of the nobility; up to this point, we find only sanctions given
to particular privileges, we have only met with that which
favours the interests of certain classes in society. But it
contains also clauses of wider and more general application; it
has for its object also the interests of the nation as a whole.
First of all, almost all the immunities granted to the barons
with respect to the king, the vassals obtained with respect to
their lords. These were not allowed from this time to collect
aids and escuages on their lands, except in the same cases and in
the same manner as the king. (Art. 15.)
Justice was for the future to be administered in a fixed and
uniform manner; the following are the articles in which this
important provision is expressed:--
"Art. 17. The court of common pleas shall not follow our court
(_curia_), but shall be held in a fixed place.
"Art. 18. We, or if we are absent from the kingdom, our chief
justiciary, shall send four times a year into each county two
judges, who, with four knights, chosen by each county, shall
hold the assizes at the time and place appointed in the said
county."
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"Art. 39. No freeman shall be arrested or imprisoned, or
dispossessed of his tenement, or outlawed, or exiled, or in
anywise proceeded against; we will not place or cause to be
placed hands upon him, unless by the _legal judgment of his
peers or by the law of the land_.
"Art. 40. _Justice shall not be sold, refused, or delayed to
anyone._"
Moreover, the king promises to appoint only capable and upright
judges (Art. 41); to forbid their condemning any person whatever,
without having previously heard the witnesses (Art. 38); to
reinstate every man who had been dispossessed without legal
judgment (Art. 32); to repair the injuries committed under Henry
II., and Richard I. (Art. 53); to put a stop to the imposts for
the construction of bridges (Art. 23); and to interdict
annoyances of all kinds inflicted either on townsmen, merchants,
or villeins (Arts. 20, 26, 28, 30, 31).
He grants and assures to the city of London, as well as to all
other cities, boroughs, towns, and harbours, the possession of
their ancient customs and liberties (Art. 13).
Lastly, the 41st Article provides that all merchants shall have
full and free liberty of entering England, of leaving it, of
remaining there, and of travelling there by land and by water, to
buy and to sell without being subject to any oppression (_male
toltâ_) according to the ancient and common usages, &c.
These, then, are the concessions made to promote the interests of
all.
It is not, however, enough that rights should be recognized and
promises made; it is further necessary that these rights should
be respected, and that these promises should be fulfilled. The
61st and last article of the Great Charter is intended to provide
this guarantee. It is there said that the barons shall elect
twenty-five barons by their own free choice, charged to exercise
all vigilance that the provisions of the Charter may be carried
into effect, the powers of these twenty-five barons is unlimited
if the king or his agents allow themselves to violate the
enactments of the Charter in the smallest particular, the barons
will denounce this abuse before the king, and demand that it be
instantly checked.
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If the king do not accede to their demand, the barons shall have
the right, forty days after the summons has been issued by them,
to prosecute the king, to deprive him of his lands and castles
(the safety of his person, of the queen, and of their children,
being respected), until the abuse has been reformed to the
satisfaction of the barons.
Though such a right was granted, no guarantee was thereby given;
it only authorized civil war; it was to perpetuate the struggle
indefinitely, and formally to leave the ultimate decision of the
question to force. It was still far from being a regularly
constituted political guarantee; but the spirit of that age was
not capable either of discovering or of comprehending such a
guarantee--it could only understand the recognition of its
rights. However, the forcible guarantee which the Great Charter
established was so far valuable, inasmuch as it centralized the
feudal aristocracy by organizing the council of barons.
It has been often said that the Great Charter would not have been
supported by the barons had not it not been for its influence on
their special interests. This opinion is untenable: how is it
possible that at least a third of the articles should have
related to promises and guarantees made on behalf of the people,
if the aristocracy had only aimed at obtaining that which should
benefit themselves? We have only to read the Great Charter in
order to be convinced that the rights of all three orders of the
nation are equally respected and promoted.
Another question has been raised, as to whether John did or did
not grant a special charter relating to forests at the time when
he granted the Great Charter. Mathew Paris is the only author who
speaks of this charter of forests, and there are several reasons
why his authority should in this matter be rejected. First of
all, the preliminary articles of the Great Charter contain
nothing on this point; in the second place, Articles 44, 47, and
48 in the Great Charter itself settle whatever relates to
forests; and lastly, the king and the Pope, in their
correspondence prior to these events, make no allusion to this
twofold concession.
When the king had distinctly adopted each article of the Great
Charter, the agreement between him and his barons, which had been
concluded on the 15th of June, was executed in order to ensure
the fulfilment of his engagements. The guarding of the city of
London was entrusted to the barons till the 15th of August
following, and that of the Tower to the Archbishop of Canterbury.
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Violation Of Magna Charta.
John dissembled at first, and appeared to submit without any
reserve to all the sacrifices which were imposed upon him; but
such a mask soon became intolerable to him. After a short time he
broke out into complaints and threatenings, and retired in fury
to the Isle of Wight. While there, he procured the enrolment of
an army of Brabanters in order to regain his power by battle, and
despatched a messenger to Rome beseeching for aid against the
violence that had been done him. Innocent III., hearing what had
occurred, and irritated by the audacity of the barons, whom he
called his vassals, annulled the Great Charter, and
excommunicated all the barons who had joined in the rebellion.
The king, trusting to this powerful support, threw aside the
mask, and retracted all his engagements. But he speedily
perceived that those spiritual weapons, which had recently been
so potent when opposed to him, were now without value when placed
in his own hands. Archbishop Langton refused to pronounce the
sentence of excommunication. He was summoned to Rome and
suspended, but in vain; the clergy sustained him in his disgrace,
and confirmed his refusal. John attempted ineffectually to divide
the two orders,--whenever he made any preparations for fighting,
they became inseparable allies.
John had now no other hope except in the support of his foreign
mercenaries; he made one last effort, and in the month of October
1215, war was again enkindled between him and the barons. The
attack was unforeseen; the barons being suddenly surprised
retreated before the king, who advanced in triumph as far as
Rochester Castle, of which he made himself master after an
obstinately resisted siege. He made prisoner its governor,
William d'Albiney, one of the twenty-five barons appointed to
guard the maintenance of the charter, and the most distinguished
captain among them: this was an irreparable loss to their party;
and from this moment the king met with no regular resistance. His
tyranny might now glut itself with vengeance; he let loose his
satellites, and the entire kingdom was soon filled with the
devastating effects of his rage.
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Nevertheless, some barons in the north still resisted him
manfully; and the remnants of the coalition combined with them;
but feeling themselves too weak, they sought in their turn safety
from a foreign ally. The crown of England was offered in their
name to Prince Louis, son of Philip Augustus, who thereupon sent
an army to attempt the conquest of England.
Louis had scarcely landed when the aspect of affairs entirely
changed. John, abandoned by his friends and by his soldiers, lost
in a short time all that he had recovered. The entire kingdom
fell into the hands of his young rival, and Dover was the only
town which remained faithful to John. Prince Louis, however,
though he had so far succeeded, did not establish himself on his
newly acquired throne. The predilection which he invariably
manifested for the French nobles could not but be distasteful to
the English barons, and the avowals of the Count of Melun, made
on his deathbed, had the effect of detaching almost all the
nobility of the kingdom from the side of Louis. This noble
induced the barons to distrust the king, who, he affirmed, fully
intended to dispossess all of them, and to distribute their lands
among his favourites and natural subjects. This disclosure,
whether it was true or false, had a powerful effect on the minds
of the barons, and most of them renewed their allegiance to their
former king.
Death Of King John.
John had now set his army on foot, and fortune seemed to promise
him new successes, when death surprised him on the 17th of
October, 1216. This event was more fatal to Louis than a lost
battle could have been. The hatred of the English to their king
died with him--they hastened to rally round his young son--a
general defection quickly ruined the already tottering cause of
the French prince, and after he had continued this useless
struggle for a short time, he abandoned a throne for the offer of
which he was indebted merely to the accidental distress of the
English barons, and which he would never have been able to secure
by the mere force of his arms.
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Lecture VIII.
Charters of Henry III.
First Charter of Henry III. (November, 1216).
Louis of France renounces his title to the Crown, and leaves
England.
Second Charter of Henry III. (1217).
Forest Charter granted by Henry III. (1217).
Confirmation of Charters (1225).
Revocation of Charters (1227).
New confirmation of Charters (1237).
Continual violation of Charters.
Civil war.
Renewal of Charters (1264).
New confirmation of Charters (1267).
Death of Henry III. (November 16, 1272).
Charters Of Henry III.
Hitherto we have only seen, in the charters, recognitions of
rights more or less open and complete; they are transactions
between two rival powers, one of whom gives promises while the
other establishes rights; but there is no power to guarantee that
these promises shall be faithfully kept and these rights duly
regarded. The only curb placed on royalty is the prospect of a
civil war that is always threatening to break out--a remedy which
is incompatible with order and stability, two elements which are
indispensable to a free government.
Under the reign of Henry III., the feeling began to be
entertained that civil war is an evil guarantee; and other means
of preventing the violation of oaths were sought and dimly
apprehended. The charters which were obtained in this reign have
still as their chief aim the obtaining of new concessions and
promises; but efforts towards the formation of guarantees are
also apparent, and we may now trace the first attempts after a
legal and efficient constitution.
This reign must be regarded under the two aspects which have been
indicated. Our object at present being only to follow the history
of English Charters, we shall examine the facts of this period
only under the first point of view: when we come to treat of the
formation of the Parliament, we shall search there for the first
attempts after an organized constitution.
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First Charter Of Henry III.
Henry, who was but a child when his father died, found an able
protector in William, Earl of Pembroke, Marshal of England, who
was then commander of the royal armies. Pembroke had been a
faithful servant to King John, and transferred to the son that
friendship which he had given to the father. His only thought was
that Henry should succeed to the throne, and accordingly the
ceremony of coronation was performed at Gloucester, on the 28th
of October, 1216. Afterwards, in a council of barons assembled at
Bristol, on the 11th of November, he assumed the title of Regent,
and in order to render the cause of the young king popular he
granted a new charter in his--the king's--name. This charter
corresponded, with the exception of a few modifications, to that
given by King John. All the articles are omitted which refer to
the establishment of _escuages_, to the liberty of entering
and leaving the kingdom, to the preservation of forests and
dykes, and to the customs of the counties; moreover, the article
was suppressed which granted the right of resistance by armed
force in case the king should violate his promises. These
suppressions were not, however, definitely concluded; it is
stated in the charter that "the prelates and lords have
determined that these things shall remain open, until they have
more fully deliberated concerning them." [Footnote 20]
[Footnote 20: The original of this charter still exists in
the archives of Durham Cathedral.]
We see by this that the barons at that time showed themselves
less exacting than they had been during John's reign, or rather
that they no longer stipulated for any other interests than those
which personally affected themselves, neglecting those belonging
to other classes in the nation.
However this may be, this new charter produced the effect which
Pembroke had desired; it finally broke up the party which had
been formed in favour of Prince Louis of France, and strengthened
that of King Henry. The French, however, had still some adherents
left; the city of London especially persisted, with an obstinate
determination, in remaining faithful to them. But after numerous
reverses, they could hold out no longer; a treaty was concluded
between the two monarchs on the 11th of September, 1217; Louis
abandoned all pretensions to the crown, left England with the
remnant of his party, and Henry remained in quiet possession of
the sovereignty.
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The retreat of the French re-established harmony in the kingdom,
but in order to render the concord more certain and immediate two
more charters were granted. One was similar to the preceding;
only one remarkable modification is to be found, namely the
decision that the escuage should be levied as in the time of
Henry II. The other is known under the name of the Charta de
Forestâ, being the same that has been erroneously attributed to
King John: it has only one special aim, and contains nothing but
a series of regulations as to the extent and limits of the
forests belonging either to the nobility or to the crown.
Violation Of The Charters.
These charters were perpetually violated by the agents of power.
