[q]I am aware that in many, probably a great majority of reported cases, this word was technically used, where some unwarranted conveyance, such as a feoffment by the tenant for life, was held to have wrought a disseisin; or where the plaintiff was allowed, for the purpose of a more convenient remedy, to feign himself disseised, which was called disseisin by election. But several proofs might be brought from the parliamentary petitions, and I doubt not, if nearly looked at, from the Year-books, that in other cases there was an actual and violent expulsion. And the definition of disseisin in all the old writers, such as Britton and Littleton, is obviously framed upon its primary meaning of violent dispossession, which the word had probably acquired long before the more peaceable disseisins, if I may use the expression, became the subject of the remedy by assise.I would speak with deference of Lord Mansfield's elaborate judgment in Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it appear to me rather too strongly stated; and particularly that the acceptance of the disseisor as tenant by the lord was necessary to render the disseisin complete; a condition which I have not found hinted in any law-book. See Butler's note on Co. Litt. p. 330; where that eminent lawyer expresses similar doubts as to Lord Mansfield's reasoning. It may however be remarked, that constructive or elective disseisins, being of a technical nature, were more likely to produce cases in the Year-books than those accompanied with actual violence, which would commonly turn only on matters of fact, and be determined by a jury.A remarkable instance of violent disseisin, amounting in effect to a private war, may be found in the Paston Letters occupying most of the fourth volume. One of the Paston family, claiming a right to Caistor Castle, kept possession against the duke of Norfolk, who brought a large force, and laid a regular siege to the place, till it surrendered for want of provisions. Two of the besiegers were killed. It does not appear that any legal measures were taken to prevent or punish this outrage.[r]Difference between an Absolute and Limited Monarchy, p. 99.[s]The manner in which these were obtained, in spite of law, may be noticed among the violent courses of prerogative. By statute 2 E. III. c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons was taken away, except in cases of homicide per infortunium. Another act, 14 E. III. c. 15, reciting that the former laws in this respect have not been kept, declares that all pardons contrary to them shall be holden as null. This however was disregarded like the rest; and the commons began tacitly to recede from them, and endeavoured to compromise the question with the crown. By 27 E. III. stat. I, c. 2, without adverting to the existing provisions, which may therefore seem to be repealed by implication, it is enacted that in every charter of pardon, granted at any one's suggestion, the suggestor's name and the grounds of his suggestion shall be expressed, that if the same be found untrue it may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find the commons requesting that pardons might not be granted, as if the subject were wholly, unknown to the law; the king protesting in reply that he will save his liberty and regality, as his progenitors had done before, but conceding some regulations, far less remedial than what were provided already by the 27th of Edward II. Pardons make a pretty large head in Brooke's Abridgment, and were undoubtedly granted without scruple by every one of our kings. A pardon obtained in a case of peculiar atrocity is the subject of a specific remonstrance in 23 H. VI. Rot. Parl. vol. v. p. 111.[t]Rot. Parl. vol. ii. p. 201. A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injurious to the adjacent counties. Upon the credit of their immunity from the jurisdiction of the king's courts, the people of Cheshire broke with armed bands into the neighbouring counties, and perpetrated all the crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H. IV. c. 18. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly petition, 23 H. VI. Rot. Parl. vol. v. p. 104, 154, that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8.It is curious that, so early as 15 E. II., a writ was addressed to the earl of Arundel, justiciary of Wales, directing him to cause twenty-four discreet persons to be chosen from the north, and as many from the south of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456. And we find a similar writ in the 20th of the same king. Prynne's Register, 4th part, p. 60. Willis says that he has seen a return to one of these precepts, much obliterated, but from which it appears that Conway, Beaumaris, and Carnarvon returned members. Notitia Parliamentaria, vol. i. preface, p. 15.[u]The statute of Winton was confirmed, and proclaimed afresh by the sheriffs, 7 R. II. c. 6, after an era of great disorder.[x]Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.[y]1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R. II. c. 5. The institution excited a good deal of ill-will, even before these strong acts were passed. Many petitions of the commons in the 28th E. III., and other years, complain of it. Rot. Parl. vol. ii.[z]Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E. II. c. 16, was not founded on a petition, but on the king's answer; so that the commons were not real parties to it, and accordingly call it an ordinance in their present petition. This naturally increased their animosity in treating it as an infringement of the subject's right.[a]Glanvil, 1. v. c. 5.[b]According to Bracton, the bastard of a nief, or female villein, was born in servitude; and where the parents lived on a villein tenement, the children of a nief, even though married to a freeman, were villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109. But Littleton lays down an opposite doctrine, that a bastard was necessarily free; because, being the child of no father in the contemplation of law, he could not be presumed to inherit servitude from any one; and makes no distinction as to the parent's residence. Sect 188. I merely take notice of this change in the law between the reigns of Henry III. and Edward IV. as an instance of the bias which the judges showed in favour of personal freedom. Another, if we can rely upon it, is more important. In the reign of Henry II. a freeman marrying a nief, and settling on a villein tenement, lost the privileges of freedom during the time of his occupation; legem terræ quasi nativus amittit. Glanvil, 1. v. c. 6. This was consonant to the customs of some other countries, some of which went further, and treated such a person for ever as a villein. But, on the contrary, we find in Britton, a century later, that the nief herself by such a marriage became free during the coverture, c. 31. [NoteXIII.][c]I must confess that I have some doubts how far this was law at the epoch of Magna Charta. Glanvil and Bracton both speak of thestatus villenagii, as opposed to that of liberty, and seem to consider it as a civil condition, not a merely personal relation. The civil law and the French treatise of Beaumanoir hold the same language. And Sir Robert Cotton maintains without hesitation that villeins are not within the 29th section of Magna Charta, "being excluded by the word liber." Cotton's Posthuma, p. 223. Britton, however, a little after Bracton, says that in an action the villein is answerable to all men, and all men to him. p. 79. And later judges, in favorem libertatis, gave this construction to the villein's situation, which must therefore be considered as the clear law of England in the fourteenth and fifteenth centuries.[d]Littleton, sect. 189, 190, speaks only of an appeal in the two former cases; but an indictment is à fortiori; and he says, sect. 194, that an indictment, though not an appeal, lies against the lord for maiming his villein.[e]Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell's State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probandâ, and the peculiar evidence it required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.[f][NoteXIV.][g]Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.[h]Glanvil, 1. iv. c. 5.