 6. 2 Stow's Chronicle, p. 416. Edition of 1631. 3 Blackstone, iii. 41. 94 ON THE ROYAL PREROGATIVE. The ideal King of the law has no superior ; he is amenable to no tribunal, and responsible to none but God for his actions. If these attributes had been conveyed entire and without qualification to the real King, he must have been absolute master of the lives and properties of his subjects. But, though stated in law-books to be rights inherent in royalty, they are, in practice, subject to limitations and abatements that render them, if not completely but cannot innoxious, at least comparatively harmless. The King of England cannot be sued in a court of law ; but if any one has a demand upon him in point of property, the plaintiff has only to petition him for redress in his Courts of Chancery or Exchequer, and on having the attorney-general's fiat, which ought to be given of course, he will have justice administered to him with as much certainty and despatch as if he had brought an action against a subject. The plaintiff indeed will be told, that he receives justice from the King as a matter of grace and not on compulsion, and he must pray for it / and accept it on these terms 1 . But while the fa- vour he receives is one that cannot be withheld from him, it is to all essential purposes a right ; and the mode of obtaining it can be considered as nothing more than an unmeaning compliment to the legal fiction it disregards and eludes. Conciu- The rule that the King of England cannot be sions from this fact, sued in a court of law, is founded on his sovereign and transcendent, that is, on his ideal attributes. No suit, say the lawyers, can be brought against him, because no court can have jurisdiction over 1 Blackstone, i. 243 ; iii. 255. JUDICIAL POWER. 95 him. " Who," exclaims Finch, in a burst of loyalty, " shall command the King 1 ?" If this reasoning be just, and it seems unanswerable if it be the want of a coercive jurisdiction over the King that makes it impossible for any suit or action to be brought against him ; it follows, that while he was liable to actions like a common person, there must have been some authority in the state, that possessed, or was supposed to possess a legal control over his conduct. It cannot be supposed, that, while the law permitted him to be sued, it held that judg- ment, if given against him, must remain without effect, unless it was his will and pleasure to submit to the decision of his judges. Accordingly we find, that, in early times, there was a vague notion, even among lawyers, of some legal and constitutional power in the state that had authority to command even the King. Something was still wanting in the theory of our constitution. To reconcile the absolute sovereignty of the ideal King with the limited authority of his representative on earth, it was necessary to exempt the real King from direct control, but to render it impossible for him to exe- cute any of his royal functions without responsible ministers and advisers. By this device the theory of our government was made coherent and com- plete without danger to the public or injury to the subject. Before the reign of Edward I. the King of Eng- Proof of it. land might have been sued as a common person 2 . In the Year Books of the time of Edward III., it is stated more than once by the judges, that in former 1 Blackstone, i. 242. 2 Comyns' Digest. Action, c. 1. 96 ON THE ROYAL PREROGATIVE. times the King might be sued like one of the peo- ple, and that the practice of applying to him by petition was introduced by an ordinance of Edward I. (T). It is true that Staundforde 1 , who wrote on the prerogative in the reign of Elizabeth, doubts whether a subject could ever have maintained such an action against the King ; because Bracton 2 , who lived in the time of Henry III., states there is no remedy by assize against the King, who has no superior but God ; and he might have added an- other passage from the same author 3 , where it is expressly said that a writ does not run against the King. But, with submission to Bracton, his au- thority as a writer of institutes is not to be placed in comparison with the testimony of judges on the bench, one of whom asserts without contradiction, that he has seen a writ beginning with these words : Prsecipe Henry regi Anglise. Bracton was deeply impregnated with the doc- trines of the civil law, and has made frequent at- tempts to transfuse its language and spirit into the law of England. There are passages in his book that place the King above control. There are others where he vainly endeavours to reconcile with the maxims of the imperial law the limited monarchy before his eyes. In the very passage quoted by Staundforde, after laying it down as a principle that the King has no superior but God, that there is no remedy against him by assize, nor in any other way but by petition ; and that if he refuses to correct the wrong he has done, he must be left to the judg- 1 Exposition of the King's Prerogative, c. 15. f. 42. L. iv. c. 10. f. 171 b. 3 Ib. LL. c. 8. 5. f. 5 b. JUDICIAL POWER. 97 ment of heaven ; we find, at the conclusion of the paragraph, this qualifying sentence, unless any one should maintain, that the body of his kingdom and his baronage may and ought to do this in his own court 1 . In another part of his book, Bracton 2 still more explicitly asserts, that the King has not only a su- perior in the law, which makes him King, but in his court composed of his earls and barons, who have a right to put a bridle in his mouth, should he be without bridle, that is, without law. However harsh it may sound to modern ears, the same language is repeated in Fleta 3 . The King, says the author of that treatise, has in the govern- ment of his people a superior in the law which made him King, and a superior in his court, that is to say, in his earls and barons. From these passages in Bracton and Fleta it Opinion seems at that time to have been a doctrine admitted thatttiere even by lawyers, that in matters of justice the King was bound, like other feudal lords, by the decisions of his court, and that even in matters of adminis- 1 Nisi sit qui dicat, quod universitas regni et baronagium suuna hoc facere debeat et possit in curia ipsius regis. 2 L. ii. c. 16. 3. f. 34. Rex autem habet superiorem, Deum scilicet. Item legem, per quam factus est rex. Item curiam suam, videlicet comites, barones, quia comites dicuntur quasi socii regis, et qui habet socium, habet magistrum, et ideo si rex fuerit sine frseno, id est, sine lege, debent ei frsenum ponere. No wonder that Selden (Works, iii. 1048, 1821) was shy of quoting these words, considering the times in which he wrote. No one can doubt of tf the special reason " that moved him to send his readers to Bracton and to the other authorities he cites rather than repeat their words or give their meaning. 3 L. i. c. 17. 9. In populo regendo superiores habet, &e. H 98 ON THE ROYAL PREROGATIVE. tration he was liable to the same control. That such was also the popular belief appears from the account given by Matthew Paris 1 of the festivities on occasion of the marriage of Henry III. with Eleanor of Provence. Enumerating the persons who figured in that ceremony, he tells us that the Earl of Chester walked in the procession with the sword of St. Edward in his hand, in token of his right, as Comes Palatii, to restrain the King, should he fall into any errors in his government. s l afnmay ^he a PP aren t anomaly of one invested with sove- ^ sued in re ign authority being liable to have an action courts. brought against him in his own courts, was not confined to England. The King of Spain could be sued by any of his subjects in his courts of law, though it was a fundamental principle in the Spanish as in the English monarchy, that all juris- diction, civil and criminal, flows from the King, and that all inferior magistrates derive their autho- rity solely from him 2 . Nor was this an antiquated or empty privilege. It was frequently exercised in 1 In 1236, p. 421. edit, of 1640. 12 Marina. Ensayo historico critico, 47. 53. By the funda- mental principles, says this author, of the Visigoth Monarchy, the Kings were " unicos senores, jueces natos de todas las causas, a quienes solamente corapetiala suprema autoridad y jurisdiccion civil y criminal, y de ellos se derivaba como de fuente original a todos los magistrados y ministros subalternos del Regno." Not- withstanding these high-sounding prerogatives, the Kings of Spain, as he informs us, " estan a derecho con todos sus vasallos y todos los pueden pedir in todos sus tribunales por justicia lo que por ella pretenden pertenecerlos asi piden muchos al rey." This work of Marina was written under Charles IV. as a preface to the new edition of the Parti das published by authority of go- vernment, and was printed in 1808. JUDICIAL POWER. that country, and, if not still in ford not many years ago. In Spain, as in other king- doms of Europe, the government was in theory borrowed from the civil law ; but in practice, it was qualified and tempered by the usages and princi- ples of nations that never owned subjection to im- perial Rome. In all crimes and misdemeanors affecting the life Criminal or security of the subject, the King of England is dence." considered in law as the injured party, and is there- fore invested with the exclusive right of prosecuting the offender l : that is to say, the prosecution is instituted at the instance of the King ; and, if it be thought necessary or advisable, the person who has actually suffered the injury is brought forward as a witness on the trial. But that this was not the view anciently taken of our criminal jurisprudence is apparent from the existence of prosecutions by appeal, at the instance of private parties, known from the earliest times, and, though little practised of late, not abolished by law till a very recent period. An appeal in this sense of the word has been de- Prosecu- fined by Blackstone 2 , " an accusation of one private appeal/ " subject against another, demanding punishment " on account of the particular injury suffered, ra- " ther than for the, offence against the public." But, with deference to so great a lawyer, this defi- nition does not convey a perfectly just or complete notion of an appeal. It was the object of that pro- ceeding to combine with satisfaction to the private party, reparation to the public for the offence. In 1 Blackstone, i. 268 ; iv. 127. 176. 2 Ibid. iv. 308. H 2 100 ON THE ROYAL PREROGATIVE. another passage l the same learned judge has more correctly described an appeal as " a private process 11 for the punishment of public crimes ;" and an- other writer 2 has defined it "the party's private " action, seeking revenge for the injury done to " him, and at the same time prosecuting for the " crown, in respect of the offence done against the " public." Nothing more, indeed, is necessary to show that an appeal was an action carried on for the public as well as for the private party, than the fact, that when the appeal was tried, justice was satisfied. If the person appealed was put on his trial and acquitted, the plea of autrefoits acquit was a bar to any further criminal proceeding on the part of the public. An appeal was commenced by bill or by original writ from chancery, which the officers of the crown could not refuse to any one qualified by law to prosecute. It charged the offender with having wickedly, feloniously, and against the King's peace, committed the crime imputed to him ; and if found guilty, he suffered the same punishment as if he had been convicted in the ordinary course of law. In two respects an appeal differed from other cri- minal prosecutions. If a man was appealed by a private person and acquitted, he could not after- wards be indicted by the crown for the same of- fence ; but if tried by indictment and acquitted, or if tried and found guilty and afterwards pardoned by the King, he might still be appealed by the in- jured party, and tried a second time on the same charge. It was another peculiarity of appeals, that 1 Blackstone, iv. 313. 2 Bacon's Abridg. Appeal. JUDICIAL POWER. im if the person accused was found guilty, he could not receive a pardon from the King l . It was held, that in trials by indictment the King had a right to pardon, because in the eye of the law he was the injured person ; but that in prosecutions by appeal, he had no right to remit the punishment awarded to the culprit, because in trials by appeal it was the party who had been actually injured that de- manded satisfaction for the wrong he had suffered 2 . Prosecutions by appeal are derived from the most remote antiquity. Till the establishment of civil government, every man is the protector of his rights and the avenger of his wrongs. If he receives an injury or insult, he looks to his own exertions for redress, and assisted by his kindred and allies, to whom he renders a similar service in return, he seeks for vengeance or satisfaction. Among the Criminal ancient Germans, if any one was wronged, it was the duty of his relations and friends to resent his in- jury and take part in his quarrel 3 . His adversary Gei ans. was in the same predicament. However question- able his conduct, he found kinsmen and associates to maintain his cause. The redress which the one party demanded, the other thought it pusillani- mous to grant. Violence was resorted to ; reta- liation followed ; and a civil or rather domestic war 1 Staundforde, Pleas of the Crown, 104. 2 Blackstone, i. 269; iv. 311. 391. * Suscipere tarn inimicitias sui patris, sui propinqui, quam ami- citias necesse est. (Tacit, de Mor. Germ. 21.) By the laws of the Anglii and Werini (Tit. 6. 5.) he who was heir to the landed property of another, inherited with it his coat of mail, the duty to avenge his injuries, and the right to receive the legal composition for his death. 102 ON THE ROYAL PREROGATIVE. ensued, which disturbed the peace of the state, broke its union, and exhausted its strength. To extinguish these feuds, appeals to a common um- pire were devised. Courts were established and magistrates appointed to settle the claims and ad- just the differences of the hostile factions. A com- pensation was awarded to the injured party for the loss or injury he had sustained, on the payment of which the offender was relieved from his enmity, and peace for a time restored to the community. Such was the first origin of criminal jurisdiction. Its object was to compose quarrels that would otherwise have been interminable. The complain- ing party brought his accusation or appeal before the court of the district. The freemen, who were present, heard and decided the cause under the direction of the magistrate or judge. The latter pronounced sentence, and saw it carried into exe- cution. Pecuniary It is probable that compensations for injuries were originally settled by private agreement between the parties ; and when courts of law were established, that the amount was determined in every particular case by the tribunal that decided the affair 1 . Cus- tom must gradually have introduced some degree of uniformity in these decisions ; and law at length interposed and affixed for every imaginable offence a suitable compensation, which the one party was bound to make and the other to accept as a suffi- 1 A vestige of this ancient usage is to be found in one of the Anglo-Saxon laws of ^Ethelbert (65). If a man had his thigh bone broken and was made lame by the injury, friends or arbiters are directed to interpose and assess the damages. JUDICIAL POWER. 103 cient atonement for the injury. A penalty to the state was annexed, as a remuneration to the ma- gistrate for his protection, and as a forfeit to the community for the violation of its peace by the offender. That the primary object of pecuniary composi- tions for criminal acts was the extinction of feuds, is expressly declared in the laws of Rotharis, King of the Lombards, and clearly evinced by a regula- tion of his successor Liutprand 1 . If a man was slain, who had no sons, but left daughters whom he had instituted his heirs, Liutprand ordained, that, notwithstanding the disposition the father had made of his property, the composition for his death should go to his male relations, because his daugh- ter could not take off the feud 2 . Among the Frisians, who of all the northern Barbarians made the slowest advances in criminal law, the magistrate, in cases of homicide, had no right to interpose his authority between the culprit and the kindred of the person slain, unless it was at the request of the latter; and so late as 1369 he could not proceed against or punish the criminal without their concurrence. The dead body was exhibited to him by the relations, as an evidence of the fact and assertion of their right to satisfac- tion. It was then interred in their presence, and one of them striking the grave with his sword, thrice exclaimed, Vengeance ! vengeance ! vengeance ! The perpetrator or contriver of the deed was by J Leg. Langob. Rotharis, 45. 74. Liutpnmd. L. 2. 7. - Quia filiae ejus non possunt faidam levarc. 104 ON THE ROYAL PREROGATIVE. law left exposed to their feud, unless he could ap- pease their wrath by such atonement as they were willing to accept l . Compensation for bodily injuries and other wrongs not affecting life, was made to the sufferer, or to those in whose tutelage or protection he was placed. If his life was taken away, the composition due for him was divided among his kindred and allies, and part of it was given to his lord. The distribution varied in different countries and at dif- ferent times. It was not, however, entirely gra- tuitous. The person entitled to compensation for the loss of his kinsman or ally, was bound in re- turn to assist his kinsman or ally in the discharge of any penalty he incurred ; and the portion he had to contribute in the latter case was regulated by the share he had to receive in the former. Such, at least, was the rule among the Anglo-Saxons 2 . Crimes As civilization improved, better notions of cri- considered .... , ., ~ . as offences mmal jurisprudence began to prevail. Crimes were st 8 ateT ' considered as offences against the state, and not as mere injuries to individuals. Instead of being con- tent with compensation to the sufferer, it became the chief object of penal law to deter from crime by the dread of punishment. In cases of aggravated guilt or of heinous transgression, pecuniary com- pensations fell into disuse, and the culprit was made to suffer in his person for the crime he had 1 LL. Fris. Tit. 2. 2. with the note annexed to it. Can- ciani, iii. 6. 8 Hen. I. Ixxv. 8, 9. Parentes ejus tantum werae reddant quantum pro ea reciperent, si occideretur reddant parentes ei quantum de ejus interfectione reciperent. JUDICIAL POWER. 105 committed. From the time of Alfred to the reign of Canute, we find a gradual increase in the num- ber of offences, for which no composition in money could be admitted 1 . When the fiction was adopted of an ideal King, as offences as the representative of the state, offences that dis- King* turbed the peace of the community were considered as injuries to the King, and prosecutions for the public were conducted in his name. The ancient but appeals process by appeal, however, maintained its ground, their and continued to be one of the principal instruments ground ' of criminal law. Where it had been before ad- missible, it was still competent for any one, who thought himself aggrieved, to institute a criminal prosecution against his wrongdoer. Appeals were the subject of many statutes, and occupied a large space in every law book. To remedy an inconve- nience arising from the preference given to this mode of trial over indictment, a fundamental prin- ciple of law was violated in its favour. It is a maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence. The plea of autrefoits acquit was therefore a general bar to every criminal prosecution. But by a statute of Henry VII. it was enacted, that a former acquittal on an indict- ment should be no bar to the prosecution of an appeal for homicide 2 . There were anciently appeals for homicide, may- Different hem, wounding, assault and battery, false impri- 1 ^Elfr. 4. Atheist. I. 1. Edm. Sec. 6. Edg. II. 7. ^Ethelr. I. 1, 2, 4. Cn. Sec. 25, 26, 58, 62, 78, &c. 2 3 H. VII. c. 1. Blackstone, iv. 329. Staundforde, P. C. 107. 106 ON THE ROYAL PREROGATIVE. sonment, rape, burglary, arson, robbery, larceny, and other private crimes, and even for treasons and other offences against the public. In the pro- gress of time some of these appeals have been con- verted into civil actions ; others have been abro- gated ; and in the late reign 1 the last relic of this ancient procedure was abolished by act of parlia- ment. The crown has now in fact as well as in theory the exclusive privilege of controlling crimi- nal prosecutions. In appeals the right of pardon, though denied to the King, was enjoyed substantially by the prose- cutor. He might grant a release to his antagonist, which was a bar to further proceedings 2 . This right was founded on the principle, that it is allow- able for any one to renounce the benefit of a law which he has invoked in his own favour 3 . On the same principle one subject might grant to another a general pardon for all manner of trespasses, fe- lonies, robberies, arsons, and homicides committed in his lordship, as far as related to himself; but it does not appear that such letters of pardon were available in indictments on the part of the crown. It was customary also for private parties, who had grounds of complaint against each other, to grant a mutual release discharging all actions, civil or criminal, on either side 4 . Letters of While pecuniary compositions for homicide and security. . . other transgressions were admitted in law, it was usual, after the affair had been compromised, for 1 By statute, 59 Geo. III. c. 46. 2 Staundforde, P. C. 59. 98. 3 Blackstone, iv. 312. * Madox Formulare, No. 702, 703. 705. JUDICIAL POWER. 107 the plaintiff to give a letter of security to the de- fendant against further proceedings of the judicial authorities, as well as against the enmity of himself and his heirs 1 . But this was not a private trans- action, as Dr. Robertson seems to have imagined 2 . The compromise was settled in the public court of the district, and the agreement, as well as the se- curity it recited, was attested by the members of the court. Sometimes the count or graf himself was the person who granted the security, stating that the person, to whom it was given, had paid what the court had awarded 3 . The proceeding in compositions for homicide in Proceeding England is minutely explained in the Anglo-Saxon lotions for laws 4 . The offender was in the first instance to homicide> give assurance to his spokesman, that he was ready to make composition for his guilt, and this assu- rance the spokesman was to convey to the relations of the person slain, who in their turn were to give assurance to the spokesman, that the slayer might approach them in peace and pledge himself for the payment of the weregild. When this was per- formed, and the sureties required by law had been produced, the King's peace was established be- tween the parties, which was done by the kindred on both sides swearing on the sword of the umpire, that the King's peace should not be disturbed. Nothing then remained but to make the stipulated payments in the order and at the periods prescribed by law. 1 Marculf. Form. ii. 18. App. 23. Form. Sirmond. 39. 2 Charles Vth. Introd. Note 23. 3 Form. Bignon. 8. 4 Anc. LL. and Inst. p. 75. Edm. Sec. 7. 108 ON THE ROYAL PREROGATIVE. Royal pre- From the same principle that gave to a subject mercy. the right of discharging an appeal he had brought before a court of justice, the lawyers have derived the prerogative of mercy enjoyed by the crown. As representative of the state, the King may frus- trate by his pardon an indictment prosecuted in his name. In every crime that affects the public he is the injured person in the eye of the law, and may therefore, it is said, pardon an offence which is held to have been committed against himself 1 . Exception Mercy as well as prosecution is now the exclu- of impeach- \ r . merit. sive attribute of the King. But it was long before the right of pardon was vested either absolutely or solely in the crown. In the time of Edward III. and Richard II. various laws were passed that li- mited in felonies the royal prerogative of mercy 2 . Pardons for homicide, granted out of parliament, were declared to be void, unless the homicide had been committed in self-defence or by misfortune. It was only by the insertion of clauses of non o&- stante in charters of pardon that these statutes were evaded 3 ; and when that fraudulent invention was extinguished by the revolution, it became a doubt whether the crown had a right to pardon murder generally. It was decided, however, by the Court of King's Bench, that as the subject may discharge an appeal, so the King may pardon on an indict- ment for murder 4 . 1 Blackstone, i. 268, 269. 2 2 Edw. III. c. 2. 4 Edw. III. c. 13. 10 Edw. III. c. 2. 14 Edw. III. c. 15. 27 Edw. III. c. 2. 13 Ric. II. st. 2. c. 1. 16Ric. II. c. 6. 3 Staundforde, P. C. 102. 4 Blackstone, iv. 401. JUDICIAL POWER. 109 Until the reign of Henry VIII. the right of par- Palatine ju- don, such as it existed by law in England, was not confined to the crown. It extended to Earls Pala- tine and others possessed of what were called royal franchises. Earls Palatine, says Bracton 1 , have regal jurisdiction in all things, saving the supreme dominion of the King. They had the same right as the King to remit and pardon treasons, murders, and felonies, and to remit outlawries within their jurisdiction ; they appointed judges of eyre, assize, and gaol delivery, and justices of the peace; all writs, indictments, and processes were made in their name, to the exclusion of the King's writ and judicial authority; and all offences were said to be committed against the peace of the lord of the franchise as in other places against the peace of the King 2 . In short, they possessed within their fran- chises every judicial authority of the crown, with the exception of those latent prerogatives inherent in the King in his ideal character. They had the same rights, but not the same theory to support them. They exercised the same powers, but had neither the same means to defend them, nor the same pretences to extend them. What they enjoyed they were held in law to have derived from the crown, and in fulness of time they were compelled to render back to the crown what they were sup- posed by the law to have received from its bounty. By the act of Henry VIII. 3 the greater part of the privileges that had belonged to the lords palatine were taken from them and annexed to the crown, 1 L. 3. c. 8. 4. f. 122 b. 2 4 Inst. 205. Blackstone, i. 117. 3 27 H. VIII. c. 24. 