of sovereignty, and seeing that in Bracton's view the sovereignty, if not vested in the king, was nowhere to be found, they adopted, what seemed to them the only possible alternative, and inferred that the power of the Crown in the thirteenth century was legally unlimited. Once the fact is grasped, that the royalist writers of the seventeenth century were as deeply imbued with the idea of sovereignty as was Austin, and the course which they took, is seen to be natural. It has been said that "had it [the theory of sovereignty] been accepted in the thirteenth century, the English kingship must have become a tyranny, for nowhere else than in the person of the king could the requisite sovereignty have been found"." If this be so, it follows that those, who had no suspicion that the theory was not accepted in the thirteenth century, must have imagined that English kingship at that time was an absolute monarchy. thought as Hence it is not surprising, that royalist writers of They the seventeenth century quote Bracton only less fre- that quently than the Bible, and, although they must have Bracton regarded read his distinct assertion to the contrary, regard him the King with evident bona fides as irrefragable testimony to absolute. the truth of their doctrine that England in the Middle Ages was an absolute monarchy, tempered only by (always iniquitous) revolutions2. 1 Pollock and Maitland, History of English Law, 1. 160. 2 Majestas Intemerata, a pamphlet of 50 pages, is crowded with appeals to the authority of Bracton, Britton, &c. Cf. also Jenkins Redivivus. Cowell quotes Bracton's authority for his assertion that "the king is above the law by his absolute power" (Prothero, Statutes and Constitutional Documents, 409, and note). LE They had plausible They found it declared repeatedly that the king is God's vicar1; that all persons in the realm are their view under him; that he is under none but God; that he grounds for in many Bracton and Britton. phrases of has no peer: that if he break the law, it is enough that he await the vengeance of God, for none of his subjects may punish him2; that no judgment to make void an act or charter of the king is valid3; that our Lord the King has ordinary jurisdiction over all in the land; that all (save spiritual) rights are in his hand'; that he was created king to the end that he should do justice to all that the Lord should sit in him; that a jury may be fined for deciding against the king; that none may impose on him without his consent the necessity to amend an injury of his own doing, for necessity may not be imposed on him?. They found that Britton regards the whole common law as an emanation from the royal authority, that he declares his regality to be inalienable, and the king to be the sole interpreter of his will1o. The passages in a contrary sense explained away. It is not wonderful that writers of an uncritical imbued with the idea that there must be in the age, State some power above the law, should have sup 1 Bracton, f. 1 b. 3 Ibid. f. 34. 5 Ibid. f. 107. 7 Ibid. ff. 368 b and 389 b. 9 Ibid. 1. 221. "Rois aussi ne porrount rien aliener les dreitz de lour coroune ne de lour reauté, qe ne soit repellable par lour successours. This is on the same lines as the arguments of seventeenth century writers, to prove that all the rights of Parliament and people are but concessions, which may at any moment be recalled. 10 Britton, 1. 414. posed that the lawyers of the thirteenth century regarded the king in that light. It was easy to ignore what was said about the king being subject to law1, to treat it as a fine phrase, or to suppose that nothing more was intended than their own distinction between a king, who rules according to the law of nature, i.e. morality, and the tyrant who governs by caprice. The seventeenth century royalists were willing enough to admit the desirability of the sovereign governing by fixed rules; they only denied / that he was legally incapable of altering them. They no more desired a king to govern without law, than a modern writer, asserting the omnipotence of Parliament and its power to abrogate all existing laws, would desire that each successive Parliament should repeal all the acts of its predecessors. They too wished the king, in obedience to Divine law, to govern according to the law of the land; in this sense they understood Bracton's assertion, that the king was under God and the law2. Another idea to be found in Bracton must have 1 Bracton, ff. 5 b, 34. The lengthy passage, in which a king who rules without law is treated as the vicar not of God, but of the devil, would serve to strengthen the view of the royalists, that Bracton regarded moral law alone as superior to the Crown. They must have explained these passages as suggested; for it was impossible for any writer, however dishonest, to ignore the strong phrases about the supremacy of the law used in the very passages, which they quote as asserting the power of the Crown. Bracton was a book constantly in the hands of their opponents, and, without some such justification in their minds, they could not have faced them. See next note. 2 The strongest evidence that this was the common view is the remarkable passage in which Filmer boldly grapples with the most can make an heir.' 'Only God contributed much towards generating the belief in the sacredness of primogeniture. The view of the lawyers of the thirteenth century, that only God can make an heir1 although expressed with reference to private inheritance, must have tended to greatly strengthen the sentiment in favour of strict hereditary succession. It led men to regard this mode of the devolution of the Crown, as in some mysterious way superior to the merely human method of election. The birth of an heir is the judgment of God, and has the same sanctity attached to it, as the ordeal or the lot. Men, if they elect, may well make a bad choice; God, though we may not fathom His reasons, will not make an heir without good grounds. Summary. To sum up, it appears that Kingship has ever been regarded as in some especial way protected by a Divine authority; that the influence of Christianity has in all ages been held to support this view; that English Kingship from being elective in a single family has become purely hereditary by the fourteenth century; that coronation has ceased to be regarded as necessary to the making of a king; and that in the awkward of all Bracton's statements. He declares that the words systematic presentment of English law in the thirteenth century there are ample materials for men in a later age, devoid of the historical sense and imbued with the theory of sovereignty, to suppose that the English Kingship towards the close of the Middle Ages was strictly hereditary and unconditioned by constitutional restraints. |