[i]Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p. 13. A passage in another local history rather seems to indicate that some kind of delinquency was usually alleged, and some ceremony employed, before the lord entered on the villein's land. In Gissing manor, 39 E. III., the jury present, that W. G., a villein by blood, was a rebel and ungrateful toward his lord, for which all his tenements were seized. His offence was the having said that the lord kept four stolen sheep in his field. Blomefield's Norfolk, vol. i. p. 114.[k]Gurdon on Courts Baron, p. 574.[m]Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the manor of Brisingham in Norfolk, in 1254, it appears that there were then ninety-four copyholders and six cottagers in villenage; the former performing many, but determinate services of labour for the lord. Blomefield's Norfolk, vol. i. p. 34.[n]Littl. sect. 77. A copyholder without legal remedy may seem little better than a tenant in mere villenage, except in name. But though, from the relation between the lord and copyholder the latter might not be permitted to sue his superior, yet it does not follow that he might not bring his action against any person acting under the lord's direction, in which the defendant could not set up an illegal authority; just as, although no writ runs against the king, his ministers or officers are not justified in acting under his command contrary to law. I wish this note to be considered as correcting one in my first volume, p. 200, where I have said that a similar law in France rendered the distinction between a serf and a homme de poote little more than theoretical.[o]See the rules of pleading and evidence in questions of villenage fully stated in Mr. Hargrave's argument in the case of Somerset. Howell's State Trials, vol. xx. p. 38.[p]1. v. c. v.[q]Blomefleld's Norfolk, vol. i. p. 657. I know not how far this privilege was supposed to be impaired by the statute 34 E. III. c. 11; which however might, I should conceive, very well stand along with it.[r]Stat. 23 E. III.[s][NoteXV.][t]I have been more influenced by natural probabilities than testimony in ascribing this effect to Wicliffe's innovations, because the historians are prejudiced witnesses against him. Several of them depose to the connexion between his opinions and the rebellion of 1382; especially Walsingham, p. 288. This implies no reflection upon Wicliffe, any more than the crimes of the anabaptists in Munster do upon Luther. Every one knows the distich of John Ball, which comprehends the essence of religious democracy:"When Adam delved and Eve span,Where was then the gentleman?"The sermon of this priest, as related by Walsingham, p. 275, derives its argument for equality from the common origin of the species. He is said to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii. p. 420.[u]Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.[x]30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation of Kent, p. 632. Somner on Gavelkind, p. 72.[y]Rymer, t. vii. p. 316, &c. The king holds this bitter language to the villeins of Essex, after the death of Tyler and execution of the other leaders had disconcerted them: Rustici quidem fuistis et estis, in bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori, &c. Walsingham, p. 269.[z]Rot. Parl. vol. iii. p. 100.[a]5 R II. c. 7. The words are, riot et rumourn'autres semblables; rather a general way of creating a new treason; but panic puts an end to jealousy.[b]12 R. II. c. 3.[c]Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV. c. 17, enacts that no one shall put his son or daughter apprentice to any trade in a borough, unless he have land or rent to the value of twenty shillings a year, but that any one may put his children to school. The reason assigned is the scarcity of labourers in husbandry, in consequence of people living inUplandapprenticing their children.[d]Blomefield's Norfolk, vol. iii. p. 571.[e]Rymer, t. v. p. 44.[f]Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p. 420; Barrington on Ancient Statutes, p. 278. It is said in a modern book that villenage was very rare in Scotland, and even that no instance exists in records of an estate sold with the labourers and their families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p. 147. But Mr. Chalmers, in his Caledonia, has brought several proofs that this assertion is too general.[g]Barrington, ubi supra, from Rymer.[h]There are several later cases reported wherein villenage was pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.) See Hargrave's argument, State Trials, vol. xx. p 41. But these are so briefly stated, that it is difficult in general to understand them. It is obvious, however, that judgment was in no case given in favour of the plea; so that we can infer nothing as to the actual continuance of villenage.It is remarkable, and may be deemed by some persons a proof of legal pedantry, that Sir E. Coke, while he dilates on the law of villenage, never intimates that it was become antiquated.[i]8 H. V. c. 1.[k]This prince having been sent to Antwerp, six commissioners were appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.[m]Rymer, t. vi. p. 748.[n]Matt. Paris, p. 243.[o]Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1.[p]Rot. Parl vol. ii. p. 52.[q]Rymer, t. vii. p. 171.[r]Rot. Parl. vol. iv. p. 169.[s]Rot. Parl. vol. iv. p. 174, 176.[t]Ibid. p. 201.[u]I follow the orthography of the roll, which I hope will not be inconvenient to the reader. Why this orthography, from obsolete and difficult, so frequently becomes almost modern, as will appear in the course of these extracts, I cannot conjecture. The usual irregularity of ancient spelling is hardly sufficient to account for such variations; but if there be any error, it belongs to the superintendents of that publication, and is not mine.[x]Rot. Parl. 6 H. VI. vol. iv. p. 326.[y]Rot. Parl. 8 H. VI. vol. iv. p. 336.[z]Rot. Parl. vol. v. p. 241.[a]Paston Letters, vol. i. p. 81. The proofs of sound mind given in this letter are not very decisive, but the wits of sovereigns are never weighed in golden scales.[b]This may seem an improper appellation for what is usually termed a battle, wherein 5000 men are said to have fallen. But I rely here upon my faithful guide, the Paston Letters, p. 100, one of which, written immediately after the engagement, says that only sixscore were killed. Surely this testimony outweighs a thousand ordinary chroniclers. And the nature of the action, which was a sudden attack on the town of St. Albans, without any pitched combat, renders the larger number improbable. Whethamstede, himself abbot of St. Albans at the time, makes the duke of York's army but 3000 fighting men. p. 352. This account of the trifling loss of life in the battle of St. Albans is confirmed by a contemporary letter, published in the Archæologia (xx. 519). The whole number of the slain was but forty-eight, including, however, several lords.[c]See some account of these in Paston Letters, vol. i. p. 114.[d]Rot. Parl. vol. v. p. 284-290.[e]Hall, p. 210.[f]The ill-will of York and the queen began as early as 1449, as we learn from an unequivocal testimony, a letter of that date in the Paston collection, vol. i. p. 26.[g]Upon this great question the fourth discourse in Sir Michael Foster's Reports ought particularly to be read.[h]Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736).[i]Rot. Parl. vol. v. p. 351.[k]Id. p. 375. This entry in the roll is highly interesting and important. It ought to be read in preference to any of our historians. Hume, who drew from inferior sources, is not altogether accurate. Yet one remarkable circumstance, told by Hall and other chroniclers, that the duke of York stood by the throne, as if to claim it, though omitted entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans, who was probably then present. (p. 484, edit. Hearne.) This shows that we should only doubt, and not reject, unless upon real grounds of suspicion, the assertions of secondary writers.[m]The abbey of St. Albans was stripped by the queen and her army after the second battle fought at that place, Feb. 17, 1461; which changed Whethamstede the abbot and historiographer from a violent Lancastrian into a Yorkist. His change of party is quite sudden, and amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the Paston family were originally Lancastrian, and returned to that side in 1470.