For several years these infractions did not occasion more than
partial complaints, but at length, in the year 1223, the
protestation became general and urgent. The council of barons was
summoned to London, where they demanded a new confirmation of the
charters. One of the councillors of the regency, William de
Briwere, ventured to oppose, saying that "all these liberties had
been extorted from the king;" but the Archbishop of Canterbury
smartly reproved him, telling him that if he loved the king, he
at all events would not venture to trouble the kingdom. The young
king promised that the charters should be henceforth observed,
and twelve knights were appointed in each county, who should
enquire what were, according to ancient usages, the rights of the
king and the liberties of his subjects.
Still, new anxieties soon excited new protestations. Since the
preceding reign the barons had held in trust most of the royal
castles and domains, and this was the principal guarantee they
had that their treaties should be observed. Suddenly their
possession of this guarantee was threatened: a bull of Pope
Honorius III., which declared Henry to be of age when he was
seventeen years old, ordered at the same time that all those who
had royal domains in their hands should restore them to the king.
This bull occasioned many suspicions as to Henry's intentions;
fears began to be entertained lest, having obtained his majority,
he should revoke the two charters to which he had sworn during
his minority. The king and his advisers perceived the necessity
of meeting this disturbed state of feeling, and on the 11th of
February, 1225, the king granted of his own accord a new
confirmation of the charters. As an acknowledgment of this they
granted him a fifteenth part of all the moveable property of the
kingdom as a subsidy.
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Revocation Of The Charters.
But this mutual accommodation did not last long. At the end of
two years, Henry, having obtained his true majority, revoked all
the charters, under the pretext that they had been granted when
he was not in the free possession of his body and of his seal;
"_cum nee sui corporis nee sigilli aliquam potestatem
habuerit_."
This revocation excited the most active discontent. The indignant
barons turned their rage against the man whom the public voice
accused as the author of these proceedings. This was Hubert de
Burgh, the grand justiciary and intimate counsellor of Henry.
This minister was from that time exposed to the most violent
attacks, and did not cease to be persecuted by the rage of his
opponents till at length, in 1232, the king yielded to the storm,
withdrew his favour from the obnoxious minister, and exiled him
from the court.
The murmurs of the barons were hardly appeased when Henry seemed
as if desirous of exciting them afresh, by again surrounding
himself with men who were hated by his subjects. This was a
foreigner, a Poitevin, Peter des Roches, Bishop of Winchester,
who became the king's favourite on the disgrace of Hubert de
Burgh. From that time, only foreigners were trusted with places
and favours by the prince. Not content with draining the coffers
of the State, they burdened the people with exactions,--their
insolence was perfectly unbridled. When the laws of England were
appealed to against them, "we are not English," they said, "we do
not know what is the purport of these laws." The indignant barons
urgently demanded justice, and in the year 1234, two years after
the disgrace of Hubert de Burgh, the king found himself compelled
to abandon Peter des Roches and to dismiss the foreigners from
his court. But shortly after, on his marriage with Eleanor,
daughter of the Count of Provence, the Provençals took the place
of the Poitevins, and in their turn drew on themselves the hatred
of the English barons.
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Conformation Of The Charters.
The irritation was general, when the king, who was in want of
money, assembled the barons at Westminster, in the month of
January, 1237, in order to demand of them a subsidy. The barons
answered him with a refusal and with menaces. Henry, alarmed at
this, had recourse to a remedy which had not yet lost its
efficiency, namely, a new confirmation of the charters. Hardly
was it granted before he obtained a subsidy of a thirtieth part
of all moveable property.
But his prodigality soon dissipated these feeble resources; again
was he obliged to resort to arbitrary and tyrannical means in
order to provide himself with money,--to exactions, to forced
loans, a new kind of impost which is then for the first time to
be met with in English history. It is remarkable, however, that
Henry never dared to levy any general tribute on the nation on
his own personal responsibility. Imposts that were really public
were never collected except under the professed sanction of a
council of the barons, and after the king had purchased their
good will by a new confirmation of the charters.
On the 13th of May, 1253, a sentence of excommunication was
solemnly pronounced against any person who should infringe the
royal charters; and at the close of the ceremony the prelates
threw down their extinguished but smoking tapers, exclaiming,
"May the soul of every one who incurs this sentence so stink and
be extinguished in hell!" And the king added, "So help me God! I
will keep these charters inviolate, as I am a man, as I am a
Christian, as I am a knight, and as I am a king crowned and
anointed!"
Again were the charters violated, and at length it was seen that
their repeated renewals were vain,--civil war was therefore
declared. The Earl of Leicester, at the head of a party of
barons, took up arms, at first with the intention of effectually
limiting, but afterwards of entirely usurping the royal
authority. This rebellion had now no longer for its aim to obtain
the renewal of charters, it tended also to found practical
guarantees of recognized rights. Of these I shall speak more in
detail when I come to consider the formation of the Parliament.
At present I will content myself with observing that the result
of the insurrection headed by the Earl of Leicester was a general
renewal of the charters, granted on the 14th of March, 1264,--a
kind of treaty of peace between the king and the barons, the
king's object being to obtain from them the enlargement of Prince
Edward, whom they retained as a hostage.
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Death Of King Henry III.
At length, three years after, on the 18th of November, 1267, some
time before the departure of Prince Edward for Palestine, the
king once more confirmed the charters in the Parliament assembled
at Marlborough. This confirmation was the last granted by Henry
III.; he died five years afterwards, on the 16th of November,
1272, having passed a long reign in making promises to be
afterwards violated, renewed, retracted, and then renewed again.
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Lecture IX.
Conclusion of the history of Charters under the reign of Edward I.
Political conflict follows civil war.
The king frequently violates the Charters, especially in the
matter of imposts.
The barons resist energetically.
Edward gives a definitive confirmation to the Charters
(1298-1301).
A bull of Clement V., solicited by Edward I., annuls the
Charters.
Its failure.
Death of Edward I. (July 7, 1307)
Reign Of King Edward I.
During the two preceding reigns the struggle between the feudal
aristocracy and the royal power has been really a civil war.
Under Edward I. the struggle continued, but the civil war ceased.
The barons did not protest in favour of their liberty with any
less resolute determination than they had hitherto manifested,
nor did the king defend his prerogatives less vigorously, but
neither party appealed to arms. This is the general history of
important struggles; they are begun by a trial of strength
between the two contending parties, and when the problem of
material forces has been resolved, the struggle changes its
direction and its theatre; it becomes concentrated into an
assembly, and the victorious party has no longer any other aim
than to legalize the victory already gained, and thus add a
constitutional validity to a material victory. Parliamentary
debates follow civil war. When the parliamentary debates have
lasted through a certain number of years, and have received the
sanction of time, the struggle may be regarded as terminated. To
this stage had matters arrived in the reign of Edward I.; the
resistance which was shewn during his reign only displayed itself
in Parliament; and, when it had lasted for thirty years, the
rights which it had tended to consecrate were for ever recognized
and tolerably respected.
At the time of Henry's death, his son Edward was in Palestine;
notwithstanding his absence, however, he was proclaimed king
without any opposition. The capacity which he had displayed in
the troubles of the kingdom, and the moderation which he had
often shewn, had gained for him general favour.
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Upon his return to England, he justified the expectations which
had been formed concerning him; many abuses were reformed, and a
better order was introduced into the administration of justice.
I shall pass rapidly over the first twenty-four years of this
reign. They were occupied with the conquest of Wales, and with
Edward's wars in Scotland, which were incessantly renewed by the
insurrections of the Scotch. During all this time, although we
hear of very frequent assemblies of Parliament, we scarcely hear
anything even of the charters. The administration of the kingdom,
which was vigorous and fair, excited few complaints, and public
attention was absorbed by the expeditions and victories of the
monarch.
Exactions Of Edward I.
Nevertheless the necessity of frequently raising subsidies, in
order to keep up his numerous armies, soon obliged Edward to
adopt violent and arbitrary measures. He limited the quantity of
wool which might be exported, and placed on every sack of wool,
that was exported, a duty of forty shillings, that is to say,
more than a third of its value; all the rest of the wool and
hides, that were ready for shipping, were confiscated to the
service of the king. He demanded of each sheriff two thousand
quarters of wheat, and as many of oats, authorising them to take
the required wheat or oats wherever they could lay their hands
upon them; besides which he caused a large quantity of cattle to
be seized. Lastly, showing no regard for feudal right, he imposed
on every landed proprietor, having a larger revenue than twenty
pounds sterling, whatever might be the nature of his domains, the
obligation to attend him in the war which he was about to
prosecute in France.
The dissatisfaction among the people and barons was general, and
it was soon redoubled, in consequence of a fraud to which Edward
did not hesitate to resort in raising a subsidy, which had been
granted to him by the Parliament, held at Saint Edmundsbury in
the preceding year (1296.) Instead of contenting himself with the
eighth [Footnote 21] of the moveable property, which had been
granted to him, he assumed that the impost was much larger, and
obliged his subjects to pay it.
[Footnote 21: An eighth, a tenth, &c. was a money tax levied
on counties, cities, boroughs, or other towns, and so called
because it was the eighth, tenth, &c. of the sum at which
these counties, towns, &c. had been anciently valued under
the reign of William I. Thus each town knew what it had to
contribute. The valuations were contained in the Doomsday
Book. (_Parliam. Hist._, vol. i. p. 83.)]
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Quarrels With The Nobles.
In the midst of the excitement caused by these measures, Edward
convoked his barons at Salisbury to arrange with them for the
departure and march of his armies. He had intended to send one of
his armies to Gascony, and to lead the other into Flanders,
himself taking the command of the latter in person, while the
former was to march under the direction of Humphrey Bohun, Earl
of Hereford, and of Roger Bigod, Earl of Norfolk, the one the
Constable, the other the Lord Marshal of England. These two men,
who were vigorous champions of the national cause, refused to
accept the mission which was offered to them. The object of their
refusal was to compel the king to purchase their compliance by a
renewed promise to confirm the charters, a promise which he had
already made, but which he seemed in no haste to carry out. When
Edward gave them the order to repair to Gascony, they answered
that they were ready to follow him to Flanders, but that the
character of their offices would not allow them to separate
themselves from his person. "You shall go," said the king,
"whether I go with you or not." Hereford replied that he would
not go; upon which Edward exclaimed, "By the everlasting God, sir
earl, you shall either go or hang." "By the everlasting God, sir
king," replied Hereford, coolly, "I will neither go nor hang."
Edward did not feel himself sufficiently powerful to punish this
haughty reply; and, fearing lest he should find the same spirit
of resistance in all the barons, he abandoned his intention of
sending an army into Gascony. The two earls quitted Salisbury
with their retinue, and the king, after he had placed their
offices in the hands of two other lords, prepared to embark for
Flanders.
But before his departure, on the 12th of August, 1297, he
addressed to all the sheriffs of the kingdom a singular kind of
manifesto, one which was, perhaps, unique at that period, which
he intended should be read before the assembled people. In it the
king explained the causes of his quarrel with the two earls,
excused the exactions he had made by pleading the necessities of
war, and desired his subjects to maintain peace and order. This
proclamation, or, perhaps, rather this appeal to the public,
shows how greatly power already felt itself dependent upon the
support of opinion, and constrained in some way to acknowledge a
responsibility to it.
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First Charter Of Edward I.
To this apology for his conduct, which the king put forth, the
Earls of Norfolk and Hereford replied by another manifesto, which
was presented to the king at Winchelsea, in which they recounted
all the public wrongs and demanded redress. Edward answered that
his council was dispersed, and that he could not attend to these
protests till his return, and he accordingly went on his
expedition, leaving his son regent of the kingdom.
Upon this the two earls, after having published their manifesto
and the king's reply to it, presented themselves before the
treasurers and barons of the exchequer, and forbade them, as they
would dread to excite a civil war, to collect, for the king, the
tribute of one-eighth, which had been granted by the Parliament
at Saint Edmundsbury, affirming that the granting of it had been
illegal.
In order to bring these differences to a close, the prince-regent
assembled a Parliament in London, on the 10th of October, 1297.
