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

PART 2

ESSAYS OF REPRESENTATIVE GOVERNMENT IN ENGLAND, FROM THE CONQUEST TILL THE REIGN OF THE TUDORS

LECTURE 1

I think it necessary to remind you, gentlemen, of the plan which I adopted last year with regard to our study of the political institutions of Europe. The essential object of that plan was to give some unity and compactness to this vast history. And this is not an arbitrary and self-chosen object. In the development of our continent, all its peoples and all its governments are connected together; in spite of all struggles and separations, there is really some unity and compactness in European civilization. This unity, which has been revealing itself from day to day, is now evident; never have geographical limits possessed less sway than in our times; never has such a community of ideas, feelings, aspirations, and efforts united, in spite of territorial demarcations, so great a mass of men. That which is now revealed has been labouring for more than twelve centuries to manifest itself; this external and apparent community has not always existed; but such has always been, at bottom, the unity of European civilization, that it is impossible thoroughly to understand the history of any of the great modern peoples without considering the history of Europe as a whole, and contemplating the course pursued by humanity in general. It is a vast drama in which every people has its part to perform, and with the general events of which we must be acquainted in order to understand the particular scenes connected therewith.

I have divided the history of the political institutions of Europe into four great epochs, which are distinguished from each other by essentially different characteristics. The first is the barbarian epoch; a time of conflict and confusion, in which no society could be established, no institution be founded and become regularly prevalent in any part of Europe; this epoch extends from the fifth to the tenth century. The second is the feudal epoch, and extends from thetenth to the fourteenth century. The third is the epoch of efforts towards constitutional monarchy; feudalism declines, the populations become free, and royalty employs them to extend and augment its power; this epoch embraces the period from the fourteenth to the sixteenth century. In the fourth period, on the Continent, all efforts towards a representative system have failed or almost entirely disappeared; pure monarchy prevails. England alone decidedly obtains a constitutional government. This epoch lasts from the sixteenth century to the French Revolution.

These epochs were not determined by an arbitrary choice,—their division results from the general facts which characterize them. They will not all form the subject of this course of lectures. I wish to study the political institutions of Europe with you, and representative government is the centre towards which all our studies tend. Where I perceive no trace of the representative system, and no direct effort to produce it, I turn aside, and transfer my attention to some other quarter. Nor shall I merely limit our studies in reference to epochs only; I shall limit them also in respect to places. Last year, in my lectures on the first epoch, I did not follow the progress of political institutions in the whole of Europe, but confined my observations to France, Spain, and England. We have now to study the third epoch; but the States-General of France and the Cortes of Spain were only unfruitful attempts at representative government. I shall therefore postpone our study of them, and devote this year’s course to the attentive examination of the origin of representative government in England, the only country in which it received uninterrupted and successful development. This study is particularly necessary to us at the present day, and we are ourselves well-disposed to enter upon it with an earnest desire to reap advantage from it.

According to their political state, and in the degree of their civilization, do the peoples consider history under various aspects, and look to it for various kinds of interest. In the early ages of society, whilst all is new and attractive to the youthful imagination of man, he demands poetical interest; the memories of the past form the groundwork of brilliant and simple narratives, fitted to charm an eager and easily satis fied curiosity. If, in such a community, where social existence is in full vigour, and the human mind is in a state of excitement, Herodotus reads to the Greeks assembled at Olympia his patriotic narratives, and the discoveries of his voyages, the Greeks delight in them as in songs of Homer. If civilization is but little advanced—if men live more isolated—if “country,” in the concrete, at least, exists but slightly for them—we find simple chronicles intermingled with fables and legends, but always marked with that naïf and poetical character which, in such a condition of existence, the human mind requires in all things. Such are the European chronicles from the tenth to the fifteenth century. If, at a later period, civilization becomes developed in a country without the coeval establishment of liberty, without an energetic and extensive political existence, when the period of enlightenment, of wealth, and of leisure, does arrive, men look for philosophical interest in history; it no longer belongs to the field of poetry; it loses its simplicity; it no longer wears its former real and living physiognomy; individual characters take up less space, and no longer appear under living forms; the mention of names becomes more rare; the narrative of events, and the description of men, are more its pretext than its subject; all becomes generalized; readers demand a summary of the development of civilization, a sort of theory of the peoples and of events; history becomes a series of dissertations on the progress of the human race, and the historian seems only to call up the skeleton of the past, in order to hang upon it general ideas and philosophic reflections. This occurred in the last century; the English historians of that period, Robertson, Gibbon, and Hume, have represented history under that aspect; and most of the German writers still follow the same system. The philosophy of history predominates; history, properly so called, is not to be found in them.

But if advanced civilization and a great development of the human intellect coincide, in a nation, with an animated and keen political existence; if the struggle for liberty, by exciting the mind, provoke energy of character; if the activity of public life be added to the general claims of thought, history appears in another light; it becomes, so to speak, practical. No longer is it required to charm easily excited imaginations by its narratives, nor to satisfy by its meditations active intellects debarred from exercising themselves upon aught but generalities. But men expect from it experience analogous to the wants they feel, to the life they live; they desire to understand the real nature and hidden springs of institutions; to enter into the movements of parties, to follow them in their combinations, to study the secret of the influence of the masses, and of the action of individuals; men and things must resuscitate before them, no longer merely as an interest or diversion, but as a revelation of how rights, liberties, and power are to be acquired, exercised, and defended; how to combine opinions, interests, passions, the necessities of circumstances, all the elements of active political life. That is what history becomes for free nations; it is from that point of view that Thucydides wrote the history of the Peloponnesian war, Lord Clarendon and Bishop Burnet that of the English Revolution.

Generally, and by the very nature of things, it is in regular order, and at distant intervals, that history assumes one or other of these various kinds of interest in the eyes of the people. A taste for simple narratives, a liking for philosophic generalizations, and a craving for political instruction, almost always belong to very different times and degrees of civilization.

By a rare concurrence of circumstances, all these tastes and acquirements seem to unite at the present day; and history is now susceptible amongst us of all these kinds of interest. If it narrate to us with truth and simplicity the first attempts at social life, the manners of infant nations; that singular state of society in which ideas are few in number but keen, and wants are energetic although unvaried, in which all the pretensions of barbarian force struggle against all the habits of wild liberty, it will find us capable of understanding such a recital, and somewhat disposed to be charmed therewith. Fifty years ago, a faithful picture of this age in the life of peoples would have appeared only coarse and revolving; its interesting and poetical character would have been neither relished nor understood; conventionalisms were then turned into habits, and factitious manners held sway over the whole of society; Homer himself, in an age so destitute of simplicity and naturalness, was admired on hearsay only; and if no one dared to call in question his title to glory, he was pitied for having been obliged to shed the lustre of his genius upon an epoch of barbarism and ignorance. Prodigious events have since renewed the state of society, broken up old forms, conventional habits, and factitious manners; simple ideas and natural feelings have resumed their empire; a kind of rejuvenescence has taken place in the minds of men, and they have become capable of understanding man at every degree of civilization, and of taking pleasure in the simple and poetic narratives of infant society. In our days it has been felt that barbarian times also deserved, in some respects, to be called heroic times; in our days, mankind has discovered the faculty, as well as the necessity, of obtaining a true knowledge of the institutions, ideas, and manners of peoples, on their entrance into social life. Thus this section of history has regained an interest which it had ceased to possess; it is no longer regarded as the patrimony of the erudite; it has been seized upon by novelists themselves, and the public have taken delight in following their footsteps.