[n]There are several instances of violence and oppression apparent on the rolls during this reign, but not proceeding from the crown. One of a remarkable nature (vol. v. p. 173) was brought forward to throw an odium on the duke of Clarence, who had been concerned in it. Several passages indicate the character of the duke of Gloucester.[o]See in Cro. Car. 120, the indictment against Burdett for compassing the king's death, and for that purpose conspiring with Stacie and Blake to calculate his nativity and his son's, ad sciendum quando iidem rex et Edwardus ejus filius morientur: Also for the same end dispersing divers rhymes and ballads de murmurationibus, seditionibus et proditoriis excitationibus, factas et fabricatas apud Holbourn, to the intent that the people might withdraw their love from the king and desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem levarent, ad finalem destructionem ipsorum regis ac domini principis, &c.[p]Rot. Parl. vol. vi. p. 193.[q]The rolls of Henry VII.'s first parliament are full of an absurd confusion in thought and language, which is rendered odious by the purposes to which it is applied. Both Henry VI. and Edward IV. are considered as lawful kings; except in one instance, where Alan Cotterell, petitioning for the reversal of his attainder, speaks of Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the language of a private Lancastrian. And Henry VI. passes for having been king during his short restoration in 1470, when Edward had been nine years upon the throne. For the earl of Oxford is said to have been attainted "for the true allegiance and service he owed and did to Henry VI. at Barnet field and otherwise." (p. 281.) This might be reasonable enough on the true principle that allegiance is due to a kingde facto; if indeed we could determine who was the king de facto on the morning of the battle of Barnet. But this principle was not fairly recognised. Richard III. is always called, "in deed and not in right king of England." Nor was this merely founded on his usurpation as against his nephew. For that unfortunate boy is little better treated, and in the act of resumption, 1 H. VII., while Edward IV. is styled "late king," appears only with the denomination of "Edward his son, late called Edward V." (p. 336.) Who then was king after the death of Edward IV.? And was his son really illegitimate, as an usurping uncle pretended? Or did the crime of Richard, though punished in him, enure to the benefit of Henry? These were points which, like the fate of the young princes in the Tower, he chose to wrap in discreet silence. But the first question he seems to have answered in his own favour. For Richard himself, Howard duke of Norfolk, Lord Lovel, and some others, are attainted (p. 276) for "traiterously intending, compassing, and imagining" the death of Henry; of course before or at the battle of Bosworth; and while his right, unsupported by possession, could have rested only on an hereditary title which it was an insult to the nation to prefer. These monstrous proceedings explain the necessity of that conservative statute to which I have already alluded, which passed in the eleventh year of his reign, and afforded as much security for men following the plain line of rallying round the standard of their country as mere law can offer. There is some extraordinary reasoning upon this act in Carte's History (vol. ii. p. 844), for the purpose of proving that the adherents of George II. would not be protected by it on the restoration of the true blood.[r]Difference of Absolute and Limited Monarchy, p. 83.[s]Rot. Parl. vol. vi. p. 241.[t]1 R. III. c. 2.[u]The long-debated question as to the murder of Edward and his brother seems to me more probably solved on the common supposition that it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. But a very strong conviction either way is not readily attainable.
[q]I am aware that in many, probably a great majority of reported cases, this word was technically used, where some unwarranted conveyance, such as a feoffment by the tenant for life, was held to have wrought a disseisin; or where the plaintiff was allowed, for the purpose of a more convenient remedy, to feign himself disseised, which was called disseisin by election. But several proofs might be brought from the parliamentary petitions, and I doubt not, if nearly looked at, from the Year-books, that in other cases there was an actual and violent expulsion. And the definition of disseisin in all the old writers, such as Britton and Littleton, is obviously framed upon its primary meaning of violent dispossession, which the word had probably acquired long before the more peaceable disseisins, if I may use the expression, became the subject of the remedy by assise.I would speak with deference of Lord Mansfield's elaborate judgment in Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it appear to me rather too strongly stated; and particularly that the acceptance of the disseisor as tenant by the lord was necessary to render the disseisin complete; a condition which I have not found hinted in any law-book. See Butler's note on Co. Litt. p. 330; where that eminent lawyer expresses similar doubts as to Lord Mansfield's reasoning. It may however be remarked, that constructive or elective disseisins, being of a technical nature, were more likely to produce cases in the Year-books than those accompanied with actual violence, which would commonly turn only on matters of fact, and be determined by a jury.A remarkable instance of violent disseisin, amounting in effect to a private war, may be found in the Paston Letters occupying most of the fourth volume. One of the Paston family, claiming a right to Caistor Castle, kept possession against the duke of Norfolk, who brought a large force, and laid a regular siege to the place, till it surrendered for want of provisions. Two of the besiegers were killed. It does not appear that any legal measures were taken to prevent or punish this outrage.
[q]I am aware that in many, probably a great majority of reported cases, this word was technically used, where some unwarranted conveyance, such as a feoffment by the tenant for life, was held to have wrought a disseisin; or where the plaintiff was allowed, for the purpose of a more convenient remedy, to feign himself disseised, which was called disseisin by election. But several proofs might be brought from the parliamentary petitions, and I doubt not, if nearly looked at, from the Year-books, that in other cases there was an actual and violent expulsion. And the definition of disseisin in all the old writers, such as Britton and Littleton, is obviously framed upon its primary meaning of violent dispossession, which the word had probably acquired long before the more peaceable disseisins, if I may use the expression, became the subject of the remedy by assise.
I would speak with deference of Lord Mansfield's elaborate judgment in Taylor dem. Atkins v. Horde, 1 Burrow, 107, &c.; but some positions in it appear to me rather too strongly stated; and particularly that the acceptance of the disseisor as tenant by the lord was necessary to render the disseisin complete; a condition which I have not found hinted in any law-book. See Butler's note on Co. Litt. p. 330; where that eminent lawyer expresses similar doubts as to Lord Mansfield's reasoning. It may however be remarked, that constructive or elective disseisins, being of a technical nature, were more likely to produce cases in the Year-books than those accompanied with actual violence, which would commonly turn only on matters of fact, and be determined by a jury.
A remarkable instance of violent disseisin, amounting in effect to a private war, may be found in the Paston Letters occupying most of the fourth volume. One of the Paston family, claiming a right to Caistor Castle, kept possession against the duke of Norfolk, who brought a large force, and laid a regular siege to the place, till it surrendered for want of provisions. Two of the besiegers were killed. It does not appear that any legal measures were taken to prevent or punish this outrage.
[r]Difference between an Absolute and Limited Monarchy, p. 99.
[r]Difference between an Absolute and Limited Monarchy, p. 99.
