Part 2 — Part II. Essays Of Representative Government In England, From The Conquest Till The Reign Of The Tudors. (continued 2)

The Barons And The King.

But at the same time different circumstances concurred to draw the barons forth from their isolation, to unite them among themselves, and to form them into an aristocracy. The Anglo-Norman throne was successively occupied by three usurpers, William II., Henry I., and Stephen. Invested with a power whose title was doubtful, they felt the necessity of bringing the barons to recognize their claims; hence the first charters were conceded. No one of the barons was powerful enough, in himself, to restrain the threatened extension of royal power, but they formed the habit of making coalitions; and as each of the barons entering into such coalitions, felt the necessity of attaching his vassals to himself, concessions were made to them also. The absence of large fiefs, in England, served the cause both of power and of liberty; it allowed power to form itself into unity with greater facility, and it obliged liberty to seek for guarantees in the spirit of association. That which finally contributed in the most decided way to form and consolidate this aristocratic coalition, was the irregular and usurping conduct of John during the long absence of Richard Cœur-de-Lion, and the disorders and civil wars which were naturally the results of this absence. In the midst of these disorders the government fell into the hands of a council of barons, that is to say, of a portion of the aristocracy. Those who had no share whatever in the central power did not cease to control it, and to regard it as rightfully theirs; in this way, the one party formed a habit of governing, the other that of resisting a government which was in the hands of their equals, and not of the king himself. John, by his cowardice and ill-judged familiarity, had brought the throne into disrespect before he himself ascended it, and his barons much more easily conceived the idea of resisting as a king, one whom they had despised as a prince.

Thus, in the space of a hundred and thirty years, two elements in the State, which were at first confounded and had almost acted in common, were separated and formed into distinct powers,—the royal power on the one hand, and on the other, the company of barons. The struggle between these two forces then commenced, and we shall see royalty continually occupied in defending its privileges, and the aristocracy as unweariedly busying itself in the endeavour to extort new concessions. The history of the English charters, from the reign of William I. to that of Edward I., who granted them a general confirmation, is the history of this struggle, to which England is indebted for the earliest appearance of the germs of a free government, that is to say, of public rights and political guarantees.

Lecture VI.

History of English Charters. Charter of William the Conqueror (1071). Charter of Henry I. (1101). Charters of Stephen (1135-1136). Charter of Henry II. (1154).

Progress Towards Free Government.

Liberties are nothing until they have become rights,—positive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as they are not entrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them, in the limit of their rights. Convert liberties into rights, surround rights by guarantees, entrust the keeping of these guarantees to forces capable of maintaining them—such are the successive steps in the progress towards a free government.

This progress was exactly realized in England in the struggle, the history of which we are about to trace. Liberties first converted themselves into rights; when rights were nearly recognized, guarantees were sought for them; and lastly, these guarantees were placed in the hands of regular powers. In this way a representative system of government was formed.

We may date from the reign of King John as the period when the efforts of the English aristocracy to procure a recognition and establishment of their rights became conspicuous; they then demanded and extorted charters. During the reign of Edward I., the charters were fully recognized and confirmed; they became real public rights. And it was at the same epoch that a Parliament began to be definitely formed, that is to say, the organization of political guarantees commenced, and with it the creation of the regular power to which they are entrusted.

I have shown how the two great public forces—royalty and the council of barons, were formed, cemented, and brought into juxtaposition. We must now follow these forces into the combats in which they engaged their energies in order to have their reciprocal rights recognized and regulated; and to do this we must trace the history of English charters. I shall then enquire how the guarantees were organized, that is to say, how the Parliament was formed.

Charter Of William The Conqueror.

When William the Conqueror arrived in England, his position with respect to the Norman barons and knights had been already regulated on the Continent by the feudal law; their respective rights were fixed and recognized. After the Conquest, fear of the Anglo-Saxons kept the king and the Normans so far united, that neither of them cared much to extort concessions from the other. Very different, however, were the relations between William and his English subjects. He had to adjust these relations,—here was a legislation to be created, and rights to be recognized or contested. The English made the most strenuous efforts to preserve their Saxon laws, and it appears to have been in the fourth year of William's reign (the year 1071) that they succeeded in gaining an assurance that these laws should be maintained. There is reason to believe that on this occasion he granted the charter intituled, "Charta regis de quibusdam statutis per totam Angliam firmiter observandis." Some have asserted that this charter was not granted till nearly the end of William's reign, but I see no reason for assigning any other period to it than that which I have mentioned.

