These are the principal enactments of the Great Charter in favour

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.

{330}

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.

{335}

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.

{339}

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.

{342}

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.

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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.

History of the Origin of Representative Government in Europe · 第 9 / 13 章