176 Equality Under the Law was useful in preserving many of the better educated men when any education was rare. Thus it placed a premium upon the acquisition of some little 'knowledge, and it was useful also as a protest against those inhuman punishments for crime. But the abuses of the system (practically preserving churchmen of every grade and all men who could read from the possibility of becoming criminals) became so markedly dangerous in later years, that in the time of Edward I.—" the age of triumphant Catholicism passing into decline "-it became possible, at last, to introduce the most necessary reforms, and begin to make the guilty clerk suffer as a criminal for his evil deeds. Thus, true criminal law was extended and enforced by the king and people over the feudal baronage and the Christian Church, and by all orders of the people over their despotic kings. We shall see this great work of making all men equal under the law continued throughout the centuries, progressing, as it always will progress, so long as England is advancing into greater knowledge, wiser intelligence and truer social morality; but this work, this progress, means an ever larger number of social prohibitions, and, so far as history teaches, an ever greater volume of the nation's crime and criminals. CHAPTER VIII PARLIAMENTARY GOVERNMENT AND THE NEW FEUDALISM. 1307-1485 THE fourteenth and fifteenth centuries of English history present the rise, trial and failure of a great constitutional experiment—the rise of Parliament to sovereign power and the attempt to make it the direct instrument of government. Upon the rights and precedents then established was erected the firm system of constitutional government and national liberty won and secured during the seventeenth, eighteenth and nineteenth centuries. The rise of the House of Commons to the foremost rank in Parliament, the control of the executive by the legislative, and most of the minor developments of Lancastrian and Yorkist reigns were in line with the true upward growth of the national life, as later history abundantly proves. Why then did this first experiment in government by representatives of the people prove such a complete failure at the time, even though the failure was fruitful of future good? I. "The nation had not yet learned the qualities needed for such a high stage of self-government." A few of the new social prohibitions which the House of Commons tried to establish will perhaps suffice to make this manifest. Villains shall not send their sons to school. No one under the degree of freeholder shall keep a dog. Laborers must accept the low wages fixed by Parliament and must not leave their place of residence to seek employment elsewhere. 178 The House of Commons 2. There were inherent defects in the representative system of that time. The changes which fostered the growing power of the House of Commons, and induced it, nay, almost compelled it, to take a commanding position in the government, were many and important, actually throwing out of gear the old political machinery. Ever since Magna Charta, the baronage, clergy and people had united to curb and limit the too despotic power of the king. The barons of the thirteenth century had outlined the system by which the king was to be controlled; and the genius of Edward I., accepting the growth of the constitutional idea, had created the model Parliament from the three estates of his realm, harmonized the wishes of a mighty king with those of a determined people, and established a balance of executive and legislative powers by which the king was stronger, as a constitutional ruler, than any of his despotic ancestors, for he could rely on the support of all his people, now that "that which touches all" had become "the concern of all." But it required a wise and strong king to maintain this balance of power, and after Edward I. England had a succession of boy kings, shadow kings, or kings who owed their crowns to Parliament; while the hundred years' war with France and the constant royal need of money made the crown more and more dependent upon Parliament, and especially the House of Commons, which held the purse. Grants of money were made dependent upon the redress of grievances by the king, and most of the many limitations of despotic royal power during this period were thus paid for. The work of limiting the authority of the crown went rapidly onward. Before the close of the fourteenth century two kings of England had 1 Stubbs, ii, 599-600. All that was won by Parliament in its long struggle against royal despotism was won for the Commons, and the decision of many great questions passed irrevocably into their hands. been dethroned by Parliament,-here is true social punishment for the head of the state. In the person of Richard II. royal power had sunk to its lowest ebb; and, after 1376, it became established that not only the great ministers of state, but the courtiers of the royal household and even the king's mistress, were responsible for their conduct to Parliament and the nation, and that no amount of personal service to the king could save his haughty and law-scorning followers from trial and conviction as criminals before the bar of the House of Lords upon impeachment by the Commons.' "Great as were the offences of Edward II., Stapledon the treasurer and Baldeck the chancellor were the more immediate and direct objects of national indignation. They were scarcely less hated than the Dispensers and shared their fate." The "Good Parliament" (1376), impeached Lord Latimer, Lord Neville, Richard Lyons, Alice Perrers and many of the dishonest courtiers of Edward III., and from this time Parliament became "the grand jury of the nation, the sworn recognitors of national rights and grievances," punishing criminal wickedness in high places.3 The impeachment of Michael de la Pole (1386) and of Sir Simon Burley and his companions (1388) was the work of the House of Commons, which later impeached Archbishop Arundel for his conduct as chancellor. Richard II. insisted that the laws were "in his own mouth and breast," and repeatedly broke the statutes of the land. Parliament deposed him and gave his crown to another, showing its power by changing the succession. This act closed the long struggle between constitutional government and the old idea of royal prerogative. The nation had asserted and maintained its right and might to punish as criminals all who did not obey the laws, even the king and his greatest ministers. 1 Rot. Parl., ii, 323–330 and 355; Stubbs, ii, 593. 2 3 Stubbs, ii, 593; Rot. Parl., ii, 323-330, 355; iii, 156–8, 241. Stubbs, ii, 592. 180 Provisors and Praemunire During the fourteenth century every department of government-legislative, executive, judicial-came directly or indirectly under the control of Parliament. The great bulk of new legislation was initiated by the lower house, as will appear from a comparison of the Rolls of Parliament with the Statute Book,' and the Commons were simply indefatigable in suggesting remedies for the many dangerous abuses prevalent in the courts of justice. In 1351, 1352 and 1353 were passed the Statutes of Provisors, of Treason, of Praemunire, each of them vindicating national rights as against royal prerogative.3 Under the Normans, treason was essentially a crime against the king, so heinous that mere death was far too light a punishment. Its limits were undefined, and it had gradually been stretching out to cover many minor offences. Now, at the prayer of the people, "high treason was defined, and this act remained a bulwark of the subject's liberties" till the development of constructive treasons under the Tudors. One new treason, however, was created: "The making war against the king in his realm." It seems most strange to us that so great a social evil should not have been made a crime until the middle of the fourteenth century; but when feudalism was at its height, making war against the king was an acknowledged right of the baronage, under certain conditions.5 The Statutes of Provisors and Praemunire dealt with the relations of England to the papacy. Henceforward there were to be no appointments by the pope to English benefices, and no appeals to him from the ecclesiastical courts. These acts were confirmed and enlarged many times, in 1364, 1377, 1390, 1393; but a system of division of spoils between the 2 Ibid., ii, 539-40. 1 Stubbs, ii, 604. Provisors, 25 Ed. III., Stat. 4; and Traill, ii, 147. *Statute of Treason, 25 Edw. III., Stat. 5, c. 2. 'See Stubbs. |