[s]The manner in which these were obtained, in spite of law, may be noticed among the violent courses of prerogative. By statute 2 E. III. c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons was taken away, except in cases of homicide per infortunium. Another act, 14 E. III. c. 15, reciting that the former laws in this respect have not been kept, declares that all pardons contrary to them shall be holden as null. This however was disregarded like the rest; and the commons began tacitly to recede from them, and endeavoured to compromise the question with the crown. By 27 E. III. stat. I, c. 2, without adverting to the existing provisions, which may therefore seem to be repealed by implication, it is enacted that in every charter of pardon, granted at any one's suggestion, the suggestor's name and the grounds of his suggestion shall be expressed, that if the same be found untrue it may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find the commons requesting that pardons might not be granted, as if the subject were wholly, unknown to the law; the king protesting in reply that he will save his liberty and regality, as his progenitors had done before, but conceding some regulations, far less remedial than what were provided already by the 27th of Edward II. Pardons make a pretty large head in Brooke's Abridgment, and were undoubtedly granted without scruple by every one of our kings. A pardon obtained in a case of peculiar atrocity is the subject of a specific remonstrance in 23 H. VI. Rot. Parl. vol. v. p. 111.
[s]The manner in which these were obtained, in spite of law, may be noticed among the violent courses of prerogative. By statute 2 E. III. c. 2, confirmed by 10 E. III. c. 2, the king's power of granting pardons was taken away, except in cases of homicide per infortunium. Another act, 14 E. III. c. 15, reciting that the former laws in this respect have not been kept, declares that all pardons contrary to them shall be holden as null. This however was disregarded like the rest; and the commons began tacitly to recede from them, and endeavoured to compromise the question with the crown. By 27 E. III. stat. I, c. 2, without adverting to the existing provisions, which may therefore seem to be repealed by implication, it is enacted that in every charter of pardon, granted at any one's suggestion, the suggestor's name and the grounds of his suggestion shall be expressed, that if the same be found untrue it may be disallowed. And in 13 R. II. stat. 2, c. 1, we are surprised to find the commons requesting that pardons might not be granted, as if the subject were wholly, unknown to the law; the king protesting in reply that he will save his liberty and regality, as his progenitors had done before, but conceding some regulations, far less remedial than what were provided already by the 27th of Edward II. Pardons make a pretty large head in Brooke's Abridgment, and were undoubtedly granted without scruple by every one of our kings. A pardon obtained in a case of peculiar atrocity is the subject of a specific remonstrance in 23 H. VI. Rot. Parl. vol. v. p. 111.
[t]Rot. Parl. vol. ii. p. 201. A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injurious to the adjacent counties. Upon the credit of their immunity from the jurisdiction of the king's courts, the people of Cheshire broke with armed bands into the neighbouring counties, and perpetrated all the crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H. IV. c. 18. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly petition, 23 H. VI. Rot. Parl. vol. v. p. 104, 154, that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8.It is curious that, so early as 15 E. II., a writ was addressed to the earl of Arundel, justiciary of Wales, directing him to cause twenty-four discreet persons to be chosen from the north, and as many from the south of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456. And we find a similar writ in the 20th of the same king. Prynne's Register, 4th part, p. 60. Willis says that he has seen a return to one of these precepts, much obliterated, but from which it appears that Conway, Beaumaris, and Carnarvon returned members. Notitia Parliamentaria, vol. i. preface, p. 15.
[t]Rot. Parl. vol. ii. p. 201. A strange policy, for which no rational cause can be alleged, kept Wales and even Cheshire distinct from the rest of the kingdom. Nothing could be more injurious to the adjacent counties. Upon the credit of their immunity from the jurisdiction of the king's courts, the people of Cheshire broke with armed bands into the neighbouring counties, and perpetrated all the crimes in their power. Rot. Parl. vol. iii. p. 81, 201, 440; Stat. 1 H. IV. c. 18. As to the Welsh frontier, it was constantly almost in a state of war, which a very little good sense and benevolence in any one of our shepherds would have easily prevented, by admitting the conquered people to partake in equal privileges with their fellow-subjects. Instead of this, they satisfied themselves with aggravating the mischief by granting legal reprisals upon Welshmen. Stat. 2 H. IV. c. 16. Welshmen were absolutely excluded from bearing offices in Wales. The English living in the English towns of Wales earnestly petition, 23 H. VI. Rot. Parl. vol. v. p. 104, 154, that this exclusion may be kept in force. Complaints of the disorderly state of the Welsh frontier are repeated as late as 12 E. IV. vol. vi. p. 8.
It is curious that, so early as 15 E. II., a writ was addressed to the earl of Arundel, justiciary of Wales, directing him to cause twenty-four discreet persons to be chosen from the north, and as many from the south of that principality, to serve in parliament. Rot. Parl. vol. i. p. 456. And we find a similar writ in the 20th of the same king. Prynne's Register, 4th part, p. 60. Willis says that he has seen a return to one of these precepts, much obliterated, but from which it appears that Conway, Beaumaris, and Carnarvon returned members. Notitia Parliamentaria, vol. i. preface, p. 15.
[u]The statute of Winton was confirmed, and proclaimed afresh by the sheriffs, 7 R. II. c. 6, after an era of great disorder.
[u]The statute of Winton was confirmed, and proclaimed afresh by the sheriffs, 7 R. II. c. 6, after an era of great disorder.
[x]Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.
[x]Blackstone, vol. i. c. 9; Carte, vol. ii. p. 203.
[y]1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R. II. c. 5. The institution excited a good deal of ill-will, even before these strong acts were passed. Many petitions of the commons in the 28th E. III., and other years, complain of it. Rot. Parl. vol. ii.
[y]1 E. III. stat. 2, c. 16; 4 E. III. c. 2; 34 E. III. c. 1; 7 R. II. c. 5. The institution excited a good deal of ill-will, even before these strong acts were passed. Many petitions of the commons in the 28th E. III., and other years, complain of it. Rot. Parl. vol. ii.
[z]Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E. II. c. 16, was not founded on a petition, but on the king's answer; so that the commons were not real parties to it, and accordingly call it an ordinance in their present petition. This naturally increased their animosity in treating it as an infringement of the subject's right.
[z]Rot. Parl. vol. iii. p. 65. It may be observed that this act, 2 E. II. c. 16, was not founded on a petition, but on the king's answer; so that the commons were not real parties to it, and accordingly call it an ordinance in their present petition. This naturally increased their animosity in treating it as an infringement of the subject's right.
[a]Glanvil, 1. v. c. 5.
[a]Glanvil, 1. v. c. 5.
[b]According to Bracton, the bastard of a nief, or female villein, was born in servitude; and where the parents lived on a villein tenement, the children of a nief, even though married to a freeman, were villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109. But Littleton lays down an opposite doctrine, that a bastard was necessarily free; because, being the child of no father in the contemplation of law, he could not be presumed to inherit servitude from any one; and makes no distinction as to the parent's residence. Sect 188. I merely take notice of this change in the law between the reigns of Henry III. and Edward IV. as an instance of the bias which the judges showed in favour of personal freedom. Another, if we can rely upon it, is more important. In the reign of Henry II. a freeman marrying a nief, and settling on a villein tenement, lost the privileges of freedom during the time of his occupation; legem terræ quasi nativus amittit. Glanvil, 1. v. c. 6. This was consonant to the customs of some other countries, some of which went further, and treated such a person for ever as a villein. But, on the contrary, we find in Britton, a century later, that the nief herself by such a marriage became free during the coverture, c. 31. [NoteXIII.]