At the same time, the need of broad philosophical views of the course of human affairs and the progress of society, has gained strength instead of becoming extinguished; we have not ceased to look to facts for something more than mere narratives; we still expect them to be summed up in general ideas, and to furnish us with those great results which throw light on the sciences of legislation and political economy, and on the vast study of the destiny of the human race. Far, then, from being less inclined to consider history under a philosophic point of view, it seems to have acquired a wider interest in this respect. More than ever, we feel the necessity of tracing events back to their primitive causes, of reducing them to their simplest expression, of penetrating into their remotest effects; and if old chronicles have regained their charm in our eyes, the great combinations of historic philosophy still constitute a pressing necessity of our minds.

Finally, our birth into public life, the institutions that we possess and that we will not lose, that aurora of liberty which, though it arose in the midst of tempests, is not destined to perish therein, the past which we leave behind us, the present with which we are busied, the future which awaits us, infine, our entire position—all impart to history, considered under the political point of view, the most imperious interest. Before our time, the movement of public life, the game of parties, the war of factions, the struggles of assemblies, all the agitations and developments of power and liberty, were things which men had heard of but had not seen, which they had read of in books but which were not actually existing around the reader. These things have occurred, and are now occurring under our very eyes; every consideration leads us to study them, every circumstance aids us to comprehend them. And not to us alone has political life been restored: it has returned into history, hitherto cold and vague to the minds of those who had not been struck by the real visions of the scenes which it relates. And while regaining our comprehension of history, we have also become aware of the counsels and the lessons which it can furnish us; its utility no longer consists, as formerly, in a general idea, a sort of moral and literary dogma professed by writers rather than adopted and practised by the public. Now, a more or less thorough acquaintance with history, and especially with that of free peoples, is not merely an accomplishment of cultivated minds; it is a necessity to every citizen who feels desirous to take part in the affairs of his country, or merely to appreciate them correctly. And thus this great study now presents itself to us with all the kinds of interest that it is able to offer, because we have in us ability to consider it under all its aspects, and to seek and to find all that it contains.1

Such are the motives which induce me to select the history of the political institutions of England as the subject of this course of lectures. Here, in effect, history considered under its three different aspects, presents itself with the greatest simplicity and richness. Nowhere have the primitive manners of modern peoples been preserved for a longer period, or exercised so decisive an influence upon the institutions of a country. Nowhere do great philosophical considerations spring with greater abundance from the contemplation of events and men. Here, infine, representative government, the special object of our study, developed itself without interruption, received into its bosom and fertilized by its alliance the religious movement imparted to Europe in the sixteenth century, and thus became the starting point of the political reformation which is now beginning on the Continent.

It is by no means my intention to relate to you the history of England. I intend merely to consider it under its political point of view; and even under this point of view, we shall not study all the institutions of the kingdom. Representative government is our theme; and we shall therefore follow the history of the Parliament step by step. We shall only refer to judicial, administrative, and municipal institutions in so far as they are connected with representative government, and have contributed either to form it, or to determine its character.

Last year, before entering upon our examination of facts, I attempted to define with precision what we ought to understand by representative government. Before seeking for its existence, I desired to know by what signs we might discern its presence. Now that we are about to study the history of the only representative government which, until our days, has existed with full vitality in Europe, I think it well to recapitulate some of these ideas.

I have said that I had no very high opinion of the division of governments by publicists, into monarchical, aristocratic, and democratic; and that, in my opinion, it was by their essential principle, by their general and internal idea, that governments were characterized and distinguished. The most general idea that we can seek out in a government is its theory of sovereignty, that is, the manner in which it conceives, places, and attributes the right of giving law and carrying it into execution in society.

There are two great theories of sovereignty. One seeks for it and places it in some one of the real forces which exist upon the earth, no matter whether it be the people, the monarch, or the chief men of the people. The other maintains that sovereignty as a right can exist nowhere upon earth, and ought to be attributed to no power, for no earthly power can fully know and constantly desire truth, reason, and justice—the only sources of sovereignty as a right, and which ought also to be the rule of sovereignty in fact. The first theory of sovereignty founds absolute power, whatever may be the form of the government. The second combats absolute power in all its forms, and recognises its legitimacy in no case. It is not true to say that of these two theories, one or the other reigns exclusively in the various governments of the world. These two theories commingle in a certain measure; for nothing is completely destitute of truth or perfectly free from error. Nevertheless, one or the other always dominates in every form of government, and may be considered as its principle.

The true theory of sovereignty, that is, the radical illegitimacy of all absolute power, whatever may be its name and place, is the principle of representative government.

In fact, in representative government, absolute power, sovereignty as a right, inhere in none of the powers which concur to form the government: they must agree to make the law; and even when they have agreed, instead of accepting for ever the absolute power which actually results from their agreement, the representative system subjects this power to the variableness of election. And the electoral power itself is not absolute, for it is confined to the choice of the men who shall have a share in the government.

It is, moreover, the character of that system, which nowhere admits the legitimacy of absolute power, to compel the whole body of citizens incessantly, and on every occasion, to seek after reason, justice, and truth, which should ever regulate actual power. The representative system does this, 1. by discussion, which compels existing powers to seek after truth in common; 2. by publicity, which places these powers when occupied in this search, under the eyes of the citizens; and 3. by the liberty of the press, which stimulates the citizens themselves to seek after truth, and to tell it to power.

Finally, the necessary consequence of the true theory of sovereignty is, that all actual power is responsible. If, in fact, no actual power possesses sovereignty as a right, they are all obliged to prove that they have sought after truth, and have taken it for their rule; and they must legitimize their title by their acts, under penalty of being taxed with illegitimacy. The responsibility of power is, in fact, inherent in the representative system; it is the only system which makes it one of its fundamental conditions.

After having recognised the principle of representative government, we investigated its external characteristics, that is to say, the forms which necessarily accompany the principle, and by which alone it can manifest its existence. These forms we reduced to three: 1. division of powers; 2. election; and 3. publicity. It is not difficult to convince ourselves that these characteristics necessarily flow from the principle of representative government. Indeed, 1. all sole power in fact soon becomes absolute in right. It is therefore necessary that all power in fact should be conscious of dependence. “All unity,” says Pascal, “that is not multitude, is tyranny.” Hence results the necessity for two Houses of Parliament. If there be only one, the executive power either suppresses it, or falls into so subaltern a condition that there would soon remain only the absolute power of the single House of Parliament. 2. Unless election occurred frequently to place power in new hands, that power which derived its right from itself would soon become absolute in right; this is the tendency of all aristocracies. 3. Publicity, which connects power with society, is the best guarantee against the usurpation of sovereignty as a right by the actual power.

Representative government can neither be established nor developed without assuming, sooner or later, these three characteristics; they are the natural consequences of its principle; but they do not necessarily co-exist, and representative government may exist without their union.

This was the case in England. It is impossible not to enquire why representative government prevailed in that country, and not in the other States of the Continent. For, indeed, the Barbarians who settled in Great Britain had the same origin and the same primitive manners as those who, after the fall of the Roman Empire, overran Europe; and it was not in the midst of very different circumstances that they consolidated their dominion in that country.

From the fifth to the twelfth century, we find no more traces of true representative government in England than upon the Continent; its institutions were analogous to those of the other European nations; and we behold in every land the conflict of the three systems of free, feudal, and monarchical institutions.

We cannot fully resolve this question beforehand, and in a general manner. We shall answer it gradually, as we advance in the examination of facts. We shall see by what successive and varied causes political institutions took a different course in England to that which they pursued on the Continent. We may, however, indicate at once the great fact which, from a very early period, determined the character and direction of British institutions.

