7 ENGLISH versus FRENCH FREEDOM. country lieutenants and treasurers assigned-the one to draw the blood, the other the substance, of the slavish subjects.' Sir John Fortescue, who presided for many years as chief justice, and was afterwards nominated chancellor to Henry VI., in his celebrated book De Laudibus legum Angliæ, and in his other work, which is composed in English, commonly entitled The Difference between Absolute and Limited Monarchy, though by himself styled The Difference between Dominium Regale, et Dominium Politicum et Regale, describes the constitution and privileges of England in terms which must elicit the approbation of the most liberal in our own times, while he depicts in colours that inspire us with horror the despotism and misery of France, of which, having retired thither with the wife and son of the unfortunate Henry, he was an eye-witness. According to his description, the English lived under the protection of laws enacted by themselves; in France, the principle of the civil code prevailed,—that the will of the monarch is law: the English paid taxes of their own imposing; the French, with the exception of the nobility, to whom the king granted an immunity from taxation, lest he should drive them into rebellion, were plundered at the discretion of their prince: the English, upon any charge of crime, had the benefit of a trial by a jury of their peers; in France, confession was extorted by the rack, a custom,' remarks the author, 'which is not to be accounted law, but rather the high road to the devil.' In England, there was an independent middle class of society; in France, all was noblesse or wretched peasantry. In England, the people lived in security and in comfortable circumstances; in France, they were in the most deplorable misery-for every ramification of government was corrupt; those who began to accumulate a little capital were by the monarch directly Life and Reign of Henry IV. p. 250. This is the title which the trea tise bears in the MS. in the British CHAP. 1. CHAP. plundered of the first reward of their industry; this des I. potic system required the support of an army, and these, all foreigners, were sent to live at free quarters on the inhabitants, whom they pillaged and abused without mercy, only shifting their quarters when they had completely exhausted the substance of their hosts. Somewhat of Fortescue's description might be ascribed to the partiality of an Englishman, were not his testimony fully confirmed by the evidence of a cotemporary French author, Philip de Commines, who, in equally glowing colours, paints the despotism of France, and the wretchedness of the people, heightening the picture in regard to the soldiery, for their brutal licentiousness towards the wives and daughters of their hosts, while he declares England to be the best governed country he had ever known.* Thus it appears, from incontestable evidence, that England at an early period was distinguished for her freedom, and the comparative happiness of her people; but everything is comparative, and, in speaking of the people, we ought never to overlook the number who are included under the appellation. As in ancient times, the slaves, far more numerous than their masters, were ranked amongst things, so, infinitely the greater part of the former inhabitants of England neither enjoyed the privileges nor were included under the name of the people. The population of the towns bore a limited proportion to that of the country; and though England was happy beyond her neighbours in a class of smaller proprietors, copyholders, and leaseholders, the bulk of the inhabitants directly depended on the aristocracy. Yet these dependents were far happier than the French peasantry; for they were the soldiery of the kingdom, and, besides that, they were These authors, Fortescue and Commines, represent matters in so very striking a point of view that I have transcribed some passages and thrown them into the form of a note at the end of the volume. They will be found very opposite to the description of English liberty given by Mr. Hume; and as I am afraid I have scarcely done justice to them in the text, I earnestly recommend them to the reader's perusal. (Note A.) HOUSES OF YORK AND LANCASTER. I. necessarily imbued with somewhat of the pride and spirit CHAP. of men in arms, and it was the interest of their superior to preserve them in a certain degree of comfort: they had oppression to apprehend from one quarter only, while the French were neither entrusted with arms,-consequently, were neglected by the proprietor,-nor protected against the brutal licentiousness and rapacity of foreign military.