1 10 ON THE ROYAL PREROGATIVE. from which, it is said in the preamble to the act, they had been severed by sundry gifts of the King's most noble progenitors, the Kings of this realm. That the palatine jurisdictions regulated or abo- lished by this act had been granted or confirmed by the crown to the ancestors of the persons, who at that time enjoyed them, cannot be denied ; but, that they had been severed from the crown, that there had been a time, when the districts where they were exercised had been administered on the same footing with the other parts of the kingdom, requires more than the assertion of an act of parlia- ment to establish. Several of them existed by pre- scription, and some of them could be traced back to the Conquest. The Earl of Chester was said to hold his earldom by his sword as the King held the realm of England by his crown. He had his barons and his parliament like the King. In Saxon times the great earls of the Mercians, Northumbrians, and East-Angles possessed what was afterwards called palatine jurisdiction within their govern- ments 1 . They owned the supremacy of the King, and occasionally they were made to bend to his power ; but in general they were little troubled with his interference, and were left to administer with regal authority the districts subject to their com- mand. It was not till the Norman conquest that England was truly consolidated into a single mon- archy. The different kingdoms into which it was originally divided, had till then remained in many respects distinct, regulated by different laws, go- verned by separate assemblies, and administered 1 Seldeii's Works, iii. 673. JUDICIAL POWER. Ill by local authorities of their own. The Conquest united them into one whole, with the exception of particular districts, that still retained some remnant of their primitive independence ; and it was not till the act of Henry, that, with the exception of the duchy of Lancaster, these districts were placed under the same judicial system with the kingdom at large. In what manner and by what authority the great Saxon earldoms were conferred, we have no certain information. On some occasions they seem to have been given away by the King ; in other cases, to have been disposed of by the people, and the choice the people had made, to have been subsequently confirmed by the King. In many of them a ten- dency to hereditary succession in the same family is discernible ; but, as in the descent of the crown, so in the succession to these inferior dignities, col- laterals were often preferred to the lineal heir. It is probable, that in England as on the Continent at the same period, there was no settled rule of succession, none at least that was strictly observed in practice. Appeals to courts of justice had been invented Right of , ,, ,. ., private war to supersede the use 01 private war in the prosecu- among the tion of family feuds and adjustment of private salons. quarrels. But, from the weakness of the govern- ment and the turbulence of the people, it was long before that salutary object could be fully attained. The Saxon laws endeavoured to regulate and limit, but made no pretensions to abolish the right of private war. Every man, says Alfred 1 , may fight M\i. 42. Hen. I. Ixxxii. 3. 112 ON THE ROYAL PREROGATIVE. for his hlaford without incurring any penalty, if his hlaford be attacked ; and so may a hlaford fight for his man. A man may also fight for his natural- born kinsman, if unjustly attacked, against every one except his hlaford ; for that we do not allow. If any person is slain, says a law attributed to the Confessor 1 , compensation must be made to his kindred, vel guerra eorum portetur, from which comes the English proverb, " Buy the spear from " your side or bear it." Innumerable passages in the Saxon laws admit the legality of the feud. In cases of flagrant or aggravated injury ven- geance was permitted without waiting for slow re- dress from law. If any one slew another openly, he was delivered over to the kindred of the person slain 2 . If a man detected any one with his wife or daughter, or with his sister or mother, within closed doors, or under the same coverlet, he might slay him with impunity 3 . But, though private war in the prosecution of the feud was permitted by the Saxon law, various regulations were made to lessen its frequency and moderate its violence. It was a general rule, that no one, in ordinary cases, could take vengeance into his own hands till he had demanded justice in vain 4 . If he knew where his adversary resided, he was bound to summon him before a court of law 5 . This citation was to be repeated three times in the presence of good witnesses, and notice was to be given to the defendant's lord and to the court where i Conf. 12. * Cn. Sec. 57. JElf. 42. Will. Conq. 35. Hen. I. Ixxxii. 8. 4 In. 9. 5 &\f. 42. JUDICIAL POWER. 1 13 he was summoned to appear 1 . If he continued re- fractory, the prosecutor might then besiege him in his house ; but for seven days the besieging party was prohibited from using violence, unless the be- sieged attempted to break out. At the end of seven days, if the defendant was willing to deliver up himself and his arms, the prosecutor was bound to accept his surrender and to keep him in safe custody for thirty days, giving notice to his friends and relations that it was still in their power to re- deem his life. If the prosecutor had not strength sufficient to invest the house, he was to apply to the ealdorman for aid ; and if the ealdorman refused him assistance, he was to apply to the King, before he could attack the person of his enemy. If a man met accidentally with his adversary before he was informed of the place of his residence, the latter might offer to surrender and give up his arms, and in that case also the prosecutor was bound to de- tain him in safe custody for thirty days and give notice of his situation to his friends ; but if he re- fused to yield, the other might attack him on the spot. If violence was used against any one who offered to surrender, compensation was required from the aggressor for all the consequences that followed 2 . If a man exposed to the feud made his escape into a church that had been consecrated by a Bi- shop, he could not be taken out by force for seven days, if he was able to endure hunger so long ; for no food was to be carried in to him. If he chose to surrender and deliver up his arms, his enemies 1 Hen. I. Ixxxii. 1. * M\i. 42. Hen. I. Ixxxiii. 1, 3. I 114 ON THE ROYAL PREROGATIVE. were bound as usual to keep him in custody for thirty days, and give notice to his relations 1 . It is probable that other rights of asylum, though not specially destined for this use, gave to persons ex- posed to the deadly feud the same protection which they afforded to criminals of a more obnoxious cha- racter and less deserving of commiseration 2 . If any one in prosecution of the feud, or in self- defence, killed another, he was not to aggravate his guilt by the plunder of the person he had slain (U). He was to take nothing that belonged to him, neither his horse, nor his helmet, nor his sword, nor his money. He was to dispose the body decently on the shield the person had worn, if he had one, with his head to the east and his feet to the west, with his lance fixed, his arms around him, and his steed reined. He was then to go to the nearest village, and relate what had hap- pened to the first person he met, in order that an inquisition might be held into the circumstances of the case, with a view to the further proceedings that might be necessary 3 . To facilitate the extinction of feuds, a singular rule was invented. If a number of persons were slain in a fray between two parties, an account was taken of the slaughter. If it was equal on both sides, neither party had a right to claim compen- sation or to exact vengeance ; but if there was any difference, the party that had suffered most was entitled to satisfaction for the amount of the differ- 1 JElf. 5. Hen. I. Ixxxiii. 1. 2 In. 5. ^Elf. 2. Atheist. III. 6 ; IV. 4. Edm. Sec. 2 /Ethelr. VII. 5. 3 Hen. I. Ixxxiii. 4, 6. JUDICIAL POWER. 115 ence. In this computation a twelfhyndman was valued at six ceorls or twyhyndmen, because the weregild of a twelfhyndman was equal to the were- gilds of six ceorls 1 . If any one apprehended a thief, the relations of the culprit were bound to abjure the feud against the captor. The same was required, if a person was slain in attempting to escape from justice, or in circumstances that made him justly liable to suspicion ; but if there was any doubt of his guilt, his relations were entitled to prove his innocence 2 . If any one was accused of a homicide that ex- posed him to the feud, he might offer himself for legal exculpation from the crime with which he was charged 3 . A monk was not liable to the feud for offences committed by his kindred. When he professed, he renounced the obligations as well as the privileges of relationship. A secular priest was not exempt from either 4 . Corresponding attempts were made in other parts On the of Europe to restrain the excesses and diminish the frequency of feuds. If a man was killed uninten- tionally, or by accident, a composition was due to the family for the loss they had sustained, but the person who had caused his death was exempt from the feud 5 . If a man was slain in the commission of theft, his relations had no claim to compensation 1 Anc. LL. and Inst. pp. 75. 80. Hen. I. Ixiv. 2 ; Ixx. 9. 2 Wihtr. 25. In. 20, 21. 28. 35. ^Ethelst. I. 11. ^Ethelr. II. 9. Conf. 36. Hen. I. Ixiv. 5 ; Ixxiv. 1, 2. 3 In. 46. 54. Cn. Eccles. 5.; Sec. 39. Hen. I. Ixiv. 4 ; Ixvi. 1. 4 ^Ethelr. IX. 25. Cn. Eccl. 5. 5 L. Saxon, t. 12. 1. L. Langobard. Rotharis. 389. I 2 116 ON THE ROYAL PREROGATIVE. for his death, unless they asserted his innocence, and the person who slew him could not establish his guilt 1 . If a man was detected in the night within the close of another, and refusing to sur- render, was killed, no composition was due for him 2 . If persons summoned to the army com- mitted depredations in their way, and any of them were slain on that account, no feud could be main- tained by their kinsmen or their lord 3 . If a man was put to death by order of the King or general, the person who executed the order was not liable to the feud 4 . If a serf slew a man without the knowledge of his master, the latter was bound to give up the serf, but was himself exempt from the feud 5 . To check the extension of feuds in cases of homi- cide, the Burgundian law prohibited the relations of the person slain from taking vengeance on any one but the actual perpetrator of the deed 6 . To afford a man exposed to the feud some secu- rity against the attacks of his enemies, the Saxon 7 law made it a capital offence to kill any man in his own house 8 . Even the Frisic law, which had such respect for the rights of private vengeance, gave protection to those endangered by the feud, at church and at home, in going to and returning from church, and in going to and returning from the public court of the district 9 . The Anglo-Saxon 1 L. Angl. et Werin. t. 7. 4. 2 L. Langob. Rotharis. 32. 3 L. Langob. Carol. M. 34. 4 L. Bajuv. t. 2. c. 8. 1. Capitul. 1. 5. 367. 6 L. Saxon, t. 2. 5. 6 L. Burgund. t. 2. 3. 7 That is, the continental Saxon law. ED. s L. Saxon, t. 3. 4. L. Fris. Addit. t. 1. 1. JUDICIAL POWER. 117 law, in like manner, gave assurance of safety in courts of justice, and to all persons going to or re- turning from them l . The Bavarian law went still further, and proclaimed a general peace throughout the province while the courts of justice held their stated meetings 2 . To prevent the revival of feuds after composi- tions had been made, it was declared by the Lom- bards that if any one slew a man, from whom he had accepted legal compensation, he should pay back twice the amount of what he had received 3 . To accomplish the entire extinction of feuds was the object of many regulations of Charlemagne and his successors. When any one was slain, the Count, in whose district it happened, was directed to compel the offender to pay, and the other party to receive the composition established by law ; and till this was effected, he was enjoined to bind them by sureties to keep the peace. If they were refrac- tory, the Count had instructions to send them before the Emperor ; and if any one, after peace had been made, slew his adversary, he was deprived of the hand that committed the deed, and in addition to the legal composition for the slaughter, he incurred a penalty for his disobedience 4 . It is needless to add, that the speedy decline and downfall of the Carlovingian monarchy rendered these provisions ineffectual. In spite of the united > Atheist. I. 20. Cn. Sec. 83. 2 L. Bajuv. t. 2. c. 15. 1. 3 L. Langob. Rotharis. 74. 143. 4 Capital. 1. 3. 4 ; 1. 4. 27 ; 1. 5. 205. 247 ; 1. 6. 271 ; L. Langob. Carol. M. 19, 20. Ludov. P. 21. 118 ON THE ROYAL PREROGATIVE. efforts of law and religion, private war continued to be the scourge of Europe for many centuries. The devices of churchmen and enactments of princes to put it down, have been collected with diligence and enumerated with care by Dr. Robert- son 1 . Though slow in their operation and often frustrated by the pride and passions of individuals, they were at length crowned with success. Private war has disappeared, and the only vestige of it that remains is the practice of duelling, which is every where prohibited by law, and every where tolerated and connived at. Relaxation While the Anglo-Saxons were advancing with of kindred, the other nations of Europe towards the feudal system, the bonds of relationship were gradually relaxed. As early as the reign of Alfred, if not sooner, the artificialtie, that connected a man with his hlaford, was esteemed of a higher and more sacred character than the duties he owed to his kindred 2 . In several laws of the same period we find particular cases stated, where the relations of a culprit were exempted from the obligation of making compensation for his misdeeds or of be- coming sureties for his conduct 3 . A law was at length passed in the time of Edmund, that if a man committed homicide, he alone should bear the feud, unless his kinsmen by their subsequent con- duct made themselves answerable for his transgres- sion. They were at liberty to assist him in com- pounding for the offence ; but if they refused they were not liable to the feud, unless they gave him 1 Charles V. Introduction, note 21. 2 ^Elfr. 42. 3 Edw. 9. Jud. Civ. Lundon. xii. 2. JUDICIAL POWER. 119 food or protection ; and if one of the adverse faction took vengeance on any person, except the perpe- trator of the crime, or one who harboured him, he was declared an enemy of the King and of all the King's friends l . From one of the laws published in the name of Henry I. 2 , it appears that among the Anglo-Saxons, as among the Franks, a man might abjure the ties of kindred ; and in that case while he withdrew from the obligations, he re- nounced all the advantages of that connexion. If any of his relations died, he had no part in the in- heritance ; and if any of them was slain, he had no share in the composition paid for the slaughter. When he died, his inheritance went to his children, and failing them to his lord ; and if he was slain, the composition for his death was disposed of in like manner. By the Salic law, as amended by Charlemagne, the composition and inheritance of a man who had renounced his kindred went to the fisc, that is, to the state 3 . Among the Scandinavians the primitive obliga- tions of kindred continued in force to a much later period than in England. Till the time of Magnus Lagabaeter 4 , who flourished in the 13th century, a person guilty of homicide had a right to call on his relations, though no parties to the crime, to contri- bute their share towards the discharge of the pe- nalty he had incurred. By a constitution of Magnus Lagabseter 5 , this right was abolished, and the cri- 1 Edm. Sec. 1. * Hen. I. Ixxxviii. 13. 3 L. Salic. Ref. t. 63. 3. 4 King of Norway from 1263 to 1280. ED. 5 Gula-things Laug. Preface, 16. The Gula-things laug was 120 ON THE ROYAL PREROGATIVE. minal made to pay from his own effects the whole of the penalty due for his transgression. A similar law existed anciently among the Franks, If a man committed homicide and had not where- withal to pay the legal composition for his offence, he was enabled, by a process called chrenecruda, to compel his kinsman to discharge the debt. This law was abrogated in the sixth century by a decree of Childebert l , in which it is termed a pernicious device, invented in times of heathenism ; but, not- withstanding this repeal, it seems to have been in operation as late as the age of Charlemagne. In the Salic law promulgated by that monarch 2 , it is repeated in nearly the same words as in the ancient code compiled before the introduction of Chris- tianity. It was, however, in the power of any man to relieve himself from this obligation by a solemn renunciation of his kindred in the courts of law 3 . Relation of The relaxation of the bonds of kindred had little - or no effect in abolishing feuds and private wars. The relation of lord and vassal succeeded to the private war. connexions of kindred with nearly the same duties and obligations on both sides. From Glanvile 4 it appears, that in the reign of Henry II., when the compiled by Magnus, son of Hakon, with advice of the best men of his kingdom. It was read and adopted by the members of the Gula- thing in 1274, and afterwards extended over the whole of Norway with consent of the things or legislative as- semblies of the different provinces. 1 Baluz (i. 17.) ascribes this decree to Childebert II., who reigned from 575 to 596. Dom Bouquet (iv. iii.) refers it to Childebert I., son of Clovis, who was King from 51 1 to 558. 9 Pact. Leg. Sal. Ant. t. 61. Reform, t. 61. s Pact. Leg. Sal. Ant. t. 63. Reform, t. 63. * Glanvile, lib. 9. c. I, JUDICIAL POWER. 121 royal authority in England was still maintained at the height to which it had been raised by the Con- quest, the vassals or tenants of a lord were bound to assist him in his private wars. If a man was tenant of more lords than one, he was required to serve in person with his chief lord, and to perform by deputy the service due by his tenure to the others. But, though entitled to the personal ser- vice of his tenant in the field, it was doubtful whe- ther the lord could exact from him an aid for carry- ing on his wars, as he might do for knighting his eldest son or marrying his eldest daughter 1 . The law appears to have continued the same in the time of Bracton. If a tenant had several lords, and quarrels arose among them, he was required to stand by his chief lord in person, and to discharge his services to the others by attorney. Fleta tran- scribing, as the author of that work usually does, from Bracton, lays down the same rule in nearly the same words. In Britton there is no mention of private war 2 . The practice was going into disuse, and in less than half a century it was adjudged to be illegal. A variety of reasons may be assigned for a change in its consequences so beneficial to the kingdom. The regular distribution of justice in the courts of eyre and assize must have tended to banish this irregular mode of obtaining justice for private wrongs ; appeals were open to prose- cutors for the redress of their personal injuries ; and though the continual complaints of disseisins 1 Glanvile, lib. 9. c. 8, 2 Bracton, 1. 2. c. 35. 5. f. 79. b. Fleta, 1. 3. c. 16. 16. Britton, ch. 68. 122 ON THE ROYAL PREROGATIVE. and redisseisins show, that recourse was still had to violence for the recovery of actual or pretended rights, the severe penalties against acts of ven- geance and illegal distresses must have had the effect to restrain, if not entirely to extinguish them 1 . In the reign of Edward III. private war was deemed an accroaching of royal power 2 ; and by the statute of treasons, the exercise of that ancient right, though it ceased to be treason, was declared to be either felony or trespass as the case might be 3 . Private war ft is true, there are few memorials of private war in England J after the on ^n extensive scale in England after the Con- quest, except in times of turbulence and civil com- motion. Madox 4 however has published a singular document, containing a formal truce or cessation of hostilities for sixteen days between the Earl Mareschal and the Earl of Gloucester, during which Sir Roger de Clifford was to repair to the Earl of Gloucester at Cirencester, for the purpose of con- cluding a treaty of peace between those potent earls ; and from any thing that appears on the face of the instrument the transaction seems to have been legal and usual. In the reign of Edward I. the Earls of Gloucester and Hereford, after committing sundry acts of violence against each other, applied to the King for justice, and were in consequence inhibited by the King in parliament from further hostilities. Notwithstanding the prohibition, they 1 See particularly the statute of Merleberge, 52 H. III. c. 1. 2 Hale, P. C. i. 80. 25 E. III. st. 5. c. 2. 13. 4 Madox, Formulare, No. 155. Madox conjectures, that the Roger de Clifford mentioned in this deed was the same Roger de Clifford, who lived in the time of John and Henry III. The last Mareschal, Earl of Pembroke, died in 30 H. III. JUDICIAL POWER. invaded each other's lands with banners slew divers persons and carried off much booty. For this contempt they were fined and imprisoned 1 . But from tbe warfare they had previously carried on with impunity, it does not appear, that their conduct on this occasion would have been punished, if they had not disobeyed the royal commands solemnly announced to them from parliament. The last instance of a pitched battle between two powerful noblemen in England occurs in the reign of Edward IV. It was fought at Nibley Green in Gloucestershire, on the 10th of August, 1470, be- tween William Lord Berkeley and Thomas Viscount Lisle. Lord Berkeley is said to have brought a thousand men into the field. Lord Lisle and a hundred and fifty men were slain in the action. After the battle was gained, Lord Berkeley pro- ceeded to Lord Lisle's house at Wootton and ran- sacked it as a place taken in lawful war. The cause of the quarrel was a lawsuit about the succession to the Berkeley estates. Lord Lisle had challenged his competitor to decide the question of right by single combat, or else to bring with him into the field the utmost of his power ; to which Lord Berkeley replied, that no such determination of the right to land was used in England, but that he 1 Rot. Parl. i. 70. 77. The Earl of Gloucester implicated in this transaction was the same Gilbert de Clare, who in the pre- ceding reign had assisted Prince Edward in his escape from the Earl of Leicester, and who had contributed powerfully to the success of the royal cause at the battle of Evesham. He had married a daughter of the King subsequently to the commence- ment of his private hostilities with the Earl of Hereford, and had by her a son, who was killed at the battle of Bannockburn. 124 ON THE ROYAL PREROGATIVE. would meet Lord Lisle with his friends and fol- lowers at the time and place appointed. The law- suit that gave occasion to this battle lasted a hun- dred and ninety-two years, and in the course of it Berkeley castle was once taken by surprise and its inmates thrown into prison, and was frequently besieged and defended with effusion of blood. There seems to have been nothing of a political character in this conflict, as both parties were ad- herents of Edward IV. Neither side was called to account for their proceedings by the government. The widow of Lord Lisle raised an appeal against Lord Berkeley and his brothers for the death of her husband. But the affair was compromised without trial. She accepted a hundred pounds a year in satisfaction for her loss, and renounced her claim to the lands in dispute ; and this agreement was ratified in parliament, without any allusion to the battle at Nibley Green or to the death of Lord Lisle 1 . KING SAID TO BE THE FOUNTAIN OF HONOUR. The King is held in law to be the fountain of honour as well as of justice, and he possesses in fact the sole power of dispensing honours and dig- nities 2 . This prerogative, like others, he shared for many ages with his subjects. In times of chi- valry knighthood was the great personal distinction 1 Dugdale's Baronage, i. 362. 365. Atkyn's Gloucestershire, 138. Ruder's Gloucestershire, 574. Rymer's Foedera, xi. 655. Rot. Parl. 12 and 13 E. IV. No. 23. 2 Blackstone, i. 171. TENURE OF LANDED PROPERTY. 125 between one man and another. It was the rank most highly esteemed and most eagerly sought after. To have obtained it was a proof of valour and mark of desert. But this honour, thus coveted by all, it was in the power of any private person, who was himself a knight, to bestow. It was not till a period comparatively modern, that the right to confer the honour of knighthood was vested ex- clusively in the crown. TENURE OF LANDED PROPERTY. The fiction of law, that the King is the ultimate AH landed !! i property in proprietor of all the lands in his kingdom, has its England origin, like his other transcendent prerogatives, in e the attributes ascribed to him in his ideal capacity. It is a fundamental maxim and necessarv principle bounty of v J the King, of English tenures, " that the King is the universal " lord and original proprietor of all the lands in " his kingdom, and that no man doth or can pos- " sess any part of it, but what has mediately or " immediately been derived as a gift from him." But in justice to modern lawyers it must be re- ame re marked, that in laying down this proposition, which f a c ^ lon of supposes that every landed proprietor owed his lands at one time or other to the bounty of the crown, they consider it as a mere fiction of law, which has no foundation in reality or truth 1 . No one will now-a-days tell us with gravity, like Madox, that "King William I. was seised of the whole "kingdom of England in demesne; that he re- " tained part of it in his own seisine ; and other 1 Blackstone, ii. 51. 126 ON THE ROYAL PREROGATIVE. " part thereof he granted and transferred to others 1 ." If it were necessary to refute an assertion so utterly destitute of truth and probability, it might be asked, how came Duke William by his victory over Ha- rold to acquire the whole land of England in his own seisine ? Did he not bind himself by his coro- nation oath to maintain his subjects in their rights, and govern them by their ancient laws, and was that obligation compatible with the universal con- fiscation of their estates ? Are there not reports of judicial proceedings in his reign, which show that claims to property in land were tried and de- cided by charters and title deeds derived from the Saxons? Are there not innumerable proofs in Domesday, that lands were held under the Con- queror by the same proprietors who had enjoyed them under the Confessor ; and what evidence is there, that in the mean while they had passed into the temporary occupation of the crown? But, suppose the conquest of William to have been as complete as the most extravagant of our preroga- tive writers have ever imagined ; suppose the na- tive English, when they accepted him for their King, to have already forfeited all right to their former possessions ; had he not Norman followers, who claimed their share in the fruits of their com- mon victory ? Were not many of his companions in the enterprise foreign adventurers, unconnected with him by any ties but those which they had voluntarily contracted ? Had not many of them joined in his expedition on the express condition, that, if successful, they should receive their portion 1 Baronia Anglica, b. I. ch. 2. p. 25. TENURE OF LANDED PROPERTY. 