The first of the great external characteristics of representative government, division of power, is met with in every age, in the government of England. Never was the government concentrated in the hands of the king alone; under the name of the Wittenagemot, of the Council or Assembly of the Barons, and after the reign of Henry III., of the Parliament, a more or less numerous and influential assembly, composed in a particular manner, was always associated with the sovereignty. For a long period, this assembly somewhat subserved despotism, and sometimes substituted civil war and anarchy in the place of despotism; but it always interfered in the central government. An independent council, which derived its strength from the individual power of its members, was always adjoined to the royal authority. The English monarchy has always been the government of the king in council, and the king’s council was frequently his adversary. The great council of the king became the Parliament.

This is the only one of the essential characteristics of the system of representative government, which the government of England presents, until the fourteenth century. During the course of this epoch, the division of power, far from efficiently repressing despotism, served only to render it more changeful and more dangerous. The council of barons was no more capable than the king himself, of comprehending and establishing a stable political order and true liberty; these two forces were incessantly in conflict, and their conflict was war, that is to say, the devastation of the country, and the oppression of the mass of the inhabitants. But from this there resulted, in process of time, two decisive facts, from which liberty took its origin; they were these:

1. From the very fact that power was divided, it followed that absolute power, sovereignty as a right, was never attributed to the king, nor supposed to be in itself legitimate. Now, this is the very principle of representative government; but this principle was far from being understood, or even suspected, philosophically speaking. It was incessantly stifled by force, or else it was lost in the confusion of the ideas of the time regarding divine right, the origin of power, and so forth; but it existed in the depths of the public mind, and became by slow degrees a fundamental maxim. We find this principle formally expressed in the writings of Bracton, Lord Chief Justice under Henry III., and of Fortescue, who held the same office under Henry VI. “The king,” says Bracton, “should be subject to no man, but only to God and to the law, for the law makes him king; he can do nothing upon earth but that which, by law, he may do; and that which is said in the Pandects, that that which pleases the king becomes law, is no objection; for we see by the context, that these words do not mean the pure and simple will of the prince, but that which has been determined by the advice of his councils, the king giving the sanction of his authority to their deliberations upon the subject.”

“The English monarchy,” says Fortescue, “ non solum est regalis, sed legalis et politica potestas,” 2 and he frequently develops this idea. The limitation of powers was, thus, at a very early period, a matter of public right in England; and the legitimacy of sole and absolute power was never recognized. Thus was established and preserved, for better times, the generative principle of all legitimate power as well as of all liberty; and by the virtue of this principle alone was maintained, in the souls of the people, that noble sentiment of right which becomes extinguished and succumbs wherever man finds himself in presence of an unlimited sovereignty, whatever may be its form and name.

2. The division of the supreme power produced yet another result. When the towns had acquired greater wealth and importance, when there had been formed, beyond the circle of the king’s immediate vassals, a nation capable of taking part in political life, and which the government found it necessary to treat with consideration, this nation naturally adjoined itself to the great council of the king, which had never ceased to exist. In order to gain itself a place in the central government, it had no need abruptly to create new institutions; a place was already prepared to receive it, and although its entrance into the national council ere long changed its nature and forms, it at least was not under the necessity of asserting and re-animating its existence. There was a fact capable of receiving extension, and of admitting into its bosom new facts, together with new rights. The British Parliament, to say truth, dates only from the formation of the House of Commons; but without the presence and importance of the council of Barons, the House of Commons would, perhaps, never have been formed.

Thus, on the one hand, the permanence of the idea that the sovereignty ought to be limited, and, on the other, the actual division of the central power, were the germs of representative government in England. Until the end of the thirteenth century we met with no other of its characteristics; and the English nation, until that period, was not perhaps actually more free and happy than any of the peoples of the Continent. But the principle of the right of resistance to oppression was already a legal principle in England; and the idea of the supremacy which holds dominion over all others, of the supremacy of the law, was already connected, in the mind of the people and of the jurisconsults themselves, not with any particular person, or with any particular actual power, but with the name of the law itself. Already the law was said to be superior to all other powers; sovereignty had thus, in principle at least, left that material world in which it could not fix itself without engendering tyranny, to place itself in that moral world, in which actual powers ought constantly to seek it. Many favourable circumstances were doubtless necessary to fecundate these principles of liberty in England. But when the sentiment of right lives in the souls of men, when the citizen meets with no power in his country which he is bound to consider as infallible and absolutely sovereign, liberty can never fail to spring up. It has developed itself in England less universally, less equally, and less reasonably, we venture to believe, than we are permitted to hope will be the case at the present day in our own country; but, in fine, it was born, and increased in growth in that country more than in any other; and the history of its progress, the study of the institutions which served as its guarantees, and of the system of government to which its destinies seem henceforward to link themselves, is at once a great sight and a necessary work for us. We shall enter upon it with impartiality, for we can do so without envy.3

LECTURE 2

Before entering upon the history of representative government in England, I think it necessary, in the first place, to remind you of the facts which served, as it were, as its cradle—of the movements of the different nations which successively occupied England—the conquest of the Normans—the state of the country at the period of this conquest, about the middle of the eleventh century—and the principal events which succeeded it. A knowledge of facts must always precede the study of institutions.

The Britons—Gauls or Celts in origin—were the first inhabitants of Great Britain. Julius Caesar subjugated them, and the Roman dominion substituted a false and enervating civilization in the place of their barbarian energy. On being abandoned by Rome, when that city abdicated piecemeal the empire of the world, the Britons were unable to defend themselves, and summoned the Saxons to their assistance. The latter, finding them already conquered, from their allies became ere long their masters, and exterminated or drove back into the mountains of Wales, the people whom the Romans had subdued. After a long series of incursions, the Danes established themselves in the north of England, during the ninth century, and in the latter part of the eleventh century, the Normans conquered the whole country.

Towards the middle of the eleventh century, and before the Norman conquest, great enmity still subsisted between the Saxons and the Danes, whereas between the Danes and Normans the recollections of a common origin were still fresh and vivid. Edward the Confessor had been brought up at the Court of Normandy, and the Normans were held in great favour by him. He had appointed several of them to great offices in his realm. The primate, the Archbishop of Canterbury, was a Norman; and Norman was spoken at the Court of Edward. All these circumstances seemed to prepare the way for the invasion of England by the Normans.

The internal state of England was equally favourable to it. The Saxon aristocracy had risen in proportion as the royal power had declined; but the power of the great land-holders was a divided power, and their dissensions opened a door for foreign interference. Harold, the brother-in-law of king Edward, who had died without issue, had just usurped the crown; so that William had not even to oppose a legitimate monarch. “Whether the English make Harold or another their duke or king, I grant it,” said William on the death of Edward; but he, nevertheless, assumed to be heir of the kingdom, by virtue of a will of the deceased monarch, and came to assert his right at the head of an army of 40,000 men. On the 14th of October, 1065, Harold lost both the crown and his life at the battle of Hastings. The primate then offered the crown of England to William, who accepted it after some show of hesitation, and was crowned on the 6th of December. He at first treated his Saxon subjects with mildness, but ordered the construction of a number of fortresses, and gave large grants of lands to his Norman comrades. During a journey which he made into Normandy, in the month of March, 1067, the Saxons revolted against the tyranny of the Normans. William suppressed the revolt, and continued for some time still faithful to his policy of conciliation. But rebellions continued to arise, and William now had recourse to rigorous measures. By repeated confiscations he ensured the sovereign establishment of the Normans, and of the feudal system. The Saxons were excluded from all great public employments, and particularly from the bishoprics. William covered England with forts, substituted the Norman language for the Anglo-Saxon, and made it the language of law—a privilege which subsisted until the reign of Edward III. He enacted very severe laws of police, among others the law of curfew, so greatly detested by the Saxons, but which already existed in Normandy; and finally, he laid waste the county of Yorkshire, the stronghold of the Saxon insurgents.

