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disperse it ; but the commons only presented complaints of the refractoriness with which villains and tenants in villainage rendered their due services; and the exigencies of government led to the fatal poll tax of a groat, which was the proximate cause of the insurrection. By the demands of these rioters we perceive that territorial servitude was far from extinct; but it should not be hastily concluded that they were all personal villains, for a large proportion were Kentish men, to whom that condition could not have applied; it being a good bar to a writ de nativitate probanda, that the party's father was born in the county of Kent.
After this tremendous rebellion, it might be expected that the legislature would use little indulgence toward the lower commons. Such unhappy tumults are doubly mischievous, not more from the immediate calamities that attend them, than from the fear and hatred of the people which they generate in the elevated classes. The general charter of manumission extorted from the king by the rioters of Blackheath, was annulled by proclamation to the sheriffs, and this revocation approved by the lords and commons in Parliament; who added, as was very true, that “such enfranchisement could not be made without their consent; which they would never give to save themselves from perishing altogether in one day.” Riots were turned into treason by a law of the same Parliament. By a very harsh statute in the 12th of Richard II., no servant or laborer could depart, even at the expiration of his service, from the hundred in which he lived, without permission under the king's seal ; nor might any who had been bred to husbandry till twelve years old, exercise any other calling. A few years afterward, the commons petitioned that villains might not put their children to school, in order to advance them by the Church, "and this for the honor of all the freemen of the kingdom.” In the same Parliament they complain that villains fly to cities and boroughs, whence their masters cannot recover them; and if they attempt it, are hindered by the people; and prayed that the lords might seize their villains in such places, without regard to the franchises thereof. But on both these petitions the king put in a negative.
From henceforward we see little notice taken of villainage in parliamentary records, and there seems to have been a rapid tendency to its entire abolition. But the fifteenth century is barren of materials; and we can only infer that, as the same causes which in Edward III.'s time had converted a large portion of the peasantry into free laborers still continued to operate, they must silently have extinguished the whole system of personal and territorial servitude. The latter, indeed, was essentially changed by the establishment of the law of copyhold.
I cannot presume to conjecture in what degree voluntary manumission is to be reckoned among the means that contributed to the abolition of villainage. Charters of enfranchisement were very common upon the Continent. They may perhaps have been less so in England. Indeed, the statute de donis must have operated very injuriously to prevent the enfranchisement of villains regardant, who were entailed along with the land. Instances however occur from time to time, and we cannot expect to discover many. One appears as early as the fifteenth year of Henry III., who grants to all persons, born or to be born within his village of Contishall, that they shall be free from all villainage in body and blood, paying an aid of twenty shillings to knight the king's eldest son, and six shillings a year as a quit rent; so in the 12th of Edward III., certain of the king's villains are enfranchised on payment of a fine. In strictness of law, a fine from the villain for the sake of enfranchisement was nugatory, since all he could possess was already at his lord's disposal. But custom and equity might easily introduce different maxims; and it was plainly for the lord's interest to encourage his tenants in the acquisition of money to redeem themselves, rather than to quench the exertions of their industry by availing himself of an extreme right.
Deeds of enfranchisement occur in the reigns of Mary and Elizabeth ; and perhaps a commission of the latter princess in 1574, directing the enfranchisement of her bondmen and bondwomen on certain manors upon payment of a fine, is the last unequivocal testimony to the existence of villainage; though it is highly probable that it existed in remote parts of the country some time longer.—HALLAM'S Middle Ages, vol. III., pp. 171-182.
At this epoch, to continue nearly in the language of the
author just quoted, we must pause before proceeding with these inquiries into the English constitution ; a sketch very imperfect and unsatisfactory, but which may at least answer the purpose of fixing the reader's attention on the principal objects, and of leading him to consult the purest fountains of constitutional knowledge. From the accession of the house of Tudor, a new period is to be dated in our history; far more prosperous in the diffusion of opulence, and the preservation of general order, than the preceding, but less distinguished by the spirit of freedom and jealousy of tyrannical power. This period, therefore, we shall not attempt to illustrate, but pass on to the more tumultuous, but more fruitful epoch of the Stuarts. We have already seen, through the twilight of our Anglo-Saxon records, a form of civil policy established by our ancestors, marked, like the kindred governments of the Continent, with aboriginal Teutonic features; barbarous, indeed, and insufficient for the great ends of society, but capable and worthy of improvement, because actuated by a sound and vital spirit, the love of frecdom and of justice. From these principles arose that venerable institution, which none but a free and simple people could have conceived, trial by peers ; an institution common in some degree to other nations, but which, more widely extended, more strictly retained, and better modified among ourselves, has become perhaps the first, certainly among the first, of our securities against arbitrary government. We have seen a foreign conqueror and his descendants trample almost alike upon the prostrate nation, and upon those who had been companions of their victory, introduce the servitudes of feudal law with more than their usual rigor, and establish a large revenue by continual precedents upon a system of universal and prescriptive extortion. But the Norman and English races, each unfit to endure oppression, forgetting their animosities in a common intererst, enforce by arms the concession of a great charter of liberties. Privileges wrested from one faithless monarch, are preserved with continual vigilance against the machinations of another; the rights of the people become more precise, and their spirit more magnanimous, during the long reign of Henry III. With greater ambition and greater abilities than his father, Edward I. attempts in vain to govern in an arbitrary manner, and has the mortification of seeing his prerogative fettered by still more important limitations. The great council of the nation is opened to the representatives of the commons. They proceed by slow and cautious steps to remonstrate against public grievances, to check the abuses of administration, and sometimes to chastise public delinquency in the officers of the crown.
