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Title: History Of The Origin Of Representative Government In Europe
Author: Guizot, François
Language: English
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{i}
Bohn's Standard Library.
Guizot's
Representative Government.
{ii}
{iii}
History Of The Origin Of
Representative Government
In Europe.
By M. Guizot.
Translated By Andrew E. Scoble,
London:
Henry G. Bohn, York Street, Covent Garden.
1852.
{iv}
Printed By Harrison And Son,
London Gazette Office, St. Martin's Lane;
And
{v}
Preface.
In 1820, at the time when the various faculties of the
_Académie de Paris_ and the _Collège de France_ were
recommencing their courses of lectures, several persons combined
to establish a _Journal des Cours Publiques_, in which they
reproduced, from their notes, the lectures which they had
attended. The course which I delivered, at this period, on the
history of Representative Government, occupies a place in this
collection. I did not revise the analyses of my lectures which
were published. They were brief and incomplete, and frequently
incorrect and confused. I have been requested to authorize a
reprint of them. I could not consent to this without bestowing
upon these analyses, at the present day, that labour of revision
to which they were not subjected at the time of their
publication. The two volumes which I now publish are the result
of this labour, which has been more protracted, and has involved
more considerable alterations than I at first anticipated. In
order to accomplish it, I have frequently had recourse to my
_Essaies sur l'Histoire de France_, in which I embodied, in
1823, some of my researches on the same subject. This course of
lectures on the origin of Representative Government is now as
exact and complete as if my lectures in 1820-1822 had been
collected and revised with the same care as I bestowed, in
1827-1830, on the publication of my courses on the General
History of Civilization in Europe, and on the History of
Civilization in France.
{vi}
When, in the year 1820, I devoted my energies to this course of
instruction, I was taking leave of public life, after having,
during six years, taken an active part in the work of
establishing representative government in our own land. The
political ideas and friends with whom I had been associated were,
at that period, removed from the head of affairs. I connected
myself with their reverses, without abandoning our common hopes
and efforts. We had faith in our institutions. Whether they
entailed upon us good or evil fortune, we were equally devoted to
them. I was unwilling to cease to serve their cause. I
endeavoured to explain the origin and principles of
representative government, as I had attempted to practise it.
How shall I speak, at the present day, of bad fortune and
reverse, in reference to 1820? What shall we say of the fate
which has recently overtaken our fatherland, and of that which is
perhaps in store for us? It is a shame to make use of the same
words in respect to evils and dangers so prodigiously unequal. In
truth, the trials of 1820 were severe and painful, yet the State
was not thrown into confusion by them, and they were followed by
ten years of regular and free government. In 1830, a still
severer trial, the test of a revolution, was applied to our noble
institutions, and they did not succumb; they shook off the
revolutionary yoke, and gave us eighteen years more of order and
liberty. From 1814 to 1848, notwithstanding so many violent
convulsions, constitutional monarchy remained standing, and
events justified the obstinacy of our hopes. But now the storm
has struck every institution, and still threatens to destroy all
that survive. Not merely kings and laws, but the very root of
government, of all government--what do I say?--the roots of
society itself have been reached, and are left bare and almost
torn up. Can we again seek safety at the same source? can we
still believe and hope in representative government and monarchy?
{vii}
I have not escaped, any more than other persons, from the anxiety
occasioned by this doubt. Nevertheless, in proportion as the
events which have weighed upon us, for the last three years, have
received development and elucidation--when I beheld society
pausing, by an effort of its own, on the verge of that abyss to
which it had been brought by its own weakness--I felt the revival
in my soul of that faith and hope which have filled my life, and
which, until these last days, have constituted the faith and hope
of our time. Among the infinite illusions of human vanity, we
must number those of misfortune; whether as peoples or as
individuals, in public or in private life, we delight to persuade
ourselves that our trials are unprecedented, and that we have to
endure evils and to surmount obstacles previously unheard of. How
deceitful is this consolation of pride in suffering! God has made
the condition of men, of all men, more severe than they are
willing to believe; and he causes them, at all times, to
purchase, at a dearer price than they had anticipated, the
success of their labours and the progress of their destiny. Let
us accept this stern law without a murmur; let us courageously
pay the price which God puts upon success, instead of basely
renouncing the hope of success itself. The leading idea, the
national desire of France, in 1789, was the alliance of free
institutions with hereditary monarchy. We have been carried far
away from our design; we have immensely deceived ourselves and
gone astray in our presumptuous hopes; but we should no less
deceive ourselves in our sceptical despondency. God, who permits
the burden of their faults to fall upon nations, does not make
their own life to be to them a continuous falsehood and a fatal
snare; our whole history, our entire civilization, all our
glories and our greatness urged and led us onward to the union of
monarchy and liberty; we have often taken the wrong road in our
way towards our object; and in order to reach it, we shall still
have to take many new roads and to pass over many difficult
spots. But let our object remain the same; for there lies our
haven.
{viii}
If I should apply, at the present day, to these historical
studies of 1820, all the lessons which political life has given
me since that period, I should perhaps modify some of the ideas
which I have expressed in reference to some of the conditions and
forms of representative government. This system of government has
no unique and solely good type, in conformity to which it must
necessarily and universally be instituted. Providence, which
allots to nations different origins and destinies, also opens to
justice and liberty more than one way of entering into
governments: and it would be foolishly to reduce their chances of
success if we condemned them to appear always with the same
lineaments, and to develope themselves by the same means. One
thing only is important, and that is, that the essential
principles of order and liberty should subsist beneath the
different forms which the interference of the country in its own
affairs may assume amongst different peoples and at different
epochs. These essential and necessary principles of all
representative government are precisely those which, in our days,
are ignored and outraged. I venture to believe that they will be
found faithfully expounded in these lectures; and that on this
account, even at the present day, my work will not be devoid
either of utility or of interest.
Guizot.
{ix}
Contents.
Part I.
Representative Institutions In
England, France, And Spain,
From The Fifth To The Eleventh Century.
Lecture I.--Page 1
Simultaneous development of history and civilization.
Two errors in our method of considering the past; proud
disdain, or superstitious admiration.
Historic impartiality the vocation of the present age.
Divisions of the history of the political institutions
of Europe into four great epochs.
Representative government the general and natural aim of
these institutions.
Object of the course; inquiry into the origin of
representative government in France, Spain, and England.
State of mind appropriate to this inquiry.
Lecture II.--Page 23
General character of political institutions in Europe,
from the fourth to the eleventh century.
Political sterility of the Roman Empire.
Progress of the Germanic invasions.
Sketch of the history of the Anglo-Saxons.
Lecture III.--Page 32
Subject of the lecture.
A knowledge of the state of persons necessary
to the proper study of institutions.
Essential difference between antiquity and modern societies,
as regards the classification of social conditions.
State of persons among the Anglo-Saxons.
Thanes and Ceorls.
Central and local institutions.
Predominance of the latter among the Anglo-Saxons.
Its cause.
{x}
Lecture IV.--Page 41
Local institutions among the Anglo-Saxons.
Divisions of territory; their origin and double object.
Internal police of these local associations.
Importance of the county-courts; their composition
and attributes.
Complex origin of the Jury.
Central institutions of the Anglo-Saxons.
The Wittenagemot; its composition, and the
principle on which it was based.
Increasing preponderance of the large landowners
in the Anglo-Saxon monarchy.
Lecture V.--Page 49
The Wittenagemot; its business and power.
Method of its convocation.
Vicissitudes of its character and importance.
The kingly office among the Anglo-Saxons.
Extent and progress of the royal power.
Lecture VI.--Page 55
The true principle of representative government.
Error of classifying governments according to their external
forms.
Montesquieu's error with respect to the origin of the
representative system.
Necessary correlation and simultaneous formation of
society and government.
Rousseau's mistaken hypothesis of the social contract.
The nature of rightful sovereignty.
Confused and contradictory ideas entertained on this subject.
Societies, as individuals, possess the right of being placed
under laws of justice and reason.
Governments ought to be continually reminded of their
obligation to inquire into and conform to these laws.
Classification of governments on this principle.
Lecture VII.--Page 65
Comparison of the principles of different governments with the
true principle of representative government.
Aristocratic governments.
Origin and history of the word _aristocracy_.
Principle of this form of government; its consequences.
How the principle of representative government enters into
aristocratic governments.
Democratic governments.
Origin and consequences of the principle of the sovereignty of
the people.
This principle not identical with that of representative
government.
In what sense representative government is the government
of the majority.
{xi}
Lecture VIII.--Page 76
The forms of a government are related to its principle, but are
swayed by circumstances, and vary according to different
degrees of civilization.
What are the forms essential to a representative government?
1st. Division of powers; why absolutely
essential to the principle of representative government;
2nd. Election;
3rd. Publicity.
Lecture IX.--Page 82
Primitive institutions of the Franks.
Sketch of the history of the Frankish monarchy.
The Franks in Germany.
Their settlement in Belgium and in Gaul.
Character and authority of their chiefs after their
establishment in the Roman Empire.
Early Frankish chieftains.
Clovis: his expeditions, wars, and conquests.
Decisive preponderance of the Franks in Gaul.
Lecture X.--Page 86
Division of territory among the sons of the Frankish kings.
Rapid formation and disappearance of several Frank kingdoms.
Neustria and Austrasia; their geographical division.
Early predominance of Neustria.
Fredegonde and Brunehaut.
Elevation of the _Mayors of the Palace_.
True character of their power.
The Pepin family.
Charles Martel.
Fall of the Merovingians.
Lecture XI--Page 94
General character of events under the Carlovingian Empire.
Reign of Pepin the Short.
Reign of Charlemagne.
Epoch of transition.
Reigns of Louis the Débonnair and Charles the Bald.
Norman invasions.
The last Carlovingians.
Accession of Hugh Capet.
Lecture XII.--Page 103
Ancient institutions of the Franks.
They are more difficult of study than those of the
Anglo-Saxons.
Three kinds of landed property; allodial, beneficiary,
and tributary lands.
Origin of allodial lands.
Meaning of the word allodium.
Salic land amongst the Franks.
Essential characteristics of the allods.
Lecture XIII.--Page 109
Origin of military service; its cause and limits.
It was made a general obligation by Charlemagne.
Allodial lands were originally exempt from taxation.
Origin of benefices.
Change in the position of the German chiefs in consequence of
their territorial settlement.
Their wealth.
No public treasury.
The _œrarium_ and _fiscus_ of the old Roman republic.
Formation of the private domain of the kings of France.
Character of benefices.
Error of Montesquieu on this subject.
{xii}
Lecture XIV.--Page 116
Proofs of the co-existence of various modes of conferring
benefices, from the fifth to the tenth century.
Of benefices that were absolutely and arbitrarily revocable.
Of benefices conceded for a limited time; the_precaria_.
Of benefices granted for life.
Of benefices granted hereditarily.
General character of the concession of benefices.
Their tendency to become hereditary.
Its prevalence under Charles the Bald.
Military service.
Judicial and domestic service.
Origin, meaning, and vicissitudes of the fidelity due by the
vassal to his lord.
Lecture XV.--Page 124
Of benefices conceded by great landowners to men dependent
upon them:
_First_, benefices conceded for all kinds of services,
and as a mode of paying salary;
_Secondly_, larger proprietors usurp the lands adjoining
their own, and bestow them as benefices on their
subordinates;
_Thirdly_, the conversion of a great number of allodial
lands into benefices, by the practice of
_recommendation_.
Origin and meaning of this practice.
Permanence of freeholds, especially in certain parts of the
Frankish monarchy.
Tributary lands.
Their origin and nature.
Their rapid extension: its causes.
General view of the condition of territorial
property, from the sixth to the eleventh century:
_First_, different conditions of territorial property;
_Secondly_, the individual dependence of territorial
property;
_Thirdly_, the stationary condition of territorial
wealth.
Why the system of beneficiary property, that is to say, the
feudal system, was necessary to the formation of modern society
and of powerful states.
Lecture XVI.--Page 132
Of the state of persons, from the fifth to the tenth century.
Impossibility of determining this, according to any fixed and
general principle.
The condition of lands not always correspondent with that of
persons.
Variable and unsettled character of social conditions.
Slavery.
Attempt to determine the condition of persons according to
the _Wehrgeld_.
Table of twenty-one principal cases of _Wehrgeld_.
Uncertainty of this principle.
The true method of ascertaining the condition of persons.
{xiii}
Lecture XVII.--Page 141
Of the _Leudes_ or Antrustions.
Men, faithful to the king and to the large proprietors.
Different means of acquiring and retaining them.
Obligations of the _Leudes_.
The _Leudes_ are the origin of the nobility.
Bishops and heads of monasteries were reckoned among the
_leudes_ of the king.
Moral and material of the bishops.
Efforts of the kings to possess themselves of the right of
nominating bishops.
Free men.
Did they form a distinct and numerous class?
The _arimanni_, and _rathimburgi_.
Mistake of M. de Savigny.
Rapid and general extension of the feudal hierarchy.
The freedmen.
Different modes of enfranchisement:
_First_, the _denariales_, enfranchised with
respect to the king:
_Second_, the _tabularii_, enfranchised with
respect to the church:
_Third_, the _chartularii_, enfranchised by a
charter.
Different consequences resulting from these different modes
of enfranchisement.
Lecture XVIII.--Page 148
Simultaneous existence of three systems of institutions, after
the settlement of the Franks in Gaul.
Conflict of these three systems.
Summary of this conflict, its vicissitudes, and results.
Its recurrence in local and central institutions.
Of local institutions under the Frankish monarchy.
Of the assemblies of free men.
Of the authority and jurisdiction of the great landowners in
their estates.
Of the authority and jurisdiction of the dukes, counts, and
other royal officers.
Lecture XIX.--Page 154
Government of Charlemagne.
Apparent revival of free institutions.
Individual independence and social liberty.
Organization of monarchical power under Charlemagne.
His active surveillance over his vassals and agents.
Rapid decline of monarchical institutions after his death.
Definitive predominance of the feudal system.
Central institutions during the same epoch: royalty.
Causes of the progress of royalty, and of the principle of
hereditary succession among the Franks.
Influence of the clergy.
Lecture XX.--Page 163
National assemblies of the Franks; their primitive character,
and rapid decline under the Merovingians.
They regain importance under the Carlovingians; and are held
regularly under Charlemagne.
Letter of Archbishop Hincmar _De ordine Palatii_.
{xiv}
Lecture XXI.--Page 171
Decay of national assemblies under Louis the Débonnair and
Charles the Bald.
Definitive predominance of the feudal system at the end of the
tenth century.
Cause of this predominance.
Character of feudalism.
No trace of true representative government in France, from the
fifth to the tenth century.
Lecture XXII.--Page 177
Political institutions of the Visigoths.
Peculiar character of Visigothic legislation.
Its authors and its influences.
Destruction and disappearance of the middle class in the Roman
empire, at the time of the Barbarian invasion.
History of the Roman municipal system.
Three epochs in that history.
Lecture XXIII.--Page 193
Of the various social conditions in the Roman Empire, before
the final invasion of the Barbarians.
The privileged classes, and curials.
Their obligations, functions, and immunities.
Attributes of the _curia_ as a body.
Of the various municipal magistracies and offices.
Of the _Defender_ in cities.
Comparison of the development of the municipal system, and its
relations to the central organization of the State in the Roman
Empire and in modern societies.
Lecture XXIV.--Page 206
Sketch of the history of Spain under the Visigoths.
Condition of Spain under the Roman empire.
Settlement of the Visigoths in the south-west of Gaul.
Euric's collection of the laws of the Visigoths.
Alaric's collection of the laws of the Roman subjects.
Settlement of the Visigoths in Spain.
Conflict between the Catholics and Arians.
Political importance of the Councils of Toledo.
Principal kings of the Visigoths.
Egica collects the _Forum judicum_.
Fall of the Visigothic monarchy in Spain.
Lecture XXV.--Page 215
Peculiar character of the legislation of the Visigoths.
Different sorts of laws contained in the _Forum judicum_.
It was a doctrine as well as a code.
Principles of this doctrine on the origin and nature of power.
Absence of practical guarantees.
Preponderance of the clergy in the legislation of the
Visigoths.
True character of the election of the Visigothic kings.
The Visigothic legislation characterized by a spirit of
mildness and equity towards all classes of men, and especially
towards the slaves.
Philosophical and moral merits of this legislation.
{xv}
Lecture XXVI.--Page 229
Central institutions of the Visigothic monarchy.
True character of the Councils of Toledo.
Amount of their political influence.
The _Officium palatinum._
Prevalence of Roman maxims and institutions, among the Goths,
over Germanic traditions.
Proof of this in the local and central institutions of the
Visigoths.
Refutation of the errors of Savigny and the _Edinburgh
Review_ on this subject.
Conclusion.
Part II.
Essays Of Representative Government In England,
From The Conquest Till The Reign Of The Tudors.
Lecture I.--Page 257
Subject of the course: the history of the origin and
establishment of representative government in Europe.
Different aspects under which history is considered at various
epochs.
Poetic history; philosophic history; political history.
Disposition of our time to consider history under these various
aspects.
Fundamental principle and essential characteristics of
representative government.
Existence of this principle and these characteristics in
England at all times.
Lecture II.--Page 270
Sketch of the History of England, from William the Conqueror to
John Lackland (1066-1199).
William the Conqueror (1066-1087).
William Rufus (1087-1100).
Henry I. (1100-1135).
Stephen (1135-1154).
Henry II. (1154-1189).
Constitutions of Clarendon.
Richard Cœur de Lion (1189-1199).
Lecture III.--Page 281
Anglo-Saxon institutions.
Effects of the Norman Conquest upon Anglo-Saxon institutions.
Effects of the Conquest upon Norman institutions.
Causes which made the Norman Conquest favourable to the
establishment of a system of free institutions in England.
{xvi}
Lecture IV.--Page 288
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.
Lecture V.--Page 295
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.
Lecture VI.--Page 302
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).
Lecture VII.--Page 308
Charter of John, or the Great Charter (1215).
Three epochs in John's reign.
Formation of a coalition among the barons.
Civil war.
Conference at Runnymead.
Concession of the Great Charter.
Analysis of this Charter.
Its stipulations refer to national rights as well as to those
of the barons.
John petitions and obtains from Innocent III. a bull to reverse
the Great Charter.
Resistance of the English clergy.
Recommencement of the civil war (October, 1215).
Louis of France, son of Philip Augustus, is appealed to by the
barons.
Death of John (October, 1216).
Lecture VIII.--Page 319
Charters of Henry III.
First Charter of Henry III. (November, 1216).
Louis of France renounces his title to the Crown, and leaves
England.
Second Charter of Henry III. (1217).
Forest Charter granted by Henry III. (1217).
Confirmation of Charters (1225).
Revocation of Charters (1227).
New confirmation of Charters (1237).
Continual violation of Charters.
Civil war.
Renewal of Charters (1264).
New confirmation of Charters (1267).
Death of Henry III. (November 16, 1272).
{xvii}
Lecture IX.--Page 325
Conclusion of the history of Charters under the reign of Edward I.
Political conflict follows civil war.
The king frequently violates the Charters, especially in the
matter of imposts.
The barons resist energetically.
Edward gives a definitive confirmation to the Charters
(1298-1301).
A bull of Clement V., solicited by Edward I., annuls the
Charters.
Its failure.
Death of Edward I. (July 7, 1307)
Lecture X.--Page 334
Necessity of inquiring into the political sense of the word
_representation_ at the time when a representative
government began to be formed.
Mistaken theories on this subject.
Rousseau's theory, which denies representation and insists on
individual sovereignty.
Theories of writers who attempt to reconcile the principle of
representation with that of individual sovereignty.
Erroneousness of the idea that the sovereignty belongs to the
majority.
True idea of representation.
Lecture XI.--Page 350
Formation of a Parliament.
Introduction of county deputies into the Parliament.
Relations of the county deputies to the great barons.
Parliament of Oxford (1258).
Its regulations, termed the Acts of Oxford.
Hesitancy of the county deputies between the great barons and
the crown.
Lecture XII.--Page 359
Struggle between Henry III. and his Parliament.
Arbitration of Saint Louis.
The Earl of Leicester heads the great barons in their struggle
with the king.
He is defeated and killed at Evesham (1265).
Admission of deputies from towns and boroughs into Parliament
(1264).
Royalist reaction.
Leicester's memory remains popular.
Lecture XIII.--Page 368
Progress of the Parliament under the reign of Edward I.
Frequent holding of Parliament.
Different composition of Parliaments.
Deputies from the counties and towns were not always present.
Discretionary power of the king in the convocation of barons.
The varying number of county and borough deputies.
Lecture XIV.--Page 377
Mode of election of the deputies of counties and boroughs.
Who were the electors?
No uniform principle to regulate elections in boroughs and
towns.
Voting in public.
{xviii}
Lecture XV.--Page 388
Philosophical examination of the electoral system in England in
the fourteenth century.
The system was the natural result of facts.
Who were the electors?
Four principles which determine the solution of this question.
Lecture XVI.--Page 401
Subject of the lecture.
Continuation of the philosophical examination of the electoral
system in England in the fourteenth century.
Characteristics of the elections.
Examination of the principle of direct or indirect election.
Lecture XVII.--Page 418
Origin of the division of the English Parliament into two
Houses.
Its original constitution.
Reproduction of the classifications of society in the
Parliament.
Causes which led the representatives of counties to separate
from the barons, and coalesce with the representatives of
boroughs.
Effects of this coalition.
Division of the Parliament into two Houses in the fourteenth
century.
Lecture XVIII.--Page 425
Examination of the division of the legislative power into two
Houses.
Diversity of ideas on this subject.
Fundamental principle of the philosophic school.
Source of its errors.
Characteristics of the historic school.
Cause of the division of the British Parliament into two
Houses.
Derivation of this division from the fundamental principle of
representative government.
Its practical merit.
Lecture XIX.--Page 448
Power and attributes of the British Parliament in the
fourteenth century.
At its origin, and subsequent to its complete development, the
Parliament retained the name of the Great Council of the
kingdom.
Difference between its attributes and its actual power at these
two epochs.
Absorption of almost the entire government by the Crown;
gradual resumption of its influence by the Parliament.
Lecture XX.--Page 454
Condition and attributes of the Parliament during the reign of
Edward II. (1307-1327).
Empire of favourites.
Struggle of the barons against the favourites.
Aristocratic factions.
Petitions to the king.
Forms of deliberations on this subject.
Deposition of Edward II.
{xix}
Lecture XXI.--Page 463
Of petitions during the early times of representative
government.
Regulations on the subject.
Transformation of the right of petition possessed by the Houses
of Parliament into the right of proposition and initiative.
Petitions ceased to be addressed to the king, and are presented
to Parliament.
Origin of the right of inquiry.
Necessity for representative government to be complete.
Artifices and abuses engendered by the right of petition.
Lecture XXII.--Page 476
Condition of the Parliament under Edward III.
Progress of the power of the Commons.
Their resistance to the king.
Regularity of the convocation of Parliament.
Measures taken for the security of its deliberations.
Division of the Parliament into two Houses.
Speaker of the House of Commons.
Firmness of the House of Commons in maintaining its right to
grant taxes.
Accounts given by the government of the collection of the
taxes.
Appropriation of the funds granted by Parliament.
Parliamentary legislation.
Difference between statutes and ordinances.
Lecture XXIII.--Page 484
Continuation of the history of the progress of the Commons
House of Parliament during the reign of Edward III.
Their interference in questions of peace and war; and on the
internal peace of the kingdom.
Their resistance of the influence of the Pope, and of the
national clergy, in temporal affairs.
First efforts of the Commons to repress abuses at elections.
First traces of function of Committees of both Houses to
investigate certain questions in common.
Lecture XXIV.--Page 494
State of the Parliament under Richard II.
Struggle between absolute royalty and parliamentary government.
Origin of the Civil List.
Progress of the responsibility of ministers.
Progress of the returns of the employment of the public revenue.
The Commons encroach upon the government.
Reaction against the sway of the Commons.
Violence and fall of Richard II.
Progress of the essential maxims and practices of
representative government.
{xx}
Lecture XXV.--Page 509
Summary of the history of the Parliament from the death of
Richard II. to the accession of the House of Stuart.
Progress of the forms of procedure, and of the privileges of
Parliament.
Liberty of speech in both Houses.
Inviolability of members of Parliament.
Judicial power of the House of Lords.
Decadence of the Parliament during the wars of the Roses, and
under the Tudor dynasty.
Causes of this decadence and of the progress of royal
authority, from Henry VII. to Elizabeth.
Conclusion.
{1}
History Of The Origin Of
Representative Government In Europe.
Part I.
Representative Institutions In England, France, And Spain,
From The Fifth To The Eleventh Century.
Lecture I.
Simultaneous development of history and civilization.
Two errors in our method of considering the past; proud
disdain, or superstitious admiration.
Historic impartiality the vocation of the present age.
Divisions of the history of the political institutions
of Europe into four great epochs.
Representative government was the general and natural aim of
these institutions.
Object of the course; inquiry into the origin of
representative government in France, Spain, and England.
State of mind appropriate to this inquiry.
Views of History.
Gentlemen,--Such is the immensity of human affairs, that, so far
from exhibiting superannuation and decay with the progress of
time, they seem to gain new youth, and to gird themselves afresh
at frequent intervals, in order to appear under aspects hitherto
unknown. Not only does each age receive a vocation to devote
itself especially to a particular region of inquiry; but the same
studies are to each age as a mine but little explored, or as an
unknown territory where objects for discovery present themselves
at every step. In the study of history this truth is especially
apparent.
{2}
The facts about which history concerns itself neither gain nor
lose anything by being handed down from age to age; whatever we
have seen in these facts, and whatever we can see, has been
contained in them ever since they were originally accomplished;
but they never allow themselves to be fully apprehended, nor
permit all their meaning to be thoroughly investigated; they
have, so to speak, innumerable secrets, which slowly utter
themselves after man has become prepared to recognise them. And
as everything in man and around him changes, as the point of view
from which he considers the facts of history, and the state of
mind which he brings to the survey, continually vary, we may
speak of the past as changing with the present; unperceived facts
reveal themselves in ancient facts; other ideas, other feelings,
are called up by the same names and the same narratives; and man
thus learns that in the infinitude of space opened to his
knowledge, everything remains constantly fresh and inexhaustible,
in regard to his ever-active and ever-limited intelligence.
This combined view of the greatness of events and the feebleness
of the human mind, never appears so startlingly distinct as upon
the occurrence of those extraordinary crises, which, so to speak,
entirely delocalize man, and transport him to a different sphere.
Such revolutions, it is true, do not unfold themselves in an
abrupt and sudden manner. They are conceived and nurtured in the
womb of society long before they emerge to the light of day. But
the moment arrives beyond which their full accomplishment cannot
be delayed, and they then take possession of all that exists in
society, transform it, and place everything in an entirely new
position; so that if, after such a shock, man looks back upon the
history of the past, he can scarcely recognise it. That which he
sees, he had never seen before; what he saw once, no longer
exists as he saw it; facts rise up before him with unknown faces,
and speak to him in a strange language. He sets himself to the
examination of them under the guidance of other principles of
observation and appreciation. Whether he considers their causes,
their nature, or their consequences, unknown prospects open
before him on all sides. The actual spectacle remains the same,
but it is viewed by another spectator occupying a different
place;--to his eyes all is changed.
{3}
What marvel is it, gentlemen, if, in this new state of things and
of himself, man adopts, as the special objects of his study,
questions and facts which connect themselves more immediately
with the revolution which has just been accomplished,--if he
directs his gaze precisely towards that quarter where the change
has been most profound? The grand crises in the life of humanity
are not all of the same nature; although they, sooner or later,
influence the whole mass of society, they act upon it and
approach it, in some respects, from different sides. Sometimes it
is by religious ideas, sometimes by political ideas, sometimes by
a simple discovery, or a mechanical invention, that the world is
ruled and changed. The apparent metamorphosis which the past then
undergoes is effected chiefly in that which corresponds to the
essential character of the revolution that is actually going
forward in the present. Let us imagine, if we can, the light in
which the traditions and religious recollections of Paganism must
have appeared to the Christians of the first centuries, and then
we shall understand the new aspects under which old facts present
themselves in those times of renovation, which Providence has
invested with a peculiar importance and significance.
Our Historical Position.
Such is, gentlemen, up to a certain point, the position in which
we ourselves are placed with regard to that subject which is to
come before us in the present course of lectures. It is from the
midst of the new political order which has commenced in Europe in
our own days that we are about to consider, I do not say
naturally, but necessarily, the history of the political
institutions of Europe from the foundation of modern states. To
descend from this point of view is not in our power. Against our
will, and without our knowledge, the ideas which have occupied
the present will follow us wherever we go in the study of the
past. Vainly should we attempt to escape from the lights which
they cast thereupon; those lights will only diffuse themselves
around on all sides with more confusion and less utility. We will
then frankly accept a position which, in my opinion, is
favourable, and certainly inevitable. We attempt to-day, and with
good reason, to reconnect what we now are with what we formerly
were; we feel the necessity of bringing our habits into
association with intelligent feeling, to connect our institutions
with our recollections, and, in fine, to gather together the
links in that chain of time, which never allows itself to be
entirely broken, however violent may be the assaults made upon
it.
{4}
In accordance with the same principles, and guided by the same
spirit, we shall not refuse the aid which can be derived from
modern ideas and institutions, in order to guide our apprehension
and judgment while studying ancient institutions, since we
neither can, nor would wish to be separated from our proper
selves, any more than we would attempt or desire to isolate
ourselves from our forefathers.
Sources of Error.
This study, gentlemen, has been much neglected in our days; and
when attempts have been made to revive it, it has been approached
with such a strong preoccupation of mind, or with such a
determined purpose, that the fruits of our labour have been
damaged at the outset. Opinions which are partial and adopted
before facts have been fairly examined, not only have the effect
of vitiating the rectitude of judgment, but they moreover
introduce a deplorable frivolity into researches which we may
call material. As soon as the prejudiced mind has collected a few
documents and proofs in support of its cherished notion, it is
contented, and concludes its inquiry. On the one hand, it beholds
in facts that which is not really contained in them; on the other
hand, when it believes that the amount of information it already
possesses will suffice, it does not seek further knowledge. Now,
such has been the force of circumstances and passions among us,
that they have disturbed even erudition itself. It has become a
party weapon, an instrument of attack or defence; and facts
themselves, inflexible and immutable facts, have been by turns
invited or repulsed, perverted or mutilated, according to the
interest or sentiment in favour of which they were summoned to
appear.
In accordance with this prevailing circumstance of our times, two
opposite tendencies are observable in those opinions and writings
which have passed a verdict on the ancient political institutions
of Europe. On the one hand, we see minds so overpowered by the
splendour of the new day which has dawned upon mankind, that they
see in the generations which preceded, only darkness, disorder,
and oppression,--objects either for their indignation or their
contempt. Proud disdain of the past has taken possession of these
minds,--a disdain which exalts itself into a system. This system
has presented all the characteristics of settled impiety.
{5}
Laws, sentiments, ideas, customs, everything pertaining to our
forefathers, it has treated with coldness or scorn. It would seem
as if reason, regard for justice, love of liberty, all that makes
society dignified and secure, were a discovery of to-day, made by
the generation which has last appeared. In thus renouncing its
ancestors, this generation forgets that it will soon join them in
the tomb, and that in its turn it will leave its inheritance to
its children.
Disdain for the Past.
This pride, gentlemen, is not less contrary to the truth of
things than fatal to the society which entertains it. Providence
does not so unequally deal with the generations of men, as to
impoverish some in order that the rest may be lavishly endowed at
their expense. It is doubtless true, that virtue and glory are
not shared in a uniform degree by different ages; but there is no
age which does not possess some legitimate claim upon the respect
of its descendants. There is not one which has not borne its part
in the grand struggle between good and evil, truth and error,
liberty and oppression. And not only has each age maintained this
laborious struggle on its own account, but whatever advantage it
has been able to gain, it has transmitted to its successors. The
superior vantage-ground on which we were born, is a gift to us
from our forefathers, who died upon the territory themselves had
won by conquest. It is then a blind and culpable ingratitude
which affects to despise the days which are gone. We reap the
fruits of their labours and sacrifices:--is it too much for us to
hallow the memory of those labours, and to render a just
recompense for those sacrifices?
If those men who affect, or who actually feel, this irreverent
disdain or indifference for ancient times, were better acquainted
with these times and their history, they would find themselves
constrained to entertain a different opinion. When, in fact, we
investigate the cause of this unnatural state of mind, only one
explanation can be found. At the moment of grand social reforms,
during epochs full of ambition and hope, when important changes
are on all sides demanded and necessary, the authority of the
past is the one obstacle which opposes itself to all tendency to
innovation. The present time seems devoted to errors and abuses,
and the wisdom of centuries is appealed to by one party in order
to resist the future to which the aspirations of the other party
are directed.
{6}
Accordingly, a kind of blind hatred of the past takes possession
of a great number of men. They regard it as making common cause
with the enemies of present amelioration, and the weapons
employed by these latter confirm this idea in their mind.
Gentlemen, the notion is full of falsehood and misapprehension.
It is not true that injustice and abuses alone can shelter
themselves under the authority of antiquity, that they only are
capable of appealing to precedent and experience. Truth, justice,
and rectitude, are also graced by venerable titles; and at no
period has man allowed them to be proscribed. Take in succession
all the moral needs, all the legitimate interests of our society,
arrange them in systematic order, and then traverse the history
of our country;--you will find them constantly asserted and
defended,--all epochs will afford you innumerable proofs of
struggles endured, of victories won, of concessions obtained in
this holy cause. It has been carried on with different issues,
but in no time or place has it been abandoned. There is not a
truth or a right which cannot bring forward, from any period of
history, monuments to consecrate, and facts to vindicate it.
Justice has not retired from the world, even when it finds there
least support: it has constantly sought and embraced, both with
governments and in the midst of peoples, all opportunities for
extending its dominion. It has struggled, protested, waited; and
when it has had only glory to bestow upon those who have fought
for it, it has bestowed that glory with a liberal hand.
True Value of the Past.
Let us then, gentlemen, reassure ourselves with reference to the
study of the past. It contains nothing which ought to alarm the
friends of all that is good and true. It is into their hands, on
the contrary, and in subservience to interests which are dear to
them, that it will ever deposit the authority of antiquity and
the lessons of experience.
Undue Veneration of Antiquity.
This unjust contempt for ancient institutions, however, this wild
attempt to dissever the present from its connexion with former
ages and to begin society afresh, thus delivering it up to all
the dangers of a position in which it is deprived of its roots
and cast upon the protection of a wisdom which is yet in its
infancy, is not an error of which we have been the first to give
an example. In one of those ephemeral parliaments which attempted
to maintain its existence under the yoke of Cromwell, it was
seriously proposed to deliver up to the flames all the archives
in the Tower of London, and thus to annihilate the monuments of
the existence of England in former ages.
{7}
These infatuated men wished to abolish the past, flattering
themselves that they would then obtain an absolute control over
the future. Their design was rejected, and their hope foiled; and
very soon England, regaining, with new liberties, respect for all
its recollections of the past, entered upon that career of
development and prosperity which it has continued up to our
times.
Side by side with this infatuation which has induced men,
otherwise enlightened, to neglect the study of the ancient
institutions of Europe, or only to regard their history with a
hasty and supercilious glance, we have seen another infatuation
arise, perhaps still more unreasonable and arrogant. Here, as
elsewhere, impiety has been the herald of superstition. The past,
so despised, so neglected by the one party, has become to the
other an object of idolatrous veneration. The former desire that
society, mutilating its own being, should disown its former life;
the latter would have it return to its cradle, in order to remain
there immovable and powerless. And as those lords of the future
would in their own wild fancy create out of it, so far as regards
government and social order, the most brilliant Utopias, so
these, on the other hand, find their Utopia in their dreams of
the past. The work might appear more difficult; the field open to
the imagination may seem less open, and facts might be expected
sometimes to press inconveniently against the conclusions sought.
But what will not a preoccupied mind overcome? Plato and
Harrington, giving to their thoughts the widest range, had
constructed their ideal of a republic; and we, with still more
confidence, have constructed our ideal of feudalism, of absolute
power, and even of barbarism. Fully organized societies, adorned
with freedom and morality, have been conceived and fashioned at
leisure, in order thence to be transported into past ages. After
having attempted to resolve, according to principles opposed to
modern tendencies, the great problem of the harmony between
liberty and power, between order and progress, we have required
that ancient facts should receive these theories and adapt
themselves to them.
{8}
And since, in the vast number of facts, some are to be found
which lend themselves with docility and readiness to the purposes
which they are required to serve, the discoverers of this
pretended antiquity have not lacked either quotations or proofs
which might seem to give it an ascertained and definite existence
in the past. Thus, France, after having spent more than five
centuries in its struggles to escape from the feudal system, has
all at once discovered that it was wrong in liberating itself
from this system, for that in this state it possessed true
happiness and freedom; and history, which believed itself to be
chargeable with so many evils, iniquities, and convulsions, is
surprised to learn that it only hands down to us recollections of
two or three golden ages.
Progress, the Law of Nature.
There is no necessity for me, gentlemen, to offer any very
serious opposition to this fantastic and superstitious adoration
of the past. It would hardly have merited even a passing
allusion, were it not connected with systems and tendencies in
which all society is interested. It is one of the collateral
circumstances of the grand struggle which has never ceased to
agitate the world. The interests and ideas which have
successively taken possession of society have always wished to
render it stationary in the position which has given it over to
their rule; and when it has escaped from them, it has ever, in so
doing, had to withstand those seductive images and influences
which these interests have called to their aid. There is no fear
that the world will allow itself to be thus ensnared:--progress
is the law of its nature; hope, and not regret, is the spring of
its movement:--the future alone possesses an attractive virtue.
Peoples who have emerged from slavery have always endeavoured by
laws to prevent enfranchised man from again falling into
servitude. Providence has not been less careful with regard to
humanity; and the chains which have not sufficed to confine it,
are still less able to resume the grasp which they have lost. But
the efforts of a retrograde system have often perverted the study
of ancient times. The Emperor Julian saw in the popular fables of
Greece a philosophy capable of satisfying those moral necessities
which Christianity had come to satisfy, and he demanded that men
should see and honour in the history of decayed paganism that
which only existed in his dreams.
{9}
The same demands have been made with as little reason on behalf
of the ancient political institutions of Europe. Justice, and
justice alone, is due to that which no longer exists, as well as
to that which still remains. Respect for the past means neither
approbation nor silence for that which is false, culpable, or
dangerous. The past deserves no gratitude or consideration from
us, except on account of the truth which it has known, and the
good which it has aimed at or accomplished. Time has not been
endowed with the unhallowed office of consecrating evil or error;
on the contrary, it unmasks and consumes them. To spare them
because they are ancient, is not to respect the past, but it is
to outrage truth, which is older than the world itself.
The Duty of Impartiality.
If I am not mistaken, gentlemen, we are at this time in an
especially favourable position for avoiding both of the general
errors which I have just described. Perhaps few persons think so;
but impartiality, which is the duty of all times, is, in my
opinion, the mission of ours:--not that cold and unprofitable
impartiality which is the offspring of indifference, but that
energetic and fruitful impartiality which is inspired by the
vision and admiration of truth. That equal and universal justice,
which is now the deepest want of society, is also the ruling idea
which is ever foremost in position and influence, wherever the
spirit of man is found. Blind prejudices, insincere declamation,
are no longer any more acceptable in the world of literature,
than are iniquity and violence in the world of politics. They may
still have some power to agitate society, but they are not
permitted either to satisfy or to govern it. The particular state
of our own country strengthens this disposition, or, if you
please, this general tendency, of the European mind. We have not
lived in that state of repose in which objects appear continually
under almost the same aspects, in which the present is so
changeless and regular as to present to man's view an horizon
that seldom varies, in which old and powerful conventionalisms
govern thought as well as life, in which opinions are well nigh
habits, and soon become prejudices;--we have been cast not only
into new tracks, but these are continually interrupted and
diversified. All theories, all practices, are displayed in union
or in rivalry before our eyes.
{10}
Facts of all kinds have appeared to us under a multitude of
aspects. Human nature has been urged impetuously onwards, and
laid bare, so to speak, in all the elements of which it is
constituted. Affairs and men have all passed from system to
system, from combination to combination; and the observer, while
himself continually changing his point of view, has been the
witness of a spectacle which changed as often as he. Such times,
gentlemen, offer but little tranquillity, and prepare tremendous
difficulties for those which shall follow them. But they
certainly give to minds capable of sustaining their pressure, an
independent disposition, and an extended survey, which do not
belong to more serene and fortunate periods. The large number,
and the unsettled character of the facts which appear before us,
widen the range of our ideas; the diversity of trials which all
things undergo within so short an interval, teach us to judge
them with impartiality; human nature reveals itself in its
simplicity, as well as in its wealth. Experience hastens to
fulfil its course, and, in some sort, hoards its treasures; in
the short space of one life, man sees, experiences, and attempts
that which might have sufficed to fill several centuries. This
advantage is sufficiently costly, gentlemen, to act at least as
an inducement to our reaping it. It does not become us to
entertain narrow views and obstinate prejudices; to petrify the
form of our judgments by foregone conclusions; in fine, to ignore
that diffusion of truth, which has been attested by so many
vissicitudes, and which imposes on us the duty of seeking it
everywhere, and rendering it homage wherever we meet it, if we
would have its sanction to our thoughts, and its aid to our
utterance.
Value of Revolutions.
In this spirit, gentlemen, we shall attempt to consider the
ancient political institutions of Europe, and to sketch their
history. While for this purpose we appropriate such lights as our
age can furnish, we shall endeavour to carry with us none of the
passions which divide it. We shall not approach past times under
the guidance of such impressions belonging to the present, as
those whose influence we have just deplored; we shall not address
to them those questions which, by their very nature, dictate the
answers which they shall receive. I have too much regard for
those who listen to me, and for the truth after which I, in
common with them, am seeking, to suppose that history can in any
sense consent to suppress that which it has asserted, or to utter
what is not affirmed by the voice of truth. We must interrogate
it freely, and then leave it to full independence.
{11}
Study of Political Institutions.
This study, gentlemen, requires a centre to which it may stand in
relation,--we must find for so large a number of facts, a bond
which may unite and harmonize them. This bond exists in the facts
themselves--nothing can be less doubtful. Unity and
consecutiveness are not lacking in the moral world, as they are
not in the physical. The moral world has, like the system of
celestial bodies, its laws and activity; only the secret
according to which it acts is more profound, and the human mind
has more difficulty in discovering it. We have entered upon this
inquiry so late, that events already accomplished may serve us as
guides. We have no need to ask of some philosophical hypothesis,
itself perhaps uncertain and incomplete, what, in the order of
political development, has been the tendency of European
civilization. A system which evidently, from a general view of
the subject, adheres continually to the same principles, starts
from the same necessities, and tends to the same results,
manifests or proclaims its presence throughout the whole of
Europe. Almost everywhere the representative form of government
is demanded, allowed, or established. This fact is, assuredly,
neither an accident, nor the symptom of a transient madness. It
has certainly its roots in the past political career of the
nations, as it has its motives in their present condition. And
if, warned by this, we turn our attention to the past, we shall
everywhere meet with attempts, more or less successful, either
made with a conscious regard to this system so as to produce it
naturally, or striving to attain it by the subjugation of
contrary forces. England, France, Spain, Portugal, Germany and
Sweden, supply us with numerous illustrations of this. If we look
to one quarter we shall see these attempts after they have lasted
for some time, and assumed an historical consistency; in another,
they have hardly commenced before they issue in failure; in a
third, they end in a kind of federation of the governments
themselves. Their forms are as diverse as their fortunes. England
alone continues these struggles without intermission, and enters
at last into full enjoyment of their realization.
{12}
But everywhere they take their place in history, and influence
the destinies of nations. And when at last, no longer finding
even the shadow of a representative government on the Continent
of Europe, and beholding it only in the parliament of Great
Britain, a man of genius inquires into its origin, he says that
"this noble system was first found in the woods of Germany," from
whence the ancestors of the whole of Europe have all equally
proceeded.
Origin of Representative Government.
In this opinion, as will be afterwards seen, I do not agree with
Montesquieu; but it is evident, both from ancient facts and from
those which we ourselves have witnessed, that the representative
form of government has, so to speak, constantly hovered over
Europe, ever since the founding of modern states. Its
reappearance at so many times and in so many places, is not to be
accounted for by the charm of any theory, or the power of any
conspiracy. In the endeavour after it, men have often ignored its
principles and mistaken its nature, but it has existed in
European society as the basis of all its deepest wants and most
enduring tendencies; sovereigns have invoked its aid in their
hours of difficulty, and nations have ever returned to it during
those intervals of prosperity and repose in which the march of
civilization has been accelerated. Its most undeveloped efforts
have left behind them indelible mementos. Indeed, ever since the
birth of modern societies, their condition has been such, that in
their institution, in their aspirations, and in the course of
their history, the representative form of government, while
hardly realized as such by the mind, has constantly loomed more
or less distinctly in the distance, as the port at which they
must at length arrive, in spite of the storms which scatter them,
and the obstacles which confront and oppose their entrance.
We do not then, gentlemen, make an arbitrary choice, but one
perfectly natural and necessary, when we make the representative
form of government the central idea and aim of our history of the
political institutions of Europe. To regard them from this point
of view will not only give to our study of them the highest
interest, but will enable us rightly to enter into the facts
themselves, and truly to appreciate them. We shall then make this
form of government the principal object of our consideration. We
shall seek it wherever it has been thought to be discernible,
wherever it has attempted to gain for itself a footing, wherever
it has fully established itself.
{13}
We shall inquire if it has in reality existed at times and in
places where we have been accustomed to look for its germs.
Whenever we find any indications of it, however crude and
imperfect they may be, we shall inquire how it has been produced,
what has been the extent of its power, and what influences have
stifled it and arrested its progress. Arriving at last at the
country where it has never ceased to consolidate and extend
itself, from the thirteenth century to our own times, we shall
remain there in order to follow it in its march, to unravel its
vicissitudes, to watch the development of the principles and
institutions with which it is associated, penetrating into their
nature and observing their action,--to study, in a word, the
history of the representative system in that country where it
really possesses a history which identifies itself with that of
the people and their government.
Before undertaking this laborious task, it will be necessary for
me, gentlemen, to exhibit before you, in a few words, the chief
phases of the political condition of Europe, and the series of
the principal systems of institutions through which it has
passed. This anticipatory classification,--which is but a general
survey of facts which will afterwards reappear before you and
bring their own evidence with them,--is necessary, not only in
order to clear the way before us in our study, but also to
indicate the particular institutions and times which the point of
view we have chosen for ourselves especially calls us to
consider.
Four Epochs in European History.
The history of the political institutions of Europe divides
itself into four general epochs, during which society has been
governed according to modes and forms essentially distinct.
The tribes of Germany, in establishing themselves on the Roman
soil, carried thither with them their liberty, but none of those
institutions by which its exercise is regulated and its
permanence guaranteed. Individuals were free,--a free society,
however, was not constituted. I will say further, that a society
was not then existent. It was only after the conquest, and in
consequence of their territorial establishment, that a society
really began to be formed either among the conquerors and the
conquered, or among the victors themselves.
{14}
The work was long and difficult. The positions in which they were
placed were complicated and precarious, their forces scattered
and irregular, the human mind little capable of extensive
combinations and foresight. Different systems of institutions, or
rather different tendencies, appeared and contended with each
other. Individuals, for whom liberty then meant only personal
independence and isolation, struggled to preserve it. Those who
were strong succeeded in obtaining it, and became powerful;--
those who were weak lost it and fell under the yoke of the
powerful. The kings, at first only the chiefs of warrior bands,
and then the first of the great territorial proprietors,
attempted to confirm and extend their power; but simultaneously
with them an aristocracy was formed, by the local success of
scattered forces and the concentration of properties, which did
not allow royalty to establish itself with any vigour or to exert
any wide-spread influence. The ancient liberty of the forest, the
earliest attempts at monarchical system, the nascent elements of
the feudal régime,--such were the powers which were then
struggling for preeminence in society. No general political order
could establish itself in the midst of this conflict. It lasted
till the eleventh century. Then the feudal system had become
predominant. The primitive independence and wild equality of
individuals had either become merged into a condition of
servitude, or had submitted to the hierarchical subordination of
feudalism. All central power, whether of kings or of ancient
national assemblies, had well nigh disappeared; liberty existed
co-ordinately with power; the sovereignty was scattered. This is
the first epoch. [Footnote 1]
[Footnote 1: On this see Guizot's History of Civilization in
France. Lectures vii and viii.]
The Feudal System
The second epoch is that of the feudal system. Three essential
characteristics belong to it; 1st. The reduction of the mass of
the people to slavery or a condition bordering thereon: 2nd. The
hierarchical and federative organization of the feudal
aristocracy, extending in its application both to persons and
lands: 3rd. The almost entire dissolution of the sovereignty,
which then devolved on every feudal proprietor capable of
exercising and defending it; from whence resulted the feebleness
of the royal power and the destruction of monarchical unity,
which disappeared almost as completely as national unity. This
system prevailed until the thirteenth century.
{15}
Progress Of Monarchical Power.
Then commenced a new epoch. The feudal lord, already possessed of
royal power, aspired after royal dignity. A portion of the
inhabitants of the territory, having regained somewhat of the
power they had lost, longed to become free. The feudal
aristocracy was attacked on the one hand by the enfranchisement
of the townsmen and tenants, on the other hand by the extension
of the royal power. Sovereignty tended to concentration, liberty
to diffusion;--national unity began to shape itself at the same
time as monarchical unity appeared. This was at once indicated
and promoted by attempts after a representative form of
government, which were made and renewed during nearly three
centuries, wherever the feudal system fell into decay, or the
monarchical system prevailed. But soon sovereigns also began
almost everywhere to distrust it in their turn. They could not
behold with indifference that sovereignty, which after having
been long diffused had been regained and concentrated by their
efforts, now again divided at its very centre. Besides, the
people were deficient alike in such strength and knowledge as
would enable them to continue, on the one hand, against the
feudal system, a struggle which had not yet ceased, and to
sustain, on the other hand, a new struggle against the central
power. It was evident that the times were not fully matured; that
society, which had not thoroughly emerged from that condition of
servitude which had been the successor of social chaos, was
neither so firmly consolidated nor so mentally disciplined as to
be able to secure at once order by the equitable administration
of power, and liberty by the safeguards of large and influential
public institutions. The efforts after representative government
became more occasional and feeble, and at length disappeared. One
country alone guarded and defended it, and advanced from one
struggle to another, till it succeeded. In other places, the
purely monarchical system prevailed. This result was accomplished
in the sixteenth century.
{16}
The fourth epoch has lasted from that time to our own days. It is
chiefly marked in England by the progress of the representative
system; on the Continent, by the development of the purely
monarchical system, with which are associated local privileges,
judicial institutions which exercise a powerful influence on
political order, and some remnants of those assemblies which, in
epochs anterior to the present, appeared under a more general
form, but which now confine themselves to certain provinces, and
are almost exclusively occupied with administrative functions.
Under this system, though political liberty is no longer met
with, barbarism and feudalism finally disappear before absolute
power; interior order, the reconciliation of different classes,
civil justice, public resources and information, make rapid
progress;--nations become enlightened and prosperous, and their
prosperity, material as well as moral, excites in them juster
apprehensions of, and more earnest longings for, that
representative system which they had sought in times when they
possessed neither the knowledge nor the power requisite for its
exercise and preservation.
Subject Of These Lectures.
This short epitome of facts has already indicated to you,
gentlemen, the epochs towards which our studies will be
principally directed. The objects of our search are the political
institutions of various peoples. The representative system is
that around which our researches will centre. Wherever, then, we
do not meet with those general institutions, under the empire of
which people unite themselves, and which demand the manifestation
of general society in its government,--wherever we perceive no
trace of the representative system, and no direct effort to
produce it,--there we shall not linger. All forms and conditions
of society present rich and curious subjects for observation; but
in this inexhaustible series of facts we must choose only those
which have a strict relation to one another, and a direct
interest for us. The second and the fourth epochs therefore, that
is to say, feudalism and absolute power, will occupy us but
little. We shall only speak of them so far as a consideration of
them is necessary to connect and explain the periods which will
more directly claim our attention. I purpose to study with you
the first and the third epochs, and the fourth, so far as it
relates to England.
{17}
The first epoch, which shows us the German people establishing
themselves on Roman soil--the struggle of their primitive
institutions, or rather of their customs and habits, against the
natural results of their new position,--in fine, the throes
attending the earliest formation of modern nations,--has especial
claims on our notice. I believe that, so far as regards political
institutions, this time possessed nothing which deserves the
name; but all the elements were there, in existence and
commotion, as in the chaos which precedes creation. It is for us
to watch this process, under which governments and peoples came
into being. It is for us to ascertain whether, as has been
asserted, public liberty and the representative system were
actually there, whence some symptoms announced that they might
one day emerge. When, in the third epoch, we see the feudal
system being dissolved,--when we watch the first movements
towards a representative government appear at the same time with
the efforts of a central power which aims at becoming general and
organized,--we shall recognize here, without difficulty, a
subject which immediately belongs to us. We shall seek to learn
what societies were then aroused, and by what means they have
sought for trustworthy institutions, which might guarantee the
continuance at once of order and of liberty. And when we have
seen their hopes deceived by the calamities of the times, when we
have detected in the vices of the social state, far more than in
the influence of any disorderly or perverse desires, the causes
of the ill-success of these magnanimous attempts, we shall be
brought by our subject into the very midst of that people, then
treated more leniently by fortune, which has paid dearly for free
institutions, but which has guarded them to the last when they
perished everywhere else, and which, while preserving and
developing them for itself, has offered to other nations, if not
a model, yet certainly an example.
Limits Of The Inquiry.
It would be a small matter for us, gentlemen, thus to limit the
field of our inquiries so far as epochs are concerned, if we did
not also assign some boundaries in respect to place. The inquiry
would be too large and protracted were we to follow the course of
political institutions throughout the whole of Europe, according
to the plan I have just indicated. Moreover, the diversity of
events and conditions has been so great in Europe, that,
notwithstanding certain general characteristics and certain
philosophical results which the facts everywhere present, they
very often resist all the attempts we may make to bring them
under any uniform guiding principle.
{18}
In vain do we strive to collect them together under the same
horizon, or to force them into the same channel; ever do they
release themselves from our grasp in order to assume elsewhere
the place assigned to them by truth. We should therefore be
compelled either to limit ourselves to generalities yielding but
little instruction to those who have not sounded all their
depths, or else continually to interrupt the course of our
inquiry, in order to rove from one people to another with an
attention which would be continually distracted and soon wearied.
It will be more profitable for us to take a narrower range.
England, France, and Spain, will supply us with abundant
materials for our undertaking. In these countries we shall study
political institutions under the different phases and in the
various epochs which I have just exhibited before you. There we
shall find that these epochs are more clearly defined, and that
the chief facts which characterize them appear under more
complete and simple forms. In France and Spain, moreover, the
general attempts after a representative government, made in the
thirteenth, fourteenth, and fifteenth centuries, assumed a more
definite shape. We are therefore dissuaded by a variety of
considerations from carrying our steps beyond these limits. Our
researches will thereby gain both in interest and in solidity.
Interest Of The Subject.
This interest, gentlemen, I must say at the outset, is not that
merely which attaches itself to human affairs, which are ever
attractive to man, however trivial may be the attention which he
bestows upon them. The study of the ancient political
institutions of Europe demands serious and assiduous effort. I am
here to share this with you, not to undertake it for you. I shall
be frequently obliged to enter into details, which may appear dry
at first, but which are important because of the results to which
they lead. I shall not content myself with merely presenting
before you these results as a general expression of facts; I
shall feel called upon to put you in possession of the facts
themselves. The truths which they contain must be seen by
yourselves to proceed naturally from them, and must not be
allowed a final lodgment in your minds except as they are
fortified by such evidence as can establish them.
{19}
Difficulty Of Attaining Truth.
Gentlemen, it is to be borne in mind that truth, wheresoever we
may seek it, is not easy of access. We must dig deep for it, as
for precious metals, before we find it; we must not shrink from
the difficulties, nor from the long duration of the enterprise.
It only surrenders itself to resolute and patient endeavour. And
not only on behalf of our peculiar study do I urge upon you that
you should never allow yourselves to be baffled by the fatigue
attendant upon some portions of the work;--a more elevated
motive, a more comprehensive claim, gives you this advice.
Thrasea, when dying, said to his son-in-law, Helvidius Priscus,
"Observe, young man: thou art living in times when it is well
that the spirit should become fortified by such a scene as this;
and learn how a brave man can die." Thankful should we be to
Heaven that such lessons as these are not now required by us, and
that the future does not demand such hard discipline in order
that we may be prepared to meet it. But the free institutions
which we are called upon to receive and maintain--these demand of
us, from our earliest youth, those habits of laborious and
patient application which will constitute our fittest
preparation. They require that we should, among our first
lessons, learn not to shrink either from the pain, or from the
length and arduousness of duty. If our destiny is to be sublime,
our studies must be severe. Liberty is not a treasure which can
be acquired or defended by those who set a disproportionate value
on personal ease and gratification; and if ever man attains it
after having toiled for it under the influence merely of
luxurious or impatient feelings, it denies to him those honours
and advantages which he expected to gain from its possession. It
was the error of the preceding age that, while it aimed at urging
the minds of men into a wider and more active career, it yet
fostered the impression that all was then to become easy, that
study would be transformed into amusement, and that obstacles
were removed from the first steps of a life that was to issue in
something great and impressive. The effeminate weakness of such
sentiments were relics of the feebleness of times when liberty
did not exist. We who live in the present day, know that freedom
requires from the man who would enjoy it a sterner exercise of
his powers. We know that it allows neither indolence of soul nor
fickleness of mind, and that those generations which devote their
youth to laborious study can alone secure liberty for their
manhood.
{20}
Necessity Of Hard Study.
You will find, gentlemen, as you watch the development of the
political institutions of Europe, that the experience of all ages
confirms this of our own. You will not find that those grand
designs that have been formed for the promotion of truth,
justice, and progress, have ever emanated from the abode of
sloth, of frivolity, and antipathy to all that demands labour and
patience. As you trace back such enterprises to their source, you
will always find there, serious aspect and grave determination,
existing, so to speak, in their early life. Only by men formed in
this mould have public laws and liberties been defended. They
have, according as the wants of their age impelled them, resisted
disorder or oppression. In the gravity of their own life and
thoughts they have found a true measure of their own dignity,
and, in their own, of the dignity of humanity. And, gentlemen, do
not doubt, in following their example, of achieving also their
success. You will soon become convinced that, in spite of the
tests to which it has been exposed, our age is not among the most
unrestrained that have existed. You will see that patriotism, a
respect for law and order, a reverence for all that is just and
sacred, have often been purchased at a far heavier price, and
have called for severer self-denial. You will find that there is
as much feebleness as ingratitude in the disposition that is
intimidated and discouraged by the sight of obstacles which still
present themselves, when obstacles of a far more formidable
character have not wearied the resolution of noble men of former
times. And thus, while early exercising your minds in all those
habits which will prepare man for the duties of an exalted
destiny, you will meet with nothing that will not continually
deepen your attachment to your age and to your country.
