govern HENRY III 1216-1272. more obnoxious to the passions and resentments of the ment. Instead of the county, hundred, and baronial courts, over which the crown had little influence, the justice of the kingdom was almost exclusively exercised by the judges of the Curia Regis and the Exchequer, and by the justices Itinerant itinerant in their circuits, the latter of whom were sent justices. through the kingdom, not to punish offenders, but to compound with them for their transactions; not to execute justice, but to collect fines*. By these judges, who were more or less dependant upon the crown, and disposed, in general, to enforce and exact to the utmost all its rights and dues, the numerous penalties of the Saxon code were levied with a rigour and strictness unknown in Saxon times. Transgressions against the forest laws were visited with Open traffic of unrelenting severity; fines, redemptions, and compositions, injustice. extorted on the most unjust and frivolous pretences'; abuses of purveyance protected; prerogatives vested in the crown for the public benefit, were perverted into engines of finance'; the injustice of those in authority connived at, till the culprits were rich enough to pay for their transgressions; the free gifts and writs of cities and boroughs converted into arbitrary tallages; and the military tenants themselves harassed and impoverished by the extension and perversion of the feudal incidents, to which their tenures made them liable. The poverty of the crown became an incentive to its rapacity, and the judges were the instruments of its exactions. In the Curia Regis, there was an open traffic of injustice; and the iters of the justices itinerant are only known to us at the present day, by the money they levied, and the fines they brought into the Exchequer. M. Paris, 533, 652, 661, 786, 864. 5 Ibid. 651, 652, 661, 758, 852, 863, 902. 6 Ibid. 744. 7 Ibid. 409, 820, 827, 935. 835 Edin. Rev., Art 1. 22, 23, passim. G SECTION V. EDWARD I. EDWARD I., November 16, A. D. 1272,-July 7, A. D. 1307. 1. Improvements in the Law. 2. Legislative Assemblies. 1. Improvements in the Law. An extensive alteration in the condition of the people, or in 1272-1307. circumstances, must at any time induce some changes of institutions, and render absolutely necessary a sensible modification of the laws. Laws must be ac Laws must be accommodated, or laws will accommodate commodated to themselves to the growing necessities of mankind, and the varying state and condition of human society. the condition of society. Administration of justice between party and party. Forms of writs. Legal treatises. The improvements in our law, were, during this reign, of the most extensive and salutary character, for which the people were chiefly indebted to the pecuniary necessities of the king, since they were always granted at the request of parliament: but purchased with the vote of a valuable aid'. Mr. Justice Blackstone thus sums up the juridical provisions of this period."Upon the whole we may observe, that the very scheme and model of the administration of common justice between party and party, was entirely settled by Edward I.: and has continued nearly the same in all succeeding ages, to this day, abating some few alterations, which the humour or necessity of subsequent times hath occasioned. "The forms of writs, by which actions are commenced, were perfected in his reign, and established as models for posterity. The pleadings, consequent upon the writs, were then short, nervous, and perspicuous; not intricate, verbose, and formal. "The legal treatises, written in his time, as Britton, Fleta, Hengham, and the rest, are, for the most part, law at this day; or at least were so, till the alteration of tenures took place. And, to conclude, it is from this period, from the exact observation of Magna Charta, rather than from its making and renewal, in the days of his grandfather and father, that the liberty of Englishmen began again to rear its head though the weight of the military tenures hung heavy upon it for many ages after2." 1 2 Lingard, 473. 2 4 Black. Com. 427. Hale's Hist. Com. Law, 162; Inst. 156. Sed vide etiam, Dunst. 584, 573-577. Wikes, 107, 118, 119, 122. Ryley, 280. 2 Rymer, 664, 960, 1004. Walsing. 48. 2 Lingard, 473, et seq. 2 Hume, 235-239, 245, 319-321. 8 Henry, 113-121. 1272-1307. From this time to that of Henry VII., the civil wars and EDWARD I. disputed titles to the crown gave little leisure for further judicial improvement; "nam silent leges inter arma." And yet is it to these very disputes that we owe the happy loss of all the dominions of the crown on the continent of France; which turned the minds of our subsequent princes entirely to domestic concerns. mon recoveries. Similar causes may have originated the method of barring Fiction of comentails by the fiction of common recoveries ;' invented originally by the clergy, to evade the statutes of mortmain, but introduced under Edward IV., for the purpose of unfettering estates, and making them more liable to forfeiture; while, on the other hand, the owners endeavoured to protect them by the universal establishment of uses, another of the clerical inventions. No Statute Roll prior to the reign of Edward I. has been preserved, if any such was ever made; and although the Statute Rolls of Edward are not perfect, yet many of them remain, and are undoubted evidence of the laws enacted, and, in some instances, may be deemed evidence of the authority by which they were enacted, 2. Legislative Assemblies. No Statute Rolls prior to the reign of Edward I. their present In this reign, the constitution of the legislative assemblies of Legislative instiEngland essentially acquired their present form; but such for- tutions acquired mation was the result of circumstances, rather than of any legis- form." lative act, or of any clear and