A number of remedial provisions are added to the statutes; every Englishman learns to remember that he is the citizen of a free state, and to claim the common law as his birthright, even though the violence of power should interrupt its enjoyment. It were a strange misrepresentation of history to assert that the constitution had attained anything like a perfect state in the fifteenth century; but we know not whether there are any essential privileges of our country. men, any fundamental securities against arbitrary power, so far as they depend upon positive institutions, which may not be traced to the time when the house of Plantagenet filled the English throne.
1. Deposition of Richard II. by. Parliament.—The Parliament closed this reign, Richard II.'s, and exercised the supreme power of government by the removal of Richard II. from the throne and the election of Henry, Duke of Lancaster, to succeed him as king. The rolls of Parliament describe the proceedings at great length : the king's renunciation of the throne, for causes of inability and insufficiency by himself confessed; his absolution of the people from all allegiance; and his recommendation of the duke of Lancaster as his successor. The parliament pronounced sentence of deposition against him and Henry claimed the vacant throne. The lords spiritual and temporal, and commons, as the three estates of the realm, accepted Henry as king, he disclaiming all right by conquest. The justices and other officers of state were sworn into their offices, and proclamation was made for his coronation. Procurators announced to Richard their acceptance of his resignation, and his deposition ; and renounced and gave back to him the homage and fealty formerly made to him.
2. Proclamations of the Sovereign declared by Act of Parliament to have the force of Laws.—The Parliament having thus resigned all their ecclesiastical liberties, proceeded to an entire surrender of their civil; and without scruple or deliberation they made by one act a total subversion of the English constitution.
They gave to the king's proclamations the same force as to a statute enacted by Parliament; and to render the matter worse, if possible, they framed this law as if it were only declaratory, and were intended to explain the natural extent of the regal authority. The preamble contains, that the king had formeriy set forth several proclamations, which froward persons had wilfully contemned, not considering what a king by his royal power may do; that this license might encourage offenders not only to disobey the laws of Almighty God, but also to dishonor the king's most royal majesty, who may full ill bear it ; that sudden emergencies often occur, which require speedy remedies, and cannot await the slow assembling and deliberations of Parliament; and that, though the king was empowered, by his authority, derived from God, to consult the public good on these occasions, yet the opposition of refractory subjects might push him to extremity and violence. For these reasons, the Parliament, that they might remove all occasion of doubt, ascertained by a statute this prerogative of the crown, and enabled his majesty, with the advice of his council, to set forth proclamations, enjoining obedience under whatever pains and penalties he should think proper; and these proclamations were to have the force of perpetual laws.
What shows either a stupid or a wilful blindness of Parliament is, that they pretended, even after this statute, to maintain some limitations in the government; and they enacted that no proclamation should deprive any person of his lawful possessions, liberties, inheritances, privileges, franchises; nor yet infringe any common law or laudable custom of the realm. They considered not that no penalty could be inflicted on the disobedience of proclamations, without invading some liberty or property of the subject; and that the power of enacting new laws, joined to the dispensing power, then exercised by the crown, amounted to a full legislative authority.-Hume, iv. 207, anno 1539.
The Parliament also facilitated the execution of the former law, by which the king's proclamations were made equal to statutes. They appointed that any nine counsellors should form a legal court for punishing all disobedience to proclamations. The total abolition of juries in criminal causes, as well as of al Parliaments, secured, if the king had so pleased, the necessary consequence of this enormous law. He might issue a proclamation for the execution of any penal statute, and afterward try the criminals, not for a breach of the statute, but for disobedience to his proclamation. It is remarkable, that the lord Mountjoy entered a protest against this law; and it is equally remarkable, that that protest is the only one entered against any public bill during this whole reign.-Home, iv. 250, anno 1543.
This law, the destruction of all laws, by which the king's proclamation was made of equal force with a statute, was repealed under Edward VI. During the reign of Elizabeth, however, the rights conferred by it upon the sovereign were exercised with such extravagance as to be even ridiculous. Hume says:
In reality, the crown possessed the full legislative power, by means of proclamations, which might effect any matter, even of the greatest importance, and