this practice in England had occasioned the wars between William and
Henry the Conqueror’s sons, and their brother Robert, as well as those
between Stephen and himself and his mother, crowned his eldest son Henry.
But the use which the ungrateful prince made of his advancement, was
to embroil his father, by demanding the immediate cession of Normandy,
on pretence that, being a king, he should have some country given up
immediately to govern. Upon young Henry’s death, the father, who knew
Richard, with greater capacity, was equally unnatural with his elder
brother, resolved not to give him the same pretence to trouble him,
and refused obstinately to have him crowned; but this refusal served
itself for a pretext for rebellion, as it gave Richard room to think,
or at least to pretend to think, that his father intended to disinherit
him, and to settle the crown on his youngest and favourite son John.
In this rebellion Richard, assisted by the king of France, and many of
Henry’s subjects, who probably suspected Henry’s design was such as was
suggested, prevailed, and the father was obliged to engage that his
subjects should take the oath of eventual allegiance to Richard, and soon
after died of a broken heart, occasioned by the undutiful conduct of
every one of his sons.
Richard accordingly succeeded; during whose reign we have little to
observe concerning the laws, the whole time of it being spent in a
continual state of war either in Palestine or France. Enormously heavy
indeed were the taxations his subjects laboured under, and yet they
bore them with chearfulness. For the holy war, and the recovery of
the sepulchre of Christ from the infidels, no aids could be thought
exorbitant; and for his wars after his return he was readily supplied
out of affection; for the remorse he shewed for having occasioned his
father’s death, his admirable valour, the injustice of and the cruel
treatment he received in his captivity, and, above all, the opposition
between the perfidious conduct of the French king and his openness and
sincerity, endeared him to his subjects, made them shut their eyes on his
many failings, and bear their burthens with patience.
Two things only passed in this reign proper for the subject of these
lectures, the steps made for settling the succession of the crown,
and the laws of Oleron. As Richard was unmarried when he set out for
Palestine, he thought it proper to prevent, if he could, any doubt that
might arise, in case he died without issue. There might, in this case,
be two competitors, Arthur, the son of Geoffry, his next brother who was
dead, and John the youngest brother, who was living. However clear the
point is at this day in favour of the nephew, it was then far otherwise.
For Arthur might be urged the right of representation. He represented his
father Geoffry; in all the fiefs in France, the law was in favour of the
nephew; nay, Glanville, who wrote in Henry the Second’s reign in England,
as to English estates, declared to the same purpose; and certain it is
that the general current of opinions at that time tended that way[384].
On the other side, it might be said in favour of John’s pretensions,
that the examples of fiefs could be no precedents in case of crowns.
These required more strictly, a person capable of acting in person. That
this was the very case; John was a man, Arthur a child; that, allowing
Glanville to have laid down the law right, he had made a distinction,
which comes up to this case; for he says, the uncle shall succeed, if
the father of the nephew had in his life-time been _forisfamiliated_;
that Geoffry had been out of the _patria potestas_ of Henry, by being
sovereign prince of Britany; that in the Saxon times two cases, for the
exclusion of infants, had happened, much stronger than the present; that
when Edmund the first died in possession of the throne, his brother
Edred succeeded, not his sons; and though Edmund Ironside had been king,
yet, after the Danish usurpation ceased, his brother the _Confessor_
was preferred to his son, though of full age, whereas Geoffry never
had the crown; that, since the conquest, three several times had the
lineal succession been set aside by parliament. So that there were not
wanting plausible arguments of each side of the question, and it is with
injustice that modern historians, considering only the maxims of their
own times, when a regular succession has been established, charge John
with a manifest usurpation of the crown of England. But that he was a
manifest usurper of the territories in France must be allowed; for, by
the laws of that country, they should have gone to the nephew.
A question of this weight and difficulty should regularly have been
decided in parliament, which always hitherto had determined in such
matters; but Richard had never thought of the business till he left
England, and then it was too late to proceed in that method. He was
obliged, therefore, to content himself with declaring, by his own
authority, his nephew Arthur his successor; and, to prevent John’s
traversing his design, he exacted an oath from him not to set foot in
England for three years; but from this obligation he afterwards released
him, at the request of their mother. John used all his art to caress the
nobility, and to supplant his nephew Arthur, as he fondly hoped Richard
would never return. And indeed, the conduct of William Longchamp, bishop
of Ely, Richard’s viceroy, contributed greatly to his success; for, as
to oppressions and outrages, he was not exceeded even by William Rufus
himself. This gave John a pretext for intermeddling to preserve the
liberties of the people. He sent word to that prelate, that if he did
not refrain from his exorbitancies, he would visit him at the head of an
army; which for such an occasion he might easily raise.