Characteristics Of The Present Time.
So far as I myself am concerned, may I be allowed, gentlemen, in
entering with you to-day upon the study of the ancient political
institutions of Europe, to congratulate myself on being able to
approach the subject with the liberty that is suitable to it. It
was in works of a similar character that I commenced my
intellectual life. But at that time the public exposition of such
facts and of the ideas related to them, was hardly permitted.
{21}
Power had arrived at that condition in which it fears equally any
representation of the oppression of peoples, and of their efforts
to obtain liberty; as if it must necessarily meet in these two
series of historical reminiscences at once the condemnation of
its past acts, and the prediction of its future perils. We are no
longer in this deplorable position; the institutions which France
has received from its sovereign have liberated at once the
present and the past. Such is the moral strength possessed by a
legitimate and constitutional monarchy, that it trembles neither
at the recitals of history nor at the criticisms of reason. It is
based upon truth,--and truth is consequently neither hostile nor
dangerous to it. Wherever all the wants of society are
recognised, and all its rights give each other mutual sanction
and support, facts present only lessons of utility, and no longer
hint at unwelcome allusions. The volume of history can now be
spread out before us; and wherever we find the coincidence of
legitimacy and constitutional order, we shall behold the
prosperity both of governments and of peoples--the dignity of
power ennobled and sustained by the dignity of obedience. In all
positions, and however great may be the interval which separates
them, we shall see man rendering honour to man; we shall see
authority and liberty mutually regarding one another with that
consideration and respect which can alone unite them in lasting
connexion and guarantee their continued harmony. Let us
congratulate ourselves, gentlemen, that we are living at a time
in which this tutelary alliance has become a necessity,--in
which force without justice could only be an ephemeral power. The
times to which we shall direct our attention experienced a harder
lot; they more than once beheld despotism root itself deeply in
its position, and at the same time saw injustice assert its claim
to a lasting rule. We, gentlemen, who have seen so many and
diversified forms of oppression,--we have seen them all fall into
decay. Neither their most furious violence, nor their most
imposing lustre, have sufficed to preserve them from the
corruption that is inherent in their nature; and we have at
length entered upon an order of things which admits neither the
oppression of force which usurps power, nor that of anarchy which
destroys it.
{22}
Conclusion.
Let us, gentlemen, reap all the advantages connected with such an
order:--let us show our respect for the distinguished author of
this Charter by approving ourselves worthy of receiving, and
capable of employing, the noble institutions which he has
founded. Our gratitude can offer no purer homage.
{23}
Lecture II.
General character of political institutions in Europe,
from the fourth to the eleventh century.
Political sterility of the Roman Empire.
Progress of the Germanic invasions.
Sketch of the history of the Anglo-Saxons
Fall Of The Roman Empire.
I have divided the history of the political institutions of
modern Europe into four great epochs, the first of which extends
from the fourth to the eleventh century. This long interval was
required to introduce a little light and fixity into the
changeful chaos of those new empires which the successive
invasions of the Roman territory by the barbarians had called
into being, and whence issued those mighty states whose destiny
constitutes the history of modern Europe. The essential
characteristics of this epoch are: the conflict and fusion of
Germanic customs with Roman institutions, the attempt to
establish monarchical government, and the formation of the feudal
regime. No general system of political institutions then existed;
no great dominant influence can be discerned; all was local,
individual, confused, obscure. A multitude of principles and
forces, mingling and acting (as it were) by chance, were engaged
in conflict to resolve a question of which men were completely
ignorant, and the secret of which God alone possessed. This
question was: What form of government would issue from all these
different elements, brought so violently into contact with each
other. Five centuries elapsed before the question was decided,
and then feudalism was the social state of Europe.
Causes Of Its Decay.
Before entering, however, upon the history of institutions, let
me say a few words upon the progress of the fall of the Roman
Empire, and of the invasions of the barbarians.
From the accession of Augustus to the death of Theodosius the
Great, the Roman Empire, in spite of its greatness, presents a
general character of impotence and sterility. Its institutions,
its government, its philosophy, its literature, indeed everything
connected with it, bears this sad impress; even the minds of its
most illustrious citizens were confined to a circle of antiquated
ideas, and wasted in vain regrets for the virtues and glories of
the Republic.
{24}
The fermentation of new ideas produces no decadence; but when, in
a great empire, society, feeling itself oppressed and diseased,
can conceive no new hopes, no grand ideas,--when, instead of
pressing onwards towards the future, it invokes only the
recollections and images of the past,--then there is a real
decline; it matters not how long the state is in falling, its
ruin is thenceforward continuous and inevitable. The fall of the
Roman Empire occupied fifteen centuries; and for fifteen
centuries it continued to decline, until its downfall was
consummated by the capture of Constantinople by the Turks. During
this long period, no new idea, no regenerative principle, was
employed to reinvigorate the life of the government; it was
sustained by its own mass. Towards the end of the third century,
when the universal servitude seemed to be most firmly
established, imperial despotism began to feel the precariousness
of its position, and the necessity for organization. Diocletian
created a vast system of administration. Throughout this immense
machine, he established underworks in harmony with the principle
of his government; he regulated the action of the central power
in the provinces, and surrounded himself with a brilliant and
puissant court: but he did not rekindle the moral life of the
Empire; he merely organized more perfectly a material resistance
to the principles of destruction which were undermining it; and
it was with this organization that, first in the West as well as
in the East, and afterwards in the East alone, the Empire was
able to struggle on, from the fourth to the fifteenth century.
Theodosius the Great, who died in 395, was the last emperor who
tightly held and skilfully managed the heterogeneous bundle of
the Roman power. He was truly a great man; for great men appear
in disgraceful times, as well as in times of success; and
Theodosius was still the master of the Roman world. As soon as he
was dead, the dissolution broke out, under his sons Honorius and
Arcadius.[Footnote 2]
[Footnote 2: Honorius succeeded peaceably to the sovereignty
of the West, which he had received from his father in the
preceding year; while his elder brother Arcadius obtained
possession of the East.]
{25}
Abandonment Of Its Colonies.
There was now no real unity or central force in the government;
Rome gradually abandoned her provinces--Great Britain, Armorica,
[Footnote 3] and Narbonnese Gaul. [Footnote 4]
[Footnote 3: The country on the north-west coast of Gaul,
from the Loire to the Seine.]
[Footnote 4: The Roman province in the south of Gaul, so
called from its chief city, Narbo or Narbonne; Cæsar calls
it simply _Provincia_, and hence comes the modern name of
Provence.]
Honorius informed the Britons that he should govern them no
longer; and directed the inhabitants of Narbonnese Gaul to elect
deputies to meet at Arles, and take upon themselves the
government of their country. The Empire had become a body
destitute of sap and vigour; and in order to prolong the life of
the trunk, it was necessary to lop off the branches. But,
although despotism was withdrawn from these provinces, servitude
remained. It is not easy to return at once to liberty and to
political life; and these people, cast upon their own resources,
were unable to defend themselves. Great Britain, though more
populous than the north of Scotland, was unable to repel a few
hordes of Picts and Scots, who, every month, descended from their
mountainous abodes, and ravaged the British territory. The
Britons besought the Emperor's assistance, and he sent them a
legion, which had no difficulty in overcoming enemies who fled
before it; but it was soon withdrawn. After its departure, the
incursions recommenced, and Britain again implored the Emperor's
aid. Honorius sent another legion; but told the suppliants that
they must provide for themselves in future, for he would send
them no more soldiers. The victorious legion left the country to
return no more, and Britain, assailed on all sides by bands of
barbarians, exhausted its energies in vain entreaties for
deliverance. There still exists a letter, entitled _Gemitus
Britannûm,_ in which the unfortunate inhabitants of that
country depict their deplorable condition to Ætius, the Patrician
of Gaul. "The barbarians," they wrote, "drive us to the sea, and
the sea drives us back to the barbarians; so that, between the
two, we must be either slaughtered or drowned." With patriotic
susceptibility, some English writers--among others Mr. Sharon
Turner, in his _History of the Anglo-Saxons_, [Footnote 5]
--have cast doubts upon the authenticity of this letter, as if
the honour of England were at all involved in the weaknesses of
the Britons of the fourth century.
[Footnote 5: Turner's _History of the Anglo-Saxons_,
vol. i., pp. 180-181.]
{26}
However this may be, and whether his aid were besought or not,
the Emperor had other matters to attend to, and left the Britons
to themselves. He abandoned, in like manner, Narbonnese Gaul and
Armorica. This last province, which was less corrupted by the
influence of Roman civilization, displayed greater energy than
the other two. It took measures for its own defence, by forming a
kind of federative league against maritime invasions. Spain,
which was also deserted, endeavoured to maintain itself in the
same manner against attacks of the same nature; but acted with
little vigour, and met with small success. In Great Britain, as
well as in Gaul, the Roman government had destroyed the energy of
their native independence, and had substituted in its stead
nothing but its own artificial and despotic organization. When
the Romans withdrew, the children of the Gauls, inhabiting Roman
cities, were incapable alike of self-government or self-defence,
and fell an easy prey to a few bands of foreign marauders, who
had come in search of booty and adventures. Let us briefly glance
at the progress of their conquests.
Invasions Of The Germans.
No determinate epoch can be accurately assigned to the first
invasions of the Germans. In all ages, their hordes were wont to
descend from their forest-fastnesses into countries less wild and
more cultivated than their own. Among their early irruptions, the
first regarding which we have any precise historical information
is that of the Cimbri and Teutones, who, three hundred thousand
in number, ravaged Italy during the time of Marius. [Footnote 6]
[Footnote 6: In B.C. 113-101. Marius finally defeated the
Teutones at Aix, in the year 102; and the Cimbri, near
Vercelli, in the year 101.]
From the age of Augustus to the fifth century, these invasions
continued, but were very unequal in importance. Bands of men,
unable to find means of subsistence in their own country, entered
the imperial territory, and pillaged as they went; their fate was
decided by the event of a battle; they were dispersed or
annihilated by a defeat, or, if victorious, they took possession
of some district which pleased them. Frequently, also, they
settled in the country by the consent of the emperors. In the
third century, Probus received three or four thousand Franks into
Auvergne.
{27}
Foundation Of Barbarian Kingdoms.
A band of Alans took up their residence in the neighbourhood of
Orleans; there was a colony of Goths in Thrace, and another of
Vandals in Lorraine. Those of the barbarian warriors who
preferred war and pillage to a fixed habitation, entered the
Roman armies. Their chieftains became generals, and even supplied
the imperial court with ministers of state. Thus the barbarians
were everywhere settled in the country, serving in the armies,
surrounding the person of the prince; formidable allies, whose
assistance the weakness of the empire was forced to accept, and
who were destined to increase in power and influence in
proportion as the imperial power decayed.
As soon as the Roman government, by abandoning several of its
provinces, proclaimed its inability to maintain its own
integrity, the question was decided,--the empire passed to the
Germans. During the interval which elapsed between the beginning
of the fifth and the end of the sixth century, they founded eight
great monarchies, some of which were established by force, whilst
others received the partial assent of the emperors.
In 409, the Vandals, Alans, and Suevi, after having ravaged Gaul,
and crossed the Pyrenees, founded by armed force, in Spain, three
monarchies, which were speedily incorporated into one; and this
one, in its turn, was, ere long, destroyed by the Visigoths.
In 429, the Vandals passed from Spain into Africa, and founded a
monarchy, which was overthrown by Belisarius.
In 414, the Burgundians founded a kingdom in Gaul, with the
consent of the emperors.
In 416, the Visigoths penetrated into Southern Gaul, where they
founded the kingdom of Aquitaine; and entered by the north-east
into Spain, where they settled, after having destroyed the
monarchy of the Suevi.
In 450, the Saxons, led by Hengist and Horsa, invaded Great
Britain, and founded the Saxon Heptarchy.
In 476, the Heruli, under the command of Odoacer, founded a
monarchy in Italy.
In 481, the Franks, with Clovis at their head, established
themselves in Gaul.
In 568, the Lombards, under the command of Alboin, conquered
Italy in their turn, and founded a monarchy.
{28}
Power Of The Emperors.
I do not propose to write the history of these monarchies; but I
shall endeavour to delineate their leading institutions and their
social condition. In the first place, however, I shall say a few
words on the method of their foundation. We must not suppose that
there was, in every instance, a cession or complete abandonment
of sovereignty by the Roman empire. The residence of a barbarian
chieftain in the country was recognised as a fact. He continued
to command his own warriors, but no legal authority was granted
him over the old inhabitants. The cities long maintained their
connexion with Rome; several of them remained municipalities, and
continued to appoint their own magistrates. Several towns in
Spain, while the country was under the dominion of the Visigoths,
received their civic rulers from Constantinople. The emperors,
though daily despoiled of some new territory, nevertheless
retained, in almost every quarter, an appearance of empire. Thus
we find them conferring on the Frankish kings the titles of
Patrician of Gaul, and of Consul. This was their protest against
the invasion. In scarcely any case was there a transference of
sovereign rights. Societies, when abandoned by their government,
either received a new one at the hands of the victor, or
endeavoured to create one for themselves.
The Anglo-Saxons.
Among these rising states, I shall first refer to the
Anglo-Saxons; then I shall pass on to the Franks; and, finally,
to the Visigoths in Spain. I have selected these three nations,
because, among them, the institutions of this period are most
distinctly marked. The Anglo-Saxons, especially, were placed in a
position most favourable for this rapid and complete development.
Not only were they more isolated than other peoples; they were
also less disturbed by continual invasions of a formidable
character. They soon became sole masters of the country. The
Britons were almost exterminated; some of them retired into
Cornwall, Wales, and Armorica; the others were dispersed, or
reduced to servitude. The Anglo-Saxons, moreover, were less under
the influence of the old Roman institutions. Among modern
nations, they are the people who, so to speak, have lived most
upon their own resources, and given birth to their own
civilization. This character is discernible in their whole
history, and even in their literature.
{29}
The Greek and Latin classics have produced but little effect upon
them; primitive and national customs have maintained their sway
in England, and received an almost unmixed development. Among the
Franks and Visigoths, the old Germanic national assemblies were
either suspended for a long period, or entirely transformed;
among the Anglo-Saxons, they never ceased; year after year, they
occurred to perpetuate ancient recollections, and to exert a
direct influence upon the government. It was, then, among the
Anglo-Saxons, that, from the fifth to the eleventh century,
institutions received the most natural and complete development.
This fact has induced me to commence our studies with their
history.
Let me briefly refer to the events which occurred during the
period of the Anglo-Saxon Heptarchy. From 426 to 450, the
Britons, left to themselves, struggled as they could against the
inhabitants of the north of Scotland. In 449, some Saxons from
the banks of the Elbe disembarked upon the island. This descent
was neither novel nor unforeseen. It was a fact so ancient, that
the Roman emperors had appointed a magistrate--_comes littoris
Saxonici_--whose special duty it was to provide for the
defence of the coast. It is affirmed, and Hume has repeated the
statement, that this Saxon expedition had been summoned by
Vortigern, who was then chief of the Britons, to assist him
against the Picts and Scots. This appears to me neither natural
nor probable; and I find in the chronicler Nennius, a passage
which completely disproves the assertion: "Meanwhile," he says,
"there arrived from Germany three vessels full of Saxon exiles."
[Footnote 7] They came therefore spontaneously, according to
their custom. The Britons, reduced to extremities by their
untiring enemies, the Picts and Scots, endeavoured at first to
use the Saxons against them. But the new-comers quickly
discovered their strength, attempted the conquest of the country
which they had promised to defend, and succeeded in their
attempt. The Britons resisted, and even displayed somewhat of the
energy of their ancestors, under King Arthur and other leaders. A
long time elapsed before they were finally subjugated or
expelled. During the period from 455 to 582, the Saxons founded
the seven or eight kingdoms which, composed the Heptarchy, or the
Octarchy, as Mr. Sharon Turner maintains. [Footnote 8]
[Footnote 7: Nennius, cap. 31.]
[Footnote 8: _History of the Anglo-Saxons_, vol. i. p.
320.]
{30}
The kingdom of Kent was the first, founded by Hengist. The others
were the kingdoms of Sussex, Wessex, Essex, Northumberland (or
Bernicia and Deira), East Anglia, and Mercia. This division
continued until the year 800. At that time, Egbert, King of
Wessex, attempted to subjugate the other kingdoms, and succeeded
in reducing five under his sway; but Northumberland and Mercia
continued separate, though subordinate kingdoms, until the end of
the ninth century.
_Reign Of King Alfred._
It was at this period that the Danes and Normans made their way
into England: they long contested the possession of the country
with the Saxons; and, at the accession of Alfred, the last
new-comers held sway almost all over the land. You are all
acquainted with the history of this monarch, the greatest of the
kings of England. In the marshes where he had been compelled to
seek refuge from the pursuit of his enemies, he formed his plans
for the deliverance of his country. Disguised as a harper, he
entered the Danish camp for the purpose of learning the amount of
their forces; and finally reconquered his kingdom, after a
protracted struggle. Restored thus to his throne, Alfred laid the
foundation of English institutions, or rather, he reduced them to
order, and gave them authority. It is the custom, however, to
date their origin from him; and his reign is an era in English
legislation. Alfred is a glorious instance of a truth exemplified
by Gustavus Vasa and Henry IV. of France in later times, namely,
that the greatest princes are those who, though born to the
throne, are nevertheless obliged to conquer its possession. To
their acknowledged right they thus join ample proof of their
merit. They have lived as common individuals in the midst of
their people; and have thus become better men and better kings.
After the death of Alfred, the Danes, whose conquests had been
suspended only by the victories of that prince, gained possession
of England. Canute the Great took possession of the throne; but
he reigned with moderation, and did not change the laws of the
country. This wisdom on the part of the conqueror mitigated the
animosity of the vanquished; and the Danes and Saxons agreed so
well together, that, not long after the death of Canute the
Great, the old dynasty re-ascended the throne.
{31}
Edward the Confessor collected together the old Saxon laws; on
this account, he is still respected in England as a national
legislator. But the collection of laws which now exists under his
name was not made by him; that which he composed has
unfortunately been lost.
_The Norman Conquest._
During the reign of Edward the Confessor, a striking
exemplification was given of the power of some of the nobles, who
were in fact, if not in right, rivals of their monarch. Earl
Godwin was so powerful that he, so to speak, allowed Edward to
ascend the throne, on condition that he should marry his
daughter. At his death, his son Harold succeeded him, and
increased his authority. Harold's influence extended all over the
kingdom, and he only awaited the king's death to take possession
of the crown. When Edward died, Harold naturally succeeded to
throne. No one in England contested his usurpation. But William
the Bastard, Duke of Normandy, one of his distant relations,
alleged that Edward had bequeathed the crown to him by will. He
crossed the sea to maintain his pretended rights, and, on the
14th of October, 1066, he gave battle to Harold, at Hastings.
Harold was left dead on the field. William the Conqueror
introduced into England the feudal institutions which were then
in full vigour in Normandy. The reciprocal relations of persons
might have conduced, in England, to the establishment of this
system, and had prepared the way for it; but the legal and
hierarchical subordination of land had not yet taken firm hold in
that country. The conquest of William of Normandy disturbed the
natural course of the old Anglo-Saxon institutions, and mingled
therewith foreign elements which had already been developed,
among the Normans, by their position in Gaul, in the midst of
Roman cities, and a Roman population. We shall presently see what
decisive influence this circumstance exerted over the political
development of England.
{32}
Lecture III.
Subject of the lecture.
A knowledge of the state of persons necessary
to the proper study of institutions.
Essential difference between antiquity and modern societies,
as regards the classification of social conditions.
State of persons among the Anglo-Saxons.
Thanes and Ceorls.
Central and local institutions.
Predominance of the latter among the Anglo-Saxons.
Its cause
Anglo-Saxon Institutions.
In my preceding lecture, I gave a general outline of the decay of
the Roman empire, and of the progress of the barbarian invasions;
and I enumerated the principal events in the history of the
Anglo-Saxons in England. I now come to their institutions, which
form the subject of my present lecture.
When we are about to speak of the institutions of a country at
any given period, we must first understand what was the state of
persons in that country at that period; for words are very
deceptive. History, when speaking of the English nation or the
Spanish nation, comprises under that name all the individuals who
inhabit the country; but when we examine into the real state of
the case, we quickly discover that the facts which history
applies to an entire country, actually belong only to a very
small section of its inhabitants. It is the work of civilization
to raise up, from time to time, a greater number of men to take
an active part in the great events which agitate the society of
which they are members. As civilization advances, it reaches new
classes of individuals, and gives them a place in history. The
different conditions of society thus tend, not to confusion, but
to arrangement, under different forms and in different degrees,
in that superior region of society by which history is made.
The first question to be solved, then, is that of the state of
persons; we must precisely understand which are those classes
that really figure in history. Then will occur this other
question: What are the institutions in accordance with which that
political nation acts, which alone furnishes subject-matter for
history?
{33}
When we address the first question to antiquity, we find, as in
Modern Europe, one great classification: freemen and slaves. But
there is this difference that, in antiquity, slavery continued
stationary and immutable. Its unchangeableness in this
particular, was one of the principal characteristics of ancient
civilization. Individuals were emancipated; but the great mass of
slaves remained in bondage, everlastingly condemned to the same
social nonentity. In Modern Europe, social conditions have been
in a state of perpetual fluctuation; numerous masses of men have
fallen into slavery, while others have emerged therefrom; and
this alternation of liberty and servitude is a novel and
important fact in the history of civilization.
Thanes And Ceorls.
What was the condition of persons among the Anglo-Saxons? Here,
as elsewhere, we at first perceive the two great divisions of
freemen and slaves. The freemen, who are the only active elements
in history, were divided into two classes, _thanes_ and
_ceorls_. The thanes were the proprietors of the soil, which
was entirely at their disposal: hence the origin of freehold
tenure. The ceorls were men personally free, but possessing no
landed property. The thanes were subdivided into two classes;
king's thanes, and inferior thanes. This distinction is not
merely a historical fact; the laws recognize these two divisions.
The composition for the life of a king's thane was twelve hundred
shillings, while for that of an inferior thane it was only six
hundred. Here, as in other states which came into existence at
this epoch, punishment was made proportionate, not only to the
gravity of the offence, but also to the rank of the person
injured. By the substitution of an indemnity for retaliation, a
step was taken by these peoples towards social justice. Early
ideas of justice inflict evil for evil, injury for injury; but
the highest point of its perfection is that decision of society
which, embodying supreme reason and power, judges the actions of
men accused of crimes, and acquits or condemns them in the name
of the Eternal Justice. In the sixth century, society did not
inflict punishment; life, like everything else, had its price;
and this price was shared between the family of the dead man, the
king, and the judge.
{34}
The penalty of crime was as yet only the price paid for the
renunciation of the right of revenge which belonged to every free
man. Individuals who were injured, either in the possession of
their goods, or in the life of their relatives, received a fixed
composition from the guilty person.
Different Classes Of Thanes.
I have pointed out the legal distinction which subsisted between
the king's thanes and the inferior thanes; but when we seek to
discover what constituted the real difference of their condition,
we find that this difference was very vague, and belonged to the
time when they all led a nomadic life, rather than to their
settled agricultural existence. In Germany, or on leaving
Germany, bands, more or less numerous, united themselves to the
company of some particular chief or king. After the conquest of a
country, those chiefs who were nearest the king found themselves
in a most favourable position for becoming large landed
proprietors. These were called king's thanes, because they
belonged to the royal band. But there was nothing to separate
them essentially from the other thanes. To be a king's thane, it
was necessary to possess about forty or fifty hides of land.
[Footnote 9]
[Footnote 9: A hide of land was about 120 acres.]
Bishops and abbots were admitted into this class. The inferior
thanes were proprietors possessing less land, but able to dispose
just as freely of their property as the king's thanes. Some
writers have asserted that the king's thanes were the nobles, and
that the others were simple freemen. An attentive examination of
Anglo-Saxon institutions will prove that there was no such
difference of position and rights between the two classes. It is
a great error to expect to meet with clearly defined ranks and
conditions, at the origin of society. Some writers, however,
pretend to discover at the outset what time alone can introduce.
We meet with no nobility, constituting a superior social
condition, with recognized privileges: we perceive only the
causes which will progressively form a nobility, that is, will
introduce inequality of power and the empire of the strong. The
formation of a class of nobles has been the work of ages. An
actual superiority, transmitted from father to son, has gradually
assumed the form and characteristics of a right. When societies
have not been long in existence, we do not find in them social
conditions thus distinctly marked, and the royal family is the
only one that can, with any reason, be termed noble.
{35}
It generally derives its title from some religious filiation; for
instance, among nearly all the peoples of the north, in Denmark,
in Norway, and in England, the kings descended from Odin; and
their divine origin gave high sanction to their power.
Their Mutual Relations.
Other writers have held that the relations which subsisted
between the king's thanes and the inferior thanes were of a
different nature, corresponding to the feudal relations of lords
and vassals. The king's thanes, they say, were vassals of the
king; the inferior thanes were vassals of the king's vassals. We
may certainly discover, in the connection of these two classes of
men, some of the characteristics of feudalism. But feudalism,
such as was established on the Continent as well as in England,
after the conquest by William of Normandy, consisted essentially
in the simultaneous hierarchy of lands and persons. Such were not
the rudiments of feudalism discernible among the Anglo-Saxons. As
yet, the only hierarchy existing among them was of persons. All
the thanes held their lands in an equally free and independent
manner. At a later period, feudalism received a more complete
development; from the hierarchy of persons proceeded that of
lands, and the latter soon predominated over the former. But this
result was not manifested until after the Norman conquest. Before
that period, there were no vassals properly so called, although
the word _vassus_ occurs in a biography of King Alfred. The
causes which led to the subordination of persons, independently
of their connection with land, are simple and may easily be
conceived. When the barbarian chieftains entered the Roman
territory, they possessed an influence over their companions
which they endeavoured to retain after their settlement. The
Saxon laws, with a view to bring this rude and floating state of
society into an orderly state, provided for the maintenance of
this primitive hierarchy; and compelled every freeman who had
attained the age of twelve years, to enrol himself in some
corporation of individuals, in a tithing or a hundred, or else to
place himself under the patronage of a chieftain. This bond was
so strong that the person who made the engagement could not
absent himself without the permission of the captain of his
corporation, or of his chieftain.
{36}
A foreigner even might not remain forty days on the English soil
without enrolling himself in this manner. This spirit of
subordination, this obligation of discipline, is one of the
principal characteristics of Anglo-Saxon legislation. All those
kings who, after long-continued disorders, were desirous to
reorganise society, exerted themselves to restore to vigorous
operation these laws of police and classification. They have been
attributed to Alfred, but he merely re-enacted them.
In my opinion, then, there is no legitimate ground for the
doctrine that the relation of the king's thanes to the inferior
thanes, was a feudal relation. It was the natural relationship
which necessarily arose, at the origin of society, between the
various degrees of power and wealth. The poor and the weak lived
under the surveillance and protection of those who were richer
and more powerful.
Freedom Of The Ceorls.
As I have already observed, the freemen were divided into two
classes,--thanes and ceorls. I shall now speak of the second
class. The ceorls were freemen who lived on the estates of the
thanes, and cultivated them. Their free condition has been called
in question, wrongly, as I think, for various reasons:
1st. The composition for the life of a ceorl was two hundred
shillings, and the characteristic mark of his liberty is that a
portion of this composition was paid to his family, and not to
the proprietor of the estate on which he lived; whereas, the
composition for the life of a slave was always paid to his
owner.
2nd. In the early times of the Saxon monarchy, the ceorls were
able to leave the land which they cultivated, whenever they
pleased; by degrees, however, they lost this liberty.
Ceorls and Slaves.
3rd. They had the right of bearing arms, and might go to war;
whereas, slaves did not possess this right. When Earl Godwin
attacked King Edward, he armed all the ceorls on his estates;
and, at the time of the Danish invasions, the ceorls fought in
defence of their country.
4th. They were also capable of possessing property, and when
they owned five hides of land they passed into the class of
thanes, as did also merchants who had made three voyages to
foreign lands. Hence the origin of the English yeomanry. The
yeoman is the freeholder, who, possessing an income of forty
shillings from land, votes at county elections, and may sit on
juries; _probus et legalis homo_.
{37}
5th. The ceorls were admitted to give evidence, only, it is
true, in matters which had reference to persons of their own
class: whereas slaves did not possess this right.
6th. Nearly all the ceorls were Saxons: we find in a canon of
the clergy of Northumberland, that a ceorl accused of a crime,
must bring forward as witnesses twelve ceorls and twelve
Britons.
The ceorls, then, were Saxons, and were distinguished from the
ancient inhabitants of the country. It is impossible that so
large a proportion of the conquerors should have fallen so
quickly into servitude. We may rather feel astonished that they
had no landed property in the country, which they had just
conquered. But Tacitus, with the accustomed truthfulness and
vigour of his pencil, makes us readily understand this
circumstance. In the forests of Germany, the barbarian warriors
always lived around their chieftains, who had to suggest and
command expeditions in times of activity, and to lodge and
support their men in times of repose. The same habits were kept
up after the conquest of a country; the property acquired was not
divided among all the victors. Every chieftain received a larger
or smaller division of land, and his followers settled with him
upon it. These men, accustomed to a wandering life, did not yet
set a high value upon landed property. Being still harassed,
moreover, by the ancient possessors of the soil, they found it
necessary to keep together, and unite in their own defence. They
formed species of camps around the dwelling of their chieftain,
whose possessions, according to the ancient Saxon laws, were
divided into two parts--_inlands_ and _outlands_. And
it is clear proof of the great difference then existing between
the ceorls and the slaves, that the latter alone cultivated the
land adjoining the habitation of the chief, while the ceorls, as
a natural consequence of their personal freedom, tilled the
outlands. This state of things, however, could not last long. A
large number of the ceorls fell into servitude, and assumed the
name of _villeins_ (villani); while others acquired lands
for themselves, and became the _soc-men_ of England.
{38}
Summing up what we have said, we perceive, in the state of
persons under the Anglo-Saxon monarchy, one great division into
freemen and slaves: and, among the freemen, another distinction
of thanes and ceorls. The thanes themselves are subdivided into
king's thanes and inferior thanes. The former are large landed
proprietors, the latter hold smaller estates; but both classes
possess equal rights. The ceorls are freemen, without landed
property, at least originally. Most of them fall into a state of
servitude. With regard to the slaves, we can say nothing except
that they were very numerous, and were divided into domestic
servants and rural serfs, or serfs of the glebe. The ancient
inhabitants of the country did not all fall into servitude; some
of them retained their possessions, and a law of King Ina
authorized them to appear before courts of justice. They might
even pass into the class of thanes if they possessed five hides
of land.
The thanes alone, to speak truly, played an active part in
history.
_Local Institutions._
Passing now to the institutions which connected and governed
these different classes, we find them to be of two kinds; central
institutions, entirely in the hands of the thanes, the object of
which was to secure the intervention of the nation in its own
government; and local institutions, which regulated those local
interests and guarantees which applied equally to all classes of
the community.
Origin Of Centralization.
At the origin of Anglo-Saxon society, there existed none but
local institutions. In these are contained the most important
guarantees for men whose life never goes beyond the boundaries of
their fields. At such epochs, men are as yet unacquainted with
great social life; and as the scope of institutions always
corresponds to the scope of the affairs and relations to which
they have reference, it follows that when relations are limited,
institutions are equally so. They continue local, because all
interests are local; there are very few, if any, general taxes
and affairs of public concern; the kings live, like their
subjects, on the income derived from their estates. The
proprietors care little about what is passing at a distance. The
idea of those great public agencies which regulate the affairs of
all men, does not belong to the origin of societies. By degrees,
in the midst of the chaos of the rising society, small
aggregations are formed which feel the want of alliance and union
with each other. They establish amongst themselves an
administration of justice, a public militia, a system of taxation
and police.
{39}
Soon, inequality of strength is displayed among neighbouring
aggregations. The strong tend to subjugate the weak, and usurp,
at first, the rights of taxation and military service. Thus,
political authority leaves the aggregations which first
instituted it, to take a wider range. This system of
centralization is not always imposed by force: it sometimes has a
more legitimate cause. In times of difficulty, a superior man
appears who makes his influence first felt in the society to
which he belongs. When attacked, the society intrusts him with
its defence. Neighbouring societies follow this example; soon the
powers granted in time of war are continued in time of peace, and
remain concentrated in a single hand. This victorious power
retains the right to levy men and money. These are the rights of
which the movement of centralization first deprives small local
societies; they retain for a longer period the rights of
administering justice, and establishing police regulations; they
may even retain them for a very long while, and England offers us
many such examples.
The preponderance of local institutions belongs to the infancy of
societies. Civilization incessantly tends to carry power still
higher; for power, when exercised from a greater distance, is
generally more disinterested, and more capable of taking justice
and reason for its sole guides. But frequently also, as it
ascends, power forgets its origin and final destiny; it forgets
that it was founded to maintain all rights, to respect all
liberties; and meeting with no further obstacles from the energy
of local liberties, it becomes transformed into despotism. This
result is not, however, necessary and fatal; society, while
labouring for the centralization of authority, may retain, or
regain at a later period, certain principles of liberty. When
central institutions have obtained too absolute a prevalence,
society begins to perceive the defects inherent in an edifice
which is detached, as it were, from the soil on which it stands.
Society then constructs upon itself the exact opposite of what it
built before; looks narrowly into the private and local interests
of which it is composed; duly appreciates their necessities and
rights; and, sending back to the different localities the
authorities which had been withdrawn therefrom, makes an
appropriate distribution of power.
{40}
_Effects Of The French Revolution._
When we study the institutions of France, we shall be presented
with the greatest and clearest example of this double history. We
shall perceive the great French society formed from a multitude
of little aggregations, and tending incessantly to the
concentration of the different powers contained within it. One
great revolution almost entirely destroyed every vestige of our
ancient local institutions, and led to the centralization of all
power. We now suffer from the excesses of this system; and having
returned to just sentiments of practical liberty, we are desirous
to restore to localities the life of which they have been
deprived, and to resuscitate local institutions, with the
concurrence and by the action of the central power itself. Great
oscillations like these constitute the social life of humanity,
and the history of civilization.
{41}
Lecture IV.
Local institutions among the Anglo-Saxons.
Divisions of territory; their origin and double object.
Internal police of these local associations.
Importance of the county-courts; their composition
and attributes.
Complex origin of the Jury.
Central institutions of the Anglo-Saxons.
The Wittenagemot; its composition, and the
principle on which it was based.
Increasing preponderance of the large landowners
in the Anglo-Saxon monarchy.
Local Institutions In England.
In my preceding lecture I pointed out the causes of the special
importance of local institutions, at that epoch in the
development of civilization which now occupies our attention. I
now proceed to examine into those institutions.
They were of two kinds. One class bound man to a superior,
established a certain right of man over man, a personal
pre-eminence and subordination, which were the source of mutual
duties. On the Continent, this hierarchy of persons became the
first principle of feudalism, which would perhaps have received
only a very imperfect development in England, had not William the
Conqueror transplanted it to that country in its complete state.
The other class of local institutions bound men of equal rank to
each other, regulated their mutual relations, and defined their
reciprocal rights and duties. The first class marked a
relationship of protection and dependence; the second summoned
all the inhabitants of the same territory, possessing the same
rights and the same obligations, to deliberate in common upon
affairs of common interest. These were the predominant
institutions of the Anglo-Saxons. Norman feudalism could not
entirely abolish them.
Divisions Of The Soil.
At this period, England was divided into tithings, hundreds, and
counties. This division has been attributed to King Alfred: he
seems to be the founder of all the legislation of this epoch,
because it all issues in a fixed and precise form from his reign;
but he found it already in existence, and did nothing more than
arrange it in a written code. He did not, then, originate this
division of territory, which appears to be based upon the
ecclesiastical partition of the country.
{42}
After their settlement in Great Britain, the Saxons did not
divide it into systematically determined portions, but adopted
what they found already established. The portions of territory
which were under the direction of the _decanus_, the
_decanus ruralis_, and the bishop, formed respectively the
tithing, the hundred, and the county. We must not, however,
suppose that these names correspond precisely to realities. The
tithings and hundreds were not all equal in extent of soil and
number of inhabitants. There were sixty-five hundreds in Sussex,
twenty-six in Yorkshire, and six in Lancashire. In the north of
England, the hundreds bore another name; they were called
_Wapentakes_. [Footnote 10] Here the ecclesiastical division
ceases, and a military circumscription prevailed, which still
subsists in some counties. An analogous circumscription has
continued to the present day in the Grisons, in Switzerland.
[Footnote 10: From _wapen_, weapons, and _tac_, a
touch, i. e. a shaking or striking of the arms; or from the
same _wapen_, and _tac_, a taking or receiving of
the vassal's arms by a new lord in token of subjection; or
because the people, in confirmation of union, touch the
weapon of their lord. See Blackstone, Introd., sec. 4. and
Holinshed, vol. v. p. 37.]
These divisions of the soil had a double object. On the one hand,
they formed the most certain means of insuring order and
discipline; and on the other hand, they supplied the inhabitants
with the most convenient method for transacting their public
business in common.
By a police regulation which I have already mentioned, every free
individual, above twelve years of age, was obliged to enrol
himself in a certain association, which he could not abandon
without the permission of the chief. A stranger might not remain
for more than two days with a friend, unless his host gave surety
for him, and at the end of forty days he was compelled to place
himself under the surveillance of some association. It is
remarkable that the details of these laws of classification and
subordination were almost the same in all those parts of the
Roman Empire occupied by the barbarians--in Gaul and Spain, as
well as in England. When one of the members of a special
association had committed a crime, the association was obliged to
bring him to trial. This point has given rise to much discussion
among learned men.
{43}
The County Courts.
Some have maintained that the association was bail for its
members, not only for their appearance before the court of
justice, but also for the crime which they might have committed.
I think that every Anglo-Saxon association was bound only to
bring the culprit to trial. If he had made his escape, the
association had to prove, sometimes by twelve and sometimes by
thirty witnesses, that it knew nothing of his whereabouts; and it
was fined only when it could not produce witnesses to prove that
it had not abetted his escape. This obligation of every local
corporation to pay for its guilty and absent members, existed
also in Gaul at this time. The Gallic corporation was moreover
answerable for the execution of the sentence: I do not think this
was the case in England, where it was bound only to bring the
culprit to trial.
The second object of this division of the land was to appoint
centres of union, where the inhabitants might discuss matters of
common interest. In every county, and in every subdivision of a
county, the landowners held meetings, at which they deliberated
upon the affairs of the local association to which they belonged.
Originally, therefore, there existed not only county-courts, but
also courts of hundred and courts of tithing, which frequently
met. By degrees, as the circle of the interests of these little
associations continually tended to become larger, the courts of
tithing fell into desuetude. The courts of hundred survived for a
longer period, and even now retain some shadow of existence. The
Saxons, however, dispersed over the country, and busied with
their warlike and agricultural labours, gradually lost the habit
of attending these meetings. Having scarcely any written rights
to defend, and being seldom disturbed in their dwellings, they
lived without anxiety for a liberty which was never called in
question. The principal guarantee of the liberty of individuals
at that time was their isolation: the active surveillance which
it requires, when government exercises a direct and frequent
influence upon the governed, would have been to them a useless
and fatiguing burden. It devolved upon the kings to compel them,
as it were, to keep up their old institutions. Athelstane
ordained that the county-courts should meet once in every three
months. Few persons attended them, and it became necessary to
grant further indulgence. The county-courts were allowed to
assemble only twice a year.
{44}
All holders of land were entitled to attend their meetings. The
matters discussed were the internal administration of the county,
the maintenance of roads and bridges, the keeping in repair of
the forts which the Romans had constructed to defend the country
against the invasions of the Picts and Scots, and which were
still used for the same purpose. All public business was
transacted in the county-court, under the presidency of the
_alderman_. At its meetings, military forces were levied,
justice was administered, and ecclesiastical affairs were treated
of. All public acts, sales, manumissions, wills, were conducted
before it, and the publicity of the assembly gave an authentic
character to these deeds. Every act, however, was authenticated
by a certain number of witnesses, and the deeds were afterwards
transcribed and intercalated in the parish Bible.
_Origin of the Jury._
In these meetings, also, we discern the origin of the
_Jury_. When there was a trial to be decided, the alderman
sent a number of freemen belonging to the same class as the
contending parties, to the place where the dispute had occurred,
in order to learn the facts of the case. These men were called
_assessors_, and when they returned to the county-court,
furnished with the necessary information, they naturally became
the judges in the case which they had investigated. The
contending parties publicly pleaded their own cause, and were
obliged to prove their right by witnesses, _compurgatores_.
It has been a question much debated whether the institution of
the jury arose from these witnesses, or from the assessors. In my
opinion, it was the product of neither exclusively, but of both
combined. The establishment of a great institution has nearly
always something complex about it. The jury came into existence
in some measure spontaneously, from the amalgamation of the
different classes of persons who combined to investigate and
decide the case. Under the Anglo-Saxon monarchy, it was not a
very clearly defined institution. It was not universally in
practice, its rules were frequently infringed upon: and Alfred,
who was the restorer of the ancient institutions of the country,
hanged an alderman who had given judgment without the
co-operation of his assessors.
{45}
Appointment Of Magistrates.
The presidents of these different territorial subdivisions, of
the county-courts, the hundred-courts, and the tithing-courts,
were at first elected by the landowners. I do not suppose the
choice was made by individual votes, but rather by a tacit
consent given to the personal influence of certain men.
Sometimes, however, to repair long disorders, and destroy the
injurious consequences of this influence, the central authority
interfered in the appointment of these magistrates. When Alfred
had vanquished the Danes, he was desirous to reform the abuses
which the troubles of war had introduced into the administration
of justice; he assumed the right of choosing the
_centenarii_ and tithing-men, and this novelty was so far
from being considered an usurpation of the rights of the nation,
that contemporary historians praise the monarch for having given
the people such good magistrates. The systematic conflict of the
rulers with the ruled had not yet commenced; the limits of their
respective rights and duties were neither fixed nor recognised,
and as power was not yet extravagant in its exactions, the people
did not feel their rights attacked; necessity, or temporary
utility, were the tests which decided the value of a measure. We
do not find that the kings who succeeded Alfred retained this
right of appointment. Under Edward the Confessor, the
county-magistrates were chosen by the landowners. The conquest of
William the Norman destroyed, in great measure, these free
customs. The alderman, the centenarius, and the tithing-man,
disappeared before the feudal lords, or became feudal lords
themselves. The assemblies of freemen, however, still retained
the right of appointing their respective officers. The sheriff
was substituted for the alderman, the centenarius merged in the
high-constable, and the petty-constable took the place of the
tithing-man. These were the officers of the people,--the
municipal officers.
Such is a summary of the local institutions which, under the
Anglo-Saxon monarchy, maintained the internal order of the state,
and constituted the safeguards of public liberty. Vigorous
institutions were they, which feudalism could not overthrow, and
which produced, at a later period, representative government in
England, although they did not contain, as you will presently
see, the true principle of representative government.
{46}
The Wittenagemot.
Let us now pass to central institutions. Of these, there were two
among the Anglo-Saxons: the national assembly, and the royal
office.
Tacitus has described to you the general assemblies of the
ancient Germans. At those meetings, nothing was decided without
the consent of every freeman. Each individual possessed and
exercised his own personal rights and influence. The influence of
the chiefs was great. The leaders of their men in war, they
became, when their conquest was completed, the principal, indeed
almost the sole, landed proprietors, and thus they retained among
themselves, although the others were not legally excluded, the
practice of forming national assemblies. Each kingdom of the
Saxon Heptarchy had its own, and it is probable that the thanes,
or landowners, enforced the adoption and execution of the
resolutions of this assembly, among the ceorls who dwelt on their
estates. When the Heptarchy was combined into a single kingdom,
one general assembly alone was established; and as its meetings
were held in a central locality, at a great distance from many
parts of the realm, the large proprietors were the only persons
who were able to attend regularly. This assembly was called the
_Wittenagemot_, or the assembly of the wise men. From
historical documents, we learn that it was composed of bishops,
abbots, abbesses, dukes, and earls; but we also find these words,
the vagueness of which has given rise to very different
explanations: "such a decision was taken _coram proceribus
aliorumque fidelium infinitâ multitudine._" Some learned men,
who are partisans of absolute power, have inferred from this that
it existed at the very origin of society; and they assert that
the name of the assembly, _Wittenagemot_, was in itself
sufficient to prove that it was composed only of the judges and
delegates of the sovereign. Other writers, who are zealous
advocates of the rights of the people, have held the opinion that
this multitude of persons present were the representatives of the
various counties and boroughs. I think that both these systems
are false. As regards the first, it is evident that there was no
distinct class of judges at this period; public functionaries
were, not then classified as they are now, and the expression
_wise men_ would apply equally to all those whose condition
raised them above the 'vulgar herd.' With reference to the second
system, I must say that no idea of representation was entertained
at that period.
{47}
Its Members.
Whoever was entitled to attend the assembly went thither, and
went in person. No proxies were allowed. No one was permitted to
enter the assembly in any name but his own. When we come to treat
of the principles of representative government, we shall see that
the formation of the ancient Germanic assemblies was based upon
the principles of individual right, and of the sovereignty of the
multitude,--principles from which representative government did
not take its origin. Besides, the towns at this period were in so
miserable a condition, that it was impossible for them to appoint
representatives. York, the second city in England, contained
fourteen hundred and eighteen families, and Bath sixty-four. A
law of King Athelstane declares that no one entered, or could
enter, the assembly, except upon his own account; every
proprietor possessing five hides of land, it says, and every
merchant who has made three voyages to foreign countries, shall
be numbered among the thanes, and be admitted as such into the
Wittenagemot. The inequality of conditions, however, continued to
increase. Those national assemblies, in which, originally, all
freemen were entitled to sit, soon became, as you have seen,
restricted to landed proprietors. By-and-bye, as power became
centralized, and predominant influences gained greater strength,
the small proprietors ceased to use a right which had lost all
value to them, and the large landowners remained the undisputed
masters of the field. The disproportion between the two classes
was so great, that a contest was impossible. As each man sat in
his own name, each man brought his own personal influence and
private interests with him. The general assembly became an arena
for individual disputes. This was the necessary consequence of a
principle, which, by summoning all persons to exercise the same
right, placed inequalities in that position which was most
favourable to the development of their power and egotism. It is
the work of a widely different principle to seek out among the
masses the persons best fitted to represent them, to send these
individuals to the central assembly to provide for the safety of
all rights in the name of justice, and thus to prevent the evil
consequences which must result from the natural or social
inequality of mankind, by creating a factitious, but just,
equality among their representatives, which leaves them only the
legitimate influence of their talents and character.
{48}
Character of The Anglo-Saxon Monarchy.
But the foundation of such a government is the work of ages.
Nations, in their infancy, cannot possess it. The Anglo-Saxon
monarchy was a continual conflict of individual interests, which
was carried on in the Wittenagemot, as well as elsewhere, and its
general tendency was to the continually increasing preponderance
of large landed property.
{49}
Lecture V.
The Wittenagemot; its business and power.
Method of its convocation.
Vicissitudes of its character and importance.
The kingly office among the Anglo-Saxons.
Extent and progress of the royal power.
Business Of The Wittenagemot.
We have already considered the origin and composition of the
Wittenagemot, or general assembly of the Anglo-Saxons, it now
remains for us to speak of its attributes and method of
convocation.
In the infancy of society, everything is confused and uncertain;
there is as yet no fixed and precise line of demarcation between
the different powers in a state; and thus we find that the
attributes of the Wittenagemot were rather indefinite. There was
no settled boundary at which its power ceased, and that of the
monarchy commenced; both united to transact all the business of
the nation, and, if we would ascertain the part actually taken by
the Wittenagemot in this business, we must inquire of history
what were its real attributes.
The defence of the kingdom was the chief business of the national
assemblies. We must not suppose that the obligation of military
service is coeval only with feudalism; independently of every
feudal bond, it was an obligation imposed on every freeman in the
nation, just as at the present day every French citizen is bound
to present himself for conscription. The Wittenagemot ordered
levies of the landowners, who, in their turn, convoked the
freemen resident on their estates.
The Wittenagemot also imposed taxes; at that period, however,
there were hardly any public taxes; the first was levied in
consequence of the Danish invasion, and the law which imposed it
expressly states that it received the consent of all the members
present in the Wittenagemot.
{50}
The county-courts, as we have seen, provided for the maintenance
of the public roads, bridges, and forts. We learn from the
deliberations of the Anglo-Saxon national assembly, that such
matters fell under its cognizance also.
As the right of coining money did not belong exclusively to the
king, but was also possessed by the church and by many powerful
subjects, the Wittenagemot had the oversight of this matter, and
prevented the debasement of the coinage.
We also find it ratifying or annulling those acts of
county-courts which had reference not to private matters, but to
affairs of general importance.
The principle of the responsibility of the agents of power was
not more clearly and firmly established in the Anglo-Saxon
monarchy than the other great principles of free government; but
it was, nevertheless, confusedly practised. A vague feeling of
justice pervaded these national assemblies; they repressed great
abuses, but frequently punished injustice by injustice.
Oversight Of The Royal Domain.
The Wittenagemot in England possessed a power which was not
generally exercised by corresponding assemblies on the Continent;
it had the oversight of the royal domain. Originally, the kings
lived, like other landowners, on the income derived from their
own private estates. Their property was a private domain, which
they managed as they pleased. As time rolled on, this domain
became very largely augmented by confiscations; but the kings,
compelled to defend their tottering authority from the frequent
attacks to which it was subjected, were incessantly diminishing
their estates by gifts to powerful and formidable chiefs.
Frequently, also, when they were strong, they resumed the gifts
which necessity had extorted from them. The little reliance to be
placed upon these purely royal donations, unless they were
ratified by the consent of the national assembly; and the
knowledge that, if the king were permitted these forced
dilapidations of his own domains, the Wittenagemot would one day
be obliged to repair them, and compensate the monarch for the
loss of his private estates,--were the reasons which led to the
interference of the national assembly in the administration of
the royal domain. In France, this domain did not fall so soon
under the influence of the national assemblies, but remained for
a much longer period the private property of the kings.
{51}
Direction Of Ecclesiastical Affairs.
One of the most important attributes of the Wittenagemot was the
direction of ecclesiastical affairs. The abbots and bishops,
indeed all the high clergy, were members of this assembly. In
France, although the clergy formed a part of the national
assemblies, they treated of their own affairs as a separate body,
and communicated directly with the king. In England,
ecclesiastical matters, like all other business, were discussed
in the general assembly. For instance, when missionaries from
Rome came to invite the kings of the Heptarchy to embrace the
Christian religion, the kings replied that they must ask the
consent of the Wittenagemot. In Sweden, the king, who had already
become a convert himself, proposed to the assembled Diet to adopt
Christianity. The Diet sanctioned the new religion, but retained
the old creed, and this simultaneous practice of the two
religions lasted for a considerable time. The Wittenagemot had
not always to discuss such important matters as the conversion of
the nation; it appointed bishops, and ordained or sanctioned the
foundation of abbeys and monasteries.
The last business of the Anglo-Saxon national assembly was to
receive complaints and petitions in denunciation of abuses. It
thus became sometimes a judicial court, adjudicating on the
appeals of large landowners; but it seldom appears in this
character: it was especially a political assembly, whilst, on the
Continent, the national assembly frequently acted as a judicial
tribunal.
I have now pointed out the various functions of the Wittenagemot,
and you have been able, from the acts of that assembly, to form a
tolerably accurate idea of it. As regards its convocation,
originally its meetings were frequent, but in order not to
fatigue its members too much, it became necessary to reduce the
meetings to two, held in spring and autumn, as on the Continent.
The right of convoking the Wittenagemot became, ere long, one of
the prerogatives of the crown. This abandonment of so important a
privilege is very characteristic of an age in which political
prudence is unknown, and distrust is manifested only at rare
intervals, and then by revolt. It seemed natural that the king,
the direct centre of all the interests and necessities of the
nation, should convoke the assembly for exigencies with which he
was better acquainted than any other person; at his death, the
large landowners assembled spontaneously, to deliberate on a
change of dynasty or the arrangement of the succession.
{52}
The inviolability of the members of the Wittenagemot was
recognized from the day on which they set out to attend the
assembly, till the day on which they returned home again,
provided they were not notorious brigands.
Character Of The Wittenagemot.
Summing up what I have said, the general assembly of the
Anglo-Saxons, as of most of the German nations, was, in Germany,
composed of every freeman; after the conquest, it consisted only
of the landowners; and, towards the end of the monarchy, it was
attended by none but the most wealthy proprietors. Each man came
in his own right, and on his own behalf; according to a charter
of King Athelstane, he might send a proxy in his place. This
irrefragable mark of individual right still exists in England. In
the House of Peers, every peer may vote by proxy and in his own
name. It is from the Wittenagemot, in this last phase of its
existence, and from the rights of suzerainty which Norman
feudalism conferred on the king over the great barons, who held
their titles directly from him, that the English House of Peers,
as it now exists, derives its origin. In the Wittenagemot of the
last age of the Anglo-Saxon monarchy, we can discern neither of
the two elements which composed the House of Commons at a later
period. The towns had hardly any existence, and could not,
therefore, send deputies: the counties had never sent any. The
Wittenagemot was only an assembly of the powerful men of the
state, who came on their own account, and in their own personal
right. Most other persons neglected rights which were too
difficult for them to exercise, and the real impotence of which
they felt; by neglecting to exercise them, they eventually lost
them; and when the exigencies of liberty occurred to agitate a
more advanced and less contented state of society, a new labour
was necessary to restore to the citizens, rights which they had
allowed to perish, through the want of necessity and capacity.
{53}
The Kingly Office.
The second of the central institutions of the Anglo-Saxons, was
the kingly office. An important fact has distinguished the
formation of all states of Germanic origin, and this is, the
speedy establishment of hereditary monarchy,--which was the
dominant character of this institution at this period, whatever
mixture of election may be discerned therein. The causes of this
are simple. In warlike tribes, there is, in war at least, a
single chieftain; the man of greatest valour and largest
experience, says to his comrades, "Come with me--I will lead you
where you may obtain rich booty;" his proposition is accepted,
and by common consent he becomes the leader of the expedition.
Thus, at the origin of society, power is not conferred; he who is
able to do so, assumes it by the consent of the others. There is
no election properly so called, but only a recognition of
authority. The leader who has conducted one or more fortunate
expeditions, obtains great importance by success; his influence
increases with time, and he hands down to his family the
influence and power which he has acquired. This family, thus
invested with an actual superiority, gains a natural habit of
command, which the others soon grow accustomed to acknowledge.
Among the Germans, moreover, the idea of religious filiation
contributed powerfully to the establishment of hereditary
monarchy. It was almost a national duty to choose kings from the
divine race; and all the royal families were descendants of Odin.
Thus hereditary monarchy prevailed among these peoples; but
choice among the members of the royal family long existed. It was
indispensably necessary that the king should be a capable man, in
a state of society in which men were as yet ignorant of the
artificial means which supply the deficiencies of royal
incapacity. Thus Alfred himself did not simply found his right to
the throne on a will of his father, and an agreement with his
brother; but he based it especially upon the consent of all the
large proprietors of the kingdom of Wessex. Force sometimes gave
severe checks to hereditary right; but the usurpation of the
throne was always associated with the idea of the violation of a
right, and the usurpers invariably strove to atone for this
violation, by marriage with one of the legitimate race.
{54}
Duties Of The Kings.
The kings, under the Anglo-Saxon monarchy, were at first called
_Heretogs_, leaders of armies; but it is a mistake to
explain and limit their prerogatives by the name which they bore.
The power of arms was then so great, and all other powers seemed
so inferior and subject to it, that they all fell under the
generic term which contained within itself nearly every idea of
force and empire. The most different powers were embraced under
this single denomination, and we must not suppose that the kings
limited their functions to those which it seems to indicate; the
Anglo-Saxon kings were not merely military leaders; they managed
all the internal administration of the realm, in concert with the
Wittenagemot. Their attributes were not more determinate than
those of that assembly. With it, they directed all the affairs of
the nation; and their surveillance, being perpetual, was more
close and active. They were addressed as the highest authority,
and also as possessing the most information on public affairs.
Thus the right of presiding over the general assemblies and
proposing the subjects for deliberation, belonged exclusively to
them.
The royal authority, however, not being sustained by a strong and
regular organization, decreased in power in proportion as the
great proprietors increased in influence and became firmly
established in their domains. Towards the end of the Anglo-Saxon
monarchy, the large landowners, sole masters on their own
estates, began to do everything by themselves. They coined money,
administered justice, and levied soldiers. And we must not
imagine that this assumption of sovereign rights by local
chieftains was regarded, by the people, as an act of iniquity and
violence: it was a necessity of the social condition of the
country. Royalty was no more capable of wielding all the central
power, than the nation was of maintaining and exercising all its
liberties.
{55}
Lecture VI.
The true principle of representative government.
Error of classifying governments according to their external
forms.
Montesquieu's error with respect to the origin of the
representative system.
Necessary correlation and simultaneous formation of
society and government.
Rousseau's mistaken hypothesis of the social contract.
The nature of rightful sovereignty.
Confused and contradictory ideas entertained on this subject.
Societies, as individuals, possess the right of being placed
under laws of justice and reason.
Governments ought to be continually reminded of their
obligation to inquire into and conform to these laws.
Classification of governments on this principle.
Principle Of Representative Government.
I propose to examine the political institutions of modern Europe
in their early infancy, and to seek what they have in common with
the representative system of government. My object will be to
learn whether this form of government had then attained to any
degree of development, or even existed only in germ; at what
times, and in what places it first appeared, where and under what
circumstances it prospered or failed. I have just examined the
primitive institutions of the Anglo-Saxons. Before leaving our
consideration of England, it might be well for me to compare
these institutions with the essential type of representative
government, in order to see how they agree and in what they
differ. But this type is not yet in our possession. In order to
find it I shall revert to the essential principle of
representative government, to the original ideas out of which it
springs; and I shall compare this idea with the fundamental idea
that underlies Anglo-Saxon institutions.
{56}
Error Of Montesquieu.
