Chapter VII: Section I: Weakness of the Regal Authority

Hughes, in his preface to his translation of Horne's "_Mirror of Justices_," (a book written in the time of Edward I., 1272 to 1307,) giving a concise view of the laws of England generally, says:

"Although in the Saxon's time I find the usual words of the acts then
to have been _edictum_, (edict,) _constitutio_, (statute,) little
mention being made of the commons, yet I further find that, _tum
demum leges vim et vigerem habuerunt, cum fuerunt non modo institutae
sed firmatae approbatione communitatis_." (The laws had force and
vigor only when they were not only enacted, but confirmed by the
approval of the community.)

The _Mirror of Justices_ itself also says, (ch. 1, sec. 3,) in speaking "_Of the first Constitutions of the Ancient Kings_:"

"Many ordinances were made by many kings, until the time of the king
that now is (Edward I.); the which ordinances were abused, _or not
used by many, nor very current_, because they were not put in
writing, and certainly published."--_Mirror of Justices_, p. 6.

Hallam says:

"The Franks, Lombards, and Saxons seem alike to have been jealous of
judicial authority; and averse to surrendering what concerned every
man's private right, out of the hands of his neighbors and
equals."--_1 Middle Ages_, 271.

The "judicial authority," here spoken of, was the authority of the kings, (who at that time united the office of both legislators and judges,) and not of a separate department of government, called the judiciary, like what has existed in more modern times.[34]

Hume says:

"The government of the Germans, and that of all the northern nations,
who established themselves on the ruins of Rome, was always extremely
free; and those fierce people, accustomed to independence and inured
to arms, _were more guided by persuasion than authority, in the
submission which they paid to their princes_. The military despotism,
which had taken place in the Roman empire, and which, previously to
the irruption of those conquerors, had sunk the genius of men, and
destroyed every noble principle of science and virtue, was unable to
resist the vigorous efforts of a free people, and Europe, as from a
new epoch, rekindled her ancient spirit, and shook off the base
servitude to arbitrary will and authority under which she had so long
labored. The free constitutions then established, however impaired by
the encroachments of succeeding princes, still preserve an air of
independence and legal administration, which distinguished the
European nations; and if that part of the globe maintain sentiments
of liberty, honor, equity, and valor, superior to the rest of
mankind, it owes these advantages chiefly to the seeds implanted by
those generous barbarians.

"_The Saxons, who subdued Britain, as they enjoyed great liberty in
their own country, obstinately retained that invaluable possession in
their new settlement; and they imported into this island the same
principles of independence, which they had inherited from their
ancestors. The chieftains, (for such they were, more than kings or
princes,) who commanded them in those military expeditions, still
possessed a very limited authority_; and as the Saxons exterminated,
rather than subdued the ancient inhabitants, they were, indeed,
transplanted into a new territory, _but preserved unaltered all their
civil and military institutions_. The language was pure Saxon; even
the names of places, which often remain while the tongue entirely
changes, were almost all affixed by the conquerors; the manners and
customs were wholly German; and the same picture of a fierce and bold
liberty, which is drawn by the masterly pen of Tacitus, will suit
those founders of the English government. _The king, so far from
being invested with arbitrary power, was only considered as the first
among the citizens; his authority depended more on his personal
qualities than on his station; he was even so far on a level with the
people, that a stated price was fixed for his head, and a legal fine
was levied upon his murderer, which though proportionate to his
station, and superior to that paid for the life of a subject, was a
sensible mark of his subordination to the community._"--_1 Hume_,
_Appendix_, 1.

Stuart says:

"The Saxons brought along with them into Britain their own customs,
language, and civil institutions. Free in Germany, they renounced not
their independence, when they had conquered. Proud from victory, and
with their swords in their hands, would they surrender their
liberties to a private man? Would temporary leaders, limited in their
powers, and unprovided in resources, ever think to usurp an authority
over warriors, who considered themselves as their equals, were
impatient of control, and attached with devoted zeal to their
privileges? Or, would they find leisure to form resolutions, or
opportunities to put them in practice, amidst the tumult and
confusion of those fierce and bloody wars, which their nations first
waged with the Britons, and then engaged in among themselves?
Sufficiently flattered in leading the armies of their countrymen, the
ambition of commanders could as little suggest such designs, as the
liberty of the people could submit to them. The conquerors of Britain
retained their independence; and this island saw itself again in
that free state in which the Roman arms had discovered it.