settled principles of government. mons to parlia During the reigns from the Conquest, preceding that of Edward I., the only record of writs of summons to parlia- Writs of summent of individuals, and for the election of knights, citizens, ment. and burgesses, as representatives of the commons in parliament, together with the representatives of the Cinque Ports, is the imperfect record of 49 Henry III. tholic church. The dignitaries of the Roman Catholic Church, under the Usurpations of cloak of sanctity, had ever bent their undivided attention to the the Roman Caacquisition of riches, and political power, and had been restrained by no sense of justice or honour in the pursuit of such objects: but a disposition had been engendered to resist these usurpations, in the reign of John, was nourished in the reign of his son, manifested itself more fully in this reign; and 3 4 Black. Com. 428. 1272-1307. EDWARD I. Edward, for his own protection, endeavoured, with the assistance of the free and independent spirit of his people, partially to throw off the manacles of the papal power, and his want of the assistance of his people, together with his necessities for money, led to an amelioration of the political constitution of the government, both in its form and administration. Increased influ ence of the boroughs. Power of the king to levy tallages. All classes perceived the neces It had been the salutary policy of John, and Henry III., to encourage and protect the lower and more industrious orders of the state; whom they found well disposed to obey the laws and civil magistrate, and whose ingenuity and labour furnished such commodities as were requisite, for the ornament of peace and support of war. Numerous boroughs were erected by royal patent,-liberty of trade was conferred upon them, the inhabitants were allowed to farm, at a fixed rent, their own tolls and customs': they were permitted to elect their own magistrates; justice was administered to them, by their magistrates, without obliging them to attend the sheriff's tourn; and a shadow of independence, by means of these equitable privileges, was gradually acquired by the people2. The king, however, retained the power of levying tallages, or taxes, upon them at pleasure3, and though their poverty, and the customs of the age, had, for some period after the Conquest, made these demands neither frequent nor exorbitant, such unlimited authority in the crown, was a sensible check upon commerce, and was utterly incompatible with the principles of a free government:-particularly as the cities and boroughs had so increased in wealth, as to have been enabled, on several occasions, to replenish the exhausted treasury of the crown, when the earls and barons had refused assistance,and the king also found he had not, at this period, sufficient power to enforce his numerous edicts for supply, and that it was necessary, before he imposed taxes, to smooth the way for his demand, and to obtain the previous consent of the boroughs, by solicitations, remonstrances, and authority*. Although the Provisions of Oxford had been annulled by sity of restricting the Edict of Kenilworth, the memory of them remained, and, the authority of probably, had a tendency to raise, in the minds of all classes, opinions of their rights, and of the necessity of control on the the crown. 1 Mad. Fir. Bur. 21. 2 Brady on Boroughs, App. No. 1, 2, 3. 2 Hume, 273. 3 Mad. Hist. Exch. 518. 42 Hume, 274. royal power, to prevent those excesses which had provoked the EDWARD I. past disturbances. Under such circumstances, it became imperative that a more stable government should be provided, than that which had prevailed during a great part of the reign of Henry III., and the best illustration of its rise and progress will be, by reference to the principal statutes and writs, in their chronological succession. When, by the death of his father, Edward succeeded to the throne, he was absent in the Holy Land, and writs were issued to the several sheriffs, commanding the king's peace to be proclaimed. 1272-1307. One of the first acts of the government during the absence Levy of a tallage. of Edward, was, in the king's name, to impose a tallage on the town of Bristol, part of the king's demesne, and to inhibit the exportation of wool, generally, to any parts beyond sea, to Exportation of Scotland, Ireland, Wales, or elsewhere out of the kingdom, until the king should order to the contrary, under pain of forfeiture of goods and chattels, and also "sub periculo vitæ et membrorum"." wool prohibited. legislation. These writs are important towards establishing the nature Power of of the royal prerogative; and if the power of the crown to tallage and legislate had not been recognised, it is not probable it would have been assumed, and unobjected to, during the king's absence, when it was the interest of the royal party to conciliate all classes. Edward arrived in England in the second, and held a parliament in the third, year of his reign"; but the nature of the constitution and proceedings of this parliament, can be best derived from the statutes made by it, and from the writ for levying a fifteenth granted to the king. Westminster the First." The title to the statutes "Of Westminster the First," is, Statute" of "Ces sont les establisementz le Rey," and are stated to have been made" par son conseil," and by the assent of the prelates, earls, barons, et la comunaute de la tere ileokes somons :" which expressions show that the king's council, who, with the king, are stated as having made the statutes, were, as a body, distinct from the prelates, earls, barons, and “ COmunaute" who assented to the statutes, though many of the members of that "council," may also have fallen under the description applied to the persons so assenting". > Fœdera, N. E. tom. i. 510. Ibid. i. 514. 7 Ibid. i. 535, 536, 558. |