127 of the spoil in reward of their services ? Were the lands they acquired in virtue of such a compact to be considered as spontaneous gifts of royal munifi- cence ? Were they so regarded by the followers of the Conqueror? Two centuries afterwards, when Earl Warrenne was called upon by the commis- sioners of Edward I. to produce his titles to the lands he inherited from his ancestors, he unsheathed his sword and produced that as his title, saying, " My ancestors came in with William the Bastard 11 and won these lands by the sword, and by the " sword I will defend them. William did not con- " quer for himself alone, nor was it for such an end " that my ancestors lent him their assistance 1 ." Nor is it more credible that, on the first occupa- Character tion of England by the Saxons, the conquerors menf transferred the territory they subdued to the general Saxons. they had appointed to conduct their army. Of all the Teutonic tribes that in the fifth century esta- blished themselves on the ruins of the empire, the Saxons had been the least improved or corrupted by former intercourse with the Romans, and had there- fore the strongest stamp of the original character of their ancestors. They were the most unlikely, from their previous habits and institutions, to con- fer unnecessary or extravagant gifts on their chief ; or to hasten, like settlers from a civilized state, to parcel out and convert into private property the lands and possessions they had acquired. No people of German origin retained so much of their primi- tive form of government after they quitted their native forests, and none maintained it with equal 1 Rapin, i. 360. Tindal's note. 128 ON THE ROYAL PREROGATIVE. pertinacity and perseverance. Many parts of it resisted the Norman conquest, and there are frag- ments of it in existence at the present day. So late as the eighth century the Saxons on the Continent remained strangers to the government of a chief magistrate with the appellation of King. Every district had its ealdorman and every town- ship its gerefa. When threatened with war, the ealdormen selected a general in chief to command their army. On the return of peace, his authority ceased, and every one reverted to his former con- dition l . With such notions of equality at home, can it be supposed, that, when successful abroad, they gratuitously conferred on the leader they had voluntarily followed, the whole fruits of the victory they had achieved ? Such a sacrifice might have been made to a chief by his immediate companions 2 ; but the expeditions of the Germans for conquest or plunder, though conducted by private warriors, were in some degree national undertakings. They were prepared and discussed in a general assembly of the tribe. None were compelled to enlist in the expedition ; but all who proffered their services were accepted. When once engaged, it was reck- oned infamous for any one to retract. The re- creant was pursued by public indignation and set down as a traitor and deserter, unworthy of credit and unfit to be trusted 3 . It is no less improbable, that bands of adven- turers emerging, like the Saxons, from the interior of Germany, where private property in land was 1 Beda, H. E. 1. 5. c. 10. 2 Tacitus de Mor. Germ. 14. 3 Czesar de Bell. Gall. vi. 23. TENURE OF LANDED PROPERTY. 129 hardly known, should have begun by converting into permanent possessions for individuals, the lands they had acquired by their united efforts. Among the ancient Germans the territory pos- Land be- sessed by the tribe was considered as the property of the community. It was divided into cantons or districts, and these azain were subdivided into ancient . Germans. townships. In every division there was a chief, an assembly of freemen for the regulation of its internal concerns, and a tract of land for the subsistence of its inhabitants. Portions of land were assigned to families and individuals, and after a certain time resumed and distributed to others. In the time of Caesar these allotments were annual. No one was permitted to retain the same spot of ground for more than a year. Agriculture was little regarded, war and hunting were the favourite occupations of the people, and their food consisted chiefly of milk and cheese, and the flesh of animals ! . When Tacitus wrote, the lands of the tribe continued still to be divided among its members by public autho- rity. Every township had an allotment propor- tioned to its population, and this allotment was parcelled out among its inhabitants according to their rank 2 . We are not told whether the grants to individuals were still annual ; but from the pro- gress made in agriculture since the time of Caesar, it is probable that the same lands were occupied by the same persons for a number of years, if not for life. The husbandry of the Germans was still care- less and slovenly, and the cultivation of the ground Caesar de Bell. Gall. iv. 1 ; vi. 22. * Tacitus de Mor. Germ. 26. K 130 ON THE ROYAL PREROGATIVE. was still regarded as an ignoble employment, un- worthy of warriors. But agriculture had become a greater object of interest and attention in the age of Tacitus. Corn was raised in more abundance ; an intoxicating liquor was prepared from it ; serfs paid their rent in corn as well as in cattle ; and granaries were constructed under ground, to con- ceal it from hostile devastations and protect it from the inclemency of winter l . Land that had been cultivated one year was allowed to lie fallow the next 2 ; and, if we may judge from what was after- wards the general practice of Europe, the stubble fields and fallows were open to all the cattle of the village. Commence- If the Germans in the age of Tacitus 3 had any e tepro- pn ~ patrimonial interest in their lands, it was most pro- 1 bably confined to the spots of ground on which they erected their habitations. A German village consisted of separate houses, built at some distance from one another, and irregularly disposed as in- clination or convenience dictated. Every house was surrounded by a vacant space or enclosure, which separated the possession of one man from that of another. The houses, though constructed of rude materials, and deficient in symmetry and convenience, were not destitute of ornament and decoration. They had ceased to be the rude cabins of a migratory people, and were become the resi- dence of men who preferred a fixed dwelling-place to a continual change of habitation. It has been 1 Tacitus de Mor. Germ. 14, 15, 16, 23, 25. 2 Ibid. 26. Arva per annos mutant. 3 De Mor. Germ. $ 16. TENURE OF LANDED PROPERTY. 131 plausibly conjectured, that these houses, with the enclosures attached to them, constituted the first permanent property in land among the Germans ; and from the progress they had made in agriculture since the time of Caesar, it is probable that the an- nual partition of land, described by that author, had ceased, and that individuals continued for a series of years, if not for life, in the occupation of the same lands. The territory of the tribe was still the property of the community. But portions of it had been permanently withdrawn from the common stock, and converted into lands of inhe- ritance ; and what was left, though still distributed as before when vacant, instead of changing its owners every year, remained for a longer period in the possession of the same person. We shall after- wards find, that, with modifications arising from the gradual increase of lands possessed by inheritance, this is no unfaithful picture of the state of landed property among the Anglo-Saxons. The Barbarians, who subverted the Roman em- Partition of pi re on the Continent, had been long enough in habits of intercourse with the Provincials to know the value and estimate the advantages of private establish- r ment in the property in land. Ihe laws of war which at that empire. time prevailed gave them unlimited power over the lives and properties of the vanquished. There is no instance, however, where this right was carried to its full extent. Multitudes were reduced to slavery ; but many retained their personal liberty. The estates of some individuals were subjected to total confisca- tion ; but in general the Provincials were left in pos- session of part of their lands. When the conquerors K2 132 ON THE ROYAL PREROGATIVE. finally settled in the territories they had subdued, the practice, which in most cases they adopted, was to make a partition, with the ancient proprie- tors, of the lands and chattels possessed by the latter. A Barbarian was quartered on a Roman proprietor, and received from him a certain portion of his land, with the serfs and cattle necessary for its cultiva- tion. To soften this act of spoliation, the intruder was styled the guest of his victim, and some obli- gations of amity and protection were probably esta- blished between them. The distribution appears to have been made by lot ; and as the first division was far from having exhausted the whole territory, fresh adventurers, when they arrived, were provided with possessions in a similar manner from lands that had not yet been divided. Such was the system adopted by the Burgundians in Gaul, by the Visigoths in Spain, and by the Ostrogoths in Italy. The Lombards alone, at their first settle- ment in Italy, instead of taking from the Roman proprietor a certain portion of his land, exacted from him a corresponding part of its produce. In what manner the Franks distributed the lands they acquired by the conquest of Gaul, we have no distinct information. The plunder they obtained in the operations of war they divided by lot ; but with respect to land, all we know with certainty is, that the Provincials were not entirely despoiled of their landed property. The existence of Roman proprietors is attested by the Salic law 1 (V). Alodial The lands thus distributed were called alodial. They were transmissible by inheritance, held in > Pact. Leg. Salic. Ant. t. 44. 15. Reform, t. 43. 7. TENURE OF LANDED PROPERTY. 133 absolute property, and exempt from all burthens and services to individuals. They are mentioned under various names in the laws and documents of the Barbarians, and seem to have been the univer- sal and immediate result of their conquest and set- tlement in the empire (W). It is probable that the shares of different persons were not equal ; that the portion assigned to each was regulated, as it had been in the age of Tacitus 1 , by his rank ; that chiefs, who had numerous com- panions or retainers attached to their fortune, re- ceived larger allotments than others ; and that the King or general of the army had the largest por- tion of all : but on this subject we have no positive or certain information. After every warrior, entitled to a separate allot- Lands of ment and desirous of obtaining one, had been pro- public. vided with an estate suitable to his condition, there remained a large portion of unappropriated land, which, according to the ancient notions of the Ger- mans, belonged to the community. This unap- propriated territory was called the land of the fisc or public, and was left, as in Germany, at the dis- posal of the state. Much of it, with mistaken piety, was lavished on the church. Portions of it were, from time to time, detached from the com- mon stock, and converted into alodial property. Part of it was applied to the maintenance of the government and to the splendour or hospitality of the court. Other parts of it were dealt out in tem- porary possessions to individuals, by whom it was held, with some rent or service annexed to it, not 1 De Mor. Germ. 26. Agri quos mox inter se secundum dignationem partiuntur. 134 ON THE ROYAL PREROGATIVE. Beneficiary in property but in usufruct. Grants of this de- scription were called benefices. The King, from his position and authority in the government, had necessarily a principal share in the distribution of this property, and as representative of the state, it was bestowed in his name, and said to be held of him. From the first origin of benefices they seem to have been granted for life ; but they were often unjustly resumed, and they were at all times liable to forfeiture for misconduct. On the death of the possessor they reverted to the fisc ; but from indul- gence or convenience they were frequently conti- nued to his children, and at length they were con- verted into hereditary possessions. When arrived at this stage of their progress, benefices or feuds, as they began to be called, differed from alodial property in no other respect than in the form of their tenure, and in the incidents, services, and burthens to which they were subject. The great alodial proprietors followed the exam- ple of the fisc in granting benefices to their retain- ers, which were in like manner gradually trans- muted into feuds or hereditary possessions, held by tenure of the lord or original proprietor of the estate. The stipulations between the fisc or lord and the tenants who held benefices from them, were at first vague and indeterminate ; but by degrees they be- came more fixed and precise, so that neither party could lawfully exact from the other more than was contained in the compact or agreement entered into between them. The tenants engaged to pay certain rents or perform certain services to their lord ; and the lord in return undertook to protect his tenants TENURE OF LANDED PROPERTY. 135 from their enemies, and to maintain them in the possessions he had conferred upon them. During the ages of anarchy and disorder that Alodial followed the conquests of the Barharians, it was verted into found, that the relation of lord and tenant afforded to the latter greater security for his person and beiiefices - property than he could obtain from the laws or government. To acquire this security with as little sacrifice as possible, the device was invented of alodial proprietors making a surrender of their estates to the crown or to some one able to protect them, on the condition of receiving back their lands as feuds or hereditary benefices, which, though burthened with rent or services, were thereby placed under the safeguard and protection of the lord to whom they had been nominally transferred. In consequence of the extension of this practice, alo- dial property gradually disappeared, and feudal tenures became nearly universal (X). The distribution of landed property in England by the Anglo-Saxons appears to have been regu- land 8 among lated on the same principles that directed their s brethren on the Continent. Part of the lands they acquired was converted into estates of inheritance for individuals ; part remained the property of the public, and was left to the disposal of the state. The former was called b6cland ; the latter I appre- hend to have been that description of landed pro- perty which was known by the name offolcland. Folcland, as the word imports, was the land of Foiciand. the folk or people. It was the property of the com- munity. It might be occupied in common, or pos- sessed in severally ; and, in the latter case, it was 136 ON THE ROYAL PREROGATIVE. probably parcelled out to individuals in the folc- gemdt or court of the district, and the grant sanc- tioned by the freemen who were there present. But, while it continued to be folcland, it could not be alienated in perpetuity ; and therefore, on the expiration of the term for which it had been granted, it reverted to the community, and was again dis- tributed by the same authority '. Bocland was held by book or charter. It was land that had been severed by an act of govern- ment from the folcland, and converted into an estate of perpetual inheritance. It might belong to the church, to the King, or to a subject. It might be alienable and devisable at the will of the pro- prietor. It might be limited in its descent, without any power of alienation in the possessor. It was often granted for a single life or for more lives than one, with remainder in perpetuity to the church. It was forfeited for various delinquencies to the state (Y). Estates in perpetuity were usually created by charter after the introduction of writing, and on that account b6cland and land of inheritance are often used as synonymous expressions. But at an earlier period they were conferred by the delivery of a staff, a spear, an arrow, a drinking horn, the branch of a tree, or a piece of turf; and when the dona- tion was in favour of the church, these symbolical 1 Spelman describes folcland as terra popularis, quae jure com- muni possidetur sine scripto (Gloss. Folcland). In another place he distinguishes it accurately from bocland. Praedia Sax- ones duplici titulo possidebant : Vel scripti authoritate, quod bocland vocabant vel populi testimonio, quod folcland dixere (Ib. Bocland). TENURE OF LANDED PROPERTY. 137 representations of the grant were deposited with solemnity on the altar ; nor was this practice en- tirely laid aside after the introduction of title-deeds. There are instances of it as late as the time of the Conqueror 1 . It is not therefore quite correct to say, that all the lands of the Anglo-Saxons were either folcland or bocland. When land was granted in perpetuity it ceased to be folcland ; but it could not with propriety be termed bocland, unless it was conveyed by a written instrument. Folcland was subject to many burthens and ex- actions from which bocland was exempt. The from many possessors of folcland were bound to assist in the reparation of royal vills and in other public works. They were liable to have travellers and others quartered on them for subsistence. They were re- quired to give hospitality to Kings and great men in their progresses through the country, to furnish them with carriages and relays of horses, and to extend the same assistance to their messengers, followers, and servants, and even to the persons who had charge of their hawks, horses, and hounds. Such at least are the burthens from which lands are liberated, when converted by charter into boc- land. Bocland was liable to none of these exactions. Burthens to T i n i v * which boc- It was released from all services to the public, with land was the exception of contributing to military expedi- 8U Jec tions and to the reparation of castles and bridges. These duties or services were comprised in the phrase of trinoda necessitas, which were said to be incumbent on all persons, so that none could be 1 Hickes, Diss. JEpist. 79-85. 138 ON THE ROYAL PREROGATIVE. Folcland possessed by freemen of all ranks and condi- tions ; excused from them. The church indeed contrived, in some cases, to obtain an exemption from them ; but, in general, its lands, like those of others, were subject to them. Some of the charters, granting to the possessions of the church an exemption from all services whatever, are genuine ; but the greater part of them are forgeries. Bocland might, nevertheless, be subjected to the payment of an annual rent to the state by its ori- ginal charter of creation. We have an instance of this among the deeds of Worcester cathedral col- lected by Heming. ^Ethelbald, King of the Mer- cians, had, it appears, granted to Eanulf, grand- father of Offa, an estate of inheritance, burthened with an annual payment of ale, corn, cattle, and other provisions to a royal vill ; and this estate, with the rent charge attached to it, Offa afterwards gave in remainder to the see of Worcester after his own life and that of his sons 1 . Folcland might be held by freemen of all ranks and conditions. It is a mistake to imagine with Lambard, Spelman, and a host of antiquaries, that it was possessed by the common people only. Still less is Blackstone to be credited, when, trusting to Somner, he tells us it was land held in villenage by people in a state of downright servitude, be- longing, both they and their children and effects, to the lord of the soil, like the rest of the cattle or stock upon the land 2 . A deed published by Lye exposes the error of these representations 3 . Alfred, 1 Heming, 101. " Blackstone, ii. 92. 3 Lye's Anglo-Saxon Dictionary, Appendix, ii. 2 (Cod. Diplom. ii. 120). TENURE OF LANDED PROPERTY. 139 a nobleman of the highest rank, possessed of great bynobie- i A i 11 i w Air i i men of the estates m bocland, beseeches King Alfred in his first rank; will to continue his folcland to his son ^Ethelwald ; and if that favour cannot be obtained, he bequeaths in lieu of it to his son, who appears to have been illegitimate, ten hides of bocland at one place, or seven hides at another. From this document it follows, first, that folcland was held by persons of rank ; secondly, that an estate of folcland was of such value that seven or even ten hides of b6cland were not considered as more than equivalent for it ; and, lastly, that it was a life estate, not devisable by will, but, in the opinion of the testator, at the disposal of the King, when by his own death it was vacated. It appears also from this document, that the same person might hold estates both in bocland and in folcland. That is to say, he might possess an estate of inheritance, of which he had the com- plete disposal, unless in so far as it was limited by settlement ; and with it he might possess an estate for life, revertible to the public after his decease. In the latter times of the Anglo-Saxon government, it is probable there were few persons of condition who had not estates of both descriptions. Every one was desirous to have grants of folcland, and to convert as much of it as possible into bocland. Money was given and favour exhausted for that purpose. In many Saxon wills we find petitions similar to that of Alfred ; but in none of them that I have seen is the character of the land, which could not be disposed of without consent of the King, de- 140 ON THE ROYAL PREROGATIVE. scribed with the same precision. In some wills, the testator bequeaths his land as he pleases, with- out asking leave of any one 1 ; in others, he earnestly beseeches the King that his will may stand, and then declares his intentions with respect to the dis- tribution of his property 2 ; and in one instance he makes an absolute bequest of the greater part of his lands, but solicits the King's consent to the dis- posal of a small part of his estate 3 . There can be no doubt that bocland was devisable by will, un- less where its descent had been determined by settlement : and a presumption therefore arises, that where the consent of the King was necessary, the land devised was not bocland but folcland. If this inference be admitted, the case of Alfred will not be a solitary instance, but common to many of the principal Saxon nobility, and by That folclands were assigned to the thegns, or thegns or . c military military servants of the state, as the stipend or th7st n a t S e. reward for their services, is clearly indicated in the celebrated letter of Beda to Archbishop Ecgbert 4 . In that performance, which throws so much light on the internal state of Northumberland, the vene- rable author complains of the improvident grants to monasteries, which had impoverished the govern- ment, and left no lands for the soldiers and retainers of the secular authorities, on whom the defence of the country must necessarily depend. He laments 1 Somner's Gavelkynd, 88, 211. Hickes, Pref. xxxii. Diss. Epist. 29, 54, 55, 59. Madox, Formul. 395. * Lambard, Kent, 540. Hickes, Diss. Epist. 54. Gale, i. 457. Lye's Append, ii. 1, 5 (Cod. Diplom. Hi. 361 ; iv. 299). Heming, 40. 3 Hickes, Diss. Epist. 62. < Smith's Bedn, 305, 312. TENURE OF LANDED PROPERTY. 141 this mistaken prodigality, and expresses his fears that there will be soon a deficiency of military men to repel invasion ; no place being left where they can obtain possessions to maintain them suitably to their condition. It is evident from these com- plaints, that the lands so lavishly bestowed on the church, had been formerly the property of the public and at the disposal of the government. If they had been boclands, it could have made no dif- ference to the state, whether they belonged to the church or to individuals, since in both cases they were beyond its control, and in both cases were subject to the usual obligations of military service. But, if they formed part of the folcland, or pro- perty of the public, it is easy to conceive how their conversion into bocland must have weakened the state, by lessening the fund out of which its mili- tary servants were to be provided. Some of the monasteries described by Beda were institutions of a singular nature. They had the privileges of ecclesiastical foundations, but were governed by laymen, and were inheritable and de- visable like other estates in bocland. They were common in Mercia 1 , as well as in Northumberland ; and appear to have been devices of avarice and am- bition for obtaining possessions in bocland on false pretences. To this fraudulent subduction of na- tional property from the purposes of military de- fence to which it had been destined, may in some measure be attributed the success of the Danish 1 Hickes, Gram. Anglo-Sax. 170. Smith's Beda, 767, 786. Heming, 218. 142 ON THE ROYAL PREROGATIVE. invasions, which in the northern and central parts of England had little resistance to encounter. A charter of the eighth century conveys to the see of Rochester certain lands on the Medway, as they had been formerly possessed by the chiefs and companions of the Kentish Kings l . In this instance folcland, which had been appropriated to the mili- tary service of the state, appears to have been con- verted into bocland and given to the church. The gesiths, gesithmen, or gesithcundmen, were the military companions or followers of the Anglo- Saxon chiefs and Kings. That this is the true sense of the word, appears from many passages in King Alfred's translation of Beda 2 . Some of these ge- siths had lands ; others had not 3 . The lands they held were, in some cases at least, not their own 4 . When companions of the King, that is, servants of the state, the lands they possessed were probably folcland. In the latter periods of the Anglo-Saxon history, the appellation of gesith fell into disuse, and appears to have been superseded by that of thegn. The gesiths were the same with the leudes of the Franks and Visigoths, and both were de- rived from the comites of the ancient Germans. It would seem that the comites of the King had the designation of thegn, before it was given to the comites of inferior chiefs 5 . Bociand Bocland also might be held by freemen of all by freemen ranks and degrees. of all ranks ' Text ' Roffens - 72 - Hearne's edition. (Cod. Diplom. i. 135.) * Alfred's Beda, iii. 14, 22; iv. 4, 10, 22; v. 4, 5. 9 In. 45, 51. 