Part II.

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.

{295}

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.

{310}

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.

{314}

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.

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