The human mind is naturally led to judge of the nature of things,
and to classify them according to their exterior forms;
accordingly, governments have almost invariably been arranged
according to distinctions which do not at all belong to their
inherent character. Wherever none of those positive institutions
have been immediately recognized which, according to our present
notions, represent and guarantee political liberty, it has been
thought that no liberty could exist, and that power must be
absolute. But in human affairs, various elements are mingled:
nothing exists in a simple and pure state. As some traces of
absolute power are to be found at the basis of free governments,
so also some liberty has existed under governments to all
appearance founded on absolutism. No form of society is
completely devoid of reason and justice,--for were all reason and
justice to be withdrawn, society would perish. We may sometimes
see governments of apparently the most opposite character produce
the same effects. During the seventeenth and eighteenth
centuries, representative government raised England to the
highest elevation of moral and material prosperity; and France,
during that same period, increased in splendour, wealth, and
enlightenment, under an absolute monarchy. I do not intend by
this to insinuate the impression that forms of government are
unimportant, and that all produce results of equal quality and
value; I merely wish to hint that we should not appreciate them
by only a few of their results, or by their exterior indications.
In order fully to appreciate a government, we must penetrate into
its essential and constituent principles. We shall then perceive
that many governments which differ considerably in their forms,
are referable to the same principles; and that others which
appear to resemble one another in their forms, are in fundamental
respects different. Wherever elections and assemblies have
presented themselves to view, it has been thought that the
elements of a representative system were to be found.
Montesquieu, looking at representative government in England,
endeavoured to trace it back to the old Germanic institutions.
"This noble system," he says, "originated in the woods."
Appearances deceived Montesquieu; he merely took into
consideration the exterior characteristics of representative
government, not its true principles and its true tendencies. That
is a superficial and false method which classifies governments
according to their exterior characteristics; making monarchy,
government by one individual; aristocracy, government by several;
democracy, government by the people, the sovereignty of all. This
classification, which is based only upon one particular fact, and
upon a certain material shape which power assumes, does not go to
the heart of those questions, or rather of that question, by the
solution of which the nature and tendency of governments is
determined.
{57}
Society And Government.
This question is, "What is the source of the sovereign power, and
what is its limit? Whence does it come, and where does it stop?"
In the answer to this question is involved the real principle of
government; for it is this principle whose influence, direct or
indirect, latent or obvious, gives to societies their tendency
and their fate.
Where are we to look for this principle? Is it a mere
conventional arrangement by man? Is its existence anterior to
that of society?
The two facts--society and government--mutually imply one
another; society without government is no more possible than
government without society. The very idea of society necessarily
implies that of rule, of universal law, that is to say, of
government.
What then is the first social law? I hasten to pronounce it: it
is justice, reason, a rule of which every man has the germ within
his own breast. If man only yields to a superior force, he does
not truly submit to the law; there is no society and no
government. If in his dealings with his fellows, man obeys not
only force, but also a law, then society and government exist. In
the abnegation of force, and obedience to law, consists the
fundamental principle of society and government. In the absence
of these two conditions, neither society nor government can be
properly said to exist.
This necessary coexistence of society and government shows the
absurdity of the hypothesis of the social contract. Rousseau
presents us with the picture of men already united together into
a society, but without rule, and exerting themselves to create
one; as if society did not itself presuppose the existence of a
rule to which it was indebted for its existence. If there is no
rule, there is no society; there are only individuals united and
kept together by force. This hypothesis then, of a primitive
contract, as the only legitimate source of social law, rests upon
an assumption that is necessarily false and impossible.
{58}
Principle Of Government.
The opposite hypothesis, which places the origin of society in
the family and in the right of the father over his children, is
less objectionable, but it is incomplete. There is, certainly, a
form of society among parents and their rising offspring; but it
is a society in some sort unilateral, and of which one of the
parties has not any true consciousness. Society, whether in the
family or out of the family, is only complete when all its
members, those who command as well as those who obey, recognize,
more or less vaguely, a certain superior rule, which is neither
the arbitrary caprice of will, nor the effect of force alone. The
idea of society, therefore, implies necessarily another idea,
that of government; and the idea of government contains in it two
others, the idea of a collection of individuals, and that of a
rule which is applicable to them,--a rule which constitutes the
right of the government itself; a rule which the individuals who
submit to it have not themselves created, and to which they are
morally bound to submit. No government ever totally disregarded
this supreme rule, none ever proclaimed force or caprice as the
only law of society. In seeking the principle of government, we
have found the principle of social right to be the primary source
of all legitimate sovereignty. In this law of laws, in this rule
of all government, resides the principle of government.
Two important questions now present themselves. How is the law
formed, and how is it applied? In this lies the distinctive
character of the various forms of government; in this they
differ.
Right of Sovereignty.
Even until modern times, the belief has prevailed that the
primitive and absolute right of law-making, that is, the right of
sovereignty, resides in some portion of society, whether this
right be vested in a single man, in several, or in all; an
opinion which has been constantly contradicted by facts, and
which cannot bear the test of reason. The right of determining
and enforcing a rule, is the right to absolute power; that force
which possesses this right inherently, possesses absolute power,
that is to say, the right of tyranny. Take the three great forms
of government, monarchy, aristocracy, and democracy, and see if a
case can be found in which the right of sovereignty was held by
one, by several or by all, in which tyranny did not necessarily
arise. Facts have been logically correct,--they have inferred
from the principle its necessary consequence.
{59}
Such, however, is the force of truth, that this error could not
reign alone and absolutely. At the very time when men appeared to
believe, and did theoretically believe, that the primitive and
absolute power of giving law belonged to some one, whether
monarch, senate, or people, at the same time they struggled
against that principle. At all times men have endeavoured to
limit the power which they regarded as perfectly legitimate.
Never has a force, although invested with the right of
sovereignty, been allowed to develop that right to its full
extent. The janissaries in Turkey sometimes served, sometimes
abrogated, the absolute power of the Sultan. In democracies,
where the right of sovereignty is vested in popular assemblies,
efforts have been continually made to oppose conditions,
obstacles, and limits to that sovereignty. Always, in all
governments which are absolute in principle, some kind of protest
has been made against the principle. Whence comes this universal
protest? We might, looking merely at the surface of things, be
tempted to say that it is only a struggle of powers. This has
existed without doubt, but another and a grander element has
existed along with it; there is an instinctive sense of justice
and reason dwelling in every human spirit. Tyranny has been
opposed, whether it were the tyranny of individuals or of
multitudes, not only by a consciousness of power, but by a
sentiment of right. It is this consciousness of justice and
right, that is to say, of a rule independent of human will,--a
consciousness often obscure but always powerful,--which, sooner
or later, rouses and assists men to resist all tyranny, whatever
may be its name and form. The voice of humanity, then, has
proclaimed that the right of sovereignty vested in men, whether
in one, in many, or in all, is an iniquitous lie.
If, then, the right of sovereignty cannot be vested in any one
man, or collection of men, where does it reside, and what is the
principle on which it rests?
True Law Of Society.
In his interior life,--in his dealings with himself, if I may be
allowed the expression, as well as in his exterior life, and in
his dealings with his fellows,--the man who feels himself free
and capable of action, has ever a glimpse of a natural law by
which his action is regulated. He recognises a something which is
not his own will, and which must regulate his will. He feels
himself bound by reason or morality to do certain things; he
sees, or he feels that there are certain things which he ought or
ought not to do.
{60}
This something is the law which is superior to man, and made for
him--the divine law. The true law of man is not the work of man;
he receives, but does not create it; even when he submits to it,
it is not his own,--it is beyond and above him.
Man does not always submit; in the exercise of his free will and
imperfect nature, he does not invariably obey this law. He is
influenced by other principles of action than this, and although
he perceives that the motives which impel him are vicious,
nevertheless he often yields to them. But whether he obey or not,
the supreme law for man is always existent--in his wildest dreams
he recognises it, as placed above him.
We see, then, the individual always in presence of a law,--one
which he did not create, but which asserts its claim over him,
and never abandons him. If he enters into society with his
fellows, or finds himself thus associated, what other rule than
this will he possess? Should human society involve an abdication
of human nature? No; man in society must and does remain
essentially the same as in his individual capacity; and as
society is nothing but a collection of individuals, the supreme
law of society must be the same as that which exercises a
rightful control over individuals themselves.
Here, then, have we discovered the true law of society,--the law
of government;--it is the same law as that which binds
individuals. And as, for an individual, the true law is often
obscure, and as the individual, even when he knows it thoroughly,
does not always follow it implicitly; in the same manner with
regard to government, whatever it may be, its true law,--which
must ever reach it through the medium of the human mind, which is
ever biassed by passion and limited by frailty,--is neither at
all times apprehended nor always obeyed. It is then impossible to
attribute to one man or to several the possession of an inherent
right to sovereignty, since this would be to suppose that their
ideas and inclinations were in all cases correspondent to the
dictates of justice and of reason,--a supposition which the
radical imperfection of our nature will not allow us for a moment
to admit.
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Classification Of Governments.
It is, however, owing to the same imperfection that men have
accepted, or rather created for themselves, idols and tyrants. A
law ready made for them has appeared more convenient than that
laborious and unremitting search after reason and justice which
they felt themselves obliged to undertake by the imperious voice
of that conscience which they could not entirely silence.
Nevertheless, men have never been able entirely to deceive their
conscience, or to stifle its utterances. Conscience defeats all
the arrangements of human ignorance or indifference, and forces
men to fight for themselves despite their own unwillingness.
Never, in fact, have men fully accepted the sovereignty, the
right of which they have admitted; and the impossibility of their
thus consenting to it, plainly indicates the superhuman principle
which sovereignty involves. In this principle we must seek for
the true distinction between governments.
The classification which I am about to present is not, then, one
that is merely arbitrary and factitious; it does not concern the
exterior forms, but the essential nature of governments. I
distinguish two kinds. First, there are those which attribute
sovereignty as a right belonging exclusively to individuals,
whether one, many, or all those composing a society; and these
are, in principle, the founders of despotism, although facts
always protest more or less strongly against the principle; and
absolute obedience on the one hand, and absolute power on the
other, never exist in full vigour. The second class of
governments is founded on the truth that sovereignty belongs as a
right to no individual whatever, since the perfect and continued
apprehension, the fixed and inviolable application of justice and
of reason, do not belong to our imperfect nature.
Representative government rests upon this truth. I do not say
that it has been founded upon the full reflective acknowledgment
of the principle in the form in which I have stated it.
Governments do not, any more than great poems, form themselves on
an _à priori_ model, and in accordance with defined
precepts. What I affirm is, that representative government does
not attribute sovereignty as inherently residing in any
person,--that all its powers are directed to the discovery and
faithful fulfilment of that rule which ought ever to govern their
action, and that the right of sovereignty is only recognised on
the condition that it should be continually justified.
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Aim Of Representative Government.
Pascal has said, "Plurality which does not reduce itself to
unity, is confusion. Unity which is not the result of plurality,
is tyranny." This is the happiest expression and the most exact
definition of representative government. The plurality is
society; the unity is truth, is the united force of the laws of
justice and reason, which ought to govern society. If society
remains in the condition of plurality, if isolated wills do not
combine under the guidance of common rules, if they do not all
equally recognise justice and reason, if they do not reduce
themselves to unity, there is no society, there is only
confusion. And the unity which does not arise from plurality,
which has been violently imposed upon it by one or many, whatever
may be their number, in virtue of a prerogative which they
appropriate as their exclusive possession, is a false and
arbitrary unity; it is tyranny. The aim of representative
government is to oppose a barrier at once to tyranny and to
confusion, and to bring plurality to unity by presenting itself
for its recognition and acceptance.
Let us now see, in the central fact of this method of government,
by what means it arrives at its end, and under what forms its
principle is developed.
Representative government, wherever it has existed or does exist,
is composed of different elements of power, equal among
themselves, although one of them, the monarchical or the
democratic, ordinarily retains certain peculiar rights. The
number and form of these powers are not necessarily determinate
or equal; in France, at the present time, there are three, the
royal power, the House of Peers, and the Chamber of Deputies.
These three powers emanate from different sources, and result
from different social necessities. Neither of them, isolated from
the rest, possesses a right of sovereignty: it is required of
them that they seek the legitimate rule in common, and they are
supposed to possess it only when they have found it in a united
deliberation, before or after action. Society owes submission to
this rule, thus discovered; but as these powers are not all fixed
and immutable, so the sovereignty of right does not reside
constantly among them. The elective principle, which is by its
very nature changeful, can alter its idea and purpose, and
exercise upon the other powers an influence that is periodically
variable.
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If the different powers do not agree, they reduce themselves
immediately to inaction. The sovereignty which exists in its own
right then seems to hesitate to show itself, and government
remains in suspense. In order to extricate it from this state,
the right has been reserved to royalty of creating peers, and of
dissolving the Chamber of Deputies. The powers then proceed
afresh to seek for the true law, a work in which they ought not
to rest until they have found it. Thus, no power is judged to
possess fully the legitimate rule, which is rightfully the
principle of sovereignty. The electors themselves are not its
absolute interpreters, any more than are the peers, the deputies,
or the king. The electors do not say at the outset to their
deputies, "Such is our will: let that be the law." They enjoin
upon them nothing precise; they simply confer upon them the
mission of examining and deciding according to their reason. They
must necessarily trust in the enlightenment of those whom they
elect; election is a trial imposed on those who aspire to
political power, and a sovereign but limited right exercised by
those who confer political power upon such of the claimants as
they may select.
Political Rights Of The Nation.
From the political powers thus attributed to certain classes, let
us now pass to the political rights which are vaguely distributed
in the nation. These rights are among the essential conditions of
representative government. The publicity of the debates in the
deliberative assemblies imposes upon these powers the necessity
of commending themselves to that sense of reason and justice
which belongs to all, in order that every citizen may be
convinced that their inquiries have been made with fidelity and
intelligence, and that, knowing wherein they are deficient, he
may himself have the opportunity, if he has the capacity, to
indicate the remedy. Liberty opens up a career for this inquiry.
In this way, every citizen may aid in the discovery of the true
law. Thus does a representative government impel the whole body
of society,--those who exercise power, and those who possess
rights,--to enter upon a common search after reason and justice;
it invites the multitude to reduce itself to unity, and it brings
forth unity from the midst of plurality. The public
powers,--royalty, the deliberative houses, the electors,--are
bound and incessantly made to return to this work, by the
essential nature of their relations, and by the laws of their
action.
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Effects Of Publicity.
Private citizens even can co-operate, by virtue of the publicity
of the debates, and the liberty of the press. I might pursue this
idea, and show that all the institutions which are regarded as
inherent in representative government, even those which have not
been regarded as assisting in the search for those general rules
which ought to preside in the conduct of government, are derived
from the same principle, and tend to the same result. The
publicity of judicial proceedings, and those who compose the
jury, for example, supply a guarantee for the legitimate
application of the law to particular cases. But our present
concern is especially to determine the principle of those
essential combinations by which a representative government is
constituted; they all proceed evidently from this fact, that no
individual is fully acquainted with and invariably consents to
that reason, truth and justice, which can alone confer the right
of sovereignty, and which ought to be the rule of sovereignty as
actually exercised. They compel all powers to seek for this rule,
and give to all citizens the right of assisting in this research,
by taking cognizance of the mode in which the powers proceed to
it, and in declaring themselves what they conceive to be the
dictates of justice and of truth. In other words, to sum up what
I have said, representative government rests in reality upon the
following series of ideas. All power which exists as a fact,
must, in order to become a right, act according to reason,
justice, and truth, the sole sources of right. No man, and no
body of men, can know and perform fully all that is required by
reason, justice, and truth; but they have the faculty to discover
it, and can be brought more and more to conform to it in their
conduct. All the combinations of the political machine then ought
to tend, on the one hand, to extract whatever of reason, justice,
or truth, exists in society, in order to apply it to the
practical requirements of government; and, on the other hand, to
promote the progress of society in reason, justice, and truth,
and constantly to embody this progress of society in the actual
structure of the government.
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Lecture VII.
Comparison of the principles of different governments with the
true principle of representative government.
Aristocratic governments.
Origin and history of the word _aristocracy_.
Principle of this form of government; its consequences.
How the principle of representative government enters into
aristocratic governments.
Democratic governments.
Origin and consequences of the principle of the sovereignty of
the people.
This principle not identical with that of representative
government.
In what sense representative government is the government
of the majority.
Changes In Language And Society.
I have, in my previous lecture, shown the error of those
superficial classifications which only distinguish governments
according to their exterior characteristics; I have recognised
and separated with precision between the two opposite principles,
which are, both of them, the basis of all government; I have
identified representative government with one of these
principles; I have proved that it could not be deduced from the
other; I wish now to compare the principle of representative
government with the contrary principle, and to show the opposite
condition of governments which refer to it as their
starting-point. I will begin by an examination of that form of
government which is usually termed _aristocratic_.
Aristocratic Government.
There is a close connexion between the progressive changes that
may be observed in language and those that belong to society. The
word _aristocracy_ originally signified the empire of the
strong; [Greek text], were, at first, terms applied to those who
were physically the most powerful; then they were used to
designate the most influential, the richest, and finally the
best, those possessing the most ability or virtue. This is the
history of the successive acceptations of the word in the
language from which it is borrowed; the same terms which were
first applied to force, the superiority of force, came at length
to designate moral and intellectual superiority--virtue.
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Nothing can better characterise than this the progress of
society, which begins with the predominance of force, and tends
to pass under the empire of moral and intellectual superiority.
The desire and tendency of society are in fact towards being
governed by the best, by those who most thoroughly know and most
heartily respond to the teachings of truth and justice; in this
sense, all good governments, and pre-eminently the representative
form of government, have for their object to draw forth from the
bosom of society that veritable and legitimate aristocracy, by
which it has a right to be governed, and which has a right to
govern it.
But such has not been the historical signification of the word
_aristocracy_. If we take the word according as facts have
interpreted it, we shall find its meaning to be a government in
which the sovereign power is placed at the disposal of a
particular class of citizens, who are hereditarily invested with
it, their only qualification being a certain descent, in a manner
more or less exclusive, and sometimes almost completely
exclusive.
I do not inquire whence this system of government has derived its
origin; how, in the infancy of society, it has sprung almost
invariably from the moral superiority of its first founders; how
force, which was originally due to moral superiority, was
afterwards perpetuated by itself, and became a usurper; these
questions, which possess the highest interest, would carry me
away from my main point. I am seeking for the fundamental
principle of aristocratic government, and I believe it can be
summed up in the following terms; the right of sovereignty,
attributed in a manner if not entirely exclusive, yet especially
and chiefly to a certain class of citizens, whose only claim is
that of descent in a certain line.
This principle is no other than that of the sovereignty of the
people confined to a small number of individuals,--to a minority.
In both cases, the right to sovereignty is derived, not from any
presumed capacity to fulfil certain conditions, nor from
intellectual and moral superiority proved in any particular
manner, but from the solitary fact of birth, without any
condition. In the aristocratic system, an individual is born to a
position of sovereignty merely because he has been born into a
privileged class; according to the democratic system, an
individual is born to a position of sovereignty by the
circumstance that he is born into humanity. The participation in
sovereignty is in each case the result of a purely material fact,
independent of the worth of him who possesses it, and of the
judgment of those over whom it is to be exercised.
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It follows evidently from this, that aristocratic governments are
to be classed among those which rest on the idea that the right
of sovereignty exists, full and entire, somewhere on the
earth;--an idea directly contrary, as we have seen, to the
principle of representative government.
Its Consequences.
If we look at the consequences of this idea,--such consequences
as have actually manifested themselves in the history of
governments of this kind,--we shall see that they are not less
contrary to the consequences, historical as well as natural, of a
representative government.
In order to maintain the right of sovereignty in the class to
which it is exclusively attributed, it must necessarily establish
a great inequality in fact, as well as in opinion, between this
class and the rest of the citizens. Hence arise all those
institutions and laws which characterise aristocratic
governments, and which have for their object to concentrate, into
the hands of the sole possessors of the sovereignty, all wealth
and enlightenment, and all the various instruments of power. It
is necessary that the sovereign class should not descend, and
that others should not be elevated; otherwise actual power
ceasing to approximate to rightful power, the legitimacy of the
latter would soon be questioned, and, after a short time, its
continuance endangered.
In the system of those governments which attribute to no
individual upon earth a right of sovereignty, and which impose on
the existing government the necessity of seeking continually for
truth, reason, and justice, as the rule and source of rightful
power, all classes of society are perpetually invited and urged
to elevate and perfect themselves. Legitimate forms of supremacy
are produced, and assume their position; illegitimate forms are
unmasked and deposed. Factitious and violent inequalities are
resisted and exhibited in their true colours; social forces are,
so to speak, brought into competition, and the forces which
struggle to possess them are moral.
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A second consequence of the principle of aristocratic governments
is their avoidance of publicity. When each one of those who
participate in the rightful sovereignty possesses it by the mere
accident of birth, and exercises it on his own individual
responsibility, he need not recognise any one as claiming a right
to call him to account. No one has any right to inquire into the
use which he makes of his power, for he acts in virtue of a right
which no one can contest, because no one can deprive him of it.
It is a right which needs not to justify itself, since it is
connected with a fact that is palpable and permanent.
In the other system, on the contrary, publicity follows
necessarily from the principle of government; for since the right
to power is derived from superiority in the knowledge and
practice of reason, truth, and justice, which no one is supposed
to possess fully and at all times, it is imperative that this
right should justify itself both before it is assumed and all the
time that it is exercised.
_Conflict Of Good And Evil._
It would be easy thus, proceeding continually within view of real
facts, to compare the different consequences of the principle of
purely aristocratic governments and those resulting from the
principle of representative government, and to show that they are
always opposed to one another. We should thereby demonstrate most
completely the opposition of the principles themselves, and bring
their true nature into clearer light; but I have already said
enough on this point. And if any one asserts that I have too
rigorously insisted upon inferences to be drawn from the
principle of aristocratic governments, that the consequences
which I have depicted do never fulfil themselves in so complete a
manner, that, for example, the qualification of birth has never
held exclusive possession of a right to sovereignty, that never
has publicity been entirely quenched,--I freely concede all this.
At no time, in no place, has evil been allowed to gain exclusive
possession of society and government; struggle between principles
of good and evil is the permanent condition of the world. False
ideas may achieve a more or less extended, a more or less durable
success,--they can never extirpate their godlike assailants.
Truth is patient,--it does not easily surrender its hold on
society,--it never abandons its purpose,--it even exercises some
sway over that region where error reigns most despotically.
Providence never permits bad governments to become so bad as is
logically demanded by the principle upon which they rest.
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So we have seen institutions of justice and liberty existing and
even gaining a powerful existence, in the midst of societies
ruled by the principle of hereditary right; these institutions
have battled against the principle, and have modified it. When
the worse principle has prevailed, then have society and
government fallen into impotence and decay;--this is the history
of the Venetian republic. Elsewhere, the struggle has been
attended with happier results: the good principle has possessed
sufficient force to be able to introduce into the government
elements, which have made it vital, which have protected society
against the effects of the evil principle, which have even in
some sort saved the evil itself, rendering it tolerable by the
good with which it is associated. This is the history of England,
that striking example of the mixture and struggle of good and
evil principles. But their mixture, however intimate it may be,
does not prove that they are confounded in their interior
character. Good never springs from evil; and representative
government has not sprung in England, any more than elsewhere,
from the exclusive principle of aristocratic governments; it has
sprung from an entirely different principle; and so far from the
distinction which I established at the commencement being
compromised by the facts to which I have alluded, it is on the
other hand triumphantly confirmed by them.
I have just proved, by a comparison between the principle of the
aristocratic and that of the democratic form of government, that
they are essentially different; I intend now to show that there
is as fundamental a difference between the principle of
representative government, and that of democratic government.
Sovereignty Of The People.
No one has ever understood the sovereignty of the people to mean,
that after having consulted all opinions and all wills, the
opinion and will of the greatest number constitutes the law, but
that the minority would be free to disobey that which had been
decided in opposition to its opinion and will. And yet this would
be the necessary consequence of the pretended right attributed to
each individual of being governed only by such laws as have
received his individual assent. The absurdity of this consequence
has not always induced its adherents to abandon the principle,
but it has always obliged them to violate it. The sovereignty of
the people is contradicted at the outset, by its being resolved
into the empire of the majority over the minority.
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It is almost ridiculous to say that the minority may retire from
the majority; this would be to keep society continually on the
brink of dissolution. On every question the majority and the
minority would disagree, and if all the successive minorities
should retire, society would very soon exist no longer. The
sovereignty of the people then must necessarily be reduced to the
sovereignty of the majority only. When thus reduced, what does it
amount to?
Principle Of Democracy.
Its principle is, that the majority possesses right by the mere
circumstance of its being the majority. But two very different
ideas are included in the one expression--the majority; the idea
of an opinion which is accredited, and that of a force which is
preponderant. So far as force is concerned, the majority
possesses no right different from that possessed by force itself,
which cannot be, upon this ground alone, the legitimate
sovereignty. As to the expression of opinion, is the majority
infallible?--does it always apprehend and respect the claims of
reason and justice, which alone constitute true law, and confer
legitimate sovereignty? Experience testifies to the contrary. The
majority, by mere fact of its being a majority, that is to say,
by the mere force of numbers, does not then possess legitimate
sovereignty, either by virtue of power, which never does confer
it, nor by virtue of infallibility, which it does not possess.
The principle of the sovereignty of the people starts from the
supposition that each man possesses as his birthright, not merely
an equal right of being governed, but an equal right of governing
others. Like aristocratic governments, it connects the right to
govern, not with capacity, but with birth. Aristocratic
government is the sovereignty of the people in the minority; the
sovereignty of the people is aristocratic despotism and privilege
in the hands of the majority. In both cases, the principle is the
same;--a principle contrary, in the first place, to the fact of
the inequality established by nature, between the powers and
capacities of different individuals; secondly, to the fact of the
inequality in capacity, occasioned by difference of position, a
difference which exists everywhere, and which has its source in
the natural inequality of men; thirdly, to the experience of the
world, which has always seen the timid following the brave, the
incompetent obeying the competent,--in one word, those who are
naturally inferior recognising and submitting themselves to their
natural superiors.
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The principle of the sovereignty of the people, that is to say,
the equal right of all individuals to exercise sovereignty, or
merely the right of all individuals to concur in the exercise of
sovereignty, is then radically false; for, under the pretext of
maintaining legitimate equality, it violently introduces equality
where none exists, and pays no regard to legitimate inequality.
The consequences of this principle are the despotism of number,
the domination of inferiorities over superiorities, that is, a
tyranny of all others the most violent and unjust.
At the same time, it is of all others the most transient, for the
principle is impossible of application. After its force has spent
itself in excesses, number necessarily submits to capacity,--the
inferior retire to make room for the superior,--these enter
again into possession of their right, and society is
re-established.
Principle Of Representative Government.
Such cannot be the principle of representative government. No one
disputes that the true law of government is that of reason,
truth, and justice, which no one possesses but which certain men
are more capable than others of seeking and discovering. Faithful
to this aim, representative government rests upon the disposition
of actual power in proportion to the capacity to act according to
reason and justice, from whence power derives its right. It is
the principle which, by the admission of all, and by virtue of
its simple appeal to the common sense of the community, is
applicable to ordinary life, and to the interest of individuals
themselves. It is the principle which confers the sovereignty
over persons, families, property, only to the individual who is
presumed to be capable of using it reasonably, and which
withdraws it from him who is seen to be positively incapable.
Representative government applies to general interests, and to
the government of society, the same principle which the good
sense of the human race has led it to apply to individual
interests and to the control of each man's private life. It
distributes sovereignty according to the capacity required for
it, that is to say, it only places actual power, or any portion
of actual power, where it has discovered the presence of rightful
power, presumed to exist by certain symptoms, or tested by
certain proofs.
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It is remembered, that power though legitimate is not to be
conceded fully and completely to any one, and not only is it not
attributed to the mere fact of birth, but it cannot be allowed to
remain by itself in irresponsible isolation, which is the second
characteristic of representative government, by which, not less
than by the preceding, it is distinguished from the sovereignty
of the people.
Government Of The Majority.
It has been often said, that representative government is the
government of the majority, and there is some truth in the
assertion; but it must not be thought that this government of the
majority is the same as that involved in the sovereignty of the
people. The principle of the sovereignty of the people applies to
all individuals, merely because they exist, without demanding of
them anything more. Thus, it takes the majority of these
individuals, and says,--Here is reason, here is law.
Representative government proceeds in another way: it considers
what is the kind of action to which individuals are called; it
examines into the amount of capacity requisite for this action;
it then summons those individuals who are supposed to possess
this capacity, all such, and such only. Then it seeks for a
majority among those who are capable.
It is in this way, in fact, that men have everywhere proceeded,
even when they have been supposed to act according to the idea of
the sovereignty of the people. Never have they been entirely
faithful to it; they have always demanded for political actions
certain conditions, that is to say, indications of a certain
capacity. They have been mistaken, more or less, and have
excluded the capable, or invited the inefficient, and the error
is a serious one. But they have followed the principle which
measures right by capacity, even when they have professed the
principle that right is derived from the simple fact of
possessing a human nature. Representative government, then, is
not purely and simply the government of the numerical majority,
it is government by the majority of those who are qualified to
govern; sometimes assuming the existence of the qualification
beforehand, sometimes requiring that it should be proved and
exemplified.
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Representation And Democracy.
The peerage, the right to elect and to be elected, the royal
power itself, are attached to a capacity presumed to exist, not
only after certain conditions have been complied with, but by
reason of the position occupied by those men in whom the capacity
is presumed, in their relations to other powers, and in the
limits of the functions assigned to them. No one is recognised as
possessing an inherent right to an office or a function. Nor is
this all; representative government does not content itself with
demanding capacity before it confers power; as soon as the
capacity is presumed or proved, it is placed in a position where
it is open to a kind of legal suspicion, and where it must
necessarily continue to legitimatize itself, in order to retain
its power. According to the principle of the sovereignty of the
people, absolute right resides with the majority; true
sovereignty exists wherever this force is manifested; from this
follows necessarily the oppression of the minority, and such has,
in fact, generally been the result. The representative form of
government, never forgetting that reason and justice, and
consequently a right to sovereignty, do not reside fully and
constantly in any part of the earth, presumes that they are to be
found in the majority, but does not attribute them to it as their
certain and abiding qualities. At the very moment when it
presumes that the majority is right, it does not forget that it
may be wrong, and its concern is to give full opportunity to the
minority of proving that it is in fact right, and of becoming in
its turn the majority. Electoral precautions, the debates in the
deliberative assemblies, the publication of these debates, the
liberty of the press, the responsibility of ministers, all these
arrangements have for their object to insure that a majority
shall be declared only after it has well authenticated itself, to
compel it ever to legitimatize itself, in order to its own
preservation, and to place the minority in such a position as
that it may contest the power and right of the majority.
Thus, the considerations we have suggested show that a
representative form of government regards the individuals whom it
brings into activity, and the majority which it seeks, from quite
another point of view than that involved in the sovereignty of
the people. The latter admits that the right of sovereignty
resides somewhere upon the earth; the former denies it:--this
finds the right in question in a purely numerical majority; that
seeks it in the majority of those qualified to pronounce on the
subject:--the one attributes it fully and entirely to number; the
other is satisfied with the presumption that it is there, admits
at the same time that it may possibly not be there, and invites
the minority to substantiate its claims, securing, meanwhile,
every facility for its so doing.
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The sovereignty of the people sees legitimate power in the
multitude; representative government sees it only in unity, that
is to say, in the reason to which the multitude ought to reduce
itself. The sovereignty of the people makes power to come from
below; representative government recognises the fact that all
power comes from above, and at the same time obliges all who
assume to be invested with it to substantiate the legitimacy of
their pretensions before men who are capable of appreciating
them. The one tends to lower those who are superior, the other to
elevate those who are inferior, by bringing them into
communication with those who are naturally above them. The
sovereignty of the people is full at once of pride and of envy;
representative government renders homage to the dignity of our
nature, without ignoring its frailty, and recognises its frailty
without outrage to its dignity. The principle of the sovereignty
of the people is contrary to all the facts which reveal
themselves in the actual origin of power, and in the progress of
societies; representative government does not blink any one of
these facts. Lastly, the sovereignty of the people is no sooner
proclaimed, than it is compelled to abdicate its power, and to
confess the impracticability of its aims; representative
government moves naturally and steadily onward, and develops
itself by its very existence.
Principles Of Government.
So far, then, from deriving its existence from the principle of
the sovereignty of the people, representative government disowns
this principle, and rests upon an entirely different idea, and
one which is attended with entirely different consequences. It
matters little that this form of government has been often
claimed in the name of the sovereignty of the people, and that
its principal epochs of development have occurred at times when
that idea predominated; the reasons of this fact are easily
discovered. The sovereignty of the people is a great force which
sometimes interferes to break up an inequality which has become
excessive, or a power which has become absolute, when society can
no longer accommodate itself to them; as despotism sometimes
interferes, in the name of order, violently to restore a society
on the brink of dissolution.
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It is only a weapon of attack and destruction, never an
instrument for the foundation of liberty. It is not a principle
of government, it is a terrible but transient dictatorship,
exercised by the multitude,--a dictatorship that ceases, and that
ought to cease as soon as the multitude has accomplished its work
of destruction.
Briefly, to conclude: as the object of these lectures is to trace
the course of representative government in modern Europe wherever
it has found any footing, I have looked for the primal type of
this government in order to compare it with the government of the
Anglo-Saxon monarchy, which we have already examined, and with
the other primitive governments which we shall meet with in
Europe. In order to distinguish precisely the character of a
representative government, I have been obliged to go back to the
source of all government. I think I have shown that we must
classify all governments according to two different principles.
The one class, allied to justice and reason, recognises these
alone as their guides; and as it is not in the power of human
feebleness, in this world, to follow infallibly these sacred
leaders, these governments do not concede to any one the
possession of an absolute right to sovereignty, and they call
upon the entire body of society to aid in the discovery of the
law of justice and reason, which can alone confer it. The other
class, on the contrary, admitting a right inherent in man to make
a law for himself, thus degrade the rightful sovereignty; which,
as it belongs only to justice and reason, ought never to come
under the absolute control of man, who is ever too ready to usurp
sovereignty, in order to exercise it for the promotion of his
private interests, or for the gratification of his passions. I
have shown that a representative government alone renders homage
to true principles, and that all other governments, democratic as
well as aristocratic, ought to be arranged according to an
entirely different scheme of classification. I have now to enter
upon the examination of the exterior forms of representative
government, and to compare its principle with the historical
principle of the Anglo-Saxon monarchy, as it is exhibited before
us in its institutions.
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Lecture VIII.
The forms of a government are related to its principle, but are
swayed by circumstances, and vary according to different
degrees of civilization.
What are the forms essential to a representative government?
1st. Division of powers; why this is absolutely
essential to the principle of representative government;
2nd. Election;
3rd. Publicity.
Forms Of Government.
The forms of a government are immediately related to its
principle: the principle determines the forms, the forms reveal
the principle. It does not therefore follow that the forms
correspond exactly to the principle, nor that the principle can
only realize itself under a peculiar form. As the principle
itself is never alone nor omnipotent in its influence upon the
facts, forms are necessarily diverse and mingled. In proportion
as the action of any principle extends itself, the form which is
truly correspondent to it is developed; but, in the course of
this work, the principle embodies itself in the different forms
which correspond to the condition of those facts which, in their
aggregate, constitute society, and determine the position which
it occupies in the scale of civilization.
The same principle can then be contained, and act under different
forms. If the forms are the best that can be supplied for the
principle, considering the existing state of society, and if,
although they do not fully correspond to its nature, they insure
the constant and regular progress of its action,--there is no
blame that can be charged upon them; each epoch, each state of
society only allows of a certain development of the principle
upon which its government rests. What is the measure of
development possible to each epoch, and what is the form which
corresponds to it in the present, which will secure for the
future a more extended development, and which will bring with it
new forms? This is the whole extent of the question I mean, the
question concerning the present, the only one with which
political activity has to deal.
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Nevertheless there are certain forms of government which are the
general conditions of the presence and action of particular
principles. Wherever the principle exists, it necessarily
produces these forms; where they are wanting the principle does
not exist or will soon cease to exist; its action and progress
imperatively demand them: so far as they gain consistency at any
place, the principle which they suppose is latently present and
tends to become predominant.
Forms Of Representative Government.
What are the essential forms of the principle of representative
government? By what external indications may we recognize the
presence of this principle in a government? What conditions are
required in order that it may act and develop itself?
We may, if I mistake not, reduce to three the conditions
necessary, and the forms essential, to the representative system;
all three are perhaps not equally necessary; their simultaneous
existence is not perhaps indispensable in order to indicate the
existence and secure the development of the principle from which
they are derived. We may, however, justly consider them as
fundamental. These forms are: 1st. The division of powers; 2nd.
Election; 3rd. Publicity.
We have seen that no really existing power can be a rightful
power, except in so far as it acts according to reason and truth,
the only legitimate rule of action, the only source of right.
No existing power can fully know and constantly regard the
guidance of reason and truth according to which it is bound to
regulate its action. No actual power then is, or can be, in
itself, a power by inherent right. In other words, as no existing
power can be found that is infallible, there is none that may
retain its existence on the tenure of absolute right.
Such is, however, the condition of human things that they need,
as a last appeal, the intervention of a power which may declare
the law to be the rule of government, and which shall impose it
and cause it to be respected. In all the relations which the
social state admits and to which it gives birth, from domestic
order to political order, the presence of a power which may give
and maintain the rule of action, is a necessary condition of the
very existence of society.
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We see then the dilemma in which society is placed. No actual
power can vindicate a claim to become an absolute power; hence
the necessity, in order to meet particular emergencies, of a
power that is definite, that is to say, _actually_ absolute.
Problem Of Government.
The problem of government is--how to give society a guarantee
that the power, which is in operation absolute, to which all
social relations must necessarily be referred, shall be but the
image, the expression, the organ of that power which is
rightfully absolute and alone legitimate, and which is never to
be found localized in this world? This is also, as we have seen,
the problem which the representative system formally proposes to
itself, since all its arrangements assume the existence of this
problem and are framed with a purpose to resolve it.
To make actual power, as far as possible, identical with rightful
power, by imposing upon it the abiding necessity of seeking for
reason, truth, and justice--the sources of right; by investing it
with practical power only when it has proved, that is to say,
given a presumption of, its success in this search; and by
compelling it ever to renew and confirm this presumption under
penalty of losing power if it is unable to do so, this is the
course of the representative system,--this is the end at which it
aims and according to which it directs, in their relations and
their movement, all the resources which it brings into action.
In order to attain this end, it is indispensable that the
existing power should not be simple, that is to say, that it
should not be suffered to confine itself to one single
instrument. As no force can possess in itself fully the right to
authority, if there is one which possesses an absolute power, not
only will it abuse this power, but it will very soon claim it as
an inherent right. Alone it will become despotic, and in order to
sustain its despotism it will call itself legitimately sovereign;
and perhaps will end by believing and establishing the fiction.
Such is the corrupting effect of despotism, that it destroys
sooner or later, both in those who exercise it and in those who
submit to it, even the feeling of its illegitimacy. Whoever is
solitary in his sovereignty has only one step in order to become
accredited, as infallible.
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Alexander was right in wishing that he should be recognized as a
god; he deduced a consequence that strictly followed from the
fulness of the power which he possessed: and they also are right,
who, attributing sovereignty to the multitude, take for their
maxim, _Vox populi, vox Dei_. Everywhere where sovereignty
rests with a single power, whatever may be the nature of that
power, there is a danger that sovereignty will immediately be
claimed as a right.
Division Of Powers.
A division of the actual sovereignty is then a natural
consequence of the principle, that a right to sovereignty does
not belong to any person. It is necessary that there should be
several powers, equal in extent and supplementary to each other
in the exercise of actual sovereignty, in order that no one of
them may be led to arrogate to itself the sovereignty of inherent
right. The feeling of their reciprocal interdependence can alone
prevent them from regarding themselves as entirely irresponsible.
Further: it is only in this way that the ruling power can be
constrained to perpetuate its search for reason, truth, and
justice; that is, for the rule which should govern its action, in
order that it may become legitimate. The words of Pascal apply
not only to the formation of power, they extend also to its
exercise. Here are beings, individual or collective, who are
called upon to perform the functions of sovereignty in common,
each one under the supervision of his fellows. Do they possess
among them, or by the fact of their existence, the right to
power? No: they must seek it, they must on every opportunity
manifest the truth which they proclaim as law. Isolated and
distinct, they are only a multitude; when, after having
deliberated and laboured, they find a ground of agreement in a
common idea, from whence can proceed one will, then alone will
the true unity, which resides in reason, be evolved; then there
will be a presumption that the ruling power knows accurately and
is well disposed to that legitimate rule which alone confers
rightful power. If this work were not enforced, if this laborious
and common search for the true law were not the necessary result
of the reciprocal independence of the several powers, the end of
government would not be attained. All the relations of the four
great political powers which constitute, with us, the government
(that is, the king, the two houses of parliament, and the
electors) are intended to compel them to act in harmony, that is
to say, to reduce themselves to unity.
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Election And Publicity.
The introduction of an elective, that is, a moveable element,
into government, is as necessary as a division of forces to
prevent the sovereignty from degenerating in the hands of those
who exercise it into a full and permanent sovereignty of inherent
right. It is therefore the necessary result of a representative
government, and one of its principal characteristics. Accordingly
we see that actual governments which have aimed at becoming
absolute, have always endeavoured to destroy the elective
principle. Venice gave a memorable illustration of this tendency,
when, in 1319, it conferred an hereditary right on the grand
council. [Footnote 11]
[Footnote 11: This event is clearly and minutely related by
Daru, in his "_Histoire de Venise_" (Vol. i. pp.
449-464.)]
In the first age of governments, at the same time that we see
power come from, above, that is to say, acquire for itself by its
superiority, of whatever kind that may be, either ability,
riches, or courage,--we see it also obliged to make its title
recognised by those who can judge it. Election is the mode of
this recognition,--it is to be found in the infancy of all
governments; but it is generally abolished after a time. It is
when it reappears with sufficient energy to influence powerfully
the administration of society, that a representative government
is rising into being.
Theoretically, publicity is perhaps the most essential
characteristic of a representative government. We have seen that
it has for its object to call upon all individuals who possess
rights, as well as those who exercise powers, to seek reason and
justice, the source and rule of legitimate sovereignty. In
publicity consists the bond between a society and its government.
Looking, however, at facts, we find that of the elements
essential to a representative government, this is the last which
is introduced and gains a firm footing. Its history is analogous
to that of the elective principle. The _Champs de Mars_ and
_Mai_ were held in the open air: many persons were present
at them who took no part in the deliberation. The assembly of the
Lombards at Pavia took place _circumstante immensâ
multitudine_. It is probable that the same publicity attended
also the _Wittenagemot_ of the Saxons.
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Publicity In England.
When absolute or aristocratic government prevails, publicity
disappears. When representative government begins to be formed by
election, publicity does not at first enter into its
constitution. In England, the House of Commons was for a long
time a secret assembly; the first step towards publicity was to
cause its acts, addresses and resolutions, to be printed. This
step was taken by the Long Parliament under Charles I. Under
Charles II. its proceedings again became secret; some individuals
demanded, but in vain, the publication of the acts passed by the
House,--the demand was resisted as dangerous. It was not till
the eighteenth century that visitors were allowed to be present
at the sittings of the English Parliament: this is not now
granted as a right, and the demand of a single member who appeals
to the ancient law, is sufficient to clear the gallery. Publicity
has not then been invariably attached to a representative
government; but it flows naturally from its principles--it is
accordingly won almost necessarily, and may now be regarded as
one of its most essential features. This result is owing to the
press, which has rendered publicity easy without resorting to
tumultuous meetings.
We have found the fundamental principle and the exterior and
essential characteristics of a representative government; we have
learnt what it is that constitutes it and distinguishes it from
other governments: we may now pass to its history. We shall take
care to admit its existence only where we recognise the presence
or the approach of its true principles; and we shall be convinced
that its progress has ever been identical with the development of
these principles.
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Lecture IX.
Primitive institutions of the Franks.
Sketch of the history of the Frankish monarchy.
The Franks in Germany.
Their settlement in Belgium and in Gaul.
Character and authority of their chiefs after their
establishment in the Roman Empire.
Early Frankish chieftains.
Clovis: his expeditions, wars, and conquests.
Decisive preponderance of the Franks in Gaul.
Origin Of The Franks.
In order to pursue the object of this course, I now proceed to
give a sketch of the Franks similar to that which I have already
given of the Anglo-Saxons. I shall study with you their primitive
institutions, seek out their leading principle, and compare it
with that type of representative government which we have just
delineated. But before we enter upon the examination of Frankish
institutions, I think it advisable briefly to refer to the
leading events in the history of France. The institutions of a
people cannot be thoroughly understood without a knowledge of
their history. I shall devote this lecture to a view of the
establishment of the Frankish monarchy; on a future occasion we
will trace its progress under the first and second races of its
kings.
I shall not now delay to discuss the somewhat uncertain origin of
the Franks; there is reason to believe that, in Germany, they did
not constitute a separate and homogeneous nation. They were a
confederation of tribes settled in the country between the Rhine,
the Maine, the Weser, and the Elbe. The Romans seem to have been
long ignorant of their existence even after the conquest of Gaul,
and history mentions them, for the first time, during the reign
of Gordian, about the middle of the third century. A song,
composed in celebration of the victories of Aurelian had the
following refrain:--
"Mille Francos, mille Sarmatas,
Semel et semel occidimus."
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After this period, we find the different tribes of Franks
advancing from East to West with rather rapid progress. At the
beginning of the fourth century, we meet with the Salian Franks
settled in Belgium, and the Ripuarian Franks on the two banks of
the Rhine. These peoples established themselves on the frontiers
of Gaul, sometimes by force, and sometimes with the consent of
the emperors, who, after having defeated the barbarians,
frequently assigned them lands on which to settle. This was the
course pursued by Probus, Constantine, Julian, Constantius, and
many others.
The Frankish Chiefs.
The chiefs thus established in the Roman territory retained, over
their barbarian comrades, their ancient and independent
authority, and received at the same time, from the emperors,
certain titles to which were applied certain functions, and a
certain amount of authority over the Romans in their district.
Thus we find them adorned with the names of _Dux, Magister
militia, Comes littoris_, and so forth. Their position was
almost identical with that of the leaders of the wandering Tartar
tribes in the Russian empire, who are elected by the men of their
tribe, but receive their title and a certain jurisdiction from
the Emperor of Russia--retaining their independent life, but
bound at the same time to render military service, and to pay a
tribute of furs.
Childeric, the chief of a Frankish tribe at Tournai, had received
the title of _Magister militiæ_ from the empire. When, in
consequence of domestic quarrels and treason, he was forced to
take refuge in Thuringia, his tribe submitted in 460 to Egidius,
master of the Roman militia at Soissons. In 1653, the tomb of
Childeric was discovered at Tournai, and several pieces of money
were found in it, which are now deposited in the National
Library, at Paris.
At the termination of the fifth century, the epoch of the
dissolution of the empire, when the provinces were left,
according to the expression of Tacitus, _magis sine domino quam
cum libertate_, nearly all these local chieftains, Romans as
well as barbarians, became independent, and no longer recognised
the sovereignty of Rome. Siagrius, the son of Egidius, was
appointed King of the Romans at Soissons. He made war with
Clovis, in his own name and on his own account.
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The Frankish chiefs, who had thus become petty sovereigns,
penetrated still farther into the empire. Clodion, who had
settled at Cambrai, carried his incursions to the banks of the
Somme. Meroveus was present at the battle of Chalons-sur-Marne,
at which Attila was conquered.
Wars Of Clovis.
It was, however, under the command of their chieftain Clovis,
that these bands of Franks, who originally formed colonies on the
frontiers, entered Gaul definitively as conquerors. Clovis was
the son of Childeric, who reigned at Tournai; and he succeeded
his father in 481. He probably wielded a certain amount of
authority in the name of the empire. Saint Remy, in a letter,
gives him the title of _Magister militiæ_. Other Frankish
chiefs were, about this period, almost in the same position as
Clovis: Ragnachar ruled at Cambrai, Sigebert at Cologne, and
Renomer at Mans. Clovis was the most ambitious, the ablest, and
the most fortunate of them all.
His nearest neighbour was Siagrius, who governed at Soissons. In
486, Clovis sent him a defiance; Siagrius accepted it, and
appointed the battle-field at Nogent, near Soissons. Siagrius was
conquered, and took refuge with Alaric, king of the Visigoths,
who gave him up to his conqueror. In 491, Clovis conquered the
district of Tongres, now the district of Liege. In 496, he
penetrated still further in the same direction; he entered the
country of the Alemanni, against whom Sigebert, king of Cologne,
had requested his assistance. He defeated them at Tolbiac, and
became a Christian in consequence of this victory. A party of the
conquered Alemanni took refuge in Rhœtia, under the protection of
Theodoric, king of the Ostrogoths: there, under the name of
Suevi, they became the stem of the Suabians. Another body
remained on the banks of the Rhine, and became subject to
Sigebert and Clovis. Thus this chieftain extended his dominion in
the vicinity of the Rhine. At the same time he overcame most of
the Frankish chiefs, his neighbours, and subjected their tribes
to his power. In 497, he led an expedition against the Armoricans
in the West. In 500, he fell upon the Burgundians in the East,
took advantage of their dissensions, and gained a victory between
Dijon, and Langres. In 507, he advanced into the centre of
France, through Anjou and Poitou; near Poitiers, he attacked
Alaric II., king of the Visigoths, and killed him. He penetrated
as far as Angoulême, Bordeaux, and Toulouse; and boasted of
having conquered Aquitaine. In 508, Clovis received the title of
_Patrician_ from Anastasius, the Emperor of the East. In
509, he returned to the Rhine, defeated his ancient ally,
Sigebert, king of Cologne, and subjugated the Ripuarian Franks.
In 511, he died, after having led his Frankish warriors, and
extended his dominion, over the various parts of Gaul.
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The wars and conquests of Clovis had little resemblance to what
we understand by the same words at the present day. The principal
object of the Frankish expeditions was to make booty, and carry
off slaves; this is what was called conquest in those days. The
victor sometimes imposed a tribute; but there resulted from his
victory hardly any permanent possession, and no civil settlement.
Among other proofs of this assertion, I may instance the small
number of the warriors who accompanied Clovis, who was never
attended, on his expeditions, by more than five or six thousand
men. Now, with this number, no civil settlement, not even a
military occupation, was possible. When the conqueror had
withdrawn, the conquered people gradually resumed their
independence--a new chieftain arose. Barely did the conquerors
settle in the lands which they had subjected; thus it was
necessary incessantly to make the same conquests over again.
For a detailed narrative of these events, I refer you to the
general histories of France, especially to the work of M.
Sismondi.
Nowhere do we obtain a better picture of the manners of the
Greeks in the heroic age than that supplied by the Iliad. A
similar authority, with reference to the expeditions and manners
of the Germanic people, exists in the poem of the Nibelungen.
There you will best be able to obtain a correct knowledge and
thorough comprehension of the state of society, and the nature of
the wars at this epoch.
Death Of Clovis.
At the death of Clovis, in 571, the Frankish monarchy was
definitively established; for he had made the Frankish name and
people the most formidable and least contested power in Gaul.
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Lecture X.
Division of territory among the sons of the Frankish kings.
Rapid formation and disappearance of several Frank kingdoms.
Neustria and Austrasia; their geographical division.
Early predominance of Neustria.
Fredegonde and Brunehaut.
Elevation of the _Mayors of the Palace_.
True character of their power.
The Pepin family.
Charles Martel.
Fall of the Merovingians.
Successors Of Clovis.
I have already explained to you how we must understand the
historical phrase which attributes to Clovis the foundation of
the French monarchy. In the sense and within the limits which I
have indicated, Clovis, at his death, was king of the whole of
France, excepting the kingdoms of the Burgundians and Visigoths.
After his decease, each of his four sons received a portion of
his dominions. Theodoric ruled at Metz, Chlodomir at Orleans,
Childebert at Paris, and Clotaire at Soissons. The nature of this
division has given rise to considerable dissension among learned
men; but I think the question may be easily solved. In order to
retain his power, it was necessary for the chieftain or king to
possess large private domains; in all his warlike expeditions, he
acquired for himself large tracts of territory; Clovis had thus
obtained immense landed property wherever he had made a conquest.
At his death, these estates were divided among his children, as
were also his other possessions, flocks, herds, jewels, money,
treasures of all kinds: these supplied their owners with the
surest means of attaining power. Moreover, it was the custom of
the Frankish kings to associate their sons with them in the
government, by sending them to reside in that district or
province which was afterwards to constitute their kingdom. They
thus endeavoured to secure the prevalence of hereditary right
over election. The sons of the king became in their turn the
natural chieftains of the countries in which they actually
possessed the most power. Thus we find that Clotaire II., in 622,
associated with himself his son Dagobert, and sent him to
Austrasia. Dagobert did the same, in 633, for his son Sigebert.
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Partitions Of The Realm.
From this division of private domains and participation in royal
power, it was easy to pass to the political partition of the
kingdom. It is more difficult to discover whether these
partitions were made by the dying king, in his own authority, or
by the national assembly. At a later period, under the second
race, we find Pepin, Charlemagne and Louis the Debonnair,
positively obtaining the consent of the assembly of barons to the
division of their states among their children. Pacts are not so
clear and authentic under the Merovingians. However, as the
accession of the second race was a return to old Germanic
manners, it is probable that, in the time of Clovis and his
successors, every heir, on receiving his portion, was obliged to
gain the consent of the chiefs of the country. Five partitions of
this kind occurred under the Merovingians; in 511, after the
death of Clovis; in 561, after Clotaire I.; in 638, after
Dagobert I.; in 656, after Clovis II. Prom 678 to 752, the whole
monarchy was actually united under the authority of the Pepin
family, who were originally _Mayors of the Palace_ of
Austrasia, and nominally under that of titular kings, the first
four and the sixth of whom descended from the kings of Neustria,
and the fifth and seventh from those of Austrasia. The kingdoms
which were constituted by the five partitions which I have just
mentioned, were those of Metz, Orleans, Paris, Soissons,
Austrasia, Burgundy, Neustria, and Aquitaine.
I shall not here speak of the vicissitudes and perpetual
dismemberments of these various kingdoms at various times. I
should have only to relate a long series of wars and murders. The
ancient kingdom of Burgundy was conquered by the children of
Clovis I.; a new kingdom of Burgundy arose, in which the kingdom
of Orleans was incorporated. The new kingdom of Burgundy was
invaded, sometimes by the kings of Neustria, sometimes by those
of Austrasia. The kingdom of Aquitaine appears for a moment only
under Childebert II., son of Clotaire II., in 628, and about 716,
under Eudes, duke of Aquitaine, who declared himself an
independent monarch. At length, these four kingdoms disappeared;
the fundamental conflict and division was between the kingdoms of
Neustria and Austrasia, the two largest, and last surviving.
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Neustria And Austrasia.
The geographical division of the kingdoms of Neustria and
Austrasia is uncertain and variable. We find the kings of
Austrasia possessing countries far distant from the centre of
their government--countries, too, which seem to be naturally
placed by their position under the sway of the kings of Neustria.
Thus, they were the masters of Auvergne, and their dominion
extended almost as far as Poitou. These incoherent possessions
had their origin in the frequent expeditions of the two countries
against each other, or into distant lands which belonged to
neither of them. We can, however, obtain some few distinct
boundary lines; the forest of Ardennes separated Austrasia from
Neustria; Neustria comprised the country between the Meuse and
the Loire; Austrasia consisted of that between the Meuse and the
Rhine.
This division had a far greater importance than that of a mere
geographical division; and there is a deeper cause for the
successive disappearance of the other Frankish kingdoms, and the
final predominance of these two.
The countries which composed Austrasia were the first which were
inhabited by the Franks. They adjoined Germany, and were
connected with those portions of the Frankish confederacy which
had not crossed the Rhine. They were, therefore, the cradle, the
first fatherland, of the Franks. Moreover, after their
expeditions, these tribes frequently returned with their booty to
their ancient settlement, instead of establishing themselves in
their new conquests. Thus Theodoric, son of Clovis, in the fifth
century, led a great expedition into Auvergne, and returned
afterwards to Austrasia. Roman civilization and manners had been
almost completely expelled from that bank of the Rhine; the
ancient German manners predominated there. In the countries which
composed Neustria, on the other hand, the Franks were less
numerous, more scattered, more separated from their ancient
fatherland and fellow-countrymen. The ancient inhabitants of the
country surrounded them on every side. The Franks were there like
colonies of barbarians transported into the midst of Roman
civilization and a Roman people. This state of things could not
but lead to a far more profound and reasonable distinction
between the two kingdoms, than could be occasioned by a purely
geographical division. On one side was the kingdom of the
Germano-Franks, on the other that of the Romano-Franks.
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Predominance Of Neustria.
Historic testimony positively confirms this probable deduction
from facts. Austrasia is termed _Francia Teutonica_, and
Neustria, _Francia Romana_. The German language prevailed in
the former country, and the Roman in the latter. Finally, under
the first race of kings, events bear the evident impress of this
fundamental distinction, or rather, they are its natural result.
When considering them in a general manner, it is impossible to
recognize this character. I shall now give a summary of the
principal proofs.
I. The original predominance of the kingdom of Neustria. This is
an incontestable fact. Four kings, after Clovis, and before the
destruction of the royal authority by the Mayors of the Palace,
united the whole Frankish monarchy under one head. These were
kings of Neustria; Clotaire I., from 558 to 561; Clotaire II.,
from 613 to 628; Dagobert I., from 631 to 638; and Clovis II.,
from 655 to 656. This predominance of Neustria was the natural
result, 1st, Of the establishment of Clovis in Neustria; 2ndly,
Of the central position of that kingdom with reference to the
rest of Gaul; 3rd, Of the superior civilization and wealth which
accrued to it from its Roman population; 4th, Of the rapid
extension which the royal authority obtained in it, in
consequence of the prevalence of Roman ideas and customs; 5th, Of
the continual fluctuations occasioned in Austrasia, by the
proximity of the German barbarians, by wars against the
Thuringians and Saxons, and by other causes.
II. The state of the two kingdoms, during the epoch of Fredegonde
and Brunehaut, from 598 to 623. The struggle was constant between
Neustria and Austrasia, under the name of these two queens. The
power of Chilperic and of Fredegonde in Neustria was greater than
that of the kings of Austrasia and of Brunehaut. Fredegonde acted
upon a country in which the only Roman administration still
prevailed; Brunehaut endeavoured in vain to overcome the rude
independence of the chiefs of the German bands, who had become
large landed proprietors. Her boldness and ability failed in its
opposition to the Austrasian and Burgundian aristocracy.