The two earls were invited to take their place in the assembly,
and came escorted by five hundred horse and a body of infantry,
and would not consent to enter London until they had obtained
permission to place a guard at each gate. They demanded a general
confirmation of the charters, and, moreover, asked that several
additions should be made to them. The prince-regent subscribed to
all their demands, and the act of confirmation signed by him was
immediately sent to the king, who was at Ghent. Edward, after he
had taken three days to consider the matter, sanctioned the
confirmation, [Footnote 22] and granted an amnesty to the two
earls, who, satisfied with this exhibition of generosity on the
part of the king, went, subsequently, to Scotland to assist him
in the war which he was carrying on there.
[Footnote 22: A copy of this charter will be found, in a
note, at the end of this lecture. It is of all others the
most explicit in favour of public liberties. It was given at
Ghent, Nov, 5, 1298; the original is preserved in the British
Museum.]
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Confirmation Of The Charter.
When Edward returned again to England, the barons demanded that
he, in his own person, should confirm the charters which had been
granted to them. The king evaded these demands, and retired to
Windsor. Thither the barons followed him to renew their
importunities and their complaints. The king excused himself on
the ground of ill-health, and told them to return to London,
where he would send them an answer. This answer was a new
confirmation of the charters, but contained one restrictive
clause: _salvo jure coronæ nostræ_. At the public reading of
the charter, which was made at St. Paul's Cathedral, the assembly
hearing how all their rights were definitely confirmed in it,
made the most lively manifestations of joy; but hardly had the
reserve clause been pronounced, when violent murmurs were raised
on all sides; the people immediately left the church, and the
angry barons retired to their domains, resolved once more to
appeal to force.
Edward perceived that he had raised a storm of opinion against
him, and, after innumerable delays and evasions, and complaining
haughtily that he was too closely pressed, he, at length, decided
upon convoking a Parliament on the 6th of March, 1300, and
confirmed without any restriction all the concessions which he
had already made; he even added new guarantees, which were
contained in articles called _articuli super chartas_. The
chief provisions contained in these additions consist in a
regulation that the charters should be publicly read in the
county courts four times every year, and that there should be
elected in each county court, from among the knights of the
court, three justices, sworn to receive all complaints of
infractions of the charters, and to pronounce penalties against
the offenders.
Lastly, in the following year, 1301, at a Parliament held at
Lincoln, Edward, after having received its approval to a new
limitation of the forests, which had been for a long time
demanded and at length concluded, yet once more confirmed the
charters.
From the time when this charter of confirmation was granted, the
rights which it proclaimed were definitively recognized. The open
and exterior struggle ceased at this period, but the secret and
concealed did not. Edward endured impatiently the yoke which he
had taken upon himself, and endeavoured to release himself from
it. He did not, however, dare to raise the mask, but concealed
all his efforts.
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Towards the close of the year 1304, he petitioned Pope Clement V.
to release him from his oaths. The pontiff complied with his
wishes, and by a bull, dated January 5, 1305, declared that all
the promises and concessions made by Edward were _abrogated,
null and void_. [Footnote 23]
[Footnote 23: A copy of this bull will be found in a note at
the end of this lecture.]
This prince did not dare, as John had formerly done, to take
advantage of this bull, and he therefore kept it quite secret;
but he still had recourse to secret manœuvres. He began by a
series of vile persecutions of those who had headed the
confederation of the barons, and especially of the Earl of
Norfolk and the Archbishop of Canterbury. These two men, though
they were in former years so boldly courageous, now yielded with
a feebleness that can only be excused by their great age. But it
was too late; the authority of the king could no longer effect
anything against the charters, and the feebleness even of their
former defenders could not add to the power of royalty. Death
soon after put a stop to all Edward's efforts to carry out the
designs he had formed: it surprised him suddenly while he was in
Scotland, on the 7th of July, 1307. From that period the
charters, notwithstanding all attacks made upon them, have
remained as the immoveable basis of public right in England.
Statute Of Edward I.
_Statute issued by Edward I., in confirmation of the
Charters. November_ 5, 1297.
Edward, by the grace of God, King of England, Lord of Ireland,
and Duke of Guyan, to all those that these present letters shall
hear or see, greeting. Know ye that we, to the honour of God and
of Holy Church, and to the profit of our realm, have granted
that, for us and for our heirs, the charter of liberties and the
charter of the forest, which were made by common consent of all
the realm, in the time of King Henry our father, shall be kept in
every point without breach. And we will that the same charters
shall be sent under our seal, as well to our justices of the
forest as to others, and to all sheriffs of shires, and to all
our other officers, and to all our cities throughout the realm,
together with our writs in the which it shall be contained; that
they cause the aforesaid charters to be published, and declare to
the people that we have confirmed them in all points; and that
our justices, sheriffs, and mayors, and other ministers, which,
under us, have the laws of our land to guide, shall allow the
said charters, pleaded before them in judgment, in all their
points, that is to wit, the Great Charter as the common law, and
the charter of the forest for the wealth of our realm.
{331}
And we will that if any judgment be given from henceforth
contrary to the points on the charters aforesaid by the justices,
or by any other our ministers, that hold pleas before them
against the points of the charters, it shall be undone and holden
for nought.
And we will that the same charters shall be sent, under our seal,
to cathedral churches throughout our realm, there to remain, and
shall be read before the people two times by the year.
And all archbishops and bishops shall pronounce the sentence of
excommunication against all those that by word, deed, or counsel
do contrary to the foresaid charters, or that in any point break,
or undo them. And that the said curses be twice a year denounced
and published, by the prelates aforesaid. And if the same
prelates, or any of them, be remiss in the denunciation of the
said sentences, the Archbishops of Canterbury and York, for the
time being, shall compel and distrain them to the execution of
their duties in form aforesaid:
And foresomuch as divers people of our realm are in fear that the
aids and tasks which they have given us beforetime towards our
wars, and other business, of their own grant and goodwill,
howsoever they were made, might turn to a bondage to them and
their heirs, because they might be at another time found in the
Rolls, and likewise for the prises taken throughout the realm by
our ministers, we have granted for us and for our heirs, that we
will not draw such aids, tasks, nor prises into a custom, for any
thing that hath been done heretofore, be it by Roll or any other
precedent that may be found.
Moreover we have granted for us and for our heirs, as well to
archbishops, bishops, abbots, priors, and other folk of Holy
Church, as also to earls, barons, and all the commonality of the
land, that for no business for henceforth we shall take such
manner of aids, tasks, or prises, but by the common assent of the
realm, and for the common profit thereof, saving the ancient aids
and prises due and accustomed.
And foresomuch as the more part of the commonality of this realm
find themselves sore grieved with the maletent of wool, that is
to wit, a toll of forty shillings for every sack of wool, and
have made petition for us to release the same; we, at their
requests, have clearly released it, and have granted, for us and
our heirs, that we shall not take such things without their
common consent and goodwill; saving to us and our heirs the
custom of wools, skins, and leather, granted before by the
commonality aforesaid. In witness of which things we have caused
these our letters to be made patents. Witness, Edward, our son,
at London, the 10th day of October, the five and twentieth year
of our reign.
And be it remembered that this same charter, in the same terms,
word for word, was sealed in Flanders, under the king's great
seal, that is to say, at Ghent, the 5th day of November, in the
twenty-fifth year of the reign of our aforesaid lord the king,
and sent into England.
{332}
Bull Of Pope Clement V.
_Letter of Clement V. to Edward I._
Clement, bishop, servant of God's servants, to our well-beloved
son in Jesus Christ, Edward, illustrious king of England, health
and apostolic benediction:
The purity of thy loyal devotion, which is and has been uniform
and conspicuous in thy unwearied attention to the desires of the
Holy See, well deserves that the Holy See itself should remove
all that is hostile to thy welfare, should suppress whatever
displeases thee, and should ever secure for thee the enjoyment of
all good.
We have learnt recently, by an account worthy of credit, that
lately, when thou wert in Flanders, and even before thy arrival
there, when thy efforts were being used to maintain thy
prerogatives against thy enemies and rivals, that then certain
magnates and nobles of thy kingdom, and other persons who are
hostile to thy authority, taking advantage of the opportunity
when thou wert occupied in fighting against those in another
kingdom, who were opposed to thy rule, threatened that, unless
thou wouldst make certain concessions of a diverse and unjust
character, both relating to forest and other rights, which have,
from time immemorial, belonged to the crown, and the dignity of
thy rank, (which also, previously, they had importunately sought
before thy departure from the said kingdom,) they would conspire
against thee, would excite the people, and disseminate various
scandals:
And that thou, prudently treating their conspiracy, and wishing
then to avoid the dangers that were pressing upon thee, didst
grant these concessions, more by constraint than with thy free
consent:
And that, finally, on thy return to thy kingdom, the wars not
having then terminated, the said magnates, and others, through
their importunate and presumptuous suggestions, did obtain from
thee the renewal of these concessions; and that they have,
moreover, extorted royal orders to the effect that in every
cathedral church in the kingdom there should be pronounced, twice
every year, a sentence of excommunication against those who
should violate the said concessions, as is expounded formally and
in detail in the said commands, under the authority of the royal
seal:
As, therefore, the Holy Apostolic See regards thy kingdom
favourably, even above all other kingdoms, and entertains for
thee, personally, the most friendly feelings, and recognizes that
all these concessions have been made and extorted at the expense
of thine honour, and to the detriment of thy royal sovereignty:
So by the apostolic authority, and by our full power, we revoke,
annul, and dissolve the said concessions and all their effects,
and all that can result from them, as also the sentences of
excommunication which have or may be pronounced in order to their
observance, either in the said churches or elsewhere, we declare
them abolished, null, and without authority; annulling also the
orders and letters to which they have given occasion; we decree
for thee and for thy successors on the throne of England, that ye
neither are nor ever shall be bound to observe them, even
although ye may have engaged yourselves so by oath; besides that,
as thou hast assured us, at the time when thy coronation was
solemnized, thou didst swear to maintain the honours and the
prerogatives of thy crown; so that, if even thou hast bound
thyself to any penalty on this account, we absolve thee
therefrom, as well as from the accusation of perjury if it should
be made against thee.
{333}
To ensure the execution of our desires, we expressly forbid our
venerable brethren, the archbishops, bishops, and others,
ecclesiastical as well as secular, who are settled in thy
kingdom, to do or attempt anything against the tenor of the
present annulment, abrogation, revocation, and abolition, under
penalty, as regards the archbishops and bishops, of suspension
from their offices and benefices; and, if they persist for one
month, under penalty of excommunication, which shall be, for this
sole reason, pronounced against them, and all who are accessory
to their designs.
We declare beforehand that every attempt against our present
decree is null and void.
If, however, there is any right belonging to the inhabitants of
the said kingdom, which they possess by virtue of previous
letters and concessions so made by thee, we mean not to withdraw
these from them.
It shall not be allowed to any one absolutely to violate in any
particular, or only to contradict the present act of abrogation,
revocation, annulment, and abolition.
If any one dare to allow this in himself let him know that he
incurs the indignation of the Almighty, and of the blessed
apostles Peter and Paul. (Rymer, _Acta Publica_, vol. ii.,
p. 372.)
{334}
Lecture X.
Necessity of inquiring into the political sense of the word
_representation_ at the time when a representative
government began to be formed.
Mistaken theories on this subject.
Rousseau's theory, which denies representation and insists on
individual sovereignty.
Theories of writers who attempt to reconcile the principle of
representation with that of individual sovereignty.
Erroneousness of the idea that the sovereignty belongs to the
majority.
True idea of representation.
Meaning Of Representation.
We have studied the primitive institutions of the Anglo-Norman
government; we have traced the successive steps in the history of
the charters, and of the struggle which was carried on by the
barons to secure their confirmation by the royal power; but up to
this point we have not seen anything of a representative
government. We have, however, now arrived at the point when this
government began to appear. Our attention is now to be called to
the creation of a Parliament, that is to say, to the birth of a
representative system.
As we approach this great historical question, a question in
political philosophy presents itself before us:--what is the true
and legitimate sense of this word _representation_ as
applied to the government of a community? It is not for us to
pass over this question without noticing it: the history of
political institutions is now no longer a bare recital of facts,
--it must rest on principles;--it neither deserves the name nor
possesses the authority of science, till it has sounded and
placed in clear light the primary foundation in reason, from
which the facts which it collects trace their origin. Political
history cannot now be otherwise than philosophical; this is
demanded by the stage of human culture which the mind of society
has reached.