"The same firmness of character, and generosity of manners, which, in
general, distinguished the Germans, were possessed in an eminent
degree by the Saxons; and while we endeavor to unfold their political
institutions, we must perpetually turn our observation to that
masterly picture in which the Roman historian has described these
nations. In the woods of Germany shall we find the principles which
directed the state of land, in the different kingdoms of Europe; and
there shall we find the foundation of those ranks of men, and of
those civil arrangements, which the barbarians everywhere
established; and which the English alone have had the good fortune,
or the spirit, to preserve."--_Stuart on the Constitution of
England_, p. 59-61.

"Kings they (the Germans) respected as the first magistrates of the
state; but the authority possessed by them was narrow and
limited."--_Ditto_, p. 134.

"Did he, (the king,) at any time, relax his activity and martial
ardor, did he employ his abilities to the prejudice of his nation, or
fancy he was superior to the laws; the same power which raised him to
honor, humbled and degraded him. The customs and councils of his
country pointed out to him his duty; and if he infringed on the
former, or disobeyed the latter, a fierce people set aside his
authority. * *

"His long hair was the only ornament he affected, and to be foremost
to attack an enemy was his chief distinction. Engaged in every
hazardous expedition, he was a stranger to repose; and, rivalled by
half the heroes of his tribe, he could obtain little power. Anxious
and watchful for the public interest, he felt every moment his
dependence, and gave proofs of his submission.

"He attended the general assembly of his nation, and was allowed the
privilege to harangue it first; but the arts of persuasion, though
known and respected by a rude people, were unequally opposed to the
prejudices and passions of men."--_Ditto_, p. 135-6.

"_The authority of a Saxon monarch was not more considerable. The
Saxons submitted not to the arbitrary rule of princes. They
administered an oath to their sovereigns, which bound them to
acknowledge the laws, and to defend the rights of the church and
people; and if they forgot this obligation, they forfeited their
office._ In both countries, a price was affixed on kings, a fine
expiated their murder, as well as that of the meanest citizen; and
the smallest violation of ancient usage, or the least step towards
tyranny, was always dangerous, and often fatal to them."--_Ditto_, p.
139-40.

"They were not allowed to impose taxes on the kingdom."--_Ditto_, p.
146.

"Like the German monarchs, they deliberated in the general assembly
of the nation; _but their legislative authority was not much
respected_; and their assent was considered in no better light than
as a form. This, however, was their chief prerogative; and they
employed it to acquire an ascendant in the state. To art and
insinuation they turned, as their only resource, and flattered a
people whom they could not awe; but address, and the abilities to
persuade, were a weak compensation for the absence of real power.

"They declared war, it is said, and made peace. In both cases,
however, they acted as the instruments of the state, and put in
execution the resolutions which its councils had decreed. If, indeed,
an enemy had invaded the kingdom, and its glory and its safety were
concerned, the great lords took the field at the call of their
sovereign. But had a sovereign declared war against a neighboring
state, without requiring their advice, or if he meant to revenge by
arms an insult offered to him by a subject, a haughty and independent
nobility refused their assistance. These they considered as the
quarrels of the king, and not of the nation; and in all such
emergencies he could only be assisted by his retainers and
dependents."--_Ditto_, p. 147-8.

"Nor must we imagine that the Saxon, any more than the German
monarchs, succeeded each other in a lineal descent,[35] or that they
disposed of the crown at their pleasure. In both countries, the free
election of the people filled the throne; and their choice was the
only rule by which princes reigned. The succession, accordingly, of
their kings was often broken and interrupted, and their depositions
were frequent and groundless. The will of a prince whom they had long
respected, and the favor they naturally transferred to his
descendant, made them often advance him to the royal dignity; but the
crown of his ancestor he considered as the gift of the people, and
neither expected nor claimed it as a right."--_Ditto_, p. 151-3.

In Germany "It was the business of the great to command in war, and in peace they distributed justice. * *

"The _princes_ in Germany were _earls_ in England. The great
contended in both countries in the number of their retainers, and in
that splendor and magnificence which are so alluring to a rude
people; and though they joined to set bounds to regal power, they
were often animated against each other with the fiercest hatred. To a
proud and impatient nobility it seemed little and unsuiting to give
or accept compositions for the injuries they committed or received;
and their vassals adopting their resentment and passions, war and
bloodshed alone could terminate their quarrels. What necessarily
resulted from their situation in society, was continued as a
_privilege_; and the great, in both countries, made war, of their
private authority, on their enemies. The Saxon earls even carried
their arms against their sovereigns; and, surrounded with retainers,
or secure in fortresses and castles, they despised their resentment,
and defied their power.