The Pope had given his approval to William’s enterprise, and had excommunicated Harold. Nevertheless, William boldly repulsed the pretensions of Gregory VII, and forbade his subjects to recognize any one as Pope, until he had done so himself. The canons of every council were to be submitted to him for his sanction or rejection. No bull or letter of the Pope might be published without the permission of the king. He protected his ministers and barons against excommunication. He subjected the clergy to feudal military service. And finally, during his reign, the ecclesiastical and civil courts, which had previously been commingled in the county courts, were separated.

After the death of William, in 1087, his States were divided among his three sons, Robert, William, and Henry. William Rufus succeeded to the throne of England, and Robert to the dukedom of Normandy. William’s reign is remarkable only for acts of tyranny, for the extension of the royal forests, and for odious exactions; he would not appoint bishops to any of the vacant episcopal sees, but appropriated their revenues to his own use, considering them as fiefs whose possessors were dead.

William Rufus was almost constantly at war with his brother Robert. He ended by buying Normandy of him, or, to speak more correctly, he received it in pledge for thirteen thousand silver marks which he lent to Robert when about to join the Crusaders. In the year 1100, he made a similar bargain with William, Count of Poitou and Duke of Guienne. The Norman barons bitterly regretted that Robert was not King of England, as well as Duke of Normandy. They rebelled several times against William; and various facts indicate that the Saxon nation gained something by these revolts, and was rather better treated, in consequence, by its Norman monarch. But the relations of the two peoples were still extremely hostile when William Rufus was killed while hunting, on the 2nd of August, 1100.

Henry I. usurped the crown of England from his brother Robert, to whom it rightfully belonged; and the Norman barons, who preferred Robert, offered only a feeble resistance to Henry; he was crowned in London. His first act was a charter, in which, to gain forgiveness for his usurpation, he promised not to seize upon the revenues of the church during the vacancy of benefices; to admit the heirs of the crown vassals to the possession of their estates, without exposing them to such violent exactions as had been usual during the preceding reigns; to moderate the taxes, to pardon the past, and finally to confirm the authority of the laws of St. Edward, which were so dear to the nation. A short time after the concession of this charter, Henry married Matilda, the daughter of the King of Scotland, and niece of Edgar Atheling, the last heir of the Saxon dynasty; by this marriage he hoped to conciliate the attachment of the Saxon people. In order to marry him, Matilda was liberated from her vows, for she had taken the veil, not with the intention of becoming a nun, says Eadmer, but in order to escape from the brutal violence of the Normans.

In 1101, Robert returned from the Crusades, and invaded England, but a treaty soon put a stop to his progress, and he renounced his pretensions on receiving a pension of 3000 marks, and the promise of succeeding to Henry’s inheritance. The bad government of Robert in Normandy occasioned continual disturbances in that country, and maintained the ever-increasing tendency towards the union of Normandy with England. Henry, taking advantage of this state of things, invaded Normandy, where he had many powerful adherents, and after three years of war, in 1106, the battle of Tenchebray decided the fate of Robert, who was taken prisoner and confined in Cardiff Castle, where he languished twenty-eight years. Normandy was then united to England.

The reign of Henry I. was disturbed by continual quarrels with the clergy; he was obliged to renounce the right of investiture, which was held to confer spiritual dignity, but the bishops continued to swear to him fidelity and homage, by reason of their temporal possessions. In the midst of the obstacles which lay in his path, Henry governed with vigour and prudence; he humbled the great barons, restored order, and restrained the clergy; and these were the qualities which then constituted a great king. The pretended code which is ascribed to Henry I. is a later compilation; but he effected several important reforms, among others, by repressing the abuses of the right of purveyance, by which the socage tenants of the king were bound gratuitously to supply the court, while journeying, with provisions and carriages. It is also said that he substituted, for tenants of this class, the payment of a money rent instead of the rent in kind which they had formerly paid; but it is not probable that this was a general rule.

Henry I. died in 1135. His reign promoted, to some extent, the fusion of the two peoples: but the separation was still wide. His son William being dead, Henry had appointed as his successor his daughter Matilda, the wife of Geoffrey Plantagenet, Count of Anjou; and an assembly of barons had ratified his choice. But, during the absence of Matilda, Stephen, Count of Boulogne, the grandson of William the Conqueror by his mother Adela, the wife of Stephen, Count of Blois, usurped the crown of England; but only a few barons attended at his coronation, on the 22nd of December, 1135. Stephen was anxious, by making large concessions, to obtain pardon for his usurpation; and he published two charters, which promised all that those issued by Henry had promised, including the maintenance of the laws of Edward the Confessor. The clergy and barons, however, swore to him only a conditional oath; and wishing to make him pay dearly for their support, the church exacted from him the sanction of all its privileges, and the barons obtained permission to build fortresses upon their estates. The kingdom soon bristled with castles and ramparts. Eleven hundred and fifteen were erected during the reign of Stephen, and assured, far more effectually than his charters, the power and independence of the barons.

In 1139, an insurrection broke out in favour of Matilda. King Stephen was defeated and made prisoner at the battle of Lincoln, on the 26th of February, 1141. A synod of ecclesiastics, without the co-operation of any laymen, gave the crown to Matilda; the deputies of the city of London were the only laymen present, and they demanded the liberation of King Stephen, but in vain; they were admitted into the synod merely to receive orders. A conspiracy against Matilda overthrew, ere long, the bold work of the clergy; Stephen regained his liberty in 1142, and the civil war recommenced. But a new enemy had now arisen against him. Prince Henry, the son of Matilda, though still young, had already rendered himself remarkable for his bravery and prudence. His mother promised him the dukedom of Normandy; the death of his father, Geoffrey Plantagenet, had given him Maine and Poitou; and his marriage with Eleanor of Guienne had gained him two other vast provinces of France. In 1154, he appeared in England with an army, but a negotiation speedily terminated the conflict, and Henry was acknowledged as the successor of Stephen, who died a year afterwards, on the 25th of October, 1154.

A variety of circumstances were favourable to the power of Henry II. at his accession. He united in his own person the rights of both the Saxon and Norman dynasties. He possessed immense dominions on the Continent; he was Count of Anjou, Duke of Normandy, Duke of Guienne Maine, Saintonge, Poitou, Auvergne, Périgord, Augoumois and Limousin. He married his third son, Geoffrey, while still a child, to the infant heiress of the duchy of Brittany. He soon became engaged in war with the nobility and the clergy. He revoked all the gifts of the royal domains which had been granted by Stephen and Matilda, and regained by arms all that was not restored to him peaceably. He demolished a large number of the feudal fortresses. No coalition of the barons had as yet been formed, and their individual power was utterly unable to compete with that of Henry; they therefore submitted. The king also rallied around him a great number of interests by the maintenance of strict order, and by the appointment of itinerant justices to secure a more equitable administration of the laws. His struggle with the clergy was more stormy, and its success less complete; for the clergy, who were already constituted into a most powerful corporation, and were sustained from without by the Holy See, had found within their own body a chieftain capable of resisting even the greatest monarch. Thomas Becket, born in London in 1119, had advanced so far in the favour of Henry as to be appointed his Lord High Chancellor. His services, his devotedness, the magnificence of his mode of life, all combined to persuade Henry that, by elevating Becket to the highest ecclesiastical dignities, he would gain a powerful supporter in the church; he, therefore, had him appointed Archbishop of Canterbury and Primate of the kingdom. But no sooner was Becket appointed to this office than he devoted himself to the interests of his order, and boldly undertook to exercise, and even to extend the rights of his position. A clerk had committed a murder; Becket punished him according to the laws of the clergy: Henry desired to have him judged by the civil law; Becket resisted; and Henry seized this opportunity for attacking openly and systematically the ecclesiastical power. He assembled the bishops, and inquired of them whether they would submit to the ancient laws of the realm, or not; and they were forced to consent to do so. The famous Council of Clarendon was convoked in 1164 to define these laws, and fix the limits of the two powers. The king had conciliated the support of the lay barons. Sixteen articles resulted from the deliberations of this assembly; they are to the following effect:

1. All suits concerning the advowson and presentation of churches shall be determined in the civil courts. 2. Ecclesiastics, when accused of any crime, shall appear before the king’s justices, who shall determine whether the case ought to be tried in the secular or episcopal courts. The king’s justices shall inquire into the manner in which causes of this kind are judged by the ecclesiastical courts; and if the clerk is convicted or confesses his crime, he shall lose his benefit of clergy. 3. No archbishop, bishop, or ecclesiastic of high rank shall leave the kingdom without the king’s permission. If he should go abroad, he must give surety to the king for his return, and for his good conduct in all matters affecting the interests of the king. 4. Excommunicated persons shall not be bound to give security for continuing in their present place of abode, but merely for presenting themselves to suffer the judgment of the church and to receive absolution. 5. No tenant in chief of the king, no officer of his household, or of his demesnes, shall be excommunicated, or his lands put under an interdict, until application has been made to the king, or, in his absence, to the grand justiciary, in order to obtain justice at his hands. 6. All appeals in spiritual causes shall be carried from the archdeacon to the bishop, from the bishop to the primate, and from him to the king, and shall be carried no further without the king’s consent. 7. If any law-suit arise between a layman and an ecclesiastic concerning the nature of a fief, the question shall be decided by the king’s chief justice, by the verdict of twelve probi homines;1 and according as the nature of the fief may be determined, further proceedings shall be carried on before the civil or ecclesiastical courts. 8. Any inhabitant of a city, town, borough or manor in the king’s demesnes, who has been cited before an ecclesiastical court to answer for some offence, and who has refused to appear, may be placed under an interdict; but no one may be excommunicated till the chief officer of the place where he resides be consulted, that he may compel him by the civil authority to give satisfaction to the church. 9. The judgment of all causes, for debts contracted by oath or otherwise, is referred to the civil courts. 10. When any archbishopric, or bishopric, or abbey, or priory of royal foundation is vacant, the king shall enjoy its revenues; and when it becomes necessary to fill up a see, the king shall summon a chapter to proceed, in the royal chapel, to the election, which must obtain the sanction of the king, according to the advice of the prelates whom he may have thought proper to consult; and the bishop-elect shall swear fealty and homage to the king as to his lord, for all his temporal possessions, with the exception of the rights of his order. 11. Churches belonging to the king’s fee shall not be granted in perpetuity without his consent. 12. No layman shall be accused before a bishop, except by legal and reputable promoters and witnesses; and if the culprit be of such high rank that no one dares to accuse him, the sheriff, upon the demand of the bishop, shall appoint twelve lawful men of the neighbourhood, who, in presence of the bishop, shall pronounce upon the facts of the case, according to their conscience. 13. Archbishops, bishops, and other spiritual dignitaries who are immediate vassals of the king, shall be regarded as barons of the realm, and shall possess the privileges and be subjected to the burdens belonging to that rank, except in the case of condemnation to death or to the loss of a limb. 14. That if any person resist a sentence legally pronounced upon him by an ecclesiastical court, the king shall employ his authority in obliging him to make submission. In like manner, if any one throw off his allegiance to the king, the prelates shall assist the king with their censures in reducing him. 15. Goods forfeited to the king shall not be protected in churches or churchyards. 16. No villein shall be ordained a clerk without the consent of the lord on whose estate he was born.

When the constitutions of Clarendon had once been adopted, the king required that the bishops should affix their seals thereto; all consented with the exception of Becket, who resisted for a long while, but yielded at length, and promised “legally, with good faith, and without fraud or reserve,” to observe the constitutions. The king sent a copy of them to Pope Alexander, who approved only the last six articles, and annulled all the rest. Strong in the support of the Pope, Becket did penance for his submission, and renewed the conflict. It soon became desperate. The king harassed Becket with persecutions of all kinds, requiring him to give an account of his administration while Chancellor, and charging him with embezzlement; the bishops became alarmed and deserted the cause of the primate. Becket resisted with indomitable courage; but he was finally compelled to fly to the Continent. Henry confiscated all his property, and banished all his relatives and servants, to the number of four hundred. Becket excommunicated the servants of the king, and, from his retirement in a French monastery, made Henry totter on his throne. At length, the Pope with his legates, and the King of France, interfered to put an end to this conflict. Henry, who was embarrassed by a multitude of other affairs, yielded, and Becket returned to his see. But his conscience united with his pride to rekindle the war. He censured the prelates who had failed to support him, and excommunicated some of the king’s servants who had been active in their persecution of the clergy. “What!” cried Henry, in a transport of passion, “of the cowards who eat my bread, is there not one who will free me from this turbulent priest?” He was then at Bayeux; four of his gentlemen set out at once for Canterbury, and assassinated Becket on the steps of the altar of his cathedral, on the 29th of December, 1170. The king dispatched a courier in pursuit of them, but he arrived too late to prevent the consummation of the deed. Henry manifested the utmost grief at the death of Becket; we may, however, suppose his sorrow to have been feigned. In order to avert the consequences, he at once sent envoys to Rome to attest his innocence, and the Pope contented himself with fulminating a general excommunication against the authors, fautors, or instigators of the assassination.

Other events, wars with Scotland and France, and an expedition into Ireland, diverted the public attention from Becket’s death. In 1172, Henry resumed his negotiations with Rome, and concluded a treaty which, on the whole, ratified the enactments of the Council of Clarendon. When he had thus become reconciled with the Pope, he made his peace with his subjects, whose enmity he feared, by a public penance on the tomb of Becket, who was honoured by all England as a martyr.

In 1172, some English adventurers conquered without difficulty, and almost without a battle, a part of Ireland. Henry led an expedition into that country, and his authority was recognized. The remainder of his life was agitated by continual wars in defence of his possessions on the Continent, and by the rebellions of his children, who were anxious to divide his power and dominions before his death. He died of grief at their conduct on the 6th of July, 1189, at Chinon, near Saumur; and the corpse of one of the greatest kings of England and of his age was left for some time, deserted and stripped, upon the steps of an altar. His eldest son, Richard Coeur-de-Lion, succeeded him without difficulty.

In every age, and at every great epoch of history, we almost invariably witness the appearance of some individuals who seem to be the types of the general spirit and dominant dispositions of their time. Richard, the adventurer-king, is an exact representation of the chivalrous spirit of the feudal system and of the twelfth century. Immediately upon his accession, his only thought was the accumulation of money for the Crusades; he alienated his domains; he publicly sold offices, honours, and even the loftiest dignities, to the highest bidder; he even sold permissions not to go on the Crusade; and he was ready to sell London, he said, if he could find a purchaser. And while he was sacrificing everything to his passion for pious adventures, his people massacred the Jews because some of them had appeared at the coronation of the king, notwithstanding the prohibition.