This charter, the authenticity of which [Footnote 19] has been sometimes questioned, I think on insufficient grounds, is a kind of vague declaration containing the general principles of feudal political law.

William, in it, recognizes rights which he often allowed himself to violate; for his power rendered the violation of his promises easy. The Norman barons did not form themselves into any body, unless perhaps against the English; they were all too much occupied in the work of establishing themselves in their new domains. If they sometimes roused themselves to oppose the tyranny of William, their revolts were only partial, and the king adroitly used the English in order to put them down. His son, William Rufus, by adopting the same policy, obtained similar success. But Henry I. had to pay for his usurpation; the charter which he granted was the inevitable consequence of his possession of the throne.

Charters Of Henry I.

This charter of Henry's contains a solemn promise to respect all ancient rights. In it the king promises no more to follow all the evil practices by which the kingdom of England was oppressed under the king his brother, that is to say, not to appropriate the revenues of vacant abbacies and bishoprics, nor again to sell or farm ecclesiastical benefices, and to permit the heirs of his vassals to inherit their possessions on paying a just and legitimate fine. He assures to his barons their right to give their daughters or sisters in marriage to whomsoever they will, provided it be not to one of the king's enemies; he grants to widows who are left without children the possession of their dowry and jointure, and liberty to marry again according to their free choice; and he renounces the right of guardianship, placing it in the hands either of the wife or some relative. He gives to all his vassals the right to dispose of their property either by gift or by will, renounces the right arbitrarily to levy taxes on the farms of his vassals, abandons the forests which William Rufus had usurped, and abolished feudal aids, even in the three cases which we have already specified. Lastly, he withdraws the right of coining from the towns and counties, pardons all the offences and crimes committed before his reign, and recommends his vassals to allow their vassals to enjoy all the advantages which he accords to them.

These concessions were merely recognitions of rights, without guarantees. Henry, accordingly, despite his oaths, violated these magnificent promises; and the abuses which they ought to have removed were not diminished in any degree, during the whole extent of his reign.

Another charter was granted by Henry I. to the city of London, by which it was authorized, among other things, to elect its own sheriff and chief magistrate, to hold its accustomed assemblies, not to pay either the danegeld or any other scot, or imposts for works along rivers, and not to give lodging to the retinue of the king.

Lastly, we find new promises and new concessions made by Henry I. in 1101, when his brother Robert laid claim to his rights. Wishing to assure himself of the fidelity of his barons, Henry assembled them at London, and delivered to them a speech, in which, after having given a hideous representation of Robert's person, he added:—"As for me, I am truly a mild king, modest and pacific; I will preserve to you, and diligently guard your ancient liberties, which I have before sworn to maintain; I will listen with patience to your wise suggestions, and will govern you justly after the example of the best princes. If you desire it, I will confirm this promise by a written charter, and I will swear afresh to observe inviolably all the laws of the holy king Edward," &c. &c.

These promises, made in a moment of danger, were always forgotten as soon as ever the danger had disappeared. During his entire reign, Henry continually violated the charter to which he had bound himself by oath, both as regards matters relating to feudal dependence, and in the levying of imposts. According to the historians, he levied each year a tax of twelve pence on every hide of land, a tax which was probably identical with the danegeld.

Charters Of Stephen.

Stephen, Henry's successor, granted charters to his subjects as Henry had done, and these charters were also the result of usurpation. He published two; the first only confirmed the liberties granted by Henry I., and the laws of Edward the Confessor. The second is remarkable as containing a promise made by Stephen to reform the abuses and exactions of his sheriffs. At this period public offices were farmed, and those who filled them, seeking to gain all the advantages possible from them, were far more oppressive on their own account than on account of the king. Accordingly it was no difficult matter to appeal to the king against his own officers. Such a mode of appeal, however, indicates that legal and regular guarantees were unrecognized and but little thought of. The barons however began to procure them, by force. They obtained from the king permission to fortify their castles and put themselves in a state of defence. And the clergy on their part, while taking the oath of fidelity, attached to it a condition that they should be released from its obligation as soon as the king should trespass on ecclesiastical liberties.

Charter Of Henry II.

The charter granted by Henry II., about the year 1154, still expresses nothing more than a recognition of rights; it does not contain any new promise, or any concession of guarantees. The reign of this prince, I need hardly remind you, was entirely occupied with his disputes with the clergy, with the revolts of his sons, and with his conquests, both on the Continent and in Ireland. No important differences were brought into discussion between him and his barons; no progress in existing institutions is visible, and we may say that the reign of Henry II., considered from this point of view, was orderly and stationary.

