end of each session; allowing only for the few days which they might be obliged to employ in journeying to London and returning home.* The convocations were regularly summoned with the lay-parliaments and as regularly met. The prelates were still directed to attend and ⚫ consult with the nobles.' They were also directed to order their dean and archdeacons to attend in person, each chapter to send one proctor, and the clergy of each diocese to send two proctors, to consent to those things which should be ordained by the common council of the kingdom,' As therefore they were only to consent,' not to consult,' the proctors could scarcely be reckoned a part of the commons. They however received wages and partook of the privileges of parliament. The ecclesiastics still continued to lay taxes on themselves; but the consent of the other bran ches of legislature was necessary to give force to their decree.† Parliaments were often called and quickly dismissed. They had frequently only one session, and once (in 1399,) but a single day. No considerable alterations appeared in the English courts of law. The number of the judges in the courts at Westminster was by no means certain. Under Henry VI. there were at one time eight judges in the court of Common Pleas. Each judge took a solemn oath that he would take no fee, pension, gift, reward, or bribe, from any suitor, saving meat and drink, which should be of no great valuc.1 The laws were ill-executed throughout the 15th century. Main+ Ibid. * Prynne. tenance (an union for sinister pur poses) still prevailed; the priests by their exemptions were set above the law; sanctuaries abounded throughout the realm and protected the vilest criminal and the most dishonest debtor; perjury throve and afforded a living to many; while the high constable, under colour of exercising military law, was authorised to proceed in cases of treason, summarily and without noise or form of trial,' and if he wished to give an appearance of justice to his proceedings, he could call in the aid of torture by fire or on the rack. The account which the learned judge Hale gives of the lawyers who pleaded in the 15th century does them little honour. He condemns the reports during the reigns of Henry IV. and V. as inferior to those of the last twelve years of Ed. ward III; and he speaks but cooly of those which the reign of Henry VI. produces.§ Yet this deficiency of progressive improvement in the common law, arose not from a want of application to the science; since we read in a very respectable treatise that there were no fewer than 2,000 students attending on the inns of Chancery and of Court, in time of its wri ter. The Court of Chancery seems to date its rise at the close of the 14th century. It was highly obnoxious to the professors of the common law, who, by their interest in the House of Commons, procured a petition against it from the Parliament to Edward IV. in 1474. The influence of the prelates (who were certain of guiding that court) defeated this attempt, and its establishment Fortescue de Laudibus Legum Angliæ. ¶ Fortescue de Laudibus, &c. encountered Hist. of Common Law, apud Henry. encountered no farther difficulties.* One observation there remains to make on the general state of the English at this period. Civilization indeed had not hitherto made such progress as entirely to abolish slavery. Yet few land-owners or renters were to be found who did not prefer the labour of freemen to that of slaves. This circumstance diminished their number, and the perpetual civil contests enfranchized many by putting arms in their hands. Within a few years after the accession of the Tudors, slaves were heard of no more. A reflection at the close of the 15th century by Philip de Commines will very naturally finish this section. His suffrages in favour of England is the more remarkable as it is given voluntarily at the close of the longest and most bloody civil war with which the English annals can be charged. In my opinion' (says that judicious observer) of all the countries in Europe where I was ever acquainted, the government is no where so well managed, the people no where less obnoxious to violence and oppression, nor their houses less liable to the deso lations of war, than in England; for there the calamities fall only upon the authors. Scotland was not so happy. The unfortunate death of the Norwegian Margaret had involved that realm in a long and bloody contest with its powerful neighbour; and, although the gallant and free spirits of the Scots had preserved the independence of their country,notwithstand ing their inferiority in numbers, wealth, and discipline, it could not prevent the preponderance of a most odious and tyrannic aristocra cy. Perpetual domestic war loosened every tie of constitutional govern. ment; and a Douglas, a Creighton, ora Donald of the isles, by turas exercised such despotism and inbu. manity as no monarch in