Richard set out at length for the Crusades, leaving as Regent during his absence his mother Eleanor, who had excited the princes her sons to rebellion against the king their father; and he associated the Bishops of Durham and Ely with her in the regency. The tyranny of the Bishop of Ely spread confusion throughout England; he placed his colleague under arrest, and governed alone with boundless arrogance, until at last Prince John had him deposed by a council of barons and prelates. Richard, on his return from the Crusades, was, as is well known, detained prisoner in Austria, from the 20th of December, 1193, to the 4th of February, 1194, when he recovered his liberty by the devotedness of one of his vassals. The power of feudal feelings and ties was also manifested in the eagerness of his subjects to pay his ransom. Richard, when restored to his kingdom, spent the remainder of his life in continual wars in France, and died, on the 6th of April, 1199, of a wound received at the siege of the castle of Chalus, near Limoges, while endeavouring to gain possession of a treasure which, it was said, the Count of Limoges had found.

During the reign of Richard, the liberties of the towns and boroughs, which had commenced under William Rufus, made considerable progress, and prepared the way for that decisive advance of national liberties and representative government in England—the Great Charter of King John.

LECTURE 3

After having given a summary, in the preceding lecture, of the principal historical facts, we are now about to survey Anglo-Norman institutions during the period to which we have just turned our attention, namely, from the middle of the eleventh century until the end of the twelfth.

How came it that free institutions were established from this time forth among this people, and not in other countries? The answer to this question may be found in the general facts of English history, for institutions are much more the work of circumstances than of the texts of laws.

The States which were founded in Europe, from the fifth to the seventh century, were established by hordes of wandering Barbarians, the conquerors of the degraded Roman population. On the side of the victors, there existed no fixed and determinate form of social life; on the side of the vanquished, forms and institutions crumbled into dust; social life died of inanition. Hence arose long disorders, ignorance and impossibility of a general system of organization, the reign of force, and the dismemberment of sovereignty.

Nothing of the kind occurred in England in the eleventh century, in consequence of the Norman Conquest. A Barbarian people which had already been established in a country for two hundred years conquered another Barbarian people which had been territorially established for six hundred years. For this reason, many decisive differences may be observed between this conquest and those which took place on the Continent.

1. There was much more resemblance, and consequently much more equality, between the two peoples; their origin was the same, their manners and language were analogous, their civilization was almost identical, and the warlike spirit was as powerful among the vanquished as among the victors. Thus, two nations under almost similar conditions, found themselves in presence of one another, and the conquered nation was able, as well as disposed, to defend its liberties. Hence arose many individual evils, but no general and permanent abasement of one race before the other. Oppressed at first, but retaining its warlike character, the Saxon race offered an energetic resistance, and gradually raised itself from its inferior position.

2. The two peoples also possessed political institutions of a singularly analogous nature, whereas elsewhere, in France and in Italy, the Roman populations, to speak the truth, possessed no institutions at all. The communes and the clergy were required to maintain, even obscurely, the Roman law among societies on the Continent; whereas in England, Saxon institutions were never stifled by Norman institutions, but associated with them, and finally even changed their character. On the Continent, we behold the successful sway of barbarism, feudalism, and absolute power, derived either from Roman or ecclesiastical ideas. In England, absolute power was never able to obtain a footing; oppression was frequently practised in fact, but it was never established by law.

3. The two peoples professed the same religion; one had not to convert the other. On the Continent, the more Barbarian victor adopted the religion of the vanquished, and the clergy were almost entirely Romans; in England, they were both Saxons and Normans. Hence resulted an important fact. The English clergy, instead of enrolling themselves in the retinue of the kings, naturally assumed a place among the landed aristocracy, and in the nation. Thus the political order has almost constantly predominated in England over the religious order; and ever since the Norman Conquest, the political power of the clergy, always called in question, has always been on the decline.

This is the decisive circumstance in the history of England—the circumstance which has caused its civilization to take an altogether different course to that taken by the civilization of the Continent. Of necessity, and at an early period, a compromise and amalgamation took place between the victors and the vanquished, both of whom had institutions to bring into common use; institutions more analogous than existed anywhere else—stronger and more fully developed, because they belonged to peoples which had already been territorially established for a considerable time.

Thus, Saxon institutions and Norman institutions are the two sources of the English government. The English commonly refer their political liberties to the former source; they see that, on the Continent, feudalism did not produce liberty; and they attribute their feudalism to the Normans, and their liberty to the Saxons. This distinction has even become a symbol of modern political parties; the Tories, in general, affect a neglect of Saxon institutions, whilst the Whigs attach to them the greatest importance. This view of events appears to me to be neither exact nor complete. Saxon institutions were not, by themselves, the principle of English liberties. The forced assimilation of the two peoples and of the two systems of institutions, was their true cause. There is even room for doubt whether, without the Conquest, liberty would have resulted from Saxon institutions; and we may believe that they would have produced in England results analogous to those which occurred on the Continent. The Conquest inspired them with new virtue, and caused them to produce results which, if they had been left to themselves, they would not have produced. Political liberty issued from them, but was begotten by the influence of the Conquest, and in consequence of the position in which the Conquest placed the two peoples and their laws.

I will now recall to your recollection Anglo-Saxon institutions as they existed before the Conquest; and you will soon see that it was the forced approximation of the two peoples which gave them vitality, and brought forth the liberties of England.

Among local institutions, some were based upon common deliberation, and others upon hierarchical subordination; that is to say, some upon a principle of liberty, and others upon a principle of dependence. On one side, were the courts of hundred and the county-courts; on the other, the great landowners and their vassals: every man of fourteen years old and upwards was obliged to belong either to a hundred or to a lord, that is, to be free or vassal. These two hostile systems, then, placed in presence of one another, conflicted as upon the Continent. There is some doubt about the question whether, before the Conquest, feudalism existed with regard to lands: that it existed with regard to persons there can be no doubt, for their hierarchical classification was real and progressive. In localities, although the system of free institutions subsisted, the system of feudal institutions was gaining ground; seignorial jurisdictions were encroaching upon free jurisdictions; and almost the same process, in fact, was going on as upon the Continent.

If we look at central institutions, we observe the same phenomenon. On the Continent, feudalism was produced by the aggrandizement of the king’s vassals, and by the dislocation of the sovereignty. The national unity, which resided in the assembly of the nation, became dissolved; the monarchical unity was unable to resist; and monarchy and liberty perished together. Events had taken the same course among the Anglo-Saxons. Under Edward the Confessor, the decay of the royal authority is evident. Earl Godwin, Siward, Duke of Northumberland, Leofric, Duke of Mercia, and many other great vassals, are rivals rather than subjects of the king; and Harold usurping the crown from Edgar Atheling, the legitimate heir, bears a strong resemblance to Hugh Capet. The sovereignty tends to dismemberment. Monarchical unity is in danger; national unity is in the same declining state, as is proved by the history of the Wittenagemot. This general assembly of the nation was at first the assembly of the warriors; afterwards the general assembly of the land-owners, both great and small; and at a later period, the assembly of the great land-owners alone, or of the king’s thanes. Even these at last neglect to attend its meetings; and isolate themselves upon their estates, in which each of them exercises his share of the dismembered sovereignty. This is almost identical with the course of affairs on the Continent. Only, the system of free institutions still subsists in England with some energy in local institutions, and especially in the county-courts. The feudal system is in a less advanced state than on the Continent.

What would have happened if the Conquest had not occurred? It is impossible to say with certainty, but probably just what happened on the Continent. The same symptoms are manifested, the decay of the royal authority and of the national assembly; and the formation of a hierarchical landed aristocracy, almost entirely independent of the central power, and exercising almost undisputed sovereignty in its domains, excepting only feudal liberties.

While Anglo-Saxon institutions were in this state, the Normans conquered England. What new elements did they introduce, and what effect did the Conquest produce upon the Saxons?

