1414.] JUSTICES OF THE PEACE. 133 The selection of the justices was altered on several occasions. A statute of Edward III. declared that the justices should be one lord, and with him three or four of the most worthy in the county, with some learned in the law. In the twelfth year of Richard II. it was enacted that there should be but six justices in each commission, who should keep their sessions. in every quarter of the year at least; taking for their wages. four shillings the day, during their sessions, and their clerk two shillings, out of the fines and amerciaments. In the same reign we find, in a statute, that "for certain causes showed in this parliament, the justices of the peace shall be made of new, in all the counties of England, of the most sufficient knights, esquires, and gentlemen of the law of the said counties."3 In the reign of Henry V., it was enacted, that justices of the peace, named of the quorum, must be resiant in the shire. In the same year, that they should be of the most sufficient persons dwelling in the same counties, by the advice of the chancellor, and the king's council.5 Notwithstanding these frequent changes, the persons appointed did not fulfil the purposes of their office, as appears by a statute of Henry VI., the preamble of which states that, "Notwithstanding the statutes, now of late, in many counties of England, the greatest number of justices have been deputed and assigned, which before this time were not wont to be,-whereof some be of small behaviour, by whom the people will not be governed nor ruled, and some for their necessity do great extortion and oppression upon the people, whereof great inconveniencies be likely to arise daily if the king thereof do not provide remedy." The king, willing to provide remedy, ordained and established that no justice of the peace shall be assigned or deputed if he have not lands 134 Edward III., cap. 1, A. D. 1360. 2 12 Richard II., cap. 10, A.D. 1388. 52 Henry V., stat. 2, cap. 1, A.D. 1414. or tenements to the value of £20 by year. But this ordinance not to extend to cities, towns, or boroughs which have justices of peace, of persons dwelling in the same, by commission of the king.! 7. The Statute concerning Treason. The law of treason was declared by the statute of the twenty-fifth year of Edward III., statute 5, cap. 2., entitled, "A Declaration which Offences shall be adjudged Treason." It is a matter of great constitutional importance that the law of treason should be fixed and invariable. A despotic monarch finds his power best served by evading a legal definition of the offence; for uncertainty leaves all the acts of his subjects hostile to his power, or adverse to his inclinations, open to be construed as acts of treason. Accordingly we find, in the course of our national history, that the most powerful and despotic monarchs, on many occasions, extended the law of treason to include offences not mentioned in the statute of Edward III. It was a popular measure, in subsequent reigns, to remove the new offences from the category of treason, and to reduce the crime to the limits of the ancient statute, which remains, at the present day, the law of treason. It is, however, modified in the subjects' favour, by laws requiring stricter proof of the offence on the part of the crown, and giving the person charged more assistance and protection in his defence than are required or allowed in ordinary felonies.2 The statute, in its preamble, recites that "divers opinions have been before this time, in what case treason shall be said, and in what not; the king, at the request of the lords and commons, hath made a declaration as followeth : "When a man doth compass or imagine the death of the king, or of his queen, or of their eldest son and heir. "Or if a man do violate the king's companion, or the 1 18 Henry VI., cap. 11, A.D. 1439. 2 These will be referred to in the second part of the Treatise. 1350.] TREASON. 135 king's eldest daughter unmarried, or the wife of the king's eldest son and heir. "Or if a man do levy war against the king in his realm, or be adherent to the king's enemies in his realm, giving to them aid and comfort in the realm, or elsewhere, and thereof be provably attainted of open deed, by the people of their condition. "And if a man counterfeit the king's great or privy seal, or his money; and if a man bring false money into this realm, counterfeit to the money of England, as the money called Lushburgh, or other like to the said money of England, knowing the money to be false, to merchandise or make payment in deceit of the king and of his people. "And if a man slay the chancellor, treasurer, or the king's justices of the one bench or the other, justices in eyre, or justices of assize, and all other justices assigned to hear and determine, being in their places, doing their offices. "For such treason the forfeiture of the escheats pertaineth to our