the 15th century would have dared to prac tise.. The endeavours of the first and of the second James were turned towards improving the jurisprudence of the North, by engrafting on it the best parts of the English system; but the suddenness of their deaths and the weak reign of their successor James III. prevented their people from receiving much benefit from such laudable designs. The parliament of Scotland, at this period, had nearly monopolized all judicial authority. Three committees were formed from the housa (for there was only one) soon after the members met. The first, like the Triers in England,' examined, approved of, or disapproved petitions to the senate; the second constituted the highest court in all criminal prosecutions, as did the third in civil ones. And, as every lord of parliament who chose it might claim his place in each of these committees, almost the whole administration of law, civil as well as military, resided in the breast of the Scottish nobility. There was another court, that of Session, of which the members and the duration were appointed by parliament. The justiciary (an officer discontinued in England as too potent) was still nominally at the head of the Scottish law, and held courts which were styled Justiciaries,' as Cotton's Records. did the Chamberlain Chambers fact, the matter was then referred to lainaries;' from these courts there the decision of the sword. If the parties were noble, the king him self was always present at the combat, seated on a scaffold, attended by the earl marshal and high constable of England, who were to see that no undue advantage was taken by either party. The conqueror was then declared innocent, and the vanquished guilty. was allowed an appeal to a jurisdiction of great antiquity, styled The Four Boroughs' Court.' This was formed of burgesses from Edinburgh and three other towns, who met at Haddington to judge on such appeals. There was one abuse, however, which rendered every court of justice nugatory. It had become a custom for the Scottish monarchs to bestow on their favourites not only estates but powers and privileges equal to their own. These were styled Lords of Regalities; they formed courts around them, had mimic officers of state, and tried, executed, or pardoned the greatest criminals. The seventh of June, a combate was foughte before the king's palace at Westminster, on the pavement there, betwixt one sir John Annesley, knight, and one Thomas Katrington, esq. The occasion of this strange and notable triall rose hereof. The knight accused the esquier of treason, for that whereas the fortresse of Sainte Saviour within the isle of Constantine, in Normandie, belonging sometime to sir John Chandos, had bin committed to the said Katrington, as Captayne thereof to keepe it against the enemies,hehadde for money solde and delivered it over to the Frenchmen, when he was sufficiently provided, of men,munition, and-vittayles, to have defended it against them; and sith the inheritance of that fortresse and lands belonging thereto, had apperteyned to the said Annesley in righte of his wife, as nearest cousin by affinite unto sir John Chandos, if by the false conveyance of the said Katrington, it had not bin made away and alienated into the enemies hands, ANCIENTLY, when one per- hee offered therefore to trie the son was accused by another without any farther witness than the bare ipse dixit of the accuser, the accused party making good his own cause by strongly denying the VOL. XXXVII. quarrell by combate, against the Whilst Whilst the Duke of Lancaster during the time that his father King Edward lay in hys last sicknesse, did in al things what liked him, and so at the contemplation of the lord Latimer as was thought, hee released Katrington for the time, so that sir John Annesley could not come to the effect of his suite in all the meane time, till nowe. Such as feared to be charged with the like offences, stayed the matter, till at length by the opinion of true and auntiente, knights, it was defyned, that for such a foreign controversse that hadde not risen within the limittes of the realme, but touched possession of thynges on the further side of the sea, it was lawful to have it tryed by battayle, if the cause were first notified to the conestable and marshal of the realme, and that the combate was accepted by the parties. Here upon was the day and place appointed, and all things provided readie, with lystes rayled and made sosubstantially, as if the same shoulde have endured for ever. The concourse of people that came to London to see this tried was thought to exceede that of the king's coronation, so desyrous were men to beholde a sight so strange and unac customed. The king and his nobles, and all the people being come togyther in the morning of the day appoynt ed, to the place where the lystes, were set up, the knight being armed and mounted on a fayre courser seemely