Essays Of Representative Government In England,
From The Conquest Till The Reign Of The Tudors.
Lecture I.
Subject of the course: the history of the origin and
establishment of representative government in Europe.
Different aspects under which history is considered at various
epochs.
Poetic history; philosophic history; political history.
Disposition of our time to consider history under these various
aspects.
Fundamental principle and essential characteristics of
representative government.
Existence of this principle and these characteristics in
England at all times.
Subject of the course.
I think it necessary to remind you, gentlemen, of the plan which
I adopted last year with regard to our study of the political
institutions of Europe. The essential object of that plan was to
give some unity and compactness to this vast history. And this is
not an arbitrary and self-chosen object. In the development of
our continent, all its peoples and all its governments are
connected together; in spite of all struggles and separations,
there is really some unity and compactness in European
civilization. This unity, which has been revealing itself from
day to day, is now evident; never have geographical limits
possessed less sway than in our times; never has such a community
of ideas, feelings, aspirations, and efforts united, in spite of
territorial demarcations, so great a mass of men. That which is
now revealed has been labouring for more than twelve centuries to
manifest itself; this external and apparent community has not
always existed; but such has always been, at bottom, the unity of
European civilization, that it is impossible thoroughly to
understand the history of any of the great modern peoples without
considering the history of Europe as a whole, and contemplating
the course pursued by humanity in general. It is a vast drama in
which every people has its part to perform, and with the general
events of which we must be acquainted in order to understand the
particular scenes connected therewith.
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Epochs Of European History.
I have divided the history of the political institutions of
Europe into four great epochs, which are distinguished from each
other by essentially different characteristics. The first is the
barbarian epoch; a time of conflict and confusion, in which no
society could be established, no institution be founded and
become regularly prevalent in any part of Europe; this epoch
extends from the fifth to the tenth century. The second is the
feudal epoch, and extends from the tenth to the fourteenth
century. The third is the epoch of efforts towards constitutional
monarchy; feudalism declines, the populations become free, and
royalty employs them to extend and augment its power; this epoch
embraces the period from the fourteenth to the sixteenth century.
In the fourth period, on the Continent, all efforts towards a
representative system have failed or almost entirely disappeared;
pure monarchy prevails. England alone decidedly obtains a
constitutional government. This epoch lasts from the sixteenth
century to the French Revolution.
These epochs were not determined by an arbitrary choice,--their
division results from the general facts which characterize them.
They will not all form the subject of this course of lectures. I
wish to study the political institutions of Europe with you, and
representative government is the centre towards which all our
studies tend. Where I perceive no trace of the representative
system, and no direct effort to produce it, I turn aside, and
transfer my attention to some other quarter. Nor shall I merely
limit our studies in reference to epochs only; I shall limit them
also in respect to places. Last year, in my lectures on the first
epoch, I did not follow the progress of political institutions in
the whole of Europe, but confined my observations to France,
Spain, and England. We have now to study the third epoch; but the
States-General of France and the Cortes of Spain were only
unfruitful attempts at representative government. I shall
therefore postpone our study of them, and devote this year's
course to the attentive examination of the origin of
representative government in England, the only country in which
it received uninterrupted and successful development. This study
is particularly necessary to us at the present day, and we are
ourselves well-disposed to enter upon it with an earnest desire
to reap advantage from it.
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Aspects Of History.
According to their political state, and in the degree of their
civilization, do the peoples consider history under various
aspects, and look to it for various kinds of interest. In the
early ages of society, whilst all is new and attractive to the
youthful imagination of man, he demands poetical interest; the
memories of the past form the groundwork of brilliant and simple
narratives, fitted to charm an eager and easily satisfied
curiosity. If, in such a community, where social existence is in
full vigour, and the human mind is in a state of excitement,
Herodotus reads to the Greeks assembled at Olympia his patriotic
narratives, and the discoveries of his voyages, the Greeks
delight in them as in songs of Homer. If civilization is but
little advanced--if men live more isolated--if 'country,' in the
concrete, at least, exists but slightly for them,--we find simple
chronicles intermingled with fables and legends, but always
marked with that _naïf_ and poetical character which, in
such a condition of existence, the human mind requires in all
things. Such are the European chronicles from the tenth to the
fifteenth century. If, at a later period, civilization becomes
developed in a country without the coeval establishment of
liberty, without an energetic and extensive political existence,
when the period of enlightenment, of wealth, and of leisure, does
arrive, men look for philosophical interest in history; it no
longer belongs to the field of poetry; it loses its simplicity;
it no longer wears its former real and living physiognomy;
individual characters take up less space, and no longer appear
under living forms; the mention of names becomes more rare; the
narrative of events, and the description of men, are more its
pretext than its subject; all becomes generalized; readers demand
a summary of the development of civilization, a sort of theory of
the peoples and of events; history becomes a series of
dissertations on the progress of the human race, and the
historian seems only to call up the skeleton of the past, in
order to hang upon it general ideas and philosophic reflections.
This occurred in the last century; the English historians of that
period, Robertson, Gibbon, and Hume, have represented history
under that aspect; and most of the German writers still follow
the same system. The philosophy of history predominates; history,
properly so called, is not to be found in them.
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The History Of Free Nations.
But if advanced civilization and a great development of the human
intellect coincide, in a nation, with an animated and keen
political existence; if the struggle for liberty, by exciting the
mind, provoke energy of character; if the activity of public life
be added to the general claims of thought, history appears in
another light; it becomes, so to speak, practical. No longer is
it required to charm easily excited imaginations by its
narratives, nor to satisfy by its meditations active intellects
debarred from exercising themselves upon aught but generalities.
But men expect from it experience analogous to the wants they
feel, to the life they live; they desire to understand the real
nature and hidden springs of institutions; to enter into the
movements of parties, to follow them in their combinations, to
study the secret of the influence of the masses, and of the
action of individuals; men and things must resuscitate before
them, no longer merely as an interest or diversion, but as a
revelation of how rights, liberties, and power are to be
acquired, exercised, and defended; how to combine opinions,
interests, passions, the necessities of circumstances, all the
elements of active political life. That is what history becomes
for free nations; it is from that point of view that Thucydides
wrote the history of the Peloponnesian war, Lord Clarendon and
Bishop Burnet that of the English Revolution.
Generally, and by the very nature of things, it is in regular
order, and at distant intervals, that history assumes one or
other of these various kinds of interest in the eyes of the
people. A taste for simple narratives, a liking for philosophic
generalizations, and a craving for political instruction, almost
always belong to very different times and degrees of
civilization.
Historic Requirements Of The Present Age.
By a rare concurrence of circumstances, all these tastes and
acquirements seem to unite at the present day; and history is now
susceptible amongst us of all these kinds of interest. If it
narrate to us with truth and simplicity the first attempts at
social life, the manners of infant nations; that singular state
of society in which ideas are few in number but keen, and wants
are energetic although unvaried, in which all the pretensions of
barbarian force struggle against all the habits of wild liberty,
it will find us capable of understanding such a recital, and
somewhat disposed to be charmed therewith.
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Fifty years ago, a faithful picture of this age in the life of
peoples would have appeared only coarse and revolting; its
interesting and poetical character would have been neither
relished nor understood; conventionalisms were then turned into
habits, and factitious manners held sway over the whole of
society; Homer himself, in an age so destitute of simplicity and
naturalness, was admired on hearsay only; and if no one dared to
call in question his title to glory, he was pitied for having
been obliged to shed the lustre of his genius upon an epoch of
barbarism and ignorance. Prodigious events have since renewed the
state of society, broken up old forms, conventional habits, and
factitious manners; simple ideas and natural feelings have
resumed their empire; a kind of rejuvenescence has taken place in
the minds of men, and they have become capable of understanding
man at every degree of civilization, and of taking pleasure in
the simple and poetic narratives of infant society. In our days
it has been felt that barbarian times also deserved, in some
respects, to be called heroic times; in our days, mankind has
discovered the faculty, as well as the necessity, of obtaining a
true knowledge of the institutions, ideas, and manners of
peoples, on their entrance into social life. Thus this section of
history has regained an interest which it had ceased to possess;
it is no longer regarded as the patrimony of the erudite; it has
been seized upon by novelists themselves, and the public have
taken delight in following their footsteps.
At the same time, the need of broad philosophical views of the
course of human affairs and the progress of society, has gained
strength instead of becoming extinguished; we have not ceased to
look to facts for something more than mere narratives; we still
expect them to be summed up in general ideas, and to furnish us
with those great results which throw light on the sciences of
legislation and political economy, and on the vast study of the
destiny of the human race. Far, then, from being less inclined to
consider history under a philosophic point of view, it seems to
have acquired a wider interest in this respect. More than ever,
we feel the necessity of tracing events back to their primitive
causes, of reducing them to their simplest expression, of
penetrating into their remotest effects; and if old chronicles
have regained their charm in our eyes, the great combinations of
historic philosophy still constitute a pressing necessity of our
minds.
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Necessity Of An Acquaintance With History.
Finally, our birth into public life, the institutions that we
possess and that we will not lose, that aurora of liberty which,
though it arose in the midst of tempests, is not destined to
perish therein, the past which we leave behind us, the present
with which we are busied, the future which awaits us, in fine,
our entire position--all impart to history, considered under the
political point of view, the most imperious interest. Before our
time, the movement of public life, the game of parties, the war
of factions, the struggles of assemblies, all the agitations and
developments of power and liberty, were things which men had
heard of but had not seen, which they had read of in books but
which were not actually existing around the reader. These things
have occurred, and are now occurring under our very eyes; every
consideration leads us to study them, every circumstance aids us
to comprehend them. And not to us alone has political life been
restored: it has returned into history, hitherto cold and vague
to the minds of those who had not been struck by the real visions
of the scenes which it relates. And while regaining our
comprehension of history, we have also become aware of the
counsels and the lessons which it can furnish us; its utility no
longer consists, as formerly, in a general idea, a sort of moral
and literary dogma professed by writers rather than adopted and
practised by the public. Now, a more or less thorough
acquaintance with history, and especially with that of free
peoples, is not merely an accomplishment of cultivated minds; it
is a necessity to every citizen who feels desirous to take part
in the affairs of his country, or merely to appreciate them
correctly. And thus this great study now presents itself to us
with all the kinds of interest that it is able to offer, because
we have in us ability to consider it under all its aspects, and
to seek and to find all that it contains.
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Subject Of The Present Course.
Such are the motives which induce me to select the history of the
political institutions of England as the subject of this course
of lectures: Here, in effect, history considered under its three
different aspects, presents itself with the greatest simplicity
and richness. Nowhere have the primitive manners of modern
peoples been preserved for a longer period, or exercised so
decisive an influence upon the institutions of a country. Nowhere
do great philosophical considerations spring with greater
abundance from the contemplation of events and men. Here, in
fine, representative government, the special object of our study,
developed itself without interruption, received into its bosom
and fertilized by its alliance the religious movement imparted to
Europe in the sixteenth century, and thus became the starting
point of the political reformation which is now beginning on the
Continent.
It is by no means my intention to relate to you the history of
England. I intend merely to consider it under its political point
of view; and even under this point of view, we shall not study
all the institutions of the kingdom. Representative government is
our theme; and we shall therefore follow the history of the
Parliament step by step. We shall only refer to judicial,
administrative, and municipal institutions in so far as they are
connected with representative government, and have contributed
either to form it, or to determine its character.
Last year, before entering upon our examination of facts, I
attempted to define with precision what we ought to understand by
representative government. Before seeking for its existence, I
desired to know by what signs we might discern its presence. Now
that we are about to study the history of the only representative
government which, until our days, has existed with full vitality
in Europe, I think it well to recapitulate some of these ideas.
I have said that I had no very high opinion of the division of
governments by publicists, into monarchical, aristocratic, and
democratic; and that, in my opinion, it was by their essential
principle, by their general and internal idea, that governments
were characterized and distinguished. The most general idea that
we can seek out in a government is its theory of sovereignty,
that is, the manner in which it conceives, places, and attributes
the right of giving law and carrying it into execution in
society.
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Principle Of Representative Government.