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Rousseau's Theory.
Let us now suppose a representative government, aristocratic or
democratic, monarchical or republican, completely established and
in action: if any one were to ask a citizen of such a
State,--supposing him to be a man of good sense but unversed in
political speculations,--"Why do you elect such a deputy?" he
would answer, "Because in the consideration of public affairs, I
believe him to be more capable than any other of sustaining the
cause to which my opinions, my feelings, my interests, are
allied."
Now bring this man before the political theorists who have
treated of representation; let his good sense be brought into
contact with their systems;--truth would soon be perplexed and
obscured by the falsities of science.
One learned gentleman would thus address him:--"What have you
done? You have supplied yourself with a representative,--you are
no longer free,--you are no longer in truth a citizen of a free
State. Liberty means a man's sovereignty over himself, the right
to be governed only by his individual will. And sovereignty
cannot be represented, just because the will cannot be
represented--it is either the same or something entirely
different, there is no medium. Who has certified you that your
representative will always and on all occasions have the same
will as yourself? He will certainly not be so accommodating. So
far then from your being represented, you have surrendered to him
your will, your sovereignty, your liberty. You have given
yourself up not to a representative, but to a master. And why?
Because you are an indolent, grasping, cowardly individual, who
pay far more regard to your own personal concerns than to public
matters, who will rather pay for soldiers than go to war, who
will rather appoint deputies and stay at home than go yourself
and share in the deliberations of a national council."
This is the way in which Rousseau conceives of representation: he
considers that it is delusive and impossible, and that every
representative government is in its own nature illegitimate.
[Footnote 24]
[Footnote 24: _Du Contrat Social_, b. iii. c. xv.]
Theory Of Individual Sovereignty.
Let the same citizen be addressed by other doctors who,
entertaining the same ideas of sovereignty and liberty as those
held by Rousseau, and nevertheless believing in representation,
endeavour to harmonize these different conceptions. They might
say to him: "Most true; sovereignty resides in yourself and in
yourself alone; but you may delegate without abandoning it;--you
do so every day; to your steward you commit the management of
your lands, to your physician the care of your health, and you
place your legal affairs into the hands of your solicitor.
{336}
Life is vast and complicated, your personal control is
insufficient for all its activity and demands; everywhere you
avail yourself of others in the exercise of your own power--you
employ servants. This is only a new application of the same
principle--you employ one servant more. If he swerve from your
directions, if he fail in giving expression to your will, we
grant that he abuses his trust. When you give him your suffrage,
you do not surrender to him your liberty--he on the other hand in
receiving them has renounced his own. The mandate which he holds
from you makes him a slave while it makes you free. On this
condition representation becomes legitimate, for the person
represented does not cease to be sovereign."
What will the citizen say to this? He must make his choice: such,
he is told, is the nature of representation that, in one way or
another, whenever he appoints a deputy he makes some one a slave,
either his representative or himself. This was far from his
intention; wishing to live at once in freedom and in security, he
connected himself, acting in concert with his fellow citizens,
with a man whom he regarded free as well as himself, and whom he
judged capable of defending his liberty and ensuring his
tranquillity; when he gave this man his suffrage he did not
believe he was either enslaving himself or the object of his
choice;--he thought to enter into a relation of alliance with
him, not of sovereignty or of servitude;--he only did what is
virtually done every day by men, who, having interests which are
identical and not being able to manage them individually and
directly, entrust them to that individual among their number who
appears to be most capable of efficiently conducting them, thus
shewing by their confidence their respect for his superiority,
and preserving at the same time the right to judge, by his
conduct, if the superiority is real and the confidence deserved.
Regarded in itself, this is the fact of election,--neither more
nor less. What then is to be said of the theory which comes to
denaturalize the fact, and to give it an import and significance
which it never had in its origin either in the intention or the
reason of the parties interested.
{337}
Consequences Of These Theories.
The source of all this confusion is to be found in a wrong
apprehension of the word _representation_; and the word has
been misunderstood, because false ideas have been entertained
regarding sovereignty and liberty. We must therefore revert to
earlier stages of the enquiry.
The fundamental principle of the philosophies which we oppose is,
that every man is his own absolute master, that the only
legitimate law for him is his individual will; at no time had any
one, be his credentials what they may, any right over him, if he
does not give his consent to it. Starting from this principle,
Rousseau saw, and saw truly, that as the will is a purely
individual fact, so all representation of the will is impossible.
Assuming that the will is the sole source of the legitimate power
which a man exercises over himself, it follows that no man can
transmit this power to another, for he cannot determine that his
will shall be conveyed to another man and cease to reside in
himself. He cannot confer a power which would certainly involve
the risk of his being obliged to obey another will than his own;
for on this very account, if on no other, that power would be
illegitimate. All thought of representation, therefore, is a
delusion, and all power founded on representation is tyrannical,
for a man only remains free so long as he obeys no law but that
of his own will.
The conclusion is inevitable,--Rousseau's only fault was that he
did not push it far enough. Going as far as this would lead him,
he would have entirely abstained from seeking after the best
government, he would have condemned all constitutions--he would
have affirmed the illegitimacy of all law and all power. In fact,
how does it concern me that a law emanated yesterday from my
will, if to-day my will has changed? Yesterday my will was the
only source of legitimacy for the law; why then should the law
remain legitimate when it is no longer sanctioned by my will? Can
I not will more than once? Does my will exhaust its rights by a
single act? And because it is my only master, must I, therefore,
submit slavishly to laws from which this master who has made them
bids me to enfranchise myself? This was not overlooked by
Rousseau: "It is absurd," he says, "to suppose that the will
should fetter itself with chains for the future." [Footnote 25]
[Footnote 25: _Du Contrat Social_, b. ii. c. i.]
{338}
Theory Of Reconciliation.
This then is the consequence of the principle when fairly carried
out. Rousseau did not see this, or did not dare to see it; it is
destructive not only of all government, but also of all society.
It imposes upon man an absolute and continued isolation, does not
allow him to contract any obligations, or to bind himself by any
law, and brings an element of dissolution even into the bosom of
the individual himself, who can no more bind himself to his own
nature than to any other person: for his past will, that is to
say, what he no longer wills, has no more right over him than the
will of a stranger.
Rousseau was at least sometimes doubtful as to the application of
his principle, and he only lost sight of it when, if he had
remained faithful to it, he would have been obliged to sacrifice
all else to it. Minds less powerful than his, and therefore less
able to cast off the yoke of social necessities, have believed
that they could preserve the principle without admitting all its
consequences. Like Rousseau, they have admitted that, every man
being the sole master of himself, no law can be binding upon him
which is not conformed to his will,--an axiom which has become
popular under this form: _No one is bound to obey laws to which
he has not given his consent_. Reasoning with strict logical
rigour, Rousseau would have perceived that this axiom did not
leave any standing place for organized power. He had, at all
events, clearly shown that all representation of power was
condemned by it as illegitimate and delusive. Other political
theorists have undertaken to deduce from it representation
itself, and all the powers of which it is the basis. They have
proceeded in some such manner as the following:--
They have placed themselves fearlessly in presence of existing
facts, determined to regulate them according to their convenience
by imposing alternately upon the facts a principle which they
reject, and upon this principle consequences which it will not
naturally admit. Given--society to maintain and government to
construct, without ceasing to affirm that the will of man is the
source of legitimacy for power. It is required that this work
should follow from this principle--they determine that it shall.
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Representation Of Wills.
But an impossibility confronts them at the outset; how to avoid
imposing upon men any law without their consent. How shall all
individual wills be consulted regarding each particular law?
Rousseau did not hesitate; he pronounced great States to be
illegitimate, and that it was necessary to divide society into
small republics in order that, once at least, the will of each
citizen might give its consent to the law. Even if that could be
done, the problem would be far from being solved, so that the
principle should appear fully exemplified, whatever tests might
be applied to it. But still an impossibility had at length
disappeared, and logical consistency was preserved. The political
theorists of whom we are speaking, far more timid than Rousseau,
have not dared to protest against the existence of large
communities, but they have not feared to get over the
impossibility by the aid of a new inconsistency. While they do
not allow to individuals the right only to obey laws conformed to
their will, they substitute for it the right only to obey laws
which emanate from a power which has been constituted by their
will; they have thought to pay respect to the principle, by
basing the legitimacy of the law on the election of the
legislative power. Thus the theory of representation, that is, of
the representation of wills, has re-appeared, in spite of
Rousseau's logical reasonings: for, so long as the will of man is
recognized as the only legitimate sovereign for him, if the
creation of a power be attempted by means of representation, the
kind of representation that will really be attempted will be the
representation of wills.
But this theory must be carried out, and reduced to practice.
Now, after having annulled, so far as the creation of the law is
concerned, so many individual wills, the least that could be
expected is that all should be called upon to give their voice in
the nomination of those who shall be commissioned to make laws.
Universal suffrage was therefore the inevitable consequence of
the principle already so violently perverted; it has been
sometimes professed, but never actually adopted. Here then once
more a new impossibility has occasioned a new inconsistency.
Nowhere has the right of voting for the legislative power
belonged to more than a fragment of society; women, at least,
have always been excluded from it. Thus then, while the will has
been recognized as the sole legitimate sovereign in every
individual, a large number of individuals have not even taken any
part in the creation of that factitious sovereignty which
representation has given to all.
{340}
Theory Of Executive Power.
We might pursue these investigations, and we should find at every
step some new deviation from the principle which, it is
pretended, is always to be respected as forming the abiding basis
on which the formation of governments depends. The most
remarkable of these deviations is certainly the supremacy which
is everywhere attributed to the majority over the minority. Who
does not see that, when the principle of the absolute sovereignty
of the individual over himself has been once admitted, this
supremacy is entirely false? And if false, how is society
possible?
I have said enough, I think, to shew that this alleged principle
is powerless for the legitimate creation of the government of
society, and that it must incessantly yield to necessity, and
finally vanish altogether. I will now consider it from another
point of view. I will suppose that the work has been
accomplished, that a government has been constructed; and I
inquire what will be the influence of this principle upon the
government which, it is affirmed, is derived from it, and which
has only been created by the suffrance of numerous
inconsistencies. What right will the government have over
individuals, by whose will alone, it is said, it possesses any
legitimacy? Here, as elsewhere, it is necessary that the
principle should again be referred to; it must determine the
right of the government when it has been established, just as it
must have guided its formation.
Two systems present themselves. According to the one, the
individual wills which have created a legislative power have not
thereby lost their inherent sovereignty; they have provided
themselves with servants and not with masters; it is true they
have created this power in order that it may command, but on
condition that it shall obey. In itself, and in relation to those
from whom it holds its commission, it is nothing but a kind of
executive power, appointed to put in form the laws which it has
received, and constantly subordinated to that other power which
remains diffused among the individuals with whom it originally
resided, and which, although without form and without voice, is
nevertheless the only absolute and permanently legitimate
authority. In fact, there is a sovereign, which not only does not
govern, but which obeys, while there is a government which
commands, but is not sovereign.
{341}
Theory Of Despotic Power.
According to the other system, those individual wills which have
created the legislative and central power are, so to speak,
absorbed into it; they have abdicated in favour of the power
which represents them; and it represents them in the whole extent
of their inherent sovereignty. This is, obviously, pure and
unmixed despotism, rigorously deduced from the principle that
wills are to be represented in government, and which has in fact
been assumed by all governments which have emanated from this
source. "_The elect of the sovereign is itself sovereign:_"
such was the declaration both of the Convention and of Napoleon;
hence the destruction of all responsibility in power, and of all
the rights belonging to citizens. This certainly was not the
consummation which the friends of liberty demanded of
representation.