4 Ib. 63, 64, 65, 66, 68. * Ib. 45. J)1 TI1E ' TENURE OK .ANDED " N I fill SI T Y A ceorl might possess bocland and perform for i>y ceoris, it military service to the state. If he had five hides of bocland with the other requisites demanded by law, he was entitled to the privileges of a thegn 1 . Gesiths might receive grants of bocland 2 . by gesiths, Thegns might also possess bocland 3 . But the bythegns, estate of a thegn in bocland must not be confound- ed with the thegn lands which he held, by a bene- ficiary tenure, from the King or from a private lord, for military service. Thegn lands from the King or state are repeatedly mentioned in Domes- day ; and the Saxon laws carefully distinguish the bocland possessed by a thegn, from the land given him by his hlaford 4 . It is probable that thegn lands were originally granted for life, as beneficiary lands were on the Continent ; but before the end of the Saxon period, the possessions given to a man by his hlaford descended, in certain cases, to his children 5 . The estates of the higher nobility consisted chiefly *>y the of bocland. Bishops and abbots might have b6c- nobility. land of their own, in addition to what they held in right of the church. The Anglo-Saxon Kings had private estates of An s l0 - bocland ; and these estates did not merge in the Kings P os- crown, but were devisable by will, gift, or sale, and crown. transmissible by inheritance, in the same manner not merge as bocland held by a subject. inthe * > rrrwn. OfFa, King of the Mercians, had 110 cassates of 1 Anc. LL. and Inst. pp. 80, 81. 2 Hickes, Gram. Anglo- Sax. 139. Smith's Beda, 786. 3 Edg. I. 2. Cn. Eccl. 11. * Cn. Sec. 78. 5 Ib. 79. 144 ON THE ROYAL PREROGATIVE. land in Kent converted into bocland for himself and his heirs ; with remainder to the church. These lands did not descend, after the death of his son Ecgferth, to Ccenwulf, his successor in the Mercian throne, but to Cynethrith, abbess of Gotham. Other lands, of which he had possessed himself without a legal title, went also to Cynethrith, and not to his successors in Mercia l . Ccenwulf of Mercia, after the untimely fate of his son, was succeeded in that kingdom by Ceolwulf and Beornwulf ; but his private property was inhe- rited by his daughter Cwsenthrith. In a council held at Clofeshoe under Beornwulf, she is styled the daughter and heiress of Ccenwulf 2 . We are told that Ethelwulf, King of the West Saxons, made a will after his return from Rome, by which he distributed among his children, kins- men, and nobles, the whole of his private estate both in land and money 3 . But the most decisive and circumstantial proof that the Anglo-Saxon Kings had private property in land, and possessed it with the same rights as other persons, is derived from the will of King Alfred, which is still extant 4 . From this document it appears, that Egbert, grandfather of Alfred, had settled his landed property on his male in prefer- ence to his female heirs ; that Ethelwulf, father of Alfred, had bequeathed various estates to his younger children, and regulated, in certain contin- gencies, how they should descend ; that Alfred Wilkins, Cone. i. 163. * Ib. i. 172, 174. s Asser de ^Elfredi Rebus gestis, 4. Flor. Wigorn. in 855. * Published at Oxford in 1788. (Cod. Diplom. ii. 112.) TENURE OF LANDED PROPERTY. 145 himself and two of his brothers had acquired land- ed property, in addition to the inheritance they received from their father ; that their rights over their estates were settled and adjudged in the courts of law, as if they had been private indivi- duals ; and lastly, that Alfred was empowered to make a new settlement of his lands by a decision of the witan in these words, " Jt is now all thine "own; bequeath it, give it, or sell it to kinsman " or stranger, as it pleaseth thee best." When bocland was created, the proprietor, un- Bocland at less fettered by the original grant, or by a subse- ofthepro- quent settlement of the estate, appears to have had an unlimited power to dispose of it as he chose l . In the exercise of that power he might transfer it by grant or bequeath it by will, in such quantities, for such periods and on such conditions as he was pleased to appoint. If conveyed by a written in- strument, whatever might be the stipulations an- nexed to the grant, the land was still denominated bocland 2 . It was in consequence of this use of the term that we find estates of very different descrip- tions classed together under the name of bocland. When once severed from the folcland or property of the community, an estate retained the name of b6cland, whatever were the burthens and services imposed on it, provided it was alienated by deed. When transferred in a different manner, though held on the same conditions, it seems to have been called l&nland. This appears from a transaction 1 Somner's Gavelkynd, 88, 89. 2 Heming, 129, 140, 141, 180, 182, 195, 206. Smith's Beda, 769, 771. 146 ON THE ROYAL PREROGATIVE. recorded in the chartulary of Worcester 1 . We are there told, that Archbishop Oswald granted to ^Elfsige a tenement in Worcester with the croft attached to it, for three lives, to be held as amply in the form of bocland as it had been held before in the form of Isenland. Lsenland might be an estate for life or it might be held at will ; and if the possessor was convicted of felony, it reverted to the donor 2 (Z). Conse- Bocland, when alienated by grant or will, might quencesof , . . . ' . that power, be free, or in the seignory of some church, manor, or individual 3 . It might be subjected to payments in kind or in money 4 . It might be liable to ser- vices, free, servile or mixed 5 . It might be granted on the condition that the possessor discharged the military or other services due by the proprietor to the state 6 . It might be let for annual rent or for the performance of menial offices 7 . It might be 1 Heming, 158. See also ib. 204, 205. * Hickes, Diss. Ep. 58, 59. Text. Roff. 115, 116. Heming, 94, MS. Ch. Ch. Cant. 3 Hickes, Diss. Ep. 62. Heming, 96, 384. Somner, Gavel- kynd, 205, 206. Smith's Beda, 782. Numerous entries in Domesday distinguish lands, which in Saxon times must have been bocland, into free lands and lands in seignory. See i. 72, a 2; 80, a 1 ; 84, b 2, &c. ; and 77, b 22; 120, a 1; 176, b 2, &c. 4 Hickes, Diss. Ep. 10, 55. Gram. Anglo-Sax. 140, 142. Lye, Diet. Anglo-Sax. App. ii. 1, 2, 3, 5. (Cod. Diplom. ii. pp. 120, 354; iii. p. 361; iv. p. '299.) Lombard's Kent, 543. Smith's Beda, 774. Heming, 118, 144, 191. Somner's Gavel- kynd, 14, 214. Gale, i. 504, &c. * Heming, 134, 184, 189, 292. Domesday, i. 269, b. 6 Heming, 81, 96, 232, 26*,' Smith's Beda, 773, 778, 779, 780. 7 Heming, 264, 267, 230. TENURE OF LANDED PROPERTY. 147 held for lives or at will * ; for services certain or indefinite, or with no reservation of services what- ever 2 . Tenants of bocland might be persons of the same description with the lowest and most de- pendent of the occupiers of folcland. The only difference between them seems to have been, that the one held their lands directly from the public authorities of the state, while the others held their land of some proprietor, to whom it had been pre- viously granted as a private inheritance. The vil- lein of latter times and the copyholder of the pre- sent day are not derived from the one more than from the other. Bocland might be forfeited for various offences, and when forfeited, it escheated to the King as re- presentative of the state 3 . Land held of a subject, when forfeited for the same delinquency, escheated to the lord 4 . When bocland was granted on lives, it was usual to insert a clause in the charter, de- claring that whatever offence the tenant might commit, his land should revert without forfeiture to the grantor 5 . This precaution, however, was not always successful. The chartulary of Worcester complains, that certain tenants of the see had been 1 Smith's Beda, 770, &c. Lye, App. ii. 1. (Cod. Diplom. iv. p. 299.) Lambard's Kent, 544. Madox, Formul. Diss. xxi. Somner's Gavelk. 14. Heming, passim. Hickes, Diss. Ep. 62. Gram. 140, 142, 174. Gale, i. 407, 417, 459. 2 Madox, Form. 135. Hickes, Gram. 141. Smith's Beda, 779. s Cn. Sec. 13, 78. H. xiii. 12. Text. Roff. 44, 136. Hickes, Diss. Ep. 1 14. Gale, i. 484, 488. 4 Cn.Sec. 78. Jud. Civ. Lund. I. 1. 5 Heming, 96, 126, 128, 131, 146, 161, 184, 190, 201, 202, 217, c. Monast. iii. 37, new ed. L2 148 ON THE ROYAL PREROGATIVE. Folcland rvas the fund from which hoc- land was created. Deprived of their lands, and the church defrauded of its reversion in consequence of their failure to discharge, when due, a general tribute imposed on the kingdom 1 . From the view that has been taken of the di- stinction between folcland and bocland, it follows, that the folcland, or land of the community, like the fisc of the continental nations, was the fund out of which the boclands, alodial possessions or estates of inheritance were carved. At what time the folc- land, or land of the public, began to be converted into bocland, we are not informed. It was pro- bably soon after the establishment of the Saxons in England ; for, though a more rude and uncultivated people than the nations which had enjoyed greater opportunities of intercourse with the Romans, they must have found private property in land among the Britons, whom they expelled or subdued, and could not long remain insensible to the advantages arising from it. Certain it is, that in one of the earliest charters giving land to the church, it is im- plied, though not expressly asserted in the grant, that the land contained in the donation had been previously the private property of the donor 2 . But, 1 Hearing, 278. 2 Ego Hodilredus, parens Sebbi, provincia East Sexanorum, cum ipsius consensu, propria voluntate, sana mente, integroque consilio, tibi Hedeluncae abbatissae, ad augmentum monasterii tui, quse dicitur Beddanham, perpetualiter trado et de meo jure in tuo transcribe terram quse appellatur Ricingaham, &c. Smith's Beda, 748. Sebbi was one of the Kings of the East Saxons be- tween 665 and 694. The necessity for the King's consent occa- sions the only doubt in the interpretation of this deed. Hodilred may have had only a life estate in the land, when he transferred TENURE OF LANDED PROPERTY. 149 though commenced at an early period, the conver- sion of folcland into bocland seems to have been slowly and gradually effected. Every charter crea- ting bocland is a proof, that the land had formerly been folcland. A charter of Archbishop Wulfred, who died about 830, asserts, in direct terms, that the landj which he gives away, had never been any man's bocland before it became his, and appeals to general practice, whether a proprietor of bocland might not sell it or dispose of it as he pleased l . In a Charter of Burhred, King of the Mercians, the land he grants to an individual, is said to have been the property of the kingdom before the donation was made 2 . Folcland being the property of the community, J . J converted could not be converted into bocland except by an mtoboc- act of government. In early times this was probably public 7 done in the gemot or public assembly of the tribe, authont y- as temporary allotments to individuals were made in the gemot or assembly of the district. But, when the King came to be considered as the representative of the state, all charters of bocland ran in his name, and appeared to emanate from his bounty. The power of creating alodial property, by which was meant an estate of inheritance, is enumerated in the Textus Roffensis among the prerogatives of the it to the monastery, and, with the King's consent, converted it into an estate in perpetuity. 1 Somner's Gavelkynd, 88. 2 Ego Burgred, cum consensu et consilio seniorum meorum, libenti animo concedens, donabo aliquam partem agri regni mei Smith's Beda, 770 (Cod. Diplom. ii. p. 81). Burhred was King of the Mercians from 852 to 874. 150 ON THE ROYAL PREROGATIVE. crown l . But, though bocland could not be created without the authority of the King, it was not in his power to convert folcland into bocland without the consent of his witan principes seniores opti- mates magnates or other persons, by whatever name they were called, who assisted him in the ad- ministration of his kingdom. There is hardly a Saxon charter creating bocland, which is not said to have been granted by the King with consent and leave of his nobles and great men. If that consent was withheld, his grants were invalid. In the pro- ceedings of a council held at Kingston upon Thames, by Egbert, we are told, that his predecessor, Bald- red, King of the Kentishmen, had given to Christ Church, Canterbury, the manor of Mailings in Sussex ; but that prince, it is added, having of- fended his nobles, they refused to ratify his grant, which had therefore remained without effect 2 . In conveyances of bocland on lives, the consent of the King or of the superior lord is oftentimes men- tioned by the proprietor, but is frequently omitted. When the King became the representative of the state, the folcland, or land of the public, began to be called and considered his property. It was his land in the same sense that the servants of the public were his servants, the laws his laws, and the army his army. In his politic or ideal capacity he was the state, and whatever belonged to the state belonged to him. If folcland was assigned to any 1 Istse sunt consuetudines regain inter Anglos : Carta alodii in seternam haereditatem. Text. Roff. cap. 27, p. 44. 2 Wilkins, Cone. i. 178. Somncr's Gavelkynd, 114. Thorne, c. 2218. TENURE OF LANDED PROPERTY. 151 one for life or for a shorter term, it was given by his authority and apparently for his service. When it was converted by charter into bocland, or land of inheritance, the deed was executed in his name, and though the grant was of no validity without the concurrence of his witan, the donation seemed in form the spontaneous act of his munificence. While it continued folcland, it was subject to pay- ments and other burthens, which were due to him, foiciandto or to persons who were termed by law his servants. When bestowed on military men, employed in the national defence, it was called thegn-land, and said to be held by his thegns. When applied to the service of the person intrusted with the civil admi- nistration of the shires and hundreds, it was called reve-land, and said to be possessed by his ealdormen and gerefan. When appropriated to his own sub- sistence, to the maintenance of his household, and to the splendour of his court, it was said to be held in demesne or to be let out to farm. The same lands, it is probable, were constantly or usually destined to the same use and occupied by persons of the same degree (A A). The appropriation of particular lands to the King's table, and to the expense of his household, most probably took place at a very early period. As representative of the state, one of the duties attached to his station was the exercise of hospi- tality to those who counselled and assisted him in the administration of his kingdom. It was not un- natural there should be lands specially destined for that purpose, and as these increased in number and 152 ON THE ROYAL PREROGATIVE. value, it is probable that the dues from other folc- lands to the state were diminished or less rigidly exacted. A law of Canute 1 illustrates the progress of this change. Desirous, as he says, to lighten the burthens of his people, he directs his gerefan to cultivate his lands with care and from thence to supply him with necessaries, forbidding them to take provisions from any one for his use without the consent of the owner. This is the first allusion I have seen to the right of purveyance, a prerogative that was afterwards so scandalously abused. In its origin it was probably derived from the dues re- served to the state in allotments of folcland to in- dividuals. From these appropriations of the public lands to the King, as representative of the state, the word folcland fell into disuse, and gave place to the term of Terra Regis or crown land. Antiquaries, inat- tentive to this change of language, have bewildered themselves among copyholds and commons in search of the folcland of their ancestors. Sources The Terra Regis of Domesday was derived from from which the Terra a variety of sources. It consisted in part of land Domesday that happened at the time of the survey to be in rived de ~ th e King's hands by escheats or forfeitures from his Norman followers. It was constituted in part of the lands of Saxon proprietors, which had been confiscated after the Conquest and had not been granted away to subjects. But it was chiefly com- posed of land that had been possessed by the Con- fessor in demesne, or in farm, or had been held by 1 Cn. Sec. 70. TENURE OF LANDED PROPERTY. 153 his thegns and other servants 1 . Of the last de- scription part was probably the private bocland of the Confessor, which had belonged to him as his private inheritance. But, if we compare the num- ber of manors assigned to him as his demesne lands in Domesday with the estates of bocland possessed by Alfred, it seems incredible that the whole should have been his private property. A great part must have been the folcland or public property of the state, of which, though the nominal proprietor, he was only the usufructuary possessor, and, with the licence and consent of his witan, the distributor on the part of the public. The land which is called Terra Regis in the Exchequer Domesday, is termed in the original returns of the Exon Domesday, de- mesne land of the King belonging to the kingdom 2 . In the Exchequer Domesday itself a similar form of expression is to be found. A particular manor is said to have formerly belonged to the kingdom, but to have been since granted to Earl Ralph by the King 3 . We have seen that the private bocland of the private King was distinct from the folcland or public pro- perty of the state, that it descended to his natural heirs and not to his successors in the kingdom, and that it was devisable by will like the land of a sub- 1 It is difficult to conceive how Lord Lyttleton could have been so careless as to assert that all the demesne lands assigned to the crown in Domesday had belonged to it in the time of Ed- ward the Confessor (Henry II. iii. 238. 3d ed.). The slightest examination of Domesday must have shown him the contrary . a Dominicatus Regis ad regnum pertinens in Devenescira. Exon Domesday, p. 75. * 2 Domesday, 119b. 154 ON THE ROYAL PREROGATIVE. ject. That this distinction should be preserved to a late period among the Anglo-Saxons is not sur- prising, when it is considered, that in their govern- ment royalty was elective, and though their Kings were usually chosen from the same family, that the nearest of blood to the deceased monarch was often passed by or postponed, while a more distant rela- tive was preferred. If the private estate of the King had merged in the crown, it must in such cases have gone to his successor, to the prejudice of his heirs ; and to prevent that injustice, it was necessary to keep them separate. Nor was the di- stinction confined to land. It extended also to personal property. If the King was slain, a heavy composition was exacted for him, one half of which went to his family, and the other half to his people as a compensation for his loss 1 . But this distinction between the private patri- mony of the King and the public property of the state was at length obliterated. When the folclands of the community, that had not been converted into private inheritance, acquired the character and appellation of crown lands, these two species of property were entirely confounded 2 . It became a maxim of English law, that all lands and tenements possessed by the King, belong to him in right of his crown and descend with it to his successor, 1 Anc. LL. and Inst. p. 79. 8 To such an extent was this confusion carried, that Spelraan, writing in the early part of the 17th century, expresses himself thus : " Fiscus demum omnes principis facultates respicit, Scac- carium dictus, nulla pene jam nobiscum habita pecunise publicse et privatse distinctione, cum sit utraque in solius principis arbi- trio." Glossary, Fiscus. TENURE OF LANDED PROPERTY. 155 though he had been seised of them in his private capacity before he was King, and had inherited them from ancestors, who were never invested with the attributes of royalty 1 . By the adoption of this principle the King was restrained from making be- quests of landed property by will ; but he still re- tained the power of giving away the lands of the crown in his lifetime 2 , and from erroneous notions of his right to these lands, he was allowed to dis- pose of them by patent without the advice and consent of his great council. How much that power was abused it is needless to say. The rapacity of favourites and prodigality of the court led parlia- ment frequently to interpose, and at length an ef- fectual, though tardy, remedy for the evil was ac- complished by the statute of Queen Anne 3 . The little that remained of the ancient possessions of the state was secured from further dilapidation, and by a singular revolution of policy there was a recurrence in the late reign to the ancient policy of the Anglo-Saxons. The crown lands were vir- tually restored to the public 4 , while the King ob- tained the right of acquiring landed property by purchase, and of bequeathing it by will like a pri- vate person 5 . 1 Comyn, Digest. Prerogative, D. 64. 2 Ibid. D. 88. 3 1 Ann. St. 1. c. 7. 4 By 1 Geo. III. c. 1. and subsequent acts. 5 By 39 & 40 Geo. III. c. 88. 156 ON THE ROYAL PREROGATIVE. CONCLUSION. If there be truth in the preceding observations, the practice of our constitution has at no time cor- responded with the monarchical theory of modern Europe. Every one has read with disgust the in- decent attempts of churchmen to impress a cha- racter of divinity on Kings, to inculcate on their subjects the obligations of passive obedience and non-resistance as religious duties, to found their title on a delegation from heaven, and with impious flattery to exalt them above the Almighty, by main- taining, that the " most high, sacred, and tran- " scendent" of relations is the " relation between " King and subject 1 ." Every one has heard of the distinction made by judges and lawyers, in the times of the Tudors and Stuarts, between the or- dinary and extraordinary or absolute, as they were pleased to call it, prerogative of the crown. Every one knows the abuses introduced into our govern- ment under pretence of the sovereign power attri- buted in law books to the King of England. And every one must admire the resolution and firmness of our ancestors in combating and successfully re- sisting these pernicious doctrines. When the lords tacked to the Petition of Right a clause subversive of its object ; when they proposed as an addition to that celebrated statute a declaration, that it was tendered to his Majesty " with due regard to leave " entire that sovereign power with which he was " intrusted for the protection, safety, and happi- 1 Brodie, British Empire, ii. 136. CONCLUSION. 157 " ness of his people ;" Sir Thomas Wentworth, afterwards Earl of StrafFord, replied, " If we admit " of this addition, we shall leave the subject worse " than we found him. Let us leave all power to " his Majesty to punish malefactors ; but these " laws 1 are not acquainted with sovereign power." " Prerogative," observes Sir Edward Coke, " is " part of the law ; but sovereign power is no par- " liamentary word. Magna Charta and all our " statutes are absolute, without any saving of so- " vereign power. Let us take heed what we yield " unto. Magna Charta is such a fellow that he " will have no sovereign." " I know-how to add " sovereign to the King's person," exclaimed Mr, Pym, " but not to his power. We cannot leave to " him a sovereign power; for he was never pos~ " sessed of it 2 ." " Let us leave to the King," said Mr. Alford, " what the law gives to him and no- " thing more 3 ." It is needless to add, that, after many shifts, subterfuges, and menaces, the King was compelled to return his reluctant answer to the Petition of Right, " Soit droit fait come il est desire ;" nor is it necessary to remind our readers, that no sooner was the parliament dissolved than the provisions of the act were disregarded and shamelessly violated by his orders. In modern times the prerogative of the crown has 1 i. e. The laws confirmed by the Petition of Right. 2 I have ventured in the extract from Mr. Pym's speech to substitute the words he was for we were. The sense requires it, and Mr. Glanvil's argument in the name of the commons justi- fies the alteration (Rush worth, i. 573). The typographical errors in the printed edition of Rushworth are innumerable. 3 Rushworth, i. 561, 562. 158 ON THE ROYAL PREROGATIVE. been so strictly defined by law, and since the Revo- lution there has been fortunately a succession of Princes so little disposed to contend for an illegal extension of its boundaries, that though the old doctrines of absolute sovereignty and transcendent dominion still disfigure our law books, they are little heard of elsewhere. Occasionally however, it happens, that in parliamentary discussions, asser- tions are hazarded of latent prerogatives in the crown, which are supposed to be inherent in the very nature of sovereignty. That such pretensions are unfounded, it is not difficult to make out. Every government that is not established by mili- tary force, or founded on the express consent of the people, must derive its authority from positive law or from long- continued usage. But, where law confers any power, it prescribes and directs the mode of administering the authority it bestows ; and what has been given by usage is necessarily regulated by usage in its exercise. A prerogative founded on usage, which cannot be enforced be- cause it has fallen into desuetude, is a contradic- tion in terms. No one will pretend, that any pre- rogative of the King of England is founded either on military force or on the express consent of the people. Every prerogative of the crown must, therefore, be derived from statute or from prescrip- tion, and in either case there must be a legal and established mode of exercising it. Where no such mode can be pointed out, we may be assured that the prerogative so boldly claimed is derived neither from law nor usage, but founded on a theory of monarchy, imported from abroad, subversive of law CONCLUSION. 159 and liberty, and alien to the spirit as well as to the practice of our constitution. In England there are no latent powers of government, but those possessed by the supreme and sovereign authority of the state. The King is our sovereign lord ; but he does not possess the sovereign authority of the common- wealth, which is vested, not in the King singly, but in the King, Lords, and Commons jointly. When we hear of a prerogative inherent in the crown, which the King has no legal means of exercising, we may be certain that it has no existence but in speculative notions of government. Emergencies may arise, where it is necessary for the safety of the state to commit additional powers to the persons intrusted with its defence. But when such cases occur, we are to be guided by considerations of reason and expediency in the powers we confer, and not by vain and empty theories of prerogative, which the very act we are called upon to perform proves to be futile and unfounded. AUTHORITIES AND ILLUSTRATIONS. (A.) Page 11. THERE were Kings in many of the German tribes 1 ; but their power was not unlimited or arbitrary 2 . If they directed the councils of their nation, it was auctoritate suadendi magis quam jubendi potestate 3 . The Eburones, a German tribe between the Meuse and the Rhine, were governed by Ambiorix and Cativulcus 4 . Having taken up arms against the Romans, Ambiorix, who had received many favours from Caesar, stated in excuse for his defection, " sua " esse ejusmodi imperia, ut non minus haberet juris " in se multitudo quam ipse in multitudinem 5 ." Generally speaking, the name of King was odious to the Germans 6 ; and notwithstanding the services Arminius had rendered his countrymen, they put him to death for affecting that dignity 7 . In the tribes governed by Kings there was less freedom than in the other states, and in one of them so great was the jealousy of power, that the people were not intrusted with the possession of arms 8 . 