I. to Mary. CHAP. it with plenary legislative authority; and if the sanction of a statute were required for this fundamental axiom, we might refer Henry VII. to one in the 15th of Edward II. (1322), which declares, that "the matters to be established for the estate of the king and of his heirs, and for the estate of the realm and of the people, should be treated, accorded, and established in parliament, by the king, and by the assent of the prelates, earls, and barons, and the commonalty of the realm, according as had been before accustomed *." It may not be impertinent to remark in this place, that the opinion of such as have fancied the royal prerogative under the houses of Plantagenet and Tudor to have had no effectual or unquestioned limitations, is decisively refuted by the notorious truth, that no alteration in the general laws of the realm was ever made, or attempted to be made, without the consent of parliament. It is not surprising that the council, in great exigency of money, should sometimes employ force to extort it from the merchants, or that servile lawyers should be found to vindicate these encroachments of power. Impositions, like other arbitrary measures, were particular and temporary, prompted by rapacity, and endured through compulsion. But if the kings of England had been supposed to enjoy an absolute authority, we should find some proofs of it in their exercise of the supreme function of sovereignty, the enactment of new laws. Yet there is not a single instance, from the first dawn of our constitutional history, where a proclamation, or order of council, has dictated any change, however trifling, in the code of private rights, or in the penalties of criminal offences. Was it ever pretended that the king could empower his subjects to devise their freeholds, or to levy fines of their entailed lands? Has even the slightest regulation as to judicial procedure, or any * This statute is not even alluded to in Ruffhead's edition, and has been very little noticed by writers on our law or history. It is printed in the late edition, published by authority, and is brought forward in the Report of the Lords' Committee, on the dig nity of a Peer (1819), p. 282. Nothing can be more evident than that it not only establishes by a legislative declaration the present constitution of parliament, but recognizes it as already standing upon a custom of some length of time. I. to Mary. permanent prohibition, even in fiscal law, been ever enforced with- CHAP. out statute? There was indeed a period, later than that of Henry VII., when a control over the subject's free right of doing all Henry VII. things not unlawful, was usurped by means of proclamations. These, however, were always temporary, and did not affect to alter the established law. But though it would be difficult to assert that none of this kind had ever been issued in rude and irregular times, I have not observed any under the kings of the Plantagenet name, which evidently trangress the boundaries of their legal prerogative. The general privileges of the nation were far more secure than those of private men. Great violence was often used by the various officers of the crown, for which no adequate redress could be procured; the courts of justice were not strong enough, whatever might be their temper, to chastise such aggressions; juries, through intimidation or ignorance, returned such verdicts as were desired by the crown; and, in general, there was perhaps little effective restraint upon the government, except in the two articles of levying money and enacting laws. The peers alone, a small body, varying from about fifty to eighty persons, enjoyed the privileges of aristocracy; which, except that of sitting in parliament, were not very considerable, far less oppressive. All below them, even their children, were commoners, and, in the eye of the law, equal to each other. In the gradation of ranks, which, if not legally recognised, must still subsist through the necessary inequalities of birth and wealth, we find the gentry, or principal landholders, many of them distinguished by knighthood, and all by bearing coat armour, but without any exclusive privilege; the yeomanry, or small freeholders and farmers, a very numerous and respectable body, some occupying their own estates, some those of landlords; the burgesses and inferior inhabitants of trading towns; and, lastly, the peasantry and labourers. Of these, in earlier times, a considerable part, though not perhaps so very large a proportion as is usually taken 1. CHAP. for granted, had been in the ignominious state of villenage, incapable of possessing property but at the will of their lords. They Henry VII had, however, gradually been raised above this servitude; many had acquired a stable possession of lands under the name of copyholders; and the condition of mere villenage was become rare. to Mary. The three courts at Westminster, of the King's Bench, Common Pleas, and Exchequer, consisting each of four or five judges, administered justice to the entire kingdom; the first having an appellant jurisdiction over the second, and the third being in a great measure confined to causes affecting the crown's property. But as all suits relating to land, as well as some others, and all criminal indictments, could only be determined, so far as they depended upon oral evidence, by a jury of the county, it was necessary that justices of assize and gaol-delivery, being in general the judges of the courts at Westminster, should travel into each county, commonly twice a year, in order to try issues of fact, so called in distinction from issues of law, where the suitors, admitting all essential facts, disputed the rule applicable to them*. By this device, which is as ancient as the The pleadings, as they are called, or written allegations of both parties, which form the basis of a judicial inquiry, commence with the declaration, wherein the plaintiff states, either specially, or in some current form, according to the nature of the