There are two great theories of sovereignty. One seeks for it and
places it in some one of the real forces which exist upon the
earth, no matter whether it be the people, the monarch, or the
chief men of the people. The other maintains that sovereignty as
a right can exist nowhere upon earth, and ought to be attributed
to no power, for no earthly power can fully know and constantly
desire truth, reason, and justice,--the only sources of
sovereignty as a right, and which ought also to be the rule of
sovereignty in fact. The first theory of sovereignty founds
absolute power, whatever may be the form of the government. The
second combats absolute power in all its forms, and recognises
its legitimacy in no case. It is not true to say that of these
two theories, one or the other reigns exclusively in the various
governments of the world. These two theories commingle in a
certain measure; for nothing is completely destitute of truth or
perfectly free from error. Nevertheless, one or the other always
dominates in every form of government, and may be considered as
its principle.
The true theory of sovereignty, that is, the radical illegitimacy
of all absolute power, whatever may be its name and place, is the
principle of representative government.
In fact, in representative government, absolute power,
sovereignty as a right, inhere in none of the powers which concur
to form the government: they must agree to make the law; and even
when they have agreed, instead of accepting for ever the absolute
power which actually results from their agreement, the
representative system subjects this power to the variableness of
election. And the electoral power itself is not absolute, for it
is confined to the choice of the men who shall have a share in
the government.
It is, moreover, the character of that system, which nowhere
admits the legitimacy of absolute power, to compel the whole body
of citizens incessantly, and on every occasion, to seek after
reason, justice, and truth, which should ever regulate actual
power. The representative system does this,
1. by discussion, which compels existing powers to seek after
truth in common;
2. by publicity, which places these powers when occupied in
this search, under the eyes of the citizens; and
3, by the liberty of the press, which stimulates the citizens
themselves to seek after truth, and to tell it to power.
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Characteristics Of Representative Government.
Finally, the necessary consequence of the true theory of
sovereignty is, that all actual power is responsible. If, in
fact, no actual power possesses sovereignty as a right, they are
all obliged to prove that they have sought after truth, and have
taken it for their rule; and they must legitimize their title by
their acts, under penalty of being taxed with illegitimacy. The
responsibility of power is, in fact, inherent in the
representative system; it is the only system which makes it one
of its fundamental conditions.
After having recognised the principle of representative
government, we investigated its external characteristics, that is
to say, the forms which necessarily accompany the principle, and
by which alone it can manifest its existence. These forms we
reduced to three:
1. division of powers;
2. election; and
3. publicity.
It is not difficult to convince ourselves that these
characteristics necessarily flow from the principle of
representative government. Indeed,
1. all sole power in fact soon becomes absolute in right. It is
therefore necessary that all power in fact should be conscious
of dependence. "All unity," says Pascal, "that is not
multitude, is tyranny." Hence results the necessity for two
Houses of Parliament. If there be only one, the executive power
either suppresses it, or falls into so subaltern a condition
that there would soon remain only the absolute power of the
single House of Parliament.
2. Unless election occurred frequently to place power in new
hands, that power which derived its right from itself would
soon become absolute in right; this is the tendency of all
aristocracies.
3. Publicity, which connects power with society, is the best
guarantee against the usurpation of sovereignty as a right by
the actual power.
Representative government can neither be established nor
developed without assuming, sooner or later, these three
characteristics; they are the natural consequences of its
principle; but they do not necessarily co-exist, and
representative government may exist without their union.
This was the case in England. It is impossible not to enquire why
representative government prevailed in that country, and not in
the other States of the Continent. For, indeed, the Barbarians
who settled in Great Britain had the same origin and the same
primitive manners as those who, after the fall of the Roman
Empire, overran Europe; and it was not in the midst of very
different circumstances that they consolidated their dominion in
that country.
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From the fifth to the twelfth century, we find no more traces of
true representative government in England than upon the
Continent; its institutions were analogous to those of the other
European nations; and we behold in every land the conflict of the
three systems of free, feudal, and monarchical institutions.
We cannot fully resolve this question beforehand, and in a
general manner. We shall answer it gradually, as we advance in
the examination of facts. We shall see by what successive and
varied causes political institutions took a different course in
England to that which they pursued on the Continent. We may,
however, indicate at once the great fact which, from a very early
period, determined the character and direction of British
institutions.
Division Of Power.
The first of the great external characteristics of representative
government, division of power, is met with in every age, in the
government of England. Never was the government concentrated in
the hands of the king alone; under the name of the
_Wittenagemot_, of the _Council or Assembly of the
Barons_, and after the reign of Henry III., of the
_Parliament_, a more or less numerous and influential
assembly, composed in a particular manner, was always associated
with the sovereignty. For a long period, this assembly somewhat
subserved despotism, and sometimes substituted civil war and
anarchy in the place of despotism; but it always interfered in
the central government. An independent council, which derived its
strength from the individual power of its members, was always
adjoined to the royal authority. The English monarchy has always
been the government of the king in council, and the king's
council was frequently his adversary. The great council of the
king became the Parliament.
This is the only one of the essential characteristics of the
system of representative government, which the government of
England presents, until the fourteenth century. During the course
of this epoch, the division of power, far from efficiently
repressing despotism, served only to render it more changeful and
more dangerous.
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The council of barons was no more capable than the king himself,
of comprehending and establishing a stable political order and
true liberty; these two forces were incessantly in conflict, and
their conflict was war, that is to say, the devastation of the
country, and the oppression of the mass of the inhabitants. But
from this there resulted, in process of time, two decisive facts,
from which liberty took its origin; they were these:
1. From the very fact that power was divided, it followed that
absolute power, sovereignty as a right, was never attributed to
the king, nor supposed to be in itself legitimate. Now, this is
the very principle of representative government; but this
principle was far from being understood, or even suspected,
philosophically speaking. It was incessantly stifled by force,
or else it was lost in the confusion of the ideas of the time
regarding divine right, the origin of power, and so forth; but
it existed in the depths of the public mind, and became by slow
degrees a fundamental maxim. We find this principle formally
expressed in the writings of Bracton, Lord Chief Justice under
Henry III., and of Fortescue, who held the same office under
Henry VI. "The king," says Bracton, "should be subject to no
man, but only to God and to the law, for the law makes him
king; he can do nothing upon earth but that which, by law, he
may do; and that which is said in the Pandects, that that which
pleases the king becomes law, is no objection; for we see by
the context, that these words do not mean the pure and simple
will of the prince, but that which has been determined by the
advice of his councils, the king giving the sanction of his
authority to their deliberations upon the subject."
Character Of The English Monarchy.
"The English monarchy," says Fortescue, "_non solum est
regalis, sed legalis et politica, potestas,_" and he
frequently develops this idea. The limitation of powers was,
thus, at a very early period, a matter of public right in
England; and the legitimacy of sole and absolute power was
never recognized. Thus was established and preserved, for
better times, the generative principle of all legitimate power
as well as of all liberty; and by the virtue of this principle
alone was maintained, in the souls of the people, that noble
sentiment of right which becomes extinguished and succumbs
wherever man finds himself in presence of an unlimited
sovereignty, whatever may be its form and name.
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Importance Of The Towns.
2. The division of the supreme power produced yet another
result. When the towns had acquired greater wealth and
importance, when there had been formed, beyond the circle of
the king's immediate vassals, a nation capable of taking part
in political life, and which the government found it necessary
to treat with consideration, this nation naturally adjoined
itself to the great council of the king, which had never ceased
to exist. In order to gain itself a place in the central
government, it had no need abruptly to create new institutions;
a place was already prepared to receive it, and although its
entrance into the national council ere long changed its nature
and forms, it at least was not under the necessity of asserting
and re-animating its existence. There was a fact capable of
receiving extension, and of admitting into its bosom new facts,
together with new rights. The British Parliament, to say truth,
dates only from the formation of the House of Commons; but
without the presence and importance of the council of Barons,
the House of Commons would, perhaps, never have been formed.
Thus, on the one hand, the permanence of the idea that the
sovereignty ought to be limited, and, on the other, the actual
division of the central power, were the germs of representative
government in England. Until the end of the thirteenth century we
met with no other of its characteristics; and the English nation,
until that period, was not perhaps actually more free and happy
than any of the peoples of the Continent. But the principle of
the right of resistance to oppression was already a legal
principle in England; and the idea of the supremacy which holds
dominion over all others, of the supremacy of the law, was
already connected, in the mind of the people and of the
jurisconsults themselves, not with any particular person, or with
any particular actual power, but with the name of the law itself.
Already the law was said to be superior to all other powers;
sovereignty had thus, in principle at least, left that material
world in which it could not fix itself without engendering
tyranny, to place itself in that moral world, in which actual
powers ought constantly to seek it. Many favourable circumstances
were doubtless necessary to fecundate these principles of liberty
in England.
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Sources Of Liberty.
But when the sentiment of right lives in the souls of men, when
the citizen meets with no power in his country which he is bound
to consider as infallible and absolutely sovereign, liberty can
never fail to spring up. It has developed itself in England less
universally, less equally, and less reasonably, we venture to
believe, than we are permitted to hope will be the case at the
present day in our own country; but, in fine, it was born, and
increased in growth in that country more than in any other; and
the history of its progress, the study of the institutions which
served as its guarantees, and of the system of government to
which its destinies seem henceforward to link themselves, is at
once a great sight and a necessary work for us. We shall enter
upon it with impartiality, for we can do so without envy.
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Lecture II.
Sketch of the History of England, from William the Conqueror to
John Lackland (1066-1199).
William the Conqueror (1066-1087).
William Rufus (1087-1100).
Henry I. (1100-1135).
Stephen (1135-1154).
Henry II. (1154-1189).
Constitutions of Clarendon.
Richard Cœur de Lion (1189-1199).
Early History Of England.
Before entering upon the history of representative government in
England, I think it necessary, in the first place, to remind you
of the facts which served, as it were, as its cradle--of the
movements of the different nations which successively occupied
England--the conquest of the Normans--the state of the country
at the period of this conquest, about the middle of the eleventh
century--and the principal events which succeeded it. A knowledge
of facts must always precede the study of institutions.
The Britons,--Gauls or Celts in origin,--were the first
inhabitants of Great Britain. Julius Caesar subjugated them, and
the Roman dominion substituted a false and enervating
civilization in the place of their barbarian energy. On being
abandoned by Rome, when that city abdicated piecemeal the empire
of the world, the Britons were unable to defend themselves, and
summoned the Saxons to their assistance. The latter, finding them
already conquered, from their allies became ere long their
masters, and exterminated or drove back into the mountains of
Wales, the people whom the Romans had subdued. After a long
series of incursions, the Danes established themselves in the
north of England, during the ninth century, and in the latter
part of the eleventh century, the Normans conquered the whole
country.
The Norman Conquest.
Towards the middle of the eleventh century, and before the Norman
conquest, great enmity still subsisted between the Saxons and the
Danes, whereas between the Danes and Normans the recollections of
a common origin were still fresh and vivid.
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Edward the Confessor had been brought up at the Court of
Normandy, and the Normans were held in great favour by him. He
had appointed several of them to great offices in his realm. The
primate, the Archbishop of Canterbury, was a Norman; and Norman
was spoken at the Court of Edward. All these circumstances seemed
to prepare the way for the invasion of England by the Normans.
The internal state of England was equally favourable to it. The
Saxon aristocracy had risen in proportion as the royal power had
declined; but the power of the great landholders was a divided
power, and their dissensions opened a door for foreign
interference. Harold, the brother-in-law of king Edward, who had
died without issue, had just usurped the crown; so that William
had not even to oppose a legitimate monarch. "Whether the English
make Harold or another their duke or king, I grant it," said
William on the death of Edward; but he, nevertheless, assumed to
be heir of the kingdom, by virtue of a will of the deceased
monarch, and came to assert his right at the head of an army of
40,000 men. On the 14th of October, 1065 [sic; 1066], Harold lost
both the crown and his life at the battle of Hastings. The
primate then offered the crown of England to William, who
accepted it after some show of hesitation, and was crowned on the
6th of December. He at first treated his Saxon subjects with
mildness, but ordered the construction of a number of fortresses,
and gave large grants of lands to his Norman comrades. During a
journey which he made into Normandy, in the month of March, 1067,
the Saxons revolted against the tyranny of the Normans. William
suppressed the revolt, and continued for some time still faithful
to his policy of conciliation. But rebellions continued to arise,
and William now had recourse to rigorous measures. By repeated
confiscations he ensured the sovereign establishment of the
Normans, and of the feudal system. The Saxons were excluded from
all great public employments, and particularly from the
bishoprics. William covered England with forts, substituted the
Norman language for the Anglo-Saxon, and made it the language of
law--a privilege which subsisted until the reign of Edward III.