1 Tacitus de Mor. Germ. 7, 10, 11, 12, 25, &c. 2 Ib. 7. nee regibus infinita aut libera potestas. 3 Ib. 11. 4 Ccesar de Bell. Gall. v. 24. 5 Ib. v. 27. 6 Tacitus, Annal. ii. 44. nomen regis invisum. 7 Ib. ii. 88. regnum affectans. 8 Tacit, de Mor. Germ. 43, 44. M 162 ON THE ROYAL PREROGATIVE. With the prejudices natural to a Roman, Tacitus expresses himself contemptuously of the tribes subject to Kings, as inferior to the rest of their countrymen 1 . He has neglected to inform us how many of the German communities were under that form of government. Those he mentions are the Marcomanni and Quadi, on the north bank of the Danube ; the Gothones, Rugii, and Lemovii near the Baltic ; and the Suiones and Sitones in Scandi- navia 2 . The younger Pliny adds the Bructeri, in the west of Germany, who had a King imposed on them by the Romans in the time of Trajan 3 . When the Franks compiled their Salic law they were go- verned, not by Kings, but by chiefs or proceres, who seem to have been numerous 4 . Kings of the Franks are mentioned at an earlier period by the Augustan historians ; but from the prologue to the Salic law it is probable, that the persons called Kings by the Romans, were merely chiefs or gene- rals of the different tribes that composed the Frank confederation. (B.) Page 12. The form of government in the German tribes has been described by Caesar and Tacitus. " In " pace," says the former 5 , " nullus est communis " magistratus ; sed principes regionum et pagorum " inter suos jus dicunt controversiasque minuunt." The account given by Tacitus 6 is more circumstan- 1 Tacit, de Mor. Germ. 25, 42, 43, 44, 45. * Ib. 42, 43, 44, 45. Plin. Ep. ii. 7. 4 Prolog, ad pact. leg. Salic. Antiq. * De Bell. Gall. vi. 23. 6 De Mor. Germ. 11, 12. AUTHORITIES AND ILLUSTRA tial. " De minoribus rebus principes ceusulta " de majoribus omnes ; ita tamen, ut ea quoque quo- " rum penes plebem arbitrium est, apud principes " pertractentur. Considunt armati. Rex vel prin- " ceps, prout setas cuique, prout nobilitas, prout " decus bellorum, prout facundia est, audiuntur, " auctoritate suadendi magis quam jubendi pote- " state. Si displicuit sententia, fremitu aspernan- " tur ; sin placuit, frameas concutiunt. Licet apud 11 concilium 1 accusare quoque et discrimen capitis " intendere. Eliguntur in iisdem conciliis et prin- " cipes, qui jura per pagos vicosque reddunt. Cen- 11 teni singulis ex plebe comites, consilium simul et " auctoritas, adsunt." (C.) Page 12. " Quum bellum ci vitas aut inlatum defendit aut " infert, magistratus, qui in bello prsesint, ut vitae " necisque habeant potestatem, deliguntur 2 ." Taci- tus 3 confirms this account, " Duces ex virtute su- 11 munt ;" but he represents the authority of these temporary generals as extremely limited: " Duces " exemplo potius quam imperio, si prompti, si con- " spicui, si ante aciem agant, admiratione prsesunt. " Caeterum neque animadvertere, neque vincire, " ne verberare quidem, nisi sacerdotibus permis- " sum ; non quasi in pcenam nee ducis jussu, sed 11 velut Deo inspirante, quern adesse bellatoribus " credunt." When appointed, the general was ele- 1 The popular assembly, which Tacitus calls concilium, was termed by the Franks mallum or mahl ; by the Scandinavians, thing, and by the Anglo-Saxons, gemot. ~ Csesar de Bell. Gall. vi. 23. 3 De Mor. Germ. 7. M 2 164 ON THE ROYAL PREROGATIVE. vated on a buckler, and exhibited to the surround- ing multitude " impositus scuto, more gentis, et " sustinentium humeris vibratus, dux deligitur 1 ." The same ceremony was used in after-times by the Franks, when they made choice of a King ; and there is still in England a vestige of this ancient custom, in the practice of chairing members of parliament. At the close of the seventh century, the conti- nental Saxons were still unacquainted with the government of Kings. They were divided into tribes, and their territory into districts 2 , and these last were subdivided into townships 3 . In every district there was a chief or ealdorman, and under him, in every township, a tungerefa or town-reeve. In time of peace none of the ealdormen had author- ity over the others ; but on the breaking out of a war, they met and determined by lot which of them should have the command of the national forces. While the war lasted, the person thus designated was obeyed as heretoga or general of the army. On the return of peace his authority ceased, and all reverted to their former equality 4 . In conformity to this account we find the leaders who conducted the Jutes arid Saxons into Britain in the fifth century, described as heretogan or ealdormen. It was not for some time after their arrival that they assumed the appellation of Kings 5 . In Northumberland the Angles carried on war with the natives for near a century before they had 1 Tacit. Hist, iv. 15. 3 Tunscipas vici. Bed. Hist. Eccl. i. 15. 2 Msegthas pagi. 4 Bed. Hist. Eccl. v. 10. Sax. Chron. in 449, 495. AUTHORITIES AND ILLUSTRATIONS. 165 a King to govern them, and in East Anglia and Mercia they were established for many years in the country without any chief magistrate or com- mon head 1 . About 170 years after the arrival of the West Saxons in England, they revived for a short time the old Germanic constitution of their forefathers. On the death of Cenwealh in 672, we are told by Beda 2 , that the government of the West Saxons was divided among a number of petty Kings, or ealdormen, as they are termed by his translator Alfred. This form of government is said to have lasted about ten years. At the end of that period it was subverted by Ceadwalla, who overcame and expelled these chiefs, and became sole monarch of the West Saxons. In the interval there appeared to have been temporary Kings or generals, created for the conduct of foreign wars 3 . A similar occurrence took place among the Lombards, soon after their occupation of the north of Italy. On the death of Clephis, their second King, instead of electing another King, they divided the territory they had subdued into thirty-five districts, with a chief or dux, as he is called, presiding over each ; and this plan of go- vernment is also said to have continued for ten years 4 . " The whole affair," says Savigny 5 , " is " commonly said to have been a revolutionary " usurpation ; but with much more reason, it may 1 Malmesb. Hunt. Westm. 2 Hist. Eccl. iv. 12. 3 Sax. Chron. in 674, 676, 685. Lingard, i. 189, 8vo. 4 Paul. Diacon. 1. 2. c. 32. 5 Roman Law during the Middle Ages, i. 264. 166 ON THE ROYAL PREROGATIVE. ' be viewed as a temporary return to the oldest " constitutional practice of the nation." (D.) Page 12. Soon after the Franks obtained possessions in the country south of the Rhine, they substituted per- manent chiefs with the title of King, in place of the ancient leaders of their army, who, like the generals of the Saxons, had probably only a temporary com- mand. This event took place about the beginning of the fifth century. Authors are not agreed as to the name of their first King. Gregory of Tours and his epitomiser Fredegaire, make Theodomir the first of their Kings, and say he was the son of Ri- chimer. The Gesta Francorum and Prosper Tyro call their first King Faramond. The former pre- tends he was selected for that dignity by the advice of his father Marchomir. A third chronicle gives to his father the name of Sun no ; and both Sunno and Marchomir are mentioned with Genebald as generals of the Franks, in an expedition they made across the Rhine in the time of Maximus '. All agree that the second King of the Franks was called Clodio ; but with respect to the names, succession, and relationship of these princes, the greatest un- certainty prevails till we arrive at Childeric, the father of Clovis, who died in 481. It is even doubt- ful, whether the whole body of the confederates, united under the name of Franks, were originally the subjects of Clovis. Towards the end of his reign, we hear of petty Kings, his relations, who had separate principalities, and appear in the cha- 1 Between 383 and 388. AUTHORITIES AND ILLUSTRATIONS. 167 racter of allies rather than of dependents. But, whatever was the condition of these princes, they were extinguished by Clovis, who contrived to de- stroy them by force or fraud, and to persuade their subjects to acknowledge his authority. (E.) Page 13. The history of the vase at Soissons has been re- peatedly told, and must be familiar to the greater part of my readers ; but it illustrates too forcibly the limited authority of the early Kings of the Franks to be entirely omitted. Saint Remy having applied to Clovis for a vase of extraordinary mag- nitude and beauty, which his soldiers had carried off from the church at Rheims, the King of the Franks promised to restore it ; and when his army met at Soissons to divide their plunder, he entreated them to give him that vase in addition to his proper share of the spoil. The army in general seemed disposed to acquiesce in his request, when a common soldier, striking the vase with his battle-axe, ex- claimed, " You shall have nothing here but what " you obtain fairly by lot." Clovis dissembled his resentment at the time ; and though he afterwards took vengeance for the insult, it was by treachery, and on a false pretence, that with his own hand he killed the soldier l . Other proofs are not wanting that Clovis had not power to restore the spoils taken by his soldiers without their consent, as many false and fraudu- lent claims had been detected 2 . Gregor. Tur. 1. 2. c. 27. Dom Bouquet, ii. 17o. Dom Bouquet, iv. 54. 168 ON THE ROYAL PREROGATIVE. Nothing indeed is more clear, than that the Kings of the Franks were not possessed of that absolute authority, which the monarchical theory, in the mouths of their churchmen and lawyers, began at a very early period to ascribe to them. Gregory of Tours, in his history of the vase of Soissons, makes the army reply to their King in a strain better suited to Roman provincials than to high- minded and free-born Germans. " Glorious King," they are supposed to say, " let every thing we see " before us be thine ; are not we ourselves subject "to thy dominion? Do what pleases thee best; " there is none here to stand against thee or resist " thy will V It is whimsical enough that within a few pages of this passage the historian is obliged to confess that after Clovis had become secretly a convert to Christianity, he was afraid openly to renounce his idols, because his subjects were still attached to their ancient worship ; and it was not till assured of their conversion, that he ventured to receive the sacred rite of baptism 2 . This hesita- tion reminds us of Edwin, King of the Northum- brians, who was placed in the same situation, not daring to make public profession of Christianity till he had brought over his thegns and ealdormen to that persuasion 3 . Beside the national wars, in which the public was concerned, it had been customary for the Germans to engage in private expeditions for con- 1 Omnia, gloriose rex, quse cernimus tua sint ; sed ac nos ipsi tuo sumus dominio subjugati ; nunc quod tibi bene placitum videtur, facito ; nullus enim potestati tuae resistere valet. * Greg. Tur. 1. 2. c. 31. 3 Bed. Hist. Eccl. ii. 13. AUTHORITIES AND ILLUSTRATIONS. 169 quest or plunder, under chiefs whom they volun- tarily followed. These expeditions were proposed in the general assembly of the tribe by some warrior of established reputation, who offered himself as leader of the enterprise. Those who approved of the project, and had confidence in the leader, ten- dered their assistance. The multitude applauded their resolution, and if they failed in their engage- ment, they were regarded as traitors and deserters, and no faith was ever reposed in them afterwards l . The adventurers, who subdued Britain, were pro- bably bands of this description ; and after the esta- blishment of royalty among the Franks, traces of this ancient custom were long preserved. It was by persuasion, and not by their authority as Kings, that Clovis and his successors engaged their sub- jects in distant expeditions. To induce his warriors to attack the Visigoths, Clovis urged the scandal of permitting Arians to possess any part of Gaul ; and it was to their new-born zeal, as converts to the orthodox faith, as much as to their passion for plunder, that he owed their concurrence in that ex- pedition 2 . To excite his army to invade the Thu- ringians, Thierri collected them in a body and in- flamed their resentment by his recital of the cruel- ties, which in a former age had been inflicted by that people on their countrymen 3 . Not only were Kings unable to lead their subjects where they pleased, but when the popular voice was raised in favour of any hostile enterprise, they were obliged, 1 Caesar de Bell. Gall. vi. 23. 2 Greg. Tur. ii. 37. 3 Ibid. iii. 7. 170 ON THE ROYAL PREROGATIVE. if they could not divert the current, to follow the course it prescribed to them. When Childebert and Clotaire had in vain solicited their brother Thierri to assist them in their invasion of Burgundy, his subjects exclaimed, that if he persisted in his refusal, they would renounce his service and follow his brothers ; and it was only by promising them the spoils of Auvergne, that Thierri prevailed on them to change their purpose and accompany him into that province '. When Clotaire was inclined to accept the terms of peace offered him by the Saxons, his army mutinied, broke into his tent and threat- ened to murder him unless he went on with the war 2 . Even under the Carlo vingian princes, the advice of the army was often taken and its consent obtained before embarking in foreign wars 3 . On the other hand, when Pepin, father of Charlemagne, prepared an expedition against the Lombards, the chiefs with whom he consulted threatened to aban- don him and return home, if he persisted in the enterprise 4 . The monarchical theory ascribes exclusively to the King all the executive functions of the govern- ment. Among us, from early times, it has been the practice of the King to consult with his sub- jects in matters of state and internal administra- tion, as well as to obtain their consent for the en- actment of laws and imposition of taxes. The same usage appears to have existed among the Franks under the first two races of their Kings. Many 1 Greg. Tur. iii. 11. " Ibid. iv. 15. 3 Dom Bouquet, v. 35, 37, 45, 47. 4 Eginhard, vita Karoli M. 36. AUTHORITIES AND ILLUSTRATIONS. 171 similar facts have been collected and published in an excellent work called Theorie des Lois politiques de France (tome iiime, Preuves 113, 115; tome vime, Preuves 158, 165). It is a practice obviously derived from the ancient constitution of the Ger- manic tribes. (F.) Page 15. It is not surprising that the Kings of the Bar- barians were intoxicated by the strains of adulation poured into their ears by their clergy. Some no- tion may be formed of the excess of this baseness from a speech of Gregory of Tours to Chilperic, which that historian has recorded of himself. " If " any of us, O King ! transgress the boundaries of " justice, thou art at hand to correct us; but if " thou shouldst exceed them, who is to reprehend "thee? We address thee, and if it please thee, " thou listenest to us ; but if it please thee not, " who is to condemn thee, save Him, who has pro- 41 claimed himself justice 1 ?" No wonder that Le- vesque, in commenting on this passage, should have stigmatised the nation, where such language was heard, as a people " abruti dans les fers." In justice, however, to churchmen, it must be owned, that some of them held a different language. Hincmar, archbishop of Rheims, who lived under Ludovicus Pius and his sons, lays it down as a principle, that Kings are bound to observe the laws that had been made by their predecessors with con- sent of their subjects ; and after stating it to be the opinion of some, that princes are subject to none 1 Gregor. Tur. 1. 5. c. 19. Qui sc pronuntiavit esse justitiam. 172 ON THE ROYAL PREROGATIVE. but God, who placed them by hereditary descent where they are, he adds, that this is not the doc- trine of a Catholic Christian, but of a blasphemous and diabolical spirit 1 . When Hincmar wrote, it is true, the bishops had already claimed and repeat- edly exercised the right of- deposing Kings for their misconduct. (G.) Page 15. The resemblance between the monarchical theory of modern Europe and the principles of government established in imperial Rome, has not escaped the observation of Blackstone 2 . After describing what he regards the peculiar advantages of monarchy in giving " unanimity, strength, and despatch " to the administration of public affairs, without considering that, in practice, it is not the King alone, but the King with the advice and concurrence of his confi- dential servants, that conducts the government of England, he concludes with the following passage : " The King of England is therefore not only the " chief, but properly the sole, magistrate of the "nation; all others acting by commission from, " and in due subordination to, him : in like manner "as, upon the great revolution in the Roman state, " all the powers of the ancient magistracy of the " commonwealth were concentrated in the new em- " peror ; so that, as Gravina expresses it, in ejus " unius persona veteris reipublicas vis atque ma- " jestas per cumulatas magistratuum potestates ex- " primebatur." If Blackstone's subject had led him 1 Montlosier, Monarchic Fran^aise, i. 406. 2 Blackstone, i. 250. AUTHORITIES AND ILLUSTRATIONS. 173 to investigate the origin of the monarchical theory, it is clear from this passage that he would have arrived at the conclusion expressed in the text. Montlosier, in his very acute and ingenious, though prejudiced, work on the French monarchy, has proposed a similar theory with respect to the origin of the monarchical system in Europe. The celebrated maxim of the French lawyers, " qui veut "le roi, si veut la loi," he refers to its proper source in the civil law, and contrasts it with the declaration of Charles the Bald, " lex fit consensu " populi et constitutione regis 1 ." As an illustration of the ancient French law he cites the following passage from the Establishments of St. Lewis: " Bers si a toutes justices en sa terre. Ne li roi ne " piiet mettre ban en la terre au baron, sans son " assentement, ni li bers ne piiet mettre ban en la " terre au vavasor;" and sets in opposition to it the commentary of Beaumanoir, who as a lawyer was scandalised at such an admission on the part of the King, "Voire est que le roi est Souverain " pardessus tout, et a de son droit le general garde 11 du royaume, par quoi il peut faire tel etablisse- " ment comme il lui plait pour le commun profit, 11 et chi il etablit i doit tre tenu 2 ." In the words of St. Lewis we have the real King, limited, as he then was, by usage. In the commentary of Beau- manoir we have the ideal King, with the preroga- tives ascribed to him by his lawyers. The same author refers to the memoirs of Lewis XIV. for the impression made on Kings by the 1 Monarchic Frar^aise, i. 179, 310. 2 Ibid. 308, 309. Etablissemens de Saint Louis, 1. 1. ch. 24. 174 ON THE ROYAL PREROGATIVE. monarchical theories in which they are educated. Instructing his son, the expectant heir of his crown, in the rights and duties attached to his station, that monarch expresses himself as follows : " Vous " devez done premierement etre persuade, que les 11 rois sont seigneurs absolus et ont naturellement " la possession pleine et libre de tous les biens qui " sont possedes, aussi bien par les gens de 1'eglise " que par les seculiers 1 ." In other passages the King gravely assures his son, " que les rois sont " nes pour posseder tout et commander a tout 2 ," and that they are " les arbitres souverains de la " fortune et de la conduite des homines 3 ." Ad- verting, as he frequently does, to their divine ori- ginal, -lie boasts " que le ciel les a fait depositaires " souverains de la fortune publique 4 ;" and insisting on the wickedness of resisting their commands, he observes, " Celui qui a donne des rois aux homines " a voulu qu'on les respectat comme ses lieu- " tenans ; se reservant a lui seul le droit d'examiner " leur conduite. Sa volonte est que quiconque est " n sujet, obeisse sans discernement 5 ." Our James I. was content to " adorn his person with some " sparkles of divinity ;" but, in what relates to the true discernment of character and to the judicious distribution of places and favours, Lewis XIV. claims for himself and brethren the omniscience as well as the authority of the Almighty. The pre- tension is so extraordinary that it deserves to be given in his own words : " II en est sans doute de i M&noires de Louis XIV., Ire Partie, 156. Ibid. 2de Partie, 10. 9 Ibid. ibid. 57. * Ibid. Ire Partie, 67, 75. 5 Ibid. 2de Partie, 55. AUTHORITIES AND ILLUSTRATIONS. 175 " certaines (fonctions de la royaute) ou tenant, " pour ainsi dire, la place de Dieu, nous semblons " etre participans de sa connaissance aussi bien " que de son autorite ; comrae, par exemple, en ce " qui regarde le discernement des esprits, le par- " tage des emplois, et la distribution des graces 1 ." Extravagant as these doctrines must appear to an Englishman of the present day, let it be remem- bered that they were openly professed under the two first princes of the house of Stuart, applauded by their bishops, and inculcated by their chaplains and divines. (H.) Page 1 6. Heretoga signifies the leader of an army, and is derived from here, army, and teon, to lead. The modern word King is a contraction of the Anglo-Saxon cyning. Some have derived it from a verb that signifies to know, and to can or be able, Kings being wise and powerful. But a more probable etymology is suggested by Lye in his edition of Junius, viz. that cyning is derived from cyn, which means kindred, family, tribe, nation. In confirmation of this origin of the word it is to be observed, that in Mcesogothic, thiuda means people, and thiudans, king ; that in Norway fylkir was the word used to denote a petty or provincial King, and folk to express the inhabitants of the district ; that among the ancient Scandinavians drottinn was the title of their Kings, and drott their word for people. The Anglo-Saxons had also the word drihten for supreme lord, and driht for people, 1 Memoires de Louis XIV., 2de Partie, 16, 17. 176 ON THE ROYAL PREROGATIVE. and sometimes they called their King cyne-hlaford or lord of the nation, distinguishing him thus from inferior hlafords, who were the lords of none but their immediate followers or companions. But the word cyning in Anglo-Saxon, from its structure, is manifestly a patronymic ; like JEscing, son of jEsc ; Uffing, son of Uffa ; JElling, son of -ZElle ; Cer 'dicing , son of Cerdic ; Iding, son of Ida ; Cry ding, son of Cry da ; JEtheling, son of the jffithel or noble. According to this analogy, the person who had the title of cyning given to him, was con- sidered as one standing in the same relation to the tribe that a man does to his father or to the founder of his race. In other words, the cyning was con- sidered as the son or child of the nation, a more appropriate designation, perhaps, than the modern phrase of Father of his people. (I.) Page 40. The word setheling meant originally a person of noble birth, the child of an Bethel or noble, and was used in that sense by the Lombards, Bavarians, Anglii and Werini, and by the continental Saxons as late as the ninth century *. Among the Anglo- Saxons it seems to have been restricted to persons of royal descent, including, however, in that de- scription the families of the petty Kings as well as of the chief Kings of the nation. Noble families are distinguished in the Kentish laws by the ap- pellation of eorlcund, and the descendants of those who had raised themselves above the rank of ceorls 1 Paul. Diacon.l. 1. c. 21. Canciani, ii. 293 ; iii. 31. Nith- ard, 1. 4. c. 2. apud Dom Bouquet, vii. 29. AUTHORITIES AND ILLUSTRATIONS, 177 were said to be of the gesithcund race, from the word gesith, which meant the companion of a chief 1 . (K.) Page 40, note *. Neither in Beda, nor in Malmesbury or West- minster, who also relate the fact, is there any mention of the sum paid. Beda calls it debita multa, which implies it was the legal composition. The payment made by the Kentishmen for the slaughter of Mul is variously given in the different MSS. of the Saxon Chronicle. In two of the oldest and best (as I am assured by the learned editor of the new edition of that valuable work now printing under the auspices of government 2 ), it is described as the composition due for thirty men ; in two others it is stated to have been 30,000, omitting the denomination of money in which it was esti- mated ; and in one it is said to have been 30,000 pounds. Discarding the last as an obvious blunder, it becomes a question, whether the sum produced by the insertion of sceatta after 30,000, or that produced by the insertion of thrymsa will best agree with the composition for thirty men. As- suming these men to be twyhynd men, their united weregilds must have been 6000 shillings or 30,000 pennies, which make 120J pounds. Thirty thou- sand sceatts make exactly 120 pounds, or the simple weregild of a King by Mercian law ; thirty thousand thrymsas make 375 pounds, or the entire weregild of a King by Northern or Middle Angle 1 Anc. LL. and Inst. pp. 11, 80. 2 It has recently been published. ED. N 178 ON THE ROYAL PREROGATIVE. law ; and, as the former agrees best with the com- position for thirty men, it is probable that sceatta is the word omitted in the MSS., which ought to be restored. (L.) Page 42. The changes that insensibly take place in the notions and sentiments of mankind, when viewed at long intervals of time, are not devoid of curio- sity or unworthy of observation. The law of treason was originally founded on the allegiance, fealty or mutual connexion between a chief or lord and his men or companions, and when first introduced, it gave no greater protection to the King than to the meanest chief in his dominions. " Majesty," as N. Bacon remarks, "had not then arrived at its " full growth." So much are times altered, that a learned and distinguished judge, in his discourse on petty treason, has thought it necessary to in- form his readers, that " in the consideration of law " there is a greater degree of malignity in petit " treason than in murder, arising from that degree " of allegiance, however low, which the murderer "owed to the deceased 1 ." From this passage it appears, that the species of allegiance which gave rise to the law of treason is now esteemed so low, that something like an apology is made for taking it at all into consideration. (M.) Page 43, note*. The passage from Bracton referred to by Sir Edward Coke, relates to accidental homicide. After 1 Foster, Crown Law, 327. AUTHORITIES AND ILLUSTRATIONS. 