If, however, the king, so far as his relations to his barons were concerned, obtained an almost uninterrupted submission, and caused the demolition of most of those fortified castles which had been constructed during the preceding reign, the towns on the other hand, and especially the city of London, increased in strength and importance, and the aristocracy became every day more compact by means of the fusion of the Normans and the English, a fusion which was almost completed during this reign, at least among the upper classes.

The fact of this period which bears most importantly upon the subject which we have under consideration, is the substitution of the escuage for the personal service of the vassals. It is under the reign of Henry II. that we find this impost collected for the first time, at least in the form of a general measure. The establishment and limitations of the escuage became soon the principal object of contention between the king and his barons. The use which the kings came to make of the resources derived from this impost was fatal to them, for they employed it in order to keep up armies of foreign mercenaries, especially Brabanters; and by these measures, they gave a new motive to the English barons to coalesce. The expulsion of foreign soldiers became at length one of the continually recurring demands of the barons.

Henry II. towards the close of his reign, imposed by his own authority a tax of one sixth on all moveable property. He abandoned the danegeld.

Reign Of Richard I.

The reign of Richard, which was entirely occupied with his brilliant but unfortunate expeditions, offers nothing especially illustrative of the history of institutions. The absence of the king and the weakness of the royal power supplied the feudal aristocracy with opportunities for extending their importance; but they did not at that time take advantage of their superiority to procure a recognition of their rights;—not until the reign of John did the struggle become violent and the victory decisive.

Lecture VII.

Charter of John, or the Great Charter (1215). Three epochs in John's reign. Formation of a coalition among the barons. Civil war. Conference at Runnymead. Concession of the Great Charter. Analysis of this Charter. Its stipulations refer to national rights as well as to those of the barons. John petitions and obtains from Innocent III. a bull to reverse the Great Charter. Resistance of the English clergy. Recommencement of the civil war (October, 1215). Louis of France, son of Philip Augustus, is appealed to by the barons. Death of John (October, 1216).

Reign Of King John.

During King Richard's absence, the administration of the kingdom had fallen into the hands of the barons: the feudal aristocracy had begun again to interfere directly in the government, both by way of encroachment and of resistance. Still, the acts of the barons had no longer the same character which they possessed under the preceding reigns; they no longer offered an open resistance; they did not demand any new charters; they did not petition for the observance of former ones: but they silently collected their forces in anticipation of a struggle which was to be decisive. We find them submitting to the exactions which Richard imposed on all classes of society, both for his crusade and for his ransom. Nevertheless, the old maxims as to the necessity of obtaining the consent of the barons to every extraordinary imposition, had revived with new vigour. This right of giving consent to tributes was vindicated with an increasingly determined firmness; and in the first assembly, which Richard held at Nottingham after his return from the East, he was unable to establish an impost of two shillings on every hide of land until he had obtained the consent of his barons. Already every tribute that was levied on the sole authority of the king had begun to stir up a spirit of resistance. This resistance declared itself as soon as John ascended the throne, and the opposition which had been preparing during the reign of Richard then started into prominence.

Opposition Of The Barons.

The reign of John may be divided into three epochs: from 1199 till 1206, he was occupied with his quarrels with the king ol France, and with the struggle which arose from the refusal of the barons to second him in his continental enterprises. From 1206 to 1213, John was occupied by his disputes with the Pope and the clergy. Lastly, from the year 1213 to the close of his reign, his position with reference to the barons and the clergy became more and more hostile; it revealed to him their power and his own feebleness; and constantly succumbing before them, we see him yielding one point after another to the clergy and barons, who were always united in their attacks upon him, until at length he granted that celebrated charta usually called Magna Charta, which is a lasting monument of John's defeat and the abiding basis of the English constitution.

John was not the lawful heir to the crown; it belonged to his nephew, Arthur, Duke of Bretagne, whose rights were further confirmed by a testament of Richard. Nevertheless, by his largesses and his yielding disposition, John found no difficulty in usurping the throne of England. The opposition was stronger in his continental possessions; the feudal ideas there prevailing favoured the system of representation, and the people were more disposed to recognize the claims of a son than those of a brother. Anjou, Poitou, Maine and Touraine declared for Arthur. In 1201 (others say in 1204) John demanded of the barons, whom he had assembled at Oxford, that they should assist him in the war which he purposed carrying on in France. They required, as the price of their assistance, that the king should promise to restore to them their liberties and privileges. John, without having granted anything to them, succeeded in winning over one after another, until he had obtained from each individually what had been refused to him by all when assembled. Nevertheless, this opposition showed that the coalition among the barons had taken shape and consistence.

