Chapter XVI: Part II: Essays Of Representative Government In England, (2)

Effects Of The Norman Conquest.

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.

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Resemblance Of The Two Peoples.

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.

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Sources Of The English Government.

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.

Anglo-Saxon Institutions.

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. {284} 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.

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Norman Institutions.

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 enter prize 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. {286} 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.

Cohesion Of The Norman Aristocracy.

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. {287} 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.

Results Of The Norman Conquest.

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.

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Lecture IV.

The English Parliament in the earliest times of the
Anglo-Norman Monarchy.

Different names given to the King's Great Council.

Its characteristics.

Its constitution.

Opinions of Whigs and Tories on this subject.

Powers Which Rule Society.

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.

Division Of Powers In England.

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.

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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.

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The Anglo-Norman Parliament.

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.

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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.

The Curia De More.

_Curia de more, Curia regis_, signified 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."

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The Curia Regis.

_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_. 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 statû regni et pace reformandâ tractans_. The second of the Constitutions of Clarendon orders all the immediate vassals of the crown _interesse judiciis curiæ regis_. 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 _secundæ dignitatis_. 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." {293} 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.

Tenure Of These Assemblies.

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;_ 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 _Curiæ de more_ and _Curiæ 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.

Constitution Of These Assemblies.

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.

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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.

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Lecture V.

The Anglo-Norman royalty: its wealth and power.

Comparison of the relative forces of the Crown and of the
feudal aristocracy.

Progress of the royal power.

Spirit of association and resistance among the great barons.

Commencement of the struggle between these two political forces.

Wealth Of The King.

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.

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Duties Of The Royal Vassals.

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.

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The Court Of Exchequer.

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.

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Functions Of The National Assembly.

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 find any 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.

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Co-existence Of Opposing Forces.

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.

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Origin Of Royal Prerogative.

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.

The Barons And The King.

But at the same time different circumstances concurred to draw the barons forth from their isolation, to unite them among themselves, and to form them into an aristocracy. The Anglo-Norman throne was successively occupied by three usurpers, William II., Henry I., and Stephen. Invested with a power whose title was doubtful, they felt the necessity of bringing the barons to recognize their claims; hence the first charters were conceded. No one of the barons was powerful enough, in himself, to restrain the threatened extension of royal power, but they formed the habit of making coalitions; and as each of the barons entering into such coalitions, felt the necessity of attaching his vassals to himself, concessions were made to them also. The absence of large fiefs, in England, served the cause both of power and of liberty; it allowed power to form itself into unity with greater facility, and it obliged liberty to seek for guarantees in the spirit of association. {301} That which finally contributed in the most decided way to form and consolidate this aristocratic coalition, was the irregular and usurping conduct of John during the long absence of Richard Cœur-de-Lion, and the disorders and civil wars which were naturally the results of this absence. In the midst of these disorders the government fell into the hands of a council of barons, that is to say, of a portion of the aristocracy. Those who had no share whatever in the central power did not cease to control it, and to regard it as rightfully theirs; in this way, the one party formed a habit of governing, the other that of resisting a government which was in the hands of their equals, and not of the king himself. John, by his cowardice and ill-judged familiarity, had brought the throne into disrespect before he himself ascended it, and his barons much more easily conceived the idea of resisting as a king, one whom they had despised as a prince.

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

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Lecture VI.

History of English Charters.

Charter of William the Conqueror (1071).

Charter of Henry I. (1101).

Charters of Stephen (1135-1136).

Charter of Henry II. (1154).

Progress Towards Free Government.

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

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

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

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

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Charter Of William The Conqueror.

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

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

[Footnote 19: The original is lost, but a copy of it exists
in the Red Book of the Exchequer, which gives a strong
presumption for its authenticity. Besides, the charter of
Henry I. makes a distinct allusion to it.]

William, in it, recognizes rights which he often allowed himself to violate; for his power rendered the violation of his promises easy. The Norman barons did not form themselves into any body, unless perhaps against the English; they were all too much occupied in the work of establishing themselves in their new domains. If they sometimes roused themselves to oppose the tyranny of William, their revolts were only partial, and the king adroitly used the English in order to put them down. {304} His son, William Rufus, by adopting the same policy, obtained similar success. But Henry I. had to pay for his usurpation; the charter which he granted was the inevitable consequence of his possession of the throne.

Charters Of Henry I.

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

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

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

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

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

Charters Of Stephen.