179 stating various cases where one person might cause the death of another without any felonious intent, and where he ought therefore to be acquitted, quia crimen non contrahitur nisi voluntas nocendi in- tercedit, and adducing infants and madmen as in- stances of persons incapable of committing crimes ; Bracton proceeds to observe, in maleficiis autem spectatur voluntas, et non exitus " for in crimes "we are to consider the intention, and not the mere " fact ; " and then he goes on to state, et nihil in- terest, occidat quis, an causam mortis prsebeat " and it makes no difference whether the man com- " mits the homicide himself, or supplies the means " of effecting it." The last words have misled Sir Edward Coke, who seems to have understood from them, that in the opinion of Bracton it made no difference whe- ther the crime was actually perpetrated, or at- tempted by some overt act, though not accomplished. In Fleta l , where the same passage is given in nearly the words of Bracton, the meaning is clear from a different collocation of the sentence. As corrected by his editor, the passage is as follows : In male- ficiis autem spectari debet voluntas, et non exitus. Et nihil interest an occidat quis, an causam mortis prsebeat ; voJuntas enim et propositum distinguit maleficia. (N.) Page 58. Ammianus Marcellinus 2 relates of a King of the Alamanni, that, being reduced to straits and com- 1 Foster, Crown Law, 1. 1. c. 31. 4. * Lib. 16. c. 12. N 2 180 ON THE ROYAL PREROGATIVE. pelled to surrender at discretion, his companions, to the number of two hundred, with three of his intimate friends, voluntarily delivered themselves up as prisoners, thinking it disgraceful not to share his fortunes. Another illustration of the attachment of compa- nions to their chief, is afforded by a tragical story told in the early part of the Saxon Chronicle l . Cynewulf, King of the West Saxons, having gone with a small retinue to Merton, was beset in the house where he lodged by his enemies, and having imprudently sallied forth before his friends had assembled, he was slain on the spot. On his thegns coming up, the setheling Cyneheard, who had con- ducted the enterprise, offered to spare their lives and take them into his service ; but they spurned at the proposal, and, attacking him, were all slain, except one, who was severely wounded. Next day a large body of the King's friends, roused by the news of his slaughter, arrived at the place with a determination to avenge his death. The getheling promised them lands and money, if they would assist in raising him to the throne, and reminded them that many of their kinsmen were on his side, who would not desert him. They replied, that no kinsman was dearer to them than their hlaford, and that they would never become the followers of his assassin ; and turning to their kinsmen, who were with the setheling, they offered to let them depart in safety if they would abandon him ; to which the others replied, that the same offer had been made to the companions of the King and had been re- ' In 755. AUTHORITIES AND ILLUSTRAT jected by them, and for their part they little for their lives as the companions of the King had done. A battle ensued, in which the setheling was slain with all his followers, except one who was godson to ealdorman Osric, the commander of the opposite party. In this narrative it is worthy of remark, that the companions of the setheling considered themselves bound to their hlaford by ties equally strong and sacred as those which subsisted between the com- panions of the King and their chief. It was not as their King but as their hlaford that the latter refused to accept satisfaction for his death ; and both parties in their turn attempted in vain to loosen the firmness and relax the sacredness of this connexion. (O.) Page 61. This inference may be fairly drawn from the oath of a man to his hlaford, preserved in the Anglo-Saxon law 1 . The relation established by that oath is personal and conditional, without any reference to land as the bond of connexion between the parties ; and with the substitution of the word hlaford for that of chief, it most probably expresses the mutual obligations between a German chief and his companions. An ancient law of the Visi- goths declares, that if any one has given arms or other things to a person under his protection (in patrocinio constitutus) , it shall not be in his power to take back the gift. If the dependent wishes to change his patron, he is at liberty, says the law, 1 Anc. LL. and Inst. p. 76. 182 ON THE ROYAL PREROGATIVE. to follow his inclination ; for every freeman has an inherent right to attach himself (se commendare) to whom he pleases. But in that case he must give back to his patron all the gifts he had received from him 1 . If we substitute for patron the word chief, and for commendatus the word companion, we have probably in this enactment a vestige of the ancient customary law of the Germans. Other regulations follow, some of which show how much the Goths had already deviated from the primitive institutions of their ancestors. Among the Ger- mans the companions fought for their chief; but among the Visigoths the dependent retained for himself half of the spoils he acquired in war, and resigned only half to his patron 2 . (P ) Page 76. As the proceedings in these cases afford a stri- king illustration of what was considered in those ages to be the relation of King and subject, I sub- join the speech of Trussell to Edward II., and an abstract of the proceedings against Richard. The speech of Trussell, preserved by Knyghton 3 , is as follows : Jeo William Trussell procuratour dez prelatez, contez, et barons, et altrez gentz en ma procuracye nornes eyant al ceo playne et suffisant pouare, lez homages et fealtez au vous Edward Roy d'Engle- terre come al Roy avant ces ceures de par les ditz personnes en ma procuracye nomes, rend et re- baylle sus a vous Edward, et deliver et face quitez 1 Leg. Visigoth. 1. v. t. iii. 1. Ibid. 1. v. t. iii. 1,3. * Twysden, col. 2549. AUTHORITIES AND ILLUSTRATIONS. 183 les personnes avanditz en la meillour manere que ley et costome donnent. Et face protestacion en non de eaux qils ne voillent desormes estre in vostre fealte ne in vostre lyance, ne cleyment de vous come de Roy rien tenir. Encz vous tiegnent deshorse priveye persone sanz nule manere de reale dignite. The same expressed or rather abridged in Latin is given as follows : Ego Willielmus Trussell, vice omnium de terra Anglire et totius parliamenti procurator, tibi Ed- wardo reddo homagium prius tibi factum, et extunc diffido te et privo omni potestate regia et dignitate, nequaquam tibi de caetero pariturus. The proceedings against Richard are published at length in the rolls of Parliament. The follow- ing is an abstract of the most material parts. Richard makes his abdication in the following manner : Ego Ricardus omnes archiepiscopos, &c. et ligeos homines meos quoscunque a juramento fidelitatis et homagii, et aliis quibuscunque michi factis, omnique vinculo ligeantise ac regalise ac do- minii quibus michi obligati fuerant vel sint, vel alias quomodo libet astricti, absolvo ; et eos et eorum heredes et successors in perpetuum ab eis- dem obligationibus et juramentis et aliis quibus- cunque, relaxo, libero et quieto. He then enume- rates all the royal dignities and prerogatives that do or may belong to him, all which, he says, re- nuntio, resigno, dimitto, et in eisdem cedo et ab eisdem recedo in perpetuum ; and confessing him- self insufficient and incapable to govern the king- dom, he subscribes this declaration. 184 ON THE ROYAL PREROGATIVE. The renunciation of Richard was read on the fol- lowing day in Parliament, and unanimously and cordially accepted by the lords spiritual and tem- poral and people there assembled, or, as they are afterwards called, by the states and people of the realm. It was thought proper, however, in justifi- cation of these proceedings, to exhibit articles of charge against the abdicated monarch, and to ap- point procurators " ad resignandum et reddendum " dicto Regi Ricardo homagium et fidelitatem prius " sibi facta." The procurators appointed to this hi^h office were two eminent lawyers, William Thirnyng and John Markham. Thirnyng had been created a puisne judge in the King's Bench in the llth of Richard, and raised to the dignity of chief-justice in the 19th of the same prince. He was continued in that office during the reign of Henry IVth, and retained it at the accession of Henry Vth. Mark- ham had been made a puisne judge in the King's Bench in the 20th of Richard, and remained in that situation under Henry IVth. The speech made by Thirnyng to Richard was in the name " of all the states and all the people " that was then gadyrd by cause of the summons" to Parliament, who have accepted, as he informs the King, his renunciation, and having " redd cer- " tain articles of defaute in his governaunce, they " have deposed him and adjugged him to be de- " posed and pryved of the astate of Kyng and of " the lordeship contened in the renunciation and " cession forsayd, and of all the dignitie and wyre- " shipp and of all the administration that longed AUTHORITIES AND ILLUSTRATIONS. 185 " ther to. And we procurators," he adds, l< of all " thes states and poeple forsayd, os we be charged " by him and by hir autorite gyffen us, and in hir " name, 3eld 3owe uppe, for all the states and poe- :< pie forsayd, homage, liege and feaute, and all " ligeance, and all other bondes, charges and ser- " vices that long ther to. And that non of all thes " states and poeple from this time forward ne here " 3owe feyth ne do 3owe obeisance os to ther " Kyng." I have quoted these passages as specimens of the language as well as of the sentiments of our forefathers. (Q.) Page 77. The Marquess of Mondejar, in his historical memoirs of Alonso the Wise 1 , describes the singu- lar right mentioned in the text as the general law of Spain ; and speaking of the consequences that attend it, he says, esto es perder el derecho i pri- viiegios, de que gozaban como naturales suyos, los que se valian del, quedando libres por su medio, para poder servir a quien quisiessen, sin nota de haver faltado a la obligacion del vassallage debido a su senor natural. The same privilege is thus defined in the Partidas 2 : Desnaturar segunt len- guage de Espafia tanto quiere dezir como salir home de la naturaleza que ha con su senor e con la tierra en que vive. The following are cases where this privilege might be lawfully exercised : Esto es fuero de Castiella, si el Rey desafuera algund rico ome, que se tiene por desaforado e se fuer de la tierra, 1 Lib. v. ch. 15. * Partida iv. tit. 24. 1. 5. 186 ON THE ROYAL PREROGATIVE. suos vasallos e suos amigos deven ir con el e ayu- darle, fasta que el Rey le rescive a derecho en sua corte. E si el Rey desafuera algund fijodalgo, si este que se tiene por desaforado, es vasallo de al- gund rico ome, si el Rey non quisier judgar fuero por sua corte, suo sefior con este suo vasallo pue- den espedirse del Rey, si quieren salir de la tierra, e buscar senor que les faga bien 1 . The rules to be observed by those who avail themselves of this right are given in the Fuero viejo, and, with some differences, in the Partidas. Many instances where it was exercised are to be found in the histories both of Arragon and Castille. Though prohibited by the Partidas, it was not uncommon for Spanish nobles to go over to the Moors. (R.) Page 88. When Madox asserts 2 , that " the whole justice " of the kingdom was primarily and originally the " King's," he must be understood to speak of the ideal King of the law, and not of the real person who, in early times, bore the title of King in Eng- land. The fiction that all justice emanates from the King is, nevertheless, of great antiquity. It was completely established and adopted as a maxim of law in the time of Bracton. In treating of ju- dicial procedure that author has the following re- marks. Ideo videndum erit de iis quae pertinent ad regnum ; quis primo et principaliter possit et debeat judicare : et sciendum est quod ipse rex et non alius, si solus ad hoc sufficere possit, cum ad 1 Fuero viejo de Castilla, 1. i. t. iv. 1. 1. 2 Exchequer, i. 86. 4to. AUTHORITIES AND ILLUSTRATIONS. 187 hoc per virtutem sacrament! teneatur astrictus 1 . He adds afterwards 2 , si ipse dominus rex ad sin- gulas causas terrninandas non sufficiat, ut levior sit illi labor, in plures personas, partito onere, eligere debet de regno viros sapientes, et ex illis consti- tuere judiciaries. In the same spirit Britton com- mences his treatise on the law of England by put- ting these words in the mouth of Edward I. : Pour ceo que nous ne suffisons mye en nostre propre persone a oyer et terminer toutes quereles del peo- ple 3 ; and Spelman adds his authority by saying, Omnis regni justitia solius Regis est 4 . " Le prince " est la source de toute justice" was also a funda- mental principle of the ancient law of France 5 . The same theory was adopted in Castille 6 . (S.) Page 90. Mably 7 has no doubt of the existence of appeals under the two first dynasties in France : Robert- son 8 appears to entertain the same opinion. Mon- tesquieu 9 treats at length of appeals to the King's court for default of justice and of appeals of false judgment. Meyer 10 admits of both, but contends that appeals, in the sense of applications to a higher court for the revision and amendment of the deci- 1 L. iii. t. ii. c. 9. 1. f. 107. 2 Ib. c. 10. 1. 3 F. 1. a. 4 Glossar. Cancellarius. A Bouquet, Droit public de France. Avertissement. 6 Marina, Ensayo, 47. 7 Observ. sur 1'Hist. de France, 1. ii. ch. 5. note 6, and 1. iii. ch. 2. note 2. 8 Charles V., Introd., note 23. '' Espr. des Lois, 1. xxviii. ch. 27, 28. 10 Esprit des Inst. Judic. i. 452-465. 188 ON THE ROYAL PREROGATIVE. sions given by inferior tribunals, were unknown till the establishment of the feudal system. If the judges of an inferior court pronounced an illegal or iniquitous judgment, they might be cited before a higher tribunal, and the case was again subjected to examination. If found guilty, they were fined or otherwise punished for their fault ; but the judgment they had given, he pretends, was not disturbed or affected by the disgrace or punishment they had incurred. Respect was still had to the original principle of Northern jurisprudence, that every court is supreme as far as its jurisdiction extends. It was not till the introduction of the feudal gradations of authority, that appeals, in the sense of the civil law, could be carried from the court of an inferior lord to the court of his superior. To the system maintained by this learned and ingenious author many objections present them- selves. It seems incredible, that, in any system of judicature, there should be no power to rectify a judgment, which had been declared illegal and un- just by a tribunal competent to entertain the ques- tion. That the judicial system of the Barbarians was not liable to this reproach appears from many passages of their laws ; to some of which Meyer has himself referred, though he disputes the con- clusions to be drawn from them. A law of the Bavarians 1 declares in direct terms, that a judgment founded in error shall be null and void: Si per errorem injuste judicaverit (judex), judiciurn ipsius, in quo errasse cognoscitur, non habeat firmitatem. In order to carry this law into 1 L. Bajuv. t. ii. c. 19. AUTHORITIES AND ILLUSTRATIONS. 189 effect, there must have been some court of revi- sion or appeal to pronounce the first judgment er- roneous. A constitution of Clotaire I. 1 gives, in his own absence, to the bishops, a right of superintendence over the ordinary judges, with authority to make them review and amend their decisions when con- trary to law and justice: Si judex aliquem contra legem injuste damnaverit, in nostri absentia per episcopum castigetur, ut quod perpere judicavit, versatim melius discussione habita emendare pro- curet. In the prologue to the Burgundian law 2 it is ex- pressly ordained, that a cause, which had been de- cided contrary to law, should be tried a second time : Si quis sane judicum, tarn Barbarus quam Romanus, per simplicitatem aut negligentiam prae- ventus, forsitan non ea, quse leges continent, judi- cavit, et a corruptione alienus est, xxx. solidos Romanos se noverit inlaturum, caussa denuo dis- cussis partibus judicanda. From the Capitularies 3 it appears, that, accord- ing to the ancient law, one, who had lost his cause in an inferior court, was compelled either to ac- quiesce in the sentence, or to lodge an appeal to the King's Court : De clamatoribus vel causidicis, qui nee judicium Scabiniorum adquiescere nee blasphemare volunt, antiqua consuetude servetur ; id est, ut in custodia reclaudantur donee unum e duobus faciant. Et si ad palatium pro hac re re- clamaverint et litteras detulerint, non quidem eis 1 Baluz. i. 8. 2 Canciani, iv. 13. 3 Capit. 2. in 805. 8. Lothar. 1. leg. Lombard. 64. 190 ON THE ROYAL PREROGATIVE. credatur, nee tamen in carcere ponantur ; sed cum custodia et cum ipsis litteris pariter ad palatium nostrum remittantur et ibi discutiantur sicut dig- num est. Why was the party that appealed ex- cused from acquiescing in the judgment of the in- ferior tribunal, unless the King's Court, to which he appealed, had the power, if it saw cause, to re- verse the decision against him ? That such a power was exercised habitually by the King's Court, appears from the account given by Hincmar of the palatine offices under Charlemagne. Describing the duties of the comes palatii, he mentions as one of the most important ut omnes contentiones le- gales, quse, alibi ortae, propter sequitatis judicium palatium aggrediebantur, juste determinaret, seu perverse judicata ad sequitatis tramitem reduceret 1 . These passages seem utterly irreconcileable with the conclusion of Meyer, that in the appeals known to the Barbarians, " si le juge est condamne pour 11 avoir manque a son devoir, son arrt n'en de- " meure pas moins inattaquable." (T.) Page 96. As the passages referred to in the Year Books are curious and decisive, I shall insert them for the gratification of the reader. Year B. 22 Edw. III. 3 b. Fuit dit que en temps le Roy Henry et devant le Roy fuit emplede come serroit auten home de people : mez Ed. Roy son fitz ordeigfi que home sueroite vers Roy par peticion. Year B. 24 Edw. III. 55 b. Wilbye, a judge, 1 Theorie des Lois Polit. dc France, vii. Preuves, 1G6. AUTHORITIES AND ILLUSTRATIONS. 191 said, Jaye viewe jadis tiel brief pr Henry Regi Angliae, &c. en lieu de que est ore don peticion pur son prerogative. Year B. 43 Edw. III. 22. In an argument whether an advowson appendent to a manor passed from the crown with the grant of the manor, there being no words to that effect in the grant, Candishe says, En temps le Roy H. le Roy ne fuit mes come cfoe parson, car a ceo temps home averoit briefe dentre sur dissein vers le Roy et touts auters maners daceions come vers auter parson, issint a ceo temps quant le Roy done un man fees et avow- sons passer par son don auxibien come passer par auter doner. The conclusion with respect to advowsons was contested ; but no doubt was expressed of the alle- gation, that in the time of Henry III. the King might be sued like a private person. Judgment was given against the crown on the ground that before the statute De Prrerogativa Regis, grants of the King were interpreted like those of common persons. (U.) Page 114. The horror entertained by the ancient inhabit- ants of the North for the plunder or disturbance of the dead is strongly expressed in many of the laws of the Barbarians. To commit walreaf, that is, to strip a dead man, whether buried or not, of his arms or clothes, or of anything about him, was stigmatized by the Anglo-Saxons as the act of a nit hing, which was with them the most severe term of reproach ; and if any one was appealed for so 192 ON THE ROYAL PREROGATIVE. unworthy a proceeding, he was bound to clear him- self by the oaths of forty-eight full-born thegns 1 . One who disinterred or plundered a dead body, after it was buried, is declared a wargus or vaga- bond by the Salic law, and excluded from all inter- course with mankind till he has received forgive- ness from the relations of the deceased, and ob- tained their intercession for his pardon. If food or shelter was given to him while he remained in this state of outlawry, the person who supplied his wants, though his wife or nearest relation, was subjected to a heavy penalty 2 . This excessive abhorrence of violations of the sepulchre had most probably its origin in the an- cient superstitions of the North. It was the belief of the Teutonic tribes, that the arms, dress, and ornaments, deposited with a warrior in his tomb, accompanied him to the hall of Odin, and served there for his use and decoration. It was their practice, therefore, to bury the dead in their best attire, and to place with them in the grave their arms, rings, bracelets, and other ornaments of gold and silver, with some coined money, in case they should have occasion for it 3 . To purloin any part 1 Anc. LL. and Inst. p. 96. Bromton. col. 897. H. Ixxxiii. 4, 5. 2 Pact. Leg. Sal. Ant. t. xvii. 2, 3 ; t. Iviii. 1. Reform, t. xvii. t. Ivii. Similar, but less severe regulations against the spoliation of the dead are to be found in the laws of the Ala- manni, t. 1., and in those of the Bavarians, t. xviii. Among the Visigoths, if a freeman violated a sepulchre, and took from the dead body any of its ornaments or clothes, he received a hundred lashes, and had to pay a pound of gold ; if a slave committed the same offence, he received two hundred lashes, and was burned alive. L. Visig. 1. xi. t. ii. 1. 1. 3 Percy's Mallet, i. 344-346. Note of Eccard in Canciani, ii. 9. AUTHORITIES AND ILLUSTRATIONS. 193 of this deposit was resented as a grievous and irre- parable injury to the dead. To the worshipers of Odin it must have appeared the same calamity as to their posterity seemed the denial of the rites of Christian burial, or the suppression of the prayers and masses appointed for the souls of the deceased. (V.) Page 132. The different facts relating to the partition of land and chattels between the Barbarians and the Provincials, in whose territories they settled, have been collected by Savigny in his admirable work on the history of the Roman law in the middle ages. The following abstract of his researches may not be unacceptable to some readers. Among the Burgundians the land was partitioned between the Romans and their Barbarian conquerors immediately after the settlement of the latter in the territory to which they gave their name. Of the houses, offices, and gardens, the Burgundian re- ceived the half; of the cultivated land two-thirds ; and of the bondmen one-third. The woods re- mained common property. The free Burgundian, who arrived after the first division, received, with- out any of the bondmen, half of the cultivated lands ; and the manumitted Burgundian had only one-third. There was an actual division of the land ; but the whole territory was not divided at once between the two nations. Every Burgundian claimant had an estate assigned to him, of which he was entitled to the portion given to him by the law. The Roman, on whom he was quartered, is sometimes called his hospes, and sometimes the o 194 ON THE ROYAL PREROGATIVE. Barbarian is called the hospes of the Roman; so that the relation between them was considered to be mutual and reciprocal. The share of the Bur- gundian was called his sors ; and his right to it, hospitalitas. If any Burgundian accepted bene- ficiary lands from the King, he had no sors or allot- ment at the expense of his Roman hospes. Where the sors or allotment of a Burgundian was exposed to sale, his Roman hospes was entitled to the first offer ; but no Barbarian could part with his sors unless he had lands elsewhere 1 . Among the Visigoths also the Romans were de- prived of two-thirds of their lands. Both the Gothic and Roman allotment was called sors*. The Ostrogoths took one-third only of the lands of the Romans ; but they retained the land-tax of the empire for lands held by the Provincials, their own estates being exempt from it. The portion they took 'to themselves was called sors barbarica. Roman estates once divided were not subject to a second partition 3 . The Gothic monarchy in Italy having been sub- verted by the arms of Belisarius and Narses, the country fell a prey to the Lombards, a nation that had advanced with rapid strides from the interior of Germany into the heart of the empire, and had therefore acquired less of the habits and dispositions of civilized life than the tribes which had been long settled on the frontier. Instead of taking from their subjects one-third of their land, they made them contribute one-third of its produce. The Roman proprietor retained his land, and had the 1 Savigny, i. 279-282. 2 Ibid. 283. 3 Ibid. 316-319. AUTHORITIES AND ILLUSTRATIONS. 195 expense and trouble of cultivating the whole ; but one-third of its produce he was compelled to give to the Lombard who was quartered on him as his guest. Individual Romans were put to death, and their estates confiscated ; but the partition of pro- duce was the general rule adopted by the Lombards on their conquest of Italy 1 . Neither in the histories nor in the laws of the Franks is there an allusion to any uniform mode of dividing among the conquerors the lands of the vanquished. But Romans continued to hold landed property, and the Roman system of taxation was maintained. Romans are distinguished in the Salic law as conviva Regis, possessores, and tributarii. The convivse Regis corresponded to the antrustions and leudes of the Barbarians ; the possessores were landed proprietors, whose estates were burthened with a land-tax ; the tributarii were Provincials subject to a poll-tax 2 . (W.) Page 133. Muratori 3 adopts the definition of alodial pro- perty given by one of the old glossarists : Alodium dicitur hsereditas, quam vendere et donare possum, ut mea propria. Lands, says Bignon 4 in his notes on Marculfus, were divided into propria and fiscalia. Propria seu proprietates dicebantur, quse nullius juri obnoxia erant, sed optimo maximo jure possi- debantur, ideoque ad hseredes transibant. Fiscalia 1 Savigny, i. 377-387. 2 Ibid. 294. 3 Ant. Med. J\. Dissert. 11. 4 Baluz. ii. 862. Canciani, ii. 177. O 2 196 ON THE ROYAL PREROGATIVE. vero beneficia sive fisci vocabantur, quse a rege ut plurimum, posteaque ab aliis, ita concedebantur, ut certis legibus servitiisque obnoxia cum vita ac- cipientis finirentur. Alodial land was termed by the Barbarians h&re- ditas from its inheritable quality, and proprietas be- cause it was held in absolute property 1 . It was called terra aviatica or alode parentum, when it came to a man from his ancestors ; and comparatum or conquisitum, when it was acquired by purchase 2 . The terra salica is supposed by some to have been land possessed by inheritance, in opposition to land obtained by purchase ; and by others, to have been the land assigned to individuals as their private property at the time of the conquest 8 . In the ninth and tenth centuries land of inheritance was said to be alodial, though held of a lord or superior, and liable to him in rent and services 4 . Alodial lands that came by inheritance descended to males in preference to females. In some nations the exclusion was absolute and perpetual 5 ; but it might be defeated by a father who chose by deed 1 Notes of Eccard on the Pact. Leg. Sal. Ant. t. Ixii. Can- ciani, ii. 104. And Notes of Bignon on the Formulae of Mar- culfus, ib. 185, 197. 