A general assembly, or parliament, was called, to compose the
differences; in which it was settled, that Longchamp should continue
in the administration, and hold the castles during the king’s life,
but that, if he died without issue, they should be delivered to John
as successor; and this agreement was ratified by the oaths of all the
nobility and prelates, so that, as Arthur had the decision of the king in
his favour, John by this means attained that of the people. Sensible how
much this step must offend the king, and of the dangerous predicaments he
must stand in should he return, he spared no pains to ascend the throne
even in the life of his brother, in which he was cordially supported by
the king of France. But all his efforts were baffled by the vigilance of
the regency, who had been appointed on Longchamp’s deposition, and was
more necessary from his continuing in his former extravagancies. John
even gave out that Richard was dead, and seized several castles, which he
put in a state of defence. He was, however, soon reduced, upon the king’s
return, and all his treasonable practices pardoned at the intercession of
his mother. When Richard came to die, he changed his mind as to Arthur,
and by will appointed John his successor: an alteration, considering
his former attachments to his nephew, who had never offended him, that
could proceed from nothing but his unwillingness to leave his dominions
involved in a civil war through the intrigues and interest of his brother.
The laws of Oleron concerning naval affairs are the only specimen of this
prince’s legislative capacity. They were made at the isle of Oleron,
off the coast of France, where his fleet rendezvoused in their passage
to the Holy Land, and were designed for the keeping of order, and the
determination of controversies abroad. With such wisdom were these laws
framed, that they have been adopted by other nations as well as England.
And, I think, to this time we may, with probability enough, refer the
origin of the admiralty jurisdiction. In his reign, for the first and the
last time, was raised the feudal aid, for the redemption of the king from
captivity.
Notwithstanding all the faults of this prince, his firmness against the
papal power is to be commended. Two of his bishops having a controversy,
there was an appeal to the pope, who sent a legate to determine it; but
Richard prevailed on the parties to refer it to his arbitration, and
would not suffer the legate to enter England, till he had made an end
of the business; and when he did come, the king suffered him not to
excercise his legatine power in any but one single point, and that by
his express permission. Notwithstanding all the steps taken in favour of
John, in order to pave the way for his succession, the notion of Arthur’s
hereditary right had taken such strong root in the minds of many, that,
had he been in England, and of a sufficient age to manage his affairs, he
might have had a fair prospect of success[385].
The lower people indeed were easily prevailed on by his agents to take
the oath of fealty to John, while the prelates, and nobility in general,
retired to their castles, as deliberating what steps they should take;
but, at length, by magnificent grants, and more magnificent promises,
they were prevailed on to come in, and he mounted the throne without
opposition. But in the French provinces his usurpation met with more
resistance. Arthur had many partizans, and his cause was espoused by
Philip of France, the lord paramount, not with an intention to strip John
of all; for that, with Britany, would have made Arthur too powerful; but
with a design to divide the dominions more equally between them, and
perhaps to clip off a part for himself, as he afterwards did Normandy, as
being forfeited by a sentence of the peers of France, by John’s murder of
Arthur. By the way, I shall observe, that this sentence was notoriously
unjust. By the laws of France, Arthur was the undoubted heir of Normandy,
and on his death his sister ought to have succeeded, nor ought the duchy
to have been forfeited by the crime of a wrongful possessor. Or, taking
it the other way, that Philip had a right to choose his vassal, and,
consequently, that the investiture he gave to John was valid; then was
he rightful duke of Normandy, and Arthur, as duke of Britany, was his
vassal, and had justly forfeited his life, by rebelling and endeavouring
to depose his liege lord. That John was guilty of this crime there was no
room to doubt; and truly, from the whole of his conduct from that time,
he seemed to have been infatuated by the terrors of his conscience; for
it was but little less than frenzy. He knew he was, by this cruel act,
become the detestation of his subjects in general, and that his father,
in the midst of his power and popularity, had been humbled by the Pope;
and yet, at the same time, he trampled on the liberties of the former,
and oppressed them in the most outrageous manner, and while his subjects
were thus disaffected, he openly set the latter at defiance.
To this reign, however, so inglorious, and so miserable to the English
of that age, do their successors owe the ascertaining their liberties.
He was, if we except William Rufus, the first of the kings that openly
professed to rule by arbitrary power. I do not mean to deny that every
one of his predecessors from the Conquest had, in some particular or
other encroached on their people, but then there were either peculiar
circumstances of distress, that almost enforced and excused them, or one
or two wrong steps were atoned for by the greatness and goodness of their
general conduct. It is very observable, that, as England is almost the
only country in Europe that hath preserved its liberties, so was it the
first wherein the kings set up for absolute power: and the preservation
of them, I apprehend, was in a great measure owing thereto, that this
claim was started there when the feudal principles, and the spirit of
independency, except only in feudal matters, were in their vigour, and
consequently raised such a spirit of jealousy and watchfulness, as,
though it hath sometimes slept, could never be extinguished; whereas, in
other countries, the progress of arbitrary power hath been more gradual.