"The judges of the people, they presided in both countries in courts
of law.[36] The particular districts over which they exerted their
authority were marked out in Germany by the council of the state; and
in England their jurisdiction extended over the fiefs and other
territories they possessed. All causes, both civil and criminal, were
tried before them; and they judged, except in cases of the utmost
importance, without appeal. They were even allowed to grant pardon to
criminals, and to correct by their clemency the rigors of justice.
Nor did the sovereign exercise any authority in their lands. In these
his officers formed no courts, and his _writ_ was disregarded. * *

"They had officers, as well as the king, who collected their
revenues, and added to their greatness; and the inhabitants of their
lands they distinguished by the name of _subjects_.

"But to attend the general assembly of their nation was the chief
prerogative of the German and Saxon princes; and as they consulted
the interest of their country, and deliberated concerning matters of
state, so in the _king's court_, of which also they were members,
they assisted to pronounce judgment in the complaints and appeals
which were lodged in it."--_Ditto_, p. 158 to 165.

Henry says:

"Nothing can be more evident than this important truth; that our
Anglo-Saxon kings were not absolute monarchs; but that their powers
and prerogatives were limited by the laws and customs of the country.
Our Saxon ancestors had been governed by limited monarchs in their
native seats on the continent; and there is not the least appearance
or probability that they relinquished their liberties, and submitted
to absolute government in their new settlements in this island. It is
not to be imagined that men, whose reigning passion was the love of
liberty, would willingly resign it; and their new sovereigns, who had
been their fellow-soldiers, had certainly no power to compel them to
such a resignation."--_3 Henry's History of Great Britain_, 358.

Mackintosh says: "The Saxon chiefs, who were called kings, originally
acquired power by the same natural causes which have gradually, and
everywhere, raised a few men above their fellows. They were,
doubtless, more experienced, more skilful, more brave, or more
beautiful, than those who followed them. * * A king was powerful in
war by the lustre of his arms, and the obvious necessity of
obedience. His influence in peace fluctuated with his personal
character. In the progress of usage his power became more fixed and
more limited. * * It would be very unreasonable to suppose that the
northern Germans who had conquered England, had so far changed their
characteristic habits from the age of Tacitus, that the victors
became slaves, and that their generals were converted into
tyrants."--_Mackintosh's Hist. of England, Ch. 2._ _45 Lardner's Cab.
Cyc._, 73-4.

Rapin, in his discourse on the "Origin and Nature of the English Constitution," says:

"There are but two things the Saxons did not think proper to trust
their kings with; for being of like passions with other men, they
might very possibly abuse them; namely, the power of changing the
laws enacted by consent of king and people; and the power of raising
taxes at pleasure. From these two articles sprung numberless branches
concerning the liberty and property of the subject, which the king
cannot touch, without breaking the constitution, and they are the
distinguishing character of the English monarchy. The prerogatives of
the crown, and the rights and privileges of the people, flowing from
the two fore-mentioned articles, are the ground of all the laws that
from time to time have been made by unanimous consent of king and
people. The English government consists in the strict union of the
king's prerogatives with the people's liberties. * * But when kings
arose, as some there were, that aimed at absolute power, by changing
the old, and making new laws, at pleasure; by imposing illegal taxes
on the people; this excellent government being, in a manner,
dissolved by these destructive measures, confusion and civil wars
ensued, which some very wrongfully ascribe to the fickle and restless
temper of the English."--_Rapin's Preface to his History of England._

Hallam says that among the Saxons, "the royal authority was weak."--_2 Middle Ages_, 403.

But although the king himself had so little authority, that it cannot be supposed for a moment that his laws were regarded as imperative by the people, it has nevertheless been claimed, in modern times, by some who seem determined to find or make a precedent for the present legislative authority of parliament, that his laws were authoritative, _when assented to_ by the _Witena-gemote_, or assembly of wise men--that is, the bishops and barons. But this assembly evidently had no legislative power whatever. The king would occasionally invite the bishops and barons to meet him for consultation on public affairs, _simply as a council_, and not as a legislative body. Such as saw fit to attend, did so. If they were agreed upon what ought to be done, the king would pass a law accordingly, and the barons and bishops would then return and inform the people orally what laws had been passed, and use their influence with them to induce them to conform to the law of the king, and the recommendation of the council. And the people no doubt were much more likely to accept a law of the king, if it had been approved by this council, than if it had not. But it was still only a law of the king, which they obeyed or disregarded according to their own notions of expediency. The numbers who usually attended this council were too small to admit of the supposition that they had any legislative authority whatever, to impose laws upon the people against their will.

