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BOOK nected with the usages of what then was English VIII.
antiquity, he says,
“ Kings ought not to be under man, but under God, AND THE LAW, because THE LAW MAKES THE KING.
The King ascribes to the Law what the Law ascribes to him ; that is, dignity and power: for he is not King where his will governs, and not the Law. 2
“ The King has a superior, God; ALSO THE LAW, BY WHICH HE IS MADE KING; also this court, that is, of the earls and barons (the parliament); therefore, if the King should be with. out a bridle, that is, without Law, They ought to put a bridle
upon Him. 3
“ The English laws are not whatever is rashly presumed from the will of the King; but what, with the intention of establishing laws, shall be rightly determined by the council of his magistrates (the parliament), the King presiding in authority, and in the deliberation and discussion having been had upon this subject." 4
So our ancient law-book, Fleta, written under the successful and powerful Edward the First, thus expresses the same ideas, imitating or copying its predecessor :
« The King has superiors in ruling the people ; as, THE LAW, by which he is made King; and his court, that is, the earls and barons," meaning by these, the parliament. 5
“The King ought not to have an equal in his kingdom ; for an equal has no government over an equal: nor ought he to have any superior but God AND THE LAW. And because BY THE Law he is made King, it is fit that domination and power should be ascribed to the Law, and should be defended by him on whom the law has bestowed honour and power. He governs badly when a will shall govern in him dissonant to the law. 6
“ He is not called King from reigning, but the name is assumed from well-governing. He is a King while he governs well; but a Tyrant when he oppresses his people by his violated domination. 7
2 Bracton, p. 5.
3 Ibid. p. 34.
4 Ibid. p. 107. 7 Ibid.
« To this He is elected that he may cause justice to be exhibited equally to all who are subject to him, accepting the person of no one: that in him the Lord may sit, and by him decree judgment. It concerns him to defend and sustain what shall be justly judged ; because if there was not one who would do justice, peace would easily be exterminated. 8
“ He has the power of coercion, that he may punish and restrain the delinquents ; and have it in his power to make the laws, customs, and assizes provided, approved, and sworn in his kingdom, to be firmly observed by HIMSELF and all his subjects. 9
“ He ought to excel all in his kingdom in power, because He ought not to have a peer, and much more a superior, in administering justice. Yet, though he excel all in power, his heart should be in the hand of God; and that his power may not remain unbridled, let him apply the bridle of temperance and the reins of moderation, that He be not drawn to do injury, who can do nothing in the land BUT WHAT HE CAN DO BY LAW. 10
« For this he iS CREATED AND CHOSEN KING, that he may do justice to all.” 11
It is in the same strain that our judge Fortescue writes, in the reign of Henry the Sixth :
“ The King of England cannot change the laws of his kingdom at his will. 12
“ He cannot change the laws without the assent of his subjects ; nor burthen his people with strange impositions. 18
“ The statutes of England cannot thus arise, since they are not from the will of the prince, but by the assent of the whole kingdom. 14
“ They are not made by the prudence of one man; or of an hundred counsellors; but of more than three hundred chosen men; as those who know the form of the parliament of England, and the order and manner of its convocation. 15
“ Nor can the King, by himself, or his ministers, impose talliages or subsidies, or any other burthens on his liege people ; or change their laws, or establish new ones, without the con
8 Fleta, p. 16. il Ibid. p. 18. 14 Ibid. p. 40.
13 Ibid. p. 26.
cession and assent of all his kingdom, expressed in parliament." 16
It is in the same spirit, and obviously implying the same principles which these lawyers of Henry the Third, Edward the First, and Henry the Sixth, have expressed more at large, that the still more ancient Glanville, under Henry the Second, in his very short treatise, takes also occasion to say,
“ It will not seem absurd that those English laws should be called Laws, although not written, which have been promulgated on doubtful things, and in council determined by the advice of the proceres, and acceding authority of the prince.” 17
From this passage we perceive that these unwritten laws were not mere customs, as the common law of England has been sometimes erroneously called, but the actual enactments of the national council of England ; and as these principles, from which the ancient interpreters of the law deduced their statements of the royal and parliamentary power in England, are not likely to have originated after the Norman conquest, we may consider them as describing to us some important features of the Anglo-Saxon cyning, and of the Anglo-Saxon witena-gemots.
We will now proceed to collect more distinctly some of the chief traits of the dignity and prerogatives of the cyning, which the Anglo-Saxon remains have preserved for our curiosity.
The authorities already adduced on the nature of the government of the Saxons on the Continent, lead us to infer, that when Hengist, Ella, Cerdic, and Ida invaded Britain, they and the other chiefs
16 Fortescue, p. 84.
17 Glanville Prologus.
who succeeded in establishing themselves in the CHAP. island, came with the rank of war-kings, whose power was to continue while hostilities existed.
But to rule a territory extorted by violence from angry natives, who were perpetually struggling to regain it, could scarcely admit of any deposition of the kingly office. The same power and dignity which were requisite to obtain victory were equally wanted, while the hostility lasted, to preserve its conquests. It is, therefore, probable that the first Anglo-Saxon chieftains and their successors were, from necessity and utility, continued on the throne till the kingly dignity became an established, a legal, and a venerated institution.
The circumstance, that these war-kings and their associates invaded and conquered the dominions of petty British kings, was also favourable to the establishment of continued royalty. When the British king fell, or retreated before the Saxon war-king, all his advantages became the spoil of his conquerors. The Saxon chief naturally succeeded to the British, the Saxon nobles to the British nobles, and the other invading warriors to the possessions of the free part of the native community.
It is certain, that in the earliest periods of the Anglo-Saxon history, we find the cyning, or king, and all the four orders of noble, free, freed, and servile. Their conversion to Christianity introduced another class, of monks and clergy.
The power and prerogatives of the Anglo-Saxon cyning were progressively acquired. As the nation had no written constitution, their government was that of ancient custom, gradually altered from its original features by the new circumstances which
occurred. In the course of time, the augmentation of the power of the cyning became indispensable to the happiness of the nation. What could arrange the contentions of right, property, and power, between equal nobles, or between them and the free, and afterwards between them and the church; what could protect the infant state from British hostility, ever jealous, ever bickering, and ever to be mistrusted, but such an institution as continued royalty - a cyning, raised in dignity and power above all the other chieftains; who should cause the laws of the society to be executed, and their various rights adjusted ; to whom every rank could effectually appeal, and who was the protector of every order of the state from violence and wrong?
We have seen that the land swarmed with independent land proprietors of various denominations, whose privileges were not uniform ; but whose jurisdictions were generally peculiar and independent. What but a king could, in their age, and with their customs, have rescued the nation from a New Zealand state of general warfare? The institution of the cyning was, therefore, an admirable device, adapted to promote the common interest. It maintained peace between the tur-, bulent chieftains. It insured to every order the enjoyment of its immunities. It was the source whence legal justice was administered to all; and perhaps no single incident tended more to acceTerate the Anglo-Saxon civilisation, than the character and prerogatives of the cyning, moderated by the continuance of the witena-gemots, and the free spirit of the people.
It is extremely difficult to describe accurately