He enacted very severe laws of police, among others the law of
curfew, so greatly detested by the Saxons, but which already
existed in Normandy, and finally, he laid waste the county of
Yorkshire, the stronghold of the Saxon insurgents.
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Reign Of William Rufus.
The Pope had given his approval to William's enterprise, and had
excommunicated Harold. Nevertheless, William boldly repulsed the
pretensions of Gregory VII, and forbade his subjects to recognize
any one as Pope, until he had done so himself. The canons of
every council were to be submitted to him for his sanction or
rejection. No bull or letter of the Pope might be published
without the permission of the king. He protected his ministers
and barons against excommunication. He subjected the clergy to
feudal military service. And finally, during his reign, the
ecclesiastical and civil courts, which had previously been
commingled in the county courts, were separated.
After the death of William, in 1087, his States were divided
among his three sons, Robert, William, and Henry. William Rufus
succeeded to the throne of England, and Robert to the dukedom of
Normandy. William's reign is remarkable only for acts of tyranny,
for the extension of the royal forests, and for odious exactions;
he would not appoint bishops to any of the vacant episcopal sees,
but appropriated their revenues to his own use, considering them
as fiefs whose possessors were dead.
William Rufus was almost constantly at war with his brother
Robert. He ended by buying Normandy of him, or, to speak more
correctly, he received it in pledge for thirteen thousand silver
marks which he lent to Robert when about to join the Crusaders.
In the year 1100, he made a similar bargain with William, Count
of Poitou and Duke of Guienne. The Norman barons bitterly
regretted that Robert was not King of England, as well as Duke of
Normandy. They rebelled several times against William; and
various facts indicate that the Saxon nation gained something by
these revolts, and was rather better treated, in consequence, by
its Norman monarch. But the relations of the two peoples were
still extremely hostile when William Rufus was killed while
hunting, on the 2nd of August, 1100.
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Reign Of Henry I.
Henry I. usurped the crown of England from his brother Robert, to
whom it rightfully belonged; and the Norman barons, who preferred
Robert, offered only a feeble resistance to Henry; he was crowned
in London. His first act was a charter, in which, to gain
forgiveness for his usurpation, he promised not to seize upon the
revenues of the church during the vacancy of benefices; to admit
the heirs of the crown vassals to the possession of their
estates, without exposing them to such violent exactions as had
been usual during the preceding reigns; to moderate the taxes, to
pardon the past, and finally to confirm the authority of the laws
of St. Edward, which were so dear to the nation. A short time
after the concession of this charter, Henry married Matilda, the
daughter of the King of Scotland, and niece of Edgar Atheling,
the last heir of the Saxon dynasty; by this marriage he hoped to
conciliate the attachment of the Saxon people. In order to marry
him, Matilda was liberated from her vows, for she had taken the
veil, not with the intention of becoming a nun, says Eadmer, but
in order to escape from the brutal violence of the Normans.
In 1101, Robert returned from the Crusades, and invaded England,
but a treaty soon put a stop to his progress, and he renounced
his pretensions on receiving a pension of 3000 marks, and the
promise of succeeding to Henry's inheritance. The bad government
of Robert in Normandy occasioned continual disturbances in that
country, and maintained the ever-increasing tendency towards the
union of Normandy with England. Henry, taking advantage of this
state of things, invaded Normandy, where he had many powerful
adherents, and after three years of war, in 1106, the battle of
Tenchebray decided the fate of Robert, who was taken prisoner and
confined in Cardiff Castle, where he languished twenty-eight
years. Normandy was then united to England.
The reign of Henry I. was disturbed by continual quarrels with
the clergy; he was obliged to renounce the right of investiture,
which was held to confer spiritual dignity, but the bishops
continued to swear to him fidelity and homage, by reason of their
temporal possessions. In the midst of the obstacles which lay in
his path, Henry governed with vigour and prudence; he humbled the
great barons, restored order, and restrained the clergy; and
these were the qualities which then constituted a great king. The
pretended code which is ascribed to Henry I. is a later
compilation; but he effected several important reforms, among
others, by repressing the abuses of the right of purveyance, by
which the socage tenants of the king were bound gratuitously to
supply the court, while journeying, with provisions and
carriages. It is also said that he substituted, for tenants of
this class, the payment of a money rent instead of the rent in
kind which they had formerly paid; but it is not probable that
this was a general rule.
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Wars Of Stephen And Matilda.
Henry I. died in 1135. His reign promoted, to some extent, the
fusion of the two peoples: but the separation was still wide. His
son William being dead, Henry had appointed as his successor his
daughter Matilda, the wife of Geoffrey Plantagenet, Count of
Anjou; and an assembly of barons had ratified his choice. But,
during the absence of Matilda, Stephen, Count of Boulogne, the
grandson of William the Conqueror by his mother Adela, the wife
of Stephen, Count of Blois, usurped the crown of England; but
only a few barons attended at his coronation, on the 22nd of
December, 1135. Stephen was anxious, by making large concessions,
to obtain pardon for his usurpation; and he published two
charters, which promised all that those issued by Henry had
promised, including the maintenance of the laws of Edward the
Confessor. The clergy and barons, however, swore to him only a
conditional oath; and wishing to make him pay dearly for their
support, the church exacted from him the sanction of all its
privileges, and the barons obtained permission to build
fortresses upon their estates. The kingdom soon bristled with
castles and ramparts. Eleven hundred and fifteen were erected
during the reign of Stephen, and assured, far more effectually
than his charters, the power and independence of the barons.
In 1139, an insurrection broke out in favour of Matilda. King
Stephen was defeated and made prisoner at the battle of Lincoln,
on the 26th of February, 1141. A synod of ecclesiastics, without
the co-operation of any laymen, gave the crown to Matilda; the
deputies of the city of London were the only laymen present, and
they demanded the liberation of King Stephen, but in vain; they
were admitted into the synod merely to receive orders. A
conspiracy against Matilda overthrew, ere long, the bold work of
the clergy; Stephen regained his liberty in 1142, and the civil
war recommenced.
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Reign Of Henry II.
But a new enemy had now arisen against him. Prince Henry, the son
of Matilda, though still young, had already rendered himself
remarkable for his bravery and prudence. His mother promised him
the dukedom of Normandy; the death of his father, Geoffrey
Plantagenet, had given him Maine and Poitou; and his marriage
with Eleanor of Guienne had gained him two other vast provinces
of France. In 1154, he appeared in England with an army, but a
negotiation speedily terminated the conflict, and Henry was
acknowledged as the successor of Stephen, who died a year
afterwards, on the 25th of October, 1154.
A variety of circumstances were favourable to the power of Henry
II. at his accession. He united in his own person the rights of
both the Saxon and Norman dynasties. He possessed immense
dominions on the Continent; he was Count of Anjou, Duke of
Normandy, Duke of Guienne, Maine, Saintonge, Poitou, Auvergne,
Périgord, Augoumois and Limousin. He married his third son,
Geoffrey, while still a child, to the infant heiress of the duchy
of Brittany. He soon became engaged in war with the nobility and
the clergy. He revoked all the gifts of the royal domains which
had been granted by Stephen and Matilda, and regained by arms all
that was not restored to him peaceably. He demolished a large
number of the feudal fortresses. No coalition of the barons had
as yet been formed, and their individual power was utterly unable
to compete with that of Henry; they therefore submitted. The king
also rallied around him a great number of interests by the
maintenance of strict order, and by the appointment of itinerant
justices to secure a more equitable administration of the laws.
His struggle with the clergy was more stormy, and its success
less complete; for the clergy, who were already constituted into
a most powerful corporation, and were sustained from without by
the Holy See, had found within their own body a chieftain capable
of resisting even the greatest monarch. Thomas Becket, born in
London in 1119, had advanced so far in the favour of Henry as to
be appointed his Lord High Chancellor. His services, his
devotedness, the magnificence of his mode of life, all combined
to persuade Henry that, by elevating Becket to the highest
ecclesiastical dignities, he would gain a powerful supporter in
the church; he, therefore, had him appointed Archbishop of
Canterbury and Primate of the kingdom.
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Constitutions Of Clarendon.
But no sooner was Becket appointed to this office than he devoted
himself to the interests of his order, and boldly undertook to
exercise, and even to extend the rights of his position. A clerk
had committed a murder; Becket punished him according to the laws
of the clergy: Henry desired to have him judged by the civil law;
Becket resisted; and Henry seized this opportunity for attacking
openly and systematically the ecclesiastical power. He assembled
the bishops, and inquired of them whether they would submit to
the ancient laws of the realm, or not; and they were forced to
consent to do so. The famous Council of Clarendon was convoked in
1164 to define these laws, and fix the limits of the two powers.
The king had conciliated the support of the lay barons. Sixteen
articles resulted from the deliberations of this assembly; they
are to the following effect:
1. All suits concerning the advowson and presentation of
churches shall be determined in the civil courts.
2. Ecclesiastics, when accused of any crime, shall appear
before the king's justices, who shall determine whether the
case ought to be tried in the secular or episcopal courts. The
king's justices shall inquire into the manner in which causes
of this kind are judged by the ecclesiastical courts; and if
the clerk is convicted or confesses his crime, he shall lose
his benefit of clergy.
3. No archbishop, bishop, or ecclesiastic of high rank shall
leave the kingdom without the king's permission. If he should
go abroad, he must give surety to the king for his return, and
for his good conduct in all matters affecting the interests of
the king.
4. Excommunicated persons shall not be bound to give security
for continuing in their present place of abode, but merely for
presenting themselves to suffer the judgment of the church and
to receive absolution.
5. No tenant in chief of the king, no officer of his household,
or of his demesnes, shall be excommunicated, or his lands put
under an interdict, until application has been made to the
king, or, in his absence, to the grand justiciary, in order to
obtain justice at his hands.
6. All appeals in spiritual causes shall be carried from the
archdeacon to the bishop, from the bishop to the primate, and
from him to the king, and shall be carried no further without
the king's consent.
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7. If any law-suit arise between a layman and an ecclesiastic
concerning the nature of a fief, the question shall be decided
by the king's chief justice, by the verdict of twelve _probi
homines_; and according as the nature of the fief may be
determined, further proceedings shall be carried on before the
civil or ecclesiastical courts.
8. Any inhabitant of a city, town, borough or manor in the
king's demesnes, who has been cited before an ecclesiastical
court to answer for some offence, and who has refused to
appear, may be placed under an interdict; but no one may be
excommunicated till the chief officer of the place where he
resides be consulted, that he may compel him by the civil
authority to give satisfaction to the church.
9. The judgment of all causes, for debts contracted by oath or
otherwise, is referred to the civil courts.
10. When any archbishopric, or bishopric, or abbey, or priory
of royal foundation is vacant, the king shall enjoy its
revenues; and when it becomes necessary to fill up a see, the
king shall summon a chapter to proceed, in the royal chapel, to
the election, which must obtain the sanction of the king,
according to the advice of the prelates whom he may have
thought proper to consult; and the bishop-elect shall swear
fealty and homage to the king as to his lord, for all his
temporal possessions, with the exception of the rights of his
order.
11. Churches belonging to the king's fee shall not be granted
in perpetuity without his consent.
12. No layman shall be accused before a bishop, except by legal
and reputable promoters and witnesses; and if the culprit be of
such high rank that no one dares to accuse him, the sheriff,
upon the demand of the bishop, shall appoint twelve lawful men
of the neighbourhood, who, in presence of the bishop, shall
pronounce upon the facts of the case, according to their
conscience.
13. Archbishops, bishops, and other spiritual dignitaries who
are immediate vassals of the king, shall be regarded as barons
of the realm, and shall possess the privileges and be subjected
to the burdens belonging to that rank, except in the case of
condemnation to death or to the loss of a limb.
14. That if any person resist a sentence legally pronounced
upon him by an ecclesiastical court, the king shall employ his
authority in obliging him to make submission. In like manner,
if any one throw off his allegiance to the king, the prelates
shall assist the king with their censures in reducing him.
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15. Goods forfeited to the king shall not be protected in
churches or churchyards.
16. No villein shall be ordained a clerk without the consent of
the lord on whose estate he was born.
Murder Of Thomas A Becket.