case, that he has a debt to demand from, or an injury to be redressed by, the defendant. The latter, in return, puts in his plea; which, if it amount to a denial of the facts alleged in the declaration, must conclude to the country, that is, must refer the whole matter to a jury. But if it contain an admission of the fact, along with a legal justification of it, it is said to conclude to the court; the effect of which is to make it necessary for the plaintiff to reply; in which replication he may deny the facts pleaded in justification, and conclude to the country; or allege some new matter in explanation, to show that they do not meet all the circumstances, concluding to the court; or demur, that is, deny that, although true and com plete as a statement of facts, the plea is sufficient, according to law, to repel the plaintiff's suit. In the last case it becomes an issue in law, and is determined by the judges without the intervention of a jury; it being a principle, that by demurring, the party acknowledges the truth of all matters alleged on the pleadings. But in whatever stage of the proceedings either of the litigants concludes to the country, which he is obliged to do, whenever the question can be reduced to a disputed fact, a jury must be impannelled to decide it by their verdict. These pleadings, together with what is called the postea, that is, an indorsement by the clerk of the court wherein the trial has been, reciting that afterwards the cause was so tried, and such a verdict returned, with the subsequent entry of the judgment itself, form the record. This is merely intended to explain the phrase in the text, which common readers I. to Mary. reign of Henry II., the fundamental privilege of trial by jury, CHAP. and the convenience of private suitors, as well as accused persons, was made consistent with an uniform jurisprudence; Henry VII. and though the reference of every legal question, however insignificant, to the courts above must have been inconvenient and expensive in a still greater degree than at present, it had no doubt a powerful tendency to knit together the different parts of England, to check the influence of feudality and clanship, to make,the inhabitants of distant counties better acquainted with the capital city, and more accustomed to the course of government, and to impair the spirit of provincial patriotism and animosity. The minor tribunals of each county, hundred, and manor, respectable for their antiquity, and for their effect in preserving a sense of freedom and justice, had in a great measure, though not probably so much as in modern times, gone into disuse. In a few counties there still remained a palatine jurisdiction, exclusive of the king's courts; but in these the common rules of law, and the mode of trial by jury, were preserved. Justices of the peace, appointed out of the gentlemen of each county, inquired into criminal charges, committed offenders to prison, and tried them at their quarterly sessions, according to the same might not clearly understand. The theory of special pleading, as it is generally called, could not be farther elucidated without lengthening this note beyond all bounds. But it all rests upon the ancient maxim: De facto respondent juratores, de jure judices. Perhaps it may be well to add one observation-that in many forms of action, and those of most frequent occurrence in modern times, it is not required to state the legal justification on the pleadings, but to give it in evidence on the general issue; that is, upon a bare plea of denial. In this case the whole matter is actually in the power of the jury. But they are generally bound in conscience to defer, as to the operation of any rule of law, to what is laid down on that head by the judge; and be when they disregard his directions, it is I. CHAP. forms as the judges of gaol-delivery. The chartered towns had their separate jurisdiction under the municipal magistracy. Henry VII. to Mary. The laws against theft were severe, and capital punishments unsparingly inflicted. Yet they had little effect in repressing acts of violence, to which a rude and licentious state of manners, and very imperfect dispositions for preserving the public peace, naturally gave rise. These were frequently perpetrated or instigated by men of superior wealth and power, above the control of the mere officers of justice. Meanwhile the kingdom was increasing in opulence, the English merchants possessed a large share of the trade of the north, and a woollen manufacture, established in different parts of the kingdom, had not only enabled the legislature to restrain the import of cloths, but begun to supply foreign nations. The population may probably be reckoned, without any material error, at about three millions, but by no means distributed in the same proportions as at present; the northern counties, especially Lancashire and Cumberland, being very ill peopled, and the inhabitants of London and Westminster not exceeding sixty or seventy thousand *. Such was the political condition of England, when Henry Tudor, the only living representative of the house of Lancaster, though incapable, by the illegitimacy of the ancestor who connected him with it, of asserting a just right of inheritance, became master of the throne by the defeat and death of his competitor at Bosworth, and by the general submission of the kingdom. He assumed the royal title immediately after his victory, and summoned a parliament to recognize or sanction his possession. The circumstances were by no means such as to offer an auspicious presage for the future. A subdued party had risen from the * The population for 1485 is estimated by comparing a sort of census in 1378, when the inhabitants of the realm seem to have amounted to about 2,300,000, with one still more loose under Elizabeth in 1588, which would give about 4,400,000; making some allowance for a more rapid increase in the latter period. Three millions at the accession of Henry VII. is probably not too low an estimate. |