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The Austrasian aristocracy formed a secret alliance with that of
Neustria. The fall and death of Brunehaut were evidently a
triumph of the Austrasian aristocracy, which, being stronger and
more compact than that of Neustria, imposed upon Clotaire II. the
execution of his queen. The remnants of Roman despotism were
overcome in Austrasia by the German aristocracy, and the
consequences of that event were the enfeeblement of the royal
authority and the predominance of Austrasian influence.
The Mayors Of The Palace.
III. The elevation of the Mayors of the Palace, and the fall of
the Merovingian race, are the third proof of the great fact which
I have mentioned. The elevation of the Mayors of the Palace must
be ascribed to the same causes in both kingdoms. It is an error
to interpret this fact as the conflict of the victorious Franks
against the Gauls and Romans. These last, more moulded to
despotism, had found a ready access to the court of the barbarian
kings, and it has been inferred from this, that it was in order
to counteract their influence, that the German aristocracy
created the Mayors of the Palace. This is an error; the Mayors of
the Palace were the work and instrument of the barbarian
aristocracy, whether Roman or Gallic, in opposition to the royal
authority.
It has also been said that the kings were desirous of attaching
to themselves one of the most powerful members of the territorial
aristocracy, in order to control or oppress the others. This
might have been the case originally, but the Mayor of the Palace
soon found it more advantageous to make himself the leader and
instrument of the nobility. He promoted their interests, and
assumed the character of a protector to the large proprietors
with whom, finally, his appointment rested. From this time forth,
the royal authority was almost a dead letter.
The same phenomenon is observable in both kingdoms; but the
Austrasian aristocracy was more purely German, and more compact,
than that of Neustria. It was consequently more powerful, and its
Mayors of the Palace became more deeply rooted in their
authority. Thus we behold the family of Pepin gain the royal
power by a progressive elevation, from 630 to 752. This family
was descended from Carloman, the wealthy proprietor of the domain
of Haspengau, situated on the Meuse, between the district of
Liege and the duchy of Brabant. It was thoroughly German, and
naturally placed itself at the head of the Franco-German
aristocracy.
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Fall Of The Merovingians.
The fall of the Merovingians was, therefore, the work of
Austrasia, and, as it were, a second conquest of Roman France, by
Germanic France. The kings of Roman France were unable to
maintain their position, and the Neustrian Mayors of the Palace,
the leaders of a mingled aristocracy of Franks and Gauls, were
incompetent to take their place. It was from the banks of the
Rhine and from Belgium, that is, from the ancient fatherland of
the Franks, that the new conquerors came--and these conquerors
were the chiefs of a purely Germanic aristocracy.
Charles Martel.
This was, undoubtedly, the true character of the fall of the
Merovingians, and of the elevation of the Carlovingians, who
founded a new Frankish monarchy in that Gaul in which the
Neustrian Franks had so greatly degenerated. Thus we shall
perceive, at this epoch, and in consequence of this revolution, a
marked return towards the primitive institutions and manners of
the Franks. This is perceptible, indeed, even in the manner in
which the revolution was effected. The details of this event
fully confirm what we have first said regarding the general
progress of affairs. The Pepin family had laboured for a century
to place itself at the head of the Frankish nation. It derived
its support not merely from the great landed aristocracy, but
also from the patronage of the warriors employed in military
expeditions. The development of the power of this family, in the
first point of view, was the work of Pepin the Old and of Pepin
de Heristal; under the second, it was the work of Charles Martel
in particular. His continual wars against the Transrhenane
Germans, against the Saracens, and against the petty tyrants of
the interior, rendered him a more powerful warrior-chief than any
of his ancestors. But Charles Martel employed other means also to
attach his companions to his person. He seized the property of
the church, and distributed it amongst them. He did not take this
property, however, in so absolute a manner as is supposed. The
various churches were in the habit of farming out their property
for a fixed annual income, and ecclesiastical estates thus farmed
out were called _precaria_.
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Frequently the kings, when desirous of rewarding one of their
chiefs, ordered a chapter to farm out an estate to the favourite
for a very moderate rent, under the title of a _precarium_.
Charles Martel, at first, merely generalised this practice. A
very large number of his comrades received from him favours of
this kind; in the first instance, they received the
ecclesiastical estates only for two or three years; but, when
that term had expired, the tenants were unwilling to restore what
they had appropriated to themselves by the habit of enjoyment.
The conflict of the church against the usurping proprietors long
perplexed the the kings of the second race. As they often
required the help of the clergy, they strove to appease their
complaints. Pepin the Short and Charlemagne restored to them a
large portion of their property which had formerly been granted
to their warriors as _precaria_; or at least, increased the
amount paid to the church by the new proprietors, who obstinately
refused to consider themselves mere tenants.
Pepin.
The predominance of the Pepin family had commenced before the
time of Charles Martel, by their possessing the hereditary office
of Mayor of the Palace. During the life of that great chieftain,
there were several inter-reigns in Austrasia and Neustria, and he
continued to exercise the supreme authority with the simple title
of Duke of the Franks. At his death, his children, Pepin and
Carloman, divided the kingdom between them, Pepin, still
preserving some respect for appearances, made Childeric III. king
in Neustria; and soon, by the abdication of his brother Carloman,
he found himself Duke of Austrasia, as well as the all-powerful
Mayor of the Palace in Neustria. Such was, however, the influence
already possessed by the idea of the hereditary legitimacy of the
crown, that Pepin did not venture to seize, in the name of force
alone, upon the throne which was considered to belong rightfully
to the descendants of Clovis. He sought to justify his employment
of force by popular election, and an appeal to religion. As the
head of an aristocracy, he was obliged frequently to defer to its
will, and to give it a share of authority. He revived the ancient
assemblies of the large landowners, and restored to them their
part in public affairs.
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Thenceforward he might consider himself certain of his election;
but even this did not suffice him. He thought that his usurpation
needed a more august and sacred sanction. He gained over to his
interests Boniface, bishop of Mayence, and charged him to sound
Pope Zachary, who, on his side, was hard pressed by the Lombards,
and needed the assistance of the Frankish chieftain. When Pepin
was sure of the pontiff's concurrence, he sent Burckhardt, bishop
of Wurtzburg, and Fulrad, abbot of St. Denis, to propose to him
this question, in the form of a case of conscience. "When there
is a king in fact and a king by right, which is the true king?"
The pope replied, that he who actually exercised the royal
authority ought also to possess the royal title. In 752, Pepin
convoked the national assembly at Soissons; he was there elected
king, and afterwards consecrated by Bishop Boniface. In 754, Pope
Stephen III. made a journey into France, and again consecrated
Pepin with his two sons and his wife Bertrade. The pope ordered
the Franks, on pain of excommunication, to take none as kings who
did not belong to the family of Pepin, and the Franks swore an
oath: _Ut nunquam de alterius lumbis regem in ævo præsumant
eligere_.
A second dynasty was thus established almost in the same manner
as the first had been. The principal warrior-chief, the most
powerful of the large landowners, has himself elected by his
companions, confines future elections to members of his own
family, and obtains the sanction of religion to his election. He
holds the actual power from his fathers and from himself; he is
desirous of holding the rightful power from God and from the
people. German manners and institutions reappear, but in
association with Christian ideas. Here is a second conquest of
Gaul, accomplished by German warriors, and sanctioned, in the
name of the Roman world, no longer by the Emperor, but by the
Pope. The church has inherited the moral ascendancy of the
empire.
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Lecture XI.
General character of events under the Carlovingian Empire.
Reign of Pepin the Short.
Reign of Charlemagne.
Epoch of transition.
Reigns of Louis the Débonnair and Charles the Bald.
Norman invasions.
The last Carlovingians.
Accession of Hugh Capet.
Tendency To Centralization.
I have sketched the general progress of events in Frankish Gaul,
under the Merovingians; I have now to give a similar outline of
the reign of the Carlovingians. I shall enter neither into an
examination of the institutions, nor a detailed narrative of
occurrences; I shall seek to sum up the facts in the general fact
which includes them all.
The general tendency of events under the Merovingians was towards
centralization; and this tendency was natural. At that period, a
society and a state were labouring to form and create themselves;
and societies and states can be created only by the
centralization of interests and forces. The conquests and
authority of Clovis, however fleeting and incomplete they may
have been, indicate this need of centralization, which was then
pressing upon Roman and barbarian society. After the death of
Clovis, his dominions were dismembered, and formed into distinct
kingdoms; but these kingdoms could not remain separate; they
continually tended to reunite, and soon became reduced in number
to two, which finally coalesced. A similar process took place in
reference to the authority in the interior of each state. The
royal power attempted at first to be the centralizing principle,
but did not succeed; the aristocracy of the chiefs, the great
landowners, laboured to organize itself, and to produce its own
government; it produced it, at length, in the form of the Mayors
of the Palace, who eventually became kings. After two hundred and
seventy-one years of labour, all the Frankish kingdoms were
reunited into one. The supreme power was more entirely
concentrated in the hands of the king, aided by the concurrence
of the national assemblies, than it had ever been previously.
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Under Pepin the Short and Charlemagne, this centralization was
maintained, extended and regulated; and it appeared to gain
strength. New countries, new peoples, were incorporated into the
Frankish state. The relations of the sovereign with his subjects
became more numerous and regular. New bonds of union were
established between the supreme power, its delegates, and its
subjects. A state and a government seemed likely to be formed.
Tendency To Dissolution.
After the death of Charlemagne, affairs presented quite another
aspect, and assumed a contrary direction. In proportion as a
tendency to the centralization, either of the different states
among themselves, or of the internal power of each state, had
been visible under the rule of the Merovingian race, in just that
proportion did a tendency to the dismemberment, to the
dissolution, both of the states themselves and of the power in
each state, become evident under the Carlovingians. Under the
Merovingians, you have seen that five successive dismemberments
took place, none of which was able to last; after the death of
Charlemagne, the kingdoms once separated do not reunite. Louis
the Debonnair divided the empire among his children, in 838, and
made vain efforts to maintain some unity therein. The treaty of
Verdun, in 843, definitively separated the three monarchies.
Charles the Fat, in 884, made an attempt to unite them again; but
this attempt also failed--reunion was impracticable.
In the interior of each state, and particularly in France, the
same phenomenon was manifested. The supreme power which, under
the Merovingians, had tended to become concentrated in the hands,
either of the kings, or of the Mayors of the Palace, and which
had seemed to have attained this end under Pepin and Charlemagne,
took a contrary direction from the reign of Louis the Debonnair,
and tended constantly to dissolution. The great landed
proprietors who, under the first race, had been naturally urged
to coalesce against the royal authority, now laboured only to
elevate themselves, and to become sovereigns in their own
domains. The hereditary succession of benefices and offices
became prevalent. Royalty was nothing more than a direct
lordship, or an indirect and impotent suzerainty. Sovereignty was
dispersed; there no longer existed any state, or head of the
state.
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The history of the Carlovingians is nothing but the struggle of
declining royalty against that tendency which was continually
robbing and contracting it more and more. This was the dominant
character, the general progress of events, from Louis the
Debonnair to Hugh Capet. I shall now refer to the principal facts
of this epoch; in them I shall find proofs of the general fact
just stated.
Pepin The Short.
I. Pepin the Short (752-768). As this monarch had risen to power
by the aid of the large landowners, the clergy, and the pope, he
was obliged, during the whole course of his reign, to treat with
consideration those powers which had supported him. He frequently
convoked national assemblies, and frequently met with opposition
from them. It was not without extreme difficulty that he
prevailed upon his chieftains to make war against the Lombards,
at the request of Pope Stephen III. In order to retain the
support of the clergy, Pepin ordered the holders of
ecclesiastical benefices to perform the conditions annexed to
their tenure of them; he lavished, donations upon the churches,
and greatly augmented the importance of the bishops. It is from
Zachary's answer to Pepin, that the popes have assumed to deduce
their historic right to make and unmake kings. Pepin thus
favoured the aggrandizement of the aristocracy, the clergy, and
the papacy,--three powers which had been very useful, and were
still of great service to him, which he knew how to manage and
restrain, but which, under other circumstances, would assuredly
labour to render themselves independent of the royal power, and
would promote the dismemberment, after having assisted in the
concentration of the kingdom. The moment most favourable for the
development of these powers had arrived. They placed themselves
at first at the service of the king, who was useful to them, and
knew how to make them serviceable to himself; and thus they
became able to free themselves from dependence upon him, and
henceforward to act alone and on their own account.
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Charlemagne.
II. Charlemagne (768-814). Epochs of transition, in the history
of society, have this singular characteristic, that they are
marked sometimes by great agitation, and sometimes by profound
repose. It is well worth while to study the causes of this
difference between epochs which are fundamentally similar in
nature, and which do not constitute a fixed and durable state of
society, but only a passage from one state to another. When the
transition occurs from a state of things which has long been
established and is doomed to destruction, to a new state of
things which it will be necessary to create, it is generally full
of agitation and violence. When, on the other hand, there exists
no previous state of society, which from its long duration is
difficult to overthrow, the transition is only a momentary halt
of society, fatigued by the disorder of its previous chaotic
state, and by the labour of creation. This was the character of
the reign of Charlemagne. The whole country of the Franks,
wearied by the disorders of the first dynasty, and not having yet
originated the social system which was destined to issue
naturally from their conquest--I mean the feudal régime--stood
still for a time under the government of a great man who procured
for it greater order and more regular activity, than it had ever
known before. Until then, the two great powers which agitated the
country--the great landowners and the clergy--had not been able
to take a settled position. The royal authority was hostile to
them, and they attacked it. Charlemagne knew how to restrain and
satisfy them, and contrived to keep them employed without placing
himself in their power. This knowledge constituted his strength,
and was the cause of the temporary order which he established
throughout his empire. In a future lecture, when studying the
institutions of his epoch, we shall see what was the
characteristic feature of his government. I am speaking now only
of the fact itself--of the singular circumstance of the authority
of a very powerful king being interposed between an age in which
royalty was held in slight esteem, and an age in which it almost
ceased to be of any importance. Charlemagne made of barbarian
monarchy all that he possibly could. He possessed within himself,
in the necessities of his mind and life, an activity
corresponding to the general exigencies ol his age, which,
indeed, surpassed them. The Franks desired war and booty;
Charlemagne desired conquests, in order to extend his renown and
dominion; the Franks were unwilling to be without a share in
their own government; Charlemagne held frequent national
assemblies, and employed the principal members of the territorial
aristocracy as dukes, counts, _missi dominici_, and in other
offices.
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The clergy were anxious to possess consideration, authority, and
wealth; Charlemagne held them in great respect, employed many
bishops in the public service, bestowed on them rich endowments,
and attached them firmly to him, by proving himself a munificent
friend and patron of those studies of which they were almost the
only cultivators. In every direction towards which the active and
energetic minds of the time turned their attention, Charlemagne
was always the first to look; and he proved himself more warlike
than the warriors, more careful of the interests of the church
than her most devout adherents, a greater friend of literature
than the most learned men, always foremost in every career, and
thus bringing everything to a kind of unity, by the single fact
that his genius was everywhere in harmony with his age, because
he was its most perfect representative, and that he was capable
of ruling it because he was superior to it. But the men who are
thus before their age, in every respect, are the only men who can
gain followers; Charlemagne's personal superiority was the
indispensable condition of the transitory order which he
established. Order did not at that time spring naturally from
society; the victorious aristocracy had not yet attained the
organization at which it aimed. Charlemagne, by keeping it
employed, diverted it temporarily from its object. When
Charlemagne was dead, all the social forces which he had
concentrated and absorbed became in want of aliment; they resumed
their natural tendencies, their intestine conflicts; they began
once more to aspire to the independence of isolation, and to
sovereignty in their own neighbourhood.
Louis The Debonnair.
III. Louis the Debonnair (814-840). As soon as Louis became
emperor, he lost the success which had attended him as king of
Aquitaine. Facts soon gave proof of that tendency to dissolution
which pervaded the empire of Charlemagne, and which dispersed the
authority which he had been able to retain entire in his own
hands. Louis gave kingdoms to his sons, and they were continually
in revolt against him. The great landholders, the clergy, and the
pope--those three social forces which Charlemagne had so ably
managed and restrained--escaped from the yoke of Louis the
Debonnair, and acted sometimes in his favour, and sometimes
against him.
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The clergy loaded him with reproaches, and forced him to do
public penance at Worms, in 829. An attempt was made, in 830, to
make him a monk, after the assembly at Compiègne, where he had
confessed his faults; and he was deposed, in 833, by another
assembly at Compiègne, in pursuance of a conspiracy into which
Pope Gregory IV. had entered. During the whole course of this
reign, nothing held together, everything was disjoined; both the
states which constituted the empire, and the great social forces,
lay and ecclesiastical, in each state. Each of these forces
aspired to render itself independent. Louis the Debonnair
presents a singular spectacle, in the midst of this dissolution,
attempting to practise as a scholar the maxims of government laid
down by Charlemagne, enacting general laws against general
abuses, prescribing rules for the guidance of all those forces
which had escaped from his hands, and even endeavouring to
correct the particular acts of injustice which had been committed
under the preceding reign. But the kings, the great landowners,
the bishops,--all had acquired a feeling of their own importance,
and refused to obey an emperor who was no longer Charlemagne.
Charles The Bald.
IV. Charles the Bald (840-877). The dissolution which had
commenced under Louis the Debonnair continued under his son
Charles the Bald. His three brothers, [Footnote 12] relying
alternately upon the pretensions of the clergy and of the large
landholders, disputed with him for the vast empire of
Charlemagne.
[Footnote 12: Lothaire, Pepin, and Louis the Germanic, the
three elder sons of Louis the Debonnair.]
The bloody battle of Fontenay, fought on the 25th of June, 841,
made Charles the Bald king of Neustria and Aquitaine, that is, of
France. His reign is nothing but a continual alternation, a scene
of futile efforts to prevent the dismemberment of his dominions
and of his power. At one time, he robs the clergy in order to
satisfy the avidity of the great landholders, whose support he is
anxious to gain; at another time, he spoils the landholders in
order to appease the clergy, of whose assistance he stands in
need. His capitulars contain hardly anything but these impotent
alternations. The hereditary succession of benefices and
appointments became triumphant, and every chieftain laid the
foundation of his own independence.
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The Normans.
V. The Normans. This is the generic name of the German and
Scandinavian tribes, who inhabited the shores of the Baltic.
Their maritime expeditions may be traced back to a very remote
period. We meet with them under the first dynasty of Frankish
kings; they frequently occur towards the end of the reign of
Charlemagne, and under Louis the Debonnair; and they continually
appear under Charles the Bald. They constituted a fresh cause of
the dismemberment of the empire, and of the royal authority. In
the ninth century, the Frankish Gauls present the same appearance
which the Roman Gauls had offered four centuries before: that of
a government incapable of defending the country, and expelled or
retiring in every direction, and of barbarians pillaging,
imposing tribute, withdrawing on payment of large sums of money,
and continually reappearing to levy fresh contributions.
Nevertheless, a notable difference is to be remarked between
these two epochs. In both, the central government was equally
incapable and worn out; but, in the ninth century, there existed
within the Frankish territory a host of chieftains, who, though
lately barbarian invaders themselves, had become independent, and
were surrounded by warriors who defended themselves against the
new invaders with far greater energy than the Roman magistrates
had done, and who took advantage of the disturbed state of
society to consolidate firmly their own individual sovereignties.
Among these chieftains, we meet with Robert the Strong, the
ancestor of the Capetian family, who became Duke of Neustria, in
861, and was killed in 866, while defending Neustria against the
Normans. The Normans definitively established themselves in
Neustria, in 912, under Charles the Simple, who yielded the
province to their chief Rollo, and gave him his daughter Grisella
in marriage.
VI. Charles the Fat. In 884, Charles the Fat, son of Louis the
Germanic, temporarily collected under his rule nearly all the
dominions of Charlemagne. The maintenance of this new
concentration of territory and power was impossible, and it was
dissolved even before the death of Charles the Fat.
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VII. In 888, Eudes, and in 923, Raoul, made themselves kings. The
first, a count of Paris, was the son of Robert the Strong, and
assumed the title of king, at the national assembly held at
Compiègne. The second was Duke of Burgundy, and husband of Emma,
the grand-daughter of Robert the Strong, and sister of Hugo the
Great, Duke of France. These kings were not, like the Mayors of
the Palace at the termination of the first dynasty, the
representatives of a powerful aristocracy. The landed aristocracy
of the tenth century had no further need of representation; no
power could struggle effectively against them. Every great
landowner was absolute master in his own estates, and the kings
were only great barons, who, having become independent, assumed
the title of kings, with the aid of their vassals. A portion of
the lords who had thus become independent, remained indifferent
to quarrels which did not disturb their rights and their power.
They cared little whether there was a king, or who was king. The
descendants of Charlemagne retained for some considerable time a
party of adherents, for the idea and feeling of the rightfulness
of a hereditary succession to the crown, that is, of legitimacy,
were already powerful; but in 987, the conflict ceased, and Hugh
Capet became king.
Tendency To Dissolution.
The general fact which characterizes this epoch,--a tendency to
dismemberment and dissolution,--is frequently met with in the
course of the history of the human race. At first, we see the
interests, forces, and ideas which exist in society, labouring to
become united, to concentrate themselves, and to produce a
suitable form of government. When this concentration has been
once effected, and this government has been once produced, we
find that, at the end of a certain time, it becomes exhausted and
incapable of maintaining it entirely; new interests, new forces,
and new ideas, which do not harmonize with each other, arise and
come into action; then the dissolution begins, the elements of
society become separated, and the bonds of government are
relaxed. A conflict commences between the forces which tend to
separation, and the authority which strives to maintain union.
When the dissolution shall be consummated, then will begin a new
work of concentration.
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Formation And Dissolution.
This occurred after the fall of the second dynasty in France. The
prevalence of the feudal system had caused the dissolution of the
government and the state; the government and the state laboured
to reconstitute themselves, and to regain their unity and
consistency. This great work was not definitively accomplished
until the reign of Louis XIV.; the social forces had then become
once more concentrated in the hands of royalty. Our own times
have witnessed a fresh dissolution.
What we observe, then, during the years from 481 to 987, is a
general phenomenon, characteristic of the progress of the human
race. This phenomenon occurs not only in the political history of
societies, but also in every occupation in which the activity of
man finds exercise. In intellectual order, for example, we find
at first that chaos reigns; the most divergent attempts to
resolve the great questions of the nature and destiny of man, are
made in the midst of the universal ignorance. By degrees,
opinions become assimilated, a school is formed, founded by a
superior man; it is joined by almost all men of mind. Ere long,
in the midst of this very school, diverse opinions arise,
contend, and become separated; dissolution begins once again in
intellectual order, and will continue until a new unity is
formed, and regains the empire.
Such, also, is the course of nature herself in her great and
mysterious operations. This continual alternation of formation
and dissolution, of life and death, recurs in all things, and
under all forms. Spirit gathers matter together and gives it
animation,--uses, and then abandons it. It falls a prey to some
fermentation, after which it will reappear under a new aspect, to
receive once more that spirit which alone can impart to it life,
order, and unity.
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Lecture XII.
Ancient institutions of the Franks.
They are more difficult of study than those of the
Anglo-Saxons.
Three kinds of landed property; allodial, beneficiary,
and tributary lands.
Origin of allodial lands.
Meaning of the word allodium.
Salic land amongst the Franks.
Essential characteristics of the allods.
Primitive Institutions Of The Franks.
The primitive institutions of the Franks are much more difficult
of study than those of the Anglo-Saxons.
I. In the Frankish monarchy, the old Gallo-Roman people still
subsisted; they in part retained their laws and customs; their
language even predominated; Gaul was more civilised, more
organised, more Romanised than Great Britain, in which nearly all
the original inhabitants of the country were either destroyed or
dispersed.
II. Gaul was divided among various barbarian peoples, each of
whom had its own laws, its own kingdom, its own history; the
Franks, the Visigoths, the Burgundians; and the continual
alternations of the Frankish monarchy between dislocation and
re-union, long destroyed all unity in its history.
III. The conquerors were dispersed over a much larger extent of
territory; and central institutions were weaker, more diverse,
and more complicated.
IV. Of the two systems of social and political order, contained
in the cradle of modern nations--I mean the feudal system and the
representative system--the latter has long prevailed in England,
while the former long maintained its sway in France. The ancient
national institutions of the Franks were absorbed into the feudal
system, in whose train came absolute power. Those of the Saxons,
on the other hand, were more or less maintained and perpetuated,
to end at length in the representative system, which rendered
them clear by giving them due development.
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Perhaps, also, the difficulty of the study of the ancient
Frankish institutions arises in some measure from the fact that
we possess more documents respecting the Franks than respecting
the Saxons. Because we are acquainted with more facts, we have
greater trouble in harmonizing them. We believe we are better
informed because we know less.
Such being the case, I wish to state with precision the object of
my researches, so as not to lose time in useless digressions. I
do not propose that we should study together either the state of
Frankish society in all its departments, or the history of all
its vicissitudes. I am desirous to investigate and explain to
you, first, what constituted in France, from the fifth to the
tenth century, the political part of the nation, possessing
political rights and liberties; and secondly, by what
institutions these rights were exercised, and these liberties
guaranteed. We shall frequently be obliged to make excursions
beyond these limits in search of the facts necessary to the
solution of the questions contained therein; but we shall not
dwell long upon such extraneous matter.
In the pursuit of this study, we shall find the works of German
authors of incontestable utility. A principal cause of the errors
of the leading French writers who have treated of the subject, is
that they have attempted to derive all our institutions from
Germany, from the condition of the Franks before the invasion,
and that, at the same time, they have been unacquainted with the
language, the history, and the learned researches of the purely
German peoples, that is, of the nations which have most
thoroughly retained the primitive elements of Frankish society,
and which formed a considerable portion of the Frankish monarchy.
Views Of Hullmann.
Dr. Hullmann, a professor at the University of Bonn, has written
a book on the origin of the various social states or conditions,
the object of which is to prove that all modern social order,
political as well as civil, derives its origin from the
circumstance, that the peoples of modern times have been
agriculturists, devoted to the possession and fixed cultivation
of land. This view, although incomplete, is of much importance.
It is certain that, in the history of Europe, ever since the fall
of the Roman Empire, the condition of persons has been closely
connected with that of landed property, and that the one throws
light upon the other. Though all history would not prove that
this has been the case from the beginning, yet the long-continued
predominance of the feudal system, which consists precisely in
the intimate connection and amalgamation of the relations of
lands with those of persons, would alone be sufficient to
demonstrate it unquestionably.
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Condition Of Lands.
At the outset, the condition of persons gave rise to that of
lands; according as a man was more or less free, more or less
powerful, the land which he possessed or cultivated assumed a
corresponding character. The condition of lands afterwards became
the symbol of the condition of persons; according as a man
possessed or cultivated such and such a domain, he was more or
less free and more or less important in the State. Originally,
the man gave its character to the estate; in the sequel, the
estate gave his character to the man: and as symbols quickly
become causes, the condition of persons was at length not only
indicated, but determined by, and consequent upon, the condition
of lands. Social conditions became in some degree incorporated
with the soil: and a man found himself possessed of a certain
rank and of a certain degree of liberty and social importance,
corresponding to the character of the land which he occupied. In
studying modern history, we must not for a moment lose sight of
these vicissitudes in the condition of lands, and of the varied
influence they exerted upon the condition of persons.
There is some advantage in first studying the condition of lands,
in so far as it was a symbol of the condition of persons, because
the former is somewhat more determinate than the latter. It is
also less complicated; the condition of persons frequently varied
upon lands of the same condition; and the same persons have
possessed lands of different conditions. Our information,
respecting the condition of lands, is also more than exact.
In studying the condition of landed property and its
vicissitudes, I do not propose to investigate its civil
condition, or to consider property in all its civil relations,
such as successions, bequests, and alienations. I intend to
consider it only in its relation to the condition of persons, and
as a symbol or cause of the various conditions of society. In the
period which we are about to study, from the fifth to the tenth
century, we have this advantage: that it contains a complete
system, both as regards landed property, and also with respect to
the condition of persons and the political institutions of the
nation.
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Allodial Lands.
At this period, we meet with three kinds of landed property: 1st.
Allodial lands; 2nd. Beneficiary lands; and 3rd. Tributary lands.
1st. Of allodial lands or _Allods_.--These were lands
possessed in absolute right, which the proprietor held from no
one, on account of which he owed nothing to any superior, and of
which he had full liberty to dispose. The lands taken or received
as booty by the Franks, at the time of the conquest of Gaul, or
in their subsequent conquests, were originally allodial. At a
later period it was said that a man held an allodium, only from
God and his sword. Hugh Capet said that he held the crown of
France in this manner, because he had received it from no one.
Such tenures were mementos of conquest.
The word _alode_ itself indicates that the first allods were
lands, which fell to the conquerors either by lot or division;
_loos_, lot; _allotted, allotment;_ whence also came
the French word, _loterie_. Among the Burgundians,
Visigoths, Lombards, and others, we find positive traces of this
division of the lands allotted to the conquerors. They took
possession of two-thirds of the land, that is, not of the whole
extent of the country, but of the land in any locality, where a
barbarian of any importance took up his residence. The lands
which thus fell to the barbarians, were called _Sortes
Burgundionum, Gothorum,_ and so on. We do not find among the
Franks positive traces of such a division of the land; but we
know, nevertheless, that they divided their booty by lot.
The word _alode_, then, was probably applied at first only
to the lands taken by the victors in virtue of their conquests.
Another proof of this is that allodial property, properly so
called, was long distinguished from the lands held also in
absolute right, and entailing no acknowledgment of a superior,
but which had been acquired by purchase or in any other way. A
distinction was also made among allodial lands, of _salic_
land, which could be inherited only by males. This was probably
the original allod, the land acquired at the time of the
conquest, and which thereupon became the primitive and principal
establishment of the head of the family. _Terra salica_ is
the _terra aviatica_ of the Ripuarian Franks, the _terra
sortis titulo adquisita_ of the Burgundians, the
_hæreditas_ of the Saxons, and the _terra paterna_ of
the formulas of Marculf.
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Salic Land.
Various explanations have been given of the term _salic
land_. Montesquieu thinks that it was the land belonging to
the house, from the word, _sal_, hall. This explanation is
supported by Hullmann. It would thus be the _in-land_ of the
Anglo-Saxons. It is probable that originally the _terra
salica_ was in fact the land connected with _the_ house,
the residence of the chieftain. The two explanations would thus
coincide; but the former is more complete and historical than the
latter.
The name of _allod_ was extended by degrees to all lands
possessed in absolute right, and held from no superior, whether
they were the original allods or not. The words _proprium,
possessio, prædium, hæreditas,_ were then employed as synonyms
of _allodium_. It was probably at this period also that the
rigorous interdict which excluded females from succession to
salic land, fell into desuetude. It would have been too harsh to
exclude them from succession to all allodial property. There were
some doubts entertained on this point as early as the time when
the salic law was drawn up; and Marculf has transmitted to us a
formula which proves that, although it was the common law to
deprive females of all succession to primitive allods, a father
might, nevertheless, by his will, give his daughter an equal
share with his sons in the division of all his property, of
whatever nature.
The essential and primitive characteristic of the
_allodium_, consisted in the absoluteness of the property;
the right to give it away, to alienate it, to bequeath it by
inheritance or will, &c. Its second characteristic was that it
depended upon no superior, and involved no service or tribute of
any kind to any individual. But although allodial lands were
exempt from all private charges towards individuals, does it
follow that they were also exempt from all public charges as
regarded the state, or the king as head of the State? This
question has been differently answered by learned men.
At the period to which we allude, there were no public charges
properly so called, no obligations imposed and fulfilled as
regarded the State, or its head. All was limited to personal
relations between individuals; and from the relations of man with
man arose the mutual relations of landed property, which were not
carried further than those of persons.
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Charges On Allodial Lands.
We have already seen this; the position of the Franks after the
conquest resulted from the combination of their anterior
relations with their new position. The freeman, who held his land
from no one, had no obligations or charges to fulfil to any one
on account of his land. In such a state of civilization, liberty
is the appanage of force. The Franks who possessed allodial
lands, and were strong enough to be under no obligation of duty
to any more powerful individual, would not have comprehended the
necessity of owing service to an abstract being like the State,
with which, moreover, they had no personal relation.
However, as society cannot exist in such a state of dissolution,
arising from the isolation of individuals, new relations were
progressively formed between the proprietors of allodial lands,
which relations imposed certain charges on them.
1st. The gifts presented to the kings either at the holding of
the Champs de Mars or Mai, or when they come to pass any time in
any particular province. The kings had no fixed habitation. These
gifts, though at first purely voluntary, became gradually
converted into a sort of obligation, from which allodial lands
were not exempt. That these gifts had become obligatory is proved
by a list drawn up at Aix-la-Chapelle in 817, during the reign of
Louis the Debonnair, which enumerates the monasteries which had
to pay them, and those which had not.
2nd. The supply of provisions and means of transport to the
king's ambassadors, and to the foreign envoys, on their passage
through the country.
3rd. Of the various barbarian nations which were successively
incorporated into the kingdom of the Franks, several paid tribute
to the Frankish kings; and of this tribute it is probable that
the free or allodial lands, possessed by these nations,
contributed their share. It consisted of a certain number of
cows, hogs, and horses. The nature of these tributes proves that
they were not distributed among the lands, but imposed upon the
nation as a whole.
4th. A more important charge, namely, military service, was
imposed upon allodial lands. In our next lecture, we shall see
how this charge was introduced.
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Lecture XIII.
Origin of military service; its cause and limits.
It was made a general obligation by Charlemagne.
Allodial lands were originally exempt from taxation.
Origin of benefices.
Change in the position of the German chiefs in consequence of
their territorial settlement.
Their wealth.
No public treasury.
The _œrarium_ and _fiscus_ of the old Roman republic.
Formation of the private domain of the kings of France.
Character of benefices.
Error of Montesquieu on this subject.
Origin Of Military Service.
I have indicated some of the new relations which became
progressively established between the proprietors of allodial
lands and the services that resulted from them. I have to occupy
you to-day with the consideration of military service and
benefices.
Originally, military service was imposed on a man by virtue of
his quality, his nationality before the conquest, and not by
reason of his wealth. After the conquest, there was no legal
obligation to it whatever; it was a natural result of the
position occupied by the Franks,--who were constantly called upon
to defend what they had conquered,--and of their taste for
warlike expeditions, and for pillage. It was, also, a kind of
moral obligation which each man owed to the chief whom he had
chosen. This connexion continued the same as in Germany; the
chief proposed an expedition to his men, and if they approved of
it, they set out. Thus, we find Theodoric proposed to the
Austrasian Franks an expedition against Thuringia. Often the
warriors themselves summoned their chief to conduct them on some
particular expedition, threatening to forsake him, and seek
another chief, in the event of his refusal. Under the
Merovingians, a kind of regularity, some sort of legal
obligation, was introduced into the military convocations, and a
penalty was inflicted upon those who did not present themselves.
The obligation was imposed, and the penalty inflicted, even in
cases where no movement was required in defence of the country.
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The proprietors ol allodial lands were not exempted; many,
doubtless, went on their own free choice, but the feeble were
constrained. This was, however, an obligation attached rather to
the quality of a free man, a Frank, or an associate, than to
property.
Not until the reign of Charlemagne, do we see the obligation to
military service imposed on all free men, proprietors of
freeholds, as well as of benefices, and regulated by property
qualifications. This service now appeared no longer as a
voluntary act; it was no longer the consequence of the simple
relation between a chief and his associates, but a truly public
service imposed on every individual of the nation, in proportion
to the nature and extent of his territorial possessions.
Charlemagne was very vigilant in seeing that the system of
recruiting which he had established, should be faithfully carried
out; we have a proof of this in his capitulary, issued in the
form of instructions to the _missi dominici_, in the year
812. This is an exceedingly minute account of the particulars and
charges of military service. These charges remained under the
same conditions during the reigns of Charlemagne's immediate
successors. Under Charles the Bald, they were restricted to the
case of an invasion of the country by a foreigner
(_landwehr_). The relation of the vassal to his lord, at
that time, prevailed completely over that of the citizen to the
chief ruler of the state.
Exemption Of Freeholds From Imposts.
Although allodial lands were exempt from imposts, properly so
called, more because there were no general imposts whatever than
because of any special immunity from them possessed by allodial
lands, yet we find the kings used every favourable opportunity to
attempt to attach imposts to men and lands, which they believed
rightfully exempt from them; complaints were made of these
attempts as acts of injustice; they were resisted, and sometimes
redress was sought, as under Chilperic, in 578, in Austrasia;
under Theodebert, in 547; and under Clovis II., in 615. We find
also, that, on the occasion of great and alarming emergencies,
the kings imposed certain charges on proprietors, without
distinction, requiring them to lend their assistance, either to
the poor, or to the state. Thus, Charlemagne, in 779, during a
famine, and Charles the Bald, in 877, in order to pay the tribute
due to the Normans, made such general claims. In both these
cases, the charge was adjusted to the quality of persons and
properties.
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Distribution Of Lands.
There is reason to believe that, originally, allodial lands did
not exist in large numbers, especially among the Franks.
There is no ground for supposing that the Franks took possession
of, and shared the lands, wherever they made expeditions and
conquests. They rather cared for the booty which they carried
off, and the cattle which they took with them, instead of forming
a settlement themselves. For a long time, the greater part of the
Franks did not often forsake their first habitations on the banks
of the Meuse and the Rhine; thither they returned after their
expeditions.
We may conclude that lands were most probably distributed in the
following manner. Each chief took a portion for himself and his
associates, who lived on the land of their chief. It would be
absurd to suppose that each band would dissolve itself, and the
separated individuals then retire each to his isolated share of
land; there were no individual shares, or, certainly, but few.
This is sufficiently proved by the fact that the greater number
of Franks appear to have been without landed property, living as
cultivators on the lands, and in the _villæ_ of a chief, or
of the king. Often, even, a man would place himself not only
under the protection, but at the disposal of another, to serve
him during his life, on condition of being fed and clothed, and
yet without ceasing to be free. This kind of contract, the
formula for which has been preserved, must have been very common,
and explains the circumstance that so large a number of free men
are found to have lived and served on lands not belonging to
themselves. Probably, the number of Franks who became
successively proprietors, by means of benefices, was greater than
the number of those who were primitively allodial proprietors.
The larger number ol small allodial proprietors were gradually
robbed of their possessions, or reduced to the condition of
tributaries, by the usurpation of their neighbours, or of
powerful chiefs. Of this, there are innumerable examples. The
laws made, from the seventh to the tenth century, give evidence
of the tendency of large allodial estates or benefices to absorb
small freeholds. The statute of Louis the Debonnair, referring to
the complaints of the Spanish refugees in the south, explains
pretty accurately the system according to which properties
changed hands.
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Donations to churches also tended incessantly to reduce the
number of allodial estates. They would probably soon have
disappeared altogether, had not a cause of an opposite character
tended continually to create new ones. As allodial property was
sure and permanent, while benefices were precarious and more
dependent, the proprietors of benefices constantly sought to
convert their benefices into allodial estates. The capitularies
which remain to us prove this at every step. It is probable that
large new allodial estates were thus created, but small ones
tended to disappear.
Beneficiary Lands.
Finally, under Charles the Bald, a singular circumstance presents
itself. This was the very time when the system of allodial
property was preparing, so to speak, to merge itself in the
system of beneficiary property, which is synonymous with
feudalism; and precisely at that time the name of _Allods_
is more frequent than ever. We find it applied to properties
which are evidently benefices. This name still designated a
property more surely hereditary and independent, and as benefices
were ordinarily hereditary and independent, they were called
allods, just in order to indicate their new character; and the
king himself, whose interest it especially was that his benefices
should not become allods, gave them this name, as if it had
become their conventional designation. Sixty years previously,
Charlemagne had made the greatest efforts to prevent benefices
from becoming allods.
Having thus explained the nature and changes of allods, I pass on
to the consideration of _benefices_.
_Benefices_, which constituted the cradle of the feudal
system, were a natural result of the relations anciently
subsisting in Germany between a chief and his associates. As the
power of these chiefs resided only in the strength of their band
of associates, all their attention was directed to the means of
enlarging the number of these followers. Tacitus relates how,
being charged with the maintenance and preservation of their
followers, they gained and kept them by means of constant
warfare, by dividing to them the spoils of the empire, by gifts
of arms and horses. After the conquest, when the territorial
establishment took place, the position of the chiefs was altered.
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Private Domains Of The Kings.
Hitherto, in their wandering life, they had lived solely upon
rapine; then they possessed two kinds of wealth, moveable booty
and lands. They made their companions other presents, which
engaged them in another kind of life. These riches, both moveable
and fixed, remained for the chiefs, as for all others, as their
personal and private property. The Frankish society had not then
arrived at any ideas of public property. It consisted only of
individuals, powerful by reason of their courage and their talent
for war, by the antiquity of their family, and the renown of
their name, who collected around them other individuals, who
passed their life in the same precarious manner. The republics of
antiquity did not commence thus. Rome had soon its public
treasure--its _ærarium_. Till nearly the close of the
republic, the _ærarium_ still remained. Augustus established
the _fiscus_, the treasury of the prince, which was destined
to absorb the _ærarium_. The _fiscus_, at first,
received only private gifts to the prince, but it soon usurped
all the public revenues, till it became at length the only
repository for public wealth. Thus, despotism transformed a
public into a private domain. The states founded on the ruins of
the Roman empire have followed an opposite course. At their
commencement, all property was private property. It is in
consequence of the development of civilization, and free
institutions, that in almost all monarchies private domains have
gradually become public property.
The private domains of the chiefs of bands, and particularly of
the Frankish kings, were at first composed of lands taken from
the inhabitants of the countries in which they established
themselves. I have already stated that they did not take all the
lands, but a large number of them. The share of the chief must
have been considerable, as is indicated by the numerous domains
of the chiefs of the first two races, in Belgium, in Flanders,
and on the banks of the Rhine, where they first formed their
settlements. Hullmann has given a list of a hundred and
twenty-three domains beyond the Meuse belonging to the
Carlovingian family.
The private property of the chiefs of conquered peoples were, to
a great extent at least, incorporated into the domain of the
conquering chief. Clovis subjected to himself successively
several petty monarchs in his neighbourhood--Ragnachair at
Cambray, Chararich in Belgium, and Siegbert at Cologne; and took
possession of all their personal property.
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The substitution of the royalty of one family for that of
another, augmented the private domain of the king; the new king
would add to his own personal possessions the property of the
dethroned king. Thus the large domains possessed by the family of
the Pepins, in Belgium, and on the Rhine, became royal domains.
Legal confiscations, as a punishment for crime, cases in which no
legal heir was to be found for property, unjust and violent
confiscations--were other sources of personal wealth to kings.
In these ways, the private domain of the kings increased rapidly,
and it was employed by them especially as a means of attaching
their associates to them, and of gaining new ones. Benefices,
then, are as ancient as the establishment of the Franks on a
fixed territory.
Tenure Of Benefices.
The fundamental question which has divided historians, whether
those who are merely scholars or the philosophers, is--were
benefices given for a time and revocable at will, or were they
for life and yet revertible, or were they hereditary? Montesquieu
has aimed at establishing a historical progression among these
different modes; he asserts that benefices were at first
revocable, being given for a time, then for life, and then
hereditary. I believe he is mistaken, and that his mistake arises
from an attempt to systematize history, and bring its facts into
regular marching order. In the giving and receiving of benefices,
two tendencies have always coexisted: on the one hand, those who
had received benefices wished to retain them, and even to make
them hereditary; on the other hand, the kings who granted them
wished to resume them, or to grant them for only a limited
period. All the disputes that occurred between kings and their
powerful subjects, all the treaties which arose out of these
disputes, all the promises which were made with a view to appease
the dissatisfaction of malcontents, prove that the kings were in
the habit of taking back, by violence, the benefices they had
granted, and that the nobles attempted to retain them also by
violence.
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Disputes About Benefices.
The Mayors of the Palace acquired their power by placing
themselves at the head of the large possessors of benefices, and
by seconding their pretensions. Under the administration of Pepin
the Short and Charlemagne, the struggle appeared to cease,
because the kings had for a time great superiority in force; but,
in reality, the kings were now the aggressors in their turn, who
endeavoured to bring the benefices again into their own hands,
and to preserve to themselves the free disposal of them. Under
Charles the Bald, the kings again began to get feeble, and, in
consequence the treaties and promises became again favourable to
the beneficiaries. In fact, the history of benefices, from the
time of Clovis till the full establishment of the feudal system,
is only a perpetual struggle between these two opposing
tendencies. An attentive and accurate examination of the facts
will prove that the three modes of conceding benefices did not
follow one another in regular chronological succession, but that
they are to be found existing and operating simultaneously during
the whole course of this period.
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Lecture XIV.
Proofs of the co-existence of various modes of conferring
benefices, from the fifth to the tenth century.
Of benefices that were absolutely and arbitrarily revocable.
Of benefices conceded for a limited time; the_precaria_.
Of benefices granted for life.
Of benefices granted hereditarily.
General character of the concession of benefices.
Their tendency to become hereditary.
Its prevalence under Charles the Bald.
Military service.
Judicial and domestic service.
Origin, meaning, and vicissitudes of the fidelity due by the
vassal to his lord.
Transference Of Benefices.
From the time of the invasion of the Gauls by the Franks up to
the moment when the feudal system was definitely constituted, we
find during the whole course of this epoch:
I. That benefices were revoked, not only as a consequence of
legal condemnation, but also by the arbitrary will of the donor.
The power of absolute and arbitrary transference of benefices was
practically in existence under the Merovingian kings. It is
however very doubtful whether this has ever been recognised as
the right of the donors. Such an act possessed a character of
suddenness and violence which gave a shock to ideas of natural
justice. Few men would consent to receive a favour of which they
might legally have been deprived at the first moment of caprice.
Montesquieu affirms that benefices were first held on an entirely
uncertain tenure. The proofs which he gives are but of little
weight. _First_, the clause contained in the treaty
concluded at Andely, in 587, between the two monarchs, Gontran
and Childebert, proves the fact but not the right.
_Secondly_, the formula of Marculf again does not prove
anything more than a common practice. Besides, the giver of the
benefice presents a motive in this formula, namely, the necessity
of the exchange. _Thirdly_, the law of the Lombards merely
characterises the benefice as a precarious property, which it
indubitably was. _Fourthly_, the _Book of Fiefs_
compiled in the twelfth century, probably converted the fact into
a right. _Fifthly_, the letter of the bishops to Louis the
Germanic also proves merely the fact.
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It is evident that the right has always been contested, and that
attempts have always been made to prevent the permanency of
benefices is a fact also. "Charlemagne," says Eginhard, "did not
suffer that every noble should take away from his vassal the
benefices which he had granted to him upon any outburst of
anger." The capitulary of Louis the Debonnair, which allows a
year to the rejected incumbent whose benefice is in a bad
condition before it can be finally taken from him, proves
likewise that certain forms were observed with this view, and
protests against a purely arbitrary disposition. That the patron
had a right to take away the benefice, when the occupant had
failed to discharge his obligations, is an indisputable fact. Now
it would be very easy to abuse this principle of taking away
benefices under a pretext of disorderly conduct or infidelity to
the trust reposed; accordingly all the protestations that were
made, and all the treaties that were enforced, were designed to
oppose such a procedure.
Thus we find, from the fifth to the tenth century: _First_,
numerous examples of benefices being arbitrarily taken away; this
was the practice of the giver, when his power corresponded to his
desire. _Secondly_, benefices taken away on account of
unfaithfulness, disorder, treachery; this was a right.
The Precaria.
II. As to benefices granted for a limited time, Montesquieu
affirms, after the _Book of Fiefs_, that they were at first
granted for one year. I have not been able to find any positive
example of this. It is not however impossible that there may have
been such, similar to the _precaria_ belonging to churches.
_Precarium_, among the Romans, signified a grant of property
on the tenure of usufruct for a limited time, which was generally
pretty short. Under the monarchy of the Franks, we have seen that
the churches often consolidated their wealth in this way, in
order to secure a permanent revenue. Charles the Bald decreed
that the _precaria_ should be held for five years and
renewed every five years.
Seizure Of Church Property.
The only benefices which appear to me to have been granted for a
time, ostensibly so at least, are those which arose out of the
ecclesiastical wealth taken by Charles Martel (about A.D. 720),
and which were then possessed under the designation
_precarious_.
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Before this period we find kings and mayors interposing their
authority in order to obtain, under the title of
_precarious_, the enjoyment of certain church wealth for
certain persons. It appears that Charles Martel did more at that
time than grant or cause the retention of church property, under
the title of _precaria_,--he also completely stripped the
churches, in order to confer their wealth as benefices. But,
after him, Pepin and Carloman, his sons, while they also took the
wealth of churches in order to confer them on their vassals, only
took it on the title of _precaria_. The ecclesiastics
protested vigorously against the spoliation of Charles Martel,
and it was upon their protestations that Pepin ordained that the
wealth which could be restored should be actually returned, and
that what could not be so restored, should be held under the
title _precaria_, at fixed rentals, till they could again be
transferred to the church. Pepin and Charlemagne used rigorous
measures to secure that the holders, _in precario_, of
church wealth should fulfil their obligations to its primitive
proprietors; and we may gather, from the frequency of their
orders, that these orders were often treated with contempt. It is
nevertheless evident that the practice of taking the goods of the
church, and placing them in other hands, whether absolutely, or
under the title of precarious, continued under even the most
feeble and superstitious kings. The bishops said that Charles the
Bald suffered himself to be led astray, being often seduced,
partly because of his youth, partly through feebleness of
character, by evil counsellors, and often constrained by the
threats of the occupants, who told him "that if he did not allow
them to possess this consecrated property, they would abandon him
immediately." It is probable that but little of this property was
restored to the churches, and that the greater part of what was
held _sub precario_ became, along with the other benefices,
the hereditary possession of the occupants.
We see that far from Charles Martel having any claim to be
regarded as the first originator of the practice of granting
benefices for life, the benefices, on the contrary, which arose
either from the act by which he despoiled churches and
monasteries, or from acts similar to his, were for a long time
more precarious than any others, and even ought legally to have
been restored to the churches; certainly at the death of the
occupants, and if possible before.
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III. We find during the whole of the epoch which we are
considering, and at its close as much as at its commencement,
benefices conferred for life. It is evident that under Pepin and
Charlemagne most benefices were given on this tenure. This was
owing to the various precautions taken by the kings to prevent
their being transformed into allodial estates. Louis the
Debonnair took the same precautions. Mabillon quotes a charter of
this king containing the formal concession of a benefice to be
held for life. In 889, King Eudes conferred a benefice on Ricabod
his vassal, "in beneficiary right, and on a tenure of usufruct;"
with this addition, that, if he should have a son, the benefice
should pass to his son for his life. We see, under Pepin, a
vassal die who had a son, and yet his benefice was given
immediately to another vassal.
Hereditary Benefices.
IV. We find also, during the whole of this epoch, that benefices
were given or held hereditarily. In 587, it was stipulated by the
treaty of Andely, with regard to the concessions made by queen
Clotilda, that they should be perpetual. The law of the Visigoths
(of Chindasuinth, about 540) provides that the concessions made
by the princes should not be revoked. Marculf gives the formulary
for a hereditary concession. In 765, Charlemagne gave to an
individual named Jean, who had conquered the Saracens in the
province of Barcelona, a domain (says Fontaines) situated near
Narbonne; "in order that he and his posterity may possess it
without any fee or trouble, so long as they remain faithful to us
or to our children." The same Jean presented himself to Louis the
Debonnair, with the gift of Charlemagne, and demanded his
confirmation of it. Louis confirmed it, and added to it new
lands. In 884, Jean being dead, his son Teutfred presented
himself to Charles the Bald with the two donations just
mentioned, and asked him to confirm them to him. The king granted
this, as it is expressed, "in order that thou mayest possess
them, thou and thy posterity, without any fee." These successive
demands of confirmation, either at the death of the original
bestower, or at that of the original incumbent, prove that the
hereditary character of benefices was not then considered as a
right, even when it had been promised, and consequently that it
rested on no general law that was recognized by the state.
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Tenure Of Benefices.
These three modes of granting benefices, of which I have just
given examples, existed therefore at the same time, and I believe
that we may assert from them two general facts, which however are
not without exceptions: _First_, the usual condition of
benefices, during this period, was that they should be given on a
tenure of usufruct and for life; _Secondly_, the tendency of
the time was to render the benefice a hereditary possession. This
result was eventually realized when the feudal or aristocratic
system triumphed over the monarchical system. We see under
Charlemagne, at which time the monarchical system reached its
culminating point, that most benefices were held on a tenure of
usufruct for life, and not as personal property. Not only was
Charlemagne unwilling that the property in benefices should be
usurped, but he was especially vigilant with regard to their
right administration. Under Charles the Bald, when the
aristocratic system prevailed, benefices came to be held as
hereditary possessions. This mode of possession partly arose out
of the immense number of hereditary concessions which were made
during this reign, and which were commenced under Louis the
Debonnair; partly also out of some general arrangements in the
capitularies of Charles the Bald, which recognized or conferred
upon those who were faithful to the king the right to transmit
their benefices hereditarily. We must conclude from this that the
hereditary character of benefices at that time prevailed almost
universally as a custom, and began to be avowed as a principle,
but that it was not yet a general and recognized right. It was
demanded and received in individual instances, which would not
have been the case had it existed as a common right. In the
monarchies consequent on the dismemberment of Charlemagne's
empire--in Germany, for example--it was not recognized as a
right, and prevailed still less as a custom.
Let us never forget--I repeat it--that all these general facts
are subject to exceptional cases, and that different methods of
conferring benefices have existed at all times. It would follow,
from the nature of things, that the common condition of benefices
was, at first, that of possession for life. The relations of the
chief to his associates were all personal,--hence his
benefactions were personal also.
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Not less did it follow from the nature of things, that when the
Franks were once established and fixed, the associates of the
monarch who were able to acquire an independent existence, and to
become powerful in their turn, tended to separate themselves from
their ancient chief, and to settle themselves in their own
possessions, in order that they also might become the centre of
groups of men. Hence resulted all the efforts to make benefices
hereditary.
Conditions Attached To Benefices.
After having determined the origin and the mode of conferring and
transmitting benefices, it remains that we should learn what
conditions were attached to them, and what relations were thereby
formed between the giver and the incumbent.
Mably thinks that benefices did not at first impose any
particular obligation, and that those of Charles Martel were the
first which were formally associated with civil and military
services. This opinion is contrary to the nature of things;--the
origin of benefices testifies to the contrary. They were, as, in
Germany, gifts of horses or of arms and banquets had been, a mode
of attaching companies to the benefactor. This relation in itself
involves an obligation. Mably's idea is equally contradicted by
facts. In all the disputes which arose between the incumbents and
the Merovingian kings, the benefices are always vindicated in
behalf of those who kept faith with their patron. No complaints
were made when those were seen to be despoiled who had failed to
render the fidelity that was due from them. Siggo we find losing
the benefices of Chilperic in 576, because he had forsaken his
allegiance and passed over to Childebert II. The law of the
Ripuarians pronounced the confiscation of the goods of every man
who had been unfaithful to the king. Marculf gives the formula of
the act by which a man was received into the number of the
faithful. Charles Martel, in giving benefices to his soldiers,
only imposed upon them the obligations that had always followed
on such appointments. Only these obligations became progressively
more formal and explicit, precisely in the measure that the
ancient relations of the chief and his associates tended to
become weakened and to disappear, in consequence of the
dispersion of his men and their settlement on their own
properties.
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Vassalage.
Originally, the associates lived with their chief, around him, in
his house and at his table, in peace, as well as in war: they
were his vassals, according to the original sense of the word,
which signified the _guest_, the _companion_, an
individual attached to the house. [Footnote 13]
[Footnote 13: There are different etymologies of the word
_vassus_, from _haus_, a house; from _gast_, a
guest; from _fest_, fast, established; from
_geselle_ (vassallus). The word _Gasinde_, which
expresses the _familia_, so far as it comprises the
individuals inhabiting the house, the _guests_ in
opposition to the _mancipia_, induces me to think that
_vassus_ comes from _gast_. (Anton, _Gesch. der
Deuts. Land._, vol. i. p. 526.)
We read in the Salic law (tit. 43): _Si quis romanum
hominem convivam regis occiderit, sol. 300 culpabilis
judicetur_. The Roman editors of this law would have
rendered the word _gast_ by _conviva_.]
When most of the vassals had dispersed themselves, in order that
each might reside in his own allodial or beneficiary estate, we
may easily perceive the necessity that thus arose of determining
the obligations that were then imposed upon them; but this was
only done imperfectly and by degrees, as is generally the case
where matters are at issue which have for a long time had a
general and conventional adjustment. As the first race began to
disappear and the second to arise in its place, the obligations
attached to the conferring of benefices appear to be clearly
determined. They range themselves under two principal heads.
_First_, the obligation of military service on the
requisition of the patron. _Secondly_, the obligation of
certain judicial and domestic services of a more personal and
household character. It is impossible at the present time to
specify what these services were to which the incumbents were
held. We see only, among a host of acts, that the kings imposed
on the incumbents _servilia_, which obliged them to present
themselves at court. These obligations were comprised under the
general term _fidelity_. They were at first personal, and
attached to the quality of _liege-man,_ independently of the
possession of any benefice; a connexion identical with that
between the ancient German associates and their monarch. When it
had become necessary for the king to give lands as a benefice, in
order to insure the fidelity of his liege subjects, the
obligation attached itself to the quality of beneficiary. We
constantly see benefices given under the condition of loyalty.
Charlemagne, when he gave a benefice in perpetuity to Jean,
annexed to it this condition.
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There is reason to believe that benefices were also given,
conditioned by the payment of certain fees (_census_). I do
not find, at this period, the granting of any benefice in which
the imposition of a rental is expressly indicated; but the nature
of things seems to show that such must have been the case, and I
do find mention made of benefices conferred _absque ullo
censu_. Anxiety in certain cases to obtain exemption from the
fees, proves that in other cases they were imposed. It is
probable that rentals were attached to benefices, granted
hereditarily, and not to those which were only given for the term
of an individual life.
Oaths Of Fidelity.
Loyalty was at first due only to that chief to whom it had been
expressly promised, and from whom a benefice had been received.
Charlemagne attempted to change this into an obligation common to
all the freemen in his States. Marculf has preserved to us the
formula in which he wrote to his counts, requiring from all
individuals the oath of fidelity. Thus did this prince endeavour
to break through the feudal hierarchy which was consolidating
itself, to bring himself into a direct relation with all freemen,
and to make the relation between king and subject predominant
over that between lord and vassal. The oath of fidelity was
universally exacted by the successors of Charlemagne, Louis the
Debonnair and Charles the Bald, but without any effective
results; for the tendency to hierarchical and feudal aristocracy
had become prevalent. We find besides numerous examples of the
maintenance of the relations between incumbent and patron, even
under Charlemagne. Under Charles the Bald this relation became
more positive and independent of the king. The prince even, for
the repression of public crimes, allowed his authority to be
exercised through the intervention of the lord; he made each lord
responsible for the crimes of his own dependents. It was
therefore especially in the empire of the lord over his men, that
the means were then sought of sustaining order and repressing
crime. This alone will sufficiently indicate the continually
growing force of feudal relations and the diminishing authority
of royalty.