When the constitutions of Clarendon had once been adopted, the
king required that the bishops should affix their seals thereto;
all consented with the exception of Becket, who resisted for a
long while, but yielded at length, and promised "legally, with
good faith, and without fraud or reserve," to observe the
constitutions. The king sent a copy of them to Pope Alexander,
who approved only the last six articles, and annulled all the
rest. Strong in the support of the Pope, Becket did penance for
his submission, and renewed the conflict. It soon became
desperate. The king harassed Becket with persecutions of all
kinds, requiring him to give an account of his administration
while Chancellor, and charging him with embezzlement; the bishops
became alarmed and deserted the cause of the primate. Becket
resisted with indomitable courage; but he was finally compelled
to fly to the Continent. Henry confiscated all his property, and
banished all his relatives and servants, to the number of four
hundred. Becket excommunicated the servants of the king, and,
from his retirement in a French monastery, made Henry totter on
his throne. At length, the Pope with his legates, and the King of
France, interfered to put an end to this conflict. Henry, who was
embarrassed by a multitude of other affairs, yielded, and Becket
returned to his see. But his conscience united with his pride to
rekindle the war. He censured the prelates who had failed to
support him, and excommunicated some of the king's servants who
had been active in their persecution of the clergy. "What!" cried
Henry, in a transport of passion, "of the cowards who eat my
bread, is there not one who will free me from this turbulent
priest?" He was then at Bayeux; four of his gentlemen set out at
once for Canterbury, and assassinated Becket on the steps of the
altar of his cathedral, on the 29th of December, 1170. The king
dispatched a courier in pursuit of them, but he arrived too late
to prevent the consummation of the deed. Henry manifested the
utmost grief at the death of Becket; we may, however, suppose his
sorrow to have been feigned. In order to avert the consequences,
he at once sent envoys to Rome to attest his innocence, and the
Pope contented himself with fulminating a general excommunication
against the authors, fautors, or instigators of the
assassination.
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Conquest Of Ireland.
Other events, wars with Scotland and France, and an expedition
into Ireland, diverted the public attention from Becket's death.
In 1172, Henry resumed his negotiations with Rome, and concluded
a treaty which, on the whole, ratified the enactments of the
Council of Clarendon. When he had thus become reconciled with the
Pope, he made his peace with his subjects, whose enmity he
feared, by a public penance on the tomb of Becket, who was
honoured by all England as a martyr.
In 1172, some English adventurers conquered without difficulty,
and almost without a battle, a part of Ireland. Henry led an
expedition into that country, and his authority was recognized.
The remainder of his life was agitated by continual wars in
defence of his possessions on the Continent, and by the
rebellions of his children, who were anxious to divide his power
and dominions before his death. He died of grief at their conduct
on the 6th of July, 1189, at Chinon, near Saumur; and the corpse
of one of the greatest kings of England and of his age was left
for some time, deserted and stripped, upon the steps of an altar.
His eldest son, Richard Cœur-de-Lion, succeeded him without
difficulty.
Richard Cœur-de-lion.
In every age, and at every great epoch of history, we almost
invariably witness the appearance of some individuals who seem to
be the types of the general spirit and dominant dispositions of
their time. Richard, the adventurer-king, is an exact
representation of the chivalrous spirit of the feudal system and
of the twelfth century. Immediately upon his accession, his only
thought was the accumulation of money for the Crusades; he
alienated his domains; he publicly sold offices, honours, and
even the loftiest dignities, to the highest bidder; he even sold
permissions not to go on the Crusade; and he was ready to sell
London, he said, if he could find a purchaser. And while he was
sacrificing everything to his passion for pious adventures, his
people massacred the Jews because some of them had appeared at
the coronation of the king, notwithstanding the prohibition.
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Richard set out at length for the Crusades, leaving as Regent
during his absence his mother Eleanor, who had excited the
princes her sons to rebellion against the king their father; and
he associated the Bishops of Durham and Ely with her in the
regency. The tyranny of the Bishop of Ely spread confusion
throughout England; he placed his colleague under arrest, and
governed alone with boundless arrogance, until at last Prince
John had him deposed by a council of barons and prelates.
Richard, on his return from the Crusades, was, as is well known,
detained prisoner in Austria, from the 20th of December, 1193, to
the 4th of February, 1194, when he recovered his liberty by the
devotedness of one of his vassals. The power of feudal feelings
and ties was also manifested in the eagerness of his subjects to
pay his ransom. Richard, when restored to his kingdom, spent the
remainder of his life in continual wars in France, and died, on
the 6th of April, 1199, of a wound received at the siege of the
castle of Chalus, near Limoges, while endeavouring to gain
possession of a treasure which, it was said, the Count of Limoges
had found.
During the reign of Richard, the liberties of the towns and
boroughs, which had commenced under William Rufus, made
considerable progress, and prepared the way for that decisive
advance of national liberties and representative government in
England--the Great Charter of King John.
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Lecture III.
Anglo-Saxon institutions.
Effects of the Norman Conquest upon Anglo-Saxon institutions.
Effects of the Conquest upon Norman institutions.
Causes which made the Norman Conquest favourable to the
establishment of a system of free institutions in England.
Effects Of The Norman Conquest.
After having given a summary, in the preceding lecture, of the
principal historical facts, we are now about to survey
Anglo-Norman institutions during the period to which we have just
turned our attention, namely, from the middle of the eleventh
century until the end of the twelfth.
How came it that free institutions were established from this
time forth among this people, and not in other countries? The
answer to this question may be found in the general facts of
English history, for institutions are much more the work of
circumstances than of the texts of laws.
The States which were founded in Europe, from the fifth to the
seventh century, were established by hordes of wandering
Barbarians, the conquerors of the degraded Roman population. On
the side of the victors, there existed no fixed and determinate
form of social life; on the side of the vanquished, forms and
institutions crumbled into dust; social life died of inanition.
Hence arose long disorders, ignorance and impossibility of a
general system of organization, the reign of force, and the
dismemberment of sovereignty.
Nothing of the kind occurred in England in the eleventh century,
in consequence of the Norman Conquest. A Barbarian people which
had already been established in a country for two hundred years
conquered another Barbarian people which had been territorially
established for six hundred years. For this reason, many decisive
differences may be observed between this conquest and those which
took place on the Continent.
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Resemblance Of The Two Peoples.
1. There was much more resemblance, and consequently much more
equality, between the two peoples; their origin was the same,
their manners and language were analogous, their civilization
was almost identical, and the warlike spirit was as powerful
among the vanquished as among the victors. Thus, two nations
under almost similar conditions, found themselves in presence
of one another, and the conquered nation was able, as well as
disposed, to defend its liberties. Hence arose many individual
evils, but no general and permanent abasement of one race
before the other. Oppressed at first, but retaining its warlike
character, the Saxon race offered an energetic resistance, and
gradually raised itself from its inferior position.
2. The two peoples also possessed political institutions of a
singularly analogous nature, whereas elsewhere, in France and
in Italy, the Roman populations, to speak the truth, possessed
no institutions at all. The communes and the clergy were
required to maintain, even obscurely, the Roman law among
societies on the Continent; whereas in England, Saxon
institutions were never stifled by Norman institutions, but
associated with them, and finally even changed their character.
On the Continent, we behold the successful sway of barbarism,
feudalism, and absolute power, derived either from Roman or
ecclesiastical ideas. In England, absolute power was never able
to obtain a footing; oppression was frequently practised in
fact, but it was never established by law.
3. The two peoples professed the same religion; one had not to
convert the other. On the Continent, the more Barbarian victor
adopted the religion of the vanquished, and the clergy were
almost entirely Romans; in England, they were both Saxons and
Normans. Hence resulted an important fact. The English clergy,
instead of enrolling themselves in the retinue of the kings,
naturally assumed a place among the landed aristocracy, and in
the nation. Thus the political order has almost constantly
predominated in England over the religious order; and ever
since the Norman Conquest, the political power of the clergy,
always called in question, has always been on the decline.
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Sources Of The English Government.
This is the decisive circumstance in the history of England--the
circumstance which has caused its civilization to take an
altogether different course to that taken by the civilization of
the Continent. Of necessity, and at an early period, a compromise
and amalgamation took place between the victors and the
vanquished, both of whom had institutions to bring into common
use; institutions more analogous than existed anywhere
else--stronger and more fully developed, because they belonged to
peoples which had already been territorially established for a
considerable time.
Thus, Saxon institutions and Norman institutions are the two
sources of the English government. The English commonly refer
their political liberties to the former source; they see that, on
the Continent, feudalism did not produce liberty; and they
attribute their feudalism to the Normans, and their liberty to
the Saxons. This distinction has even become a symbol of modern
political parties; the Tories, in general, affect a neglect of
Saxon institutions, whilst the Whigs attach to them the greatest
importance. This view of events appears to me to be neither exact
nor complete. Saxon institutions were not, by themselves, the
principle of English liberties. The forced assimilation of the
two peoples and of the two systems of institutions, was their
true cause. There is even room for doubt whether, without the
Conquest, liberty would have resulted from Saxon institutions;
and we may believe that they would have produced in England
results analogous to those which occurred on the Continent. The
Conquest inspired them with new virtue, and caused them to
produce results which, if they had been left to themselves, they
would not have produced. Political liberty issued from them, but
was begotten by the influence of the Conquest, and in consequence
of the position in which the Conquest placed the two peoples and
their laws.
I will now recall to your recollection Anglo-Saxon institutions
as they existed before the Conquest; and you will soon see that
it was the forced approximation of the two peoples which gave
them vitality, and brought forth the liberties of England.
Anglo-Saxon Institutions.
Among local institutions, some were based upon common
deliberation, and others upon hierarchical subordination; that is
to say, some upon a principle of liberty, and others upon a
principle of dependence. On one side, were the courts of hundred
and the county-courts; on the other, the great landowners and
their vassals: every man of fourteen years old and upwards was
obliged to belong either to a hundred or to a lord, that is, to
be free or vassal.
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These two hostile systems, then, placed in presence of one
another, conflicted as upon the Continent. There is some doubt
about the question whether, before the Conquest, feudalism
existed with regard to lands: that it existed with regard to
persons there can be no doubt, for their hierarchical
classification was real and progressive. In localities, although
the system of free institutions subsisted, the system of feudal
institutions was gaining ground; seignorial jurisdictions were
encroaching upon free jurisdictions; and almost the same process,
in fact, was going on as upon the Continent.
If we look at central institutions, we observe the same
phenomenon. On the Continent, feudalism was produced by the
aggrandizement of the king's vassals, and by the dislocation of
the sovereignty. The national unity, which resided in the
assembly of the nation, became dissolved; the monarchical unity
was unable to resist; and monarchy and liberty perished together.
Events had taken the same course among the Anglo-Saxons. Under
Edward the Confessor, the decay of the royal authority is
evident. Earl Godwin, Siward, Duke of Northumberland, Leofric,
Duke of Mercia, and many other great vassals, are rivals rather
than subjects of the king; and Harold usurping the crown from
Edgar Atheling, the legitimate heir, bears a strong resemblance
to Hugh Capet. The sovereignty tends to dismemberment.
Monarchical unity is in danger; national unity is in the same
declining state, as is proved by the history of the Wittenagemot.
This general assembly of the nation was at first the assembly of
the warriors; afterwards the general assembly of the land-owners,
both great and small; and at a later period, the assembly of the
great land-owners alone, or of the king's thanes. Even these at
last neglect to attend its meetings; and isolate themselves upon
their estates, in which each of them exercises his share of the
dismembered sovereignty. This is almost identical with the course
of affairs on the Continent. Only, the system of free
institutions still subsists in England with some energy in local
institutions, and especially in the county-courts. The feudal
system is in a less advanced state than on the Continent.
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Norman Institutions.
What would have happened if the Conquest had not occurred? It is
impossible to say with certainty, but probably just what happened
on the Continent. The same symptoms are manifested, the decay of
the royal authority and of the national assembly; and the
formation of a hierarchical landed aristocracy, almost entirely
independent of the central power, and exercising almost
undisputed sovereignty in its domains, excepting only feudal
liberties.
While Anglo-Saxon institutions were in this state, the Normans
conquered England. What new elements did they introduce, and what
effect did the Conquest produce upon the Saxons?