* The revolution in manners which the towns had been gradually introducing, was rapidly advanced by the bloody wars between the houses of York and Lancaster. From that contest, which was merely a struggle for superiority between opposite factions of the aristocracy, the people, who were jealous of the nobility and gentry, stood aloof, probably not displeased to observe the factions mutually wasting their strength; and, as they did not engage in the quarrel, they were exempt from the calamities of the war, which fell wholly upon the aristocracy and the men in arms, but particularly the first. There were no burnings, plunderings, nor devastations; the common affairs of the kingdom proceeded as in a profound peace. But the aristocracy suffered dreadfully; many noble families became extinct, and none altogether avoided the consequences incident to such a struggle, while new men necessarily rose on their ruins or misfortunes. Though at the battle of Touton, gained early by Edward IV., there was an immense carnage, yet the general practice of the contending parties, particularly of that monarch, till his victory over Warwick at Barnet, where there was an indiscriminate slaughter, was to call out to spare the soldiers, but to slay the nobles and gentry-and few of them escaped.+ Harrison, who published in 1577, tells us, that there are no slaves in England; that the instant one sets his foot on English ground he is free as his master; and that every particular man is supposed to be present in parliament, either by himself or his attorney:-yet says, that the fourth class in the community, includ- + Commines, a cotemporary, 1. iii. 9 CHAP. I. The safety of each party, as it prevailed, demanded rigorous measures for the depression of its adversaries' power; and the vanquished would, to remove suspicion, rather plunge into expense than cultivate the means of recruiting their strength. Henry VII. owed his elevation to the smaller faction; and the York party, who were hostile to his advancement, being by far the most numerous, were eager to dethrone him, in order to recover the influence and property of which his rise had deprived them. His followers, on the other hand, whom the exaltation of their chief had restored to their properties, or whose sufferings and devotion to the house of Lancaster it had recompensed out of forfeitures from their enemies, had one common interest with their leader: while, in consequence of the repeated insurrections, he could confirm their fidelity by fresh grants from new forfeitures. Henry was too politic a prince to act without the intervention of the legislature; but the posture of affairs enabled him to procure parliaments composed of his adherents, who were consequently ready to promote his views, as they accorded with their own. In the first flush of success, when their enemies were dejected, the Lancastrian faction were not likely to be greatly opposed in elections for parliament; and Henry exerted the influence of the Crown in favour of his own partisans." From the attainders and deaths of the temporal peers, their number was diminished, and those attached to the York party in detailing the battle of Northamp- Grafton, speaking of the second bee elected the most prudent and grauous persons of euery countie, citie, port, and borough; and in especiall such as he in al his daungers, calamities, miseries and tumultuous affaires used, trusted, and fauoured, as partakers, councelers, and companions, both of his wo and aduersitie and also of his triumph and glorious victory, whose mindes and studies he perfitly knewe to bee fixed and set in the politique regiment and prudent gouernaunce of the publique welth of his realme and dominion' (p. 857). CREATION OF THE COURT OF STAR-CHAMBER. would be intimidated from opposition, while the successful faction knew it to be their interest to improve their advantage. The spiritual peers at that time formed a large proportion of the Upper House, and were inclined to support the government, in order to obtain the favour of the monarch, who even employed them chiefly in secular affairs, and connived at clerical usurpation.* The ineffectual attempts of the Yorkists to dethrone Henry, taught his adherents the necessity of strengthening the royal power, for the common benefit of the party, and of seizing the critical moment for weakening the aristocracy, from whom they principally apprehended danger. The king and the parliament having thus the same interest, calculated their measures for depressing the aristocracy as the grand objects of fear. The old laws against armed retainers were strengthened by additional enactments; and as it was by the number of their retainers that the Yorkists could hope to regain the ascendency, the provisions of the legislature were rigorously enforced. But the ordinary courts were unable to carry the laws into effect against powerful families, who either influenced or overawed juries-amongst whom, at this time, from the preponderance of the Yorkists in number, they must have had unusual favour-and not unfrequently intimidated the judges themselves. The very being of the triumphant party, however, required the execution of the statutes against armed retainers; and therefore a new court -that of the Star-Chamber-was created, for the trial of offences against those statutes-according to an arbitrary course, alien to the equitable jurisprudence of England. During this reign, its powers were limited; but they were greatly extended in the next; yet, as that court reached potent families, who, from their influence over juries, were See Bacon's Hist. in regard to Henry's employment of churchmen (p. 582 of White Ken. Col. vol. i.). This monarch first instituted yeomen In the next chapter I trust this point will be found proved. CHAP. 11 |