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Lecture XV.
Of benefices conceded by great landowners to men dependent
upon them:
_First_, benefices conceded for all kinds of services,
and as a mode of paying salary;
_Secondly_, larger proprietors usurp the lands adjoining
their own, and bestow them as benefices on their
subordinates;
_Thirdly_, the conversion of a great number of allodial
lands into benefices, by the practice of
_recommendation_.
Origin and meaning of this practice.
Permanence of freeholds, especially in certain parts of the
Frankish monarchy.
Tributary lands.
Their origin and nature.
Their rapid extension: its causes.
General view of the condition of territorial
property, from the sixth to the eleventh century:
_First_, different conditions of territorial property;
_Secondly_, the individual dependence of territorial
property;
_Thirdly_, the stationary condition of territorial
wealth.
Why the system of beneficiary property, that is to say, the
feudal system, was necessary to the formation of modern society
and of powerful states.
Donors Of Benefices.
Kings were not the sole donors of benefices; all the large
proprietors gave them. Many leaders of bands of men were
originally united under the conduct of the king; these chiefs
became subsequently proprietors of large allodial estates.
Portions of these were conceded as benefices to their immediate
associates. Afterwards, they became large incumbents, and gave
also as benefices portions of the benefice which they held from
the king. Hence arose the practice of sub-enfeoffment. In the
capitularies, we perpetually meet with the words, _vassalli
vassallorum nostrorum_.
We find, during the whole of this period, even under Charlemagne,
numerous examples of benefices held otherwise than from the king.
Two letters of Eginhard expressly mention the concession, by way
of benefice, of certain portions of royal benefices.
It is the opinion of Mably, that other persons than the king
began to give benefices only after the reign of Charles Martel.
This mistake arises from his not having apprehended that the
relation of the chief to his associate, which afterwards grew
into that of lord to his vassal, was at first a purely personal
relation, entirely independent of and anterior to any concession
of benefices.
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It is impossible to determine at what particular time the
conferring of benefices became connected with the relation of the
beneficiary to his patron. This was probably almost immediately
after the territorial establishment.
Character Of Benefices.
The number of benefices was soon very considerable, and became
greater every day.
I. Benefices were given to free men belonging to quite an
inferior order, and employed in subordinate services. The
_majores villæ_, and the _poledrarii_, that is to say,
the stewards of the estates, and the keepers of the horses of
Charlemagne, had them. It was the policy of this prince to
scatter widely his gifts, and to reward zeal and fidelity
wherever he found them.
II. The larger proprietors continually made themselves masters of
the lands adjoining their own, whether these were lands belonging
to the royal domain, or such as were neglected, and had no very
definite owners. They had them cultivated, and often procured
subsequently the privilege of adding them to their benefices. The
extent of this abuse becomes manifest under Charles the Bald, by
the numerous expedients adopted by this prince to remedy it.
III. A large number of allods were converted into benefices by
means of a tolerably ancient usage. Marculf has left us the
formula by which this conversion was made; its origin we must
seek in the practice of _recommendation_. Recommendation was
not primitively anything else than the choice of a chief, or a
patron. A law of the Visigoths, called a _lex antiqua_, and
which must be referred to king Euric, towards the close of the
fifth century, says: "If any one have given arms, or any other
thing, to a man whom he has taken under his patronage, these
gifts shall remain the property of him by whom they have been
received. If this latter choose another patron, he shall be free
to _recommend_ himself to whomsoever he will: this may not
be forbidden to a free man, for he belongeth to himself; but he
shall, in this case, return to the patron from whom he separates
himself all that he has received from him."
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These were, then, the ancient Germanic customs. The relation of
the individual _recommended_ to his patron was a purely
personal one. The presents consisted in arms; his liberty
remained unimpaired. The law of the Lombards left to every one
the same liberty as the law of the Visigoths. Nevertheless, we
see, by the same capitulary, that this liberty began to be
restrained. Charlemagne defined the reasons by which any one
might be allowed to quit his lord, when he had received anything
from him. We may learn from this, that the ties contracted by
recommendation began to be strengthened. This practice became
very frequent. By these means order was promoted, so far as the
law was concerned, and protection and safety as far as concerned
the person recommended. When relations of service and protection
bearing a purely personal character were thus established with a
patron, other more tangible relations arose in which the property
of the parties was considered. The person recommended received
benefices from the lord, and became a vassal of his estate; or
rather he recommended his lands, as he had previously recommended
his person. _Recommendation_ thus became a part of the
feudal system, and it contributed most importantly to the
conversion of allodial estates into benefices.
There is, however, no reason to believe that all allods were thus
converted into benefices. Originally, such a conversion, or even
the mere acceptance of a benefice, was regarded by a free man as,
to a certain extent, a surrender of his liberty, being an
entrance upon a personal service. The large proprietors, who
exercised an almost absolute sovereignty in their own domains,
would not readily renounce their proud independence. Etichon,
brother to Judith the wife of Louis the Debonnair, was unwilling
any longer to receive his son Henry, who had accepted, without
his knowledge, from the king his uncle a benefice of four hundred
acres, and thereby entered upon the service of the crown. After
the triumph of the feudal system, a considerable number of allods
still remained in several provinces, particularly in Languedoc.
Tributary Lands.
After speaking of freeholds and benefices, it remains that I
should allude to the tributary lands, whose existence is attested
by all the memorials of this period. We do not necessarily
understand by this term lands on which a public impost was
levied, but lands which paid a fee, a rental, to a superior, and
which were not the actual and absolute property of those who
cultivated them.
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Their Rapid Increase.
This kind of property existed in Gaul before the invasion
of the Franks. The conquest that resulted from this invasion
contributed in various ways to augment their number.
_First_, wherever a Barbarian possessed of some amount of
power established himself, he did not take possession of all the
lands, but he most probably exacted certain fees, or services
equivalent to them, from almost all whose lands bordered on his
own. This is certain from _à priori_ considerations, and is
proved as a fact by the example of the Lombards, who invariably
contented themselves at first with rendering all the lands of the
conquered country tributary to themselves. They demanded a third
of the revenue, and afterwards took the property itself. This
fact shows clearly the mode of procedure that was adopted by the
Barbarians. Almost all the lands possessed by Roman or Gallic
chiefs, who did not possess sufficient power to rank with the
Barbarians, were obliged to submit to a tributary condition.
_Secondly_, conquest was not the work of a single day; it
continued to be carried on after the establishment of the
invaders. All the documents of the period indicate that the
principal officers and large proprietors continually exerted
themselves, either to usurp the possessions of their less
powerful neighbours, or to impose upon them rentals or other
charges. These usurpations are proved by the multitude of laws
that were enacted to prevent it. In the unsettled state of
society that then existed, the feeble were entirely placed at the
disposal of the strong; public authority had become incompetent
for their protection; many lands which were at first free, and
belonged either to their ancient owners, or to Barbarians of
slender resources, fell into a tributary state; many of the
smaller proprietors purchased for themselves the protection of
the strong, by voluntarily placing their lands in this condition.
The most common method of rendering lands tributary, was to give
them either to churches or to powerful proprietors, and then to
receive them again, on the tenure of usufruct, to be enjoyed
during life, on the payment of fixed fees. This kind of contract
is to be met with again and again, during this period. The same
causes which tended to destroy allods, or to convert them into
benefices, acted with even more energy in augmenting the number
of tributary lands.
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_Thirdly_, many large proprietors, whether of allodial lands
or of benefices, were unable themselves to cultivate the whole of
their lands, and gave them up by small portions to simple
cultivators, on the payment of certain fees and services. This
alienation took place under a multitude of forms and a variety of
circumstances; it certainly occasioned many lands to become
tributary. The large number and endless variety of rentals and
rights, known in a later time by the name of _feudal_, arose
probably either from similar contracts, or from usurpations
committed by the powerful proprietors. The constant recurrence in
writers and laws of the period of the terms _census_ and
_tributum_; the multitude of arrangements which relate to
them; the general course of events; lastly, the state in which
most landed property was found when order began to reappear,--all
these circumstances render it probable that at the end of the
period we are considering, the greater number of lands had fallen
into a tributary condition. Property and liberty were alike
devoted to be plundered. Individuals were so isolated, and their
forces so unequal, that nothing could prevent the results of such
a position.
Waste Lands.
The large number of waste lands, attested by the facility with
which any one who was willing to cultivate them might obtain
them, bears witness in its turn also to the depopulation of the
country, and the deplorable condition in which property existed.
The concentration of landed property is a decisive proof of this
state of things. When this kind of property is safe and
prosperous, it tends to become divided, because every one desires
to possess it. When, on the other hand, we see it accumulated
more and more in the same hands, we may almost certainly conclude
that it is in an unsound condition, that the feeble cannot
sustain themselves upon it, and that the strong alone can defend
it. Landed property, like moveable property, is only to be found
where it can continue to exist in safety.
There is reason to believe that most tributary lands, even those
which were not originally the property of the cultivators who
laboured on them, became at length by a right of occupancy in
reality their possessions, though burdened by rentals and
exactions of service. This is the natural course of things: it is
very difficult to remove a cultivator who has with his family for
a long time tilled the same soil.
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Different Kinds Of Landed Property.
Such were the vicissitudes of landed property, from the sixth to
the eleventh century. I will now give a summary view of the
general characteristics of this state of things, and endeavour to
estimate their influence on the progress of general civilization,
and more particularly of political institutions.
I. There was a great diversity in the conditions of property. In
our days, the condition of property is uniform and everywhere the
same; whoever the proprietor may be, he possesses his property,
whatever may be its character, on the same tenure of right, and
subject to the same laws as any other. Between properties which
are the most distinct in character, there is thus far an
identity. This is one of the most unequivocal symptoms and safest
guarantees of the progress of legal equality. During the times of
which we have been speaking, the diversified conditions under
which property was held would necessarily lead to the formation
of several classes in society, between which existed great,
factitious, and permanent inequality. Men were not merely
proprietors to a greater or less extent; besides the inequality
in the amount of wealth, there was also an inequality in the
nature of the wealth possessed, than which it is impossible to
conceive of a more powerful instrument for oppression. Even this,
however, was a step in advance out of the slavery existing among
the ancients. The slave could possess nothing,--was essentially
incapable of owning property. In the times of which I am
speaking, the mass of the population had not become full and
absolute possessors of property, but was attaining to a
possession that was more or less imperfect and precarious, by
which it had gained the means of yet loftier ascents.
Isolation Of Proprietors.
II. Landed property was then submitted to the restraints of
dependence on individuals. At present, all property is free, and
is at the disposal only of its owner. General society has been
formed,--the State has been organized,--every proprietor is
united to his fellow-citizens by a multitude of ties and
relations, and to the state by the protection which he receives
from it, and the taxes to which he is subject in return: there
is, thus, independence without isolation.
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From the sixth to the eleventh century, independence was
necessarily accompanied by isolation: the proprietor of an allod
lived upon his lands almost without buying or selling anything.
He owed scarcely anything to a State which hardly existed, and
which could not assure him of an efficient protection. The
condition, therefore, of the allods and their proprietors was at
that time a con that was to a considerable extent anti-social. In
more ancient times, in the forests of Germany, men without landed
properties lived at least in common. When they became
proprietors, if the allodial system had succeeded in becoming
prevalent, the chiefs and their associates would have been
separated, without ever being summoned to meet and recognize one
another as citizens. Society would not have been at all
constituted. It exists in those relations which unite men
together, and in the ties out of which these relations arise. It
necessarily demands a law, a condition of dependence. And when it
is not so far advanced as that a sufficient number of these
relations and ties have been established between the State and
the individual, then individuals become dependent one upon
another; and it was to this state of things that the seventh
century had arrived. It was the imperfection of society which
caused the allodial system in regard to landed property to
perish, and the beneficiary or tributary system to prevail. The
independence of allods could only exist in connexion with their
isolation, and isolation is anti-social. The hierarchical
dependence of benefices became the tie to unite properties with
one another, and society within itself.
Stationary Condition Of Wealth.
III. Out of this distribution and this character of landed
property, a very important fact has resulted; namely, that during
several centuries scarcely any means existed by which either the
state or individuals could increase their wealth. Most
proprietors of any importance did not cultivate the land at all;
it was for them merely a capital, the revenues of which they
gathered without troubling themselves to augment it, or to render
it more productive. On the other side, most of those who
cultivated the land were not proprietors, or were only so in a
precarious and imperfect manner; they did not seek from the earth
more than means of subsistence, and did not look to it as a means
of enriching or elevating them.
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Agricultural labour was almost unknown to the rich, and to the
poor it yielded nothing beyond the bare necessities of existence.
'Hence, resulted the continual impoverishment of the larger
proprietors, which forced them incessantly to have recourse to
violence, in order to preserve their fortune and their rank.
Hence, resulted also, at the same time, that stationary condition
of the population of the country districts which was prolonged
for so long a period. Landed property tended always to become
concentrated, from the very circumstance that its products did
not increase. Accordingly, it is not in the country districts and
in agricultural labour, but in the towns, in their commerce and
industry, that we shall find the earliest germs of the
accumulation of public wealth, and of the progress of
civilization. The indolence of the upper classes, and the misery
of the lower classes, in the middle ages, proceeded chiefly from
the nature and distribution of territorial property.
IV. Beneficiary property was one of the most influential
principles in the formation of large societies. In the absence of
public assemblies and of a central despotism, it nevertheless
established a bond, and formed relations between men dispersed
over a vast tract of country, and thereby rendered possible a
federative hierarchy, which should embrace a still wider circle.
Among the nations of antiquity, the extension of the State was
incompatible with the progress of civilization; either the State
must be dislocated, or despotism would prevail. Modern States
have presented a different spectacle, and to this result the
character of beneficiary property has powerfully contributed.
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Lecture XVI.
Of the state of persons, from the fifth to the tenth century.
Impossibility of determining this, according to any fixed and
general principle.
The condition of lands not always correspondent with that of
persons.
Variable and unsettled character of social conditions.
Slavery.
Attempt to determine the condition of persons according to
the _Wehrgeld_.
Table of twenty-one principal cases of _Wehrgeld_.
Uncertainty of this principle.
The true method of ascertaining the condition of persons.
Classification Of Persons.
We have investigated the condition of territorial properties,
from the fifth to the tenth centuries. We have recognized three
kinds of territorial property. _First_, allodial or
independent; _Secondly_, beneficiary; _Thirdly_,
tributary. If from this we should wish to deduce the state of
persons, we should find three social conditions corresponding to
these: _First_, the free men, or proprietors of allods,
bound to, and dependent upon no one, excepting the general laws
of the state; _Secondly_, vassals, or proprietors of
benefices, dependent in certain respects upon the noble from whom
they held their property, either during life or hereditarily;
_Thirdly_, the proprietors of tributary lands, who were
subject to certain special obligations. To which it is necessary
to add a fourth class, namely, the serfs.
We should observe further, that the first of these classes tended
to disappear and become absorbed in the second, third, and even
the fourth classes. This arose from facts which we have already
explained.
This classification of persons is in fact a real one, and is to
be met with in history; but we must not regard it as a primitive,
general, and perfectly regular classification.
The condition of persons preceded that of lands;--there were free
men before there were freeholds; there were vassals and
associates before benefices. The condition and relations of
persons did not therefore originally depend on the condition and
relations of territorial properties, and cannot be deduced from
them.
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Earliest Condition Of Society.
Historians have fallen into a double mistake on this point. Some
have wished to see in all the Franks, before the conquest, and
the establishment of the system of landed estates, which we have
already explained, men altogether free and equal, whose liberty
and equality for a long time resisted the formation of this
system. Others have been unwilling to recognize men as free,
except as they are beheld in the condition of land proprietors,
whether as allods or as benefices.
The matter is not thus simple and absolute. Social conditions
were not thus framed and disposed of by a single process, to suit
the convenience of subsequent antiquarians.
What do we find to be the character of liberty in the infancy of
societies? Might is its condition, and it has scarcely any other
guarantee. So long as society is of small extent and firmly
compacted within itself, individual liberty remains, because each
individual is important to the society of which he is a member:
this was the case with the German tribes in its warrior bands of
men. In proportion as society extends and disperses itself, the
liberty of individuals is endangered because their personal
strength is insufficient for their own protection. This was
illustrated by the case of the Germans who established themselves
in Gaul. A large number of his associates lived in the house of
the chief, without being themselves proprietors or being anxious
to become so, for which indifference they were indebted to that
want of foresight which is natural to uncivilized men. Property
became a prominent instrument for attaining force, yet many free
men did not possess any.
The progress of civilization removes the guarantee of individual
liberty from the power of the individual himself, and places it
in the power of the community. But the very creation of such a
public power, and the guarantee thereby of individual liberties,
is a gradual and difficult process: it results from a social
culture which is of slow growth and must triumph over many
obstructions. Wherever there is no power belonging to the
community, individual liberties have no guarantee for their
continuance.
Hence the error of those who seek for liberty in the infancy of
societies. We do in fact find it there, but only when society is
quite in its cradle, when each separate individual is
sufficiently strong to be able to defend his own liberty in a
very limited community. But as soon as society rises and extends
itself, we see this liberty perish; the inequality of different
forces manifests itself, and individual power becomes incapable
of preserving individual liberty. This is the birth-time of
oppression and disorder.
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Principles Of Classification.
Such was the condition of the Franco-Roman community, at the
period which we are considering. It seems somewhat puerile to
inquire who was free then; no one was free, whatever his origin
might be, if he was not strong. The real inquiry is, who was
strong--a point which it is exceedingly difficult to determine.
In a fully settled society which has existed for a long time, it
is easy to know who is strong. There is a constant transmission
of properties and of ancient influences; power has permanent
forms, men are classified. We see where strength resides and who
possesses it. But at the time which we are considering, the
various elements of social strength were struggling into
existence;--they scarcely had a being, and they were not
familiarly known, nor stably fixed, or in regular possession of
power;--the violent customs which prevailed rendered property
very moveable;--individual strength was a poor guarantee for
liberty, indeed, it needed itself to be placed in guardianship.
The human mind can hardly believe in disorder, because it cannot
picture clearly to itself such a state of things; it does not
resign itself to the idea; it desires to introduce an order of
its own, in order to discover the light. We must, however, accept
facts as they actually are. We may therefore understand how
difficult it is to exhibit the condition of men, from the fifth
to the tenth centuries; to learn what men were free, and who were
not, and especially what a free man really was in his position
and influence. We shall understand this difficulty still better
when we have attempted to determine the condition of life
belonging to certain positions, according to the different
principles of classification which we may bring to the task. We
shall see that no one principle can be found, by which we can
deduce the state belonging to different positions in a manner
exactly conformable to known facts, and which is not contradicted
at every step by these same facts, or at least shown by them to
be utterly insufficient and untrustworthy.
Let us first apply the principle which is inferred from the state
of landed property.
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Allodial And Beneficiary Proprietors.
The proprietors of allods might seem to be incontestably free
men. An allodial proprietor who had extensive estates enjoyed
complete independence, and wielded an almost absolute sovereignty
throughout his territory, and among his associates.
Large allodial proprietors were sometimes able to remain for a
considerable time in such a position. But it was not certainly
the strongest, nor consequently the most free and fixed
condition; for we have seen that allodial property degenerated
and declined, until almost all the allodial proprietors became
beneficiaries. We have seen how the anger of Etichon was excited.
The general fact is a witness against the life of the allodial
proprietor. His very independence was a cause of isolation, and
therefore of feebleness. The proprietors of allods, wearied with
living on their estates, shut out from all society, used to come
and live with the king or some large proprietor of greater power
than themselves. It was soon a practice to send their children
thither, in order that they might become companions of the
prince, or of some distinguished noble.
As to the smaller allodial proprietors, they could not keep their
standing long; they were not strong enough to defend their
independence. The records of the period show that their property
was soon alienated, and at the same time many of them became
merely cultivators of the lands. The condition of the freeholder
thus became merged in that of the tributary. From thence there
was but one step to a total loss of liberty. This step was
actually taken by a large number of allodial proprietors--wearied
out or ruined, they surrendered their liberty into the hands of
proprietors more wealthy and powerful than themselves.
We come now to the beneficiaries.
Benefices originated large individual resources;--in them we find
the source of the feudal aristocracy;--large beneficiaries became
in time powerful nobles. But we must not from this conclude that
the possession of benefices was, during the period we are
considering, any security for a permanent social position, to
which power and liberty necessarily belonged. _First_, this
possession was precarious, moveable, attacked, in the case of the
smaller beneficiaries, by the larger ones, and in the case of the
latter by the king.
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Beneficiary property hardly began to possess any fixity at the
close of the ninth century. _Secondly_, a number of small
benefices were conferred on individuals too weak efficiently to
defend their position and their liberty. In order to secure the
services of a man who was not a slave, a benefice was given to
him--it was therefore a grant for the support of a retainer. The
land itself was given for this purpose, as well as its
productions. The benefices given to Charlemagne's stewards and
the keepers of his horse were actual benefices, and not, as M. de
Montlosier thinks, tributary lands. We are not then in a position
to say that the rank of a beneficiary was the sign of a
definitely marked social position, nor that it could measure the
degree of importance and of freedom that belonged to individuals.
Various Classes Of Free Men.
When we have mentioned the allodial proprietors and the
beneficiaries, it might be thought that the class of freemen is
exhausted. Such is not, however, the case. There were different
classes of possessors and farmers of tributary lands, known under
various names; such as _fiscalini, fiscales, tributarii,
coloni, lidi, aldi, aldiones,_ &c. These names do not all
designate different conditions, but divers shades in conditions
substantially the same. There were: _First_, free men, at
once allodial proprietors and cultivators; _Secondly_, free
men, both proprietors of benefices and cultivators;
_Thirdly_, free men, neither properly freeholders nor
beneficiaries, and cultivators; _Fourthly_, men not free, to
whom the hereditary possession of tributary land had been granted
on the payment of certain fees and services; _Fifthly_, men
not free, who only enjoyed the permanent occupancy of tributary
land. Here again we cannot find any general and fixed social
condition which shall determine what were the rank, the rights,
and other qualifications of the individuals belonging to it. We
are mistaken if we imagine either that every proprietor was free,
or that every free man was a proprietor. We find that the
cultivators of lands under the king harassed and oppressed the
smaller allodial proprietors who resided in their vicinity, and
were too feeble to oppose any effectual resistance, although they
were Franks.
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I need only mention slaves, in order to observe that many free
men fell into this state of servitude by means of violence, and
through an uncertainty in property which involved a corresponding
uncertainty in position. Sometimes one man would surrender
himself to his more powerful neighbour, and at the same time
completely abandon his liberty. The surrender, however, was
sometimes not an entire renouncement of liberty, although it was
alienated for life, or a sum was agreed upon to be paid if the
engagement should be broken.
Test Of Social Conditions.
It is evident that we cannot derive, from the state and the
distribution of territorial properties, any true and fixed table
of different social conditions, and of the importance of the
rights belonging to each. These conditions were too undefined,
too different, while nominally identical, and too fluctuating, to
give us a standard to measure the amount of liberty possessed by
each man and the place he occupied in society. The state of
persons was almost individual; the measure of the importance of
any individual was determined by the particular amount of
strength which might belong to him, much more than by the general
position which he apparently occupied. Individuals constantly
passed from one condition into another, neither losing all at
once every characteristic of the position which they left, nor
assuming at once every characteristic of that upon which they
newly entered.
Let us apply another principle.
The Wehrgeld
Attempts have been made to determine the condition of
individuals, and to classify men according to the
_wehrgeld;_ that is to say, according to the sum by which a
man might compound for the commission of a murder, which was
consequently the measure of the valuation of different lives.
Shall we find here any more certain and unvarying principle by
which social conditions may be classified?
I have made an abstract of all the cases of _wehrgeld_
stipulated in the Barbaric laws. I will not enumerate them all,
but will bring before you twenty-one of the principal, ranging
from the sum of 1800 _solidi_, the largest value that was
legally placed on any man's life, down to 20 _solidi_.
The _wehrgeld_ amounted to:--
1800 sol. _(solidi_): for the murder of a free barbarian,
a companion of the king (_in truste regiâ_), attacked and
killed in his house by an ...
960 sol.: 1st. the duke, among the Bavarians; 2nd. the bishop,
among armed band, among the Salian Franks, the Germans.
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900 sol.: 1st. the bishop, among the Ripuarian Franks; 2nd. the
Roman, _in truste regiâ_, attacked and killed in his own
house by an armed band, among the Salian Franks.
640 sol.: the relatives of a duke, with the Barbarians.
600 sol.: 1st. every man _in truste regiâ_, with the
Ripuarians; 2nd. the same, with the Salian Franks, 3rd. the
count, with the Ripuarians; 4th. the priest, born free, with
the Ripuarians; 5th. the priest, with the Germans; 6th. the
count, with the Salian Franks; 7th. the _Sagibaro_ (a kind
of judge) free, _ibid._; 8th. the priest, _ibid_.;
the free man attacked and killed in his own house by an armed
band, _ibid_.
500 sol.: the deacon, with the Ripuarians.
400 sol.: 1st. the sub-deacon, with the Ripuarians; 2nd. the
deacon, with the Germans; 3rd. the same, among the Salian
Franks.
300 sol.: 1st. the Roman living with the king, with the Salian
Franks; 2nd. the young man brought up in the service of the
king, and those who had been enfranchised by the king, and made
counts, with the Ripuarians; 3rd. the priest, among the
Bavarians; 4th. the _Sagibaro_ who had been brought up in
the court of the king, with the Salian Franks; 5th. the Roman
killed by an armed band in his house, _ibid_.
200 sol.: the free-born clerk, with the Ripuarians; 2nd. the
deacon, with the Bavarians; 3rd. the free Ripuarian Frank; 4th.
the German of the middle classes; 5th. the Frank or Barbarian,
living under Salic law; 6th. the travelling Frank, with the
Ripuarians; 7th. the man who had become enfranchised by
purchase, with the Ripuarians.
160 sol.: 1st. the free man in general, among the Germans; 2nd.
the same, with the Bavarians; 3rd. the Burgundian, the German,
the Bavarian, the Frison, the Saxon, with the Ripuarians; 4th.
the free man cultivating ecclesiastical property, with the
Germans.
150 sol.: 1st. the _optimus_, or noble Burgundian, killed
by the man whom he had attacked; 2nd. the steward of a royal
domain, with the Burgundians; 3rd. the slave who could work
well in gold, _ibid_.
100 sol.: any man belonging to the middle classes (_mediocris
homo_) with the Burgundians, killed by the person whom he
had attacked; 2nd. the Roman possessing personal property, with
the Salian Franks; 3rd. the Roman while travelling, with the
Ripuarians; 4th. the man in the service of the king, or of a
church, _ibid_.; 5th. the planter (_lidus_) by two
charters of Charlemagne (an. 803 and 813); 6th. the steward
(_actor_) of a domain belonging to any but the king, with
the Burgundians; 7th. the slave, a worker in silver,
_ibid_.
80 sol.: those enfranchised in presence of the church, or by a
special charter, with the Germans.
75 sol.: any man of inferior condition (_minor persona_),
with the Burgundians.
55 sol.: the barbarian slave employed in the personal service
of a master, or as a bearer of messages, with the Burgundians.
50 sol.: the blacksmith (slave), with the Burgundians.
45 sol.: 1st. the serf of the church and the serf of the king,
with the Germans; 2nd. the tributary Roman, with the Salian
Franks.
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40 sol.: 1st. one merely enfranchised, with the Bavarians; 2nd.
the herdsman keeping forty swine, with the Germans; 3rd. the
shepherd over eighty sheep, _ibid_.; 4th. the seneschal of
the man who has twelve companions (_vassi_) in his house,
_ibid_.; 5th. the marshal who kept twelve horses,
_ibid_.; 6th. the cook who has an assistant
(_junior_), _ibid_.; 7th. the goldsmith,
_ibid_.; 8th. the armourer, _ibid_.; 9th. the
blacksmith, _ibid_.; 10th. the cartwright, with the
Burgundians.
36 sol.: 1st. the slave, with the Ripuarians; 2nd. the slave
who had become a tributary planter, _ibid_.
30 sol.: the keeper of swine, with the Burgundians.
20 sol.: the slave, with the Bavarians.
Impossibility Of Classification.
We see by this table, that, notwithstanding the common opinion to
the contrary, the _wehrgeld_ is by no means an exact and
certain indication of social conditions. It is not determined
uniformly according to the origin, the quality, the position of
individuals. The circumstances of the murder, the official
character of the criminal, the greater or less usefulness or
commonness of the man slain, all these variable elements enter
into the determination of the _wehrgeld_. The simple fact of
the murder having been committed at the court of the duke, while
the victim is going to or returning from the house of the count,
triples the _wehrgeld_ of every man, whether he be a slave
or a freeman, a Barbarian or a Roman. The elements of the
_wehrgeld_ are very numerous; it varies according to places
and times. The Roman, the tributary, the slave, according to
circumstances, may be valued at a greater or a less sum than a
barbarian free man. We see many general indications which serve
to show that the Roman was commonly less esteemed than a
barbarian, the tributary or the slave less than the free man.
This is very easily accounted for, and might have been
anticipated. But it is not on this account less difficult to draw
from such facts a positive indication of the state of
individuals,--a precise and complete classification of social
conditions.
True Test Of Social Conditions.
There is no resource left but to renounce the idea of classifying
social conditions, and of determining the condition of persons,
according to any general principle, resting either on the nature
of territorial properties, or in the legal appreciation of the
value of different lives. We must simply inquire, by the aid of
historical facts, who were the strong and powerful at the time;
what common name was given to them; what share of influence and
of liberty fell to the lot of those who were simply called free
men.
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We shall thus arrive at clearer and more certain results. We
shall often find that landed property is a great and principal
source of strength, and that the _wehrgeld_ is an indication
of the amount of importance or of liberty possessed by
individuals; but we shall not attribute to these two principles a
general and decisive authority, and we shall not mutilate facts
in order that they may harmonize with our hypotheses.
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Lecture XVII.
Of the _Leudes_ or _Antrustions_.
Men, faithful to the king and to the large proprietors.
Different means of acquiring and retaining them.
Obligations of the _Leudes_.
The _Leudes_ are the origin of the nobility.
Bishops and heads of monasteries were reckoned among the
_leudes_ of the king.
Moral and material power of the bishops.
Efforts of the kings to possess themselves of the right of
nominating bishops.
Free men.
Did they form a distinct and numerous class?
The _arimanni_, and _rathimburgi_.
Mistake of M. de Savigny.
Rapid and general extension of the feudal hierarchy.
The freedmen.
Different modes of enfranchisement:
_First_, the _denariales_, enfranchised with
respect to the king:
_Second_, the _tabularii_, enfranchised with
respect to the church:
_Third_, the _chartularii_, enfranchised by a
charter.
Different consequences resulting from these different modes
of enfranchisement.
The Leudes Or Antrustions.
The first whom we meet with at this time occupying the highest
place in the social scale are the _Leudes_, or
_Antrustions_. Their name indicates their
quality--_trust_ expresses fidelity. They were men who had
proved faithful, and they succeeded the associates of the German
chiefs. After the conquest, each of the chiefs established
himself, together with his own men, on a certain territory. The
king had a larger and more considerable number of followers. Many
remained with him. He had different means, which he very
assiduously employed, of attaching to himself his Leudes, or of
acquiring them.
1st. This was evidently the result aimed at in conferring
benefices. In 587, Gontran, giving his advice to Childebert II.
on his conduct to those who were about him, points out to him
"those whom he ought to honour by appointments and by gifts, and
those to whom he ought to refuse them."
2nd. The organization of the house, the palace, the court,
borrowed in part from the traditions of the Roman empire, the
passing amusements and the permanent advantages which were
attached to them, induced many men of influence to become Leudes,
or gave importance to the original Leudes of the king. The
following are names of some of their offices; "count of the
palace, referendary, seneschal, mareschal, falconer, butler,
chamberlain, porter, head-porter, &c."
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Obligations Of The Leudes.
3rd. Marculf has preserved to us the formula by which a man of
importance, _cum arimanniâ suâ_, "with his freemen, his
band," was accustomed to enrol himself among the king's Leudes.
Charlemagne took various precautions in order that persons who
came to him in order to become his trusty followers (_de truste
faciendâ_), should meet with no obstacle.
4th. It was to their Leudes that the kings were in the habit of
giving important public occupations, such as belonged to dukes,
counts, &c. There is reason for believing that these functions
originally belonged to the principal chief who established
himself in a territory. In the natural course of events these
chiefs became themselves Leudes of the king or were supplanted by
those who were such.
5th. The number of Leudes was the principal source of strength;
accordingly they were multiplied by all kinds of devices. In 587,
in the treaty of Andely, between Gontran and Childebert II, "it
was agreed that neither of them should attempt to draw over to
himself the Leudes of the other, or receive them if they came of
their own accord." We continually find Leudes of importance
threatening the king to leave his service, and enter into some
other.
The general obligation of the Leudes was fidelity, service in the
palace, and military service. The price of this obligation was,
for the Leudes, power and riches. They had also certain civil
advantages, but of a more uncertain nature. Their _wehrgeld_
was a larger amount, whatever might otherwise have been their
origin. We see that their prerogatives accumulated in proportion
as their power was consolidated by the long possession of
benefices. Charlemagne desired that his vassals should be
honoured, and should hold, after himself, the first place in
esteem. There were however among the Leudes of the king some who
were less powerful, and some who even were poor.
Every large proprietor had his Leudes; his house was organized
after the model of the king's; the same offices existed in each.
It is the opinion of Montesquieu, who is in this opposed by
Montlosier, that the origin of the nobility is to be found in the
Leudes. Neither of them has formed, in my judgment, a just and
clear idea either of the condition of the Leudes or of the
character of the nobility. The rank of the Leude and his
advantages were purely of a personal character.
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The rank of a free Barbarian was hereditary, as were also his
advantages: but the rank of the Leude, that is to say, the
advantages and the superiority which he derived from his
position, tended to become hereditary; that of the free man, on
the other hand, tended, when he was isolated and left to himself,
to become effaced and to lose its advantages. Most free men who
did not become beneficiaries, vassals, Leudes of some importance,
ceased to be free at all. The aristocracy of the Leudes tended to
be constituted, the liberty of the free men tended to be
destroyed:--the free men were, viewed in contrast with those who
were not free, an aristocracy on the decline; the Leudes were,
compared with free men, an aristocracy on the increase.
Formation Of The Frankish Nobility.
Mannert, in his treatise entitled, _The liberty of the Franks,
Freyheit der Franken_, has very clearly explained the
formation of the nobility among the Franks. There were many Roman
Gauls among the Leudes of the Frankish kings: we find, for
example, the names of _Protadius, Claudius, Florentinianus,_
among the mayors of the palace towards the close of the sixth,
and the commencement of the seventh century. They often changed
their names into barbaric names. Thus the brother of Duke Lupus,
born a Roman, called himself _Magn-Wulfus _(great wolf), and
his son, who was bishop of Rheims, he called _Rom-Wulfus_
(Roman wolf). These Romans entered into the company of the Leudes
because they needed the protection of the kings; because they
were disposed to place what power they had in his service;
because they were acquainted with the country, and knew that the
king required them; because, lastly, the kings, when they
embraced Christianity, became reconciled to many wealthy and
influential Gauls.
Bishops, and the principal heads of monasteries, or of large
ecclesiastical corporations, were reckoned among the number of
the king's Leudes. The power of the bishops among the Gauls,
before the arrival of the Germans, is proved directly by facts;
their influence, their wealth, is proved indirectly by the
eagerness with which the position of a bishop was sought. Their
importance was greatly augmented after the establishment of the
Barbarians. They protected the ancient inhabitants from the
Barbarian kings, and served the latter by their power in
governing the ancient inhabitants.
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Power Of The Bishops.
They, and scarcely any but they, had preserved some science, some
intellectual culture; the influence of religious ideas and
practices over the converted barbarians was powerful; the
impressions formed were strong and vivid at that stage of
civilization: the clergy could excite the imagination, could
tranquillize or alarm the conscience. The bishops and heads of
monasteries acquired, through a large number of sources, great
wealth; they in process of time became large beneficiaries; most
of the property given to churches were given as benefices, and
consequently involved the obligations belonging to that title;
some property was conferred "with the complete right of
proprietorship." In 807, Charlemagne charged his son Pepin to
prevent the dukes and counts to whom the government of the
provinces had been committed, from exacting from churches all the
services due in general from free men. In 816, Louis the
Debonnair provided that each church should possess a farm
absolutely free from all charge. Facts disclose at every step the
importance of the bishops; they were employed in important
transactions, and assisted in drawing up laws. Counts, dukes,
large Barbarian proprietors, became bishops. The temporal
consequences attached to ecclesiastical excommunication did not
fail to put into their hands a powerful weapon of attack or
defence. Churches obtained immunities of all kinds, from military
service, rights of custom, &c.; they became asylums of refuge--a
popular right which, during these times of brute violence, far
more generally protected the innocent than shielded the guilty.
The nomination of bishops was an ancient right of the priests and
the faithful. The importance of these functions, and the riches
of the churches, induced the king to encroach upon this
prerogative. Further, they urged some kind of claim to it, as
being lords of the churches on which they had conferred
benefices. They used the right of confirmation in order to
possess themselves of the right of nomination. At first, bishops
were the most sure and devoted Leudes of the king; kings and
bishops had need of one another. Very soon afterwards the bishops
became so powerful as to be able to act independently of the
kings.
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At this epoch convents also assumed great importance, although
their heads do not seem to have played so prominent a part in
Prance as in England.
Upon the whole, the power of the clergy at this period was as
useful as it was great. It awakened and developed moral
necessities among the Barbarians;--it commanded and inspired a
respect for the rights and sufferings of the feeble;--it gave an
illustration of the reality of moral force, when everything was
at the disposal of material force. That is a false notion which
assumes that an institution or an influence is to be attacked by
reason of the evil effects which it may produce after centuries
of existence; we must consider and appreciate it in the times
when it was originally formed.
Free Men.
From the Leudes, let us pass to those who were simply free men.
There are words which have, in our time, so simple and absolute a
signification, that we apply them without consideration or
scruple to times in which their actual significance was not
recognized at all. The expression _free man_ is an example.
If by it we mean the man who is not a slave, the man who is not
the property of another man, and can neither be given nor sold as
an article of traffic, there were a great number of free men from
the fifth to the tenth centuries. But if we attach to this
expression the political sense which it possesses in our days,
that is to say, the idea of a citizen dependent on no other
citizen, who depends for the safety of his person and his
property only upon the state, and the laws of the state, the
number of free men was very inconsiderable at the period of which
we speak, and was continually diminishing. Most of those who were
not serfs were engaged or were binding themselves with increasing
frequency, either for the security of their persons or of their
properties, to the service, and to a certain amount of dependency
upon some man more powerful than themselves, who employed them in
his house or protected them at a distance. The independence of
the citizen as it existed in the republics of antiquity, and as
it exists in our public communities, became more and more rare
from the fifth to the tenth centuries. Eminent publicists, M. de
Savigny among others, in his _Histoire du droit romain dans le
moyen âge_, have affirmed that always at this period a
numerous class of free men existed, true citizens, exempt from
all personal dependence, depending only upon the state and
forming the body of the nation.
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This involves a complete confusion of times' and a
misapprehension of the natural succession of events. Doubtless at
the time of the invasion, and during the period which immediately
followed it, there were many free men of this kind; the
independence of individuals who live a wandering and barbarian
life did not suddenly and completely vanish under the influence
of the new circumstances which resulted from their territorial
establishment. But, so far as regards the greater number of free
men, this independence was rapidly absorbed by new ties, and by
the very numerous and various forms of feudal hierarchy. We may
think we have found, under certain names which are frequently to
be met with in documents and historical works, such as,
_Arimanni, Erimanni, Herimanni, Hermanni_, among the
Lombards, and _Rachimburgi, Rathimburgi, Regimburgi_, among
the Franks, a class of men actually free--citizens in the sense
in which we use the words at the present time. But when we
investigate more closely, we soon learn that no such class is to
be found, and that nearly if not quite all the _Arimanni_ or
_Rathimburgi_, were bound in the fetters of a feudal
organization and depended far more on some superior individual
than on the protection of the state.
Enfranchisement.
Many learned men also think that the practice of enfranchisement
which prevailed at this period created many free men--as
completely so, as if they had inherited their freedom as a
birthright. This also is, I think, a mistake. Enfranchisement was
frequent, but it conferred complete freedom on very few; it
transformed many into cultivators and tributaries, or placed them
in other analogous positions, which however did not insure entire
liberty. In order to be convinced of this, we have only to
examine the acts of enfranchisement themselves. There were
several kinds, and each was attended with different consequences.
We find, _First_, the _denariales_, or enfranchised
with respect to the king; although their life was valued at 200
_solidi_, like the life of a Frank, yet their liberty was
incomplete; they could not bequeath property to others than their
children; the composition for their lives was paid to the king,
not to their relatives, which plainly shows that the king
regarded them, as _homines regii_. _Second_, those
enfranchised with respect to the church, or _tribularii_.
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Those thus enfranchised became _homines ecclesiastici;_ they
could not become _denariales_ according to the laws of the
Ripuarians, and their property went to the church if they died
without issue. _Third_, those enfranchised _per chartam,
chartulari_i. The expressions of the charter which gave them
their liberty seem to be completely unambiguous; but it is
doubtful whether the results were similarly unambiguous, since
the _denariales_ themselves remained, in certain respects,
in an inferior condition. The statutes of Charlemagne, which
provide that the terms of composition for the _denariales_
should be paid to the king, and that they should not possess
their liberty as a heritage till after the third generation,
apply the same conditions also to the _chartularii_, and
even to those who were enfranchised to the church, the
_tabularii_.
The act and the consequences of enfranchisement varied in the
course of the epoch on which our attention is occupied. This fact
has not been observed by M. Montlosier and all those who bring
together facts separated from one another by a long interval of
time, in order to make a complete system. They apply to the same
epoch facts belonging to different times. History presents us
with instances of slaves who, after the Germanic invasion, raised
themselves to the condition not only of free men, but of Leudes
and large proprietors. Individual cases of these are well
authenticated, and were very likely to have occurred in these
times of disorder; but from these no general rule is to be
inferred. In spite of the vast influence of religious ideas--and
all formulas of enfranchisement are prefaced by the expression of
a religious sentiment and design--the general movement of the
epoch which we are considering, so far as regards the condition
of persons, was much more towards the extension of servitude,
under different forms and in varying degrees, than towards the
maintenance or the advancement of liberty.
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Lecture XVIII.
Simultaneous existence of three systems of institutions, after
the settlement of the Franks in Gaul.
Conflict of these three systems.
Summary of this conflict, its vicissitudes, and results.
Its recurrence in local and central institutions.
Of local institutions under the Frankish monarchy.
Of the assemblies of free men.
Of the authority and jurisdiction of the great landowners in
their estates.
Of the authority and jurisdiction of the dukes, counts, and
other royal officers.
Three Systems Of Institutions.
From the ancient condition of the barbarians in Germany, and from
their new situation after their establishment in the Roman
empire, there issued three systems of institutions, of different
principles and results, which, from the fifth to the tenth
century, co-existed at first for some time, and afterwards
commingled and conflicted with each other with alternate success
and defeat.
In their primitive state, in Germany, the Barbarians were all
free; every individual was important--nothing of any moment could
be undertaken or decided upon without the approbation and
concurrence of the majority. Hence arose the common discussion of
affairs of common interest, and the influence of election upon
the choice of chiefs or judges or in other words, the
institutions of liberty.
The second principle with which we meet is the attachment and
subordination of the tribesmen to their chief. Up to a certain
point they were dependent upon him, even for their subsistence.
This dependence increased after their territorial establishment.
The authority of the chiefs over their comrades augmented; and
the liberty of the latter diminished with their importance. They
became beneficiaries or vassals, colonists, or even serfs; a
hierarchy was formed among the landowners. Hence arose those
aristocratic and hierarchical institutions which gave birth to
the feudal system.
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The power of the kings, originally very limited, became extended
after conquest by the dispersion, of the nation, the concession
of benefices, and the predominance of the principle of hereditary
succession to the throne. A conflict arose, not between the power
of the king and the liberties of the citizens, but between the
power of the king and that of the nobles, especially of the
king's own Leudes. The kings made attempts to found the entire
government upon the monarchical principle, and, with this object,
to place themselves in direct connexion with all their subjects.
Under Charlemagne, this attempt reached its apogee, and seemed
likely to succeed. But the monarchical system succumbed beneath
the feudal system.
Thus, free institutions, aristocratic institutions, monarchical
institutions:--local and general assemblies of free men to
deliberate on common affairs, military, judicial, or others, in
presence of or in concert with the king or his delegates:--the
subordination of the simple free man to the lord, of the vassal
to the chieftain; the nobles administering justice, making war
with each other, and imposing certain charges on their vassals;
the progressive organization of the royal power; dukes, counts,
royal officers, _missi dominici_, transacting public affairs
and administering justice, even in opposition to the
nobles:--these are the three systems of facts, the three
tendencies which present themselves to our notice during the
period from the fifth to the tenth century. The conflict of these
three tendencies constitutes the history of the public
institutions of this epoch.
Decline Of Free Institutions.
The system of free institutions rapidly declined. It succumbed
beneath the system of the predominance of the great landowners,
and of the hierarchy of benefices. A conflict arose between the
principles of the feudal system, and the endeavours of the
monarchical system. In the conflict of these two systems,
however, we find remnants of the system of free institutions.
These remnants were allied sometimes to the feudal, sometimes to
the monarchical system--most frequently to the latter.
Charlemagne attempted to render the institutions of liberty
auxiliary to the triumph of the monarchical system. We observed
something analogous to this in the history of the Anglo-Saxons;
but there the system of free institutions never perished; the
common deliberation of the free landowners, in the county-courts,
always subsisted. Among the Franks, the simultaneity and conflict
of the three systems were more distinct and animated; the first
was the weakest and perished early.
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In treating of the Franks, as of the Anglo-Saxons, we shall first
examine their local institutions, and then their general
institutions; and we shall everywhere meet with the great fact to
which I have just alluded. We shall follow it in its
vicissitudes, and we shall see, first, how the system of free
institutions perished, in localities and at the centre; secondly,
how the monarchical system was for a moment really successful and
strongly predominant under Charlemagne alone; and thirdly, how
the feudal system, that is to say, the aristocratic and
hierarchical organization of territorial properties and
sovereignties, could not but prevail, as it really did in the
end.
Of Local Institutions.
In Frankish Gaul, as among the Anglo-Saxons, the territory was
divided into counties, hundreds, and tythings. [Footnote 14]
[Footnote 14: That is, of course, districts analogous to
these divisions.]
The counts were called _grafen, judices;_ the centeniers,
_centgrafen;_ and the tything-men, _tungini,
thingrafen._ Each of these officers held a court, _placitum,
mallum,_ at which justice was administered, and the business
of the district transacted. This court was at first an assembly
of all the free men of the district; they were bound to attend,
and a heavy fine was imposed as the penalty for non-attendance.
There, as I have said, they distributed justice, and deliberated
upon matters of common interest. Civil transactions, sales,
wills, enfranchisements, were carried on in public. There, also,
military convocations were made. The court or _plaid_ of the
tything-man, _decanus_, is seldom met with, and was of
little importance, as in England. The powers of the courts or
assemblies of free men, held by the _centenarii_ and
_vicarii_ were somewhat limited; judgments could not be
given upon questions involving property or personal liberty,
unless it were in presence of the imperial envoys or the counts.
Such were the free institutions and the meetings for common
deliberation, of separate localities. These primitive
_plaids_ correspond to the ancient assemblies of the Germans
in Germany.
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Besides the _plaids_ of freemen, appears the jurisdiction of
the nobles or important landowners over the persons who dwelt on
their domains. The chieftain distributed justice to his comrades,
or, as they had now become, his colonists. His jurisdiction was
not, however, altogether arbitrary; his comrades were his
assessors in his court. The _conjuratores_, who attested the
truth of the facts stated, almost entirely settled the affair. If
we consider these institutions in their origin, we find that the
seignorial courts of justice, although obscure and somewhat
inactive, existed simultaneously with the assemblies of freemen,
exempt from the circumscription and jurisdiction of the officers
of the crown. The jurisdiction of the churches was derived from
the jurisdiction of the seigneurs, and both were exercised in
virtue of the proprietorship of the domain, which rendered the
landlord the patron of its inhabitants.
Rudiments Of Feudalism.
These are the first rudiments of that feudal organization which,
by establishing the authority and jurisdiction of the seigneur
over his tenants, vassals or colonists, constantly tended to
destroy the authority and jurisdiction of the assemblies of free
men. A conflict began between the feudal principle of
hierarchical subordination, and the principle of the union of
equals in common deliberation. This conflict commenced as early
as the beginning of the epoch which now occupies our attention.
Let us now examine how the royal power was exercised in separate
localities during this period. The dukes, counts, centeniers, and
others, were probably at the outset, as I have already observed,
not mere delegates of the king, but the natural chieftains, the
most powerful and extensive landowners. It is quite erroneous to
believe that, originally, a county corresponded to what is now
called a department, and that the king appointed and sent a count
to govern it as he now sends a prefect. The king, the head of the
nation, naturally directed the most important man in the district
to convoke together the free men of the district for military
purposes, and to collect the revenues of the royal domains; and
this person thus received a sort of appointment from the king.
The increasing importance of the palace and court of the
kings--the influence of Roman institutions and ideas, at length
made this appointment the source of a title. The counts became
Leudes, and _vice versâ_, the Leudes became counts.
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During a considerable period the hereditariness of these officers
was not recognised. Some antiquaries even are of opinion that
these employments were given for a fixed time only. There is more
reason to believe that this point was not definitely determined,
and that, in fact, these offices were long unlimited as to their
duration, and always transferable; numerous instances can be
brought in support of this theory. The Frankish kings frequently
allowed the natural chieftains of the countries which they
conquered to retain their former position and ancient rights.
Thus the Bavarian dukes were hereditary. When Louis the Debonnair
received the Spaniards into the south of France, he permitted
their counts to retain their titles and jurisdiction.
Dukes And Counts.
The title of count become an object of ambition on account of the
advantages connected therewith. The count possessed great power,
a share of the fines, _freda_, and immense facilities for
acquiring property in the district under his jurisdiction. These
offices also supplied the kings with means for enriching their
Leudes, or obtaining new ones. Under the Merovingians, perpetual
instability prevailed in respect to these offices as well as to
benefices; they were obtained by presents or purchased by money.
Nevertheless, the office of count was frequently transmitted from
father to son; this was natural, and usage could not fail to
precede right; the count or duke, being almost always an
important personage in his canton or town, independently of his
office, his son, who succeeded to his importance, succeeded
frequently to his office also.
Some writers have affirmed that there was a great distinction
between the dukes and the counts; it has even been asserted that
each duke had twelve counts under his orders. No such regularity
existed in local administration. We meet with some counts equal
in power to dukes; among the Burgundians, for example, some
counts ruled over several provinces. We may say, however, that in
general the duke was superior to the count. We may even presume
that, originally, the office of duke was military, and that of
the count, judicial; although the two missions frequently appear
confounded. A formula of Marculf assimilates the dukes, counts,
and patricians. The margraves were the counts of the marches or
frontiers. The men of the court, the delegates of the king,
finished by being counts everywhere.
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Thus there co-existed the three systems of institutions which I
have mentioned: 1. the assemblies of freemen, having authority
and jurisdiction; 2. the great landowners, whether beneficiary or
allodial, lay or ecclesiastical, proprietors--having authority
and jurisdiction; 3. the administrators or delegates of the king,
having authority and jurisdiction.
Extension Of Seignorial Jurisdiction.
In the midst of the disorders of the Merovingian race, we find
that the assemblies of free men rapidly declined. Most of the
free men ceased to attend. Some became powerful enough to aim at
independence, others became so weak as to lose their freedom. The
common deliberation of free men disappeared. The principle of the
subordination of the individual to the individual, in virtue of
protection, vassalage, patronage, or colonage, prevailed.
Seignorial jurisdictions, both lay and ecclesiastical, became
extended. Their extension and consolidation were the necessary
consequence of the extension and consolidation of benefices. The
diminution of the number of allodial estates, the increase of
tributary lands, and the corresponding changes which were
introduced into the condition of persons, necessarily removed the
greater number of justiceables from the jurisdiction of the
assemblies of free men and from that of the king. Even the care
which was taken by the first Carlovingians to compel the
seigneurs to administer justice, and to control their
administration of it, proves the progress of this kind of
jurisdiction.
The liberty allowed to every man to live under any law he
pleased, could not but contribute also to this result; it tended
to disperse society, for it placed men under the jurisdiction of
those who had their own private code of laws; and thus it opposed
union, and common deliberation. It was a kind of liberty,
doubtless--a liberty necessary in the state of society which then
existed; but this liberty, like almost all other liberties at
this period, was a principle of isolation.
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Lecture XIX.
Government of Charlemagne.
Apparent revival of free institutions.
Individual independence and social liberty.
Organization of monarchical power under Charlemagne.
His active surveillance over his vassals and agents.
Rapid decline of monarchical institutions after his death.
Definitive predominance of the feudal system.
Central institutions during the same epoch: royalty.
Causes of the progress of royalty, and of the principle of
hereditary succession among the Franks.
Influence of the clergy.
Two Meanings Of Personal Liberty.
After the Merovingian anarchy, at the accession of the
Carlovingians and especially during the reign of Charlemagne, two
facts, which seem contradictory, present themselves to our
notice. Free institutions appear to gain new life, and at the
same time the monarchical system evidently prevails. We must
closely study this singular coincidence, and endeavour thoroughly
to understand its causes.
There are two ways in which we may understand a man's personal
liberty; first, as the independence of the individual having no
law but his own will; and secondly, as the enfranchisement of
every individual from every other individual will, which is
contrary to reason and justice.
Liberty, if taken in the first sense, is barbarous and
anti-social; it is the infancy, or rather the absence, of
society. The word _society_ itself indicates the union of
individuals in one common idea, feeling, and interest. Society
can exist only by the obedience of individuals to one common
rule. If the liberty of each man constitutes his only law, if
every restriction to the independence of individual will is
considered illegitimate, society is impossible. The law which
should rule society, according to truth and justice, is exterior
to and independent of individual wills. The object of society is
to discover this superior law, and to exact obedience to it
alone; but to this law obedience must be given; society is
possible only by the reign of brute force, or by the government
of true law. If the independence of the individual is regarded as
the condition of liberty, we may be certain that force will
become the dominant power of society, for society there must be;
it is an imperious necessity of human nature; and this necessity
will receive its gratification from force, if it cannot obtain it
from justice and reason.
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Object Of Government.
The object of government, then, is twofold; it proposes, first,
to seek out and discover the true law which must decide all the
questions to which social relations give rise, and to subject to
this law all adverse individual wills; and secondly, to prevent
individuals from being subjected to any other laws but the true
law, such, for example, as the arbitrary will of other more
powerful individuals. Good and true government, then, does not
say to every individual: "Thou shalt be subject only to thy own
caprice," for on these terms there could be no society, and no
government; but it says: "Thou shalt be subject, not to the
caprice of any other individual, but only to reason and justice."
The progress of civilization consists, on the one hand, in
extending the authority of reason over all individuals, and in
neglecting no means to convince their individual reason and to
render their obedience voluntary; and, on the other hand, in
limiting the sway of the arbitrary will of individuals over one
another. Where the arbitrary will of one or more individuals
prevails, legitimate liberty does not exist; where the isolated
independence of every individual is maintained, society is
impossible.
The importance of this distinction between moral and natural
liberty, between social freedom and individual independence, is
immense. It would be easy to demonstrate its intimate connexion
with the true theory of liberty, considered in relation to man
personally, and independently of society. It is as a reasonable
being, capable of recognizing truth, that man is sublime; therein
resides the divinity of his nature: liberty is in him nothing but
the power of obeying the truth which he recognises, and making
his actions conform thereto. On this ground, liberty is very
respectable; but liberty is respectable on this ground alone.
Origin Of Despotism.
In the infancy of society, the liberty which almost all men
desire and defend, is natural liberty--liberty to do nothing but
what they please. This is caused by the imperfection of the moral
development of each individual, and by the imperfection of the
same development in the social powers; from which imperfection it
results that these powers ill-understand the true law, never
apply it, and are themselves directed by individual wills, as
arbitrary as they are capricious.
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On this account, the state of freedom with which we meet at the
outset of all societies lasts for so short a time, and is so
quickly superseded by the despotism of one or several persons.
Society cannot exist if natural liberty, that is, individual
independence, exists in all the extent of its desire: and as
society is as yet ignorant both how to govern according to the
moral law, and how to respect moral liberty, force seizes upon
the government.
When, in such a state of society, a man of superior genius and
character appears, he is inevitably driven to found a despotism,
that is, the empire of his own individual will. He is irritated
and offended by the collision of all these barbarous or stupid
individual wills; his instinct tells him that society cannot
exist in this manner, that such a state of things is not society.
He is personally disgusted, moreover, at the sway which all these
narrow and ignorant wills claim to exercise over all things, and
even over himself. The authority of blind force over enlightened
force is nothing but a despotism; and what is greater insolence
than the power of a brutal multitude over a lofty individual
reason? The superior man becomes indignant and seeks to free
himself from this yoke, to impose some rule upon this disorder;
and this rule he seeks in his own reason, in his own will. Thus
is established, at such epochs, the despotism of a single person;
it is not radically illegitimate, and the best proof that it is
not, is afforded by the easy reception with which he meets the
admiration with which he is regarded, the gratitude even which he
inspires, and which lasts as long as the state of things which
originated his power. In truth, the loftiest superiority, that
which is most naturally called to empire by the disorder and
dissolution of society, soon becomes corrupted and rude, by
becoming itself a purely individual will, full of egotism and
caprice: but that which constituted its force and credit, at the
outset, was its better comprehension of the general wants of
society; it had obtained a deeper knowledge of the true law which
must govern society; and it rescued society from its losing
battle with a multitude of ignorant or ferocious individual
wills.
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The Monarchy Of Charlemagne.
