286               Constitutional History.             [chap.

would have been if marshalled under royal authority. This
regularity was, it may be supposed, still further exemplified
when, in the later stages of the struggle, the northern counties
were pitted against the southern, and the York party, as well
as queen Margaret, claimed to be acting in the king’s name.
In a time of civil war however it is useless to look for consti-
tutional precedent ; the prevalence of disorder is only adduced
as furnishing a clue to the origin of abuses which emerge when
the occasion or excuse for them is over. The commissions of
array by which Edward IV and Richard III collected forces
for the war with Scotland do not form a prominent article in
the indictment against them ; for the country had become used
to fighting, and the obligation to supply men and money for
their maintenance in case of invasion was a common-law ob-
ligation however jealously watched and however grudgingly
fulfilled¹. These armies were not raised by authority of the
parliament, nor paid by the government for the services per-
formed beyond the limits of their native counties, nor were
they required against sudden invasion ². They were not a part

¹ The law as settled by 4 Hen. IV. c. ɪʒ in 1402, and exemplified in
Commissions of Array from 1404 onward, was that except in case of in-
vasion none shall be constrained to go out of their own counties ; and that
men chosen to go on the king’s service out of England shall be at the
king’s wages from the day they leave their own counties. As the Welsh
and Scottish wars of Henry IV were defensive against invasion, commis-
sions of array in which the counties must have borne the expense of the
force furnished were frequently issued; Rymer, viii. T23, 273, 374, &c. ;
and the clergy were arrayed under the same circumstances; ib. 123; ix.
253, 601, &c. The armies collected by Henry V for his war in France con-
sisted partly of a feudal levy, ɪ. e. of a certain force furnished by those who
had received estates from Edward ɪɪɪ with an obligation to serve at Calais,
&c. (Rymer, viii. 456, 466) ; but chiefly of (ɪ) lords and leaders of forces
raised by themselves who served the king by indenture; and (2) of volun-
teers raised by the king’s officers at his wages,^t omnes qui vadia nostra . . .
percipere voluerint ib. ix. 370. In 1443 HenryVI issued letters of privy
seal for an aid of men, victuals, and ships ; Ord. v. 265. In 1464, by
letters close, Edward IV ordered the sheriffs to proclaim that every man
from sixteen to sixty be well and defensibly arrayed, and that he so arrayed
be ready to attend on his highness upon a day’s warning in resistance of
his enemies and rebels and the defence of this his realm ; Rymer, xi. 524 ;
cf. 624, 652, 655, 677. This was peremptory but not illegal.

² In the Commission for Array against the Scots in 1480 the Scots are
regarded as invaders; Rymer, xii. 117. But the abuse of the plea is clear
from the language of the York Records, in which the force furnished is
termed a benevolence; the letters under which it was levied were from

of the host of archers which the parliament of 1453 granted ‘ to
be maintained by those on whom the burden should fall,’ nor of
the like force voted in 1472, for the payment of which the lords
and commons voted a separate tenth. They were levied by
privy seal letters from the king, and were paid by the districts
which supplied them irrespective of the nature of their service.
The obligation was based, no doubt, on the ancient law and
statute of Winchester ; the abuse had abundant precedent
during the reign of Edward III, but it was an abuse notwith-
standing, and must be viewed as part of a general policy of
irresponsible government ɪ.

Under such a government, whether in times of civil war or Judicial ɪɪɪi-
during the periods of peace that are possible in a reign of theɪpoɪiθod.
terror, judicial iniquities are quite compatible with the main-
tenance of the forms of law. During the troubled days of
Henry VI the courts sat with regularity and the judges
elaborated their decisions, when it depended altogether on the
local influence of the contending parties whether the decisions
should be enforced at all. In criminal trials the most infamous
tyrannies may coexist with the most perfect formality, and
after a regular trial and legal condemnation the guilty and the
innocent alike, at least among the minor actors, may be avenged
but cannot be rehabilitated. The York kings have left an evil
reputation for judicial cruelties ; the charge is true, although
it must be shared with the men who lent themselves to such
base transactions and with the age which was sufficiently de-
moralised to tolerate them. The wanton bloodshed of the civil

the duke of Gloucester (p. 107), the number of soldiers was discussed in
the city council and the captain appointed there (p. 112) ; it was agreed
by the king’s high commandment by his gracious letters that the city and
liberties should furnish a captain and 120 archers, 40 of them to be
furnished by the Ainsty ; and that the constables in every parish should
collect the money affered (assessed) in each parish, to be delivered to
the captain, who was bound to return any overplus unexpended; pp. 115,
116. See also Plumpton Papers, pp. 40-42. The instructions given by
Kichard III to the Commissioners of Array in 1484 (Letters, i. 85) fully
bear out this.

¹ Grose, Military Antiquities, i. 71, has printed a paper presented by
Sir Robert Cotton to the king, MS. CottonJulius F. 6, on the provision
of forces at the charge of the counties. The question is one of some
prospective importance ; Hallam, Const. History, ii. ɪʒʒ.

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