sovereign lord, as well of the lands and tenements holden of other as of himself. "There is another manner of treason, when a servant slayeth his master, or a wife her husband, or when a man secular or religious slayeth his prelate to whom he oweth faith and obedience; and of such treason the escheats ought to pertain to every lord of his own fee." The statute proceeds to declare that if any other case of supposed treason, which is not above specified, doth happen, the justices shall not go to judgment of the treason "till the cause be showed and declared before the king and his parliament, whether it ought to be judged treason or other felony." The punishment of treason was then, as it now is, death; but, until the law empowered the king, by warrant under his sign manual, to order otherwise, it was accompanied by 1 25 Edward III., cap. 2, A.D. 1350. 2 By statute 54 George III., cap. 146, A.D. 1814, which also empowers the king to order the traitor to be beheaded, instead of being hanged. cruel torture. The criminal was drawn from the prison to the place of execution on a hurdle, he was then hanged, but, before he was dead, he was cut down and disembowelled and quartered. The punishment of women for treason was death by burning. As a consequence of treason there follows corruption of blood, which prevents the transmission of the convict's estates to his natural heirs; so that lands, as well entailed as fee-simple, and the profits of estates for life, are forfeited to the king. The punishment of felony was in most, and still is in some cases, death by hanging, and corruption of blood follows as a consequence; but lands entailed are not forfeited; and, by the custom of gavelkind, fee-simple lands were not forfeited, which gave rise to the distich, "The father to the bough, The son to the plough." 8. Statute against Benevolences. The statute against benevolences is an important one in our constitutional history. It was passed by Richard III. immediately after his usurpation of the throne, and is an emphatic protest by the parliament against taxation by benevolences, which had been resorted to during the wars of York and Lancaster. The language of the statute is so unusually strong as a denunciation, that it seems as if the representatives of the people had taken advantage of the freedom permitted them by the usurper on his ascending the throne, to express their abhorrence of this illegal and ruinous tax. The statute is entitled, "The subjects of this realm shall not be charged by any benevolence," etc. The preamble describes a benevolence as a new and unlawful invention and imposition, whereby the commons and subjects of the land, against their wills and freedoms, have paid great sums of money to their almost utter destruction; for divers and many worshipful men of this realm, by occasion thereof, were compelled by necessity to break up their households, 1483.] BENEVOLENCES. 137 and to live in great penury and wretchedness, their debts unpaid, their children unpreferred, and such memorials as they had ordained to be done for the wealth of their souls were anentized and annulled, to the great displeasure of God, and the destruction of the nation. Therefore the subjects and commonalty of the realm shall from henceforth be in no wise charged by none such charge, exaction, or imposition called a benevolence; but it shall be damned and annulled for ever.1 9. Statutes concerning the Clergy. No complete conception can be formed of our constitutional history unless we pay attention throughout to the position which the clergy occupied. They were in the Middle Ages divided into two great classes. The first comprised the clergy of the Church of England,-a hierarchy, composed of archbishops, bishops, and other subordinate dignitaries, based upon a very numerous body of parochial clergy, consisting of priests and deacons. The second class comprised the abbots, priors, and monks of various orders, who possessed and occupied numerous abbeys, priories, monasteries, and other religious houses, throughout the length and breadth of the land. The former of these classes was distinguished as the secular clergy, from their living in the world (in sæculo); the latter as the regular clergy, as living under monastic rule (sub regulá): these are also called in the old statutes religious clergy, from their residing in religious houses. To these religious houses were attached large estates in the most beautiful and fertile parts of the kingdom; whilst the bishops had their baronies, derived from the Conqueror; and the parochial clergy had their glebes, and the tithes of the lands in their respective parishes, except in those cases where the tithes had been separated from the parochial livings, and had been appropriated to the monasteries or cathedrals. So that at the conclusion of the twelfth century nearly one-half of the land of the 1 1 Richard III., cap. 2, A.D. 1483. |