It is by these means that great men triumph at first. It was thus
that Charlemagne triumphed; it was thus that the first three
Carlovingians, Pepin of Heristal, Charles Martel, and Pepin the
Short, had prepared the way for him. Under the Merovingians, the
state was falling into dissolution; every strong man was making
himself independent, every weak man was falling into subjection
to a stronger. Although the Pepins had sprung from the dominant
aristocracy, they early struggled against its excesses. Charles
Martel put down the petty tyrants who had sprung up in every
direction. The tendency of Charlemagne's policy was to establish
the monarchical system, that is, to secure the universal
prevalence of his will by making it felt everywhere by means of
his agents. In order to understand with any exactness what was
Charlemagne's pure monarchy, we must see how he managed his own
property, and in what manner he administered his palace. The
activity of his surveillance was surprising; we shall find
details of it in his capitulary _De villis_, and in the
first part of one of Hincmar's letters. He governed his empire in
the same spirit. This was the only means he possessed for
restoring order, and applying the national forces to the
accomplishment of his designs. Into the despotism of a superior
man, there always enters a powerful instinctive feeling of
justice, and of protection to the weak. Charlemagne diligently
endeavoured to check the power of the nobles by subjecting them
to surveillance, and by bringing his subjects into direct
relationship with the royal authority. He paid great attention to
the employment and administration of his benefices, even when in
the hands of beneficiaries; he was careful not to give more than
one county to the same count, and this rule he rarely
transgressed; he ordered the nobles to distribute strict justice
to their vassals, and took most energetic measures to compel them
to do so, and to judge all men according to the law. Charlemagne
also kept watch over the conduct of the counts; the assemblies of
free men had almost entirely perished; and they requested as a
favour to be allowed to absent themselves. To supply the place of
the active surveillance exercised by these ancient assemblies,
Charlemagne created the _missi dominici_. These were
inspectors of the whole state of the kingdom, and particularly of
the conduct of the counts and nobles.
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Decline Of The Frankish Monarchy.
The delegates of Charlemagne, the imperial judges, had assessors;
and as the free men whose duty it was to fill the office of
assessors seldom attended the periodical assemblies, Charlemagne
superseded them by the _scabini_, who were appointed by the
_missi dominici_, whom he enjoined to select them with the
greatest care. This intervention of the delegates of the
sovereign himself in judicial affairs, was a powerful means of
monarchical centralization.
In his Frankish empire, it was not against the ancient free
institutions, but against public anarchy and the disorderly power
of the strong, that Charlemagne directed these means of
government. In his other dominions, wherever he feared the
influence of liberty, his despotism was exerted to crush it
rigorously; thus he interdicted all public assemblies of the
Saxons.
All this monarchical organization fell with Charlemagne. Its
existence is protracted, as if by habit, in the speeches and laws
of Louis the Debonnair; but the hand which sustained the edifice
is no longer there. The language of Charlemagne in the mouth of
Charles the Bald, is nothing but a piece of ridiculous
rhodomontade. The feudal system gains the upper hand and
organizes itself in every direction. The great vassals either
attack the king or isolate themselves from him. The dignity of
count became so considerable, that the sons of kings and emperors
desire and obtain it. Hereditary succession prevails in the
offices of dukes, counts, viscounts, &c. Rhegino cites as a
singular fact that the sons of Duke Robert did not succeed to his
dukedom, and assigns as the reason, that their tender age
rendered them incapable of repulsing the Normans. The sons of two
counts of Austria were not put into possession of the counties of
their fathers; so their relations took arms, and drove out the
usurper. The power of the counts, now they had become hereditary
seigneurs, was augmented by the authority they had exercised,
under that title, as delegates of the king. The feudal hierarchy,
strong by its own intrinsic power, thus gained additional
strength from the wreck of royal authority. Hence resulted a new
order of local institutions, which I cannot now explain.
{159}
The picture of central institutions reproduces, under another
aspect, the same facts, and leads to the same results. Central
institutions, as you are aware, may be reduced to two--royalty,
and the general assemblies of the nation.
Royalty Among The Franks.
To royalty among the Franks you may apply what I have said of
royalty among the Anglo-Saxons; only, among the Franks, the royal
family does not bear, at the outset, the character of a religious
filiation. This is perhaps attributable to the fact that the
Franks were a confederation of different tribes; among them, the
king appears especially as a military chieftain. Under the first
Merovingians, there was always a great mixture of hereditariness
and election; hereditariness fluctuated among the members of the
same family; election, when it was not an act of violence, was
rather a recognition than an election.
It is a grave error to expect to find in facts the basis of a
primitive and exclusive law: facts may be made to demonstrate
anything. The most opposite parties have fallen into the same
error in this respect. Whoever has discovered, at the origin of a
state, an act of violence in conformity to his preconceived
opinion, takes it as the foundation of what he calls the general
law. Some fancy they can discern absolute and well-regulated
hereditary succession in the midst of barbarism; others transfer
the troubles and violence of a barbarian election into a more
advanced stage of civilization; whatever they find existing as
_fact_ in the infancy of society, they convert into
_law_ for society in its greatest extension and development.
This is neither philosophy nor history. The ruling _law_ is
that which is conformable to reason and justice. There is always
more or less of this law at every epoch in the life of human
society; but at no epoch is it pure or complete. We must resign
ourselves to the task of freeing it everywhere from all alloy.
Let us then pass by the primitive and exclusive right of royal
heredity, which existed neither among the Franks nor in other
countries; all that can be said is that the principle of
hereditary monarchy tended, early and constantly, to prevail. The
heirship of the private domain of the kings, which was of
considerable value, powerfully contributed to establish the
heirship of the kingdom, just as the partition of the private
domain among the sons led to the partition of the royal
dominions; but the partition of the kingdom was almost always
made with the consent of the nobles, whilst the heirship of the
crown, in each state, does not appear to have required their
formal assent.
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Fall Of The Merovingians.
We have already seen what were the causes which occasioned the
fall of the Merovingian race, and the accession of Carlovingians.
The fall of the latter, in the tenth century presents some
features of similarity to that of the Merovingians, but between
the two, there was greater diversity than resemblance. The
ancient companions of the Frankish kings, the Leudes, the
Antrustions, and the beneficiaries, had left the court,
established themselves on their lands, and become feudal lords:
revolutions were no longer effected at the foot of the throne,
and in the interior of the royal palace. The feudal lords were
much more isolated, not only from the king, but also from one
another, than the Leudes had been under the Merovingians. Pepin
the Short was king in fact when Childeric III. was king in name;
Pepin assumed the name belonging to his power. At the end of the
tenth century, there was no king, and no powerful man in the
king's service who wielded the royal power in the name of Louis
V. Hugh Capet took possession of an almost vacant place, which,
at the moment, added much to his dignity, but little to his
authority. After the fall of the Merovingians, Pepin and
Charlemagne were able to attempt to establish the monarchical
system, and to inaugurate the central authority of the king; Hugh
Capet was unable to do this, nor did he attempt it; the feudal
lordships had divided the kingdom amongst them. Pepin was the
head of an aristocracy which had its centre in the palace of the
Merovingian kings. Hugh Capet was one of the principal members of
an aristocracy which had no centre; he made himself king because
the crown was within his reach. If Louis V. had resided at Rouen,
the Duke of Normandy would probably have seized the monarchy.
As regards the nature and extent of the royal authority, what I
have already said sufficiently indicates what it was: very
limited and precarious before the settlement of the Franks on
Roman territory--being nothing but the power of the chief of a
warlike band, always restrained by the presence of the free men,
his comrades--it became extended and strengthened after the
conquest by various causes:
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Authority And Liberty.
1. By the dispersion of the Franks. They ceased constantly, to
surround the king; his authority was but slight over those who
left him; but those who were habitually near him depended more
closely upon him; a court of barbarian servants succeeded to a
court of warriors.
2. By the subjugation of neighbouring chiefs or kings.
3. By the increasing inequality of wealth: the royal property
greatly augmented, and this was their principal source of
power; they devoted all their energies to the amassing of
treasure; it was useless to leave their children a kingdom,
unless they could at the same time bequeath to them a full
exchequer.
4. By the influence of religious and Roman ideas. In the
opinion of the Christians, the king was the successor of Saul
and of David; in that of the Romans, he was the representative
of the emperors. The Frankish kings were fully sensible of the
advantages of this two-fold position, and they eagerly accepted
the titles of Patrician and Consul. But the royal authority had
no definite character; it was proportionate to the ability and
energy of those who exercised it.
Nothing can be more different than the idea of royal authority in
those times and in our own day. If a village were now to
disregard the king's authority, or to refuse to obey him, it
would be a serious event, the sign of a great decay of power.
Such was not the case then; authority was not universally
diffused over the country; remote places and interests were in
some sort independent of it. It had no real supremacy, except in
case of war; the rays of its influence were short, and wherever
it was applied, it was matter of fact rather than of right.
With regard to authority and liberty, right and fact are almost
identical in the infancy of society. The idea of right, separate
from fact, has but very little power and can scarcely be said to
exist. Hence arise the eternal vicissitudes of authority and
liberty; whoever ceases to possess them is never permitted to
regain them. It is the work and the master-work of civilization
to separate right from fact, and to constitute right a power able
to maintain, defend, and vindicate itself.
{162}
Influence Of Religious Ideas.
We must not, however, believe that religious ideas exercised no
other influence, in regard to the royal authority, than to extend
it, and to represent it as absolute and springing from divine
right; they contributed powerfully to render it moral. It is
true, they rendered it independent of the public liberties, which
were frequently mere embodiments of arbitrary power and brute
force, and thus they helped to establish absolute power; but at
the same time they subordinated it to the divine laws, in which
the moral laws are comprised. The limits which Frankish usages
imposed on the royal authority were very different from those
assigned to it by Christian ideas: "the king," to use the
expression of the Councils, "is he who governs with pity,
justice, and goodness; he who does not govern thus is not a king,
but a tyrant." The restraint which this principle laid upon the
royal authority was more efficacious than that which resulted
from the influence of Frankish usages. This system, it is true,
gave no positive and real guarantee for the observance of the
rules which it imposed as duties upon royalty. But the age in
which we live has taken too much pains to seek guarantees in
physical force, and has neglected to seek for them in the power
of moral ideas. In barbarian times, as all powers, both of kings
and subjects, are almost equally unregulated, they appear bad
guarantees to sensible men, who seek for purer sureties in moral
ideas. When, in the epoch of which we are now speaking, the
Franks or Leudes repress the abuse of royal authority, they
repress it only in virtue of their own powers, and defend their
liberties only out of regard to their own interests, and not in
obedience to any moral idea of justice and of general right. The
ecclesiastics, on the contrary, speak in the name of the general
ideas of justice and humanity. They oppose morality rather than
force to the abuse of authority. The clergy thus gave utterance
to things which answered to the necessities of all the weak, and
led them to consider them as their protectors. The vice of the
religious system, doubtless, is that it creates no political
institution, and consequently, no effectual guarantee; thus it
always ends by being more favourable to power than to liberty:
but, in barbarous ages, when power and liberty were almost
equally brutal and anarchical, this system has rendered immense
services to humanity and to civilization.
{163}
Lecture XX.
National assemblies of the Franks; their primitive character,
and rapid decline under the Merovingians.
They regain importance under the Carlovingians; and are held
regularly under Charlemagne.
Letter of Archbishop Hincmar _De ordine Palatii_.
National Assemblies Of The Franks.
National assemblies were held among the Franks long previously to
their settlement in the Roman empire, and to the establishment of
monarchy amongst them. In these assemblies were discussed, in
Germany, all the affairs of the confederation, tribe, or band.
All the free men, that is to say, all the warriors, were present;
but the authority of these assemblies, like the authority of the
kings, was uncertain and precarious. They were formed, not in
virtue of the principle of the sovereignty of the people, but in
virtue of the right of every free man to have the sole disposal
of himself. They were convoked especially to determine on
military expeditions. Beyond this, every man acted independently,
and was answerable for his conduct to none but the local
authorities. The _Champ de Mars_, or autumnal assembly, of
which we find traces at the beginning of the monarchy, was
habitually held for the purpose of dividing the booty which had
been gained.
The dispersion of the free men, the increasing inequality of
social conditions, and the subordination of the comrades to their
chief, soon caused the national assemblies of the Franks to lose
their character of universality. They ceased to be attended by
any but the large landowners, the Leudes, and the superior
clergy. In this state, they appear to have existed under most of
the Merovingian kings. Mention is sometimes made of the people in
general; but evidently the great majority of the free men neither
could, nor did attend these assemblies. Those who possessed power
and wealth were almost the only persons who attended; and they
regulated the business brought under their notice solely with a
view to their own interest. The increasing disorder, and
continual dislocations of the kingdom, rendered these assemblies
less frequent.
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Letter Of Archbishop Hincmar.
They reappear, however, at the establishment of the authority of
the Mayors of the Palace. As leaders of the aristocracy of the
great independent landowners, they had need of their support. The
substitution of a new family of kings, instead of the ancient
race, was favourable to the importance of the assemblies. They
became, under the first Carlovingians, what they had been under
the first Merovingians,--a great council of government, in which
all great affairs were discussed. Pepin transferred the Champs de
Mars to the month of May; and Charlemagne held these assemblies
with a regularity heretofore unknown. In order to form a correct
idea of what they were under his reign, you must read the text,
and the entire text, of the letter written in 882, sixty-eight
years after the death of Charlemagne, by the celebrated Hincmar,
archbishop of Rheims, in compliance with the request of some of
the nobles of the kingdom who had asked his advice with regard to
the government of Carloman, one of the sons of Louis the
Stammerer. In this letter, Hincmar, as he himself informs us,
does nothing but copy a treatise _On the Order of the Palace,
De ordine Palatii_, written before 826 by the celebrated
Adalhard, abbot of Corbia, and one of the principal advisers of
Charlemagne. It is, therefore, a contemporary document, and its
authority is great.
"It was the usage at that time," says Hincmar, "to hold in each
year two assemblies, (_placita_,) and no more. The first
took place in the spring; at it were regulated the general
affairs of the whole kingdom; no occurrence, unless it were an
imperious and universal necessity, could alter what had been
decreed thereat. In this assembly, met together all the great
men (_majores_), both lay and ecclesiastic; the more
influential (_seniores_), to discuss business and agree on
decisions; the less influential (_minores_), to receive
these decisions, and sometimes also to deliberate upon them and
confirm them, not by a formal consent, but by the exercise of
their opinion and the assent of their understanding."
{165}
The Councils Of State.
"The other assembly, in which the general gifts of the realm
were received, was composed only of the more influential
members (_seniores_) of the first assembly, and of the
principal councillors. Here the affairs of the following year
were treated of, if there were any which it was necessary to
deliberate upon beforehand; as also those which might have
occurred during the course of the year which was about to
expire, and which required provisional attention without delay.
For example, if, in any part of the kingdom, the governors of
the frontiers (_marchisi_) had concluded a truce for any
time, the course to be pursued on the expiration of these
truces was discussed, and it was determined whether they should
be renewed or not. If, in any other quarter of the kingdom, war
seemed imminent, or peace appeared likely to be established, it
was examined whether the exigencies of the moment required, in
the first case, that incursions should be commenced or endured,
and, in the second, how tranquillity might be insured. These
lords thus deliberated long beforehand on what the affairs of
the future might require; and when suitable measures had been
agreed upon, they were kept so secret, that before the next
general assembly they were no more known than if no one had
paid any attention to the matter, and no decision had been
arrived at regarding it. The object of this was, that if it
were necessary to take, either within or without the kingdom,
any measures which certain persons, when informed thereof,
might wish to prevent, or frustrate, or render difficult, by
any artifice, those persons might never have the power to do
so.
"In the same assembly, if any measure were necessary either to
satisfy absent nobles, or to calm or excite the spirit of the
people, and such measure had not previously been taken, it was
discussed and adopted by the consent of those present, and it
was executed in concert with them by the orders of the king.
The year being thus terminated, the assembly of the following
year was arranged as I have said.
{166}
"With regard to the councillors, both lay and ecclesiastic,
care was taken, as far as possible, to select such persons as,
from their condition and duties, were filled with the fear of
God, and animated, moreover, by unalterable fidelity, so as to
consider nothing superior to the interests of the king and
kingdom, except eternal life. Men were sought who could be
turned aside from the path of duty neither by friends, nor
enemies, nor relatives, nor gifts, nor flatteries, nor
reproaches; men were sought who were wise and skilful, not with
that sophistical skill and worldly wisdom which are so opposed
to God's will, but with a just and true wisdom that might
enable them not only to repress, but also fully to confound the
men who place all their reliance in the tricks and stratagems
of human policy. The maxim of the councillors thus elected, and
of the king himself, was, never to confide, without their
mutual consent, to their domestics or any other person, what
they might have said familiarly to one another, either upon the
affairs of the kingdom, or about any particular individuals. It
made no difference whether the secret ought to be kept for a
day or two, or more, or for a year, or even for ever.
"It invariably happens that, if the conversation held in such
meetings, with regard to any individual, either by way of
precaution, or in reference to any other public interest, come
afterwards to the knowledge of that individual, he cannot but
feel great anxiety, or be driven to despair thereby, or, which
is a much more serious matter, be stimulated to infidelity; and
thus a man who might perhaps still have done service to the
State, is rendered useless,--which never would have happened if
he had not known what was said about him. That which is true of
one man may be true of two, of a hundred, or of a greater
number, or of a whole family, or of an entire province, unless
the greatest caution be observed.
The Officers Of The Palace.
"The _apocrisiary_, that is, the chaplain or keeper of the
palace, and the _chamberlain_, were always present at
these councils; they were therefore chosen with the greatest
care; or else, after having been chosen, they were furnished
with such instructions as should render them worthy of being
present. As to the other officers of the palace
(_ministeriales_), if there were any one who, first by
gaining instruction, and afterwards by giving advice, proved
himself capable of honourably occupying the place of one of
these councillors, or fit to become one, he received orders to
attend the meetings, giving the greatest attention to the
matters discussed thereat, correcting his erroneous ideas,
learning that of which he was ignorant, and retaining in his
memory that which had been ordained and determined.
{167}
The object of this was, that, if any unforeseen accident
occurred, either within or without the kingdom; if any
unexpected news arrived, in reference to which previous
provision had not been made (it rarely happened, however, that
in such cases, profound deliberation was necessary, or that
there was not time to convoke the councillors already
mentioned); the object of this, I say, was that, under such
circumstances, the officers of the palace, with the grace of
God, and by their constant habit of both attending at the
public councils and deliberating upon the domestic affairs of
the realm, might be capable, as need was, either to advise what
had best be done, or to point out how matters might be arranged
without inconvenience, until the next meeting of the council.
So much with regard to the principal officers of the palace.
The Palatines.
"In reference to the inferior officers, properly called
_palatines_, who had not to do with the general affairs of
the kingdom, but only with those in which the persons specially
connected with the palace were concerned, the sovereign
regulated their duties with great care; in order that, not only
might no evil arise therefrom, but also that if any disorder
were manifested, it might at once be repressed and extirpated.
If the affair were urgent, but might nevertheless without
injustice or wrong to any person be deferred for decision until
the meeting of the general assembly, the emperor expected the
_palatines_ to indicate the best means of delay, and to
imitate the wisdom of their superiors in a manner pleasing to
God and useful to the kingdom. As to the councillors whom I
first mentioned, they were careful, when summoned to the
palace, not to occupy themselves with private affairs, or with
the disputes which might have arisen with regard to the
possession of property or the application of the law, until
they had arranged, with the help of God, everything that
concerned the king and kingdom in general. This being done, if,
in obedience to the orders of the king, there remained any
affair which could not be settled either by the Count of the
palace, or by the officer under whose cognizance it fell,
without the assistance of the councillors, they proceeded to
investigate it.
{168}
The Capitularies.
"At one or other of the two assemblies, and in order that they
might not appear to be convoked without reason, there were
submitted to the examination and deliberation of the great
personages whom I have mentioned, as well as of the chief
senators of the realm, and in virtue of the orders of the king,
those articles of law named _capitula_, which the king
himself had drawn up under the inspiration of God, or the
necessity of which had been manifested to him in the interval
between the meetings. After having received these
communications, they deliberated upon them for one, two, or
three days, or more, according to the importance of the matter.
Messengers from the palace, going and coming, received their
questions and brought back answers; and no stranger approached
the place of their meeting, until the result of their
deliberations was placed before the eyes of the great prince,
who then, with the wisdom which he had received from God,
adopted a resolution which all obeyed. This course was pursued
for one, two, or more capitularies, until, by the help of God,
all the necessities of the time had been duly regulated.
"Whilst these affairs were thus arranged out of the presence of
the king, the prince himself, in the midst of the multitude who
had come to the general assembly, was busied in receiving
presents, greeting the most important individuals, conversing
with those whom he saw but seldom, exhibiting an affectionate
interest in the old, laughing and joking with the young, and
doing these and similar things to ecclesiastics as well as
laymen. However, if those who were deliberating upon the
matters submitted to their judgment desired it, the king went
to them, and remained with them as long as they wished; and
there they reported to him, with entire familiarity, what they
thought of various matters, and what were the friendly
discussions which had arisen amongst them.
"I must not forget to mention that, if the weather were fine,
all this went on in the open air; but if not, in several
distinct buildings, by which those who had to deliberate upon
the king's propositions were separated from the multitude of
persons who had come to the assembly; and then the less
important men could not enter. The building intended for the
meeting of the nobles was divided into two parts, so that the
bishops, abbots, and superior clergy could meet together
without any mixture of laymen. In the same way, the counts and
other distinguished personages of the State separated
themselves, in the morning, from the rest of the multitude,
until the time came, when, whether the king were present or
absent, they all met together; and then the nobles
above-mentioned, the clergy on their side, and the laymen on
theirs, proceeded to the hall which was assigned to them, and
where seats had been honourably prepared for them.
{169}
When the lay and ecclesiastical lords were thus separated from
the multitude, it was in their power to sit either together or
separately, according to the nature of the affairs which they
had to discuss, whether ecclesiastical, secular, or mixed. In
the same way, if they wished to send for any one, either to
bring them food, or to answer any question, and to dismiss him
after having obtained what they desired, it was in their power
to do so. Thus proceeded the examination of the affairs which
the king proposed for their deliberation.
Duties Of The King.
"The second occupation of the king was to demand of each what
he had to report or relate to him regarding that part of the
kingdom from which he had come; not only was this permitted to
all, but they were specially enjoined to make inquiries, during
the interval between the assemblies, about what was going on
both within and without the kingdom; and they were to seek
information from foreigners as well as natives, from enemies as
well as friends, sometimes by employing envoys, and without
being very scrupulous as to the way in which the information
was obtained. The king desired to know whether in any district
or corner of his kingdom the people were murmuring or
disaffected, and what was the cause of their disaffection, and
whether any disorder had occurred which required the attention
of the general council, and other similar details. He also
sought to know whether any of the conquered nations were likely
to revolt, or whether any that had revolted seemed disposed to
submit, or whether those that still remained independent
threatened the kingdom with any attack, and so forth. Upon all
these matters, wherever disorder or danger appeared, his chief
care was to learn what was the motive or occasion thereof."
{170}
Policy Of Charlemagne.
It is evident that these assemblies were considered by
Charlemagne as an instrument of authority, order, and
administration, much rather than as a national institution
rendered necessary by the rights and free spirit of his people.
The employment of this means of government, however, does not do
the less honour to the genius of Charlemagne. He had perceived
that the principal vice of the social system of his time, and the
principal cause of the weakness of his own authority, were the
absence of concentration, the isolation of individuals, and the
independence of his agents. Periodical convocations gave a centre
to all. The efforts of a great man in a barbarous age have as
their especial object the creation of a nation, for therein lies
his power; Charlemagne sought to find his nation lower than among
the great landowners and the great beneficiaries. He wished to
rally together the entire mass of the people, in order to
increase his own power, and to have at his disposal everywhere
potent means of action. His was a skilful despotism. Despotism,
in barbarous times, sometimes announces the presence of a man who
is before his age, and who has necessities and views in relation
to the future. Despotism, in the midst of an advanced state of
civilization, indicates the presence of a man who may be great
and even necessary to society, but who cares only for himself,
and for the times in which he lives.
{171}
Lecture XXI.
Decay of national assemblies under Louis the Débonnair and
Charles the Bald.
Definitive predominance of the feudal system at the end of the
tenth century.
Cause of this predominance.
Character of feudalism.
No trace of true representative government in France, from the
fifth to the tenth century.
Decay Of National Assemblies.
After the death of Charlemagne, and under Louis the Débonnair,
national assemblies were still frequently held. The movement
which Charlemagne had begun, had not yet entirely ceased. Unable
to create, Louis the Débonnair sought to imitate; at the spring
or autumn assemblies, he passed several useful rules, amongst
others the capitulary which summoned the _scabini_, or royal
judges, to the Champs de Mai. But the government, even with this
sanction, was lifeless and inefficient. The assemblies had been
nothing but an instrument of the monarch, and the monarch was now
no longer able to make use of them. Their decay was complete
under Charles the Bald. They began again to be nothing more than
meetings of the bishops and the great lay landowners. There were
forty-six assemblies held under Charles the Bald; but they were
almost all confined to the negotiations of the great nobles with
the king, respecting their private interests. Such was the
progress made by feudalism that the central aristocracy of the
great landowners, beneficiaries, and others, dissolved of itself.
They isolated themselves from one another in order to exercise,
each in his own domains, the almost absolute sovereignty which
they had acquired. The fall of the Carlovingians was the work of
Hugh Capet alone, and not of an aristocratic coalition. An
assembly did not meet, as at the fall of the Merovingians, to
elect a new king. Hugh Capet made himself king, and was
acknowledged as such, first by the vassals whom he possessed as
Duke of France, and afterwards, successively, by the great lords
of the kingdom, who remained, nevertheless, almost his equals in
power. Then the assemblies almost entirely disappeared, together
with every national and central institution; and nearly three
centuries elapsed before anything analogous to them was
established.
{172}
Retrospect Of Five Centuries.
Thus, at the end of the tenth century, of the three systems of
institutions which we characterized at the outset, viz.: free
institutions, monarchical institutions, and feudal institutions,
the last had completely prevailed; the first had perished early,
and Charlemagne had vainly attempted to establish the second. The
hierarchical organization of the proprietors of estates, and the
dislocation of France into as many petty sovereignties as there
were proprietors sufficiently strong to be almost independent and
absolute masters in their own domains,--such was the natural
result of the settlement of the Franks in Gaul.
During the five centuries which we have now briefly examined,
institutions, customs, and powers appear to be in a constant
state of disorder and conflict. The ancient liberties of the
Franks, the primitive independence of the warriors, royal
authority, the first rudiments of the feudal system,--all these
different elements present themselves to our view as obscure,
incoherent, and in opposition. We pass incessantly from one
system to another, from one tendency to another. At the end of
the tenth century, the struggle has almost ceased; the mass of
the population have fallen into a state of serfage, or become
tributary colonists; the possession of fiefs confers a real
sovereignty, more or less complete according to the power of the
possessor; these petty sovereigns are hierarchically united and
constituted by the bonds of suzerainty and vassalage. Nowhere is
this bond weaker than between the king and his vassals; for there
the pretensions to authority on the one hand, and to independence
on the other, are most earnestly contested.
The fundamental characteristics of this state of things are the
destruction of all centrality, both national and monarchic; the
hierarchical constitution of landed property; the distribution of
sovereignty according to the various degrees of this hierarchy;
and the servitude or quasi-servitude of the mass of the
inhabitants of the country.
{173}
Attacks On The Feudal System.
I have said that this system was the natural result of the
condition of the Franks in Gaul after the conquest; its
definitive success is proof of this. Another circumstance, also,
may be adduced in evidence. Before the tenth century, we witness
the constant struggle and alternating success of free,
monarchical, and feudal institutions. The efforts made in favour
of the first two systems, although some were supported by the
ancient independence of the Franks, and others by the ability of
great kings, were unsuccessful,--a more powerful tendency
frustrated and overcame them. When the struggle ceased, when the
feudal system had fully prevailed, a new conflict almost
immediately commenced; the victorious system was attacked: in the
inferior classes of society, by the mass of the inhabitants,
citizens, colonists, or serfs, who strove to regain some rights,
some property, and some liberty; in the superior class, by
royalty, which laboured to resume some general sway, and to
become once more the centre of the nation. These new efforts were
made, not, as during the period from the fifth to the tenth
century, in the midst of the confusion arising from the conflict
of opposing systems, but in the very interior of a single system,
of the system which had prevailed over, and taken possession of,
the whole of society. The combatants are no longer free men,
uncertain of their position and their rights, who feebly defend
the wreck of their ancient existence against the overpowering
invasion of the feudal system; they are citizens, colonists,
serfs, whose condition is clear and determined, who become in
their turn aggressors, and labour to free themselves from the
yoke of feudalism. We no longer behold the king uncertain of his
authority, and subject to have it unceasingly attacked, not
knowing whether he is king or lord, and defending his power
against the Leudes, or great landowners, who attempt sometimes to
infringe it, and sometimes to set it aside altogether; now it is
the chief of the nobles labouring to make himself the king of
all, and to convert suzerainty into sovereignty. From the fifth
to the tenth century, the feudal system had been in progress, in
development, and in aggression. From the eleventh century
onwards, this system had to defend itself against the people and
the king. The struggle was long, difficult, and terrible; but the
results altered with the position of the combatants. In spite of
the servitude into which the people fell in the tenth century,
from that time forth the enfranchisement of the people made
progress.
{174}
Notwithstanding the impotence of the royal power at the same
period, thenceforward the royal power gained ground. No effort
was vain, no step was retrograde. That monarchical system which
the genius of Charlemagne had been unable to establish, was
gradually founded by kings far inferior to Charlemagne. Those
ancient liberties, which neither Franks nor Gauls had been able
to preserve, were regained piecemeal by the commons and the third
estate. During the first period, monarchy and liberty had failed
to establish their position; it was destined that monarchy should
issue out of feudalism itself, and that emancipation should
spring from the bosom of servitude.
Character Of Feudalism.
With regard to feudalism itself, it is not my intention to sketch
its history. I hasten to arrive at that period at which I shall
again meet with a nation and a king, and at which endeavours
after a free government and a monarchical system will recommence.
I will only state here what were the dominant character and
general influence of the feudal system, in relation to power and
liberty--those two constituent elements of social order.
The feudal system brought the master into close connection with
the subject, and the sovereign with those who depended upon him;
in this sense it was a cause of oppression and servitude. It is
difficult to escape from a power that is ever near, and almost
present. The human will is subject to strange caprices, and never
is this more frequently exemplified than when the objects on
which it acts are in its power. You may breathe a little under an
arbitrary power, if it be very lofty and very distant; but if it
be at your elbow, you are truly a slave. Local tyranny is the
worst of all; though difficult to avoid, it can easily defend
itself. A handful of men have often kept the population of a
large town in servitude for ages. The citizens, colonists, and
serfs felt themselves so grievously oppressed by the feudal lords
that they preferred to their absolute power the absolute power of
the kings, even with more extensive and irresistible rights than
those possessed by the lords. A certain and general despotism has
neither the same interest in being tyrannical, nor the same means
of oppression. This will explain the intensity of feudal
oppression, and the profound hatred which it inspired.
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Influence Of Feudalism.
The feudal system placed the inferior near his superior; and, in
this sense, it was a principle of dignity and liberty. Many
vassals were equal in rank to each other, and on terms of
familiarity; frequently the inequality between the superior and
inferior was not great, so that the latter was neither humiliated
thereby, nor obliged to play the courtier. Protection was a
right; the suzerain had absolute need of his vassals. There was
no room, in their relations to one another, for servility and
baseness of soul. Moreover, the vassals had reasons and means for
banding together to defend themselves against oppression; they
possessed common rights and interests. The intimacy in which they
lived with their lord prevented the feeling of their mutual
rights from becoming effaced within them; thus feudal relations
are generally full of dignity and high-spiritedness; a noble
sentiment, fidelity instead of submission, guides their conduct.
Now, wherever a profound moral sentiment exists, it must
necessarily call others into action; hence the many splendid and
honourable developments of human nature under the feudal system:
these developments were concentrated, it is true, within the
circle of the lords and vassals; but even that is better than the
equal abasement of all under an universal despotism.
Thus, whilst feudalism disregarded and insulted both justice and
the dignity of man among the masses whom it claimed as subjects,
it respected and developed both among its own hierarchy. In this
hierarchy, liberty existed, with all its accompaniments. Below
were servitude and its attendant evils, with all the shames that
follow in their train.
Absence Of The Representative System.
I may now fearlessly affirm that, in the institutions of the
period from the fifth to the tenth century, there is no trace of
the representative system. We pass from the independence of
individuals, sometimes to the power of the king, sometimes to the
predominance of the great landowners. But there is no political
organization founded upon ideas of general law and public
interest; all institutions have reference to private rights and
interests. Two opposite forces are in conflict; there is nothing
to reveal the division of powers, and their tendency towards one
common object.
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There are no representatives of the rights of all; none elected
in the name of the interests of all; those who have rights
exercise them personally; those who do not exercise them
personally do not possess them. The ecclesiastics alone preserve
the idea of the general right of all men to justice and to good
government; but this idea is not transfused into any
institutions. Neither the philosophic principle, nor any of the
true external characteristics of representative government, can
anywhere be met with.
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Lecture XXII.
Political institutions of the Visigoths.
Peculiar character of Visigothic legislation.
Its authors and its influences.
Destruction and disappearance of the middle class in the Roman
empire, at the time of the Barbarian invasion.
History of the Roman municipal system.
Three epochs in that history.
Laws Of The Visigoths.
In conformity to the plan which I sketched out for our guidance
at the commencement of these lectures, I have studied with you
the political institutions of the Anglo-Saxons and Franks, from
the fifth to the tenth century. I now come to those of the
Visigoths, the third of the Barbarian peoples established in the
Roman empire, about whom I propose to give you some information.
On opening the collection of the laws of the Visigoths, it is
impossible not to be struck with the compactness which
distinguishes them. The Franks and Burgundians have laws
partially anterior to their establishment upon the Roman
territory; customs handed down and gathered together from age to
age. The Visigoths have a code which was systematically drawn up,
and promulgated on an appointed day.
This fact alone indicates that the laws of the Visigoths were not
the work of the Barbarians themselves. The influence of the
clergy, indeed, was more potent among the Visigoths than among
the other Barbarian conquerors; not only did the clergy take part
in their government, but they acted as their civil and political
legislators. The Visigothic code was their work. How did this
happen?
Before the foundation of the Barbarian States, under the dominion
even of the last Roman emperors, the power of the new religion
gradually placed the Christian clergy at the head of the peoples;
the bishop was the defender and chief of the towns. After the
conquest, the Barbarians embraced the religion of the vanquished;
and as the Christian clergy were powerful in the towns, by virtue
of the municipal institutions, they used every effort to preserve
to the municipal system its form and efficacy.
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In this they succeeded to a great extent. It is therefore of
essential importance to have some precise knowledge of the Roman
municipal system and its vicissitudes until the period of the
great Barbarian invasions, in order properly to understand the
condition of the urban populations at that epoch, and the part
which their clergy played in their new position, especially in
the kingdom of the Visigoths.
Fall Of The Roman Empire.
As I have already observed, the fall of the Roman empire in the
West is a strange phenomenon. Not only did the population not
support the government in its struggles against the Barbarians,
but the population, when left to itself, did not attempt any
resistance on its own behalf. More than this--nothing, during
this protracted conflict, revealed the existence of a nation;
scarce any allusion is made to what it suffered; it endured all
the scourges of war, pillage, and famine, and suffered an entire
change in its destiny and condition, without acting, speaking, or
even appearing.
This phenomenon is not merely strange, it is unexampled.
Despotism has reigned elsewhere than in the Roman empire; more
than once, foreign invasion and conquest have devastated
countries that had long groaned beneath a tyrannical government.
Even where the nation has not resisted, its existence has been
manifested in some manner in history. It suffers, it complains,
and, notwithstanding its humiliation, it struggles against its
evil fate; narratives and monuments attest what it experienced,
what it became, and if not what it did, at least what was done
with it.
In the fifth century, the remnants of the Roman legions disputed
with hordes of Barbarians the possession of the immense territory
of the empire, but it seemed as if this territory were a desert.
When the soldiers of the empire had departed or been defeated,
mention is made of no other person or thing. The Barbarian tribes
seize upon the provinces in succession; beside them, facts
exhibit to us only one other real and living existence, that of
the bishops and the clergy. If the laws did not remain to inform
us that a Roman population still covered the soil, history would
give us good reason to doubt its existence.
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State Of The Roman Colonies.
It was especially in the provinces which had long been subject to
Rome, and wherein civilization was more advanced, that the people
thus disappeared. We look upon the letter of the Britons,
tearfully imploring the assistance of Aetius and the despatch of
a legion, as a singular monument of the cowardice of the subjects
of the empire. This astonishment is unjust: the Britons, being
less civilized and less Romanized than the other subjects of the
empire, resisted the Saxons, and their resistance has a history.
At the same period, under similar circumstances, the Italians,
the Gauls, and the Spaniards have no history; the empire withdrew
itself from their country, and the Barbarians took possession of
it, without the mass of the inhabitants taking the least part in
the transaction, or giving the slightest indication of the place
they occupied in the events which gave them over to so many
scourges.
Nevertheless Gaul, Italy, and Spain were covered with towns,
which had lately been wealthy and populous; civilization had
there received a splendid development; roads, aqueducts,
circuses, and schools, were abundant. Everything that can attest
wealth, or procure for a nation an animated and brilliant
existence, they possessed. The invasions of the Barbarians
occurred to pillage them of all their wealth, to disperse all
their friendly meetings, to destroy all their pleasures. Never
had the existence of a nation been more completely overthrown;
never had individuals had more evils to endure and more dangers
to apprehend. Whence came it that the populations were dumb and
dead? How is it that so many sacked towns, so many ruined
positions, so many blasted careers, so many ejected proprietors,
have left so few traces, I do not say of their active resistance,
but only of their sufferings?
The despotism of the imperial government, the degraded condition
of the people, the profound apathy which had seized upon both
masters and subjects, have been alleged to account for this--and
justly so: therein consisted the great cause of this strange
phenomenon. But it is easy thus to enunciate in a general manner
a cause which, though apparently in existence elsewhere, did not
elsewhere produce the same results. We must penetrate more deeply
into the state of Roman society, in the condition to which it had
been reduced by despotism. We must inquire by what means it had
been so utterly deprived of all consistency and life.
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Roman Municipal System.
Despotism can clothe itself in very different forms, and exhibit
itself in proceedings which impart to its action a far higher
energy, and give a far wider scope to its consequences.
The great fact which had resulted from the system of imperial
despotism, and which alone can explain the phenomenon of which I
speak, is the destruction and disappearance of the middle class
from the Roman world: at the arrival of the Barbarians, this
class no longer existed; and for this reason also, the nation had
ceased to exist. This annihilation of the middle class in the
Roman empire was especially the result of a municipal system,
which had rendered it completely the instrument and the victim of
the imperial despotism. All the batteries of that despotism were
directed against this class; and it was imprisoned within the
municipal system that it might be turned to account, and made to
supply the necessities of the existence of the power that crushed
it.
Such a fact renders it worth while to study, in all its parts,
the machine by which it was produced. Those who are unacquainted
with the organization of the municipal system at this period, and
its effects upon Roman society, cannot properly understand the
history of these times.
In the constitution and existence of cities, within the Roman
world, we may discern three epochs, very distinct from each
other, and clearly marked out by actual revolutions. It is well
known that the Romans, adopting, in their conquests, a system
widely different from that of most ancient nations, were careful
not to exterminate or reduce to servitude the nations which they
had conquered. This difference of procedure was, I think,
occasioned by the condition of most of the neighbouring nations,
against which Rome first waged war. They were collected together
in towns, and not dispersed throughout the country; they formed
civic bodies, cultivating and governing a territory of greater or
less extent. These cities were numerous and independent. A nation
scattered over the land which it cultivates, may easily be
destroyed or enslaved; but the task is more difficult and less
profitable when that nation dwells within walls and has already
assumed the consistency of a petty State.
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Moreover, the nations which, in ancient times, were enslaved or
exterminated, received this treatment almost invariably from
conquerors who were in search of a home, and who had settled in
the territory they had won. When the war was ended, the Romans
returned to Rome. Enslavement and extermination cannot be
effected either all at once or from a distance. The victors who
intend to do this must be ever present among the vanquished,
ceaselessly depriving them of their wealth, their liberty, and
their lands. The primitive condition of the Romans, at the
commencement of their conquests, exercised a decisive influence
upon the fate of nations.
Treatment Of Conquered Towns.
Originally, it does not appear that the Romans ventured to leave
their former inhabitants in the conquered towns. It is said that
violence supplied Rome with women; the same proceeding furnished
her with new citizens. The vanquished, when transferred to Rome,
became Romans like their victors. The conquered town was
occupied, either by soldiers, or by inhabitants of Rome,
belonging to the lowest class of the people, and sent thither to
form a kind of colony. The town of Cœre was the first which, on
being united to Rome, was allowed to retain its own laws and
magistrates after receiving, at least in part, the right of Roman
citizenship. According to Livy, in the year of Rome 365, a decree
of the Senate ordained _ut cum Cœretibus publice hospitium
fieret_.
Admission To Citizenship.
This system prevailed and received continual development. The
conquered towns were united to Rome by receiving the right of
citizenship. Some of them, like Cœre, only received the title of
Roman citizens for their inhabitants, and still retained their
own Senate and laws; others were admitted into the Roman city,
but without obtaining the right of suffrage in the _comitia_
of Rome. With regard to others, again, their political
incorporation was complete; their inhabitants enjoyed the right
of suffrage at Rome like the Romans themselves. These last alone
had a tribe in Rome.
The right of suffrage was granted successively to several towns
which had not received it at first. Finally, all Italy after the
war of the allies, and ere long a portion of Southern Gaul
received the right of Roman citizenship in all its plenitude.
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The towns thus admitted to all the rights of Roman citizenship
were called _municipia_. When the whole of Italy was
invested with these rights, those towns which had not at first
fully possessed them retained for a considerable period the names
of _coloniæ, prefectures_, and so forth, which they had
originally borne; but, in fact, their condition was completely
assimilated to that of the ancient _municipia_.
Out of Italy, the condition of the conquered towns and districts
was still very various. History tells us of _coloniæ_, some
of which were Roman, and others Latin, of _populi liberi_,
_civitates fæderatæ, reges amici, provinciæ_. These
different denominations indicated different modes of existence
under the domination of Rome, and different degrees of dependence
--but these differences successively disappeared. I am referring
merely to the _municipia_.
Before conferring on a town the full rights of Roman citizenship,
inquiry was made whether it would accept them or not. On consent
being given, and, to use the legal phrase, _ubi fundus ei legi
factus erat_, the concession took place. Its principal
consequences were these: municipal rights, interests and offices,
in that town, were then separated from political rights, interest
and offices. The former remained in possession of the town, and
were exercised on the spot by the inhabitants, with entire
independence: the latter were transferred to Rome, and could be
exercised only within its walls. Thus, the right of making peace
or war, of passing laws, levying taxes, and administering
justice, ceased to belong to the _municipium_ individually;
but the citizens shared these rights, and exercised them at Rome
in common with the citizens who inhabited Rome; they repaired
thither to vote at the _comitia_, both upon the laws and
upon appointments to magisterial functions: they sought and might
obtain all the offices of the State. The city of Rome possessed
the privilege that these political rights could be exercised only
within its walls. Its inhabitants possessed no privilege above
those of the _municipia_.
The rights, interests, and offices, which we now call municipal,
and the entire disposal of which was secured to each locality,
are nowhere regularly distinguished and enumerated. At this
degree of civilization, neither the rulers nor the ruled feel the
necessity of foreseeing, defining, and regulating everything;
they trust to the good sense of mankind, and to the nature of
things. History, however, indicates the principal prerogatives
which continued local.
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1. Worship, religious festivals, and ceremonies. Not only did
each town retain its ancient usages and independent authority
in this respect, but the Roman laws watched over the
preservation of these rights, and even made it a duty. Each
_municipium_, therefore, had its own priests and flamens,
as well as the right of choosing them, and of regulating all
matters in relation thereto.
2. Every _municipium_ also possessed the administration of
its own private property and revenues. In ceasing to be a
political personage, it became a civil personage. Public
edifices, whether devoted to purposes of utility or of
pleasure, festivals, local and general amusements, all expenses
of this kind, and all the revenues by which they were defrayed,
continued to be absolutely local matters. The inhabitants
appointed the magistrates who were charged with these
functions.
3. The police also remained, to a certain extent at least, in
the hands of the local magistrates; they had to watch over the
internal security of their town, and provisionally to arrest
those who disturbed its peace.
4. Although the judicial power had been withdrawn from the
localities, we nevertheless meet with some traces of a
Jurisdiction somewhat similar to that which we call municipal
police, giving judgment upon offences against the laws, with
regard to public health, weights and measures, markets, and so
forth.
Municipal Officers.
All these local affairs were managed either by magistrates
appointed by the inhabitants, or by the _curia_ of the town
or _college of decurions_, that is, of all the inhabitants
who possessed a fixed landed income. In general, the _curia_
appointed the magistrates; we meet with some instances, however,
of their being appointed by the general body of the inhabitants.
But at this period, and by a necessary consequence of the
existence of slavery, there were few free men who did not belong
to the _curia_.
The origin of the word _decurio_ is uncertain. Some writers
are of opinion that he was an officer placed at the head of ten
families, like the _tything-man_, or _tunginus_ of the
German peoples. Others think that _decurio_ simply means
member of a _curia_. The last interpretation seems to me the
more probable of the two. At a later period, the decurions were
called _curiales_.
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Constitution Of The Municipia.
Such was the constitution of the _municipia_ at the end of
the Roman republic. It presents, as results, the following
general facts:
1. All political rights and interests, all political life, in
short, was centralized at Rome, not merely morally and by law,
but materially and in fact. Within the walls of Rome alone
could be consummated all the acts of a Roman citizen.
2. No centralization of this kind had taken place in reference
to what we now call administrative interests. Each town had
remained isolated and distinct in this respect, regulating its
own affairs, just as a private individual would do.
3. The appointment and surveillance of the magistrates who
administered the local affairs of the town took place on the
spot, without any intervention of the central power, and by the
assembly of the principal inhabitants.
4. Into this assembly were admitted all the inhabitants who
possessed a certain income. There is reason to believe that a
few free men only were excluded therefrom.
Here begins a second epoch in the history of the Roman municipal
system.
The absolute separation of political from local existence, and
the impossibility of exercising political rights elsewhere than
in Rome, could not fail to deprive the towns of their principal
citizens, and also of a great part of their importance. Thus,
during the epoch which we have just surveyed, purely local
interests occupied only a small place. Rome absorbed everything.
The independence left to other towns, as regarded matters that
were not treated of at Rome, or did not emanate from Rome, arose
from the slight importance of those matters.
When liberty began to totter at Rome, the decadence of the
political activity of the citizens necessarily diminished its
concentration. The chief men of the _municipia_ repaired to
Rome to take their part in the government of the world, either by
voting in the _comitia_, or discharging great public
functions. When the _comitia_ and the high magistracies
ceased to have any perceptible influence in the government, when
political life became extinct in Rome, together with the movement
of liberty, this affluence of all the important men towards Rome
decreased. Such a decrease was advantageous to the rising
despotism, and met with no opposition.
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Progress Of Public Indifference.
Here, as in every instance, the necessary consequences of general
facts are revealed in particular and positive facts, up to that
time, no political act could be performed, and no suffrage be
exercised, elsewhere than within the walls of Rome. Suetonius
informs us that Augustus conferred upon the citizens of a large
number of Italian _municipia_ the right of giving their
votes without leaving their town, and sending them to Rome in a
sealed packet, that they might be properly scrutinized in the
_comitia_. Thus was exhibited, at once, the progress of
public indifference, and the growth of absolute power.
This progress continued rapidly. Ere long, the _comitia_ met
with the fate of all shams, and were abolished; all free
intervention of the citizens in the government disappeared, and
no political acts remained to be performed, either at Rome, or at
a distance therefrom; and as it is always a trick of nascent
despotism to offer to all men the deceptive advantages of a
shameful equality, the right of Roman citizenship was, almost at
the same period, bestowed indiscriminately upon the whole Roman
world. This right no longer possessed any political significance,
nor did it confer any real importance upon those who received it;
and yet this concession deprived those whom it levelled to the
condition of the multitude, of any importance they might still
have retained. There is reason to believe that this measure was
rather the consequence of a financial speculation than of a
clever despotic combination. But despotism, even when its conduct
is least guided by scientific principles, is never deceived by
its instincts. Such was, moreover, the natural course of things;
and degraded peoples must inevitably suffer their fate. All the
blame must not be laid on the master of the flock; and the hatred
which tyranny merits cannot save from our contempt nations that
are incapable of liberty.
However, as the degradation and ruin of an empire cannot be
effected in a moment, or by a single blow; as there still existed
in the Roman world some habits of liberty which despotism had not
had time or need to destroy, it was necessary to make some sort
of compensation for this complete disappearance of political
rights and life; and this compensation naturally resulted from
the change which had occurred.
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Growing Importance Of The Municipia.
A portion of the importance which Rome had lost, had returned to
the _municipia_. A large number of wealthy citizens no
longer left their homes. Having been excluded from the government
of the State, their attention spontaneously turned to the affairs
of their own city. Nothing had yet stimulated the central power
to interfere in their administration. The treasures of Rome, and
the ordinary contributions of the provinces, were sufficient for
the imperial wants, and even for its follies. Tyranny then felt
but slightly the necessity of penetrating into every quarter, and
of possessing a detailed organization; and did not even know how
to set about it. The municipal system, therefore, retained
considerable importance; it even constituted itself with greater
regularity, and according to more positive, perhaps more
extensive rights, than those which it had previously possessed.
It is during the period from the reign of Nerva to that of
Diocletian, that the state of the _municipia_ appears under
this new aspect. A great many laws were passed to increase and
secure the property and revenues of towns. Trajan permitted them
to receive inheritances by way of _fidei commissus;_ and,
ere long, they were authorized to receive them directly. Hadrian
granted them the right of receiving legacies, and ordained that
any administrator who should misappropriate the property of a
town should be considered guilty, not of simple theft, but of
embezzlement. The ordinary income usually sufficed to meet the
expenditure, and it was not necessary to lay fresh taxes upon the
citizens. The State did not cast upon the cities any burdens
which did not directly concern them; and there were but very few
citizens exempt from that which was onerous in municipal duties.
The common people bore their part, by hard labour, in the public
works which interested each town: the dignity of the decurions
was recognised and sanctioned. Hadrian freed them from the
punishment of death, except in cases of parricide. The
decurionate was still sought after as an honour; and lastly, the
best proof of the importance and extension of the municipal
system, during this period, will be found in the number of laws
passed in relation to it, and the particular attention paid to it
by jurisconsults. Evidently, in the absence of political rights
and guarantees, the municipal system was the depository in which
all the rights and securities of citizens were contained.
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Dangers Of Roman Despotism.
But the attempt to preserve this system could not long succeed.
We must, indeed, date revolutions from the day on which they
break out; this is the only precise epoch which we can assign to
them, but it is not that in which they originate. The convulsions
which we call revolutions, are far less symptomatic of what is
commencing than declaratory of what has passed away. The crisis
of the municipal system under Constantine is one of many proofs
of this truth.
Ever since the reign of Septimius Severus, the central power in
the Roman empire had been falling into ruin; its strength
decreased in proportion as its burdens and dangers augmented. It
became indispensable to cast upon others the burdens which it
could no longer bear, and to seek new strength in order to
confront new dangers. At the same time, there arose, in the midst
of the old Roman society, a society both young and ardent, united
in a firm and fruitful faith, gifted from within with principles
admirably adapted to fortify its internal constitution, and also
with an immense power of external expansion; I refer to Christian
society. It was by the action of these two causes, at first
divided and afterwards united, that the municipal system of the
Roman empire was dissolved, and ended by deteriorating into a
principle of ruin, and an instrument of oppression.
It is one of the thousand vices of despotism that its exigencies
increase in proportion as its means diminish; the weaker it
becomes, the greater is its need of exaggeration; the more it is
impoverished, the more it desires to spend. In point of strength,
as of wealth, sterility and prodigality are equally imposed upon
it; society, both men and things, in its hands, is but a lifeless
and limited material which it expends for its own support, and
into which it is compelled to penetrate more deeply as it becomes
more exhausted, and as it is itself more nearly losing all.
The despotism of the Roman emperors existed in presence of three
dangers: the Barbarians, who were continually advancing, and whom
it was necessary to conquer or to bribe; the populace, which was
continually increasing, and which it was necessary to feed,
amuse, and restrain; the soldiers, the force to be opposed to
this twofold peril,--a force all the more dangerous in itself, as
it was necessary to increase it, and grant it daily fresh
concessions.
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Burdens Of The Municipia.
This position imposed immense burdens on despotism. In order to
obtain resources, it was compelled to create an administrative
machine capable of carrying its action into every quarter, and
which became itself a new burden. This system of government,
which commenced under Diocletian and ended under Honorius, had no
other object but to extend over society a network of
functionaries, who were incessantly occupied in extracting from
it wealth and strength, which they afterwards deposited in the
hands of the emperors.
The revenues of the towns, like those of private individuals,
were laid under contribution by the exigencies of power, and were
speedily invaded in a still more direct manner. On various
occasions, amongst others under Constantine, the emperor took
possession of a large number of municipal properties; but the
local charges which these properties were intended to meet were,
nevertheless, left undiminished. Nay, more, they were increased;
as the populace everywhere became more numerous and more disposed
to sedition, it became more expensive to feed and amuse them, and
greater force was required to keep them in check. The central
power, itself overburdened, cast a portion of its load upon the
towns. Now, whenever the regular revenues of a town did not
suffice to meet its expenditure, the _curia_, that is, the
body of wealthy citizens, the decurions, were bound to supply the
deficiency from their own private purse. They were, moreover, in
almost every place, the collectors of the public taxes, and were
responsible for this collection; their private property had to
make up for the insolvency of the tax-payers, as well as to
supply the deficiency of the communal revenues. The dignity of
decurion thus became a cause of ruin; this condition was the most
onerous of all social conditions; it was, nevertheless, that of
all the well-to-do inhabitants of all the _municipia_ in the
empire.
Nor was this all; as soon as the position of the decurions became
burdensome, there was a tendency to leave it, as well as an
advantage in doing so. Exemption from curial functions became a
privilege; and this privilege received an ever-increasing
extension. The emperors, who disposed of all public dignities and
employments, conferred them upon the men and the classes whom
they felt it necessary to gain.
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Thus arose within the State, as a necessary result of despotism,
an immense class of privileged persons. In proportion as the
revenues of the towns diminished, their burdens augmented, and
fell upon the decurions, now fewer in number in consequence of
the concession of privilege. It was, however, needful to leave
enough to bear the burdens imposed on the _curiæ_. Hence the
origin of that long series of laws which make of each
_curia_ a prison-house in which the decurions were
hereditarily confined; which deprived them, in a multitude of
cases, of the free disposal of their property, or even disposed
of it without their consent for the benefit of the _curia_;
which pursued them into the country, into the army, wherever they
attempted to take refuge, in order to restore them to the
_curiæ_, from whence they desired to escape: laws, in fine,
which bound an immense class of citizens, in property as well as
in person, to the most onerous and ungrateful of public services,
just as you would compel animals to perform this or that species
of domestic labour.
Growth Of Christianity.
Such was the place which despotism finally assigned to the
municipal system; such was the condition to which municipal
proprietors were reduced by the laws. And whilst despotism was
straining every nerve to tighten the bonds of the municipal
system, and to compel the inhabitants to perform, as charges,
functions which had formerly been considered as rights, the
second cause to which I have alluded, Christianity, was labouring
to dissolve or dismantle municipal society, in order to
substitute another in its place.
During nearly three centuries, Christian society had been
silently forming in the midst, and, so to speak, beneath the
surface of the civil society of the Romans. It was at a very
early period a regularly-constituted society, with its chiefs,
its laws, its expenditure, and its income. Its organization,
originally entirely free and founded upon purely moral ties, was
by no means deficient in strength. It was at that time the only
association which could procure for its members the joys of the
inner life--which possessed, in the ideas and sentiments that
formed its basis, matter to occupy lofty minds, to exercise
active imaginations, and to satisfy the requirements of that
moral and intellectual existence which neither oppression nor
misfortune can completely extinguish throughout a nation.
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Effects Of Christianity.
The inhabitant of a _municipium_, when he became a
Christian, ceased to belong to his town, and entered into the
Christian society, of which the bishop was chief. There alone,
henceforward, was the centre of his thoughts and affections, and
the abode of his masters and brethren. To the necessities of this
new association were devoted, if needful, his fortune and his
activity; thither, in fine, his entire moral existence was in
some measure transported.
When such a displacement has occurred in the moral order of
things, it speedily becomes consummated in the material order
also. The conversion of Constantine, in fact, declared the
triumph of Christian society, and accelerated its progress.
Thenceforward, power, jurisdiction, and wealth poured in upon the
churches and bishops, as upon the only centres around which men
were spontaneously disposed to group themselves, and which could
exercise the virtue of attraction upon all the forces of society.
It was no longer to his town, but to his church that the citizen
desired to bequeath his property. It was no longer by the
construction of circuses and aqueducts, but by the erection of
Christian temples, that the rich man endeavoured to rest his
claim to public affection. The parish took the place of the
_municipium;_ the central power itself, hurried on by the
course of the events with which it had become associated, used
all its efforts to swell the stream. The emperors deprived the
communes of a portion of their property, and gave it to the
churches; they deprived the municipal magistrates of a portion of
their authority, and gave it to the bishops. When the victory had
been thus avowed, interest combined with faith to increase the
society of the conquerors. The clergy were exempted from the
burden of municipal functions; and it became necessary to pass
laws to prevent all the decurions from making themselves clerks.
Without these laws, municipal society would have been entirely
dissolved; its existence was protracted that it might continue to
bear the burden to which it was condemned; and, strange to say,
the emperors most favourable to the ecclesiastical order, and
most liberal in augmenting its advantages, were compelled at the
same time to struggle against the tendency which induced men to
leave every other association, in order to enter into the only
one in which they could find honour and protection.
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Decay Of The Municipia.
Such then, was, in truth, the state of things. Despotism, urged
by its own necessities, incessantly aggravated the condition of
the _curia_. That of the church flourished and improved as
incessantly, either by the aid of the peoples, or by the action
of despotism itself, which had need of the support of the clergy.
It was therefore necessary continually to relegate to the
_curia_ the decurions who were ever anxious to leave it. In
proportion as their number decreased, and as those who remained
became ruined and unable to bear the burden, their condition
became less and less endurable. Thus, evil sprang from evil;
oppression rendered ruin certain by its efforts to delay it; and
the municipal system which, as I have said, had become an actual
gaol to one class of citizens, daily hastened onwards to its own
destruction, and to that of the class which was chained to its
destiny.