The feudal system was completely established in Normandy; the
relations of the duke with his vassals, the general council of
the barons, the seignorial administration, of justice, the
superior courts of the duke, were all organized already. This
system is impracticable in a large State, especially when manners
have made but little progress; it leads to the dislocation of the
State and of the sovereignty, and to a federation of powerful
individuals, who dismember the royal power. But in a State of
limited extent, like Normandy, the feudal system may subsist
without destroying unity; and notwithstanding William's continual
wars with some of his vassals, he was in very reality the
powerful chieftain of his feudal aristocracy. The proof of this
is contained in the very enter prize upon which he led them. He
had, say the chronicles, from forty to sixty thousand men, of
whom twenty-five thousand were hired adventurers or men who
joined his standard in the hope of obtaining booty. He was not a
leader of Barbarians, but a sovereign undertaking an invasion at
the head of his barons.
After the Conquest and their territorial establishment, the bonds
which united the Norman aristocracy were necessarily drawn still
closer together. Encamped in the midst of a people who regarded
them with hostility and were capable of vigorous resistance, the
conquerors felt the need of unity; so they linked themselves
together, and fortified the central power. On the Continent,
after the Barbarian invasions, we hear of hardly any
insurrections of the original inhabitants: the wars and conflicts
are between the conquerors themselves; but in England they are
between the conquerors and the conquered people. We indeed meet,
from time to time, with revolts of the Norman barons against the
king; but these two powers generally acted in concert, for their
interest was their bond of union.
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Moreover, William had found a royal domain of large extent,
already in existence: and it received immense increase from
confiscations of the lands of Anglo-Saxon rebels. Although the
spoliation was not universal, it was carried out with unexampled
promptitude and regularity. William soon had 600 direct vassals,
nearly all of whom were Normans, and his landed property was
divided into 60,215 knight's fees, a large quantity of which
frequently belonged to the same master; for example, Robert de
Mortaigne alone possessed 973 manors, the Earl of Warrenne 278,
and Roger Bigod 123; but they were all scattered through
different counties, for though the prudent William was willing to
make his vassals rich, he was not desirous of making them too
powerful.
Cohesion Of The Norman Aristocracy.
Another proof of the cohesion of the Norman aristocracy is
supplied by the Doomsday Book; a statistical account of the royal
fiefs, and register of the demesne lands and direct vassals of
the king, which was begun in 1081 and terminated in 1086: it was
compiled by royal commissioners. King Alfred had also directed
the compilation of a similar register, but it has been lost.
Nothing of the kind was ever done in any other country.
The same cause which rendered Norman feudalism in England more
compact and regular than on the Continent, produced a
corresponding effect upon the Saxons. Oppressed by a powerful and
thoroughly united enemy, they formed in serried ranks,
constituted themselves into a national body, and clung resolutely
to their ancient laws. And in the first instance, the
establishment of William did not appear to have been entirely the
work of force; there were even some forms of election; after the
battle of Hastings, the crown was offered to him by the Saxons,
and at his coronation at Westminster, he swore to govern the
Saxons and Normans by equal laws. After this period, we
incessantly find the Saxons claiming to be ruled by the laws of
Edward the Confessor, that is to say, by the Saxon laws, and they
obtained this right from all the Norman kings in succession.
These laws thus became their rallying point, their primitive and
permanent code. The county-courts, which continued to exist, also
served to maintain the Saxon liberties.
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Feudal jurisdiction had made but little progress among the
Saxons; it received extension on the arrival of the Normans; but
it had no time to strike deep root, for it found itself limited
on the one hand by the county-courts, and on the other by the
royal jurisdiction. On the Continent, the royal authority
conquered judicial power from feudalism; in England, the royal
authority was superimposed upon the county-courts. Hence arises
the immense difference between the two judicial systems.
Lastly, the Saxons still possessed landed property, which they
defended or claimed in reliance upon titles anterior to the
Conquest, and the validity of these titles was recognised.
Results Of The Norman Conquest.
To sum up the whole matter, the Norman Conquest did not destroy
right among the Saxons, either in political or civil order. It
opposed in both nations that tendency to isolation, to the
dissolution of society and of power, which was the general course
of things in Europe. It bound the Normans to one another, and
united the Saxons among themselves; it brought them into presence
of each other with mutual powers and rights, and thus effected,
in a certain measure, an amalgamation of the two nations and of
the two systems of institutions, under the sway of a strong
central power. The Saxons retained their manners as well as their
laws; their interests were for a long time interests of liberty,
and they were able to defend them. This position, far more than
the intrinsic character of Saxon institutions, led to the
predominance of a system of free government in England.
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Lecture IV.
The English Parliament in the earliest times of the
Anglo-Norman Monarchy.
Different names given to the King's Great Council.
Its characteristics.
Its constitution.
Opinions of Whigs and Tories on this subject.
Powers Which Rule Society.
You have already seen what was the influence of the Norman
Conquest on the political destinies of England; and what was the
position in which the two peoples were placed by it. They did not
unite, nor did they mutually destroy one another. They lived in a
state of national and political conflict, the one people being
invested with a large power of government, while the other was
far from being destitute of the means of resistance. We have now
to enquire what were those institutions upon which this struggle
was founded. We shall not concern ourselves with all the
institutions which then existed in society: we are now looking
for the sources of representative government, and are therefore
at present only interested in those in which the germs of a
representative system existed.
Division Of Powers In England.
In order to determine with some precision the object of our
study, it will be necessary to form some idea of the different
functions of the power which is applied to the government of
society. In the foremost rank is presented the legislative power,
which imposes rules and obligations on the entire mass of society
and on the executive power itself. Next appears the executive
power, which takes the daily oversight of the general business of
society--war, peace, raising of men and of taxes. Then the
judicial power, which adjusts matters of private interest
according to laws previously established. Lastly, the
administrative power, charged, under its own responsibility, with
the duty of regulating matters which cannot be anticipated and
provided for by any general laws.
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During three centuries these powers have tended to centralization
in France; so much so, that if we would study the government of
the country we must attend to them all, for they were all united
and limited to the same individuals. Richelieu, Louis XIV, the
Revolution, Napoleon, though in different positions, seem to have
inherited the same projects and moved in the same direction. Such
has not been the case in England. The administrative power there,
for example, is to the present time divided and subdivided; it
belongs either to those who are themselves interested in its
movements, or to local magistrates, independent of the central
power of the State, and forming no corporation among themselves.
The judicial power itself is divided. It was so to some extent,
through another and stronger cause, in the earlier times of
England's social life, as in all societies which have made but
small advancement. Different powers are then not only distributed
but commingled. The legislative power is no more central than
others: its functions are continually usurped by local powers.
Judicial power is almost entirely local. Centralization commences
with the executive power properly so called, and this for a long
time remains the only one in which any centralizing tendency is
found. The proof of this is furnished by the feudal system, when
almost all powers--those connected with justice, militia, taxes,
&c.--were local, although the feudal hierarchy had at its head
the king, and the assembly of the most important possessors of
fiefs.
In this distribution and confusion of powers at the period we are
considering, the institutions which we have especially to study
in order to find the origin of representative government, are
those which were central, that is to say, the Parliament and the
king. On the Continent, centralization has resulted from an
absolute power which has broken up and absorbed all local powers.
In England, on the other hand, local powers have subsisted after
a thousand vicissitudes, while they have increasingly regulated
and defined their own action. A central government has emanated
from them by degrees--it has progressively formed and extended
itself. We shall trace this formation step by step, and shall
only study local institutions as they relate to this one fact;
and we shall see that this circumstance has been the principal
cause of the establishment of a free government in England.
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The Anglo-Norman Parliament.
It is easily presumed that, in such a state of society, no other
central institution, properly so called, existed for a long time,
except royalty. There are certain maxims, certain habits of
central political action, but no constant rule: the facts are
varied and contradictory. Men of considerable influence, almost
sovereigns in their own domains, are much less desirous of any
participation in the central power; they rather attempt to defend
themselves from it as often as it infringes upon their interests,
than endeavour at all to control it beforehand, and to act upon
it in a general manner. As in France, at the end of the
Carlovingian dynasty, a king can hardly be met with, so in
England, under the first Norman kings, a Parliament can hardly be
found. That which existed bearing any resemblance to one differs
but little from the Saxon Wittenagemot in the form which belonged
to it immediately before the Conquest, or from the Council of
Barons in Normandy. We find in the works of historians, and in
charters, the following names: _Curia de more, Curia regis,
Concilium, Magnum Concilium, Commune Concilium, Concilium
regni_. But these are to be regarded only as vague expressions
which designate assemblies, without giving any clue by which to
determine their constitution and their power. Hale sees in them
"a Parliament as complete and as real as has ever been held in
England." Carte and Brady see in them only tribunals, privy
councils dependent upon the king, or pompous gatherings for the
celebration of certain solemnities. It will be better for us to
examine each of these words, and seek for the actual facts which
correspond to them in the period to which our attention is
directed.
According to the Tories in general, the words _Curia de more,
_or _Concilium, Curia regis, Magnum_ or Commune
Concilium, represent different assemblies. _Concilium_ is a
privy council composed of men chosen by the king to serve him in
the government. This _Concilium_ was at the same time
_Curia regis_, a tribunal to judge of matters brought before
the king, and presided over by him, or, in his absence, by the
chief justice. It was called also _Curia de more_, because
its assemblies were held, according to ancient usage, three times
in the course of the year, at Easter, Whitsuntide, and Christmas,
and was even adjourned regularly from one period to another, as
is done to the present day by the Courts at Westminster.
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According to the Whigs, all these words originally designated,
and continued to the reign of Henry II. (1154-1189) to designate
the general assembly of the nobles of the kingdom, who
necessarily assembled before the king in order to try cases, to
make laws, and to give their concurrence to the government.
The first of these opinions puts too great a restraint upon the
meaning of the words; the second generalizes too much on isolated
facts, and assigns to them an importance which does not belong to
them.
The Curia De More.
_Curia de more, Curia regis_, signified originally neither
the merely privy council of the king nor his tribunal; it was
evidently a grand assembly at which all the nobles of the kingdom
were present, either to treat of the affairs of State, or to
assist the king in the administration of justice. "The king,"
says the Saxon Chronicle, "was wont to wear his crown three times
a year--at Easter in Winchester; at Whitsuntide in Westminster;
at Christmas in Gloucester; and then there were present with him
all the great men of all England, archbishops and bishops, abbots
and counts, thanes and knights."--"A royal edict," says William
of Malmesbury, "called to the _Curia de more_ all the nobles
of every grade, in order that those sent from foreign countries
might be struck with the magnificence of the company, and with
the splendour of the festivities."--"Under William Rufus," says
Eadmer, "all the nobles of the kingdom came, according to usage,
to the king's court, on the day of our Saviour's nativity."
Anselm, Archbishop of Canterbury, having presented himself _ad
Curiam pro more_, "was received with joy by the king and all
the nobility of the kingdom." In 1109, at Christmas, "the kingdom
of England assembled at London, at the court of the king,
according to custom."
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The Curia Regis.
_Curia regis_ designates generally the place of the king's
residence, and by an extension of meaning the assembly held in
that place; this assembly was general, and not a mere gathering
of permanent judges. William I., summoning the Dukes of Norfolk
and Hereford to attend and receive judgment _in Curia
regis_, "convoked," says Ordericus Vitalis, "all the nobility
to his court." Several judicial assemblies held under William
Rufus, are called _ferme totius regni nobilitas, totius regni
adunatio_. Facts and expressions of the same kind are to be
found in documents of the time of Stephen. Even under Henry II.,
when the Court of King's Bench had already become a distinct
tribunal, the expression _Curia regis_ is applied to the
general assembly collected for the transaction of public
business. Henry convoked his _Curia_ at Bermondsey, _cum
principibus suis de statû regni et pace reformandâ tractans_.
The second of the Constitutions of Clarendon orders all the
immediate vassals of the crown _interesse judiciis curiæ
regis_. The great Council of Northampton, which passed
judgment in the complaints of the crown against Becket, is called
_Curia regis_; it comprised not only the bishops, counts and
barons, but besides these, the sheriffs and the barons _secundæ
dignitatis_. Lastly, under Richard I., the general assembly of
the nobles of the kingdom is still called _Curia regis_ in
the trial of the Archbishop of York: "On this occasion there were
present the Earl of Morton and almost all the bishops, earls and
barons of the kingdom."
A little consideration will show us the inferences to be drawn
from all these facts. At this period the legislative and judicial
powers were not separated; both of them belonged to the assembly
of the nobles, as they had previously belonged to the
Wittenagemot of the Saxons. When deliberations with reference to
a subject or personage of importance were required, this was the
assembly that judged, as it interposed on all great occasions in
the government. Thus all these different expressions denote
originally the same assembly, composed of the nobles of the
kingdom who were called to bear their share in the government.