John, who had as yet done nothing to deserve that his usurpation should be overlooked, rendered himself odious by an imprudent divorce, and by vexatious indignities. He introduced into his retinue, bullies, whom he called champions of royalty; and he obliged the discontented barons to enter into the lists with them, and to settle, by these pretended judicial combats, their disputes with the crown. At length, his exactions, his tyrannical proceedings, and above all, the murder of Arthur, whom he is said to have assassinated with his own hand, excited against him an almost general rising. Abandoned by his barons, driven from Normandy, Anjou, Maine, Touraine, and a part of Poitou, John, instead of conciliating the minds of his people, only acted in such a manner as to alienate them more and more, and only defended himself by rendering himself more odious. A new escuage of two marks and a half for every knight's fief was extorted from the barons. John had, therefore, to endure a new refusal when he asked them a second time to follow him to the Continent. In vain was it that he employed those means which had before succeeded; he was obliged to yield, and to allow Philip Augustus to take possession of Normandy, and reunite it to the crown of France.

Quarrels With The Clergy.

It was not enough for John that he had entered into hostilities with the lay aristocracy; he still further made himself inimical to the clergy. On the death of the Archbishop of Canterbury, the Augustin monks had arrogated to themselves the right of appointing his successor without the consent of the king. John, nettled by this invasion of his prerogatives, united with the bishops, who also protested against an election in which they had taken no part, and in concert with them, nominated the Bishop of Norwich to the vacant see. Upon this, Innocent III. interfered in the dispute;—but without confirming either of the two elections, he ordered the English clergy to choose Cardinal Stephen Langton. The king, enraged against the Court of Rome, drove all the monks from Canterbury, and made himself master of their revenues. Accordingly, the Pope excommunicated the monarch, placed the whole kingdom under his ban, and released his subjects from the oath of fidelity which they had sworn to John. Moreover, he charged Philip Augustus to execute his decrees, and offered to him the crown of England. Philip eagerly accepted the present, while John, frightened by the double danger which pressed upon him, demanded, but in vain, assistance from his barons;—he had acted unjustly towards them, and now he found them indifferent to his misfortunes. At last, stripped of all resources and left without hope, he sought safety in submission, and saved himself by means of base servility: he declared himself a vassal of the pope, and engaged to pay him annually a tribute of a thousand marks.

Commencement Of The Civil War.

After John had thus ransomed his crown, he soon endangered it again by renewed acts of imprudence; his base tyranny, and his criminal attempts on the wife of Eustace de Vesci, roused the barons against him, and their opposition, was directed and stimulated by the primate Langton.

It is not to be wondered at that the feudal aristocracy should act under the guidance of an ecclesiastic; the two orders made common cause, and this coalition, which preceding kings had always endeavoured to prevent, was one of the effects of John's odious and absurd conduct. He forgot that the royal power could only maintain itself so long as the power of the clergy and that of the barons balanced one another; when they united, he was obliged to succumb. Their union was the result of John's base submission to the Holy See; the English clergy, tired of the despotism of Rome, and regretting the loss of their privileges, openly embraced the cause of national liberty.

Such was the pervading feeling, when (August 25, 1213) an assembly of the barons was convened at London. In one of their meetings, Cardinal Langton informed them that he had found a copy of the charter of Henry I., which was then entirely forgotten; this charter was read to the assembly, and received with enthusiasm. Another meeting was held at Saint Edmundsbury (November 20, 1214), and there each baron, laying his hand upon the altar, took an oath that he would use his efforts to force the king to restore in full vigour the charter of Henry I. They soon presented themselves at London in arms, and on January 5, 1215, they demanded from John, in a formal and positive way, the renewal of this charter, as well as of the laws of Edward the Confessor. John, terrified by their firmness, requested that some leisure might be granted to him in order to think over these demands, and accordingly his answer was deferred till Easter. During this interval, he endeavoured to introduce division among his enemies, and in the first place, wishing to conciliate the clergy, he granted them by a charter the liberty of electing their own bishops and abbots, and sent William de Mauclerc to Rome to complain of the audacity of the barons. They too despatched Eustace de Vesci to Rome, to represent to the pontiff the justice and sacredness of their cause. This embassy, however, failed in its object; the Pope condemned the barons: but they were not to be intimidated from their purposes, and John, determining to make another effort in order to secure the support of the church, took the cross on the 2nd of February, 1215, and made a vow to lead an army into Palestine.