The first of these systems is the most plausible, and still
possesses many conscientious advocates. This system is so far
good, inasmuch as it ignores an inherent right to sovereignty as
the possession of any government; its error is, that this right
is allowed to exist elsewhere. I do not here examine it in
relation to any other principle than that from which it professes
to be derived; and if the individual wills which have created the
legislative power are bound to obey its laws, what becomes of
this principle? Every man, you say, is free only in so far as he
is left master of his own will. Those then alone will be free in
your government, who, by a happy coincidence of sentiment with
their legislators, approve the laws as thoroughly as if they had
made them themselves; for whoever is bound to obey laws, whether
he approve them or not, immediately loses his sovereignty over
himself, his liberty. And if he has a right to disobey, if the
will of the legislative power is not authoritative over the wills
which have created it, what becomes of this power? What becomes
of government? What becomes of society?
It must seem a somewhat superfluous expenditure of logical force
to appeal so often to a principle while power is being gradually
constructed, when the same principle, if once more appealed to
when the business is apparently completed, is found to give a
death-blow to this very power. Such, however, must be the result:
for the principle has disavowed, from the outset, the power which
was to be deduced from it.
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Fallacy Of The Principle
If, then, we find that this principle, consistently pursued, can
only result in the dissolution of society or the formation of a
tyranny,--if it can issue in no legitimate power whatever,--if
it finally lands us, after our inquiries after a free and
reasonable political order, in the alternative of impossibility
or inconsistency,--must we not most evidently seek for the evil
in the principle itself from which we started?
It is not true, then, that man is the absolute master of
himself--that his will is the only legitimate law--that no one,
at any time, under any circumstances, has any right over him
unless he has consented thereto. When philosophers have
considered man in himself, apart from all connection with his
fellows, only regarding his active life in its relation to his
own understanding, they have never thought of declaring that his
will is for him the only legitimate law, or, which amounts to the
same thing, that every action is just and reasonable merely
because it is voluntary. All have recognized that a certain law
which is distinct from the individual will encircles him,--a law
which is called either reason, morality, or truth, and from which
he cannot separate his conduct without making the exercise of his
liberty either absurd or criminal. All systems, on whatever
principles they may found the laws of morality and
reason,--whether they speak of interest, feeling, general
consent, or duty,--whether they are spiritualistic or
materialistic in their origin,--whether they emanate from
sceptics or from dogmatists,--all admit that some acts are
reasonable and others unreasonable, some just and others unjust,
and that if the individual does in fact remain free to act either
to or in violation of reason, this liberty does not constitute
any right, or cause any act which is in itself absurd or criminal
to cease to be so because it has been performed voluntarily.
More than this: as soon as an individual prepared to act demands
from his understanding some enlightenment for his liberty, he
perceives the law which enjoins upon him that which is in itself
true, and at the same time he recognizes that this law is not the
product of his own individual nature, and that, by the volitions
of his will, he can neither disown nor change it.
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His will remains free to obey or to disobey his reason: but his
reason, in its turn, remains independent of his will, and
necessarily judges, according to the law which it has
recognized, the will which revolts against it.
Of Will-Representation.
Thus, speaking philosophically and rightfully, the individual
considered in himself, may not dispose of himself arbitrarily and
according to his solitary will. Laws which are obligatory are not
created or imposed upon him by his will. He receives them from a
higher source; they come to him from a sphere that is above the
region of his liberty,--from a sphere where liberty is
not,--where the question to be considered is not whether a thing
is willed or not willed, but whether it is true or false, just or
unjust, conformable or contrary to reason. When these laws
descend from this sublime sphere in order to enter into that of
the material world, they are constrained to pass through the
region where liberty, which exists on the confines of these two
worlds, has its sway; and here it is that the question arises
whether the free will of the individual will or will not conform
to the laws of this sovereign reason. But in whatever way this
question is decided, sovereignty does not forsake reason and
attach itself to will. In no possible case can will of itself
confer upon the acts which it produces the character of
legitimacy; they have, or they have not this characteristic,
according as they are or are not conformed to reason, justice,
and truth, from which alone legitimate power can spring.
To express the same thought in a different way,--man has not an
absolute power over himself in virtue of his will: as a moral and
reasonable being he is a subject,--subject to laws which he did
not himself make, but which have a rightful authority over him,
although, as a free agent, he has the power to refuse them, not
his consent but his obedience.
If we look at all philosophical systems in their basis,--if we
rise above the differences that may exist in their forms,--we
shall be convinced that no one is to be found which has not
admitted the principle which I have now expressed. How then does
it arise that philosophers, when they leave man regarded as an
isolated being, and look at him in his relations with other men,
have started from a principle which they would not have dared to
adopt as the foundation of their moral doctrines, but which has
served as a basis to their political theories?
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How comes it that the will which, in the solitary individual, has
never been raised to the position of an absolute and solely
legitimate sovereign, does yet suddenly find itself invested with
this title and its corresponding rights, as soon as the
individual is brought into the presence of other individuals of
like nature with himself?
Province Of The Will.
The fact may be thus represented: In that commingling and
collision of individuals which we call society, the philosophers
of whom we speak have pertinaciously adhered to that which does
in fact first present itself, namely, the commingling and
collision of individual wills. A true instinct, unrecognized
perhaps by them, has suddenly reminded them that the will is not,
in itself, and by its essential constitution, the legitimate
sovereign of man. If it does not occupy this position in the
individual and so far as he is himself concerned, how should it
be elevated to such a rank when another individual is concerned?
How should that which, in its own acts, has nothing that is
legitimate in the view of reason, when it says _I
will_,--how should it have any right to impose its will as the
law for another person? No will, merely because it is a will, has
any authority over another will:--this is evident; any opposite
assumption is revolting; it is brute force, sheer despotism.
How shall these perplexities be removed? How shall individual
wills be made to co-operate without conflicting, to shelter
without overpowering one another? Philosophers have only seen one
method of accomplishing this, and that is to attribute to each
will an absolute sovereignty, an entire independence; they have
declared that every individual is the absolute master of his own
person; that is to say, they have elevated all individual wills
to the rank and position of sovereignty. Accordingly the will
which, in man considered apart and by himself, possesses no
sovereign and legitimate power, has been invested with it as soon
as man is viewed in his relations with other men. Thus the reply,
_my will does not consent_, which, within the individual
himself, cannot establish any right if it be contrary to the laws
of the reason, has become, outside of the individual, the
foundation of right, the ever-sufficient and finally
authoritative reason.
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Argument From Parental Authority.
Is it necessary that we should prove that a principle, which, in
its application to man considered as an individual, is evidently
false and destructive of all morality and of all law, is equally
so in the relations between man and man; and that in the one case
as in the other, the legitimacy of law and of power, that is to
say, of obedience or of resistance, is derived from quite another
source than the will?--Two facts shall serve us in the stead of
arguments:--
Who has ever denied the legitimacy of parental authority? it has
its limits, and may be carried to excess like every other human
power; but has it ever been alleged that it is illegitimate so
often as the obedience of the child, whom it seeks to control, is
not voluntary? An instinctive sense of the truth has in this case
prevented any one from even maintaining such an absurdity.
Nevertheless the will of the child, considered in itself, does
not at all differ from that of the fully-grown man; it is of the
same nature, and it is equally precious to the individual. Here
then is an illustration of legitimate power in cases in which
obedience to it is not voluntary. And from whence does this power
borrow its legitimacy? evidently from the superiority of the
father's reason to that of the child, a superiority which
indicates the position which the father is called to occupy by a
law above him, and which establishes his right to assume that
position. The rightful sway here does not belong to the will of
the child, who wants the reason that is necessary for such sway,
nor even does it belong to the mere will of the father, for will
can never vindicate right from itself; it belongs to reason, and
to him who possesses it. The mission which is given by God to the
father to fulfil, is that he should teach his child what reason
teaches him, and should bend his will to the claims of reason,
until he shall be able to control his will for himself. The
legitimacy of parental power is derived from the fact of this
mission: this establishes its right and also determines its
limits, for the father has no right to impose upon the child any
laws except such as are just and reasonable. Hence the rules and
processes of a judicious education, that is to say, of the
legitimate exercise of parental power; but the principle of right
is in the mission and the reason of the parent, and not in either
of the wills which are here brought into relation one to the
other.
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Reason The Source Of Power.
Let me remind you of another fact. When any man is well known to
be mad or idiotic, it is customary to deprive him of his full
liberty. On what grounds? has his will perished? if it is the
principle of legitimate power, is it not always there to exercise
it? The will is still there; but the true sovereign of the man,
the lord of the will itself, reasoning intelligence, has departed
from the individual. It must therefore be supplied to him from
another source,--a reason external to himself must govern him,
since his own has become incapable of controlling his will.
What is true concerning the child and the imbecile is true of man
in general: the right to power is always derived from reason,
never from will. No one has a right to impose a law because he
wills it; no one has a right to refuse submission to it because
his will is opposed to it;--the legitimacy of power rests in the
conformity of its laws to the eternal reason--not in the will of
the man who exercises, nor of him who submits to power.
If therefore philosophers desired to give a principle of
legitimacy to power, and to restrain it within the limits of
right, instead of raising all individual wills to the position of
sovereigns and of rivals in sovereignty, they should have brought
them all into the condition of subjects, and appointed over them
one sovereign. Instead of saying that every man is his own
absolute master, and that no other man has a right over him
against his will, they should proclaim that no man is the
absolute master either of himself or of any other person, and
that no action, no power exercised by man over man, is legitimate
if it wants the sanction of reason, justice, and truth, which are
the law of God. In one word, they should everywhere proscribe
absolute power, instead of affording it an asylum in each
individual will, and allow to every man the right, which he does
in fact possess, of refusing obedience to any law that is not a
divine law, instead of attributing to him the right, which he
does not actually possess, of obeying nothing but his own will.
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True Doctrine Of Representation.
I may now return to the particular question which I proposed in
starting, and determine what _representation_ truly is, thus
justifying in its principle as in its results, the system of
government to which this name is applied.
We are no longer concerned to represent individual wills, which
is really an impossibility, as Rousseau has fully demonstrated,
though he was mistaken in thinking that this is the aim of
representation. We are not, therefore, careful to evade this
impossibility, and so fall into inconsistency, as has been done
by other political theorists. These attempts, illegitimate in
principle and vain in their issues, are, besides, chargeable with
the immense mischief of deceiving men; for they profess to
establish themselves on a principle which they constantly
violate; and by a culpable falsehood, they promise to every
individual a respect for his individual will,--whether
enlightened or ignorant, reasonable or unreasonable, just or
unjust--such as, in fact, they cannot give to it, and which they
are of necessity obliged to deny.
The true doctrine of representation is more philosophical and
more sincere. Starting from the principle that truth, reason, and
justice,--in one word, the divine law,--alone possess rightful
power, its reasoning is somewhat as follows:--Every society,
according to its interior organization, its antecedents, and the
aggregate of influences which have or do still modify it, is
placed to a certain extent in a position to apprehend truth and
justice as the divine law, and is in a measure disposed to
conform itself to this law. Employing less general terms:--there
exists in every society a certain number of just ideas and wills
in harmony with those ideas, which respect the reciprocal rights
of men and social relations with their results. This sum of just
ideas and loyal wills is dispersed among the individuals who
compose society, and unequally diffused among them on account of
the infinitely varied causes which influence the moral and
intellectual development of men. The grand concern, therefore, of
society is--that, so far as either abiding infirmity or the
existing condition of human affairs will allow, this power of
reason, justice, and truth, which alone has an inherent
legitimacy, and alone has the right to demand obedience, may
become prevalent in the community. The problem evidently is to
collect from all sides the scattered and incomplete fragments of
this power that exist in society, to concentrate them, and from
them, to constitute a government.
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In other words, it is required to discover all the elements of
legitimate power that are disseminated throughout society, and to
organize them into an actual power; that is to say, to collect
into one focus, and to realize, public reason and public
morality, and to call them to the occupation of power.
What Is Representation?
