The Growth of the English Constitution from the Earliest TimesFreeman, Edward A. (Edward Augustus)
History
The Growth of the English Constitution from the Earliest Times
Freeman, Edward A. (Edward Augustus)
Constitutional history -- Great Britain
I will quote another case, a case in which the return from the
fantasies of lawyers to the common sense of antiquity has been
distinctly to the profit, if not of the abstraction called the Crown,
yet certainly to that of its personal holder. As long as the _folkland_
remained the land of the people, as long as our monarchy retained
its ancient elective character, the King, like any other man, could
inherit, purchase, bequeath, or otherwise dispose of, the lands which
were his own private property as much as the lands of other men were
theirs. We have the wills of several of our early Kings which show that
a King was in this respect as free as any other man(29). But as the
lawyers’ figment of hereditary right took root, as the other lawyers’
figment also took root by which the lands of the people were held to
be at the personal disposal of the King, a third figment grew up, by
which it was held that the person and the office of the King were so
inseparably fused into one that any private estates which the King held
before his accession to the throne became _ipso facto_ part and parcel
of the royal demesne. As long as the Crown remained an elective office,
the injustice of such a rule would have made itself plain; it would
have been at once seen to be as unreasonable as if it had been held
that the private estates of a Bishop should merge in the estates of
his see. As long as there was no certainty that the children or other
heirs of the reigning King would ever succeed to his Crown, it would
have been the height of injustice to deprive them in this way of their
natural inheritance. The election of a King would have carried with
it the confiscation of his private estate. But when the Crown was held
to be hereditary, when the _folkland_ was held to be _Terra Regis_,
this hardship was no longer felt. The eldest son was provided for by
his right of succession to the Crown, and the power of disposing of the
Crown lands at pleasure gave the King the means of providing for his
younger children. Still the doctrine was none the less unreasonable;
it was a doctrine founded on no ground either of natural justice or of
ancient law; it was a mere inference which had gradually grown up out
of mere arbitrary theories about the King’s powers and prerogatives.
And, as the old state of things gradually came back again, as men
began to feel that the demesnes of the Crown were not the private
possession of the reigning King, but were the true possession of the
people—that is, as the _Terra Regis_ again came back to its old state
of _folkland_—it was felt to be unreasonable to shut out the Sovereign
from a natural right which belonged to every one of his subjects. The
land which, to put it in the mildest form, the King held in trust for
the common service of the nation was now again employed to its proper
use. It was therefore reasonable that a restriction which belonged
to a past state of things should be swept away, and that Sovereigns
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