How did they interpose? What power, what functions belonged to
them?--these are questions which were futile at that time: for no
one then had determinate functions, but everything was decided
according to fact and necessity. The facts are these: "It was the
ancient usage that the nobles of England should at Christmas time
meet at the king's court, either to celebrate the festival, or to
pay their respects to the king, or to deliberate concerning the
affairs of the kingdom."
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We find that these assemblies were occupied in legislation, in
ecclesiastical affairs, in questions of peace and war, in
extraordinary taxes, in the succession of the crown, in the
domestic affairs of the king, his marriage, the nuptials of his
children, dissensions in the royal family, in one word, in all
matters of government, says Florence of Worcester, whenever the
king did not feel himself strong enough to settle them without
the assistance of the general assembly, or when the mode in which
he had settled them had excited complaints in sufficient number
to admonish him of the necessity of taking the advice of others.
Tenure Of These Assemblies.
As to the holding of these assemblies, they were not regular: the
Whigs have attached too much importance to the three periods
mentioned as the times of their annual convocation: these
gatherings were rather of the nature of solemnities, or
festivals, than public assemblies. The king at that time
considered it very important that he should exhibit himself
surrounded by numerous and wealthy vassals, _species
multitudinis;_ his force and dignity were thereby displayed,
just as that of every baron was exhibited in his own dominions.
Besides, under Henry II. and Stephen, these three epochs ceased
to be regularly observed. The Tories, on the other hand, not
considering the gatherings called _Curiæ de more_ and
_Curiæ regis_ as political assemblies, have represented them
as extremely infrequent, which they were not; there is not a
single reign, from the Conquest to the times of King John, in
which several instances of them are not to be found; only there
was nothing settled and fixed in this respect.
Constitution Of These Assemblies.
The question of the constitution of these assemblies remains.
Historians and charters say nothing definite on this point: they
speak of their members as _magnates, proceres, barones_,
sometimes as_milites, servientes, liberi homines_. There is
every reason to suppose that the feudal principle was here
applied, and that, as a matter of right, all the immediate
vassals of the king owed to him service at court as well as in
war. On the other hand, the number of the vassals attached to the
crown under William I. exceeded 600; and there is no reason for
believing that all these would present themselves at the
assembly, nor are there any facts to indicate that they did so.
It had already become, for the most part, rather an onerous
service than a right; accordingly they only presented themselves
in small numbers.
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The word most frequently employed is _barones:_ it would
appear to have been originally applied to all the direct vassals
of the crown, _per servitium militare_, by knightly service;
we find that the use of the word was limited more and more till
it was applied almost exclusively to those vassals of the crown
who were sufficiently wealthy and large proprietors to have a
court of justice established in the seat of their barony. It is
even difficult to admit that this last principle was generally
followed. The name of _barones_ was finally applied only to
those immediate vassals who were so powerful that the king felt
himself obliged to convoke them. There was no primitive and
constant rule to distinguish the barons from other vassals; but a
class of vassals was gradually formed who were more rich, more
important, more habitually occupied with the king in affairs of
state, and who came at last to arrogate to themselves exclusively
the title of barons.
The bishops and abbots also formed part of these assemblies, both
as being heads of the clergy, and as immediate vassals of the
king or of the barons.
No trace of election or of representation is to be found, either
on the part of the king's vassals who did not present themselves
at the assembly, or on the part of the towns. These last had in
general suffered very greatly by the Norman Conquest. In York the
number of houses was reduced from 1607 to 967; in Oxford from 721
to 243: in Derby from 243 to 140; in Chester from 487 to 282.
These, then, are the essential facts which we may gather with
reference to the constitution and power of the King's Court, or
general assembly of the nobles of the nation. We see how little
influence must have been exerted by an assembly of so irregular a
character; and we shall see this still more strikingly
illustrated when we have brought it into comparison with the
rights, the revenues, and all the powers which were at that time
enjoyed by royalty.
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Lecture V.
The Anglo-Norman royalty: its wealth and power.
Comparison of the relative forces of the Crown and of the
feudal aristocracy.
Progress of the royal power.
Spirit of association and resistance among the great barons.
Commencement of the struggle between these two political forces.
Wealth Of The King.
In order to judge accurately of the power and importance of
royalty at the period we are considering, we must first ascertain
its actual position and resources; and we shall see by the extent
of these resources, and by the advantages of this position, how
feeble in its action on the royal power must have been the
influence of the assembly of barons.
The riches of the Norman king were independent of his subjects;
he possessed an immense quantity of domains, 1,462 manors, and
the principal towns of the kingdom. These domains were
continually being augmented, either by confiscations, causes for
which were of frequent occurrence, or by the failure of lawful
heirs. The king gave lands on a free tenure to those cultivators
who would pay for them a determinate rent (_free socage
tenure_). This was the origin of most of the freeholders,
whether in the king's domains or in those of his barons. The
king, in his domains, imposed taxes at will; he also arbitrarily
imposed custom-house regulations on the importation and
exportation of merchandize; and he fixed the amount of fines and
of the redemption money for crimes. He sold public offices, among
others that of sheriff, which was a lucrative one on account of
the share in fines which belonged to it. The county sometimes
would pay for the right to nominate its sheriff, or to avoid a
nomination already made. Lastly, the sale of royal protection and
justice was a source of considerable revenue.
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Duties Of The Royal Vassals.
As to the immediate vassals of the king, they owed him,
_First_, a military service of forty days whenever it was
required;
_Secondly_, pecuniary aid under three circumstances,--to
ransom the king when made prisoner, to arm his eldest son as a
knight, or to marry his eldest daughter. The amount of this aid
was undetermined up to the reign of Edward I.; it was then
fixed at twenty shillings for the fief of a knight, and as much
for every twenty pounds sterling value in land held in socage
tenure.
_Thirdly_, the king had a right to receive from his
vassals a relief or fine on the death of the possessor of a
fief; he was guardian if the heir were a minor, and enjoyed all
the revenues of the fief till the majority of the heir; he also
had a control over their marriages, that is to say, the vassal
of a king could not marry without his consent. All these rights
were indeterminate, and negotiations were substituted for them
in which the greater force always had the advantage.
_Fourthly_, the dispensation from feudal military service
gave rise to an impost termed _escuage_, a kind of
ransom-money fixed arbitrarily by the king, as representative
of a service to which he had a claim; and he even imposed it in
many cases on his vassals when they would have preferred to
serve in person. Henry II., by his purely arbitrary will,
levied five _escuages_ in the course of his reign.
In addition to these taxes levied by the king, another must be
mentioned called the _danegeld_, or tax paid for defence
against the Danes; this tax was raised several times during this
period on all lands throughout the kingdom. The last example of
it is to be found in the twentieth year of the reign of Henry II.
By means of these independent revenues and arbitrary taxes, the
Norman kings constantly kept up bodies of paid troops, who could
enable them to exercise their power without restraint, which did
not take place till a considerably later period on the Continent.
Lastly, from William the Conqueror till Henry II. the judicial
power tended always to concentrate itself in the hands of the
king. In this last reign the work was very nearly accomplished:
how this came to pass, I will endeavour to show.
Originally the jurisdictions that co-existed were as follows:
1. The courts of hundred and the county-courts, or meetings of
the freeholders of these territorial subdivisions, under the
presidency of the sheriff:
2. The courts-baron, or feudal jurisdictions:
3. The grand court of the king, where the king and the
assembled barons administered justice to the barons in cases
between any of themselves, or in cases of appeal, which could
only take place when justice had been refused in the court of
the manor or county.
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The Court Of Exchequer.
The Court of Exchequer, instituted by William the Conqueror, was,
at first, only a simple court for receiving the accounts of the
administration of the king's revenues, and those of the sheriffs,
bailiffs, &c., and for judging the suits that arose on this
subject. It was composed of barons, chosen by the king to form
his council, and to aid him in his government. In proportion as
the larger assembly, the _Curia regis_, came to be held less
frequently, so did the Court of Exchequer gain in importance. The
barons who composed it began to judge on their own
responsibility, and alone, in the absence and before the
convocation of the assembly; this change was introduced by
necessity, confirmed by custom, and finally sanctioned and
established by law. About the year 1164, another royal court of
justice, distinct from the Court of Exchequer, arose out of it,
the members of which, however, were the same as those composing
the Court of Exchequer. The kings lent their assistance to this
change, because it benefited their revenues. At this period were
established _writs of chancery_, which gave to purchasers
the right to apply at once to the royal justice, without
previously passing the subordinate courts of justice. Soon the
ignorance of the freeholders, who composed the county-courts,
necessitated the same extension of the royal justice there also,
and, in the reign of Henry I., _itinerant justices_ were
sent into the counties, in order to administer there in the same
way as was done by the Court of Exchequer. This institution was
in full vigour only during the reign of Henry II.
In this way the predominant influence of the king, in judicial
order, was established; this was a powerful instrument in
producing centralization and unity, and yet, as the royal judges
only interposed their services as supplementary to the
institution of the jury, and did not substitute them for it, for
questions of fact and questions of right remained distinct,--the
germ of free institutions, that existed in the judicial order,
was not entirely destroyed.
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Functions Of The National Assembly.
A king invested with such powerful resources could with
difficulty be restrained by an irregular assembly; accordingly
the government of the Norman kings was almost always arbitrary
and despotic. Persons and property were never in security; the
laws, taxes, and judicial sentences were almost always merely an
expression of the royal will.
When we consider these facts collectively, we may be led to two
very opposite results, according to the point of view from which
we regard them: on the one hand, we see the general assembly of
the nation interfering pretty frequently in public affairs, not
by virtue of any particular official character it possessed, nor
for the purpose of exercising any one special right, such as that
of making general laws, or of voting supplies, but on occasions
widely differing from one another, and for the purpose of
acquiescing in the entire course of government. Laws, external
relations, peace, war, ecclesiastical affairs, the judgment of
important cases, the administration of the royal domains,
nominations to great public offices, even the interior economy
and proceedings of the royal family, all seem to belong to the
province of this national assembly. No matter is foreign to it,
no function forbidden to it, no kind of investigation or of
action refused to it. All distinction of provinces, all lines of
demarcation between the prerogatives of the crown and those of
the assembly, appear to be unknown; we might say that the entire
government belonged to the assembly, and that it exercised in a
direct way that activity, that general supervision, which belongs
indirectly to the mature and perfected representative system, by
virtue of its influence on the choice of those who are to be the
depositaries of power, and by means of the principle of
responsibility.
On the other hand, if we forget the assembly and examine the
royal power, as isolated, we shall see it exercising itself in a
multitude of cases, in as absolute and arbitrary a manner as if
no assembly had existed to share in the government. The king, on
his own responsibility, made laws, levied taxes, dispossessed
proprietors, condemned and banished important persons, and
exercised, in a word, all the rights of unlimited sovereignty.
This sovereignty appears entire, sometimes in the hands of the
assembly, sometimes in those of the king; when the assembly
proceeds to interfere in all the details of government, we do not
find any complaint from the king, as if an encroachment had been
made on his prerogatives; and when, on the other hand, the king
governs despotically, we do not find the assembly bestirring
itself to protest against the extension of royal power, as a blow
aimed at their rights.
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Co-existence Of Opposing Forces.
Thus we are met by two classes of facts, simultaneously existing
in this infancy of society,--facts which seem to belong to a
fully developed system of free institutions, and facts which are
characteristic of absolute power. On the one hand, the aim of
free governments, which is, that the nation should interfere,
directly or indirectly, in all public affairs, seems to be
attained; on the other hand, the independent and arbitrary
domination of the royal power appears to be recognized.
This is a result that must necessarily arise in the disorder of a
nascent and troubled stage of civilization. Society is then a
prey to chaos;--all the rights and all the powers of a community
co-exist, but they are confounded, unregulated, unmarked by
limits, and without any legal guarantee;--freemen have not yet
abdicated any of their liberties, nor has force yet renounced any
of its pretensions. If any one had said to the barons of William,
or of Henry I., that they had nothing to do with affairs of
State, except to comply when the king demanded an impost, they
would have been indignant. All the affairs of the State were
theirs, because they were interested in them; and when they were
called upon to deliberate concerning peace or war, they believed
that they were exercising a right belonging to them, and not
making a conquest over royal authority. No freeman, who was
strong enough to defend his freedom, recognized any right in
another person to dispose of him without his consent, and found
it a very simple matter to give his advice on questions that were
interesting to him. The king, in his turn, measuring his right by
his force, did not recognize in any person, nor, consequently, in
any assembly, the legal right to prevent him from doing that
which he was able to do. There were then, properly speaking, no
public rights or powers at all; they were almost entirely
individual and dependent on circumstances; they are to be found,
but in a state of isolation, unconscious of their own nature,
and, indeed, of their very existence.