What we call _representation_ is nothing else than a means
to arrive at this result:--it is not an arithmetical machine
employed to collect and count individual wills, but a natural
process by which public reason, which alone has a right to govern
society, may be extracted from the bosom of society itself. No
reason has in fact a right to say beforehand for itself that it
is the reason of the community. If it claims to be such, it must
prove that it is so, that is to say, it must accredit itself to
other individual reasons which are capable of judging it. If we
look at facts, we shall find that all institutions, all
conditions of the representative system, flow from and return to
this point. Election, publicity, and responsibility, are so many
tests applied to individual reasons, which in the search for, or
the exercise of, power, assume to be interpreters of the reason
of the community; so many means of bringing to light the elements
of legitimate power, and preventing usurpation.
In this system, it is true,--and the fact arises from the
necessity of liberty as actual in the world--that truth and
error, perverse and loyal wills, in one word, the good and evil
which co-exist and contend in society as in the individual, will
most probably express themselves; this is the condition of the
world; it is the necessary result of liberty. But against the
evil of this there are two guarantees: one is found in the
publicity of the struggle, which always gives the right the best
chance of success, for it has been recognized in all ages of the
world that good is in friendship with the light, while evil ever
shelters itself in darkness; this idea, which is common to all
the religions of the world, symbolizes and indicates the first of
all truths. The second guarantee consists in the determination of
a certain amount of capacity to be possessed by those who aspire
to exercise any branch of power. In the system of representing
wills, nothing could justify such a limitation, for the will
exists full and entire in all men, and confers on all an equal
right; but the limitation flows necessarily from the principle
which attributes power to reason, and not to will.
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Summary.
So then,--to review the course we have taken,--the power of man
over himself is neither arbitrary nor absolute; as a reasonable
being, he is bound to obey reason. The same principle subsists in
the relations between man and man: in this case also, power is
only legitimate in so far as it is conformed to reason.
Liberty, as existing in the individual man, is the power to
conform his will to reason. On this account it is sacred;
accordingly the right to liberty, in the relations of man with
man, is derived from the right to obey nothing that is not
reason.
The guarantees due to liberty in the social state have,
therefore, for their aim, to procure indirectly the legitimacy of
actual power, that is to say, the conformity of its wills to that
reason which ought to govern all wills, those which command as
well as those which obey.
Therefore no actual power ought to be absolute, and liberty is
guaranteed only in so far as power is bound to prove its
legitimacy.
Power proves its legitimacy, that is to say, its conformity to
the eternal reason, by making itself recognized and accepted by
the free reason of the men over whom it is exercised. This is the
object of the representative system.
So far then from representation founding itself on a right,
inherent in all individual wills, to concur in the exercise of
power, it on the other hand rests on the principle that no will
has in itself any right to power, and that whoever exercises, or
claims to exercise power, is bound to prove that he exercises, or
will exercise it, not according to his own will, but according to
reason. If we examine the representative system in all its
forms,--for it admits of different forms according to the state
of society to which it is applied,--we shall see that such are
everywhere the necessary results and the true foundations of that
which we call representation.
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Lecture XI.
Formation of a Parliament.
Introduction of county deputies into the Parliament.
Relations of the county deputies to the great barons.
Parliament of Oxford (1258).
Its regulations, termed the Acts of Oxford.
Hesitancy of the county deputies between the great barons and
the crown.
Formation Of A Parliament.
Before we commenced the history of the charters, and after we had
for some time fixed our attention on the Anglo-Norman government,
we saw that this government was composed of but two great forces,
royalty and the council of barons, a unique and central assembly,
which alone shared with the king the exercise of power. Such was
the state in which we found the government of England under
William the Conqueror and his sons. But from their reigns to that
of Edward I., a great change was being gradually evolved; after a
laborious struggle, the charters were finally conceded, and the
rights which they proclaim were definitively recognised. If,
after this complete revolution, we cast a glance over the
institutions of the country, we find them all changed; we
perceive that the government has taken another form, that new
elements have been introduced into it, that the
Parliament,--composed in one of its divisions of the lords
spiritual and temporal, in the other of deputies from the
counties and boroughs,--has taken the place of the great council
of barons.
This transformation is a fact; how was it produced? what were its
causes and its mode of advance? what was the new Parliament after
its formation? how far and in what respects did the introduction
of these deputies change the character of the government? These
are the questions that we have now to consider; and in order to
answer them we must analyze and examine the principal individual
facts which here combine to produce the common result.
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Of County Deputies.
The first of these facts is the introduction of county deputies
into the national assembly. I shall first enquire how this event
was brought about; and I shall then propose similar enquiries
with respect to the introduction of town and borough
representatives into the same assembly.
Two causes effected the introduction of county deputies into
Parliament: first, the privileges belonging to knights as
immediate vassals of the king; secondly, their interference in
county affairs by means of the county-courts.
The immediate vassals of the king had in that capacity two
fundamental rights; that no extraordinary charge should be
imposed without their consent, and that they should have a place
in the king's court, either to give judgments, or to treat of
public affairs. They were from both these circumstances, members
of the general assembly by inheritance. They formed the political
nation. They took a part in the government, and in the
determination of public charges, as a personal right.
Although they were not elected and had received neither
appointment nor mandate, we may nevertheless say that they were
regarded as representing their own vassals, and that it was only
in virtue of the power which was attributed to them in this
fictitious representation that they exercised the right of
levying imposts on all the proprietors in the kingdom. [Footnote
26]
[Footnote 26: This is expressly indicated by two writs, one
in the reign of John, dated Feb. 17, 1208; the other issued
by Henry III., July 12, 1237.]
Perhaps they never could have fully organized themselves into a
united body, and soon this became impossible. On the one hand,
there rose up among the direct vassals of the king, some
influential barons, who united a considerable number of knights'
fiefs into one, and became by this cause much more powerful; and
on the other hand, the number of knights with smaller wealth
became much more considerable by the division of fiefs, which was
itself the result of a vast variety of causes. However, the right
of appearing at the general assembly and of giving their personal
sanction to all extraordinary imposts, always remained to them.
This is formally recognized in Magna Charta, Article 14.
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The Knights Of Shires.
This same article proves at the same time that there existed an
evident inequality between different immediate vassals, for it
ordains that the great barons should be summoned individually,
while the others should be convoked _en masse_ by means of
the sheriffs. This is not the first time that such a difference
in the mode of convocation is to be observed; it had already
existed for some time, and was exemplified whenever the king
required from his vassals the military service which they were
bound to give him.
Thus, at the commencement of the thirteenth century, the right to
take a seat in the national assembly belonged to all the
immediate vassals of the king, but it was scarcely ever exercised
on account of obstacles which increased every day. The assembly
was almost entirely composed of the great barons.
But the other vassals, on the other hand, did not renounce their
political existence; if their influence daily became more and
more limited to their own county, there at least they exercised
their rights and interfered actively in affairs. We often find
that knights were nominated, sometimes by the sheriff, sometimes
by the court itself, to give their decision on matters connected
with the county. Thus William the Conqueror charged two free men
in each county with the business of collecting and publishing the
ancient laws and local customs. The Great Charter provides that
twelve knights shall be elected in each county to enquire into
abuses. These examples are frequent in the reigns of Henry III.
and Edward I. Two writs of Henry III. [Footnote 27] prove that
subsidies were at that time assessed, not, as previously, by the
judges in their circuits, but by knights elected in the
county-court. The knights in this way brought their influence to
bear upon government by the offices they discharged in their
provinces, while at the same time they preserved, though without
exercising it, the right to appear at the general assemblies.
[Footnote 27: One in 1220, the other in 1225.]
But, on the other hand, in proportion as they thus became
separated from the great barons, the knights who were direct
vassals of the king united themselves more closely to another
class of men, with whose interests they after a time completely
identified themselves. They did not alone occupy a position in
the county courts; many freeholders, subordinate vassals of the
king, also constantly presented themselves at these courts, and
performed the same administrative or judicial functions.
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Service in the county court was an obligation imposed in common,
by their tenure, on all freeholders, whether vassals of the king
or of any other feudal lord. Many of the latter were more wealthy
and influential than certain direct vassals of the king. The
practice of subenfiefment augmented their number continually.
Many who were simply _socagers_ gradually became
considerable freeholders by receiving free lands from different
nobles. Thus, a body of freeholders was formed in every county,
the county court being its centre. There they all discharged the
same functions, and exercised the same rights; whatever, in other
respects, might be their feudal relations with the crown. We thus
see that the dissolution, on the one hand, of the ancient general
assembly of immediate vassals of the king, and the localisation,
on the other hand, of a great number of them in the county
courts, while at the same time their interests were united with
those of the freeholders, prepared the elements of a new nation,
and consequently of a new political order.
Representation Of Knights.
Let us now see how this new nation manifested its existence, and
was brought to a central position in the State by means of
representation.
In 1214, while the discontented barons were preparing for
revolution, John convoked a general assembly at Oxford. The writs
of the king ordered the sheriffs to demand for that assembly the
assistance of a certain number of armed knights; while other
writs [Footnote 28] ordered that the followers of the barons
should present themselves at Oxford _without arms_, and
enjoined besides that the sheriffs should send to Oxford four
approved knights from each county "in order to consider, with us,
the affairs of our kingdom."
[Footnote 28: Dated November 15, 1214.]
This is the first indication of knights being represented in
Parliament, that is to say, of the admission of certain
individuals, who should appear and act in the name of all.
Was then this idea at that time present to their minds? Probably
not. How were these four knights nominated? Were they chosen by
the sheriff, or elected by the county court? Were these writs
actually executed? All this is uncertain. But that which admits
of no doubt is the aim and tendency of this innovation.
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The contents of the writs themselves, and the circumstances in
the midst of which they were issued, clearly indicate its object.
It is evident that John wished to find in the knights of the
shires a means of defence against the barons, and that
consequently the former already formed a class so far distinct
from the latter that the attempt to separate them entirely from
it was not altogether unreasonable, while they were sufficiently
important to be appealed to as powerful auxiliaries.
John's attempt did not succeed. Facts prove that, in the struggle
between the royal power and the barons, the knights and other
freeholders espoused the cause of the latter, who, as they
protested in favour of public rights, were acting no less for the
interest of the knights than for their own.
The struggle continued during the whole of Henry the Third's
reign, and throughout this period we find the king constantly
endeavouring to alienate the knights from the party of the barons
and win them over to his own, while the barons exerted themselves
to keep the knights attached to themselves.
The following is an illustration of the attempts made by the
royal power. In 1225, one of the periods when the charters were
confirmed by Henry III., we find that writs were addressed to the
sheriffs of eight counties, requiring them to cause to be elected
in each of these counties four knights who should present
themselves at Lincoln, where the council of barons was then
assembled, in order to set forth the grievances of their counties
against the said sheriffs, who also should be present to explain
or defend themselves. In this case, there is no reference except
to merely local affairs of particular counties, and the four
knights are not called upon to take any part in the general
assembly, but they are elected and sent in order to treat of the
affairs of their counties before the central council. Here the
election is a positive fact in the case, and the nature of their
commission--to protest against local grievances,--is one of the
principles of representation.
In 1240, we find a general assembly of barons meeting in London,
in which, however, there is nothing remarkable except the name
given to it by the chroniclers. In speaking of it, Matthew Paris
employs for the first time, the word _Parliament_
(_parliamentum_).
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Lastly, in 1254, when Henry III. was in Gascony and wanted money,
he ordered the convocation of an extraordinary Parliament in
London in order to demand of it an extraordinary subsidy. At the
same time, he addressed a writ to the sheriffs, enjoining them to
cause two knights to be elected in the county courts, "in the
stead of each and all of them," (_vice omnium et singulorum
eorumdem_,) to deliberate on the aid to be granted to the
king. Here then is a real and positive instance of
representation; deputies are elected, they are introduced into
the assembly, and a deliberative voice is there given to them.
Certain historians have maintained that these writs were not
executed,--but on this point no satisfactory information is to be
had. However, as it is proved that a subsidy was granted to the
king, there is reason to believe that it was consented to by this
assembly, composed of barons and knights.
Up to this time, the great feudal aristocracy had retained the
knights and other freeholders on their side; we have now to see
how they became alienated from them, and how, after having been
for a long time the allies of the barons, they became afterwards
allies of the throne.
De Montfort's Rebellion.