The feudal system was completely established in Normandy; the relations of the duke with his vassals, the general council of the barons, the seignorial administration of justice, the superior courts of the duke, were all organized already. This system is impracticable in a large State, especially when manners have made but little progress; it leads to the dislocation of the State and of the sovereignty, and to a federation of powerful individuals, who dismember the royal power. But in a State of limited extent, like Normandy, the feudal system may subsist without destroying unity; and notwithstanding William’s continual wars with some of his vassals, he was in very reality the powerful chieftain of his feudal aristocracy. The proof of this is contained in the very enterprize upon which he led them. He had, say the chronicles, from forty to sixty thousand men, of whom twenty-five thousand were hired adventurers or men who joined his standard in the hope of obtaining booty. He was not a leader of Barbarians, but a sovereign undertaking an invasion at the head of his barons.

After the Conquest and their territorial establishment, the bonds which united the Norman aristocracy were necessarily drawn still closer together. Encamped in the midst of a people who regarded them with hostility and were capable of vigorous resistance, the conquerors felt the need of unity; so they linked themselves together, and fortified the central power. On the Continent, after the Barbarian invasions, we hear of hardly any insurrections of the original inhabitants: the wars and conflicts are between the conquerors themselves; but in England they are between the conquerors and the conquered people. We indeed meet, from time to time, with revolts of the Norman barons against the king; but these two powers generally acted in concert, for their interest was their bond of union. Moreover, William had found a royal domain of large extent, already in existence: and it received immense increase from confiscations of the lands of Anglo-Saxon rebels. Although the spoliation was not universal, it was carried out with unexampled promptitude and regularity. William soon had 600 direct vassals, nearly all of whom were Normans, and his landed property was divided into 60,215 knight’s fees, a large quantity of which frequently belonged to the same master; for example, Robert de Mortaigne alone possessed 973 manors, the Earl of Warrenne 278, and Roger Bigod 123; but they were all scattered through different counties, for though the prudent William was willing to make his vassals rich, he was not desirous of making them too powerful.

Another proof of the cohesion of the Norman aristocracy is supplied by the Doomsday Book; a statistical account of the royal fiefs, and register of the demesne lands and direct vassals of the king, which was begun in 1081 and terminated in 1086: it was compiled by royal commissioners. King Alfred had also directed the compilation of a similar register, but it has been lost. Nothing of the kind was ever done in any other country.

The same cause which rendered Norman feudalism in England more compact and regular than on the Continent, produced a corresponding effect upon the Saxons. Oppressed by a powerful and thoroughly united enemy, they formed in serried ranks, constituted themselves into a national body, and clung resolutely to their ancient laws. And in the first instance, the establishment of William did not appear to have been entirely the work of force; there were even some forms of election; after the battle of Hastings, the crown was offered to him by the Saxons, and at his coronation at Westminster, he swore to govern the Saxons and Normans by equal laws. After this period, we incessantly find the Saxons claiming to be ruled by the laws of Edward the Confessor, that is to say, by the Saxon laws, and they obtained this right from all the Norman kings in succession. These laws thus became their rallying point, their primitive and permanent code. The county-courts, which continued to exist, also served to maintain the Saxon liberties. Feudal jurisdiction had made but little progress among the Saxons; it received extension on the arrival of the Normans; but it had no time to strike deep root, for it found itself limited on the one hand by the county-courts, and on the other by the royal jurisdiction. On the Continent, the royal authority conquered judicial power from feudalism; in England, the royal authority was superimposed upon the county-courts. Hence arises the immense difference between the two judicial systems.

Lastly, the Saxons still possessed landed property, which they defended or claimed in reliance upon titles anterior to the Conquest, and the validity of these titles was recognised.

To sum up the whole matter, the Norman Conquest did not destroy right among the Saxons, either in political or civil order. It opposed in both nations that tendency to isolation, to the dissolution of society and of power, which was the general course of things in Europe. It bound the Normans to one another, and united the Saxons among themselves; it brought them into presence of each other with mutual powers and rights, and thus effected, in a certain measure, an amalgamation of the two nations and of the two systems of institutions, under the sway of a strong central power. The Saxons retained their manners as well as their laws; their interests were for a long time interests of liberty, and they were able to defend them. This position, far more than the intrinsic character of Saxon institutions, led to the predominance of a system of free government in England.

LECTURE 4

You have already seen what was the influence of the Norman Conquest on the political destinies of England; and what was the position in which the two peoples were placed by it. They did not unite, nor did they mutually destroy one another. They lived in a state of national and political conflict, the one people being invested with a large power of government, while the other was far from being destitute of the means of resistance. We have now to enquire what were those institutions upon which this struggle was founded. We shall not concern ourselves with all the institutions which then existed in society: we are now looking for the sources of representative government, and are therefore at present only interested in those in which the germs of a representative system existed.

In order to determine with some precision the object of our study, it will be necessary to form some idea of the different functions of the power which is applied to the government of society. In the foremost rank is presented the legislative power, which imposes rules and obligations on the entire mass of society and on the executive power itself. Next appears the executive power, which takes the daily oversight of the general business of society—war, peace, raising of men and of taxes. Then the judicial power, which adjusts matters of private interest according to laws previously established. Lastly, the administrative power, charged, under its own responsibility, with the duty of regulating matters which cannot be anticipated and provided for by any general laws.

During three centuries these powers have tended to centralization in France; so much so, that if we would study the government of the country we must attend to them all, for they were all united and limited to the same individuals. Richelieu, Louis XIV, the Revolution, Napoleon, though in different positions, seem to have inherited the same projects and moved in the same direction. Such has not been the case in England. The administrative power there, for example, is to the present time divided and subdivided; it belongs either to those who are themselves interested in its movements, or to local magistrates, independent of the central power of the State, and forming no corporation among themselves. The judicial power itself is divided. It was so to some extent, through another and stronger cause, in the earlier times of England’s social life, as in all societies which have made but small advancement. Different powers are then not only distributed but commingled. The legislative power is no more central than others: its functions are continually usurped by local powers. Judicial power is almost entirely local. Centralization commences with the executive power properly so called, and this for a long time remains the only one in which any centralizing tendency is found. The proof of this is furnished by the feudal system, when almost all powers—those connected with justice, militia, taxes, &c.—were local, although the feudal hierarchy had at its head the king, and the assembly of the most important possessors of fiefs.

In this distribution and confusion of powers at the period we are considering, the institutions which we have especially to study in order to find the origin of representative government, are those which were central, that is to say, the Parliament and the king. On the Continent, centralization has resulted from an absolute power which has broken up and absorbed all local powers. In England, on the other hand, local powers have subsisted after a thousand vicissitudes, while they have increasingly regulated and defined their own action. A central government has emanated from them by degrees—it has progressively formed and extended itself. We shall trace this formation step by step, and shall only study local institutions as they relate to this one fact; and we shall see that this circumstance has been the principal cause of the establishment of a free government in England.

It is easily presumed that, in such a state of society, no other central institution, properly so called, existed for a long time, except royalty. There are certain maxims, certain habits of central political action, but no constant rule: the facts are varied and contradictory. Men of considerable influence, almost sovereigns in their own domains, are much less desirous of any participation in the central power; they rather attempt to defend themselves from it as often as it infringes upon their interests, than endeavour at all to control it beforehand, and to act upon it in a general manner. As in France, at the end of the Carlovingian dynasty, a king can hardly be met with, so in England, under the first Norman kings, a Parliament can hardly be found. That which existed bearing any resemblance to one differs but little from the Saxon Wittenagemot in the form which belonged to it immediately before the Conquest, or from the Council of Barons in Normandy. We find in the works of historians, and in charters, the following names: Curia de more, Curia regis, Concilium, Magnum Concilium,Commune Concilium, Concilium regni. But these are to be regarded only as vague expressions which designate assemblies, without giving any clue by which to determine their constitution and their power. Hale sees in them “a Parliament as complete and as real as has ever been held in England.” Carte and Brady see in them only tribunals, privy councils dependent upon the king, or pompous gatherings for the celebration of certain solemnities. It will be better for us to examine each of these words, and seek for the actual facts which correspond to them in the period to which our attention is directed.