Such was, with regard to the _municipia_, the course of
events and laws from the reign of Constantine until the fall of
the Western Empire. In vain did some emperors strive to raise the
communes; in vain did Julian restore to them a portion of the
property which they had previously lost. These changes in
legislation were ineffectual; a fatal necessity weighed upon the
_municipia_; and whenever the municipal system bordered
closely upon dissolution, and it was felt necessary to support
it, no other aid was given than by redoubling the energy of the
causes which urged it to destruction. Thus violent is the course
of decaying despotism. The municipalities were daily sacrificed
in greater measure to the empire, and the decurions to the
municipalities; the external forms of liberty still existed
within the _curiæ_, as regarded the election of magistrates
and the administration of the affairs of the city; but these
forms were vain, for the citizens who were called upon to give
them life by their actions, were stricken to death in their
personal independence and in their fortune. It was in this state
of material ruin and moral annihilation that the Barbarians, when
they established themselves in the Roman territory, found the
towns, their magistrates, and their inhabitants.
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Abolition Of The Municipal System.
In the East, the agony of the _municipia_ was prolonged with
the duration of the empire. Here also some emperors made
unsuccessful attempts to restore them to prosperity. At length,
the progress of the central despotism became so great, and the
forms of municipal liberty so evidently a dead letter, that,
towards the end of the ninth century, the Emperor Leo, called the
Philosopher, abolished the whole municipal system at once, by the
following decree:--
"As, in things which serve for use in common life, we esteem
those which are convenient and useful, and despise those which
are of no utility, so we ought to act in reference to laws;
those which are of some advantage, and which confer some
benefit on the commonwealth, should be maintained and honoured;
but as for those whose maintenance is troublesome and
unimportant, not only should we pay no attention to them, but
we should reject them from the body of the laws. Now, we say,
that among the ancient laws passed in reference to _curiæ_
and _decuriones_, there are some which impose intolerable
burdens on the decurions, and confer on the _curiæ_ the
right of appointing certain magistrates, and of governing
cities by their own authority. Now that civil affairs have
assumed another form, and that all things depend solely upon
the care and administration of the imperial majesty, these laws
wander, in some sort, vainly and without object around the
legal territory; we therefore abolish them by the present
decree." [Footnote 15]
[Footnote 15: Novell. Leo. 46.]
Such were, during the period of twelve centuries which elapsed
between the treaty of Rome with Cœre and the reign of Leo the
Philosopher, the great revolutions of the municipal system in the
Roman world. We may characterize them by saying that, during the
first period, the municipal system was a liberty granted, in
fact, to the inhabitants of the towns; during the second, it was
a right legally constituted, as an indemnity for the loss of
political privileges; and, during the third, it was a burden
imposed upon a certain class of citizens.
I now terminate its history. In our next lecture, we shall
investigate the real state of the municipal system during the
third period, and its influence upon the condition of the
citizens.
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Lecture XXIII.
Of the various social conditions in the Roman Empire, before
the final invasion of the Barbarians.
The privileged classes, and curials.
Their obligations, functions, and immunities.
Attributes of the _curia_ as a body.
Of the various municipal magistracies and offices.
Of the _Defender_ in cities.
Comparison of the development of the municipal system, and its
relations to the central organization of the State in the Roman
Empire and in modern societies.
Social Conditions In The Roman Empire
At the commencement of the fifth century the subjects of the
Empire were divided into three classes, forming three very
distinct social conditions:
1. The privileged classes;
2. The curials;
3. The common people. I speak only of free men.
The privileged class included:
1. The members of the Senate, and all those who were entitled
to bear the name of _clarissimi;_
2. The officers of the palace;
3. The clergy;
4. The cohortal militia, a sort of _gendarmerie_ employed
in the maintenance of the internal order of the State, and the
execution of the laws;
5. The soldiers in general, whether included in the legions, or
in the troops attached to the palace, or in the corps of
barbarian auxiliaries.
The class of curials comprehended all the citizens inhabiting
towns, whether natives or settlers therein, who possessed a
certain landed income, and did not belong, by any title, to the
privileged class. The common people were the mass of the
inhabitants of the towns, whose almost absolute want of property
excluded them from a place among the curials.
The privileged members of the first class were numerous, of
various rank, and unequally distributed among the five orders of
which it was composed; but that which was, in fact, the most
important and most sought after of their privileges, that which
alone was more valuable than all the rest, was common to the five
orders which constituted this class--I mean, exemption from
municipal functions and offices.
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When we come to treat of the curials, you will learn what was the
extent of these duties; but you must first understand clearly who
were exempt from them.
1. The whole army, from the lowest _cohortalis_ to the
_magister equitum peditumve;_
2. The entire body of the clergy, from the simple clerk to the
archbishop;
3. It is an easy matter to define the two foregoing classes;
but it is not so clear who were the members of the class of
senators and _clarissimi_.
The number of the senators was unlimited; the emperor appointed
and dismissed them at his will, and could even raise the sons of
freedmen to this rank. All those who had filled the principal
magisterial offices in the Empire, or who had merely received
from the prince the honorary title belonging to those
magistratures, were called _clarissimi_, and had the right,
when occasion required, of sitting in the Senate. Thus the class
of _clarissimi_ included all the functionaries of any
importance: and they were all appointed and might be dismissed by
the emperor.
The Privileged Class.
The body of privileged individuals, then, was composed:
1. Of the army;
2. Of the clergy;
3. Of all the public functionaries, whether employed at the
Court and in the palace, or in the provinces.
Thus despotism and privilege had made a close alliance; and, in
this alliance, privilege, which depended almost absolutely on
despotism, possessed neither liberty nor dignity, except perhaps
in the body of the clergy.
This privilege, and especially exemption from curial functions,
was not purely personal, but also hereditary. It was so, in the
case of military men, on condition that the children also should
embrace the profession of arms; and in the case of civilians, it
was continued to those children who were born since their fathers
had belonged to the class of _clarissimi_, or had occupied
posts in the palace. Among the classes exempt from curial
functions was the cohortal militia, a subaltern service to which
those who entered it were hereditarily bound, and from which
there was no means of passing into a superior class.
The class of curials comprehended all the inhabitants of the
towns, whether natives thereof, _municipes_, or settlers
therein, _incolæ_, who possessed a landed property of more
than twenty-five acres, _jugera_, and did not belong to any
privileged class. Members of the curial class became so either by
origin, or by appointment.
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Every child of a curial was a curial also, and liable to all the
charges attached to that quality. Every inhabitant who, by trade
or otherwise, acquired a landed property of more than twenty-five
acres, might be summoned to enter the _curia_, and could not
refuse to do so. No curial could, by a voluntary act, pass into
another condition. They were interdicted from dwelling in the
country, entering the army, or engaging in employments which
would have liberated them from municipal functions, until they
had passed through every curial gradation, from that of a simple
member of a _curia_ to the highest civic magistracies. Then
alone they might become military men, public functionaries, and
senators. The children born to them before their elevation
remained curials. They were not allowed to enter the clergy
except by granting the enjoyment of their property to any one who
agreed to be a curial in their place, or by making a present of
their possessions to the _curia_ itself. As the curials were
incessantly striving to escape from their bondage, a multitude of
laws were passed directing the prosecution of those who had
escaped from their original condition, and succeeded in effecting
their entrance furtively into the army, the clergy, public
offices, or the Senate; and ordaining their restoration to the
_curia_ from which they had fled.
Functions And Charges Of The Curials.
The following were the functions and charges of the curials thus
confined, voluntarily or perforce, in the _curia_.
1. The administration of the affairs of the _municipium_,
with its expenditure and revenues, either by deliberating
thereon in the _curia_, or by discharging the magisterial
offices of the town. In this double position, the curials were
responsible not only for their individual management, but also
for the necessities of the town, for which they were bound to
provide out of their own resources, in case the municipal
revenues were insufficient.
2. The collection of the public taxes, also under the
responsibility of their private property in case of defaulters.
Lands which were subject to the land-tax and had been abandoned
by their possessors, were allotted to the _curia_, which
was bound to pay the tax thereon until it had found some one
willing to take them off its hands. If it could find no one,
the tax on the abandoned land was divided amongst the other
estates.
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3. No curial could sell the property from which he derived his
qualification, without the permission of the governor of the
province.
4. The heirs of curials, when not members of the _curia_,
and the widows or daughters of curials, who married men
belonging to other classes, were bound to give a fourth part of
their goods to the _curia_.
5. The curials who had no children could not dispose, by will,
of more than a fourth of their property: the other
three-fourths went, by right, to the curia.
6. They were not allowed to absent themselves from their
_municipium_, even for a limited time, without permission
from the judge of the province.
7. When they had withdrawn from their _curia_, and could
not be brought back, their property was confiscated to the
benefit of their _curia_.
8. The tax known by the name of _aurum coronarium_, and
which consisted in a sum to be paid to the prince, on the
occasion of certain events, was levied on the curials alone.
Advantages Granted To The Curials.
The only advantages granted to the curials in compensation
for these burdens were:
1. Exemption from torture, except in very serious cases.
2. Exemption from certain afflictive and dishonouring
punishments which were reserved for the populace; such as being
condemned to work in the mines, to be burned alive, and so
forth.
3. Decurions who had fallen into indigence were supported at
the expense of the _municipium_.
These were the only advantages possessed by the curials over the
common people, who, on the other hand, enjoyed the benefit that
every career was open to them, and that, by entering the army, or
engaging in public employments, they might raise themselves at
once into the privileged class.
The condition of the curials, then, both as citizens and in
relation to the State, was onerous and devoid of liberty.
Municipal administration was a burdensome service, to which the
curials were doomed, and not a right with which they were
invested. Let us now see what was the condition of the curials,
not in relation to the State, and to the other classes of
citizens, but in the _curia_ and amongst themselves. Here
still existed the forms, and even the principles, of liberty. All
the curials were members of the _curia_, and sat therein.
The ability to bear the burdens of the office entailed that of
exercising its rights, and taking part in its affairs; the names
of all the curials of each _municipium_ were inscribed, in
an order which was determined according to their dignity, age,
and other circumstances, in a book called the _album curiæ_.
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When there was occasion to deliberate upon any matter, they were
all convoked together by the superior magistrate of the town, the
_duumvir, ædilis_ or _prætor_, and they all gave their
opinions and their votes; everything was decided by the majority
of votes: and no deliberation of the _curia_ was valid
unless two-thirds of the curials were present.
Attributes Of The Curia.
The attributes of the curia as a body were:
1. The examination and decision of certain affairs;
2. The appointment of magistrates and municipal officers.
Nowhere can I find an enumeration of the affairs which fell under
the cognizance of the _curia_ as a body. Everything,
however, indicates that most of those municipal interests which
required more than the simple execution of the laws or of orders
already given, were discussed in the _curia_. The proper and
independent authority of the municipal magistrates appears to
have been very limited. For example, there is reason to believe
that no expense could be incurred without the authorization of
the _curia_. It fixed the time and place for holding fairs;
it alone granted recompenses; and so forth.
There were even occasions on which the authorization of the
_curia_ was not sufficient, and when it was necessary to
have the sanction of all the inhabitants, whether curials or not;
for example, for the sale of any property belonging to the
commune, or for the despatch of deputies to wait on the emperor
in reference to any grievance or request. On the other hand, it
is evident that, by the general progress of despotism, the
imperial power continued daily to interfere more and more in the
affairs of the _municipia_, and to limit the independence of
the _curiæ_. Thus they might not erect new buildings without
the permission of the governor of the province; the reparation of
the walls around the towns was subject to the same formality; and
it was also necessary for the emancipation of slaves, and for all
acts which tended to diminish the patrimony of the city. By
degrees, also, even those affairs the final decision of which had
previously belonged to the _curiæ_ fell, by way of objection
or appeal, under the authority of the emperor and his delegates
in the provinces. This occurred in consequence of the absolute
concentration of judicial and fiscal power in the hands of the
imperial functionaries. The _curia_ and the curials were
then reduced to be nothing more than the lowest agents of the
sovereign authority. There was left to them hardly anything
beyond the right of consultation and the right of complaint.
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Municipal Offices.
With regard to the appointment to municipal magistracies, it
remained for a long time, in reality, in the hands of the
_curia_, without any necessity for its confirmation by the
governor of the province, except in exceptional cases of towns
which it was specially intended to ill-use or punish. But even
this right soon became illusory by reason of the power given to
provincial governors to annul the appointment on the demand of
the person elected, When municipal functions had become merely
burdensome, all the curials elected to discharge these offices,
who had any influence with the governor, were able, under some
pretext or another, to get their election annulled, and thus to
escape from the load.
There were two kinds of municipal offices: the first, called
_magistratus_, which conferred certain honours and a certain
jurisdiction; the second, called _munera_, simple
employments without jurisdiction and without any particular
dignity. The _curia_ appointed to both kind of offices; only
the magistrates proposed the men whom they thought competent to
fulfil the _munera_; but even these were not really
appointed until they had obtained the suffrages of the
_curia_.
The _magistratus_ were:
1. _Duumvir_; this was the most usual name of the chief
municipal magistrate. He was also called, in certain
localities, _quatuorvir, dictator, ædilis, prætor_. His
tenure of office was for a year; it corresponded pretty nearly
with that of our mayors; the _duumvir_ presided over the
_curia_, and directed the general administration of the
affairs of the city. He had a jurisdiction confined to matters
of small importance; he also exercised a police authority which
gave him the right of inflicting certain punishments upon
slaves, and of provisionally arresting freemen.
2. _Ædilis_; this was a magistrate generally inferior to
the _duumvir_; he had the inspection of public edifices,
of the streets, of corn, and of weights and measures. These two
magistrates, the _duumvir_ and _ædilis_, were
expected to give public festivals and games.
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3. _Curator reipublicæ;_ this officer, like the ædile,
exercised a certain oversight over public edifices; but his
principal business was the administration of the finances; he
farmed out the lands of the _municipium_, received the
accounts of the public works, lent and borrowed money in the
name of the city, and so forth.
The _munera_ were:
1. _Susceptor_, the collector of taxes, under the
responsibility of the curials who appointed him.
2. _Irenarchæ_, commissaries of police, whose duty it was
to seek out and prosecute offences, in the first instance.
3. _Curatores_, officers charged with various particular
municipal services; _curator frumenti, curator
calendarii_, the lender out on good sureties of the money of
the city, at his own risk and peril.
4. _Scribæ_, subaltern clerks in the two offices. To this
class belonged the _tabelliones_, who performed almost the
same functions as our notaries.
The Defenders Of Cities.
In later times, when the decay of the municipal system became
evident, when the ruin of the curials and the impotence of all
the municipal magistrates to protect the inhabitants of the
cities against the vexations of the imperial administration,
became evident to despotism itself; and when despotism, suffering
at length the punishment of its own deeds, felt society
abandoning it on every side, it attempted, by the creation of a
new magistracy, to procure for the _municipia_ some security
and some independence. A _defensor_ was given to every city;
his primitive mission was to defend the people, especially the
poor, against the oppression and injustice of the imperial
officers and their agents. He soon surpassed all the other
municipal magistrates in importance and influence. Justinian gave
the _defenders_ the right to exercise, in reference to each
city, the functions of the governor of the province during the
absence of that officer; he also granted them jurisdiction in all
cases which did not involve a larger sum than 300 _aurei_.
They had even a certain amount of authority in criminal matters,
and two apparitors were attached to their person; and in order to
give some guarantees of their power and independence, two means
were employed; on the one hand, they had the right of passing
over the various degrees in the public administration, and of
carrying their complaints at once before the prætorian prefect;
this was done with the intention of elevating their dignity by
freeing them from the jurisdiction of the provincial authorities.
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On the other hand, they were elected, not by the _curia_
merely, but by the general body of the inhabitants of the
_municipium_, including the bishop and all the clergy; and
as the clergy then alone possessed any energy and influence, this
new institution, and consequently all that still remained of the
municipal system, fell into its hands almost universally. This
was insufficient to restore the vigour of the _municipia_,
under the dominion of the empire; but it was enough to procure
for the clergy great legal influence in the towns after the
settlement of the Barbarians. The most important result of the
institution of _defenders_ was to place the bishops at the
head of the municipal system, which otherwise would have
dissolved of itself, through the ruin of its citizens and the
nullity of its institutions.
Destruction Of The Middle Class.
Such are the facts: they demonstrate the phenomenon which I
indicated at the outset, namely, the destruction of the middle
class in the empire; it was destroyed materially by the ruin and
dispersion of the curials, and morally by the denial of all
influence to the respectable population in the affairs of the
State, and eventually in those of the city. Hence it arose that,
in the fifth century, there was so much uncultivated land and so
many towns almost deserted, or inhabited only by a famished and
spiritless population. The system which I have just explained
contributed, much more powerfully than the devastations of the
Barbarians, to produce this result.
In order rightly to apprehend the true character and consequences
of these facts, we must reduce them to general ideas, and deduce
therefrom all that they contain in regard to one of the greatest
problems of social order. Let us first examine them on the
relations of the municipal system with political order, of the
city with the State. In this respect, the general fact which
results from those which I have stated, is the absolute
separation of political rights and interests from municipal
rights and interests; a separation equally fatal to the political
rights and interests, and to the municipal rights and interests
of citizens. So long as the principal citizens possessed, at the
centre of the State, real rights and an actual influence, the
municipal system was not wanting in guarantees of security, and
continued to develop itself. As soon as the principal citizens
lost their influence at head quarters, these guarantees
disappeared, and the decay of the municipal system was not long
in manifesting itself.
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The Roman Empire And Modern States.
Let us now compare the course of things in the Roman world, with
what has occurred in the modern states. In the Roman world,
centralization was prompt and uninterrupted. In proportion as she
conquered the world, Rome absorbed and retained within her walls
the entire political existence of both victors and vanquished.
There was nothing in common between the rights and liberties of
the citizen, and the rights and liberties of the inhabitant;
political life and municipal life were not confounded one in the
other, and were not exhibited in the same localities. In regard
to politics, the Roman people had, in truth, only one head; when
that was stricken, political life ceased to exist; local
liberties then found themselves unconnected by any bond, and
without any common guarantee for their general protection.
Among modern nations, no such centralization has ever existed. On
the contrary, it has been in the towns, and by the operation of
municipal liberties, that the mass of the inhabitants, the middle
class, has been formed, and has acquired importance in the State.
But when once in possession of this point of support, this class
soon felt itself to be in straits, and without security. The
force of circumstances made it understand that, so long as it was
not raised to the centre of the State, and constitutionally
established there; so long as it did not possess, in political
matters, rights which should prove the development and pledge of
those which it exercised in municipal affairs--these last would
be insufficient to protect it in all its interests, and even to
protect themselves. Here is the origin of all the efforts which,
from the thirteenth century onwards, either by States General or
Parliaments, or by more indirect means, were made for the purpose
of raising the burghers to political life, and associating with
the rights and liberties of the inhabitant, the rights and
liberties of the citizen. After three centuries of endeavour,
these efforts were unsuccessful. The municipal system was unable
to give birth to a political system which should correspond with
it and become its guarantee. The centralization of power was
effected without any centralization of rights.
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Thenceforward the municipal system proved weak and incapable of
defending itself; it had been formed in spite of feudal
domination; it was unable to exist in presence of a central
authority, and in the midst of administrative monarchy. The towns
gradually lost, obscurely and almost unresistingly, their ancient
liberties. No one is ignorant that, at the moment when the French
revolution broke out, the municipal system in France was nothing
more than a vain shadow, without consistency or energy.
Results of the Comparison.
Thus although, in the Roman world and amongst ourselves, matters
have progressed in inverse proportion, although Rome began by the
centralization of public liberties, and modern States by
municipal freedom, in both cases facts alike reveal to us the
double truth that the two orders of liberties and rights are
indispensable to one another, that they cannot be separated
without mutual injury, and that the ruin of one necessarily
entails the ruin of that which at first survives.
A second result of no less importance is revealed to us by the
same facts. The separation of the municipal from the political
system led, in the Roman empire, to the legal classification of
society and to the introduction of privilege. In modern States,
an analogous classification and the presence of aristocratic
privileges prevented the municipal system from raising itself to
political influence, and from producing the rights of the citizen
from the local rights of the inhabitant. Where, then, municipal
and political life are strangers to one another, where they are
not united in the same system and bound together in such a manner
as reciprocally to guarantee each other's security, we may be
certain that society either is or soon will be divided into
distinct and unchangeable classes, and that privilege either
already exists or is about to make its appearance. If the
burgesses have no share in the central power, if the citizens who
exercise or share in the central power do not at the same time
participate in the rights and interest of the burgesses, if
political and municipal existence proceed thus collaterally,
instead of being, as it were, included in each other, it is
impossible for privilege not to gain a footing, even beneath the
iron hand of despotism and in the midst of servitude.
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Principles of Liberty.
If from all this we desire to deduce a still more general
consequence, and to express it in a purely philosophical form, we
shall acknowledge that, in order that right may certainly exist
in any place, it must exist everywhere, that its presence at the
centre is vain unless it be present also in localities; that,
without political liberty, there can be no solid municipal
liberties, and _vice versâ_. If, however, we consider the
facts already stated in reference to the municipal system taken
in itself and in its internal constitution; if in these facts we
look for principles--we shall meet with the most singular
amalgamation of the principles of liberty with those of
despotism; an amalgamation, perhaps unexampled, and certainly
inexplicable to those who have not well understood the course of
circumstances, both in the formation and in the decline of the
Roman world.
The presence of principles of liberty is evident. They were
these.
1. Every inhabitant possessing a fortune which guaranteed his
independence and intelligence, was a curial; and, as such,
called upon to take part in the administration of the affairs
of the city. Thus, the right was attached to presumed capacity,
without any privilege of birth, or any limit as to number; and
this right was not a simple right of election, but the right of
full deliberation, of immediate participation in affairs, as
far as they related to what occurred in the interior of a town,
and to interests which might be understood and discussed by all
those who were capable of raising themselves above the cares of
individual existence. The _curia_ was not a restricted and
select council, it was an assembly of all the inhabitants who
possessed the conditions of curial capacity.
2. An assembly cannot administrate--magistrates are necessary.
These were all elected by the _curia_, for a very short
time; and they answered for their administration by their
private fortune.
3. In circumstances of importance, such as changing the
condition of a city, or electing a magistrate invested with
vague and more arbitrary authority, the _curia_ itself was
not sufficient; the whole body of the inhabitants was called in
to take part in these solemn acts.
Who, on beholding such rights, would not think that he saw a
small republic, in which municipal and political life were merged
in one another, and in which the most democratic rule prevailed?
Who would think that a municipality thus regulated formed a part
of a great empire, and depended, by narrow and necessary bonds,
on a remote and sovereign central power?
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Who would not, on the contrary, expect to meet with all the
outbreaks of liberty, all the agitations and cabals, and
frequently all the disorder and violence which, at all periods,
characterize small societies thus shut up and governed within
their own walls?
Principles Of Despotism.
Nothing of the kind was the case, and all these principles of
liberty were lifeless. Other principles existed which struck them
to death.
1. Such were the effects and exactions of the central despotism
that the quality of curial ceased to be a right confessedly
belonging to all who were capable of exercising it, and became
a burden imposed upon all who were able to bear it. On the one
hand, the government discharged itself from the care of
providing for those public services which did not affect its
own interests, and so cast the obligation on this class of
citizens; and, on the other hand, it employed them to collect
the taxes destined for its use, and made them responsible for
the payment thereof. It ruined the curials in order to pay its
own functionaries and soldiers; and it granted to its own
functionaries and soldiers all the advantages of privilege, in
order to obtain their assistance forcibly to prevent the
curials from escaping from their impending ruin. Complete
nullities as citizens, the curials lived only to be fleeced.
2. All the elective magistrates were, in fact, merely the
gratuitous agents of despotism, for whose benefit they robbed
their fellow-citizens, until they should be able, in some way
or another, to free themselves from this unpleasant obligation.
3. Their election even was valueless, for the imperial delegate
in the province could annul it, and they had the greatest
personal interest in obtaining this favour from him; in this
way also, they were at his mercy.
4. Lastly, their authority was not real, for it had no
sanction. No effective jurisdiction was allowed them; they
could do nothing that might not be annulled. Nay, more: as
despotism daily perceived more clearly their impotence or
ill-will, it daily encroached further upon the domain of their
attributes, either by its own personal action, or by its direct
delegates. The business of the _curia_ vanished
successively with its powers; and a day was not far distant
when the municipal system would be abolished at a single stroke
in the rapidly decaying empire, "because," the legislator would
say, "all these laws wander, in some sort, vaguely and
objectless about the legal territory."
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General Conclusions.
Thus, the municipal power, having become completely estranged
from political and civil power, ceased to be a power itself.
Thus, the principles and forms of liberty, isolated remains of
the independent existence of that multitude of towns which were
successively added to the Roman empire, were impotent to defend
themselves against the coalition of despotism and privilege.
Thus, here also, we may learn what so many examples teach us;
namely, that all the appearances of liberty, all the external
acts which seem to attest its presence, may exist where liberty
is not, and that it does not really exist unless those who
possess it exercise a real power--a power, the exercise of which
is connected with that of all powers. In the social state,
liberty is participation in power; this participation is its
true, or rather its only, guarantee. Where liberties are not
rights, and where rights are not powers, neither rights nor
liberties exist.
We must not, therefore, be surprised either at that complete
disappearance of the nation which characterized the fall of the
Roman empire, or at the influence which the clergy soon obtained
in the new order of things. Both phenomena are explained by the
state of society at that period, and particularly by that state
of the municipal system which I have just described. The bishop
had become, in every town, the natural chief of the inhabitants,
the true mayor. His election, and the part which the citizens
took in it, became the important business of the city. It is to
the clergy that we owe the partial preservation, in the towns, of
the Roman laws and customs, which were incorporated at a later
period into the legislation of the State. Between the old
municipal system of the Romans, and the civil-municipal system of
the communes of the Middle Ages, the ecclesiastical municipal
system occurred as a transition. This transition state lasted for
several centuries. This important fact was nowhere so clearly and
strongly developed as in the monarchy of the Visigoths in Spain.
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Lecture XXIV.
Sketch of the history of Spain under the Visigoths.
Condition of Spain under the Roman empire.
Settlement of the Visigoths in the south-west of Gaul.
Euric's collection of the laws of the Visigoths.
Alaric's collection of the laws of the Roman subjects.
Settlement of the Visigoths in Spain.
Conflict between the Catholics and Arians.
Political importance of the Councils of Toledo.
Principal kings of the Visigoths.
Egica collects the _Forum judicum_.
Fall of the Visigothic monarchy in Spain.
Spain Under The Roman Empire.
Under the Roman empire, before the Barbarian invasions, Spain
enjoyed considerable prosperity. The country was covered with
roads, aqueducts, and public works of every description. The
municipal government was almost independent; the principle of a
landed census was applied to the formation of the _curiæ_;
and various inscriptions prove that the mass of the people
frequently took part with the Senate of the town, in the acts
done in its name. There were _conventus juridici_, or
sessions held by the presidents of the provinces and their
assessors in fourteen towns of Spain; and _conventus
provinciales_, or ordinary annual assemblies of the deputies
of the towns, for the purpose of treating of the affairs of the
province, and sending deputies to the emperor with their
complaints and petitions.
All these institutions fell into decay at the end of the fourth
century. The imperial despotism, by devolving all its exactions
upon the municipal magistrates, had rendered these offices
onerous to those who filled them, and odious to the people. On
the other hand, since the emperor had made himself the centre of
all, the provincial assemblies were useless except as
intermediaries between the cities and the emperor; when the
municipal organization had become enervated, and the emperor had
almost entirely disappeared, these assemblies were found to be
inconsistent and powerless in themselves. The sources whence they
emanated, and the centre at which they terminated, were devoid of
strength, and perished.
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Barbarian Invasions Of Spain.
Such was the condition of Spain when, in 409, the Vandals, Alans,
and Suevi crossed the Pyrenees. The Vandals remained in Galicia
and Andalusia until 429, at which period they passed into Africa;
the Alans, after having dwelt for a time in Lusitania and the
province of Carthagena, emigrated into Africa with the Vandals.
The Suevi founded a kingdom in Galicia, which existed as a
distinct State until 585, when Leovigild, king of the Visigoths,
reduced it under his sway. Finally Ataulphus, at the head of the
Visigoths, entered Southern Gaul, acting sometimes as an ally,
and sometimes as an enemy of the empire. He was assassinated at
Barcelona, in the year 415.
I shall now pass in rapid review the principal events which mark
the history of the Visigoths in Spain, subsequently to the death
of Ataulphus.
1. Wallia, king of the Visigoths, from 415 to 419, made peace
with the Emperor Honorius, on condition of making war against
the other Barbarians in Spain. He was furnished with supplies,
and authorized to establish himself in Aquitaine. He fixed his
residence at Toulouse, and waged war against the Alans and
Vandals. The Romans regained possession of a part of Spain;
Wallia's Goths, mingled with the Alans, settled in the province
of Tarragona. Catalonia (_Cataulania, Goth-Alani_) derives
its name from this commingling of the two nations. The
settlement of the Goths in Gaul lay between the Loire, the
Ocean, and the Garonne, and comprehended the districts of
Bordeaux, Agen, Perigueux, Saintes, Poitiers, and Toulouse.
2. Theodoric I. (419 451.) Under this monarch, the Visigoths
extended their dominion in the south-east of Gaul. Their
principal wars were with the Roman empire, which, after having
made use of the Goths against the Vandals and Suevi, was now
using the Huns against the Goths. In 425, occurred the siege of
Arles by Theodoric; in 436, the siege of Narbonne. There was a
disposition among the inhabitants of the country to range
themselves under the dominion of the Goths, who were able to
defend them against the other Barbarians, and to renounce their
allegiance to Rome, which was bringing other Barbarians to
subdue the Goths. About 449, the kingdom of the Visigoths
extended as far as the Rhone. Theodoric made several
expeditions into Spain; generally as the price of peace with
the Romans. In 451, Theodoric was killed at a battle fought
against Attila, either at Chalons-sur-Marne, or Mery-sur-Seine.
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Visigothic Monarchy In Gaul.
3. Thorismund (451-453). A victory was gained over Attila, who
had attacked the Alans settled on the Loire and in the
neighbourhood of Orleans. It was evidently the Visigoths who
drove the Huns out of Gaul. Thorismund was assassinated.
4. Theodoric II. (453-466). Avitus, _Magister militiæ_ in
the south of Roman Gaul, travelled to Toulouse to treat of
peace with Theodoric, and was made emperor by the aid of the
Visigoths. In concert with the Romans, Theodoric II. made an
expedition into Spain against the Suevi. Rechiar, king of the
Suevi, was defeated on the 5th of October, 450, near Astorga.
This was rather an expedition than a conquest on the part of
the Visigoths. Theodoric II., a curious portrait of whom has
been left us by Sidonius Apollinarius, was assassinated in 462;
he had acquired the district of Narbonne.
5. Euric (466-484). This reign was the culminating point of the
Visigothic monarchy in Gaul. Euric led expeditions beyond the
Loire against the Armoricans; in 474, he conquered Auvergne,
which was then ceded to him by treaty; he had already conquered
Arles and Marseilles, so that the monarchy of the Visigoths
then extended from the Pyrenees to the Loire, and from the
Ocean to the Alps, thus adjoining the monarchies of the
Burgundians and Ostrogoths. Euric had also extended his
dominions into Spain, where he possessed the Tarragonese
district and Bœtica, which he had conquered from the Suevi.
Euric had the laws and customs of the Goths written in a book.
A passage of Sidonius Apollinarius which speaks of
_Theodoricianæ leges_, has led to the belief that
Theodoric commenced this collection; but Euric is also called
Theodoric.
6. Alaric II. (484-507.) This reign was the epoch of the decay
of the Visigothic monarchy in Gaul. Alaric, less warlike than
his predecessors, gave himself up to the pursuit of pleasure.
He was defeated by Clovis, at Vouillé near Poitiers, and left
dead on the field. The Franks in the east, and the Burgundians
in the west, dismembered the Visigothic monarchy, which thus
became reduced to Languedoc, properly so called, and a few
districts adjacent to the Pyrenees.
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The Breviarium Aniani.
Alaric did for his Roman subjects what Euric had done for the
Goths. He collected and revised the Roman laws, and formed them
into a code called the _Codex Alaricianus_. This code was
based upon the _Codex Theodosianus_ published in 438 by
Theodosius the Younger, and upon the _Codex Gregorianus_,
the _Codex Hermogenianus_, the _Pauli Sententiæ_, and
the _Constitutiones Imperiales_, published subsequently to
the reign of Theodosius. This code was also called the
_Breviarium Aniani_. It has been thought that Anianus, the
referendary of Alaric, was its principal editor; but Père Sirmond
has proved that Anianus only published it by order of the king,
and sent authentic copies of it into the provinces. By an act
of Alaric, the Roman legislation was, so to speak, revived,
rearranged, and adapted to the monarchy of the Goths. It
thenceforth emanated from the Gothic king himself. In the north
of Gaul, whilst the Barbarian laws ceased to be customs and
became written laws, the Roman laws lost their force as a
whole, and became customs; in the south, on the other hand,
they remained written laws, and retained much greater power,
exercising an important influence upon the laws of the
Barbarians. It would appear that this twofold written
legislation must tend necessarily to maintain the separation of
the two nations; but it contributed on the contrary to bring it
to an end.
7. After the death of Alaric II., his legitimate son Amalaric,
still a child, was taken into Spain. His natural son, Gesalic,
became a king in Gaul. At this period, the monarchy of the
Visigoths was transferred from Gaul into Spain. The Franks,
Burgundians, and Ostrogoths, seized the Gallic possessions of
the Visigoths. Gesalic was defeated, and Amalaric reigned under
the protection of his grandfather Theodoric, and the tutelage
of Theudes.
8. On the death of Amalaric, Theudes was elected king, and
reigned from 531 to 548. He fixed the seat of the Visigothic
monarchy in Spain. He waged long wars against the Franks, and,
though an Arian, behaved with tolerance towards the Catholics.
He authorized the bishops to meet annually in council at
Toledo. Until the reign of Theudes, the principle of hereditary
succession to the throne appears to have prevailed among the
Visigoths; after Theudes, the principle of election prevailed
in fact and in law.
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9. From 548 to 567, reigned Theudegisil, Agila, Athanagild.
There were continual wars between the Franks, the Suevi, and
the Romans. To obtain the assistance of the Romans in his
rebellion against Agila, Athanagild gave up to the Emperor
Justinian several places between Valentia and Cadiz. Roman
garrisons were accordingly sent into those towns. The Romans
had also retained possession of other towns in Spain.
Athanagild took up his residence at Toledo. He was the father
of Queen Brunehault. At his death, the grandees remained five
months without electing his successor. At length they elected
Liuva, the governor of Narbonne, who associated his brother
Leovigild with him on the throne. Leovigild governed Spain, and
Liuva, Visigothic Gaul. Liuva died in 570, and Leovigild became
sole king. With him commences, to speak truly, the complete and
regular monarchy of the Visigoths in Spain.
Reign Of Leovigild.
10. Leovigild, from 570 to 586, consolidated and extended the
monarchy. He gained great victories over the Greco-Romans who
had recovered a part of Spain, and won from them
Medina-Sidonia, Cordova, and other towns. He also defeated the
Vascons [Footnote 16] who had maintained their independent
occupation of the country on both sides of the Pyrenees. In
586, he completely subdued the Suevi; he greatly extended the
royal power, made large confiscations of the property of the
church and the nobles, persecuted the Catholics, and convoked a
council of Arian bishops at Toledo, in 582, to endeavour to
explain Arianism in such a manner as to satisfy the people, and
to insure its general reception in his dominions. A civil war
broke out between Leovigild and his son Hermenegild, who was a
Catholic. After various vicissitudes, Hermenegild was taken,
confined at Seville in a tower which bears his name, and put to
death in 684. Before his insurrection, he was associated with
his father in the crown, as was also his brother Recared, who
governed the provinces in Gaul. Leovigild corrected and
completed the laws of Euric.
[Footnote 16: Probably the Basques of the present day. ]
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Up to this period, there was no unity in the Visigothic
monarchy. General institutions were wanting. The national
assemblies were more irregular than in other countries. Neither
the principle of hereditary succession, nor that of election,
prevailed as regarded the kingly office. Out of fourteen kings,
six had been assassinated. There was no coherence among the
provinces of the kingdom. The clergy were deeply divided
amongst themselves. The king gave a factitious preponderance to
the Arian minority.
Reign Of Recared.
11. In 586, Recared I. succeeded Leovigild, declared himself a
Catholic, and convoked the third general council of Toledo, in
587. A union was effected between the royal and ecclesiastical
authority. Recared found himself in a position somewhat
analogous to that of Constantine the Great, after his
conversion to Christianity. He was energetically supported by
the Catholic clergy, whom he, in his turn, as zealously
maintained. At the third council of Toledo, the two powers made
in common the laws of which they both had need. An important
fact should be noticed in the tenure of this council. During
the first three days the ecclesiastics sat alone, and regulated
religious affairs exclusively. On the fourth day, laymen were
admitted; and affairs both civil and religious were then
treated of.
Recared made war against the Franks of Gothic Gaul, and against
the Romans in Spain. This last war was terminated by the
intervention of Pope Gregory the Great, who negotiated a treaty
between the Emperor Maurice and Recared, the latter of whom,
since 590, had sent ambassadors to the Pope. The Arian clergy
excited several rebellions against Recared.
12. In 601, Recared was succeeded by his son Liuva II., who was
assassinated in 603. Withemar, his successor, was assassinated
in 610. Gundemar was then elected, but he died in 612. Sisebut
acceded to the throne in 613, and made war against the remnant
of the Roman Empire in Spain. He reduced to a mere nullity the
possessions which the emperor had until then retained. He
imposed upon the Jews the necessity of being baptized.
Heraclius had commenced this persecution in the Eastern Empire;
and it entered as a condition into the treaty which he made
with Sisebut. The Jews, when driven from Spain, took refuge in
Gaul, where they were equally persecuted by Dagobert: so that
they knew not whither to flee for refuge. The laws of Sisebut
were issued in virtue of the king's authority alone, without
the concurrence of the councils.
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13. Recared, the second son of Sisebut, reigned for a few
months. He was succeeded, in 621, by Suinthila, son of Recared
I., who was elected king. Suinthila had served as a general
under Sisebut. We frequently meet with similar cases in the
history of the Visigoths; and they prove that the idea of
hereditary succession was still not firmly established.
Suinthila made a great expedition against the Basques. He drove
them to the other side of the Pyrenees, and built a fortress
which is believed to have been Fontarabia. He completely
expelled the Romans from Spain, by sowing dissension between
the two patricians who still governed the two Roman provinces,
and by granting the Roman troops who remained in the country
permission to return home.
Usurpation Of Sisenand.
14. In 631, occurred the usurpation of Sisenand by the aid of
King Dagobert, who sent an army of Franks, which penetrated as
far as Saragossa. Suinthila abdicated the throne. Sisenand
succeeded him, and reigned from 631 to 636. In 634, Sisenand's
usurpation was confirmed by the fourth council of Toledo. The
crown was declared elective by the bishops and nobles, and
ecclesiastical privileges received great extension. From 636 to
640, Chintila reigned. During his reign, the fifth and sixth
councils of Toledo passed laws regarding the elections of kings
and the condition of their families after their death, against
the Jews, and on other subjects. Chintila was succeeded by his
son Tulga, who was deposed in 642.
15. Chindasuinth reigned tyrannically from 642 to 652. Two
hundred of the principal Goths were put to death, and their
property confiscated; many of the inhabitants emigrated;
Chindasuinth convoked the seventh council of Toledo, the canons
of which against the emigrants were very rigorous. In all the
measures of his government, we may discern the influence of the
Catholic clergy, intimately connected with the king against the
Arian faction. One canon ordained that every bishop residing
near Toledo, should spend one month in every year at the court
of the king. Chindasuinth revised and completed the collection
of the laws relating to different classes of his subjects, and
entirely abolished the special employment of the Roman law in
his dominions. In 649, he associated his son Recesuinth with
him in the crown, and obtained his recognition as his
successor.
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Recesuinth And Divine Right.
On opening the eighth council of Toledo, Recesuinth said; "The
Creator raised me to the throne by associating me in the
dignity of my father, and by his death the Almighty has
transmitted to me the authority which I have inherited." These
words are the expression of the theory of divine right.
Recesuinth directed the council to revise and complete the
collection of laws; imposed a fine of thirty pounds of gold on
any one who should appeal to any other than the national law;
permitted marriages between the Romans and Goths, which had
been until then interdicted; revoked the laws of his father
against the emigrants; and restored a portion of the
confiscated property. A law was also passed, separating the
private domain of the king from the public domain. The
preponderance of the bishops in the council is evident. The
canons are signed by seventy-three ecclesiastics, and by only
sixteen counts, dukes, or _proceres_. Recesuinth died on
the 1st September, 672.
16. Wamba, elected on the 19th September, 672, manifested great
repugnance to accept the crown. He repressed the rebels in
Gothic Gaul, and besieged Narbonne and Nismes. He also
vigorously opposed the descents of the Saracens, who were
beginning to infest the coasts of Spain, as the Normans were
infesting those of Gaul. He fortified Toledo and many other
towns. During his reign the division of the kingdom into
dioceses took place; six archbishoprics and seventy bishoprics
were established. Wamba made several laws for organizing
military service, and repressing the excesses of the clergy.
17. In 680, Wamba was deposed by the intrigues of Erwig, who
was supported by the clergy. Wamba abdicated, and withdrew to a
convent. Erwig convoked the twelfth council of Toledo, at which
Wamba's voluntary abdication was announced, and Erwig appointed
his successor. The new monarch directed the council to revise
and modify the laws of Wamba regarding military service, and
the penalties to be imposed upon delinquents. A less severe
legislation was the work of the twelfth and thirteenth councils
of Toledo.
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The Forum Judicum.
18. Erwig had given his daughter Cixilone in marriage to Egica,
a near relation of Wamba. In 687, Egica succeeded Erwig. He
charged the sixteenth council of Toledo to make a complete
collection of the laws of the Visigoths; and this collection,
under the name of the _Forum judicum_, or _Fuero
juzgo_, long ruled the Spanish monarchy.
19. Egica had associated with himself his son Witiza, who
succeeded him in 701. Witiza was tyrannical and dissolute. He
allowed the priests to marry, recalled the Jews, entered into
conflict with the Spanish clergy and the Pope; violently
persecuted the principal lay lords, among others Theutfred and
Favila, dukes of Cordova and Biscay, and sons of king
Chindasuinth; and fell a victim, in 710, to a conspiracy formed
against him by Roderic, son of Theutfred. Roderic, or Rodrigo,
became king of the Visigoths, and his reign was the last of
this monarchy. I shall not relate to you his wars with the
Saracens, or the celebrated adventure of Count Julian and his
daughter La Cava, who was violated by Roderic, or any of the
last scenes of this history which have now become popular
poetry. [Footnote 17] Political institutions are now the sole
subject of our study. In my next lectures, I shall tell you of
the _Forum judicum_, a very remarkable legislative work,
which deserves our serious examination and attention.
[Footnote 17: For the legend of Count Julian, and other
information regarding this most interesting period of Spanish
history, see Washington Irving's "Legends of the Conquest of
Granada and Spain," in Bohn's edition of his works.]
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Lecture XXV.
Peculiar character of the legislation of the Visigoths.
Different sorts of laws contained in the _Forum judicum_.
It was a doctrine as well as a code.
Principles of this doctrine on the origin and nature of power.
Absence of practical guarantees.
Preponderance of the clergy in the legislation of the
Visigoths.
True character of the election of the Visigothic kings.
The Visigothic legislation characterized by a spirit of
mildness and equity towards all classes of men, and especially
towards the slaves.
Philosophical and moral merits of this legislation.
Character Of Visigothic Legislation.
Of all the Barbarian codes of law, that of the Visigoths is the
only one which remained in force, or nearly so, until modern
times. We must not expect to find in this code itself the only,
or even the principal, cause of this circumstance. And yet the
peculiar character of this code contributed powerfully to
determine its particular destiny; and more than one phase in
Spanish history is explained, or at least elucidated, by the
special and distinctive character of its primitive legislation.
This character I wish to make you thoroughly understand. I cannot
now deduce therefrom all the consequences which it contains; but
I think they will readily be perceived by the careful observer.
The legislation of the Visigoths was not, like that of the
Franks, Lombards, and others, the law of the Barbarian
conquerors. It was the general law of the kingdom, the code which
ruled the vanquished as well as the victors, the Spanish Romans
as well as the Goths. King Euric, who reigned from 466 to 484,
had the customs of the Goths written out. Alaric II., who ruled
from 484 to 507, collected and published in the
_Breviarium-Aniani_, the Roman laws which were applicable to
his Roman subjects. Chindasuinth, who reigned from 642 to 652,
ordered a revision and completion of the Gothic laws, which had
already been frequently revised and augmented since the time of
Euric; and completely abolished the Roman law.
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Recesuinth, who reigned from 652 to 672, by allowing marriages
between the Goths and Romans, endeavoured completely to
assimilate the two nations: thenceforward, there existed, or at
least there ought to have existed, on the soil of Spain, one
single nation formed by the union of the two nations, and ruled
by one single code of laws, comprising the essential parts of the
two codes. Thus, whilst the system of personal laws, or laws
based on the origin of individuals, prevailed in most of the
Barbarian monarchies, the system of real laws, or laws based upon
land, held sway in Spain. The causes and consequences of this
fact are of great importance.
Laws Of The Forum Judicum.
Four different kinds of laws may be distinguished in the _Forum
judicum_.
1. Laws made by the kings alone, in virtue of their own
authority, or merely with the concurrence of their privy
council, _officium palatinum_.
2. Laws made in the national councils held at Toledo, in
concert with the bishops and grandees of the realm, and with
the assent, more frequently presumed than expressed, of the
people. At the opening of the council, the king proposed, in a
book called _tomus regius_, the adoption of new laws or
the revision of old ones; the council deliberated thereupon;
and the king sanctioned and published its decisions. The
influence of the bishops was predominant.
3. Laws without either date or author's name, which seem to
have been literally copied from the various collections of laws
successively compiled by Euric, Leovigild, Recared,
Chindasuinth, and other kings.
4. Lastly, laws entitled _antiqua noviter emendata_, which
were mostly borrowed from the Roman laws, as is formally
indicated by their title in some manuscripts.
The _Forum judicum_, as we possess it at the present day, is
a code formed of the collection of all these laws, as finally
collected, revised, and arranged at the sixteenth council of
Toledo, by order of King Egica. The most ancient Castilian
version of the _Forum judicum_ appears to have been made
during the reign of Ferdinand the Saint (1230-1252).
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Visigothic Theory Of Law.
Legislation is almost always imperative; it prescribes or
interdicts; each legal provision usually corresponds to some fact
which it either ordains or prohibits. Rarely does it happen that
a law, or code of laws, are preceded by a theory on the origin
and nature of power, the object and philosophic character of law,
and the right and duty of the legislator. All legislations
suppose some solution or other to these primary questions, and
conform thereto; but it is by a secret bond, frequently unknown
to the legislator himself. The law of the Visigoths has this
singular characteristic, that its theory precedes it, and is
incessantly recurrent in it--a theory formally expressed, and
arranged in articles. Its authors wished to do more than ordain
and prohibit; they decreed principles, and converted into law
philosophical truths, or what appeared to them to be such.
This fact alone indicates that the _Forum judicum_ was the
work of the philosophers of that period; I mean, the clergy.
Never did such a proceeding occur to the mind of a new people,
still less to a horde of Barbarian conquerors. Assuredly a
doctrine which thus serves as preface and commentary to a code,
merits our best attention.
"The law," says the _Forum judicum_, "is the emulator of
divinity, the messenger of justice, the mistress of life. It
regulates all conditions in the State, all ages of human life;
it is imposed on women as well as on men, on the young as well
as on the old, on the learned as well as on the ignorant, on
the inhabitants of towns as well as on those of the country; it
comes to the aid of no particular interest; but it protects and
defends the common interest of all citizens. It must be
according to the nature of things and the customs of the State,
adapted to the time and place, prescribing none but just and
equitable rules, clear and public, so as to act as a snare to
no citizen."
In these ideas on the nature and object of written law, the
fundamental idea of the theory is revealed. There is an
unwritten, eternal, universal law, fully known to God alone, and
which the human legislator seeks after. Human law is good only in
so far as it is the _emulator_ and _messenger_ of the
divine law. The source of the legitimacy of laws is, then, not to
be found on earth; and this legitimacy originates, not in the
will of him or them who make the laws, whoever they may be, but
in the conformity of the laws themselves to truth, reason, and
justice--which constitute the true law.
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All the consequences of this principle were certainly not present
to the mind of the Spanish bishops, and many of the consequences
which they deduced were very false; but the principle was there.
They deduced from it this other principle, then unknown to
Europe, that the character of law is to be universal, the same
for all men, foreign to all private interests, given solely for
the common interest. On the other hand, it was the character of
the other Barbarian codes that they were conceived for the
furtherance of the private interests, either of individuals or of
classes. Thus the whole system of laws, whether good or bad,
which issued therefrom, bore this imprint; it was a system of
privileges, _privatæ leges_. The councils of Toledo alone
attempted to introduce into politics the principle of equality in
the sight of the law, which they derived from the Christian idea
of equality in the sight of God. Thus, the law of the Visigoths
was, at this period, the only one that could be called _lex
publica_.
Theory On The Nature Of Power.
From this theory on the nature of law, resulted the following
theory on the nature of power.
1. No power is legitimate except in so far as it is just, as it
governs and is itself governed by the true law, the law of
justice and truth. No human will, no terrestrial force can
confer on power an external and borrowed legitimacy; the
principle of its legitimacy resides in itself and in itself
alone, in its morality and its reason.
2. All legitimate power comes from above. He who possesses and
exercises it, holds it solely by reason of his own intellectual
and moral superiority. This superiority is given to him by God
himself. He does not, therefore, receive power from the will of
those over whom he exercises it; he exercises it legitimately,
not because he has received it, but because he possesses it in
himself. He is not a delegate or a servant, but a superior, a
chief.
This two-fold consequence of the definition of law frequently
occurs in the legislation of the Visigoths. "The king is called
king (_rex_) in that he governs justly (_recte_). If he
acts with justice, he legitimately possesses the name of king; if
he acts with injustice, he miserably loses it. Our fathers,
therefore, said with reason: _Rex ejus eris si recta facis; si
autem non facis, non eris_. The two chief virtues of royalty
are justice and truth." "The royal power, like the whole of the
people, is bound to respect the laws. Obeying the will of heaven,
we give, to ourselves as well as to our subjects, wise laws,
which our own greatness and that of oar successors is bound to
obey, as are also the whole population of our realm."
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Limits Of These Theories.
"God, the Creator of all things, in arranging the structure of
the human body, raised the head above, and willed that thencefrom
should issue the nerves of all the members. And he placed in the
head the torch of the eyes, that thence might be detected all
things that might be injurious. And he established therein the
power of intellect, charging it to govern all the members, and
wisely to regulate their action. We must therefore first regulate
that which concerns princes, watch over their safety, protect
their life; and then ordain that which has relation to peoples,
in such sort that while suitably guaranteeing the safety of
kings, we may at the same time better guarantee that of the
peoples."
After having established that that power is alone legitimate
which acts according to justice and truth, which obeys and
prescribes the true law, and that all legitimate power comes from
above, and derives its legitimacy from itself, and not from any
terrestrial will, the theory of the councils of Toledo comes to a
stop. It does not regard that which is actually occurring in the
world: it forgets that, with such a definition, no one here below
possesses legitimate power or can fully possess it, and that,
nevertheless, society has a right to exact that actual power
should be legitimate. This theory knows and lays down the true
principles of power; but it neglects its guarantees.
Here we come to the junction-point of the two doctrines which
have ever contested, and still contest, the possession of the
world. One maintains that power comes from below; that, in its
origin as well as in right, it belongs to the people, to numbers;
and that those who exercise it, exercise it only as delegates, as
servants. This theory misunderstands the true principles and the
true nature of power; but it tends to constitute those guarantees
which rightfully belong to society. Considered as a theory, it
maintains, and assumes to render legitimate, the despotism of
numbers. But as, in practice, this despotism is impossible, it
soon violates its own principle, and limits its operation to the
organization of a system of guarantees, the object and result of
which is to constrain actual power to become, in its conduct,
rightful and legitimate power.
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The opposite theory, which is more profound and true at its
starting-point, assigns absolute power and sovereignty to that
Being alone, in whom resides all truth and justice: it refuses
it, at the outset, to chiefs, as well as to peoples; it
subordinates both alike to eternal laws which they did not make,
and which they are equally bound to observe. It reasonably
affirms that all legitimate power comes from above, that it is
derived from superior reason, not from number, and that number
should submit to reason; but soon, forgetting that it has placed
sovereignty beyond the earth, and that no one here below is God,
it becomes dazzled by its own lustre; it persuades itself, or
tries to do so, that the power which comes from above, descends
upon earth as full and absolute as it is at its source; it is
indignant that limits should be affixed to its exercise, and if
there is nothing to stop its progress, it establishes, in fact, a
permanent despotism, after having denied, in principle, its
legitimacy; whereas, the opposite theory, which assumes to found
despotism in principle, almost invariably ends by destroying it
in fact, and by establishing only a limited power.
Consequences Of The Visigothic Theory.
Such, then, are the consequences of the theory regarding power
and law, conceived by the Visigothic legislators. I do not say
the consequences which logically flow from it, when the theory is
held in all its bearings and faithfully followed out; but the
actual consequences which it almost always entails, by the
natural tendency of things, and by the deviation into which they
are forced by the passions of mankind.
1. The best depositaries of legitimate power, those who most
probably possess a knowledge of the true law, are the
ecclesiastics. Ministers of the divine law in the relations of
man with God, they naturally hold the same office in the
relations of man with man. It may then be presumed that,
wherever this theory prevails, the political predominance of
the clergy is already established, and will continue to
increase. The theory is at first its symptom, and becomes
afterwards its cause.
2. The political predominance of the clergy does not well
accord with the principle of hereditary monarchy. The history
of the Jews furnishes an example of this. The transmission of
actual power taking place altogether independently of the men
who are thought to possess rightful power in a higher degree
than all others, is an inconsistency. The theory will,
therefore, tend to make monarchy elective, or at least to place
every monarch, at his accession, under the necessity of
obtaining the recognition and sanction of the clergy.
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3. The election of the monarch, or the necessity for his
recognition, must be the only political guarantee, the only
limit affixed to the exercise of actual power. This power, once
constituted in this manner, is sovereign; for the depositaries
of true sovereignty, which emanates from God, have conferred it
upon its possessor by election. It would be absurd and impious
to seek for guarantees against its excess in powers of an
inferior order, less enlightened and less pure. Therefore,
every institution the object of which is either to divide
power, or to limit it in its exercise by opposing to it other
powers emanating from other sources, is proscribed by this
theory. Elective monarchical power is absolute. All the
inferior powers necessary for the government of society are
derived from it, and are instituted by it in its own name.
These consequences are met with in the legislation of the
Visigoths to as great an extent as the necessary incoherence of
human affairs will allow.
Political Predominance Of The Bishops.
I. The political predominance of the bishops in the Visigothic
monarchy, is a fact evident throughout its history. The councils
of Toledo made both the kings and the laws. The principal Gothic
laymen who attended and deliberated thereat were few in number,
as is proved by the signatures to the canons of the councils. The
phrases with which we sometimes meet, _cum toto populo, populo
assentiente_, are mere formulas which pay a kind of homage to
ancient facts rather than to present and real facts.
Excommunication is the legal punishment decreed against bad
kings, against attempts at usurpation, insurrection, and other
crimes. The predominance of the bishops was not confined to the
councils. The oversight of local functionaries and judges was
also intrusted to them, and they had the power of provisionally
overruling any judgments of which they disapproved. The bishops
and the king were the only persons who could not personally
defend their own cause, and who were bound to appear by proxy in
such cases, lest their personal presence should influence the
decision of the judge. The personal and real privileges granted
to the clergy, the facility and perpetuity accorded to donations
made to churches, everything in fact in the laws as well as in
history, testifies that, in political matters, the bishops
occupied the foremost rank, and that their predominance daily
increased.
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Election Of Kings.
It must not however be supposed that this predominance was
unlimited, or that it was established without efforts; it was a
difficult task to subjugate a Barbarian king and people to an
almost exclusively moral power, and the code of the Visigoths
contains several enactments tending to restrain the independence
of the clergy, and to keep them under obedience to the civil
power. Ecclesiastics of every rank were bound, under the same
penalties as laymen, to appear and defend their causes before the
civil judges. These same judges were competent to punish
licentious priests, deacons, and sub-deacons. The eleventh
council of Toledo ordained that bishops guilty of certain crimes
should be judged by the ordinary laws, and punished in the same
cases as laymen, by the _lex talionis_. The laws of Wamba
compelled ecclesiastics as well as laymen to do military service,
and other duties of a corresponding kind. In a word, that clergy
which we behold at the head of society and constituting the
national assembly almost by themselves, was at the same time less
isolated from the civil order, and less constituted as a distinct
body by jurisdiction and privilege, than it was elsewhere at the
same period. However, the coincidence of these two facts is
natural. We feel less need of separation from a society, as we
become nearer subduing it.
II. As to the election of kings, which may be regarded as the
natural consequence of the system, or simply of the theocratic
tendency, it is formally laid down as a principle in the _Forum
judicum_, and was the common law of the Visigothic monarchy:
but we must not mistake as to the origin and character of this
institution; in Spain, it was much less an institution of liberty
than an institution of order, a means of preventing civil wars
and the disorders attendant upon usurpations.
From causes difficult to discover, the principle of the regular
hereditariness of royalty did not prevail among the Visigoths as
among the other Barbarian peoples. The throne at the death of the
kings, and even during their lifetime, was the object aimed at by
a host of ambitious individuals, who contested for it _vi et
armis_, and seized or lost it according to the powers of the
claimants and their factions.
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It was against this state of things, much more than with a view
to establish or maintain the right of the nation to choose its
own sovereign, that the election of the monarch by the bishops
and grandees assembled in council at Toledo, was instituted. The
text of the law clearly lays this down. "Henceforth the
sovereigns shall be chosen for the glory of the kingdom, in such
sort that, in the royal town, or in the place in which the prince
shall have died, his successor shall be chosen by the consent of
the bishops, the grandees of the palace, and the people: and not
at a distance by the conspiracy of a few perverse persons, or by
a seditious tumult of an ignorant multitude." Various canons of
the fifth, sixth, seventh and thirteenth councils of Toledo,
inserted as laws in the _Forum judicum_, have as their only
object the repression of attempts at usurpation, and interdict
all seizure of the throne by force, determine what classes of men
can never be eligible to the kingly office, and also guarantee
the lives and property of the families of the dead kings, against
the violence and avidity of their elected successors. In a word,
all tends to prove that this election was intended to counteract
violent usurpation much more than to prevent regular hereditary
succession.