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Origin Of Royal Prerogative.
In this disorderly state of things, the able and energetic
government of William I., Henry I. and Henry II. caused the royal
power gradually to assume a much more general and consistent
character. Accordingly, national assemblies became by degrees
more rare and less influential; under Stephen, they almost
entirely disappeared. The barons no longer had a common
meeting-point, and were more occupied with the rule of their own
domains than with any association with the royal power for the
purpose of controlling or restraining it. Each devoted himself
more exclusively to his own affairs, and the king, following this
example, made himself almost the sole master of those of the
State. He availed himself of the need of order and regularity
that made itself felt every day, in order to constitute himself,
in some sort, the dispenser of them. By these means he soon
became the first in name, as well as the most powerful in fact.
Through him, the roads became more secure; he protected the
feeble, and repressed robbers. The maintenance of public order
devolved upon the royal power, and became the means of extending
and strengthening it more and more. Whatever the king had
possessed himself of by conquest, he vindicated as his own by
right. Thus was formed the royal prerogative.
The Barons And The King.
But at the same time different circumstances concurred to draw
the barons forth from their isolation, to unite them among
themselves, and to form them into an aristocracy. The
Anglo-Norman throne was successively occupied by three usurpers,
William II., Henry I., and Stephen. Invested with a power whose
title was doubtful, they felt the necessity of bringing the
barons to recognize their claims; hence the first charters were
conceded. No one of the barons was powerful enough, in himself,
to restrain the threatened extension of royal power, but they
formed the habit of making coalitions; and as each of the barons
entering into such coalitions, felt the necessity of attaching
his vassals to himself, concessions were made to them also. The
absence of large fiefs, in England, served the cause both of
power and of liberty; it allowed power to form itself into unity
with greater facility, and it obliged liberty to seek for
guarantees in the spirit of association.
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That which finally contributed in the most decided way to form
and consolidate this aristocratic coalition, was the irregular
and usurping conduct of John during the long absence of Richard
Cœur-de-Lion, and the disorders and civil wars which were
naturally the results of this absence. In the midst of these
disorders the government fell into the hands of a council of
barons, that is to say, of a portion of the aristocracy. Those
who had no share whatever in the central power did not cease to
control it, and to regard it as rightfully theirs; in this way,
the one party formed a habit of governing, the other that of
resisting a government which was in the hands of their equals,
and not of the king himself. John, by his cowardice and
ill-judged familiarity, had brought the throne into disrespect
before he himself ascended it, and his barons much more easily
conceived the idea of resisting as a king, one whom they had
despised as a prince.
Thus, in the space of a hundred and thirty years, two elements in
the State, which were at first confounded and had almost acted in
common, were separated and formed into distinct powers,--the
royal power on the one hand, and on the other, the company of
barons. The struggle between these two forces then commenced, and
we shall see royalty continually occupied in defending its
privileges, and the aristocracy as unweariedly busying itself in
the endeavour to extort new concessions. The history of the
English charters, from the reign of William I. to that of Edward
I., who granted them a general confirmation, is the history of
this struggle, to which England is indebted for the earliest
appearance of the germs of a free government, that is to say, of
public rights and political guarantees.
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Lecture VI.
History of English Charters.
Charter of William the Conqueror (1071).
Charter of Henry I. (1101).
Charters of Stephen (1135-1136).
Charter of Henry II. (1154).
Progress Towards Free Government.
Liberties are nothing until they have become rights,--positive
rights formally recognized and consecrated. Rights, even when
recognized, are nothing so long as they are not entrenched within
guarantees. And lastly, guarantees are nothing so long as they
are not maintained by forces independent of them, in the limit of
their rights. Convert liberties into rights, surround rights by
guarantees, entrust the keeping of these guarantees to forces
capable of maintaining them--such are the successive steps in the
progress towards a free government.
This progress was exactly realized in England in the struggle,
the history of which we are about to trace. Liberties first
converted themselves into rights; when rights were nearly
recognized, guarantees were sought for them; and lastly, these
guarantees were placed in the hands of regular powers. In this
way a representative system of government was formed.
We may date from the reign of King John as the period when the
efforts of the English aristocracy to procure a recognition and
establishment of their rights became conspicuous; they then
demanded and extorted charters. During the reign of Edward I.,
the charters were fully recognized and confirmed; they became
real public rights. And it was at the same epoch that a
Parliament began to be definitely formed, that is to say, the
organization of political guarantees commenced, and with it the
creation of the regular power to which they are entrusted.
I have shown how the two great public forces--royalty and the
council of barons, were formed, cemented, and brought into
juxtaposition. We must now follow these forces into the combats
in which they engaged their energies in order to have their
reciprocal rights recognized and regulated; and to do this we
must trace the history of English charters. I shall then enquire
how the guarantees were organized, that is to say, how the
Parliament was formed.
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Charter Of William The Conqueror.
When William the Conqueror arrived in England, his position with
respect to the Norman barons and knights had been already
regulated on the Continent by the feudal law; their respective
rights were fixed and recognized. After the Conquest, fear of the
Anglo-Saxons kept the king and the Normans so far united, that
neither of them cared much to extort concessions from the other.
Very different, however, were the relations between William and
his English subjects. He had to adjust these relations,--here was
a legislation to be created, and rights to be recognized or
contested. The English made the most strenuous efforts to
preserve their Saxon laws, and it appears to have been in the
fourth year of William's reign (the year 1071) that they
succeeded in gaining an assurance that these laws should be
maintained. There is reason to believe that on this occasion he
granted the charter intituled, "_Charta regis de quibusdam
statutis per totam Angliam firmiter observandis._" Some have
asserted that this charter was not granted till nearly the end of
William's reign, but I see no reason for assigning any other
period to it than that which I have mentioned.
This charter, the authenticity of which [Footnote 19] has been
sometimes questioned, I think on insufficient grounds, is a kind
of vague declaration containing the general principles of feudal
political law.
[Footnote 19: The original is lost, but a copy of it exists
in the Red Book of the Exchequer, which gives a strong
presumption for its authenticity. Besides, the charter of
Henry I. makes a distinct allusion to it.]
William, in it, recognizes rights which he often allowed himself
to violate; for his power rendered the violation of his promises
easy. The Norman barons did not form themselves into any body,
unless perhaps against the English; they were all too much
occupied in the work of establishing themselves in their new
domains. If they sometimes roused themselves to oppose the
tyranny of William, their revolts were only partial, and the king
adroitly used the English in order to put them down.
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His son, William Rufus, by adopting the same policy, obtained
similar success. But Henry I. had to pay for his usurpation; the
charter which he granted was the inevitable consequence of his
possession of the throne.
Charters Of Henry I.
This charter of Henry's contains a solemn promise to respect all
ancient rights. In it the king promises no more to follow _all
the evil practices_ by which the kingdom of England was
oppressed under the king his brother, that is to say, not to
appropriate the revenues of vacant abbacies and bishoprics, nor
again to sell or farm ecclesiastical benefices, and to permit the
heirs of his vassals to inherit their possessions on paying a
just and legitimate fine. He assures to his barons their right to
give their daughters or sisters in marriage to whomsoever they
will, provided it be not to one of the king's enemies; he grants
to widows who are left without children the possession of their
dowry and jointure, and liberty to marry again according to their
free choice; and he renounces the right of guardianship, placing
it in the hands either of the wife or some relative. He gives to
all his vassals the right to dispose of their property either by
gift or by will, renounces the right arbitrarily to levy taxes on
the farms of his vassals, abandons the forests which William
Rufus had usurped, and abolished feudal aids, even in the three
cases which we have already specified. Lastly, he withdraws the
right of coining from the towns and counties, pardons all the
offences and crimes committed before his reign, and recommends
his vassals to allow their vassals to enjoy all the advantages
which he accords to them.
These concessions were merely recognitions of rights, without
guarantees. Henry, accordingly, despite his oaths, violated these
magnificent promises; and the abuses which they ought to have
removed were not diminished in any degree, during the whole
extent of his reign.
Another charter was granted by Henry I. to the city of London, by
which it was authorized, among other things, to elect its own
sheriff and chief magistrate, to hold its accustomed assemblies,
not to pay either the _danegeld_ or any other _scot_,
or imposts for works along rivers, and not to give lodging to the
retinue of the king.
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Lastly, we find new promises and new concessions made by Henry I.
in 1101, when his brother Robert laid claim to his rights.
Wishing to assure himself of the fidelity of his barons, Henry
assembled them at London, and delivered to them a speech, in
which, after having given a hideous representation of Robert's
person, he added:--"As for me, I am truly a mild king, modest and
pacific; I will preserve to you, and diligently guard your
ancient liberties, which I have before sworn to maintain; I will
listen with patience to your wise suggestions, and will govern
you justly after the example of the best princes. If you desire
it, I will confirm this promise by a written charter, and I will
swear afresh to observe inviolably all the laws of the holy king
Edward," &c. &c.
These promises, made in a moment of danger, were always forgotten
as soon as ever the danger had disappeared. During his entire
reign, Henry continually violated the charter to which he had
bound himself by oath, both as regards matters relating to feudal
dependence, and in the levying of imposts. According to the
historians, he levied each year a tax of twelve pence on every
hide of land, a tax which was probably identical with the
_danegeld_.
Charters Of Stephen.
Stephen, Henry's successor, granted charters to his subjects as
Henry had done, and these charters were also the result of
usurpation. He published two; the first only confirmed the
liberties granted by Henry I., and the laws of Edward the
Confessor. The second is remarkable as containing a promise made
by Stephen to reform the abuses and exactions of his sheriffs. At
this period public offices were farmed, and those who filled
them, seeking to gain all the advantages possible from them, were
far more oppressive on their own account than on account of the
king. Accordingly it was no difficult matter to appeal to the
king against his own officers. Such a mode of appeal, however,
indicates that legal and regular guarantees were unrecognized and
but little thought of. The barons however began to procure them,
by force. They obtained from the king permission to fortify their
castles and put themselves in a state of defence. And the clergy
on their part, while taking the oath of fidelity, attached to it
a condition that they should be released from its obligation as
soon as the king should trespass on ecclesiastical liberties.
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Charter Of Henry II.
The charter granted by Henry II., about the year 1154, still
expresses nothing more than a recognition of rights; it does not
contain any new promise, or any concession of guarantees. The
reign of this prince, I need hardly remind you, was entirely
occupied with his disputes with the clergy, with the revolts of
his sons, and with his conquests, both on the Continent and in
Ireland. No important differences were brought into discussion
between him and his barons; no progress in existing institutions
is visible, and we may say that the reign of Henry II.,
considered from this point of view, was orderly and stationary.
If, however, the king, so far as his relations to his barons were
concerned, obtained an almost uninterrupted submission, and
caused the demolition of most of those fortified castles which
had been constructed during the preceding reign, the towns on the
other hand, and especially the city of London, increased in
strength and importance, and the aristocracy became every day
more compact by means of the fusion of the Normans and the
English, a fusion which was almost completed during this reign,
at least among the upper classes.
The fact of this period which bears most importantly upon the
subject which we have under consideration, is the substitution of
the _escuage_ for the personal service of the vassals. It is
under the reign of Henry II. that we find this impost collected
for the first time, at least in the form of a general measure.
The establishment and limitations of the _escuage_ became
soon the principal object of contention between the king and his
barons. The use which the kings came to make of the resources
derived from this impost was fatal to them, for they employed it
in order to keep up armies of foreign mercenaries, especially
Brabanters; and by these measures, they gave a new motive to the
English barons to coalesce. The expulsion of foreign soldiers
became at length one of the continually recurring demands of the
barons.
Henry II. towards the close of his reign, imposed by his own
authority a tax of one sixth on all moveable property. He
abandoned the _danegeld_.
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Reign Of Richard I.
