The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 5

In order to judge accurately of the power and importance of royalty at the period we are considering, we must first ascertain its actual position and resources; and we shall see by the extent of these resources, and by the advantages of this position, how feeble in its action on the royal power must have been the influence of the assembly of barons.

The riches of the Norman king were independent of his subjects; he possessed an immense quantity of domains, 1,462 manors, and the principal towns of the kingdom. These domains were continually being augmented, either by confiscations, causes for which were of frequent occurrence, or by the failure of lawful heirs. The king gave lands on a free tenure to those cultivators who would pay for them a determinate rent (free socage tenure). This was the origin of most of the freeholders, whether in the king’s domains or in those of his barons. The king, in his domains, imposed taxes at will; he also arbitrarily imposed custom-house regulations on the importation and exportation of merchandize; and he fixed the amount of fines and of the redemption money for crimes. He sold public offices, among others that of sheriff, which was a lucrative one on account of the share in fines which belonged to it. The county sometimes would pay for the right to nominate its sheriff, or to avoid a nomination already made. Lastly, the sale of royal protection and justice was a source of considerable revenue.

As to the immediate vassals of the king, they owed him, First, a military service of forty days whenever it was required; Secondly, pecuniary aid under three circumstances—to ransom the king when made prisoner, to arm his eldest son as a knight, or to marry his eldest daughter. The amount of this aid was undetermined up to the reign of Edward I.; it was then fixed at twenty shillings for the fief of a knight, and as much for every twenty pounds sterling value in land held in socage tenure. Thirdly, the king had a right to receive from his vassals a relief or fine on the death of the possessor of a fief; he was guardian if the heir were a minor, and enjoyed all the revenues of the fief till the majority of the heir; he also had a control over their marriages, that is to say, the vassal of a king could not marry without his consent. All these rights were indeterminate, and negotiations were substituted for them in which the greater force always had the advantage. Fourthly, the dispensation from feudal military service gave rise to an impost termed escuage, a kind of ransom-money fixed arbitrarily by the king, as representative of a service to which he had a claim; and he even imposed it in many cases on his vassals when they would have preferred to serve in person. Henry II., by his purely arbitrary will, levied five escuages in the course of his reign.

In addition to these taxes levied by the king, another must be mentioned called the danegeld, or tax paid for defence against the Danes; this tax was raised several times during this period on all lands throughout the kingdom. The last example of it is to be found in the twentieth year of the reign of Henry II.

By means of these independent revenues and arbitrary taxes, the Norman kings constantly kept up bodies of paid troops, who could enable them to exercise their power without restraint, which did not take place till a considerably later period on the Continent.

Lastly, from William the Conqueror till Henry II. the judicial power tended always to concentrate itself in the hands of the king. In this last reign the work was very nearly accomplished: how this came to pass, I will endeavour to show.

Originally the jurisdictions that co-existed were as follows: 1. The courts of hundred and the county-courts, or meetings of the freeholders of these territorial subdivisions, under the presidency of the sheriff: 2. The courts-baron, or feudal jurisdictions: 3. The grand court of the king, where the king and the assembled barons administered justice to the barons in cases between any of themselves, or in cases of appeal, which could only take place when justice had been refused in the court of the manor or county.

The Court of Exchequer, instituted by William the Conqueror, was, at first, only a simple court for receiving the accounts of the administration of the king’s revenues, and those of the sheriffs, bailiffs, &c., and for judging the suits that arose on this subject. It was composed of barons, chosen by the king to form his council, and to aid him in his government. In proportion as the larger assembly, the Curia regis, came to be held less frequently, so did the Court of Exchequer gain in importance. The barons who composed it began to judge on their own responsibility, and alone, in the absence and before the convocation of the assembly; this change was introduced by necessity, confirmed by custom, and finally sanctioned and established by law. About the year 1164, another royal court of justice, distinct from the Court of Exchequer, arose out of it, the members of which, however, were the same as those composing the Court of Exchequer. The kings lent their assistance to this change, because it benefited their revenues. At this period were established writs of chancery, which gave to purchasers the right to apply at once to the royal justice, without previously passing the subordinate courts of justice. Soon the ignorance of the freeholders, who composed the county-courts, necessitated the same extension of the royal justice there also, and, in the reign of Henry I., itinerant justices were sent into the counties, in order to administer there in the same way as was done by the Court of Exchequer. This institution was in full vigour only during the reign of Henry II.

In this way the predominant influence of the king, in judicial order, was established; this was a powerful instrument in producing centralization and unity, and yet, as the royal judges only interposed their services as supplementary to the institution of the jury, and did not substitute them for it—for questions of fact and questions of right remained distinct—the germ of free institutions, that existed in the judicial order, was not entirely destroyed.