[b]According to Bracton, the bastard of a nief, or female villein, was born in servitude; and where the parents lived on a villein tenement, the children of a nief, even though married to a freeman, were villeins, 1. iv. c. 21; and see Beames's translation of Glanvil, p. 109. But Littleton lays down an opposite doctrine, that a bastard was necessarily free; because, being the child of no father in the contemplation of law, he could not be presumed to inherit servitude from any one; and makes no distinction as to the parent's residence. Sect 188. I merely take notice of this change in the law between the reigns of Henry III. and Edward IV. as an instance of the bias which the judges showed in favour of personal freedom. Another, if we can rely upon it, is more important. In the reign of Henry II. a freeman marrying a nief, and settling on a villein tenement, lost the privileges of freedom during the time of his occupation; legem terræ quasi nativus amittit. Glanvil, 1. v. c. 6. This was consonant to the customs of some other countries, some of which went further, and treated such a person for ever as a villein. But, on the contrary, we find in Britton, a century later, that the nief herself by such a marriage became free during the coverture, c. 31. [NoteXIII.]
[c]I must confess that I have some doubts how far this was law at the epoch of Magna Charta. Glanvil and Bracton both speak of thestatus villenagii, as opposed to that of liberty, and seem to consider it as a civil condition, not a merely personal relation. The civil law and the French treatise of Beaumanoir hold the same language. And Sir Robert Cotton maintains without hesitation that villeins are not within the 29th section of Magna Charta, "being excluded by the word liber." Cotton's Posthuma, p. 223. Britton, however, a little after Bracton, says that in an action the villein is answerable to all men, and all men to him. p. 79. And later judges, in favorem libertatis, gave this construction to the villein's situation, which must therefore be considered as the clear law of England in the fourteenth and fifteenth centuries.
[c]I must confess that I have some doubts how far this was law at the epoch of Magna Charta. Glanvil and Bracton both speak of thestatus villenagii, as opposed to that of liberty, and seem to consider it as a civil condition, not a merely personal relation. The civil law and the French treatise of Beaumanoir hold the same language. And Sir Robert Cotton maintains without hesitation that villeins are not within the 29th section of Magna Charta, "being excluded by the word liber." Cotton's Posthuma, p. 223. Britton, however, a little after Bracton, says that in an action the villein is answerable to all men, and all men to him. p. 79. And later judges, in favorem libertatis, gave this construction to the villein's situation, which must therefore be considered as the clear law of England in the fourteenth and fifteenth centuries.
[d]Littleton, sect. 189, 190, speaks only of an appeal in the two former cases; but an indictment is à fortiori; and he says, sect. 194, that an indictment, though not an appeal, lies against the lord for maiming his villein.
[d]Littleton, sect. 189, 190, speaks only of an appeal in the two former cases; but an indictment is à fortiori; and he says, sect. 194, that an indictment, though not an appeal, lies against the lord for maiming his villein.
[e]Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell's State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probandâ, and the peculiar evidence it required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.
[e]Gurdon, on Courts Baron, p. 592, supposes the villein in gross to have been the Lazzus or Servus of early times, a domestic serf, and of an inferior species to the cultivator, or villein regardant. Unluckily Bracton and Littleton do not confirm this notion, which would be convenient enough; for in Domesday Book there is a marked distinction between the Servi and Villani. Blackstone expresses himself inaccurately when he says the villein in gross was annexed to the person of the lord, and transferable by deed from one owner to another. By this means indeed a villein regardant would become a villein in gross, but all villeins were alike liable to be sold by their owners. Littleton, sect. 181. Blomefield's Norfolk, vol. iii. p. 860. Mr. Hargrave supposes that villeins in gross were never numerous (Case of Somerset, Howell's State Trials, vol. xx. p. 42): drawing this inference from the few cases relative to them that occur in the Year-books. And certainly the form of a writ de nativitate probandâ, and the peculiar evidence it required, which may be found in Fitzherbert's Natura Brevium, or in Mr. H.'s argument, are only applicable to the other species. It is a doubtful point whether a freeman could, in contemplation of law, become a villein in gross; though his confession in a court of record, upon a suit already commenced (for this was requisite), would estop him from claiming his liberty; and hence Bracton speaks of this proceeding as a mode by which a freeman might fall into servitude.
[f][NoteXIV.]
[f][NoteXIV.]
[g]Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.
[g]Bracton, 1. ii. c. 8; 1. iv. c. 28; Littleton, sect. 172.
[h]Glanvil, 1. iv. c. 5.
[h]Glanvil, 1. iv. c. 5.
[i]Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p. 13. A passage in another local history rather seems to indicate that some kind of delinquency was usually alleged, and some ceremony employed, before the lord entered on the villein's land. In Gissing manor, 39 E. III., the jury present, that W. G., a villein by blood, was a rebel and ungrateful toward his lord, for which all his tenements were seized. His offence was the having said that the lord kept four stolen sheep in his field. Blomefield's Norfolk, vol. i. p. 114.
[i]Dugdale's Warwickshire, apud Eden's State of the Poor, vol. i. p. 13. A passage in another local history rather seems to indicate that some kind of delinquency was usually alleged, and some ceremony employed, before the lord entered on the villein's land. In Gissing manor, 39 E. III., the jury present, that W. G., a villein by blood, was a rebel and ungrateful toward his lord, for which all his tenements were seized. His offence was the having said that the lord kept four stolen sheep in his field. Blomefield's Norfolk, vol. i. p. 114.
[k]Gurdon on Courts Baron, p. 574.
[k]Gurdon on Courts Baron, p. 574.
[m]Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the manor of Brisingham in Norfolk, in 1254, it appears that there were then ninety-four copyholders and six cottagers in villenage; the former performing many, but determinate services of labour for the lord. Blomefield's Norfolk, vol. i. p. 34.
[m]Brooke's Abridgm. Tenant par copie, 1. By the extent-roll of the manor of Brisingham in Norfolk, in 1254, it appears that there were then ninety-four copyholders and six cottagers in villenage; the former performing many, but determinate services of labour for the lord. Blomefield's Norfolk, vol. i. p. 34.
[n]Littl. sect. 77. A copyholder without legal remedy may seem little better than a tenant in mere villenage, except in name. But though, from the relation between the lord and copyholder the latter might not be permitted to sue his superior, yet it does not follow that he might not bring his action against any person acting under the lord's direction, in which the defendant could not set up an illegal authority; just as, although no writ runs against the king, his ministers or officers are not justified in acting under his command contrary to law. I wish this note to be considered as correcting one in my first volume, p. 200, where I have said that a similar law in France rendered the distinction between a serf and a homme de poote little more than theoretical.