During the year 1254, a general irritation broke out in the
kingdom on the occasion of the demand for an extraordinary
subsidy. Henry III., who was misled by the artifices and promises
of Pope Innocent IV., had engaged in an adventurous war against
Manfred, the usurper of the throne of Naples;--a war in which
Henry must have borne all the expense, and of which the Pope
would doubtless have reaped all the advantages, if it had
succeeded. But there was no occasion that his good faith should
be put to such a test, for the war was an entire failure. Henry,
however, had contracted an enormous debt; his prodigality and
extravagance had drained his resources; and he was obliged to
appeal to his subjects in order to relieve himself of this
burden. These demands for money, which indicate what progress the
principle that the king cannot levy imposts on his sole
responsibility had made, served as a pretext for the discontented
barons to take arms against their king. Simon de Montfort, Earl
of Leicester, placed himself at their head, and civil war was
declared.
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But the aristocracy were weary of these incessant combats, which
only yielded momentary advantages. The insurgents formed the
project of no longer contenting themselves with conquering the
king,--they determined so far to fetter him as that henceforth he
should be fully dependent upon them. The barons who had wrested
Magna Charta from King John had attempted, in order to provide
themselves with guarantees, to give beforehand a legal
organization to civil war, in case the charter should be
violated. The barons who dictated the law to Henry III., went
farther: they attempted to organize, not a resistance but a
power, and to secure for themselves guarantees, not in civil war
but in the very constitution of the government. Not being able to
restrain the authority of the king within just limits, they
undertook to deprive him of it altogether, and to assume it
themselves,--in one word, to substitute the government of an
aristocracy for that of the king.
The First Parliament.
They had already made a similar attempt in 1244, when their
design had been that four prominent members of their body should
be admitted to the council of the king, who would have followed
him constantly and governed under his name. At that time the
attempt had been unsuccessful, but at the time which we are now
considering, their endeavours were followed by better results. In
the Parliaments convoked successively in 1255, 1257, and 1258,
the most violent reproaches were heaped upon Henry III. as to his
prodigality, his faults, his infatuated enterprises, and above
all the violation of his oaths of fidelity to the Great Charter.
Henry was intimidated, and, as he desired to appease his barons
in order to obtain from them a subsidy, he promised to repair his
errors and reform his government. It was determined that this
reform should be regulated by a Parliament convoked at Oxford,
June 11, 1258.
This is the first assembly that has received the official
designation of Parliament. The barons attended it, armed and
followed by a large retinue; Henry, on the contrary, not having
taken any precautions against them, found himself their prisoner.
Nevertheless they performed what had been agreed upon, that is to
say, that they should commit the care of deciding on the
projected reforms to twenty-four barons, of whom twelve were
chosen by them, and twelve nominated by the king.
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An unlimited authority was conferred upon these twenty-four
mediators. They began by making a complete change in the form of
government. Their first concern was to form the king's council,
and four barons chosen by the confederation were commissioned to
organize it. They composed it of fifteen members, and of these
fifteen, nine at least were taken from the party of the barons,
so that the chief power was placed entirely in the hands of these
nine persons, and consequently, in the hands of the barons.
The Acts Of Oxford.
A large number of regulations, known under the name of the
_Acts of Oxford_, were determined upon by this assembly,
that is to say, by the council of twenty-four barons. No complete
collection of them is to be found in any authentic document. The
following maybe gathered from different historians; among other
things the barons demanded:--
1. That the charters should be confirmed;
2. That they themselves should annually nominate the judges,
the chancellor, the treasurer, and other officers of the king;
3. That they should have the keeping of the royal castles;
4. That three Parliaments should be convoked every year, in the
months of February, June, and October;
5. That a permanent commission of twelve barons should be
appointed, who should be present at these Parliaments, and
assist the royal council in the transaction of all business;
6. That four knights should be appointed in each county, to
receive all complaints against the sheriffs or other officers
of the king, and to give an account of these to the next
Parliament;
7. That, for the future, the sheriffs should be nominated by
the county courts;
8. Lastly, that the king, his son Edward, his brothers, the
archbishops, bishops, &c., should be obliged on oath to promise
fidelity to the Acts of Oxford.
It was further agreed that the committee of twenty-four barons
should reform all the abuses that had been committed in the
kingdom, and administer, in the name of the king, the laws that
were necessary for this purpose; and then allow the government
thus regulated to proceed in an orderly way.
{358}
Tyranny Of The Barons.
But after the separation of the Parliament, the barons, under the
pretext that they had yet abuses to reform and laws to
administer, refused to resign their power; and not content with
retaining it illegally, they employed it to their own advantage.
Their acts and laws had no other object than their own personal
interest. Without knowing it, they were acting ruinously to
themselves, for they detached from their party that part of the
population which clearly apprehended their designs. Two laws
especially alienated the minds of the people from them; one of
these laws took away from the sheriffs the right to fine those
barons who should refuse to present themselves at the county
courts, or at the assizes held by the judges in circuit. The
second decided that the judges' circuits should only take place
every seven years.
These measures opened the eyes of the people, and they speedily
abandoned the authors of them. One fact may prove how far their
tyranny had been already exercised at the expense of the country.
A deputation was sent to Prince Edward in the name of the English
bachelors (_communitatis bachelariæ Angliæ_), praying him to
compel the barons to finish their work and fulfil their promises,
as the king had fulfilled his. The prince replied that he had
sworn fidelity to the Acts of Oxford, and that he was resolved to
keep his oath. Nevertheless, he demanded of the barons, that they
should resign their power, threatening if they refused, to compel
them to do so, and to take into his hands the interests of the
community.
What was this _communitatis bachelariæ Angliæ_? There is
reason to believe that by this name, the body of knights of
shires represented themselves. We see by this that the great
barons had alienated from themselves this class of men, and that
the king had begun to attach them to his party.
From these facts we see that besides the two great powers
anciently established,--the nobility arid royalty,--a third power
had been formed at this period, which alternately inclined to one
or other of these rival powers, and which already exercised a
strong influence, since it ensured victory to the party in whose
favour it might pronounce.
{359}
Lecture XII.
Struggle between Henry III. and his Parliament.
Arbitration of Saint Louis.
The Earl of Leicester heads the great barons in their struggle
with the king.
He is defeated and killed at Evesham (1265).
Admission of deputies from towns and boroughs into Parliament
(1264).
Royalist reaction.
Leicester's memory remains popular.
Henry III. And His Parliament.
We have seen how, in the midst of the struggles between royalty
and the feudal aristocracy, an intermediate class arose,--a new
but already imposing power,--and how the two contending powers
each felt the necessity of securing an alliance with this third
power; we have now to follow, by the examination of authentic
documents, that is to say, of the writs and laws of the period,
the progress of this new class, which we shall find taking an
increasingly active part in the government of the country.
We have seen how the twenty-four barons, who were commissioned to
reform the constitution of the kingdom, abusing the power which
they thus held in trust, had refused, in spite of the king and
the country, to resign their dictatorship. This refusal soon
excited violent dissensions between them and the king, and civil
war was on the point of being again enkindled. In 1261, Henry
sent writs to several sheriffs, enjoining them to send to him, at
Windsor, the three knights of each shire who had been summoned to
St. Albans by the Earl of Leicester and his party. These writs
plainly show that the king and the barons endeavoured more than
ever to conciliate the body of knights, and that the king had
then succeeded in attaching them to his party.
{360}
Arbitration Of St. Louis.
Henry sought yet another assistance. On his entreaty, the Pope
released him from his oath of fidelity to the Acts of Oxford.
Delivered from his scruples, Henry now openly broke off his
agreements with the barons, and again possessed himself of the
reins of government. In 1262, he convoked a Parliament at
Westminster, that his authority might be sustained by its
sanction. He met with but little opposition: wishing, however, to
deprive the barons of every motive for revolt, he agreed to leave
the adjustment of their claims to the judgment of an arbitrator.
The great renown for wisdom and equity which Saint Louis
possessed pointed him out as the best judge in this important
dispute. Accordingly Henry and his barons agreed to abide by his
decision.
Saint Louis assembled his great council at Amiens, and after
careful deliberations, he recorded a judgment by which the Acts
of Oxford were to be annulled, and the king to be placed again in
possession of his castles, as well as of the right to nominate
his own counsellors. But as he was equally careful to preserve
the lawful prerogatives of the English people and those of the
crown, Saint Louis gave his formal approval to all the ancient
privileges, charters, and liberties of England, and proclaimed an
absolute and reciprocal amnesty for both parties.
Scarcely had this decision been made known than Leicester and his
party refused to submit to it, and took up arms for the purpose
of seizing by force that which had been refused to them by
justice. Civil war was recommenced with much animosity, but it
was not of long duration. Leicester surprised the royalist army
at Lewes, in the county of Sussex, on the 14th of May, 1264.
Henry and his son Edward, being vanquished and taken prisoners,
were constrained to receive the terms offered them by the
conqueror. The conditions which he imposed were severe, but he
did not assume to himself the right of settling the reforms that
were to be made in the government; he only retained as hostages
the brother and son of the king, and left to Parliament the care
of settling political questions. Ideas respecting the legal
authority of Parliaments, and the illegitimacy of force in
matters relating to government, must have made considerable
progress, when we find that the victorious Earl of Leicester did
not venture to regulate on his own sole responsibility the plan
of administration for the kingdom.
{361}
Government Of Leicester.
He did not, however, scruple to exercise other rights which did
not belong to him any more than these. Under the king's name,
who, though to all appearance set at liberty, did in fact remain
his prisoner, Leicester governed the kingdom. In each county he
created extraordinary magistrates, called preservers of the
peace. Their duties were almost identical with those of the
sheriffs, but their power was of much wider range. Leicester
enjoined them to cause four knights to be elected in each county,
and to send them to the Parliament which was to meet at London in
June 1264.
This Parliament assembled and passed a decree which was designed
to organize the government. This decree constrained the king to
follow in everything the advice of a council composed of nine
members, nominated by three principal electors, the Earls of
Leicester and Gloucester, and the Bishop of Winchester.
Leicester still remained the real head of the State. In the midst
of his power he was troubled by alarming disturbances; powerful
preparations to oppose him were being made in France. These
attempts were unsuccessful, and Leicester, in order to anticipate
any fresh opposition, undisguisedly sought protection from that
part of the population, which was every day becoming more
numerous and powerful,--the middle classes. On the 14th of
December 1264, he summoned a Parliament, and gave to it all the
extent which it has since preserved, that is to say, he called to
it the peers, county deputies, and also borough deputies. This
innovation was intended to conciliate popular favour, and
Leicester did not relax in his endeavours to preserve it.
Relieved from royal authority, he wished also to free himself
from the aristocracy by whose assistance he had conquered the
king. He turned his tyranny against the great barons who were not
pliant to his caprices. He confiscated their lands, no longer
summoned them to Parliament, and annoyed them in a thousand ways
in their persons and their rights. But this was the infatuated
course of a conqueror intoxicated by success. As soon as the
royal power and the aristocracy combined against him, Leicester
was obliged to yield.
{362}
Battle Of Evesham.
On the 28th of May, 1266, Prince Edward escaped from his
confinement, raised an army against Leicester, and offered him
battle on the 4th of August at Evesham. Leicester was defeated
and killed in the combat. His conduct was, though factious, yet
great and bold, so that he may be called the founder of
representative government in England, for, while he struggled at
one time against the king, at another time against the barons who
were rivals to himself, he hastened the progress of the middle
classes, and definitely established for them a place in the
national assembly.
Henry, delivered from slavery by the death of Leicester,
recovered his power and used it with moderation. Several
Parliaments were convoked during the last years of his reign, but
it is not proved that any deputies from the counties and boroughs
sat in them. There is even reason for thinking that, in the midst
of the disorder that then prevailed in the kingdom, the trouble
of convoking them, which was always tedious and difficult, was
dispensed with. The Parliament held at Winchester on the 8th of
September 1265, in which the confiscation of the goods of the
rebels was granted to the king, was composed entirely of prelates
and barons. This also was the case with regard to that which was
convened by the king at Kenilworth, the 22nd of August, 1266, in
which, after the rigour of the confiscations had been somewhat
moderated, the Acts of Oxford were annulled, but the charters
were solemnly confirmed. Nor do we find that deputies were
present at the Parliament held at St. Edmundsbury in 1267; but
they were admitted to that held at Marlborough, convened in 1269,
to which were called "the wisest in the kingdom, as well those
belonging to a lower as to a higher rank." Two years afterwards
the deputies from counties and boroughs were summoned to a grand
ceremony, in order to transfer the remains of Edward the
Confessor to a tomb which the king had caused to be prepared in
Westminster Abbey. After the ceremony a Parliament assembled; but
it is uncertain whether or not the deputies had a place in it.