A king invested with such powerful resources could with difficulty be restrained by an irregular assembly; accordingly the government of the Norman kings was almost always arbitrary and despotic. Persons and property were never in security; the laws, taxes, and judicial sentences were almost always merely an expression of the royal will.

When we consider these facts collectively, we may be led to two very opposite results, according to the point of view from which we regard them: on the one hand, we see the general assembly of the nation interfering pretty frequently in public affairs, not by virtue of any particular official character it possessed, nor for the purpose of exercising any one special right, such as that of making general laws, or of voting supplies, but on occasions widely differing from one another, and for the purpose of acquiescing in the entire course of government. Laws, external relations, peace, war, ecclesiastical affairs, the judgment of important cases, the administration of the royal domains, nominations to great public offices, even the interior economy and proceedings of the royal family, all seem to belong to the province of this national assembly. No matter is foreign to it, no function forbidden to it, no kind of investigation or of action refused to it. All distinction of provinces, all lines of demarcation between the prerogatives of the crown and those of the assembly, appear to be unknown; we might say that the entire government belonged to the assembly, and that it exercised in a direct way that activity, that general supervision, which belongs indirectly to the mature and perfected representative system, by virtue of its influence on the choice of those who are to be the depositaries of power, and by means of the principle of responsibility.

On the other hand, if we forget the assembly and examine the royal power, as isolated, we shall see it exercising itself in a multitude of cases, in as absolute and arbitrary a manner as if no assembly had existed to share in the government. The king, on his own responsibility, made laws, levied taxes, dispossessed proprietors, condemned and banished important persons, and exercised, in a word, all the rights of unlimited sovereignty. This sovereignty appears entire, sometimes in the hands of the assembly, sometimes in those of the king; when the assembly proceeds to interfere in all the details of government, we do not findany complaint from the king, as if an encroachment had been made on his prerogatives; and when, on the other hand, the king governs despotically, we do not find the assembly bestirring itself to protest against the extension of royal power, as a blow aimed at their rights.

Thus we are met by two classes of facts, simultaneously existing in this infancy of society—facts which seem to belong to a fully developed system of free institutions, and facts which are characteristic of absolute power. On the one hand, the aim of free governments, which is, that the nation should interfere, directly or indirectly, in all public affairs, seems to be attained; on the other hand, the independent and arbitrary domination of the royal power appears to be recognized.

This is a result that must necessarily arise in the disorder of a nascent and troubled stage of civilization. Society is then a prey to chaos—all the rights and all the powers of a community co-exist, but they are confounded, unregulated, unmarked by limits, and without any legal guarantee—freemen have not yet abdicated any of their liberties, nor has force yet renounced any of its pretensions. If any one had said to the barons of William, or of Henry I., that they had nothing to do with affairs of State, except to comply when the king demanded an impost, they would have been indignant. All the affairs of the State were theirs, because they were interested in them; and when they were called upon to deliberate concerning peace or war, they believed that they were exercising a right belonging to them, and not making a conquest over royal authority. No freeman, who was strong enough to defend his freedom, recognized any right in another person to dispose of him without his consent, and found it a very simple matter to give his advice on questions that were interesting to him. The king, in his turn, measuring his right by his force, did not recognize in any person, nor, consequently, in any assembly, the legal right to prevent him from doing that which he was able to do. There were then, properly speaking, no public rights or powers at all; they were almost entirely individual and dependent on circumstances; they are to be found, but in a state of isolation, unconscious of their own nature, and, indeed, of their very existence.

In this disorderly state of things, the able and energetic government of William I., Henry I. and Henry II. caused the royal power gradually to assume a much more general and consistent character. Accordingly, national assemblies became by degrees more rare and less influential; under Stephen, they almost entirely disappeared. The barons no longer had a common meeting-point, and were more occupied with the rule of their own domains than with any association with the royal power for the purpose of controlling or restraining it. Each devoted himself more exclusively to his own affairs, and the king, following this example, made himself almost the sole master of those of the State. He availed himself of the need of order and regularity that made itself felt every day, in order to constitute himself, in some sort, the dispenser of them. By these means he soon became the first in name, as well as the most powerful in fact. Through him, the roads became more secure; he protected the feeble, and repressed robbers. The maintenance of public order devolved upon the royal power, and became the means of extending and strengthening it more and more. Whatever the king had possessed himself of by conquest, he vindicated as his own by right. Thus was formed the royal prerogative.

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 Coeur-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.