[n]Littl. sect. 77. A copyholder without legal remedy may seem little better than a tenant in mere villenage, except in name. But though, from the relation between the lord and copyholder the latter might not be permitted to sue his superior, yet it does not follow that he might not bring his action against any person acting under the lord's direction, in which the defendant could not set up an illegal authority; just as, although no writ runs against the king, his ministers or officers are not justified in acting under his command contrary to law. I wish this note to be considered as correcting one in my first volume, p. 200, where I have said that a similar law in France rendered the distinction between a serf and a homme de poote little more than theoretical.
[o]See the rules of pleading and evidence in questions of villenage fully stated in Mr. Hargrave's argument in the case of Somerset. Howell's State Trials, vol. xx. p. 38.
[o]See the rules of pleading and evidence in questions of villenage fully stated in Mr. Hargrave's argument in the case of Somerset. Howell's State Trials, vol. xx. p. 38.
[p]1. v. c. v.
[p]1. v. c. v.
[q]Blomefleld's Norfolk, vol. i. p. 657. I know not how far this privilege was supposed to be impaired by the statute 34 E. III. c. 11; which however might, I should conceive, very well stand along with it.
[q]Blomefleld's Norfolk, vol. i. p. 657. I know not how far this privilege was supposed to be impaired by the statute 34 E. III. c. 11; which however might, I should conceive, very well stand along with it.
[r]Stat. 23 E. III.
[r]Stat. 23 E. III.
[s][NoteXV.]
[s][NoteXV.]
[t]I have been more influenced by natural probabilities than testimony in ascribing this effect to Wicliffe's innovations, because the historians are prejudiced witnesses against him. Several of them depose to the connexion between his opinions and the rebellion of 1382; especially Walsingham, p. 288. This implies no reflection upon Wicliffe, any more than the crimes of the anabaptists in Munster do upon Luther. Every one knows the distich of John Ball, which comprehends the essence of religious democracy:"When Adam delved and Eve span,Where was then the gentleman?"The sermon of this priest, as related by Walsingham, p. 275, derives its argument for equality from the common origin of the species. He is said to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii. p. 420.
[t]I have been more influenced by natural probabilities than testimony in ascribing this effect to Wicliffe's innovations, because the historians are prejudiced witnesses against him. Several of them depose to the connexion between his opinions and the rebellion of 1382; especially Walsingham, p. 288. This implies no reflection upon Wicliffe, any more than the crimes of the anabaptists in Munster do upon Luther. Every one knows the distich of John Ball, which comprehends the essence of religious democracy:
"When Adam delved and Eve span,Where was then the gentleman?"
"When Adam delved and Eve span,Where was then the gentleman?"
The sermon of this priest, as related by Walsingham, p. 275, derives its argument for equality from the common origin of the species. He is said to have been a disciple of Wicliffe. Turner's Hist. of England, vol. ii. p. 420.
[u]Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.
[u]Stat. 1 R. II. c. 6; Rot. Parl. vol. iii. p. 21.
[x]30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation of Kent, p. 632. Somner on Gavelkind, p. 72.
[x]30 E. I., in Fitzherbert. Villenage, apud Lambard's Perambulation of Kent, p. 632. Somner on Gavelkind, p. 72.
[y]Rymer, t. vii. p. 316, &c. The king holds this bitter language to the villeins of Essex, after the death of Tyler and execution of the other leaders had disconcerted them: Rustici quidem fuistis et estis, in bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori, &c. Walsingham, p. 269.
[y]Rymer, t. vii. p. 316, &c. The king holds this bitter language to the villeins of Essex, after the death of Tyler and execution of the other leaders had disconcerted them: Rustici quidem fuistis et estis, in bondagio permanebitis, non ut hactenus, sed incomparabiliter viliori, &c. Walsingham, p. 269.
[z]Rot. Parl. vol. iii. p. 100.
[z]Rot. Parl. vol. iii. p. 100.
[a]5 R II. c. 7. The words are, riot et rumourn'autres semblables; rather a general way of creating a new treason; but panic puts an end to jealousy.
[a]5 R II. c. 7. The words are, riot et rumourn'autres semblables; rather a general way of creating a new treason; but panic puts an end to jealousy.
[b]12 R. II. c. 3.
[b]12 R. II. c. 3.
[c]Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV. c. 17, enacts that no one shall put his son or daughter apprentice to any trade in a borough, unless he have land or rent to the value of twenty shillings a year, but that any one may put his children to school. The reason assigned is the scarcity of labourers in husbandry, in consequence of people living inUplandapprenticing their children.
[c]Rot. Parl. 15 R. II. vol. iii. p. 294, 296. The statute 7 H. IV. c. 17, enacts that no one shall put his son or daughter apprentice to any trade in a borough, unless he have land or rent to the value of twenty shillings a year, but that any one may put his children to school. The reason assigned is the scarcity of labourers in husbandry, in consequence of people living inUplandapprenticing their children.
[d]Blomefield's Norfolk, vol. iii. p. 571.
[d]Blomefield's Norfolk, vol. iii. p. 571.
[e]Rymer, t. v. p. 44.
[e]Rymer, t. v. p. 44.
[f]Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p. 420; Barrington on Ancient Statutes, p. 278. It is said in a modern book that villenage was very rare in Scotland, and even that no instance exists in records of an estate sold with the labourers and their families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p. 147. But Mr. Chalmers, in his Caledonia, has brought several proofs that this assertion is too general.
[f]Gurdon on Courts Baron, p. 596; Madox, Formulare Anglicanum, p. 420; Barrington on Ancient Statutes, p. 278. It is said in a modern book that villenage was very rare in Scotland, and even that no instance exists in records of an estate sold with the labourers and their families attached to the soil. Pinkerton's Hist. of Scotland, vol. i. p. 147. But Mr. Chalmers, in his Caledonia, has brought several proofs that this assertion is too general.
[g]Barrington, ubi supra, from Rymer.
[g]Barrington, ubi supra, from Rymer.
[h]There are several later cases reported wherein villenage was pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.) See Hargrave's argument, State Trials, vol. xx. p 41. But these are so briefly stated, that it is difficult in general to understand them. It is obvious, however, that judgment was in no case given in favour of the plea; so that we can infer nothing as to the actual continuance of villenage.It is remarkable, and may be deemed by some persons a proof of legal pedantry, that Sir E. Coke, while he dilates on the law of villenage, never intimates that it was become antiquated.
[h]There are several later cases reported wherein villenage was pleaded, and one of them as late as the 15th of James I. (Noy, p. 27.) See Hargrave's argument, State Trials, vol. xx. p 41. But these are so briefly stated, that it is difficult in general to understand them. It is obvious, however, that judgment was in no case given in favour of the plea; so that we can infer nothing as to the actual continuance of villenage.