It hath made its advances when the feudal system was in its wane, and
when the minds of men, by the introduction of the civil and canon law,
were prepared for it.
What encouraged the kings of England to attempt this sooner than other
monarchs, we may judge, was the greater disparity in riches between them
and their vassals, than was in other countries; so that nothing much
less than a general confederacy could curb them; whereas, abroad, two
or three potent vassals were an overmatch for the sovereign. Besides,
having subjects on each side of the water, not knit together in any
common interest, they might hope to use the one to quell the other. But
whatever was the cause, so was the fact; and John, even before the death
of Arthur, having removed the dread of a competitor, shewed, by a most
extraordinary step, what kind of sovereign he was like to prove. By the
law of these days a vassal was to pay his relief to his superior out of
his own demesnes, and the profits of his seignory, and had no right to
demand aid for that purpose from his sub-vassals; John having detached
Philip from his nephew’s interest, by ceding a part of his French
territories, was to pay twenty thousand marks for the relief of the rest;
and, to receive this sum, he, by his own authority, laid three shillings
on every hide of land in England; thus making England to pay that relief
for his foreign dominions, which his foreign subjects themselves were not
obliged to pay.
The next instance was in favour of the Pope, under pretence of the holy
war. Innocent had laid a tax upon the clergy, of the fortieth of their
revenues, and sent a collector to England to gather it, whom John,
of his own authority, empowered to collect it from the laity. These
two impositions were submitted to, in as much as there was no plan of
opposition then formed; but they afterwards occasioned great discontent
among a people, who thought no taxes could be raised without their own
consent. Accordingly, the next time he summoned his military tenants
to attend him into France, they assembled at Leicester, and agreed to
refuse attendance, unless he would restore their privileges; for though,
by the law of the Conqueror, they were obliged to go, they looked upon
this obligation as suspended by his behaviour. However, they had not yet
sufficiently smarted, to unite them thoroughly, and this affair was made
up by his accepting a scutage.
To enumerate all the exorbitancies he committed would be tedious, and
unnecessary, as the remedies prescribed in _Magna Charta_ sufficiently
point out the grievances. Let it suffice to say, in general, that he
oppressed his military tenants by exacting extravagant reliefs, by
disparagement of heirs, by wasting his wards lands, by levying exorbitant
scutages, by summoning them to war, and delaying them so long at the
place of transportation that they were obliged to return home, having
spent all their money; or, when they were transported, keeping them
inactive till they were obliged to return for the same reason, and then,
without trial, seizing their lands as forfeited. The same oppressions he
extended to others, seized lands and tenements at will and pleasure,
imprisoned whom he pleased, laid heavy talliages on the socage tenants
and boroughs, without any regard to the privileges they had obtained from
his predecessors; and having, by these means excited the detestation of
his subjects, and forfeited his reputation by losing Normandy by his
indolence, he took it into his head that he was a match for the Pope,
and engaged in a contest with his Holiness, which subjected him and his
kingdom to the Roman See, tho’ eventually it contributed not a little to
the recovery of his subjects liberties.[386] The manner in which this
happened shall be the subject of the ensuing lecture.
LECTURE XXXVII.
_John’s dispute with the court of Rome—Cardinal Langton
promoted to be Archbishop of Canterbury—Pope Innocent lays
the kingdom under an interdict—John is excommunicated—His
submission to Innocent—The discontents of the Barons—Magna
Charta and Charta de Foresta—An examination of the question,
Whether the rights and liberties, contained in these charters,
are to be considered as the antient rights and liberties of the
nation, or as the fruits of rebellion, and revocable by the
successors of John?_
If Alexander the Third shewed the grandeur of the pontifical power in
humbling Henry the Second, the displaying it in its full glory was
reserved for Innocent the Third who now reigned, and who being promoted
to the papacy at the age of thirty seven, had vigour of body and mind to
carry every point he engaged in, and was resolved to push his power to
the utmost. Having tasted the sweets of English gold, in the collection
made under pretence of the holy war, he had a great desire to renew
the experiment; and that he might be able to proceed with the less
opposition, was resolved to have an archbishop of Canterbury at his
devotion; and the See falling vacant, a controverted election furnished
him with an opportunity.