trapped, entered first as appellant, staying till his adversarie the defendant should come. And shortly after was the esquier called to defend his cause, in this fourme. Thomas Katrington defendant,come and appeare to save the action, for which sir John Annesley knight and appellant hath publiquely and by writing appelled thee: he being thus called thrise by an herault at armes, at the thirde call he cometh armed likewise, and ryding on a courser trapped with trappes embrodered with his armes. At his approaching to the lystes he alyght from his horse, least according to the law of armes the conestable shoulde have chalenged the horse if he had entered within the lystes, but his shifting nothing avayled him, for the horse after his maister was alyght beside him,ranne up and downe by the rayles nowe thrusting his heade over, and nowe both heade and breaste, so that the Earlof Buckingham,tbycause hewas high conestable of Englande,claymed the horse afterwardes, swearing that hee woulde have so much of him as had appeared over the rayles, and so the horse was adjudged unto him. But now to the matter of the combate (for this chalenge of the horse was made alter) as soon as the esquier was come within the lystes the indenture was brought forth by the marshall and conestable, which had been made and sealed before them, with consent of the parties, in which were conteyned the articles exhibited by the knight agaynst the esquier, and there the same was read afore all the assemble. The esquier, whose conscience was thought not to be cleare, but rather guilte, went abaut to make exceptions, that his cause by some means might have seemed the sound *The famous John of Gaunt. One of the king's sons, afterwards duke of Gloucester. er. er. But the Duke of Lancaster hearing him so staye at the matter, sware that except according to the conditions of the combate, and the lawe of armes, he woulde admit all things in the indenture comprysed, that were not made without his owne consent, he shoulde as guilty of the treason forthwith he had forth to execution. The duke with these words wane great commendation, and avoyded no small suspicion that had beene conveyed of him, as partialle to the squier's cause. The esquire hear ng all this, sayd, that he durst fight vith the knight, not onely in these joyntes, but in all other in the worlde, whatsoever the same might e: for he trusted more to his trength of bodie, and favour of his riendes, than in the cause which he ad taken upon hym to defende. le was indeede a mightie man of tature, where the knight among hose that were of a mean stature vas one of the least. Friendes to the esquier in whom he ad great affyance to be borne out hrough their assystance, were the ords Latimer and Basset wyth other. Before they entered battalle, they ooke an othe, as well the knight as he esquier, that the cause in which hey were to fight was true, and that hey dealt with no witch craft, nor rte magicke whereby they might bteyne the victorie of their adverarie, nor had about the any herb or stone, or other kind of experinent with wich magitians use to riumph over theyr enemies. This the received of either of them, and herewith having made their pray rs devoutly, they begin the bat. ayle, first with speares, after with wordes, and lastly with daggers. They fought long, till finally the knight had bereft the esquier of all his weapons, and at length the es quier was manfully overthrown by the knight but as the knight woulde have fallen upon the esquier, through sweate that ran downe by his helmet, his sighte was hyndered, so that thinking to fall upon the es quier, hee fell downe sideling himselfe, not comming neare to the esquier, who perceyving what had happened, although he was almost overcome with long fighting, made to the knight, and threw himself upon him, so that many thought the knight shoulde have been overcome: other doubted not but that the knight woulde recover his feete againe, and get the victorie of his adversarie. The king in the mean tyme cause ed it to bee proclaymed that they should stay, and that the knight shoulde bee raysed up from the ground, and so ment to take up the matter betwixt them. To be short, such were sent as should take up the esquier, but comming to the knight, hee besought them, that it might please the king to permit them to lie still, for he thanked God hee was well, mistrusted not to obtayned the victorie, if the esquier might be layde upon him, in manner as he was earst. Finally when it would not bee so granted, he was contented to be raysed up, and was no sooner set upon his feete, but he cheerfully went to the king, without any man's helpe, where the esquier could neyther stand nor go without the helpe of two men to holde him up, and therefore was set in his chaire to take his ease, to see if he might recover his strength. The knight, at his coming before the king, besought him and his no[*H 2] bles |