It is remarkable, and may be deemed by some persons a proof of legal pedantry, that Sir E. Coke, while he dilates on the law of villenage, never intimates that it was become antiquated.
[i]8 H. V. c. 1.
[i]8 H. V. c. 1.
[k]This prince having been sent to Antwerp, six commissioners were appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.
[k]This prince having been sent to Antwerp, six commissioners were appointed to open parliament. Rot. Parl. 13 E. III. vol. ii. p. 107.
[m]Rymer, t. vi. p. 748.
[m]Rymer, t. vi. p. 748.
[n]Matt. Paris, p. 243.
[n]Matt. Paris, p. 243.
[o]Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1.
[o]Matt Westmonast. ap. Brady's History of England, vol. ii. p. 1.
[p]Rot. Parl vol. ii. p. 52.
[p]Rot. Parl vol. ii. p. 52.
[q]Rymer, t. vii. p. 171.
[q]Rymer, t. vii. p. 171.
[r]Rot. Parl. vol. iv. p. 169.
[r]Rot. Parl. vol. iv. p. 169.
[s]Rot. Parl. vol. iv. p. 174, 176.
[s]Rot. Parl. vol. iv. p. 174, 176.
[t]Ibid. p. 201.
[t]Ibid. p. 201.
[u]I follow the orthography of the roll, which I hope will not be inconvenient to the reader. Why this orthography, from obsolete and difficult, so frequently becomes almost modern, as will appear in the course of these extracts, I cannot conjecture. The usual irregularity of ancient spelling is hardly sufficient to account for such variations; but if there be any error, it belongs to the superintendents of that publication, and is not mine.
[u]I follow the orthography of the roll, which I hope will not be inconvenient to the reader. Why this orthography, from obsolete and difficult, so frequently becomes almost modern, as will appear in the course of these extracts, I cannot conjecture. The usual irregularity of ancient spelling is hardly sufficient to account for such variations; but if there be any error, it belongs to the superintendents of that publication, and is not mine.
[x]Rot. Parl. 6 H. VI. vol. iv. p. 326.
[x]Rot. Parl. 6 H. VI. vol. iv. p. 326.
[y]Rot. Parl. 8 H. VI. vol. iv. p. 336.
[y]Rot. Parl. 8 H. VI. vol. iv. p. 336.
[z]Rot. Parl. vol. v. p. 241.
[z]Rot. Parl. vol. v. p. 241.
[a]Paston Letters, vol. i. p. 81. The proofs of sound mind given in this letter are not very decisive, but the wits of sovereigns are never weighed in golden scales.
[a]Paston Letters, vol. i. p. 81. The proofs of sound mind given in this letter are not very decisive, but the wits of sovereigns are never weighed in golden scales.
[b]This may seem an improper appellation for what is usually termed a battle, wherein 5000 men are said to have fallen. But I rely here upon my faithful guide, the Paston Letters, p. 100, one of which, written immediately after the engagement, says that only sixscore were killed. Surely this testimony outweighs a thousand ordinary chroniclers. And the nature of the action, which was a sudden attack on the town of St. Albans, without any pitched combat, renders the larger number improbable. Whethamstede, himself abbot of St. Albans at the time, makes the duke of York's army but 3000 fighting men. p. 352. This account of the trifling loss of life in the battle of St. Albans is confirmed by a contemporary letter, published in the Archæologia (xx. 519). The whole number of the slain was but forty-eight, including, however, several lords.
[b]This may seem an improper appellation for what is usually termed a battle, wherein 5000 men are said to have fallen. But I rely here upon my faithful guide, the Paston Letters, p. 100, one of which, written immediately after the engagement, says that only sixscore were killed. Surely this testimony outweighs a thousand ordinary chroniclers. And the nature of the action, which was a sudden attack on the town of St. Albans, without any pitched combat, renders the larger number improbable. Whethamstede, himself abbot of St. Albans at the time, makes the duke of York's army but 3000 fighting men. p. 352. This account of the trifling loss of life in the battle of St. Albans is confirmed by a contemporary letter, published in the Archæologia (xx. 519). The whole number of the slain was but forty-eight, including, however, several lords.
[c]See some account of these in Paston Letters, vol. i. p. 114.
[c]See some account of these in Paston Letters, vol. i. p. 114.
[d]Rot. Parl. vol. v. p. 284-290.
[d]Rot. Parl. vol. v. p. 284-290.
[e]Hall, p. 210.
[e]Hall, p. 210.
[f]The ill-will of York and the queen began as early as 1449, as we learn from an unequivocal testimony, a letter of that date in the Paston collection, vol. i. p. 26.
[f]The ill-will of York and the queen began as early as 1449, as we learn from an unequivocal testimony, a letter of that date in the Paston collection, vol. i. p. 26.
[g]Upon this great question the fourth discourse in Sir Michael Foster's Reports ought particularly to be read.
[g]Upon this great question the fourth discourse in Sir Michael Foster's Reports ought particularly to be read.
[h]Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736).
[h]Hale's Pleas of the Crown, vol. i. p. 61, 101 (edit. 1736).
[i]Rot. Parl. vol. v. p. 351.
[i]Rot. Parl. vol. v. p. 351.
[k]Id. p. 375. This entry in the roll is highly interesting and important. It ought to be read in preference to any of our historians. Hume, who drew from inferior sources, is not altogether accurate. Yet one remarkable circumstance, told by Hall and other chroniclers, that the duke of York stood by the throne, as if to claim it, though omitted entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans, who was probably then present. (p. 484, edit. Hearne.) This shows that we should only doubt, and not reject, unless upon real grounds of suspicion, the assertions of secondary writers.
[k]Id. p. 375. This entry in the roll is highly interesting and important. It ought to be read in preference to any of our historians. Hume, who drew from inferior sources, is not altogether accurate. Yet one remarkable circumstance, told by Hall and other chroniclers, that the duke of York stood by the throne, as if to claim it, though omitted entirely in the roll, is confirmed by Whethamstede, abbot of St. Albans, who was probably then present. (p. 484, edit. Hearne.) This shows that we should only doubt, and not reject, unless upon real grounds of suspicion, the assertions of secondary writers.
[m]The abbey of St. Albans was stripped by the queen and her army after the second battle fought at that place, Feb. 17, 1461; which changed Whethamstede the abbot and historiographer from a violent Lancastrian into a Yorkist. His change of party is quite sudden, and amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the Paston family were originally Lancastrian, and returned to that side in 1470.
[m]The abbey of St. Albans was stripped by the queen and her army after the second battle fought at that place, Feb. 17, 1461; which changed Whethamstede the abbot and historiographer from a violent Lancastrian into a Yorkist. His change of party is quite sudden, and amusing enough. See too the Paston Letters, vol. i. p. 206. Yet the Paston family were originally Lancastrian, and returned to that side in 1470.