This fact, however, does not the less prove the great importance
which had at this time been acquired by the towns, and the habit
which had been gradually established of summoning their deputies
on all great occasions.
{363}
Progress Of County Representation.
Such are the facts of the reign of Henry III. which relate to the
introduction of county deputies into Parliament. No general act,
no constitutional statute, called them thither. Indeed the idea
of such political proceedings hardly existed at that period.
Neither the government nor the people felt the need of regulating
facts in a general manner, and fixing them on an absolute basis.
The human mind had not arrived at that state of progress in which
the conception of such a design is possible. Facts spontaneously
developed themselves, in isolation and confusion, and according
to the influence of existing circumstances. We may present a
summary exhibiting the nature of their progress, and the causes
by which the representation of counties was accomplished, in the
following manner:--
All the king's vassals originally formed one body, and were
entitled to a seat in the general assembly.
This class of proprietors became divided; some became great
barons, and continued to sit in the central assembly. Others
continued to possess only a local influence. By this cause they
were separated from the great barons, and became united by common
interests to other free proprietors. The county courts became the
point of convergence for this new class.
A struggle arose between the king and the great barons. Both of
these sought support from the class of freeholders which existed
in the counties. A part of these preserved, as direct vassals of
the king, the right to take their seat in the central assembly.
The great barons certainly alone exercised this right; but as
their tendency was to possess themselves of authority, and to
identify the great council of barons with the government, they
felt the necessity of conciliating the body of freeholders who
were vassals of the king or of themselves; and the idea of
causing them to be represented by means of election was so much
the more natural, inasmuch as elections, had often taken place in
the county courts, when there was any occasion to commit local
affairs into the hands of certain proprietors. Thus the
centralization of the higher aristocracy to resist the royal
authority did of necessity involve and cause the centralization
of the inferior proprietors, who could only exert their influence
in the way of election.
{364}
Lastly, the principle that consent was necessary before any
impost could be levied had prevailed; the charters established it
to the advantage of the barons with regard to the king, and of
the inferior vassals in reference to their lords. The more that
power became centralized either in the hands of the king or of
the assembly of barons, the more did the consent of the other
proprietors to imposts also necessarily centralize itself. That
which had previously been local became general, and the
centralization of the aristocracy of great barons involved the
centralization of the aristocracy of free proprietors.
Progress Of Borough Representation.
Another question now presents itself for examination: namely, the
admission of town and borough deputies to parliament.
In general the towns possessed, before the Norman Conquest,
considerable wealth and importance. We have seen them take a part
in political events, and interfere actively in state affairs. The
citizens of London concurred in the election of several Saxon
kings; and those of Canterbury attended, under Ethelred II., at
the county court. It is, however, nearly certain that the towns
never sent deputies to the Wittenagemot. Their rights were
limited within the circle of their own walls, and when they took
part in politics, it was in an accidental and irregular manner.
After the Norman Conquest, the towns fell into decay, and lost
not only their influence on general affairs, but even their local
and individual rights. Their riches vanished with the commerce
whence they had been derived, and the oppression of the
conquerors completed their ruin.
They progressively recovered, especially after the reign of Henry
II. At that time, considerable rights began to be granted or
rather to be restored to them. The lord of the domain in which
they were situated was at first the proprietor of them, and
received tribute from their inhabitants; but they were allowed to
ransom themselves from this burden by taking the town in
_fee-farm_, a kind of tenure analogous to that of
_socage_. Lastly, several towns obtained charters of
incorporation, which gave them a more or less free municipal
system.
{365}
The lord, whether king or baron, retained the right of imposing
taxes upon them at will. This right, called the right of
_tallage_, was at first exercised in an entirely arbitrary
way, in virtue of the very superior force possessed by the lords;
but in proportion as this superiority became enfeebled, and the
towns, on the other hand, became strong enough to defend their
independence, it was found necessary to make terms with them. In
order to obtain money from them, privileges had to be granted to
them; and if they did not exact concessions of this kind, they at
least contended with their lord on behalf of their interests.
Those towns especially which lay in the domain of the king, and
were the most important of all, vindicated their rights with the
greatest degree of vehemence. The royal judges had now no other
occupation in their circuits than to obtain tribute from the
towns and boroughs, leaving those which could resist pretty
nearly to dictate their own terms, and making arbitrary charges
on those which were not in a condition to defend themselves.
By these causes the admission of town deputies into the national
assembly was delayed, while, on the other hand, the admission of
county deputies was hastened. In the counties there was not that
unity which is the natural characteristic of towns; there was
hardly any possibility of treating separately and successively
with proprietors scattered over their domains; and in order to
obtain money from them, they had to be united. It was not so in
the towns; the king dealt with them separately, made his advances
upon them as they became isolated from one another, and always
obliged them either to yield or to make him presents, to all
appearance voluntarily.
However, some towns early acquired sufficient importance not only
to gain and defend their liberties, but also to take part in
general politics. Among these towns, London and the _Cinque
ports_ [Footnote 29] must especially be mentioned.
[Footnote 29: The five towns of Dover, Sandwich, Romney,
Hastings and Hythe, were called the _Cinque ports._ ]
Borough Representation.
The importance which these possessed is established by a great
number of facts, and we often find their inhabitants called
_nobiles_ and even _barones_. Indeed, their deputies
appeared sometimes at the general assembly even before the
Parliament of 1264, but in this there was no general principle,
no public right recognized.
{366}
There was this difference between the introduction into
Parliament of county deputies, and that of town deputies;--that
the former is associated with a right, the right of the immediate
vassals of the king, and therefore possessed from the first a
character of generality; while the second, the introduction of
town deputies, was dissevered from every idea of right, and
resulted simply from isolated facts bearing no relation to one
another. Representatives were granted to a particular town, but
this did not involve any similar concession to all towns. Hence
the arbitrariness that of necessity prevailed in the division of
representation among towns and boroughs. Hence the vices which
still actually exist in the electoral system of England.
[Footnote 30] There remain to the present day towns of
considerable importance which send no deputies to the House of
Commons; and these abuses arise from the fact that the elections
of towns and boroughs have never been regulated in a general
manner, and as public rights. In the first instance, all was
decided by a solitary fact, and the right to representation has
still continued as a right in the case of many boroughs and
towns, although the primitive fact which originally suggested the
right has disappeared,--the fact, namely, of the importance of
the town or borough. Through these causes the evil of rotten
boroughs was introduced into the representative system of
England.
[Footnote 30: It must not be forgotten that this course of
lectures was delivered in 1821, ten years before the passing
of the Reform Bill.]
However this may be, not till the parliament of 1264 do we see
deputies from towns and boroughs appear in any large numbers in
the Parliament. We do not know how many towns were then called
upon to exercise this right; but the writs were addressed to them
directly, and not by the intervention of the sheriffs. This
innovation was doubtless a result of the policy of the Earl of
Leicester. He had sought for protection against the king in the
knights of the shires, and through these auxiliaries the king and
the royal authority had fallen into his hands; but soon finding
the want of another support against the barons, who had become
his rivals, he found it in the towns, and called upon them to
take a share in the exercise of power. This it was that rendered
his memory so popular that the king was obliged especially to
forbid his being spoken of as a saint.
{367}
The Mad Parliament.
We must then refer the complete formation of the English
Parliament to the year 1264. Its existence was still very
precarious; it rested on no law, on no public right; it was the
creation of a time of faction. The first Parliament, in which
Leicester had principally ruled (the Parliament of Oxford) was
soon called the Mad Parliament,--_Parliamentum insanum_. It
might have been expected that the new form of Parliament, the
presence of county and borough deputies, would have shared the
same fate as that suffered by the other institutions which were
introduced by Leicester for the purpose of organizing a purely
aristocratic government, and which disappeared with him. But
these rudiments of parliamentary organization were of a different
character; they were veritably public institutions, which,
instead of attaching themselves merely to particular interests,
had for their basis the interests of the entire population. They
survived Leicester, and his attempts against the royal power,
which was itself obliged to adopt them. Under the reign of Edward
I. they became definitely established, and acquired a consistency
and stability which would no longer allow of their being attacked
with success.
{368}
Lecture XIII.
Progress of the Parliament under the reign of Edward I.
Frequent holding of Parliament.
Different composition of Parliaments.
Deputies from the counties and towns were not always present.
Discretionary power of the king in the convocation of barons.
The varying number of county and borough deputies.
Parliaments Under Edward I.
Great political institutions generally originate under feeble and
incapable princes; in the midst of the troubles which arise in
their reign, they are extorted from them. They are consolidated
under more able princes, who know how to recognize the necessity
for them, and to understand the advantages which they may derive
from them.
This was the case in England under Henry III. and Edward I.
Henry, who was entirely deficient in firmness, allowed, although
quite against his inclination, all the concessions which were
demanded of him to escape from his hands; his son, who was able
and energetic, instead of setting himself to destroy the
institutions which his father had permitted to come into being,
made himself master of them, and turned them to his own
advantage. Edward I. would not perhaps have allowed them to begin
in his reign; but finding them in vigorous existence, he accepted
them as they were, and instead of dreading or dispersing the new
Parliament, he availed himself of it as an instrument to serve
and strengthen a power which he exercised with intelligence. It
was by the aid of the Parliament that Edward I. conferred, so to
speak, a national character upon his wars and conquests--
enterprises which might perhaps have excited his people against
him, if he had reigned alone, and acted at once without public
support and public control.
Two kinds of Parliament appeared under Edward I. The one kind was
composed only of the higher barons, and seemed to form the grand
council of the king; in the other, deputies from counties and
boroughs had a seat.
{369}
Progress Of Liberal Opinions.
No legal and fixed distinction existed between these assemblies;
their attributes were almost identical, and they often exercised
the same powers. However, the meetings of those Parliaments which
were composed only of the higher barons were very frequent; they
took place regularly four times a year. The other Parliaments, on
the contrary, were only convened on extraordinary occasions, and
when it was necessary to obtain from the freeholders, either of
the counties or of the towns and boroughs, some general impost.
This, however, was not the only motive which could lead to the
convocation of this last mentioned assembly, which, in truth,
alone deserves the name of Parliament. Whenever business arose of
so great importance that the concurrence of a great number of
interests was judged necessary, the great Parliament was
assembled, and by this cause its range of deliberation became
more extended, and it assumed a greater consistency.
We may infer the moral force which the Parliament had already
acquired at this period, by the political maxims which were
generally admitted. Robert of Winchelsea, Archbishop of
Canterbury, speaking to the Pope on behalf of the king and his
barons, addressed to him this remarkable sentiment: "_It is the
custom of the kingdom of England that, in matters which regard
the state of that kingdom, the advice of all those interested in
the matter should be consulted_." [Footnote 31]
[Footnote 31: "Consuetude est regni Angliæ quod in negotiis
contingentibus statum ejusdem regni, requiritur consilium
omnium quos res tangit."]
There is no need that we should take this principle in its most
rigorous application; it is not the fact that all those who were
interested in these matters were consulted about them; but the
sentiment is still a witness of the progress which had already
been made by the ideas of a free and public government. This
progress is still further attested by the answer which Edward
himself made to the clergy, who demanded of him the repeal of a
statute designed to restrain the accumulation of property in
mortmain: "_This statute,_" said he, "_had been made by
the advice of his barons, and consequently it could not be
recalled without their advice._" [Footnote 32]
[Footnote 32: "Consilio magnatum suorum factum erat, et ideò
absque eorum consilio non erat revocandum."]
{370}
The Commons In Parliament.