The respite, however, which the barons had granted to the king came to an end, and they met again at Stamford in Lincolnshire, on the 19th of April, 1215, being followed by nearly two thousand knights in arms. The king asked them what their claims were; they made at Stamford the same answer as they had made in London, and presented the charter which they had sworn to establish. "And why do they not demand my crown also?" exclaimed John in his fury; "by God's teeth, I will not grant them liberties which will make me a slave." This answer was taken as a declaration of war, and on the 5th of May following, the barons met at Wallingford, solemnly renounced their oath of allegiance, and at the same time named Robert Fitz-Walter general of the "army of God and of Holy Church."

War was declared: in vain did the Pope address letters to the barons, in which he commanded them to desist from their enterprise; the hostilities which had been commenced only continued with greater vigour, and on the 24th of May, the triumphant barons took possession of London with the consent of the citizens. John left the city and retired to Odiham, in the county of Hampshire, with no other escort than seven knights. From his retreat he attempted, without success, to enter into negotiations; he proposed the intervention of the Pope, but this was also refused: baffled in all his attempts, he was at length necessitated to acquiesce in the law which had been forcibly imposed on him.

Conference At Runnymead.

On the 13th of June, a conference was opened in the plain called Runnymead, between Windsor and Staines. The two parties had separate encampments, as declared enemies; after some trifling debates, the king at first adopted the preliminary articles, and four days after, on the 19th of June, 1215, he made the grant of the famous act known by the name of the Great Charter,—Magna Charta.

Analysis Of Magna Charta.

This charter, the most complete and important that had yet appeared, may be divided into three distinct parts; one referring to the interests of the clergy, another regulating those of the nobility, and the third, those belonging to the people. This methodical division is not taken from the order in which the articles of the actual charter are distributed, but I have here adopted it in order to render my account of it more natural and distinct.

The Great Charter refers but little to ecclesiastical interests, since they had been settled by the charter already granted to the clergy. All that was therefore required was that this should be confirmed. This accordingly is done in the first article, which grants a general confirmation to all ecclesiastical immunities and privileges.

The privileges of the laity, on the other hand, were more uncertain, and more strongly contested; it was therefore necessary that they should be minutely investigated and separately conceded. The Great Charter is almost entirely devoted to the settlement of the rights, and the confirmation of the privileges, claimed by the laity.

In the first place, it determines with precision what had been obscure and ambiguous in the feudal laws; and it fixes the amount of relief which the immediate or indirect inheritors of fiefs should pay. Hitherto this relief had been indeterminate. (Arts. 2 to 3.)

Then follow the precautions prescribed respecting the marriage of feudal wards, and those which regard the widows and children of vassals. (Arts. 6 to 8.)

The right and mode of collecting aids and escuages, are regulated by the two following articles:—

"Art. 12. That no escuage or extraordinary aid shall be imposed in our kingdom, except by the national council of our kingdom, unless it be to ransom our person, to equip our eldest son as a knight, and to marry our eldest daughter: and for these last cases only a reasonable amount of aid shall be demanded, &c." "Art. 14. In order to hold the national council of the kingdom, for the purpose of imposing any other aid than for the three cases heretofore mentioned, or to impose an escuage, we will call together the archbishops, bishops, abbots, earls and great barons, individually and by letters from ourself; and we will assemble together by means of our viscounts and bailiffs, all those who are directly dependent upon us. The great convocation shall be made on a fixed day, namely, at intervals not greater than forty days, and in an appointed place; and in the letters of convocation we will expound the reason of such convocation; and the convocation thus made, the business shall be transacted on the day appointed, by the council consisting of those who are present, although all those who have been summoned may not have arrived."

This charter is the first document in which we find a distinction established between the greater and lesser barons, and the higher and lower clergy; an important fact, since it may perhaps be regarded as the original source of the separation between the two Houses of Parliament.

Lastly, several articles have for their object to limit the rights of the king on the lands of his tenants, to fix the amount of fine imposed on beneficiaries according to the gravity of their offence, to determine the length of time during which lands should remain sequestrated on account of felony; in one word, to give to the barons greater independence and security than they had ever before enjoyed.

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."

"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. 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.

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.

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.

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.

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]

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.

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.

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.

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.

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.

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. 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.

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.

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.

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. 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]

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.

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.

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.

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.)

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.

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]

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. 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.

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]

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.

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.

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.

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.

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. 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.