[n]There are several instances of violence and oppression apparent on the rolls during this reign, but not proceeding from the crown. One of a remarkable nature (vol. v. p. 173) was brought forward to throw an odium on the duke of Clarence, who had been concerned in it. Several passages indicate the character of the duke of Gloucester.
[n]There are several instances of violence and oppression apparent on the rolls during this reign, but not proceeding from the crown. One of a remarkable nature (vol. v. p. 173) was brought forward to throw an odium on the duke of Clarence, who had been concerned in it. Several passages indicate the character of the duke of Gloucester.
[o]See in Cro. Car. 120, the indictment against Burdett for compassing the king's death, and for that purpose conspiring with Stacie and Blake to calculate his nativity and his son's, ad sciendum quando iidem rex et Edwardus ejus filius morientur: Also for the same end dispersing divers rhymes and ballads de murmurationibus, seditionibus et proditoriis excitationibus, factas et fabricatas apud Holbourn, to the intent that the people might withdraw their love from the king and desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem levarent, ad finalem destructionem ipsorum regis ac domini principis, &c.
[o]See in Cro. Car. 120, the indictment against Burdett for compassing the king's death, and for that purpose conspiring with Stacie and Blake to calculate his nativity and his son's, ad sciendum quando iidem rex et Edwardus ejus filius morientur: Also for the same end dispersing divers rhymes and ballads de murmurationibus, seditionibus et proditoriis excitationibus, factas et fabricatas apud Holbourn, to the intent that the people might withdraw their love from the king and desert him, ac erga ipsum regem insurgerent, et guerram erga ipsum regem levarent, ad finalem destructionem ipsorum regis ac domini principis, &c.
[p]Rot. Parl. vol. vi. p. 193.
[p]Rot. Parl. vol. vi. p. 193.
[q]The rolls of Henry VII.'s first parliament are full of an absurd confusion in thought and language, which is rendered odious by the purposes to which it is applied. Both Henry VI. and Edward IV. are considered as lawful kings; except in one instance, where Alan Cotterell, petitioning for the reversal of his attainder, speaks of Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the language of a private Lancastrian. And Henry VI. passes for having been king during his short restoration in 1470, when Edward had been nine years upon the throne. For the earl of Oxford is said to have been attainted "for the true allegiance and service he owed and did to Henry VI. at Barnet field and otherwise." (p. 281.) This might be reasonable enough on the true principle that allegiance is due to a kingde facto; if indeed we could determine who was the king de facto on the morning of the battle of Barnet. But this principle was not fairly recognised. Richard III. is always called, "in deed and not in right king of England." Nor was this merely founded on his usurpation as against his nephew. For that unfortunate boy is little better treated, and in the act of resumption, 1 H. VII., while Edward IV. is styled "late king," appears only with the denomination of "Edward his son, late called Edward V." (p. 336.) Who then was king after the death of Edward IV.? And was his son really illegitimate, as an usurping uncle pretended? Or did the crime of Richard, though punished in him, enure to the benefit of Henry? These were points which, like the fate of the young princes in the Tower, he chose to wrap in discreet silence. But the first question he seems to have answered in his own favour. For Richard himself, Howard duke of Norfolk, Lord Lovel, and some others, are attainted (p. 276) for "traiterously intending, compassing, and imagining" the death of Henry; of course before or at the battle of Bosworth; and while his right, unsupported by possession, could have rested only on an hereditary title which it was an insult to the nation to prefer. These monstrous proceedings explain the necessity of that conservative statute to which I have already alluded, which passed in the eleventh year of his reign, and afforded as much security for men following the plain line of rallying round the standard of their country as mere law can offer. There is some extraordinary reasoning upon this act in Carte's History (vol. ii. p. 844), for the purpose of proving that the adherents of George II. would not be protected by it on the restoration of the true blood.
[q]The rolls of Henry VII.'s first parliament are full of an absurd confusion in thought and language, which is rendered odious by the purposes to which it is applied. Both Henry VI. and Edward IV. are considered as lawful kings; except in one instance, where Alan Cotterell, petitioning for the reversal of his attainder, speaks of Edward, "late called Edward IV." (vol. iv. p. 290.) But this is only the language of a private Lancastrian. And Henry VI. passes for having been king during his short restoration in 1470, when Edward had been nine years upon the throne. For the earl of Oxford is said to have been attainted "for the true allegiance and service he owed and did to Henry VI. at Barnet field and otherwise." (p. 281.) This might be reasonable enough on the true principle that allegiance is due to a kingde facto; if indeed we could determine who was the king de facto on the morning of the battle of Barnet. But this principle was not fairly recognised. Richard III. is always called, "in deed and not in right king of England." Nor was this merely founded on his usurpation as against his nephew. For that unfortunate boy is little better treated, and in the act of resumption, 1 H. VII., while Edward IV. is styled "late king," appears only with the denomination of "Edward his son, late called Edward V." (p. 336.) Who then was king after the death of Edward IV.? And was his son really illegitimate, as an usurping uncle pretended? Or did the crime of Richard, though punished in him, enure to the benefit of Henry? These were points which, like the fate of the young princes in the Tower, he chose to wrap in discreet silence. But the first question he seems to have answered in his own favour. For Richard himself, Howard duke of Norfolk, Lord Lovel, and some others, are attainted (p. 276) for "traiterously intending, compassing, and imagining" the death of Henry; of course before or at the battle of Bosworth; and while his right, unsupported by possession, could have rested only on an hereditary title which it was an insult to the nation to prefer. These monstrous proceedings explain the necessity of that conservative statute to which I have already alluded, which passed in the eleventh year of his reign, and afforded as much security for men following the plain line of rallying round the standard of their country as mere law can offer. There is some extraordinary reasoning upon this act in Carte's History (vol. ii. p. 844), for the purpose of proving that the adherents of George II. would not be protected by it on the restoration of the true blood.
[r]Difference of Absolute and Limited Monarchy, p. 83.
[r]Difference of Absolute and Limited Monarchy, p. 83.
[s]Rot. Parl. vol. vi. p. 241.
[s]Rot. Parl. vol. vi. p. 241.
[t]1 R. III. c. 2.
[t]1 R. III. c. 2.
[u]The long-debated question as to the murder of Edward and his brother seems to me more probably solved on the common supposition that it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. But a very strong conviction either way is not readily attainable.
[u]The long-debated question as to the murder of Edward and his brother seems to me more probably solved on the common supposition that it was really perpetrated by the orders of Richard, than on that of Walpole, Carte, Henry, and Laing, who maintain that the duke of York, at least, was in some way released from the Tower, and reappeared as Perkin Warbeck. But a very strong conviction either way is not readily attainable.