2 Ibid. Ibid. L. Ripuar. t. Ivi. Marculf. Form. ii. 4, 6, 7, 11, 12. App. 47, 49. 5 Mably, Observ. sur 1'Hist. de France, 1. ii. c. 5. note 7. Guizot, Essais, 95. 4 Baluz. ii. 144, 145, 147. It is in this sense the words alo- dium and aloarius are to be understood in Domesday. P. L. Sal. Ant. t. Ixii. 8. Reform, t. Ixii. 6. L. Ripuar. t. Ivi. 4. OF x FIVERSITY^ AUTHORITIES AND ILLUSTRATIONS. to call his daughters to the whole or to share of his inheritance l . Among the Anglii and Werini the daughters succeeded to the landed pro- perty of their father, if he had no male heirs within the fifth degree; " tune demum," says the law, " heereditas ad fusum a lancea transeat 2 ." The Saxons preferred the son and the son's son to the daughter, in the inheritance of landed property, but gave it to the daughter before the brother 3 . Among the Alamanni, if there was no son, the daughters succeeded to the paternal inheritance 4 ; and the same rule was the general law of the Bur- gundians 5 . All freemen, when legally summoned, owed mili- tary service to the state 6 . Alodial proprietors were subject, like others, to that obligation. But, as they served at their own expense 7 , it was found necessary, when kingdoms became extensive and military expeditions distant, to excuse from actual service those who were unable to defray the charge. Charlemagne fixed at three, four, or five mansi 8 the quantity of land that imposed on the proprie- tor the necessity of serving in person. Those 1 Marculf. Form. ii. 10, 12. App. 47, 49. 2 L. Angl. et Werin. t. 6. 8. 3 L. Saxon, t. 7. 1, 5, 8. * L. Alaman. t. 57. 5 L. Burgund. t. 14. 1. L. Ripuar. t. 65. 1. 7 Theorie des Lois polit. de la France, t. iii. Preuves, 68, 70. 8 So called a manendo, from being the residence of a family. The division of lands into mansi seems to have been very gene- ral, if not universal, among the Franks. Many passages tend to show that the mansus consisted of a determinate quantity of land ; but others are inconsistent with that supposition. See Theorie des Lois politiques de la France, t. ii. Preuves, 112-135. 198 ON THE ROYAL PREROGATIVE. who had less joined with others, who were in the same predicament, to furnish a soldier from the number of inansi required to supply one by law ; and freemen who had no land were made to contribute in proportion to their personal estate *. Persons excused by their poverty from distant expeditions, were required to assist in the construction and repair of roads, bridges, and fortified places ; and if the province where they resided was invaded, they were bound to take up arms in its defence 2 . Alodial proprietors and freemen in general were also obliged to provide lodging, entertainment, and means of conveyance for the missi regis, and ambassadors from foreign parts 3 ; and on stated occasions they were expected to make free gifts to the King 4 . (X.) Page 135. Some authors have confounded the fisc or pro- perty of the public, with the private or patrimonial estate of the King. Muratori has carefully distin- guished them. " Duplex bonorum genus regibus " Italise fuit ; alterum ad fiscum, sive ad coronam, " pertinens ; alterum patrimoniale sive dominica- " turn 5 ." The same distinction is marked with the greatest accuracy in the laws of the Visigoths. In that nation monarchy was not merely in form, but 1 Capit. 807. 2. Capit. 1m. 812. 1. repeated in Capit. 828. 7. 2 Capit. Carol. C. t. 36. 27. 3 Marculf. Form. i. 11. L. Ripuar. t. 65. 3. Capit. 819. 16. Prsecept. Ludov. P. pro Hispariis, 1. 4 Theorie des Lois polit. de la France, viii. Preuves, 154-160. ' Muratori, Antiq. Med. J\. Diss. If). AUTHORITIES AND ILLUSTRATIONS. 199 in practice, elective. From the first establishment of the Visigoths in Spain to the final extinction of their empire, there is but one instance of the crown passing in the direct line of descent from father to son for more than three generations. It became necessary, therefore, in justice to the families of those called to the throne, to keep distinct the pro- perty they possessed as individuals from the pro- perty they enjoyed in right of the crown. The regulations to that effect were numerous. What- ever any King of the Visigoths possessed by inhe- ritance or acquired by gift or purchase, descended to his heirs ; whatever belonged to the kingdom, went to his successor l . The fisc belonged to the public. In the Lom- bard and Frank kingdoms of Italy it meant the fund or treasure " turn ad palatii splendorem sus- " tinendum, turn ad tutelam regni, aut ad belli ne- . " cessitates, aliave publici regiminis munia oppor- "tunum 2 ." From its destination to the public service it was called pars publica. By the Lom- bard law 3 , if a man held land which was proved to have been at one time de publico, and could not show that he had enjoyed the undisturbed posses- sion of it for sixty years, he was bound either to produce a grant of the land to himself or to his ancestors, or to give it back to the public. Land holden by a serf or farmer of the King was held to be land of the public 4 . A grant of Charlemagne 1 Leg. Visigoth. 1. 2. t. 1 . 1. 6. See also Cone. Tolet. iv. 75 ; viii. decretum; xiii. 4 ; xvi. 8; xvii. 7. 2 Muratori, Ant. Med. Mv\, Diss. 17. 3 L. Liutprand. vi. 24. 4 Ibid. 200 ON THE ROYAL PREROGATIVE. in 774 describes land, which had belonged to the fisc, as the property of the public and of the palace ; and a charter of 924 mentions, " curtem quandam " juris regni nostri, qua? semper nostrse regise et 11 publicse parti pertinuit V In 978, the Emperor Otho II. confirmed the Bishop of Cremona in the possession of certain duties " ad nostram olim pub- " licam pertinentes partem ;" and in 1038, Conrad the Salic, in regulating the mutual obligations of lords and vassals, describes the latter as persons, " qui beneficium de nostris publicis bonis aut de " ecclesiarum prsediis tenent 2 ." To these author- ities, collected by Muratori, may be added a pre- cept of Dagobert I. of France, in which that mo- narch grants to the abbey of St. Denis all the duties and tolls arising from a fair he had established " quicquam ad partem nostram vel fisco publico de " ipso mercado ex ipsa mercimonia exactare po- " tuerit 3 ." Lewis I. having improvidently given away many of the royal vills to his nobles, while he administered the government of Aquitaine under his father, Charlemagne sent two of his missi into that province, " prsecipiens, lit villa?, quse eatenus " usui servierant regio, obsequio restituerentur "publico 4 ." Mably and Guizot 5 regard the notion of public property set apart for the service of the state, as a refinement too great for Barbarians. These excel- 1 Muratori, Antiq. Med. JEv. Diss. 18. * Ib. Canciani, i. 236 ; v. 43. 3 D. Bouquet, iv. 627. 4 Ib. 5 Mably, Observ. sur 1'Hist. de France, 1. 1. ch. 3. note 4. Guizot, Essais sur 1'Hist. de France, p. 123. AUTHORITIES AND ILLUSTRATIONS. 201 lent authors forget that for ages before the Teu- tonic nations quitted their original settlements, the territory they possessed had been considered the common property of the tribe 1 , and that the por- tions detached from it for the use of individuals, reverted after a limited time to the public. They forget also, that payments to the state were known to the Germanic nations in the time of Tacitus, and consequently that the notion of public property was familiar to them before their establishment in the empire. The lesson these Barbarians had to learn was not a knowledge of public or common property in land, but of private, patrimonial, inhe- ritable estates. The conversion of land from pub- lic to private property has been, doubtless, in its consequences, highly beneficial to the community ; but, when first carried to a great extent, there is reason to believe it was equally unpopular with the division of commons in modern times. The appro- priation in perpetuity to private persons and their heirs, of lands that had formerly belonged to the community, and of which every one in his turn 1 This notion seems to have prevailed very generally, if not universally, in the infancy of nations. Vestiges of it are still to be found in the province of East Friesland (Edinb. Review, vol. xxxii.) ; and periodic allotments of land, founded on the same principles, continue to be made by the Afghauns, a singular race, who, in the heart of Asia, exhibit in their laws, character, and political institutions, a most striking similitude to the ancient Germans. For an admirable description of this extraordinary people, the reader will do well to consult Elphinstone's Account of Caubul, the most valuable and instructive work, with the ex- ception of Volney's, that has appeared on any oriental nation in modern times. 202 ON THE ROYAL PREROGATIVE. might hope to obtain at least temporary possession, seemed an encroachment on the ancient rights of the public. To protect and preserve from destruc- tion the landmarks that served to distinguish the boundaries of private estates, laws and penalties were found necessary 1 . Rights of common were retained ; and among the Visigoths in Spain large tracts were set aside for pasturage, under the name of campi vacantes, which no one had a right to en- close or appropriate 2 . Such was the deference for ancient usage, and so strong the recollection of common property in land, that in many parts of Europe the cultivated fields were everywhere open to the public from the separation of the crop to the ensuing seedtime. In France this was called the temps de banon 3 . An estate belonging to the Fisc or public was called a fisc ; and the persons who cultivated and paid rent for it, whether serfs or freemen, were called Fiscalini 4 . Estates that lapsed for want of heirs 5 , and lands forfeited for delinquencies 6 , escheated to the Fisc ; that is, they reverted to the 1 L. Langobard. Rotharis. 240. L. Visigoth. 1. 10. t. 3. 1. 1, 2. L. Bajuv. 1. 11. c. 1. 1, 2. L. Burgund. t. 55. 4. 2 L. Visigoth. 1. 8. t. 3. 1. 9 ; t. 4. 1. 26. 3 Ib. 1. 8. t. 3. 1. 12, with Canciani's note. Hickes, Gram. Anglo-Saxon. 163. 4 Spelman, Glossary. * Edict. Theodoric. reg. 24. L. Salic, ref. t. 63. L. Ripuar. t. 57. 4. t. 61. L. Alaman. t. 25. t. 40. L. Bajuv. t. 14. c. 9. 4. 6 P. Leg. Sal. ant. t. 59. Reform, t. 59. L. Ripuar. t. 69. 1, 2. L. Bajuv. t. 2. c. 1. 1 ; c. 2. Leg. Langobard. Carol. M. 5. Capit. 1. 4. 24 ; 1. 5. 383 ; 1. 6. 431. AUTHORITIES AND ILLUSTRATIONS. 203 state from which they had heen derived. Penalties for transgressions 1 , and part of the dues for the administration of justice 2 , were also payable to the Fisc. As the Fisc was administered by the King and his officers, its estates are often called the King's fiscs, their cultivators the King's fiscalini, and the dues belonging to it were said to be paid ad partem regis 3 . Besides escheats for want of heirs, forfeitures for transgressions and other casualties authorised by law, the fisc was often enriched by illegal con- fiscations. Many instances of this injustice are to be found in the writings of Gregory of Tours and other historians. One deserves to be mentioned, because it describes in language not to be mistaken, the original and primitive notion of the fisc as being property that belonged to the public. Childebert II. had one Magnovald assassinated in his palace at Metz, resque ejus protinus direptae et serario pub- lico, quantum repertum est, sunt illatae 4 . Grants of fiscal lands to the church were innu- merable. They began with the conversion of Clo- vis, and continued to the extinction of the Carlo- vingian dynasty. " Our fisc," exclaimed Chilperic II., " is reduced to beggary ; our riches have been 1 P. L. Salic. Ant. t. 65. Reform, t. 63 and t. 65. Capit. Part. Saxon. 16. L. Bajuv. t. 2. c. 4. 1 ; t. 6. c. 6, 7. L. Alaman. t. 4. 2 L. Ripuar. t. 89. Marculf. 1. 20. Capit. 1. 4. 56. L. Alaman. t. 1. 2; t. 3. 3; t. 31. 1. 3 Capit. 1. 3. 82. Leg. Langob. Carol. M. 5. Capit. 1. 3. 16. L. Frision. t. 3. 2, 3, 8 ; t. 17. 4, 5. Capit. 1. 3. 30 ; 1.4. 5. 4 Greg. Tur. L. 8. c. 36, as quoted by Guizot, Essais, p. 125. 204 ON THE ROYAL PREROGATIVE. " transferred to the church ; the clergy alone have " power ; the splendour of the crown has vanished " and gone to decorate the mitre of the bishop 1 ." The spoliation of the church by violence was the natural result of the exorbitant wealth it had ac- quired. Unable to recompense his soldiers for their services against the Saracens, Charles Martel quar- tered them on his clergy. A compromise was after- wards effected by his successors, which restored part of its possessions to the church, and esta- blished tithes over Christendom. The conversion of fiscal into alodial property is coeval with the first establishment of the Barba- rians in the empire. An alodial estate was in strictness nothing but a portion of the national ter- ritory assigned in perpetuity to an individual and his heirs. The Burgundian law 2 , in appointing to fresh adventurers a smaller portion of land than had been given to the original conquerors, plainly indicates, that the whole territory had not been exhausted by the first partition, and that the lands which remained undivided were still at the disposal of the state. A formula is to be found in Marcul- fus 3 for the grant of fiscal lands in perpetuity, which were thereby changed into alodial posses- sions. Some authors have considered this formula of Marculfus as a precedent for the grant of an hereditary benefice. But it is only necessary to read with attention the act itself, to perceive, that what it creates is not an hereditary benefice, but an alodial estate. It is viewed in this light by Bignon 1 Guizot, 115. Greg. Tur. L. 6. c. 46. * Additam. 2m. 11. 3 Lib. i. 14. AUTHORITIES AND ILLUSTRATIONS. 205 in his notes on a subsequent formula 1 , confirmatory of what had been done under the preceding one ; and it is only from inadvertence that it could have been considered in a different point of view. It contains the legal form required for the grant of a vill with its appurtenances, " sicut a fisco nostro " possidetur viro inlustri in integra emunitate 2 " perpetualiter ita ut earn jure proprietario " habeat, teneat atque possideat, et suis posteris " aut cui voluerit ad possidendum relinquat, vel " quicquid exinde facere voluerit." There can be no doubt that this is the grant of an estate in ab- solute property. The formula that immediately follows, contains the precedent for a similar dona- tion to the church in nearly the same words. The earliest instance I have found of the trans- mutation of fiscal into alodial property occurs in a diploma of Charles Martel 3 , executed in 726. After a description of the property, the deed proceeds to say, " rex Hildebertus genitori nostro Pippino de " suo fisco concessit et mihi Pippinus jure " hsereditario in proprietatem concessit." In the time of Charlemagne the fraudulent conversion of fiscal lands into alodial estates by the counts and by holders of benefices, made it necessary to frame a law against a practice so injurious to the public. " Auditum habemus," says Charlemagne, " qualiter " et comites et alii homines qui nostra beneficia 18 habere videntur, comparant sibi proprietates de " ipso nostro beneficio. Audivimus," he proceeds i Lib. i. 17. 9 i. e. with exemption from foreign jurisdiction. 3 D. Bouquet, iv. 705. No. 121. 206 ON THE ROYAL PREROGATIVE. to state, " quod alibi reddant beneficium nostrum " ad alios homines in proprietatem, et in ipso pla- " cito dato pretio comparant ipsas res iterum sibi " in alodum. Quod omnino cavendum est, quia " qui hoc faciunt, non bene custodiunt fidem quam " nobis promissam habent. Et ne forte in aliqua " infidelitate inveniantur, quia qui hoc faciunt, per " eorum voluntatem ad aures nostras talia opera " illorum non perveniunt 1 ." It appears from this capitulary, that the lands of the fisc could be converted into alodial property in the placita or courts held by the count ; but that the count was responsible for the act, and in the instances which gave occasion to the law, that he had concealed from the government what he had done, from a consciousness that he had conducted himself fraudulently and to the prejudice of the state. The conversion of fiscal into alodial property was checked, but not abolished, by this enactment. A charter of Lewis III., in 901, grants to one Herrad a vill " pertinentem hactenus de fisco imperiali," with power " donandi, ordinandi, commutandi, ven- " dendi, sive quovis titulo inscriptionis alienandi, " remota totius publicae potestatis inquietudine 2 ." Part of the fiscal lands was appropriated to de- fray the maintenance of the royal household and expenses of the government. Part was given under the name of benefices to the Antrustions, Leudes, or vassals of the King, as a reward for their past and security for their future services to the state. i Capit. 5m. a. 806. 7, 8. Baluz. i. 453. * Muratori, Ant. Med. ^Evi, Diss. 19. AUTHORITIES AND ILLUSTRATIONS. 207 This distinction is accurately made in the Capitula, drawn up by the bishops of France in a synod held at Epernay in 846, and presented to Charles the Bald and his nobles. " Videtur nobis," say these prelates, " utile et necessarium ut fideles et strenuos " missos ex utroque ordine per singulos comitatus " regni vestri mittatis, qui omnia diligenter inbre- " vient quae tempore avi ac patris vestri vel in regio " specialiter servitio vel in vassallorum dominico- " rum beneficiis fuerunt, et quid vel qualiter aut " quantum exinde quisque modo retineat, et se- " cundum veritatem renuntietur vobis." They go on to propose, that all reasonable grants should remain untouched, but that those which appeared to have been fraudulently obtained, or irrationally made, should be corrected " consilio fidelium ves- " trorum," to the end that your household may be upheld, your servants recompensed, " et sic demum " res publica vestra de suo suffragetur sibi *." The proposition of the bishops was rejected by the nobles ; but it establishes the fact, that there were two classes of fiscal lands, one employed in bene- fices, the other employed to defray the expenses of the government. Montesquieu 2 says the latter were termed regalia, but I can find no authority for the word in that acceptation. In the time of Charlemagne they are sometimes called fiscs simply, in contradistinction to benefices, as in the following capitulary: " Ut non solum beneficia abbatis " vassallorum nostrorum, sed etiam nostri fisci de- " scribantur, ut scire possimus quantum etiam de 1 Capit. Carol. Calv. t. 7. 20. Baluz. ii. 31. 2 Espr. des Lois, 1. 30. ch. 16. 208 ON THE ROYAL PREROGATIVE. " nostra in unius cuj usque legatione habeamus *." At other times they are called " villse nostrse, quas " ad opus nostrum serviendum institutas habemus," and directions are given for their administration, such as a great proprietor might be supposed to issue for the management of his estate 9 . " Les biens reserves pour les leudes," says Mon- tesquieu 3 , "furent appelles des biens fiscaux, des " be'ne'fices, des honneurs, des fiefs dans les divers " auteurs et dans les divers temps." On this point it is unnecessary to enlarge, as there is but one opinion respecting it. But the case is different with regard to the length of time for which bene- fices were originally granted. Montesquieu, Mably, and Robertson, with most of the writers on the feudal law, agree in the conclusion, that benefices were at first revocable at the pleasure of the grantor. Muratori maintains the contrary. " Prima " notio veterum beneficiorum," says that learned antiquary, " hsec fuit, videlicet jus in acquirentem " translatum perfruendi prsedia tradita, dum vita "comes esset 4 ." Bouquet also controverts the doctrine of the feudists, that benefices could be re- sumed at pleasure, or were ever granted for a single year. " Les capitulaires, qui defendent d'oter un " be'ne'fice sans une cause legitime, sont absolument " contraires a cette opinion 5 ." Hallam and Guizot have taken the same view of the question, and from 1 Capit. 3m. a. 812. 7. * Capital, de Villis. Baluz. i. 331-342. 8 Espr. des Lois, 1. 30. ch. 16. 4 Muratori, Ant. Med. ^Evi, Diss. 11. 5 Bouquet, Le Droit public de France, 240. AUTHORITIES AND ILLUSTRATIONS. 209 the facts and arguments which they have adduced, no doubt can remain, that from their commence- ment, benefices were granted for life, subject to for- feiture for misconduct, and, from the violence of the times, liable, like every other species of pro- perty, to illegal confiscation l . Benefices were granted by alodial proprietors as well as by the fisc. It is probable, that this prac- tice was resorted to whenever the estate of an alodial proprietor was larger than the mainte- nance of his household and private establishment required. The King, as possessor of a great alodial property, must also have granted benefices from his patrimonial estate. But in the kingdoms, where royalty ceased in practice to be elective, the pri- vate estate of the King came to be confounded with the fisc or property of the public, of which he was the principal administrator, and, as representative of the state, the nominal distributor. The original difference, however, between these two species of property was not entirely forgotten. So late as the reign of Lewis I. we find on one occasion a distinc- tion made between the benefices of the King and those of the kingdom. If any one, says that prince, who holds honores nostros, shall neglect or refuse to entertain ambassadors coming to us, or to fur- nish them with the means of conveyance, " nee " nostrum nee regni nostri honorem ulterius volu- "musut habeat 2 ." From the first establishment of the Burgundians 1 Hallam, Middle Ages, i. 160-163, Svo. Guizot, Essais sur 1'Hist. de France, 129-133, 139-141. 9 Capitul. 823. 16. Baluz. i. 637. 210 ON THE ROYAL PREROGATIVE. in Gaul royal grants among that people appear to have been hereditary ; but those who held them were excluded from the allotments of alodial pro- perty, distributed to other freemen 1 . The cause of this singularity has not been explained. In Spain benefices of the crown were declared hereditary before the middle of the seventh century 2 ; and those of private individuals could not be resumed on the death of the person to whom they had been given, if his son was willing to continue in the ser- vice of the grantor 3 . Among the Franks hereditary benefices were slowly and gradually introduced. It seems generally admitted, that the benefices of the Merovingian Kings were made hereditary by the treaty of Andely in 587, confirmed by the edict of Clotaire II. in 61 5 4 . Benefices for life continued, however, to be granted by Charlemagne and his successors, and by whatever means it was brought about, there is reason to believe, that under the first princes of the Carlovingian dynasty, the greater number of benefices were of that description. Under Lewis I. hereditary grants became frequent, and a capitulary of Charles the Bald in 877, had the effect of converting all benefices into hereditary possessions & . One who held a benefice might grant any part of 1 L. Burgund. t. 1. 3, 4 : t. 54. 1. ft Cone. Tolet. v. in 636. 6. Cone. Tolet. vi. in 638. 14. Leg. Visigoth. 1. 5. t. 2. 1. 2. 3 Leg. Visigoth. 1. 5. t. 3. 1. 1, 4. 4 Mably, Observ. 1. 1. ch. 4, note 3 and 5. Guizot, Essais, 142. 5 Mably, Obs. 1. 1. ch. 3, note 2. L. 2. ch. 5, note 3. Guizot, Essais, 140-145. AUTHORITIES AND ILLUSTRATIONS. 211 it to a third person to hold of himself, and by this practice, when it became general, a gradation of beneficiaries was every where established, from the first grantor to the actual occupant of the land. The holders of beneficiary lands were bound, like alodial proprietors, to render military service to the state, and the neglect or refusal of this duty subjected the beneficiary to the forfeiture of his benefice 1 . Whether they held of the fisc, of the church, or of private persons, their obligation of military service was the same 2 . Some persons were excused from this duty, but the number was not great ; and if any others attempted fraudulently to elude its performance, they were fined 3 . Those who held lands of the fisc were compelled, under the penalty of losing their benefices, to entertain the missi regis and ambassadors going to court, and to convey them forward on their journey 4 . So far beneficiaries had the same obligations to discharge as alodial proprietors ; but, in addition to these duties, they were bound to be true and faithful to the person from whom they held their benefice ; to assist him in his private wars 5 ; to attend his court ; and to render him various services, personal and domestic. These duties, borrowed from the ancient relations of chief and companion, were at first vaguely and loosely defined ; but as benefices were converted into hereditary possessions, they became 1 Capit. 807. 1. Capit. 2m. 812. 5. 2 Capit. 1m. 812. 5. Capit. 2m. 812. 7. Capit. 5m. 819. 27. 3 Capit. 1m. 812. 4, 9. Capit. 2m. 812. 9. Capit. 5m. 819. 27. 4 Capit. 823. 16. b Capit. 2m. 813. 20. P2 212 ON THE ROYAL PREROGATIVE. more fixed, precise, and determinate. In return for these services and duties, the lord was bound to maintain his beneficiary or vassal, as he was called, in the land he had given him, and to protect and defend him with all his power. According to the fundamental principle of the connexion between lord and vassal, their obligations were mutual and reciprocal. " Quantum homo," says Glanvile 1 , " debet domino ex homagio, tantum debet illi do- " minus ex dominio, prseter solam reverentiam." The protection and security which a beneficiary or vassal derived from his connexion with a power- ful superior, led to a practice that seems at first sight unaccountable. It was the custom of alodial proprietors, from a very early period 2 , to surrender their estate to the King, or church, or to some one able to defend them, on condition of receiving it back again as an hereditary benefice 3 . Benefices of this description were called fiefs de reprise, and by some they are supposed to have been more numerous than the fiefs or benefices created by real grants 4 . Precariae and prestarise were grants of land from the church, with some rent or service, in general, annexed to them. They might be conferred for life or for a term of years. The reversion was in the church ; but the holders often succeeded in converting them into hereditary possessions, and the church was often defrauded of the rent and services reserved in the deed of gift. In some in- 1 Glanvile, 1. 9. c. 4. Marculf. i. 13. * Espr. des Lois, 1. 31. ch. 8. 4 Montlosier, Monarchic Fran9aise, 1. 72, 332. AUTHORITIES AND ILLUSTRATIOiNS. 