The reign of Richard, which was entirely occupied with his
brilliant but unfortunate expeditions, offers nothing especially
illustrative of the history of institutions. The absence of the
king and the weakness of the royal power supplied the feudal
aristocracy with opportunities for extending their importance;
but they did not at that time take advantage of their superiority
to procure a recognition of their rights;--not until the reign of
John did the struggle become violent and the victory decisive.
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Lecture VII.
Charter of John, or the Great Charter (1215).
Three epochs in John's reign.
Formation of a coalition among the barons.
Civil war.
Conference at Runnymead.
Concession of the Great Charter.
Analysis of this Charter.
Its stipulations refer to national rights as well as to those
of the barons.
John petitions and obtains from Innocent III. a bull to reverse
the Great Charter.
Resistance of the English clergy.
Recommencement of the civil war (October, 1215).
Louis of France, son of Philip Augustus, is appealed to by the
barons.
Death of John (October, 1216).
Reign Of King John.
During King Richard's absence, the administration of the kingdom
had fallen into the hands of the barons: the feudal aristocracy
had begun again to interfere directly in the government, both by
way of encroachment and of resistance. Still, the acts of the
barons had no longer the same character which they possessed
under the preceding reigns; they no longer offered an open
resistance; they did not demand any new charters; they did not
petition for the observance of former ones: but they silently
collected their forces in anticipation of a struggle which was to
be decisive. We find them submitting to the exactions which
Richard imposed on all classes of society, both for his crusade
and for his ransom. Nevertheless, the old maxims as to the
necessity of obtaining the consent of the barons to every
extraordinary imposition, had revived with new vigour. This right
of giving consent to tributes was vindicated with an increasingly
determined firmness; and in the first assembly, which Richard
held at Nottingham after his return from the East, he was unable
to establish an impost of two shillings on every hide of land
until he had obtained the consent of his barons. Already every
tribute that was levied on the sole authority of the king had
begun to stir up a spirit of resistance. This resistance declared
itself as soon as John ascended the throne, and the opposition
which had been preparing during the reign of Richard then started
into prominence.
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Opposition Of The Barons.
The reign of John may be divided into three epochs: from 1199
till 1206, he was occupied with his quarrels with the king ol
France, and with the struggle which arose from the refusal of the
barons to second him in his continental enterprises. From 1206 to
1213, John was occupied by his disputes with the Pope and the
clergy. Lastly, from the year 1213 to the close of his reign, his
position with reference to the barons and the clergy became more
and more hostile; it revealed to him their power and his own
feebleness; and constantly succumbing before them, we see him
yielding one point after another to the clergy and barons, who
were always united in their attacks upon him, until at length he
granted that celebrated charta usually called Magna Charta, which
is a lasting monument of John's defeat and the abiding basis of
the English constitution.
John was not the lawful heir to the crown; it belonged to his
nephew, Arthur, Duke of Bretagne, whose rights were further
confirmed by a testament of Richard. Nevertheless, by his
largesses and his yielding disposition, John found no difficulty
in usurping the throne of England. The opposition was stronger in
his continental possessions; the feudal ideas there prevailing
favoured the system of representation, and the people were more
disposed to recognize the claims of a son than those of a
brother. Anjou, Poitou, Maine and Touraine declared for Arthur.
In 1201 (others say in 1204) John demanded of the barons, whom he
had assembled at Oxford, that they should assist him in the war
which he purposed carrying on in France. They required, as the
price of their assistance, that the king should promise to
restore to them their liberties and privileges. John, without
having granted anything to them, succeeded in winning over one
after another, until he had obtained from each individually what
had been refused to him by all when assembled. Nevertheless, this
opposition showed that the coalition among the barons had taken
shape and consistence.
John, who had as yet done nothing to deserve that his usurpation
should be overlooked, rendered himself odious by an imprudent
divorce, and by vexatious indignities. He introduced into his
retinue, bullies, whom he called champions of royalty; and he
obliged the discontented barons to enter into the lists with
them, and to settle, by these pretended judicial combats, their
disputes with the crown.
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At length, his exactions, his tyrannical proceedings, and above
all, the murder of Arthur, whom he is said to have assassinated
with his own hand, excited against him an almost general rising.
Abandoned by his barons, driven from Normandy, Anjou, Maine,
Touraine, and a part of Poitou, John, instead of conciliating the
minds of his people, only acted in such a manner as to alienate
them more and more, and only defended himself by rendering
himself more odious. A new _escuage_ of two marks and a half
for every knight's fief was extorted from the barons. John had,
therefore, to endure a new refusal when he asked them a second
time to follow him to the Continent. In vain was it that he
employed those means which had before succeeded; he was obliged
to yield, and to allow Philip Augustus to take possession of
Normandy, and reunite it to the crown of France.
Quarrels With The Clergy.
It was not enough for John that he had entered into hostilities
with the lay aristocracy; he still further made himself inimical
to the clergy. On the death of the Archbishop of Canterbury, the
Augustin monks had arrogated to themselves the right of
appointing his successor without the consent of the king. John,
nettled by this invasion of his prerogatives, united with the
bishops, who also protested against an election in which they had
taken no part, and in concert with them, nominated the Bishop of
Norwich to the vacant see. Upon this, Innocent III. interfered in
the dispute;--but without confirming either of the two elections,
he ordered the English clergy to choose Cardinal Stephen Langton.
The king, enraged against the Court of Rome, drove all the monks
from Canterbury, and made himself master of their revenues.
Accordingly, the Pope excommunicated the monarch, placed the
whole kingdom under his ban, and released his subjects from the
oath of fidelity which they had sworn to John. Moreover, he
charged Philip Augustus to execute his decrees, and offered to
him the crown of England. Philip eagerly accepted the present,
while John, frightened by the double danger which pressed upon
him, demanded, but in vain, assistance from his barons;--he had
acted unjustly towards them, and now he found them indifferent to
his misfortunes. At last, stripped of all resources and left
without hope, he sought safety in submission, and saved himself
by means of base servility: he declared himself a vassal of the
pope, and engaged to pay him annually a tribute of a thousand
marks.
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Commencement Of The Civil War.
After John had thus ransomed his crown, he soon endangered it
again by renewed acts of imprudence; his base tyranny, and his
criminal attempts on the wife of Eustace de Vesci, roused the
barons against him, and their opposition, was directed and
stimulated by the primate Langton.
It is not to be wondered at that the feudal aristocracy should
act under the guidance of an ecclesiastic; the two orders made
common cause, and this coalition, which preceding kings had
always endeavoured to prevent, was one of the effects of John's
odious and absurd conduct. He forgot that the royal power could
only maintain itself so long as the power of the clergy and that
of the barons balanced one another; when they united, he was
obliged to succumb. Their union was the result of John's base
submission to the Holy See; the English clergy, tired of the
despotism of Rome, and regretting the loss of their privileges,
openly embraced the cause of national liberty.
Such was the pervading feeling, when (August 25, 1213) an
assembly of the barons was convened at London. In one of their
meetings, Cardinal Langton informed them that he had found a copy
of the charter of Henry I., which was then entirely forgotten;
this charter was read to the assembly, and received with
enthusiasm. Another meeting was held at Saint Edmundsbury
(November 20, 1214), and there each baron, laying his hand upon
the altar, took an oath that he would use his efforts to force
the king to restore in full vigour the charter of Henry I. They
soon presented themselves at London in arms, and on January 5,
1215, they demanded from John, in a formal and positive way, the
renewal of this charter, as well as of the laws of Edward the
Confessor. John, terrified by their firmness, requested that some
leisure might be granted to him in order to think over these
demands, and accordingly his answer was deferred till Easter.
During this interval, he endeavoured to introduce division among
his enemies, and in the first place, wishing to conciliate the
clergy, he granted them by a charter the liberty of electing
their own bishops and abbots, and sent William de Mauclerc to
Rome to complain of the audacity of the barons.
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They too despatched Eustace de Vesci to Rome, to represent to the
pontiff the justice and sacredness of their cause. This embassy,
however, failed in its object; the Pope condemned the barons: but
they were not to be intimidated from their purposes, and John,
determining to make another effort in order to secure the support
of the church, took the cross on the 2nd of February, 1215, and
made a vow to lead an army into Palestine.
The respite, however, which the barons had granted to the king
came to an end, and they met again at Stamford in Lincolnshire,
on the 19th of April, 1215, being followed by nearly two thousand
knights in arms. The king asked them what their claims were; they
made at Stamford the same answer as they had made in London, and
presented the charter which they had sworn to establish. "And why
do they not demand my crown also?" exclaimed John in his fury;
"by God's teeth, I will not grant them liberties which will make
me a slave." This answer was taken as a declaration of war, and
on the 5th of May following, the barons met at Wallingford,
solemnly renounced their oath of allegiance, and at the same time
named Robert Fitz-Walter general of the "army of God and of Holy
Church."
War was declared: in vain did the Pope address letters to the
barons, in which he commanded them to desist from their
enterprise; the hostilities which had been commenced only
continued with greater vigour, and on the 24th of May, the
triumphant barons took possession of London with the consent of
the citizens. John left the city and retired to Odiham, in the
county of Hampshire, with no other escort than seven knights.
From his retreat he attempted, without success, to enter into
negotiations; he proposed the intervention of the Pope, but this
was also refused: baffled in all his attempts, he was at length
necessitated to acquiesce in the law which had been forcibly
imposed on him.
Conference At Runnymead.
On the 13th of June, a conference was opened in the plain called
Runnymead, between Windsor and Staines. The two parties had
separate encampments, as declared enemies; after some trifling
debates, the king at first adopted the preliminary articles, and
four days after, on the 19th of June, 1215, he made the grant of
the famous act known by the name of the Great Charter,--Magna
Charta.
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Analysis Of Magna Charta.
This charter, the most complete and important that had yet
appeared, may be divided into three distinct parts; one referring
to the interests of the clergy, another regulating those of the
nobility, and the third, those belonging to the people. This
methodical division is not taken from the order in which the
articles of the actual charter are distributed, but I have here
adopted it in order to render my account of it more natural and
distinct.
The Great Charter refers but little to ecclesiastical interests,
since they had been settled by the charter already granted to the
clergy. All that was therefore required was that this should be
confirmed. This accordingly is done in the first article, which
grants a general confirmation to all ecclesiastical immunities
and privileges.
The privileges of the laity, on the other hand, were more
uncertain, and more strongly contested; it was therefore
necessary that they should be minutely investigated and
separately conceded. The Great Charter is almost entirely devoted
to the settlement of the rights, and the confirmation of the
privileges, claimed by the laity.
In the first place, it determines with precision what had been
obscure and ambiguous in the feudal laws; and it fixes the amount
of relief which the immediate or indirect inheritors of fiefs
should pay. Hitherto this relief had been indeterminate. (Arts. 2
to 3.)
Then follow the precautions prescribed respecting the marriage of
feudal wards, and those which regard the widows and children of
vassals. (Arts. 6 to 8.)
The right and mode of collecting aids and escuages, are regulated
by the two following articles:--
"Art. 12. That no escuage or extraordinary aid shall be imposed
in our kingdom, except by the national council of our kingdom,
unless it be to ransom our person, to equip our eldest son as a
knight, and to marry our eldest daughter: and for these last
cases only a reasonable amount of aid shall be demanded, &c."
"Art. 14. In order to hold the national council of the kingdom,
for the purpose of imposing any other aid than for the three
cases heretofore mentioned, or to impose an escuage, we will
call together the archbishops, bishops, abbots, earls and great
barons, individually and by letters from ourself; and we will
assemble together by means of our viscounts and bailiffs, all
those who are directly dependent upon us.
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The great convocation shall be made on a fixed day, namely, at
intervals not greater than forty days, and in an appointed
place; and in the letters of convocation we will expound the
reason of such convocation; and the convocation thus made, the
business shall be transacted on the day appointed, by the
council consisting of those who are present, although all those
who have been summoned may not have arrived."
This charter is the first document in which we find a distinction
established between the greater and lesser barons, and the higher
and lower clergy; an important fact, since it may perhaps be
regarded as the original source of the separation between the two
Houses of Parliament.
Lastly, several articles have for their object to limit the
rights of the king on the lands of his tenants, to fix the amount
of fine imposed on beneficiaries according to the gravity of
their offence, to determine the length of time during which lands
should remain sequestrated on account of felony; in one word, to
give to the barons greater independence and security than they
had ever before enjoyed.