Lingard says:

"It was necessary that the king should obtain the assent of these
(the members of the Witena-gemotes) to all legislative enactments;
_because, without their acquiescence and support, it was impossible
to carry them into execution_. To many charters (laws) we have the
signatures of the Witan. _They seldom exceed thirty in number; they
never amount to sixty._"--_1 Lingard_, 486.

It is ridiculous to suppose that the assent of such an assembly gave any _authority_ to the laws of the king, or had any influence in securing obedience to them, otherwise than by way of persuasion. If this body had had any real legislative authority, such as is accorded to legislative bodies of the present day, they would have made themselves at once the most conspicuous portion of the government, and would have left behind them abundant evidence of their power, instead of the evidence simply of their assent to a few laws passed by the king.

More than this. If this body had had any real legislative authority, they would have constituted an aristocracy, having, in conjunction with the king, absolute power over the people. Assembling voluntarily, merely on the invitation of the king; deputed by nobody but themselves; representing nobody but themselves; responsible to nobody but themselves; their legislative authority, if they had had any, would of necessity have made the government the government of an aristocracy merely, _and the people slaves, of course_. And this would necessarily have been the picture that history would have given us of the Anglo-Saxon government, _and of Anglo-Saxon liberty_.

The fact that the people had no representation in this assembly, and the further fact that, through their juries alone, they nevertheless maintained that noble freedom, the very tradition of which (after the substance of the thing itself has ceased to exist) has constituted the greatest pride and glory of the nation to this day, _prove_ that this assembly exercised no authority which juries of the people acknowledged, except at their own discretion.[37]

There is not a more palpable truth, in the history of the Anglo-Saxon government, than that stated in the Introduction to Gilbert's History of the Common Pleas,[38] viz., "_that the County and Hundred Courts_," (to which should have been added the other courts in which juries sat, the courts-baron and court-leet,) "_in those times were the real and only Parliaments of the kingdom_." And why were they the real and only parliaments of the kingdom? Solely because, as will be hereafter shown, the juries in those courts tried causes on their intrinsic merits, according to their own ideas of justice, irrespective of the laws agreed upon by kings, priests, and barons; and whatever principles they uniformly, or perhaps generally, enforced, _and none others_, became practically the law of the land as matter of course.[39]

Finally, on this point. Conclusive proof that the legislation of the king was of little or no authority, is found in the fact _that the kings enacted so few laws_. If their laws had been received as authoritative, in the manner that legislative enactments are at this day, they would have been making laws continually. Yet the codes of the most celebrated kings are very small, and were little more than compilations of immemorial customs. The code of Alfred would not fill twelve pages of the statute book of Massachusetts, and was little or nothing else than a compilation of the laws of Moses, and the Saxon customs, evidently collected from considerations of convenience, rather than enacted on the principle of authority. The code of Edward the Confessor would not fill twenty pages of the statute book of Massachusetts, and, says Blackstone, "seems to have been no more than a new edition, or fresh promulgation of Alfred's code, or _dome-book_, with such additions and improvements as the experience of a century and a half suggested."--_1 Blackstone_, 66.[40]

The Code of William the Conqueror[41] would fill less than seven pages of the statute book of Massachusetts; and most of the laws contained in it are taken from the laws of the preceding kings, and especially of Edward the Confessor (whose laws William swore to observe); but few of his own being added.

The codes of the other Saxon and Norman kings were, as a general rule, less voluminous even than these that have been named; and probably did not exceed them in originality.[42] The Norman princes, from William the Conqueror to John, I think without exception, bound themselves, and, in order to maintain their thrones, were obliged to bind themselves, to observe the ancient laws and customs, in other words, the "_lex terrae_," or "_common law_" of the kingdom. Even Magna Carta contains hardly anything other than this same "_common law_," with some new securities for its observance.

How is this abstinence from legislation, on the part of the ancient kings, to be accounted for, except on the supposition that the people would accept, and juries enforce, few or no new laws enacted by their kings? Plainly it can be accounted for in no other way. In fact, all history informs us that anciently the attempts of the kings to introduce or establish new laws, met with determined resistance from the people, and generally resulted in failure. "_Nolumus Leges Angliae mutari_," (we will that the laws of England be not changed,) was a determined principle with the Anglo-Saxons, from which they seldom departed, up to the time of Magna Carta, and indeed until long after.[43]