The election belonged to the convent of Christ-church, though it was
contested with them by the suffragan bishops. The very night the
archbishop died, a faction of the younger monks resolving to have an
archbishop of their own chusing, assembled, and chose Reginald sub-prior
of the convent, and sent him off before morning for Rome, to obtain
the Pope’s confirmation, of which they did not entertain any doubt, as
it would be plucking a feather from the king’s prerogative, that of a
previous licence for proceeding to election; and Innocent had already
shewn that he looked on himself as monarch of monarchs. But as they could
not expect the Pope would take this stride in support of a clandestine
election, they all took an oath of secrecy, to be observed till the
confirmation was obtained.
But Reginald’s vanity defeated the scheme, and made him divulge it,
which so provoked his electors, that they joined with the others,
petitioned the king for a license, and elected, at his recommendation,
the bishop of Norwich, and twelve of the monks were dispatched to solicit
his confirmation. The suffragan bishops opposed him, as being elected
without their concurrence, which point was determined for the convent by
Innocent; notwithstanding which, without assigning any invalidity in the
second election, he annulled it as well as the first, and recommended
to the twelve deputies to elect Stephen Langton, an Englishman and a
cardinal. At first they demurred, as having no authority; but the threat
of instant excommunication compelled them to obey. And then, as if they
had done nothing out of the way, he recommended Langton to John in a
very civil letter. The king, enraged to the highest, turned the monks
of Canterbury, who were entirely innocent, out of their convent and
the kingdom, and threatened the Pope that he would suffer no appeals.
Innocent, who had before this humbled Philip of France by an interdict,
and knew the man he had to deal with, proceeded very calmly, to order
three bishops to exhort the king to receive Langton, and recall the
monks; and, in case of non-compliance, to lay the kingdom under an
interdict[387].
The name of interdict frightened John, who knew how much he was hated.
He offered to comply, if he might be allowed to make a protestation of
a saving his dignity and prerogative; but no salvo would be allowed;
the interdict was published, Divine service ceased through the kingdom,
except in a very few places, where some clergymen were found honest and
bold enough to preach against the Pope’s proceedings. John, in revenge,
fleeced the clergy in a most horrible manner; and, what is yet more
surprising, did not desist from oppressing the laity. However, as to the
points in contest, he was not obstinate; he offered more than once to
submit; but Innocent had more extensive views. There was no remission
without he refunded to the churchmen every farthing he had extorted
from them, a thing absolutely out of his power. Then followed, after
successive delays calculated to shew that the holy father would give his
undutiful son time to repent, a sentence of excommunication by name, a
bull absolving his subjects from their oath of allegiance, and commanding
all persons to avoid his company; and, lastly, a sentence of deposition,
and a grant of all his dominions to the king of France, who had been
invited also by John’s subjects, whose patience had been by this time
quite exhausted with his tyranny, and the suspension of the performance
of Divine service.
Philip was very ready to execute this sentence, and assembled a numerous
army. Randulf was sent, as the Pope’s legate, to see the sentence of
deposition put in execution; but, in reality, with secret instructions
of a very different nature; for it was by no means Innocent’s intention
to give England to France, but to subject it to himself. John, terrified
with the exaggerated account of Philip’s armament, and the disaffection
of his subjects, submitted in every point before in contest, and in
one new one, that no clergyman should be outlawed. But this was not
sufficient to avert the danger from Philip, and his own disaffected
barons. To make him sacred and invulnerable, he became a vassal to the
Pope, resigned his kingdom to him by a formal charter, and received it
again as a favour, under homage, and a yearly rent of a thousand marks.
In consideration of this submission, John was favoured in the point
of indemnifying the clergy, which was what had so long retarded the
accommodation. Innocent took the estimating this on himself, and having
got all he wanted for the See of Rome, forgot his former clients the
clergy, and was very moderate with his new vassal. However, the interdict
was not removed, nor the king absolved from his excommunication, till
Langton was put into possession; which when done, John was obliged to
renew his homage, to swear to defend church and clergy against all
their adversaries, and to make restitution; and then he was absolved.
But there was one curious addition to this oath, which Langton, who was
an Englishman, and a lover of liberty, certainly inserted of his own
head, that he should restore the laws of the Confessor: For Innocent
would never, we may be well assured, have allowed such privileges to
his vassals. John, however, out of fear of Philip, being in an hurry to
be absolved, made no objection; and indeed he had no reason to doubt
the Pope would absolve him from his oath. But Langton and the nobles
were resolved to keep him strictly to it. Soon after, while he was in
France, his regents summoned a parliament, wherein the king’s peace was
proclaimed, and the laws of Henry the First were revived. These were
those he had sworn to restore, being in truth the Confessor’s, with a few
additions and alterations by the Conqueror and Henry.