According to the Tories in general, the words Curia de more, or Concilium, Curia regis, Magnum or Commune Concilium, represent different assemblies. Concilium is a privy council composed of men chosen by the king to serve him in the government. This Concilium was at the same time Curia regis, a tribunal to judge of matters brought before the king, and presided over by him, or, in his absence, by the chief justice. It was called also Curia de more, because its assemblies were held, according to ancient usage, three times in the course of the year, at Easter, Whitsuntide, and Christmas, and was even adjourned regularly from one period to another, as is done to the present day by the Courts at Westminster.

According to the Whigs, all these words originally designated, and continued to the reign of Henry II. (1154‒1189) to designate the general assembly of the nobles of the kingdom, who necessarily assembled before the king in order to try cases, to make laws, and to give their concurrence to the government.

The first of these opinions puts too great a restraint upon the meaning of the words; the second generalizes too much on isolated facts, and assigns to them an importance which does not belong to them.

Curia de more, Curia regis, signi fied originally neither the merely privy council of the king nor his tribunal; it was evidently a grand assembly at which all the nobles of the kingdom were present, either to treat of the affairs of State, or to assist the king in the administration of justice. “The king,” says the Saxon Chronicle, “was wont to wear his crown three times a year—at Easter in Winchester; at Whitsuntide in Westminster; at Christmas in Gloucester; and then there were present with him all the great men of all England, archbishops and bishops, abbots and counts, thanes and knights.”—“A royal edict,” says William of Malmesbury, “called to the Curia de more all the nobles of every grade, in order that those sent from foreign countries might be struck with the magnificence of the company, and with the splendour of the festivities.”—“Under William Rufus,” says Eadmer, “all the nobles of the kingdom came, according to usage, to the king’s court, on the day of our Saviour’s nativity.” Anselm, Archbishop of Canterbury, having presented himself ad Curiam pro more, “was received with joy by the king and all the nobility of the kingdom.” In 1109, at Christmas, “the kingdom of England assembled at London, at the court of the king, according to custom.”

Curia regis designates generally the place of the king’s residence, and by an extension of meaning the assembly held in that place; this assembly was general, and not a mere gathering of permanent judges. William I., summoning the Dukes of Norfolk and Hereford to attend and receive judgment in Curia regis, “convoked,” says Ordericus Vitalis, “all the nobility to his court.” Several judicial assemblies held under William Rufus, are called ferme totius regni nobilitas, totius regni adunatio.1 Facts and expressions of the same kind are to be found in documents of the time of Stephen. Even under Henry II., when the Court of King’s Bench had already become a distinct tribunal, the expression Curia regis is applied to the general assembly collected for the transaction of public business. Henry convoked his Curia at Bermondsey, cum principibus suis de statu regni et pace reformanda tractans.2 The second of the Constitutions of Clarendon orders all the immediate vassals of the crown interesse judiciis curiae regis.3 The great Council of Northampton, which passed judgment in the complaints of the crown against Becket, is called Curia regis; it comprised not only the bishops, counts and barons, but besides these, the sheriffs and the barons secundae dignitatis.4 Lastly, under Richard I., the general assembly of the nobles of the kingdom is still called Curia regis in the trial of the Archbishop of York: “On this occasion there were present the Earl of Morton and almost all the bishops, earls and barons of the kingdom.”

A little consideration will show us the inferences to be drawn from all these facts. At this period the legislative and judicial powers were not separated; both of them belonged to the assembly of the nobles, as they had previously belonged to the Wittenagemot of the Saxons. When deliberations with reference to a subject or personage of importance were required, this was the assembly that judged, as it interposed on all great occasions in the government. Thus all these different expressions denote originally the same assembly, composed of the nobles of the kingdom who were called to bear their share in the government.

How did they interpose? What power, what functions belonged to them?—these are questions which were futile at that time: for no one then had determinate functions, but everything was decided according to fact and necessity. The facts are these: “It was the ancient usage that the nobles of England should at Christmas time meet at the king’s court, either to celebrate the festival, or to pay their respects to the king, or to deliberate concerning the affairs of the kingdom.” We find that these assemblies were occupied in legislation, in ecclesiastical affairs, in questions of peace and war, in extraordinary taxes, in the succession of the crown, in the domestic affairs of the king, his marriage, the nuptials of his children, dissensions in the royal family, in one word, in all matters of government, says Florence of Worcester, whenever the king did not feel himself strong enough to settle them without the assistance of the general assembly, or when the mode in which he had settled them had excited complaints in sufficient number to admonish him of the necessity of taking the advice of others.

As to the holding of these assemblies, they were not regular: the Whigs have attached too much importance to the three periods mentioned as the times of their annual convocation: these gatherings were rather of the nature of solemnities, or festivals, than public assemblies. The king at that time considered it very important that he should exhibit himself surrounded by numerous and wealthy vassals, species multitudinis;5 his force and dignity were thereby displayed, just as that of every baron was exhibited in his own dominions. Besides, under Henry II. and Stephen, these three epochs ceased to be regularly observed. The Tories, on the other hand, not considering the gatherings called Curiae de more and Curiae regis as political assemblies, have represented them as extremely infrequent, which they were not; there is not a single reign, from the Conquest to the times of King John, in which several instances of them are not to be found; only there was nothing settled and fixed in this respect.

The question of the constitution of these assemblies remains. Historians and charters say nothing definite on this point: they speak of their members as magnates, proceres, barones, sometimes as milites, servientes, liberi homines. There is every reason to suppose that the feudal principle was here applied, and that, as a matter of right, all the immediate vassals of the king owed to him service at court as well as in war. On the other hand, the number of the vassals attached to the crown under William I. exceeded 600; and there is no reason for believing that all these would present themselves at the assembly, nor are there any facts to indicate that they did so. It had already become, for the most part, rather an onerous service than a right; accordingly they only presented themselves in small numbers.

The word most frequently employed is barones: it would appear to have been originally applied to all the direct vassals of the crown, per servitium militare, by knightly service; we find that the use of the word was limited more and more till it was applied almost exclusively to those vassals of the crown who were sufficiently wealthy and large proprietors to have a court of justice established in the seat of their barony. It is even difficult to admit that this last principle was generally followed. The name of barones was finally applied only to those immediate vassals who were so powerful that the king felt himself obliged to convoke them. There was no primitive and constant rule to distinguish the barons from other vassals; but a class of vassals was gradually formed who were more rich, more important, more habitually occupied with the king in affairs of state, and who came at last to arrogate to themselves exclusively the title of barons.

The bishops and abbots also formed part of these assemblies, both as being heads of the clergy, and as immediate vassals of the king or of the barons.

No trace of election or of representation is to be found, either on the part of the king’s vassals who did not present themselves at the assembly, or on the part of the towns. These last had in general suffered very greatly by the Norman Conquest. In York the number of houses was reduced from 1607 to 967; in Oxford from 721 to 243: in Derby from 243 to 140; in Chester from 487 to 282.

These, then, are the essential facts which we may gather with reference to the constitution and power of the King’s Court, or general assembly of the nobles of the nation. We see how little influence must have been exerted by an assembly of so irregular a character; and we shall see this still more strikingly illustrated when we have brought it into comparison with the rights, the revenues, and all the powers which were at that time enjoyed by royalty.

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.

LECTURE 6

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.1

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.

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 l