213 stances they were real grants. In other cases they were fiefs de reprise, the proprietor having surren- dered his estate to the church, with the reservation of a life estate to himself or to some other person. They were sometimes held of laymen 1 . The same person often possessed both alodial and beneficiary property. That, which was alodial, he could dispose of at his pleasure. That, which was beneficiary, reverted to the donor on the expiration of the term for which it had been granted 2 . (Y.) Page 136. Somner takes the following description of hoc- land from an old leiger-book in Guildhall " terra, " quam homo potest in lecto suo languens legare 3 ." But this description applies to one species of b6c- land only, viz. to an estate in fee- simple. In the old Latin version of the Anglo-Saxon laws, pub- lished by Bromton, the word bocland is rendered terra hsereditaria in Alf. 3. and in Cn. P. 75 hse- reditas in Cn. E. 11 terra testamentalis in Jud. Civ. Lund, and in Cn. P. 12 terra libera in Ethelr. 2 feodum in Edg. E. 2 4 and in the Textus Rof- fensis it is repeatedly translated alodium. It occurs sometimes, though rarely, after the Conquest. In a deed subsequent to that period it is described by the proprietor as land " de qua nulli respondeo 5 ." 1 Guizot, Essais, 133-139. Marculf. Form. ii. 5, 6, 40, 41. Append. 27, 28, 41, 42. Sirmond. Form. 7. Bignon. Form. 20. L. Alaman. t. 2. 1. 2 Bouquet, Droit public de France, 387. Robertson's Charles V., note 8. 3 Somner's Gavelkynd, 83. * Anc. LL. and Inst. pp. 496, 544, 537, 534, 518, 526, 524. * Ibid. 121. 214 ON THE ROYAL PREROGATIVE. It is found once only in Domesday in the sense of tenure. Certain lands are said to have been held in bocland in the time of King Edward 1 . The word alodium, when it occurs in that work, appears to be used in the sense of hereditary property. (Z.) Page 146. Among the Scandinavians Ian was a military feud, and the persons who held such feuds were called l&nsmen or landirmen. " Observandum est," says Ihre, " feuda alia apud nos i len concessa fuisse, " alia at veitslu. Priora qui tenebant, certum mi- " litum numerum in aciem educere debebant ; pos- " teriora vero habentes, commeatum prsebebant, 11 aut definite ccenarum numero principem cum " comitatu cibare tenebantur 2 ." In a passage of the Heimskringla, to which he refers, it is said of Halogaland, a province of Norway, that it had been held by Harek, sum a at veitzlo enn suma at leni " partim data sumtibus ad convivia ferendis, par- " tim feudo 3 ." I have found no traces of this use of the word leen among the Anglo-Saxons. (AA.) Page 151. Reveland is distinguished in Domesday from vil- lein-land and thegn-land, and a comparison of dif- ferent entries leads to the conclusion, that it was land attached to the office of gerefa. When land was fraudulently converted from thegn-land into reveland, it was subtracted from the military ser- 1 1 Domesday, f. lib. 2 Glossar. Suio-Goth. Ian, weitsla. s Heimskringla, ii. 200. Edition of 177S. AUTHORITIES AND ILLUSTRATIONS. 215 vice of the state, and appropriated by its civil ser- vants, the gerefan, to the increase of their own salaries or stipends. Complaints of this abuse are made in Domesday 1 . Thegn-land was distinguished from ferm-land, demesne land, and villein-land 2 . If a doubt was entertained whether certain lands were thegn-land or not, the question was tried and decided in a court of law 3 . But these different species of pro- perty might be exchanged 4 ; and in some cases the one appears to have been arbitrarily converted into the other 5 . Land held for rent is mentioned at a very early period in the Anglo-Saxon laws. The rent was discharged partly by payments in kind, and partly by the performance of servile offices 6 . By a law of the Conqueror nothing more could be exacted from the cultivators of the soil than the rent due for their land, and while they were able to do their lawful service, they could not be expelled from their farms 7 . The services due from land were distin- guished in later times into free or noble, and base or villein ; but, in Saxon times, the distinction was unknown or little regarded. The country between the Ribble and the Mersey was held under the Con- fessor by a multitude of thegns, who were bound to work like villeins in the reparation of the King's i 1 Domesday, 57 b, 69 a, 179 b, 181 a 2. * Ibid. 64 b 2, 76, 86 a, 90 b, 98 b, 162 b. 3 Ibid. 98 b bis, 181, 262 b 2. Spelman, Glossary, Teinland. * Ibid. 64 b 2. 5 Ibid. 67 a ter, 67 a 2 bis, 67 b 1, 76. " In. 6. 23, 44, 59, 67, 70. * Will. Conq. .33. 216 ON THE ROYAL PREROGATIVE. vills, to assist in his fisheries, to keep in order the hedges and hunting stations in his forests, and in harvest to send their reapers to cut down his corn. Yet these men are called liberi homines, and as such gave their attendance at the hundred and county courts, paid relief for their lands, and might quit them when they pleased on the payment of a fine 1 . Many tenants of the see of Worcester were in like manner bound to the performance of base as well as of free services 2 . 1 1 Domesday, 269 b. 9 Heming, 292. AN INQUIRY INTO THB LIFE AND CHARACTER OF KING EADWIG. AN INQUIRY LIFE AND CHARACTER 0R.KING EADWIG. EADWIG, the fourtn^ili desctm from ^Elfred, is described by our monkish historians as a volup- tuous and rapacious tyrant, whose misgovernment provoked an insurrection of his subjects north of Thames, and occasioned his expulsion from that part of his dominions. The evidence, however, on which these imputa- tions rest, is far from being clear, consistent or satisfactory. Some of the charges against him are doubtful, and others are unquestionably false. In some chronicles of a very early date a favourable impression is given of his character, and there are statements in others that throw discredit on the story commonly told of his misfortunes. His enemies on the other hand, while they concur in representing him as a monster of wickedness and impurity, contradict themselves flatly when they descend to the particulars of his life. All agree, that his connexion with a lady or ladies, whom some call ^Ethelgifu, Ethelgiva, others 220 INQUIRY INTO THE LIFE gifu, Alfgiva, Elfgiva, Algiga or Elgiva, had a prin- cipal share in the calamities of his reign. But of the nature of that connexion different and incon- sistent accounts seem at a very early period to have prevailed. Some describe her as his wife by an uncanonical marriage, others consider her his mistress, and some pretend that she was the wife of another man. Modern historians have not sufficiently attended to these variations in the original authorities, and have overlooked the conclusion to which they na- turally lead. What is uncertain in the history of Eadwig they have admitted without examination, what is doubtful they have not questioned, and what is manifestly false they have received as au- thentic. But, while all have adopted the tragical part of his story, every one in relating it has fol- lowed the version most agreeable to the prejudices of his own sect or party. Protestant writers, not content with the beauty allowed to ^Elfgifu even by her enemies, have clothed her in innocence and exhibited her as an injured queen, the victim of bigotry and fraud. Catholics, on the contrary, have painted her as a shameless and profligate woman, who richly merited the ignominious and cruel fate that terminated her sufferings. To ascertain the truth amidst this conflicting evidence may be impossible, and if practicable, perhaps hardly worth the trouble. But, though the question in dispute be of little importance, and the task not easy to reconcile the contradictory statements of our monkish guides, it may silence the vituperative language of our modern polemics, OF KING EADWIG. 221 if it can be shown, that whatever part we take in the controversy, respectable authorities may be brought in favour of the side we espouse, that whe- ther we maintain Eadwig to have been an amiable prince or a cruel tyrant, whether we hold -^Elfgifu to have been his wife or his mistress, plausible ar- guments may be offered for our opinion. It is hard if we cannot discuss the merits of Dunstan or look into the scandalous chronicle of the tenth century, without being accused of malice or reviled for ir- religion. Of the early historians who have spoken favour- ably of Eadwig, Ethelwerd is the most distinguished. This noble Saxon, the kinsman of Eadwig, may be considered as a contemporary writer, since he ter- minates his abridgement of English history with Eadgar, brother of that prince, and wrote, as it is supposed, in the time of Eadward the Martyr, Ead- wig's nephew. In the few lines Ethelwerd bestows on the short reign of Eadwig, he is not only silent about his vices and misfortunes, but, after praising the uncommon beauty of his person, he adds, " tenuit quadriennio, per regnum amandus." Is it possible that this character could have been given of a prince whose subjects, in the life-time of the writer, had risen against his authority and ex- pelled him for his misconduct from two-thirds of his kingdom ? Henry of Huntingdon is an authority of less weight than Ethelwerd. He lived in the time of Henry II., and where he is not the copyist of Beda, or translator of the Saxon Chronicle, he is justly regarded by the editor of the last-mentioned work 222 INQUIRY INTO THE LIFE as of no better credit than Geoffrey of Monmouth. But still the account he gives of Eadwig he must somewhere have found ; and though in the selec- tion of authorities his judgment may be weak, the story he tells must have been previously told by others. Of Eadwig he says, " non illaudabiliter " regni infulam tenuit," and adds, " cum in prin- " cipio regnum ejus decentissime floreret, pros- " pera et laetabunda exordia mors immatura per- " rupit." To these authorities in favour of Eadwig may be added the negative evidence of the Saxon Chro- nicle, and of the History of Abingdon. The historian of Abingdon praises Eadwig for his kindness and liberality to St. ^Ethelwold, abbot of that monastery, and afterwards bishop of Win- chester ; and gives an account of his death and of the accession of his brother, without the slightest censure of his memory, or abuse of his govern- ment. The Saxon Chronicle relates the principal events of the life of Eadwig without comment and re- prehension, and one very ancient manuscript of that work, called the Worcester Chronicle, indi- rectly contradicts the story of the Mercians and the Northumbrians having revolted against him and expelled him from the country north of Thames, by stating that on the death of Eadred, Eadwig had the government of the West Saxons, and his brother Eadgar that of the Mercians. It cannot, however, be denied, that the general consent of historical tradition is at variance with this account. Other manuscripts of the Saxon OF KING EADWIG. 223 Chronicle state in general terms, that on the de- cease of his uncle, Eadwig assumed the govern- ment ; and one manuscript, which is supposed to be in the hand-writing of St. Dunstan, postpones to the following year the accession of Eadgar to the Mercian kingdom. The earliest life of Dunstan, written within fifteen years after his death, tells us, that on the decease of Eadred, Eadwig was elected king, " ab utraque plebe," that is by the Mercians as well as by the West Saxons ; and in the pro- gress of his narrative the same biographer informs us, that Eadwig having fallen into contempt for his folly, was abandoned by his northern subjects, who chose his brother Eadgar for their king, in consequence of which the kingdom was divided be- tween the brothers, the country north of Thames being assigned to Eadgar and the southern parts retained by Eadwig. It is needless to add, that this is the story adopted by later writers. It would reconcile these contradictory accounts, if the separation of the Mercian from the West Saxon government, which is stated in the Wor- cester Chronicle to have taken place immediately on the death of Eadred, was confined to the direct administration of the two kingdoms ; the supreme authority over the whole remaining with Eadwig, as elder brother and king of the West Saxons, who from the time of Ecgbert had been the predominant tribe throughout England. On that supposition, what is subsequently termed the insurrection of his northern subjects against Eadwig, may have been merely the rejection of his personal authority by 224 INQUIRY INTO THE LIFE the Mercians, and the elevation of his brother to an equal and independent sovereignty. Latin writers have indulged their fancy in descriptions of a civil war between the two brothers, in which the partisans of Eadwig were worsted, and himself driven across the Thames, hotly pursued by the in- surgents, seeking his safety in by-paths and hidden places, to elude the scent and escape the vengeance of his enemies. But there is not a word of these details in the contemporary life of Dunstan, our earliest and best authority for these transactions. The author of that work simply tells us, that Eadwig was abandoned by his northern subjects, " quia in commisso regimine insipienter egisset, " sagaces et sapientes odio vanitatis disperdens, et " ignaros quosque, sibi consimiles, studio dilec- 11 tionis adsciscens." He gives us no hint of a civil war. He alludes to no party for Eadgar among the West Saxons ; and says expressly, that to the north of Thames, Eadwig was deserted and Eadgar elected king " corispiratione omnium." The respective claims of the brothers appear to have been settled without bloodshed, " ex definitione " sagacium, universe populo testante." The facility with which this revolution was ac- complished, and the limits where it stopped, favour the supposition, authorized by the Worcester chro- nicles, that on the death of Eadred the administra- tion of the Mercians was confided to Eadgar, and that Eadwig, in addition to his government of Wessex, was merely the paramount lord of the kingdom. In examining his charters, I find some OF KING EADWIG. grants within the Mercian territory, which as su- perior lord of the kingdom he might be called upon to attest and confirm ; but the greater part by far are in Wessex, though most of them are in the first or second year of his reign, when by the common account the svhole of England was under his imme- diate government. The lofty titles he assumes in his charters are borrowed from the inflated and ostentatious language of his predecessors 1 , and afford no indication of the extent either of his or of their dominions. The same style is retained after the dismemberment of his empire. If we were to believe such lying chronicles of the power and dignity of our ancient kings, Eadwig in the last year of his reign was still " Angol-Saxonum rex"- 11 Anglorum atque Bryttanorum monarchus" 11 Anglorum cseterarumque gentium in circuitu per- " sistentium gubernator et rector " "Basileus An- glorum. " In his charters, his brother Eadgar com- monly signs himself " frater regis " " clito" " indoles clito " ; but in one instance, of a grant in Worcester, he styles himself " regulus," which was the appellation of a subordinate king. I have met with no charter of Eadwig, attested by Eadgar, of a later date than 956, except one, which is 957. As a general remark it may be worth observing, that no fallacy could be greater than to form an estimate of the real power or extent of territory enjoyed by our Saxon princes from the language of adulation used in their charters. JSthelbald, king 1 In a charter of 956, he styles himself " Ego Eadwig, largiflua Summi Tonantis rex Anglorum, et totius Britanniae provinciarum providentia." Kemble's Codex Diplomaticus, vol. ii. p. 336. ED. Q 226 INQUIRY INTO THE LIFE of the Mercians, calls himself in one of his charters " Britannige rex;" and Offa, his successor, repeat- edly styles himself " rex Anglorum." ^Ethelstan, though pretending only to be paramount lord of the island, calls himself " rex totius Albionis." And Eadmund, the father of Eadwig, who was com- pelled at one time to yield to his Danish competitor the whole of England to the north of the Watling Street, is described in the barbarous language of his time as one " qui regimina regnorum Angul- " Saxnaet Northymbra. Paganorum Brittonumque, " septem annorum intervallo, regaliter gubernabat." Eadwig has been abused as an irreligious prince, and stigmatized as a plunderer of the Church. It is true he took part with the secular priests against the monks ; and it is alleged, that the clergy he protected were remiss in their discipline, inatten- tive to their religious duties, proud and insolent in their manners, and grossly immoral in their practice. It is particularly urged against them, that, in defi- ance of the canons of the Church, they publicly co- habited with women, whom they called their wives. The truth of this last assertion cannot be denied. Though the marriage of priests and deacons was strictly prohibited by the laws of the Church, there is the clearest evidence, that not only many of the English clergy lived at that time, and long after- wards, in the state of marriage, but that they jus- tified their conduct by the example of St. Peter and of other holy men. The biographer of St. Oswald informs us, that the youth of his hero was passed in the mynster at Winchester, and adds with a sneer, " in diebus illis non monastici viri erant in OF KING EADWIG. 227 " regione Anglorum, sed erant religiosi et dignissimi 11 clerici, qui tamen thesauros suos, quos avidis ac- " quirebant cordibus, non ad ecclesise honorem, sed tl suis dare solebant uxoribus. Cam his mansita- " bat plus adolescens, velut Loth in Sodomis." The marriage of mynster-priests, and the use to which they applied their wealth described in this quotation, there is no reason to question ; but the last comparison might have been spared, as more suitable to the chronicler of the Church, when the canons enjoining celibacy were rigorously enforced. So general was marriage in the English church, and so obstinately were the clergy attached to the indulgences of the married state, that ^Elfric, in the following century, while he remonstrates against the practice in the strongest terms, confesses in the name of the bishop, for whom he wrote a pas- toral charge, that it was hopeless to put a stop to it. " We cannot compel you," he says, addressing himself to the clergy, " but we admonish you to " keep your cleanness as the servants of Christ 11 ought to do." " To such a wretched pass are " we arrived," he says, " that many think it no " sin for a priest to live as a married man." " The " canons that prohibit the company of women seem " grievous to you," he adds, " because ye are so " habituated to your vices, that ye think it no of- " fence when ye cohabit with women like laymen 1 ." It is hinted by Wulfstan, and confirmed by a coun- cil in the time of JSthelred II., that it was the practice of the clergy, when tired of their wives, to repudiate them and marry others ; and it was pro- 1 Ancient Laws and Institutes of England, p. 458. Fol. edit. Q2 228 INQUIRY INTO THE LIFE bably with reference to this abuse, that in the law of the Northumbrian clergy a curse is denounced against the priest who deserts his " quean" and takes another 1 . This northern legislator, whoever he may have been, seems wisely to have thought, that if he could not eradicate, he ought at least to mitigate the evil. Nor are the other charges against the secular clergy entirely without foundation. If we had no other evidence for their vices than the declarations of the monks we might suspend our judgment. The monkish writers, to say the least of them, are prone to exaggeration, and in this instance they had to vindicate the honour and interests of their order against a body of men whom they had supplanted. No further proof, indeed, could be required of the corruption and profligacy of the secular clergy, if the discourse attributed to Eadgar by the abbot of Rievaux, had been actually delivered in a general council of the English church. But I agree with Dr. Lingard in considering this discourse as the declamation of some rhetorician 2 . It is a bitter and not ineloquent satire on the vices of the clergy, founded apparently on the Canons and Penitential of Eadgar. I have subjoined in a note a specimen of the style and insolence of the invective 3 . As an 1 Ancient Laws and Institutes of England, p. 418. Fol. edit. * History of England, i. p. 228, note, edit. 1837. 3 Taceo quod non est in illis corona patens, nee tonsura con- veniens ; at in veste lascivia, insolentia in gestu, in verbis turpi- tudo, interioris hominis produnt insaniam. Praeterea in divinis officiis quanta sit negligentia .... Dicam dolens quomodo dif- fluant in comessationibus, in ebrietatibus, in cubilibus, in impu- dicitiis, ut jam domus clericorum putentur prostibula meretricum, OF KING EADWIG. 229 historical document it is of no value. ^Ethelred, abbot of Rievaux, by whom it was published and possibly composed, died in 1166. But, after rejecting this evidence and setting aside the invectives of the monks, as the loose de- clamations of an adverse faction, unexceptionable proof remains, that, for a century before the Con- quest, the English clergy were degraded by many gross and immoral habits, unbecoming their station, and unsuitable to the sacred calling they professed. The upper ranks among them appear to have been vain and ostentatious, idle and frivolous, dissolute and luxurious. The inferior classes seem to have been scandalous in their lives, coarse in their man- ners, shameless in their conduct, greedy after gain, and more intent on worldly business than on spi- ritual concerns : this we collect from the Canons and Penitential of Eadgar, and from the writings of ^Elfric, who, though a monk, is worthy of credit on this point, as he descends to particulars, and composed his works, not in the spirit of contro- versy, but at the desire of his superiors, for the general reformation of the Church. From these authorities we learn, that intempe- rance was a vice to which the clergy were grie- vously addicted. They are cautioned against drink- ing to excess, lest they should be suddenly called upon to perform baptism or administer the eucharist, when not in a condition to discharge those duties. They are admonished not to frequent taverns and alehouses, not to indulge or encourage others in conciliabulum histrionum, ibi aleae, ibi saltus et cantus, ibi usque ad medium noctis spatium protractse in clamore et horrore vigiliae. Bonifacii Ep. ad Cuthbertum, ap. Wilkins, Cone. i. p. 247. 230 INQUIRY INTO THE LIFE drinking, not to be too ready in accepting invita- tions to convivial meetings, not to court poetic in- spiration by potations of ale, nor to exhibit them- selves in company as gleemen. It was their duty to administer spiritual comfort to the sick, and after death to watch over the body till it was com- mitted in due form to the earth, praying and re- commending the soul to God. But they are en- joined not to make merry over the dead, nor repair to a corpse till they are invited : and when called, to forbid the heathen songs and outcries of the laity, and neither to eat nor drink beside the corpse, lest they be contaminated by the heathenism there practised. In another passage they are reproved for rejoicing over the dying, and gathering, unbid- den, about a corpse, like greedy crows when they spy a carcase. It is their duty to minister to the persons belonging to their church, but they are di- rected not to quit their parish to attend a corpse, unless specially invited. Their love of gain seems to have been of a piece with their gluttony and in- temperance. They are enjoined not to dispense their sacraments for money, not to defraud one another of their dues, nor to entice away the pa- rishioners or servants of another mynster. Every priest was obliged to learn some handicraft trade, but he was forbidden to exercise it for gain, and strictly prohibited from being a huckster or trader. The propensity of the clergy to neglect the proper duties of their station and intermeddle in secular affairs is frequently animadverted on and censured. It seems to have been a great object of their ambi- tion to attain the situation of reeve (gerefa), that is, of land-steward and country justice. They are OF KING EADWIG. 231 desired not to be solicitous for such employments, and, if appointed to them, not to be harsh and ra- pacious in discharging the office of steward, nor to be stirrers up of strife and promoters of litigation in their capacity of justice. They are enjoined to keep out of feuds and frays, to avoid quarrels, to abstain from profane swearing, and to discourage that irreverent practice in others. From war, bat- tle, and marriage, from wife, and world's strife, they are earnestly and repeatedly warned. Their church is called their lawful spouse, and their mar- riage stigmatized as adultery 1 . The levities and amusements of the higher clergy are treated with the same unsparing hand that chastens and exposes the grosser vices of their humbler brethren. Hunting, hawking and gaming, which were probably the recreations of the superior orders in the Church, are declared to be inconsistent with their sacred functions. They are required to be decent but not ostentatious in their apparel, not to bedizen themselves with gold, nor to have rings glancing on their fingers ; not to appear in a lay- man's frock nor dress like a woman ; to wear their priestly garments in becoming order, and not to cover their tonsure, as if ashamed of it, but to have it properly and becomingly shaven. When not employed in their clerical duties they are desired to attend to their books, and not to run after sights and shows, nor waste their time in idle converse with women 2 . 1 See ^Elfric's Canons and Pastoral Epistle in the Ancient Laws and Institutes of England. ED. * Ibid. 232 INQUIRY INTO THE LIFE The penances enjoined to priests of every degree for homicide, theft, perjury, false witnessing and illicit commerce with the other sex, show clearly that the commission of these offences was not con- fined to the laity. But if, on the strength of this evidence, we pro- nounce against the clergy protected by Eadwig from Dunstan and the other reformers of the age, what shall we say to the intimations given us of the same or even of more scandalous vices in the Anglo-Saxon church, before the ravages of the Danes had relaxed its discipline and corrupted its purity ? When we look into the Penitentials of Theodore, who was archbishop of Canterbury in the seventh, and of Ecgbert, archbishop of York in the middle of the eighth century 1 , we meet with a long list of penances enjoined to the clergy, for transgressions of a blacker die and more heinous character than those attributed to the secular canons by the bitterest of their adversaries. Not to speak of disgusting vices, not fit to be named, which appear to have prevailed at that time, in every possible form, among ecclesiastics as well as laymen, we find enumerated among the sins of the clergy, homicide, theft, perjury, and every sort of low debauchery, with an adequate penance pre- scribed for each, corresponding to the nature and degree of the crime and to the rank of the offender. We may judge of the excess to which intemper- ance in drinking was carried by the Church, from a regulation which enacts, that a monk should fast thirty days and a mass-priest forty, when either of 1 See these Penitentials in Ancient Laws and Institutes. ED. OF KING EADWIG. 233 them happened to indulge in drinking till he vo- mited. Nor were the higher clergy more decorous in their morals than their inferiors. " We hear " with sorrow," says the Anglo-Saxon apostle of the Germans,