Frequency Of Usurpation.
Historical facts lead us to the same result. The succession of
the Visigothic kings was a series of violent usurpations.
Scarcely do we meet with one or two examples of veritable
elections, made freely and without any anterior constraint, in
consequence of the throne falling vacant. Almost always the
election by the council only sanctioned the usurpation; and at
the same time that we may doubt of its liberty, we see that its
special object is to prevent the return of a great disorder.
Neither is there anything to indicate that when, by reason of the
preponderance of a more powerful or more popular king, the
principle of hereditary succession was on the point of
introducing itself, the councils either attempted to oppose its
entrance, or considered the act as an infraction of their
fundamental law. In every circumstance, at this period, in this
state of society, and particularly in great monarchies, the want
of order, of rule, of some check to restrain the irregular
operation of force, was the dominant want felt by men who, like
the bishops, were much more enlightened and much more civilized
than the Barbarian conquerors; and political institutions, as
well as civil laws, were framed rather with this object than with
a view to the assurance of liberty.
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Progress Of Ecclesiastical Pretensions.
Such being its true nature, the election of the kings by the
councils of Toledo could evidently not have rested entirely in
the hands of the clergy. Armed and ambitious Barbarians would not
have endured patiently to receive the crown at the will of
bishops, nearly all of whom were Romans. Originally, the bishops
exercised, in fact, no other right than that of sanctioning
present usurpation, by anathematizing similar conduct in the
future. In proportion as their moral influence and real power
became consolidated and extended, they attempted higher things,
and appeared to aspire to the famous right of giving and taking
away the crown. The _Forum judicum_ furnishes two remarkable
proofs of this progress. The fourth council of Toledo, held
during the reign of Sisenand, in 671, decreed by its
seventy-fifth canon, "that when the king had died in peace, the
grandees of the realm and the bishops should elect his successor,
by common consent." At a later period, when this canon was
transported as a law into the national code, it was amplified in
these terms: "Let no one, therefore, in his pride, seize upon the
throne; let no pretender excite civil war among the people; let
no one conspire the death of the prince; but, when the king is
dead in peace, let the principal men of the whole kingdom,
together with the bishops, _who have received power to bind and
to loose, and whose blessing and unction confirm princes in their
authority_, appoint his successor by common consent and with
the approval of God." A similar interpolation occurs in the
insertion of a canon of the eighth council, which began: "We, the
bishops, priests, and other inferior clerks, in concert with the
officers of the palace, and the general assembly, decree," &c. In
the _Forum judicum_, after the word _priests_, these
words are added: "_Who have been established by our Lord Jesus
Christ, to be the directors and heralds of the people_," Such
phrases as these clearly indicate the progress of ecclesiastical
pretensions, and their success. It is, however, certain as a
fact, that the councils of Toledo never really disposed of the
crown, but that it was almost always taken by force; and that the
election of the kings by the grandees and bishops, though
established as a principle by the laws, must not be considered as
a proof either of the complete predominance of the theocratic
system, or of the extent of the national liberty.
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Duties Of The Sovereign.
III. But if, after having ascertained who possessed the right of
appointment to the highest political office, and the mode in
which this office was conferred, we endeavour to discover, from
the laws of the Visigoths, what duties were imposed on their
kings, and what guarantees they gave their subjects for the
performance of those duties, the consequences which we have
already indicated, as likely to result from the theory that
presided over this code, become clearly revealed. Good precepts
abound, but real guarantees are wanting.
To those who read these laws, the legislator appears much better
aware of the duties of the sovereign, and of the rights and
necessities of the people, than were the other Barbarian
legislators; and, in fact, he was so. But if they next inquire
where were the independent forces capable of procuring or
insuring the maintenance of these principles, and how the
citizens exercised their rights or defended their liberties, they
find absolutely nothing. The code of the Visigoths, though more
enlightened, more just, more humane, and more complete than the
laws of the Franks or Lombards, left despotism at greater
liberty, and almost entirely disarmed freedom. Texts in abundance
might be quoted in support of this assertion.
If, from these general principles, we descend to the details of
legislation, we shall find that the code of the Visigoths was, in
this respect also, much more provident, more complete, more wise,
and more just, than any other Barbarian code. The various social
relations were much better defined therein; and their nature and
effects more carefully analyzed. In civil matters, we meet with
repetitions of the Roman law at almost every step; in criminal
matters, the proportion of punishments to crimes was determined
according to moral and philosophical notions of considerable
justice. We discern therein the efforts of an enlightened
legislator struggling against the violence and inconsiderateness
of Barbarian manners. The title, _De cœde et morte hominum_,
compared with the corresponding laws of other peoples, is a very
remarkable example of this.
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Principle Of Criminal Law.
In other codes the injury done seems almost alone to constitute
the crime, and the punishment is fixed in that material
reparation which results from a pecuniary composition. In this
code, crime is measured by its moral and true element--intention.
The various shades of criminality, absolutely involuntary
homicide, homicide by inadvertence, homicide by provocation,
homicide with or without premeditation, are all distinguished and
defined almost as accurately as in our codes, and the punishments
vary in an equitable proportion. The justice of the legislator
went further than this. He attempted, if not to abolish, at least
to diminish that diversity of legal value established among men
by the other Barbarian codes. The only distinction which it
maintained was that between the freeman and the slave. In regard
to freemen, the punishment does not vary, either according to the
origin or rank of the dead man, but simply according to the
different degrees of the moral culpability of the murderer. With
regard to slaves, though not daring completely to deprive masters
of the right of life and death, the _Forum judicum_ at least
attempted to subject them to a public and regular course of
procedure:--
_Laws Regarding Slaves._
"If no one who is guilty or accomplice of a crime should remain
unpunished, how much more should those be punished who have
committed homicide wickedly and with levity. Thus, as cruel
masters, in their pride, frequently put to death their slaves
without any fault on their part, it is fitting altogether to
extirpate this license, and to ordain that the present law shall
be eternally observed by all. No master or mistress may, without
a public trial, put to death any of their male or female slaves,
or any person dependent upon them. If a slave, or any other
servant, commit a crime which may lead to his capital
condemnation, his master or accuser shall immediately give
information thereof to the judge of the place where the action
was committed, or to the count, or to the duke. After the
discussion of the affair, if the crime be proved, let the culprit
suffer, either by sentence of the judge, or of his master, the
punishment of death which he has deserved; in such sort, however,
that if the judge will not put the culprit to death, he shall
draw up a capital sentence against him, in writing, and then it
shall be in the power of the master to kill him or to keep him in
life.
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In truth, if the slave, by a fatal boldness, while resisting his
master, has struck him or attempted to strike him with a weapon,
or a stone, or by any other blow, and if the master in
self-defence has killed the slave in his anger, the master shall
in no wise suffer the punishment of homicide. But he must prove
that this was the case; and he must prove it by the testimony or
oath of the slaves, both male and female, who were present at the
time, and by the oath of himself, the author of the deed.
Whosoever, from pure wickedness, and by his own hand or that of
another, shall have killed his slave without bringing him to
public trial, shall be branded with infamy, declared incapable of
giving evidence, and doomed to pass the rest of his life in exile
and penitence; and his property shall be given to his nearest
relatives, to whom the law grants it as an inheritance."
This law alone, and the efforts which its passage reveals, do
great honour to the Visigothic legislators; for nothing honours
the laws and their authors so much as a courageous moral conflict
against the bad customs and evil prejudices of their age and
country. We are often forced to believe that the love of power
has a great share in the construction of laws which aim at the
maintenance of order and the repression of violent passions; the
excess of passion borders closely on the rights of liberty, and
order is the hackneyed pretext of despotism. But here, power has
nothing to gain; the law is disinterested; it seeks after justice
only; it seeks after it laboriously, in opposition to the strong
who reject it, and for the benefit of the weak who are unable to
call in its aid--perhaps, even, in opposition to the public
opinion of the time, which, after having had great difficulty in
looking on a Roman as a Goth, had still more in regarding a slave
as a man. This respect for man, whatever may be his origin or
social condition, is a phenomenon unknown to Barbarian
legislation; and nearly fourteen centuries elapsed before the
doctrine passed from religion into politics, from the Gospel into
the codes. It is therefore no slight honour to the Visigothic
bishops that they did their best to guard and transfer into the
laws this noble sentiment, which it is so difficult to
disentangle from the meshes of fact, and which is continually in
danger of being crushed beneath the pressure of circumstance.
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Presence Of A Good Principle.
It continually recurs in their legislation, both in general
precepts and in special regulations; and when it yields, either
before the inconsiderate brutality of Barbarian customs, or
before the despotic traditions of Roman jurisprudence--traditions
with which the minds of the Spanish bishops themselves were
imbued--we still discern, even in these bad laws, the obscure
presence of a good principle labouring to surmount the obstacles
beneath which it has succumbed.
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Lecture XXVI.
Central institutions of the Visigothic monarchy.
True character of the Councils of Toledo.
Amount of their political influence.
The _Officium palatinum._
Prevalence of Roman maxims and institutions, among the Goths,
over Germanic traditions.
Proof of this in the local and central institutions of the
Visigoths.
Refutation of the errors of Savigny and the _Edinburgh
Review_ on this subject.
Conclusion.
Defect Of Visigothic Legislation.
My last lecture, I think, convinced you, gentlemen, that the code
of the Visigoths, taken in itself, and in its intentions as
expressed by written laws, gives the idea of a better social
state, a juster and more enlightened government, a better
regulated country, and, altogether, a more advanced and milder
state of civilization, than that which is revealed to us by the
laws of the other Barbarian peoples. But to this more humane and
wise legislation, to the general principles dictated by superior
reason, there is wanting, as I have already observed, an actual
sanction, an effective guarantee. The laws are good; but the
people, for whose benefit they were enacted, have hardly any
share in their execution, and the business resulting therefrom.
Up to a certain point, the code bears testimony to the wisdom and
good intentions of the legislature; but it presents no evidence
of the liberty and political life of the subjects.
Let us first look at the centre of the State. The single fact of
the political predominance of the bishops, the sole name of the
councils of Toledo, indicate the decay of the old Germanic
customs, and the disappearance of national assemblies. The
Anglo-Saxons had their _Wittenagemot;_ the Lombards their
assembly at Pavia, _circumstante immensâ multitudine;_ the
Franks their _Champs de Mars_ and _Champs de Mai_, and
their _placita generalia_. Doubtless, the existence of these
assemblies entailed scarcely any of the consequences which we
attach at the present day to the idea of such institutions; and
they certainly constituted a very slight guarantee of liberty,
which it was then impossible to guarantee.
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In reality, also, they took a very small part in the government.
Nevertheless, the simple fact of their existence attests the
prevalence of Germanic customs; arbitrary power, though exercised
in fact, was not established in principle; the independence of
powerful individuals struggled against the despotism of the
kings; and in order to dispose of these isolated independencies,
to form them into a national body, it was necessary occasionally
to convoke them together in assemblies. These assemblies live in
the laws as well as in history; the clergy were received therein,
because of their importance and superior knowledge,--but they
were merely received. Far from being their sole constituents,
they did not even form their centre.
In Spain, instead of entering into the national assembly, the
clergy opened the assembly to the nation. Is it likely that the
name only was changed, and that Gothic warriors came to the
council, as formerly to their Germanic assemblies? We have beheld
the same name applied to very different things: for example,
judicial parliaments have superseded political parliaments; but
we have never seen the same thing represented under different
names, especially during the infancy of nations. When existence
consists almost solely of traditions and customs, words are the
last things to change and perish.
The Councils Of Toledo.
The councils of Toledo, then, were actually councils, and not
_Champs de Mai_ or _placita_. Morally, this fact is
probable; historically, it is certain. Their acts have come down
to us, and they are acts of an entirely ecclesiastical assembly,
specially occupied with the affairs of the clergy; and into which
laymen entered only occasionally, and in small numbers. The
signatures of laymen, affixed to the canons of the thirteenth
council, only amount to twenty-six; and in no other are they so
numerous.
These councils were not held, like the _Champs de Mars_ or
_de Mai_ and the _placita generalia_ of the
Carlovingians, at fixed, or at least, frequent periods. Between
the third and fourth councils, forty-four years elapsed; between
the tenth and eleventh, eighteen years. The king convoked them at
his pleasure, or as necessity required. The Visigothic code
ordains absolutely nothing in this respect, either on the kings,
or on the members of the assembly. None of its enactments have
reference, even indirectly, to a national assembly.
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Their Political Influence.
The nature of these councils of Toledo being thus clearly
determined, it remains for us to inquire what influence they
exerted in the government. What were they as guarantees of the
public liberties, and of the execution of the laws?
Before consulting special facts, the very nature of these
assemblies may furnish us with some general indications with
regard to their political influence. The clergy, taking a direct
and active part in the government, were never in a natural and
simple position. I do not speak either of the ecclesiastical law,
or of the special mission of the clergy, or of the separation of
the spiritual from the temporal order, which are questions still
involved in obscurity. I examine facts alone. In fact, in the
States of modern Europe, and at their origin, as well as in later
times, the clergy did not govern, they neither commanded armies,
nor administered justice, nor collected the taxes, nor held sway
over the provinces. They penetrated to a greater or less
distance, by more or less regular means, along the various paths
of political life; but they never traversed them fully, freely,
and thoroughly; politics never were their special and avowed
career. In a word, the social powers, from the lowest to the
highest degree, never were, either in law, or in fact, naturally
lodged in their hands. When the bishops, therefore, in council
assembled, interfered in the civil government, they were called
to regulate affairs which did not concern them, and to occupy
themselves about matters which did not constitute the habitual
and recognised business of their position and life. This
intervention, therefore, necessarily bore an equivocal and
uncertain character. Great influence might have been attached
thereto; but it could not possess any power of energetic and
effectual resistance. If warrior chiefs meet together in assembly
around their monarch, they can rely on their comrades and their
soldiers to support their resolutions; if elected deputies
assemble to vote taxes and ratify the laws of the country, they
are sustained by the number, credit, and opinion of those who
chose and deputed them.
{232}
Position Of The Visigothic Bishops.
If bodies charged with the administration of justice are, at the
same time, called to deliberate upon certain acts of the
sovereign, they may, by suspending the exercise of their
functions, place the government in an almost untenable position.
In these various combinations, a positive force, more or less
regular in its character, stands at the back of the men appointed
to control the supreme power. On the part of the clergy, any
decisive resistance, in political matters, is almost
impracticable, for not one of the effective forces of society is
naturally at their disposal; and, in order to gain possession of
such a force, they must abandon their position, abjure their
character, and thus compromise the moral force whence they derive
their true point of support. Thus, by the nature of things, the
clergy are but ill-adapted to be constituted into a political
power, with the mission of exercising control, and offering
resistance. If they desire to remain within the limits of their
position, they find themselves, at the decisive moment,
unprovided with effective and trusty weapons. If they seek after
such weapons, they throw the whole of society into disturbance,
and incur the legitimate reproach of usurpation. Modern history,
at every step, demonstrates this two-fold truth. When the clergy
have believed themselves strong enough to resist in the same way
as civil powers would have done, they have compromised themselves
as clergy, and have increased disorder rather than obtained
reform. When they have not made such attempts, their resistance
has almost invariably been ineffectual at the moment when it was
most necessary; and as, in such cases, ecclesiastics generally
feel conscious of their weakness, they have not opposed any solid
barrier to the encroachments of power; and, when they have not
consented to be the instruments of its will, they have yielded
after an impotent admonition.
Such was the position of the Visigothic bishops. They had not yet
acquired, in temporal matters, sufficient force to struggle
openly against the crown. They felt that a great part of their
importance was due to their close alliance with the royal power,
and that they would be great losers by breaking off the
connection. They could not, therefore, carry their resistance
very far, or establish in reality an independent political
assembly. They went as far as to sanction the royal power, and to
associate themselves with it by becoming its advisers; but they
attempted nothing beyond.
{233}
Influence Of The Councils Of Toledo.
Facts prove this. These councils of Toledo, whither usurpers came
to be elected, and which gave an entire code to the Visigoths,
exercised in fact, over the great events of this period in Spain,
less influence than was exerted in France by the _Champs de
Mars_ and _de Mai_. They occupied, but did not supply,
the place of the old Germanic assemblies, for they did not
possess their brute force, and were not in a position to
substitute for it any sufficient regular force. Spain was
indebted to them for a much better legislation than that
possessed by other Barbarian nations, and probably also, in their
daily practice, for a more enlightened and humane administration
of justice; but in vain do we seek to find therein the principle
of a great institution of liberty, and the characteristics of a
veritable resistance of absolute power. During the period which
now occupies our attention, the reigning power in the other
States founded by the Barbarians was force--disorderly,
capricious, and unsettled force, sometimes distributed amongst a
multitude of almost independent chieftains; sometimes
concentrated, for a brief space, and according to circumstances,
in the hands of one man, or of a brutal and transitory
aristocracy. No principle was acknowledged; no right was legal;
all was matter of fact, liberty as well as power; and the germs
of free institutions existed in the disorderly relations of these
independent or ill-united forces, although, to speak the truth,
liberty was nowhere visible. In Spain, and through the influence
of the clergy, the government undoubtedly assumed greater
generality and a more regular form; the laws afforded greater
protection to the weak; the administration paid more attention to
their condition; and there was less disorder and violence in
society at large. Broader and more elevated moral ideas
frequently governed the exercise of power. But, on the other
hand, power was constituted under a more absolute form; Roman
maxims prevailed over Germanic traditions; theocratic doctrines
lent their aid to the arbitrary power of the Barbarians. The
councils of Toledo modified and enlightened despotism, but did
not limit the exercise of power.
{234}
The Officium Palatinum.
Some writers have thought they perceived, in another institution
which existed at the centre of the Visigothic monarchy, the
principle and instrument of a limitation of the sovereign
authority. I refer to the _officium palatinum_, a species of
council formed around the king, by the grandees of his Court, and
the principal functionaries of the government. The importance of
this council, and its participation in public business, are
attested by a large number of laws passed either independently of
the councils of Toledo, or in virtue of their deliberation. The
words, _cum omni palatino officio, cum assensu sacerdotum
majorumque palatii, ex palatino officio_, and the like,
frequently occur in the code of the Visigoths. These texts and
the voice of history do not admit of a doubt that the _officium
palatinum_ frequently interfered in the legislation, in the
government, and even in the elevation of kings.
It would be a mistake, however, to regard it as a political
institution, a guarantee of liberty, a means of exercising
control and offering resistance. Power could not, in any case,
subsist alone, by itself and in the air; it must, of sheer
necessity, conciliate interests, appropriate forces, in a word,
surround itself with auxiliaries, and maintain its position by
their aid. In the Roman Empire, this necessity had given birth to
the creation of the Court and of the _officium palatinum,_
instituted by Diocletian and Constantine. In the Barbarian
States, it led the kings to surround themselves with
_Antrustions, Leudes_, sworn vassals, and all those natural
or factitious grandees, who, becoming dispersed at a later
period, and settling in their own domains, became the principal
members of the feudal aristocracy. From these two sources arose
the _officium palatinum_ of the Visigothic kings, with this
difference, that, in this point as in others, Roman institutions
prevailed over Barbarian customs, to the great advantage of
absolute power.
The _officium palatinum_ of the Visigoths was composed of
the grandees of the realm (_proceres_), whom the kings
attached to themselves by donations of lands and offices, and of
the principal functionaries, dukes, counts, vicars, and others,
who held their functions from the kings. This court undoubtedly
formed a sort of aristocracy which was frequently consulted on
public affairs, which sate in the councils, and which furnished
the king with assessors whenever he delivered judgments. The
necessity of things required that it should be so; and as
necessity always entails consequences which far exceed the wishes
of those who are constrained to yield to its sway, there is also
no doubt that this aristocracy, on many occasions, thwarted the
kings who could not dispense with its assistance, and thus
limited their empire.
{235}
Influence Of The Aristocracy.
But human nature is the same amongst barbarian nations as amongst
civilized peoples; and the coarseness of forms, the brutality of
passions, and the limited range of ideas, do not prevent similar
positions from leading to the same results. Now, it is in the
nature of an aristocracy that is closely pent up around the
prince, of a Court aristocracy, to use power for their own
advantage rather than to limit it for the benefit of the State.
It almost inevitably becomes a focus of faction and intrigue,
around which individual interests are set in motion, and not a
centre of controlment and resistance in which the public interest
finds a place. If the times are barbarous and manners violent,
individual interests assume the forms of barbarism and use the
means of violence; if satisfied, they obey with the same
servility as before; if discontented, they poison, assassinate,
or dethrone. Such was the case in the monarchy of the Visigoths.
All usurpations and revolutions in power originated in the
_officium palatinum;_ and when a king attempted to subject
the nobles to the performance of public services, to limit or
even to examine into the concessions which they demanded, that
king lost the empire. Such was the fate of Wamba.
The Visigothic sovereigns had, moreover, in the bishops, a
powerful counterpoise, which they set in opposition to the nobles
of their Court, in order to prevent them from aspiring to entire
independence. The influence of the clergy, too weak to act as an
effectual check on the power of the prince, was strong enough, in
the hands of the prince, to prevent the check from coming from
any other quarter. The reign of Chindasuinth affords an example
of this.
Finally, as I have already said, the predominance of Roman maxims
and institutions in Spain was so great, that the central
aristocracy bore more resemblance to the _officium
palatinum_ of the emperors than to the _Antrustions_ or
_Leudes_ of Germanic origin. Elsewhere, these last were not
slow to obtain sufficient strength to assert their independence,
to isolate themselves from the prince, and finally to become
petty sovereigns in their own domains.
{236}
In Spain, things did not occur precisely thus. It appears that
the _proceres_ received from the king dignities and offices
in greater abundance than lands, and thus acquired less
individual and personal strength. Perhaps the equality granted to
the Roman population, and the fusion of the two peoples, did not
permit so great a dilapidation of property and distribution of
domains as that which took place in France. What would have
occurred if the monarchy of the Visigoths had not been
interrupted in its course by the conquest of the Arabs? Would the
dismemberment of the royal power and the dispersion of the Court
have led to the dispersion and independence of the landed
aristocracy? We cannot say. This much is certain, that the
phenomenon which was exhibited in France, at the fall of the
Carlovingians, did not occur among the Visigoths, in the eight
century: the _officium palatinum_ had neither destroyed nor
divided the royal power, and made but feeble attempts to limit
it.
Character Of The Goths.
One fact must be added, which, though universally attested, is
not explained in a satisfactory manner. Of the various German
peoples, the Goths preserved in the smallest degree their
primitive institutions and manners. The Ostrogoths in Italy,
under Theodoric, like the Visigoths in Spain, allowed Roman
habits to prevail amongst them, and permitted their kings to
arrogate to themselves the plenitude of imperial power. We even
find, among the Goths of Italy, still fewer traces of the
existence of the old national assemblies, and of the
participation of the people in the affairs of the State.
It would therefore be vain to seek, in the Visigothic monarchy,
for the principles, or even the remnants, of any great
institution of liberty, or of any effectual limitation of power.
Neither the councils of Toledo, nor the _officium palatinum_
present this character; but there resulted from them something
that did not result from the _Champs de Mars_ and _de
Mai_, or from the Saxon Wittenagemot,--a code of laws, which,
for that period, are very remarkable for their large
philosophical views, their foresight, and their wisdom; but this
code, though it indicates the handiwork of enlightened
legislators, nowhere reveals the existence of a free people. It
contains even fewer germs or monuments of liberty than the rudest
of Barbarian laws; and the royal power, thus considered as in
itself the centre of the State, appears as much more absolute in
right, and much less limited in fact, than it was anywhere else.
An examination of the local institutions of the Visigoths will
lead us to the same result.
{237}
Local Institutions Of The Visigoths.
Local institutions are the most real, perhaps the only real,
institutions of Barbarian peoples. They do not possess sufficient
vitality or enlargement of mind to originate or preserve general
institutions. The material contiguity of individuals is an almost
indispensable condition of the existence of society amongst them;
it is therefore in the local institutions of the German peoples
that we must seek the history of their political life. The forms
of these institutions; and the modifications which they
underwent, exercised far greater influence over their destiny,
than the revolutions which occurred in central institutions, such
as the Wittenagemot, the _placita generalia_, and the royal
power.
As you have already seen, the laws of most of the German peoples
present three co-existent and conflicting systems: institutions
of liberty; institutions of territorial patronage, which gave
birth to feudalism; and monarchical institutions. The assembly of
free men transacting the general business, and administering
justice in every district; the landowners, exercising authority
and jurisdiction throughout their domains; the king's delegates,
whether dukes, counts, or others, also possessing authority and
jurisdiction: such are the three powers which have reciprocally
contested the government of localities, and whose existence and
vicissitudes are proved by the laws as well as by facts.
The code of the Visigoths presents no trace whatever of the first
of these systems, and scarcely any of the second; the third
immensely predominates. There was no _mallum_, no
_placitum_, no assemblies of free men in the provinces; no
enactment ordains, or even refers to them. Scarcely does there
exist any indication of the power of the patron over his client,
of the landowner over the inhabitants of his domains. The law
which I quoted in my last lecture, with reference to slaves,
proves that, even in their case, the jurisdiction belonged to the
royal judge of the district.
{238}
Various Kinds Of Magistrates.
The _Forum judicum_ mentions a large number of local
magistrates who were invested with the power of administering
affairs and distributing justice. "As there is a great variety in
the means of remedying evils and terminating affairs, let the
duke, count, vicar, conservator of the peace (_pacis
assertor_), _tinfadus, millenarius, quingentenarius,
centenarius, decanus, defensor, numerarius_, and those who are
sent to any place by order of the king, and those who are
accepted as judges by the agreement of the litigant parties,--
let all persons, in fine, of whatever order they may be, who are
regularly invested with power to judge, and each person in such
proportion as he has received power to judge, equally obtain from
the law the name of judges, in order that, having received the
right to judge, the duties as well as the advantages connected
with that right may devolve upon them."
It is difficult to determine with precision the different
functions of all these magistrates, the hierarchy which existed
among them, and the manner in which each of them received and
exercised his power. Those who belonged to towns, as the
_defensor_ and the _numerarius_, were certainly elected
by the clergy and inhabitants. Several others, as the
_millenarius_ and _centenarius_, seem to have been
appointed by the dukes and counts of the provinces; but however
this may be, nothing indicates that they received their authority
in a popular and independent way; the opposite principle is
formally laid down in these terms: "No one shall be permitted to
judge suits, except those who have received power from the prince
to do so, or those who have been chosen as judges, by agreement
of the litigants; the choice of these last shall be made in
presence of three witnesses, and shall be attested by their mark
or signature. If those who have received from the king power to
judge, or those who exercise judicial power by commission from
the counts or other royal judges, have charged, by writing, and
according to the prescribed rules, other persons to fill their
places, these last shall exercise, in the regulation and decision
of affairs, a power similar to that of those by whom they were
appointed." Thus, all the judges, all the local officers,
received their power from the king or his delegates. Of the three
systems of institutions, whose co-existence and conflict are
manifested amongst most of the German peoples, the monarchical
system is the only one with which we meet in the code of the
Visigoths.
{239}
In addition to the permanent judges, established in various
localities, the kings had power to send special commissioners,
either to restore order in disaffected provinces, or to give
judgment in cases of particular importance. Criminal as well as
civil affairs were submitted to the decision of the royal judges.
All these judges received salaries from the king; but they also
levied such enormous fees on the litigants, that the fees
frequently amounted to one-third of the value of the object in
litigation, A law was passed, limiting them to one-twentieth. Any
who thought they had reason to complain of the decision of the
judge might appeal, either to the duke or count of the province,
or to the king himself. If the appeal was deemed well-founded, in
addition to gaining the cause, the judge had to pay the appellant
a sum equal to the value of the object in litigation. If the
judgment was confirmed, the appellant had to pay the same amount
to the judge, and if he could not do so, he was condemned
publicly to receive a hundred lashes.
Constitution Of Judicial Authority.
Up to this point, nothing in the constitution of judicial
authority exhibits any of those guarantees of liberty contained
in the laws of the other Barbarian peoples. Nothing discloses any
remnant or even remembrance of the old forms of judgment by the
assembly of free men, _per Rachimburgos, bonos homines_, &c.
Some passages of the _Forum judicum_, however, prove that
the judges, at least, had assessors. The fourth council of Toledo
formally prohibits the kings from administering justice alone;
and several texts allude to _auditores_. Most learned men,
and amongst others Heineccius, are of opinion that the assessors
were not mere councillors; and that the judge was bound to take
the opinions of a majority of them. I am inclined to think so
too. Several texts, however, formally indicate that the judge was
at liberty to take assessors or not, as he pleased.
Laws Against Bad Judges.
In the absence of those real guarantees of liberty, which
originated elsewhere in the more or less effectual intervention
of the freemen in the judgment of cases, the _Forum judicum_
contains a multitude of precautions or laws against bad judges.
{240}
In case of appeal to the count or king, if it were proved that
the wrong decision of the judge was occasioned by malice,
corruption, or prevarication of any kind, and if he were unable
to pay the appellant the requisite sum, he was given to him as a
slave, and condemned to receive besides fifty lashes in public.
He was absolved from all penalty, however, if he proved, under
oath, that his decision was pronounced in error or ignorance. The
judges who neglected to prosecute the licentious were punished
with a hundred lashes, and fined 300 _solidi_. The priests
and bishops everywhere were enjoined to exercise a strict
surveillance over the judges; and as the former then derived
their chief strength from their superior knowledge and their
protection of the weak, it is not unlikely that this guarantee
was effective.
But all this was defective, as you perceive, by the radical
defect of the system of pure monarchy, which gives, as the only
guarantee for the good conduct of the depositaries of power, the
surveillance and authority of superior depositaries placed in the
same position, and invested with the same functions.
... Sed quis custodiet ipsos
Custodes? ...
The true guarantees of liberty can only reside in the concurrence
of collateral and independent powers, none of which is absolute,
and which mutually control and limit each other. Of this the
_Forum judicum_ affords us no trace, at any stage in the
long hierarchy of the government.
The local government of the Visigoths, then, presents still fewer
institutions containing any active principle of liberty, any real
force of control or resistance, than are found in their political
_régime_, and at the centre of the State. Such is, at least,
the unavoidable result to which we are led by an examination of
the general and definitive code of this nation.
This result has appeared so singular, so opposed to German
customs, and to the state of things among other peoples of the
same origin, that hardly any man of erudition has been willing to
read it in the _Forum judicum_; and that those even who have
failed to find in this code any proof of the existence of free
institutions, and almost any trace of old Barbarian institutions,
have striven to discover them elsewhere in Spain at this period.
{241}
Views Of M. De Savigny.
I shall say nothing of Abbé Mariana, who, in his _Teoria de las
Cortes_, is determined to discover, in the councils of Toledo,
not only the Spanish Cortes of the thirteenth and fourteenth
centuries, but also all the principles and guarantees of
liberty--all, in fine, that constitutes a national assembly and a
representative government. I have already demonstrated the moral
improbability and the historic unreality of the fact. Two more
learned men than Abbé Mariana, and less inclined than he to find
what they seek, have thought that they perceive, in the _Forum
judicum_, proofs that the purely monarchical system,
associated with the theocratic system, did not prevail so
completely among the Visigoths; and that they can discover among
them evidences of effective and extended public liberties: I
refer to M. de Savigny, in his _History of Roman Law in the
Middle Ages_, and to a writer in the _Edinburgh Review_,
[Footnote 18 ] in an article on _The Gothic Laws of Spain_.
I do not think that the researches of these two learned critics
destroy the general results which I have just laid before you.
They nevertheless contain many curious facts hitherto little
noticed, and which throw much light on the study of the political
institutions of the Visigothic monarchy. I shall, therefore, make
you acquainted with them, and examine the consequences to which
they lead.
[Footnote 18: Edinburgh Review, vol. xxxi., pp. 94-132.]
M. de Savigny, when investigating the traces of the perpetuation
of the Roman law after the fall of the Empire, expresses himself
in these terms, in reference to the Visigoths: "Upon the
constitution of this monarchy," he says, "we possess sufficiently
complete information in the _Breviarium Aniani_, who, about
the year 506, that is, nearly a century after the foundation of
the State, drew up the Roman law into a sort of code for the
ancient inhabitants of the country. This code consists, as is
well known, of two parts: one contains texts quoted word for word
from the Roman law; the other an interpretation specially
prepared on this occasion. With regard to the texts quoted from
the Roman law, we cannot attach great importance to them, when we
speak of the real state of things at the period of this
publication; as they were drawn from sources much more ancient,
expressions and even entire phrases were necessarily retained
which had reference to various circumstances of a social state
that had already passed away and fallen into desuetude; the
interpretation was intended to explain this disagreement.
{242}
But this interpretation, drawn up _ad hoc_, is, on the other
hand, very trustworthy, especially when it does not implicitly
follow either the words or the sense of the text, for then we can
no longer regard it as a servile and thoughtless copy, especially
in what relates to matters of public law. It is impossible to
believe that real establishments, institutions set before the
eyes of all, and with which all might be acquainted, could have
been mentioned unintentionally and described without an object.
Now, in this interpretation, the Roman _præses_ has entirely
disappeared; but the municipal community, with its particular
jurisdiction and its decurions taking part in the administration
of justice, subsists in all its integrity: it even appears to
possess more individual consistency and independence than it had
enjoyed under the emperors.
The Defenders Of Cities.
"The general principle of the _defensores_, of their duties
and the mode of choosing them, is explained in the
interpretation, as well as in the text of the Theodosian code.
According to the text, the governor of the province was not to be
burdened with the judgment of petty offences; but it does not
mention who was to judge them, whereas the interpretation
expressly names the _defensor_. According to the text, the
introduction of a civil suit might take place either before the
governor, or before those who had the right to draw up the
necessary acts; the interpretation adds the _defensor_. ..."
M. de Savigny then quotes a number of other examples to prove the
maintenance, and even extension, of the functions of the
defenders of the cities. "Other passages," he continues, "have
reference to the _curia_, the decurions, and even to the
citizens in general. The system of decurions, in general, is
received in the _Breviarium_, with very few modifications,
but merely great abridgement. To one passage of the text which
casually mentions _adoption_, the interpretation adds, as a
commentary, that it is the choice of an individual as a child,
made in presence of the _curia_. The Visigothic
jurisconsult, Graius, says, that _emancipation_, which
formerly took place before the president, was, at the period at
which he wrote, performed before the _curia_."
{243}
Importance Of The Curia.
"The text determines by whom tutors were appointed at
Constantinople, namely, by the prefect of the city, ten senators,
and the prætor, whose duty it was to watch over the interests of
the pupils: the interpretation substitutes in their place the
judge, with the chief men of the town. The text speaks of the
necessity of a decree to authorize the alienation of the property
of a minor: the interpretation adds, that this decree must be
obtained from the judge or the _curia_. The text ordains
that, at Constantinople, wills should be opened by the same
office that received them: the interpretation substitutes the
_curia_ in its place. According to the text, donations
should be registered either before the judge (the governor of the
province), or before the municipal magistrate (the
_duumvir_): the interpretation substitutes the _curia_
for the municipal magistrate--which does not, in reality, alter
the sense of the law, but which proves what is demonstrated by
many other passages, that the general point of view was
completely changed; anciently the chief municipal authority, and
especially jurisdiction, was considered, according to Roman
maxims, to be a personal right of the magistrate: according to
the interpretation, it belonged less to the _defensor_
himself, than to the _curia_ taken collectively. ... Under
the emperors, the _honorati_, that is, those who had
occupied high municipal dignities, had a seat of honour near the
governor of the province when he administered justice; they were
only expected to abstain from being present when their own causes
were under consideration. The interpretation applies this to the
curials; an application which is remarkable in two respects,
first, because it proves that the curials were held in great
consideration, and secondly, because this does not merely refer
to the possession of a seat of honour by them, but to an actual
participation in the jurisdiction of the municipal judge, that
is, of the _duumvir_ or _defensor_. ... The text of the
code ordains that, out of Rome, in order to pronounce sentence on
a criminal accusation brought against a senator, five senators
shall be chosen by lot: the interpretation makes this rule
general, and requires five men to be chosen from the leading
members of the same rank as the accused person, that is,
decurions or plebeians, according to the condition of the accused
person himself. Finally, the text ordained that every judge
should receive his _domesticus_ or _cancellarius_ from
the choice of the principal persons employed in his chancery: the
interpretation retains the rule, merely substituting the
burgesses of the city for the persons employed in the chancery."
{244}
Objections To Savigny's Theory.
Such are the traces of municipal liberties which M. de Savigny
discovers in the _Breviarium Aniani_, and which he considers
as the common and permanent law of the Visigothic monarchy. They
prove, in fact, not merely the maintenance, but also the
extension and enfranchisement, of the rights and guarantees
possessed by the inhabitants of the towns before the settlement
of the Barbarians. But strong objections may be raised against
the importance which the author attaches to these texts, and the
extent of the conclusions which he deduces therefrom.
I. The _Breviarium Aniani_ does not contain the common and
permanent law of the Spanish monarchy of the Visigoths. It only
gives the special legislation of the Roman subjects of the
Visigothic kings, when the kings resided at Toulouse, and had as
yet only uncertain possessions in Spain; when the South of Gaul
constituted the bulk, and almost the whole, of the kingdom. There
is nothing to prove that all that is contained in the
_Breviarium Aniani_, towards the end of the fifth century,
for the benefit of the Romans of Southern Gaul, subsisted in
Spain until the eighth century, for the benefit of the Goths and
Romans, when merged into a single nation. The silence of the
_Forum judicum_, which is the true code of the Spanish
Visigoths, upon most of these arrangements, proves more against
their maintenance than is demonstrated in their favour by the
text of the _Breviarium_, which was drawn up in another
place, at an earlier period, and for a portion only of the
people.
Abolition Of The Breviarium Aniani.
II. About a hundred and fifty years after the publication of the
_Breviarium_, the Goths and Romans were united into a single
nation. The collection of laws, successively augmented under the
different reigns, and completed by Chindasuinth, became the sole
code of the kingdom; all other laws were abolished, and the
_Breviarium_ was necessarily included in this abolition. The
text of the law of Recesuinth is formal: "That absolutely none of
the men of our realm be permitted to lay before the judge, for
the decision of any affair, any other collection of laws than
that which has just been published, and according to the order in
which the laws are inscribed therein; and this, under penalty of
a fine of thirty pounds of gold to our treasury. Any judge who
should hesitate to decline any other book that might be presented
to him as suited to regulate his decision, will be punished by
the same fine."
{245}
M. de Savigny foresaw this objection; and without absolutely
dissembling it, he has tried to weaken it by not quoting the text
of the law of Recesuinth, and by speaking only of the attempts
made by the Visigothic kings, that Spain should contain only a
single nation, and be governed by a single code. These evasions
are in striking contrast with his usual candour. He then makes
use of the existence of the _defensores_, proof of which is
found in the _Forum judicum_, to assume the maintenance of
all the prerogatives and liberties attributed to them by the
_Breviarium_. This conclusion is evidently hasty and
excessive.
I do not dispute that the towns of Spain were able to retain, or
indeed that they did necessarily retain, some institutions, some
guarantees of municipal liberty. I should not infer their
absolute disappearance from the silence of the _Forum
judicum_. The despotism of the Barbarian kings, however
careful it may have been to gather the heritage of Roman maxims,
was neither as wise nor as circumstantial as that of the
emperors. It allowed the _curiæ_ and their magistrates to
continue in existence, and these petty local powers assuredly had
more reality and independence under its rule than they had
possessed under the Empire. The clergy, principally dwelling in
the towns, and bound by strong ties to the Roman race, was itself
interested in protecting them, and the more so, because it
naturally placed itself at the head of the municipalities. Thus
much is certain, that the remnants of institutions of surety and
liberty which existed there, occupy no place in the written laws,
although these laws are much more detailed than those of other
Barbarian peoples, and embrace the whole civil order. They could
not, therefore, be considered as forming a part of the general
constitution of the kingdom; they neither modified its political
character, nor changed the results of the principles that
prevailed therein.
{246}
Gothic Laws Of Spain.
If M. de Savigny has looked for the institutions of the Visigoths
in an epoch anterior to the definitive establishment of their
true monarchy, and in a collection of laws abolished by the
_Forum judicum_, the author of the dissertation contained in
the Edinburgh Review has addressed his inquiries to times and
documents posterior by four or five centuries to the destruction
of the kingdom of the Visigoths by the Arabs; and by transporting
the consequences which he has obtained therefrom into the epoch
which occupies our attention, he has fallen into an error still
less supported by facts than was that of M. de Savigny. His
researches and inferences are the following:--
"It must not be supposed that the whole body of the law of the
Visigoths appears in the twelve books of their code. They had
their common or traditionary law, still existing in unwritten
usages and customs, as well as their written law; and we are
supported by analogy in asserting that this common law often
spoke, when the statute law was silent. It outlived the
monarchy; and we now collect it from the _Fueros_ or
ancient customs of Castile and Leon. The customs in question
are preserved in the charters of the towns, which gave bye-laws
to the inhabitants, confirming the unwritten common law of the
country, sometimes with greater or lesser modifications in the
detail, but agreeing in general principles. We equally discover
them in the acts of Cortes, which, to borrow the expression of
Sir Edward Coke, are often 'affirmances of the common law.' The
traditionary Fueros of Castile also formed the basis of the
_Fuero Viejo de Castilla_, which received its last
revision under Peter the Third. And even Alonso the Wise,
though he planned the subversion of the ancient jurisprudence
of his kingdom, admitted into the Partidas such of those
_Fueros de España_ as relate to the tenures of land, and
to military service. Consisting of ancient usages, neither
refined by the learning of the councils nor restrained by the
power of the kings, the Fueros of Castile and Leon bear a
nearer affinity to the jurisprudence of the Teutonic nations
than the written code. The water ordeal is noticed only once,
in a law newly amended by Flavius Egica. But ordeal by
compurgation, the most ancient form of trial by jury, and the
battle ordeal, do not appear at all. Neither do we find any
notice of the custom of returning military leaders by the
_verdict of a jury_. All these customs, however, were
Fueros of Spain in the Middle Ages. Nor could they possibly
have then existed, had they not been preserved by immemorial
usage and tradition."
{247}
Election Of Adalides.
The author then passes these ancient usages in review. The first
to which he refers is the appointment of military leaders by a
jury. He traces this custom back to the forests of Germany: and
then shows how it could not fail to succumb universally beneath
the establishment of the feudal system, and in consequence of the
hierarchical subordination of persons and lands. He discovers
traces of this in the nomination, by the people, of the
Anglo-Saxon _heretochs_ and _constables_, who were at
first military officers; and also in the election of the kings of
Norway by the verdicts of twelve of the principal men of each
province. He then returns to Spain, "where," he says, "we shall
find our old Gothic juries employed in electing the chief
officers of the army and navy of the Castilians, the Adalid, the
Almocaden, the Alfaqueque, and the Comitre. Who was to be the
Adalid? The question must be answered in the words of the wise
king Alonso. It is said by the ancients that 'the Adalid should
be endowed with four gifts--the first is wisdom, the second is
heart, the third is good common sense, and the fourth is loyalty;
and when a king or any other great lord wishes to make an Adalid,
he must call unto himself _twelve of the wisest_ Adalides
that can be found, and these must _swear_ that they will
_truly say_, if he whom they wish to choose to be an Adalid
hath the four gifts of which we have spoken, and if they answer
_yea_, then they are to make him an Adalid.'" Here we have
clearly an inquest by twelve men giving their verdict upon oath.
If it happened that twelve Adalides could not be found, then a
kind of _tales de circumstantibus_ was added to this special
jury of Adalides. The king or lord was to make up the full number
of twelve with other men well approved in war and deeds of arms,
and their verdict was as good as if they had been all Adalides.
And he who dared to act as an Adalid without being fully elected,
was to suffer death. "It was advised in ancient times," says
Alonso, "that they were to have the qualities before mentioned,
because it was necessary that they should possess them, in order
to be able to guide the troops and armies in time of war, and
therefore they were called Adalides, which is equivalent to
_guides_ (_que quiere tanto decir como guiadores_)."
{248}
Admission Of An Adalid.
The author is, therefore, of opinion that this word comes from
_adal, adel_, noble, and _leid, lead, leiten_, to guide
or conduct. The Adalid was the guide or chief of the
_Almogavars_, or cavalry soldiers. The _Adalid mayor_
was commander-in-chief of all the Almogavars, or Castilian
cavalry.
After his election by this species of jury, the Adalid was thus
solemnly admitted to his office. "The king gave him rich
garments, and a sword and a horse, and arms of _wood and
iron_, according to the customs of the country. By a _rico
hombre_, a lord of knights, the sword was to be girt, and then
a shield was placed upon the ground, the future Adalid stepped
upon it, and the king drew the sword out of its scabbard, and put
it naked in his hand. And now as many of the twelve Adalids as
can assemble round the shield, grasp its edge, and lift him up as
high as they may: they turn his face towards the east.--In the
name of God," exclaims the Adalid, "I defy all the enemies of the
faith, and of my lord the king, and of his land." And, thus
speaking, he lifted up his arm, and struck a stroke downward, and
he then struck another stroke across, thus describing in the air
the sweet and holy sign of redemption, and he repeated this
challenge four times towards each of the quarters of the world.
Then the Adalid sheathed his sword, and the king placed a pennon
in his hand, saying, "_I grant unto thee that henceforward thou
art to be an Adalid._" An Adalid might have risen to command
from the lowest rank in the Castilian army. He might have been a
_peon_ or foot-soldier, but he became the fellow and
companion of the hereditary nobles, the lords of vassals, and the
_ricos hombres._" In this ceremony, the author perceives a
repetition of the forms used at the election of kings among the
Germans, or at least at the choice of military leaders; _duces
ex virtute sumunt_.
{249}
Election Of Officers By A Jury.
I would by no means affirm that there does not exist, in this
mode of choosing captains, in the concurrence of these twelve
jurymen, and even in the number twelve itself, any remnant of old
Germanic customs. This much is evident, that what has just been
described was much rather a sort of chivalric ceremony in
connection with the elevation of a man to a superior rank, than
the election of a barbaric chief; all the forms, all the details
of the elevation of an Adalid, remind us much more of chivalric
usage than of Germanic custom; and it is a strange anachronism to
suppose that all this took place, five hundred years before,
among the Visigoths, notwithstanding that no mention is made of
it in any historic monument, and, what is still more conclusive,
notwithstanding that the general state of manners at that time
gives no hint of anything of the kind. It is much more probable
that these customs originated among the Goths during their
struggle against the Arabs, in the mountains of Northern Spain,
and in consequence of the new direction of mingled feudalism and
liberty, which was imparted to their manners by this new
position.
The _Almocadene_ or captain of foot soldiers, the
_Alfaqueque_ or officer employed to treat for the ransom of
captives from the Moors, and the _Comitre_ or captain of a
ship, were appointed in a similar manner, and by the
recommendation of a jury composed, not of members of the class to
which the candidate belonged, but to members of the class to
which he aspired. This circumstance alone settles the question;
for it is a result of chivalric, and not of Barbarian manners; it
reminds us of the squire who was dubbed knight by knights, and
not of the warrior who was chosen or judged by his peers.
I shall not follow the author in his researches on ordeal by
boiling water and by fire, or upon trial by combat. Although we
meet with traces of these customs in the old monuments of some
Barbarian legislations, they were not the common law of modern
peoples, during the first epoch of their establishment on the
Roman territory. It was at a later period, and by the influence
either of the corruption of religious ideas by superstition, or
of the military organization of the feudal system, that they
became developed, recognized, and formed into a veritable
jurisprudence. The general facts of Europe do not, therefore,
authorize us to conclude that, because they existed among the
Spaniards in the fourteenth century, they also existed among the
Visigoths in the seventh century. The almost absolute silence of
the historic monuments of the first epoch, here retains all its
authority.
{250}
Compurgation.
The facts relative to compurgation, by the oath of a certain
number of witnesses, are more important and more curious.
"Compurgation," says our author, "is directed in express terms in
all the Teutonic laws; but it does not appear to have been
admissible in trials conducted according to the forms prescribed
by the _Fuero juzgo_. Yet afterwards, this ordeal was widely
spread as a _fuero_, both in civil and criminal trials.
Though discountenanced by the legislature, it was retained in
practice; and a forcible illustration is thus given of the
stubbornness with which the Goths adhered to their usages and
customs. _Trial by jury_, through it, in its germ was felt
to be a benefit."
"As an ancient and general usage of Castile, the trial is
sanctioned in the _Fuero Viejo_. As a local custom or
bye-law of the cities of Castile and Leon and their dependencies,
it was very frequently established, or rather _declared_, by
the charters granted by their founders.
"Three thousand _sueldos_, according to the _Fuero
Viejo_, were paid for dishonouring the palace of the king, or
spoiling his castle; and five hundred _sueldos_ was the
price of the head of the _merino_, or the composition for
scandalizing him; and every man who wished to save himself from
the payment of these mulcts, was to defend himself by the oath of
_twelve men, for such was the usage of Castile in the old
time_. When accused of the death of another _fijo
d'algo_, the suspected noble defended himself by the oath of
eleven other _fijos d'algo_, himself _the twelfth_,
and, as true knights, they were all _sworn_ upon the Gospel
Book, with their spurs upon their heels. There were two insults
only which gave a Dueña, or a squire, the right of complaining
that a _fijo d'algo_ had scandalized them, viz., a blow or a
wound, or the robbery of their mules or garments. Within three
days, the party so injured by a caitiff knight was obliged to
complain of the offence, and to disclose the injury to the
_fijos d'algo_ of the town, the _labradores_, and to
the inmates of the _fijos d'algo_, if there were any, and to
cause the town-bell to be rung, saying, "such a one hath thus
dishonoured me."
{251}
These formalities having been observed, the _fijo d'algo_
was bound to answer the complaint; reparation was made if he
confessed it, by forfeiting five hundred _sueldos_, the
price of his own head; but if he denied it, he was to clear
himself by the oath of eleven other _fijos d'algo_, himself
the _twelfth_. But a _labrador_ accused of injuring a
_fijo d'algo_ was not to be admitted to defend himself by
his peers; and he was unfairly compelled to swear with eleven
_fijos d'algo_, himself the twelfth.
"These customs are taken from the general code. In peculiar
districts, compurgation was so much in vogue, that compurgatrixes
were allowed to female culprits. At Anguas, as well as in other
towns, a woman charged with theft could defend herself by the
oaths of a jury of other women. More whimsical was the Fuero of
Cuenca, which is passing strange, both for the spirit of the law
and the terms in which it is expressed. If perchance any husband
suspected that his wife had planted horns upon his head, although
he was not able to prove the fact by evidence, the wife was to
justify herself by swearing to her chastity, with twelve good
wives of the neighbourhood; and if they pronounced her to be
pure, her husband was obliged to be persuaded that she was so.
"The customs of St. Sebastien in Guipuscoa, allowed an odd kind
of proceeding, resembling the assessment of damages by the
verdict of a jury. The ravisher was to pay the price of
virginity, or he was to marry the object of his ungovernable
passion; which punishment, as the charter wisely observes, 'is
fully equal to a fine.' But if she, who had been a maid, was
unworthy of becoming his wife, he was to provide her with such a
husband as she might have reasonably expected to have obtained
previous to her mishap, 'according to the estimation of the
alcalde, and of twelve good men of St. Sebastien.'
"The fullest directions concerning the use of the ordeal are
contained in the charter of Molina. Don Molrique de Lara
incorporated the town of Molina, the seigniory of the noble house
of Lara, in the year 1152. His charter may be quoted as the most
valuable record concerning the ancient municipal jurisprudence of
Castile which has yet been published, as it displays the entire
constitution and government of a Castilian town. ... Fines,
according to the old Gothic law, were enacted at Molina for
wounds and maims. The accuser was to support his charge by three
'_vecinos_' or burghers of the town, if the offence was
committed within its walls.
{252}
Two _vecinos_ sufficed if without. And, in default of full
proof, the culprit either swore with twelve _vecinos_, or
fought with the accuser; but the latter had the choice of the
ordeal. ... When a murder had been committed, if one of those
engaged in the fray took the guilt on his own head, saying,
'_I killed him_,' the others were 'to save themselves with
twelve true burghers,'--_los otros salvense con doce vecinos
derecheros_. It might happen, that none would confess the
crime; and as all were then equally liable to suspicion, the
relations of the dead man were at liberty to select any one as
the murderer, 'just as they thought fit;' after which the
supposed murderer named eleven relations of the slain, and
these, together with the accuser, swore to his being guilty or
not guilty. Unanimity was required; and if one or two would not
swear, that is to say, if they could not agree with the
majority, each one who was so dissentient swore with twelve,
that neither he, nor any one for his use, had received any
bribe; then he was discharged. But if the defendant did not
'fall' by the withdrawing of his juror, he was at liberty to
name another. This proceeding is remarkable; a new aspect is
given to the ordeal by calling in the compurgators to swear with
the accuser instead of the accused; and in this form it is,
perhaps, more closely assimilated to a jury-trial. It may be
observed, that a practice once prevailed in England of
withdrawing the dissentient jurors, and replacing them by
others, till an unanimous verdict was obtained."
Such are the facts which the author of these researches has
collected on the existence of ancient Germanic customs, or
analogous usages, in the towns of Castile and Leon, dating from
the twelfth century. He unhesitatingly concludes therefrom that
these same customs existed in the sixth and seventh centuries
among the Spanish Visigoths, and formed a part of their
institutions.
Errors Of The Preceding Theory.
It is inconvenient to prove that facts are not true, for it
devolves on him who affirms them to prove that they are so; and,
in such a case as this, when we speak of epochs separated by five
or six centuries, and by such a revolution as the dispossession
of a people and a foreign conquest, inductions are not
sufficient.
{253}
The _Forum judicum_ is absolutely silent upon the
appointment of military leaders, and upon compurgation by juries;
nay, more, this latter institution is incompatible with the
arrangements of this code in reference to judges and the
administration of justice. No other contemporary authority
contradicts the _Forum judicum_. Must we, upon the authority
of facts of much more recent date, and which refer to an entirely
different state of civilization, refuse to believe proofs so
direct, and testimonies so positive?
I am aware of all that may be said about the disorders of these
times, the continual gaps in the laws, and the disposition of
legislators to omit precisely those usages which were most simple
and universal, as though they had no need to be consecrated or
even indicated by formal enactment. It is, in fact, very possible
that the practice of compurgation by juries was not completely
unknown to the Visigoths; it recurs in all Germanic customs, and
it may not have disappeared either entirely or all at once, even
after the introduction of a code derived principally from the
Roman laws. But it is impossible to believe, in spite of this
code, that it continued to be the common law, the fundamental
institution, the veritable judicial system of the nation.
It is more easy to explain, with likelihood, the existence of
these practices among the Spanish Goths of the twelfth century,
than to justify, without proofs, or rather in opposition to all
evidence, the arbitrary supposition of their prevalence among the
Visigoths of the seventh. Such institutions have in themselves
something of spontaneity; they correspond to a certain degree of
civilization, to a certain state of social institutions; we meet
with them under forms more or less similar, but fundamentally
analogous, not only among all the Germanic peoples, but also
among nearly all those barbaric peoples which, scarcely issued
from a nomadic life, begin to establish themselves on a new
territory, after they have conquered it. Now, the destruction of
the monarchy of the Visigoths by the Arabs suspended the course
of the institutions which it had received two centuries before,
broke off the councils of Toledo, crushed or greatly diminished
the predominance of the clergy, and, in fine, put a stop to the
civilization which had commenced, and gave to affairs an entirely
new direction.
{254}
Birth Of Free Institutions.
Scattered among the mountains, frequently wandering, separated
into various bands, those of the Goths who did not submit to the
conquerors, returned, so to speak, towards the life which their
ancestors led in the forests of Germany. Roman institutions,
Roman maxims, all that collection of laws and ideas which they
had received from the clergy, and which had prevailed over their
own habits, disappeared almost necessarily in this shock, or at
least were retained only by those Goths who remained under the
dominion of the Mussulmans. The companions of Pelagius, up to a
certain point, became Germans once more, from sheer necessity. It
was after this involuntary return to their primitive condition,
and, by consequence, to their ancient institutions, that they
resumed the offensive against the Arabs, and reconquered Spain by
degrees, bringing back with them those political and judicial
customs, usages, and practices, which they had partially
regained. Free institutions, moreover, could not fail to regain
vitality at this period; for they alone can supply strength in
times of danger or misfortune. It was not in the power of the
customs of the _officium palatinum_, and of the maxims of
the councils of Toledo, to restore the Goths to their subjugated
country, and reinstate the descendants of Chindasuinth upon the
throne of their fathers. The participation of the people in
public affairs, the sternness of Barbarian manners, and the
energy of irregular liberty, could alone produce such effects.
There is every reason to believe that the institutions of Spain,
after the re-establishment of the kingdoms of Castile, Leon,
Arragon, &c, were new institutions, and the result of the new
position of the Goths, much more than the legacy of the ancient
Visigoths. We find proofs of this in the general Cortes of the
kingdom, in the constitutions and liberties of the towns, in the
whole political order of the State, which has no connection
whatever with the old monarchy, and follows much more naturally
as a result of the condition and necessities of new monarchies.
The political system established by the councils of Toledo and
the _Forum judicum_ could not have taken deep root; it fell
before necessities which it was unable to meet.
{255}
Conclusion.
The _Forum judicum_ itself would perhaps have completely
succumbed, had it not continued to be the law of those Goths who
had submitted to the yoke of the Moors; it moreover regulated
civil order, which is always more firmly fixed, and less
influenced by revolutions. It therefore continued, in this
respect, to be the general law of Spain; whilst political order
assumed a new form and was regulated by other institutions.
The _Forum judicum_ and contemporary authorities are the
only true source at which we can study the political institutions
of the ancient Visigoths; a source which is doubtless incomplete,
and which does not inform us of all that existed; a source which,
probably even, especially neglected to gather up what still
remained of Germanic manners and habits, but which it is
impossible to repudiate in order to admit facts and general
institutions which are directly contrary to it. The consequences
which I have deduced from these original and contemporary
authorities, therefore, still subsist, and determine the true
political system of the monarchy of the Visigoths. The imperial
government, and ecclesiastical theories, were its constituent
elements. These elements prevailed over Germanic customs. They
were doubtless modified in order that they might be adapted to a
Barbarian people; but, by modification, they gained dominion, and
became the general form, the fundamental law, of the State. If
the Spanish Goths afterwards entered upon a course more analogous
to that pursued by other modern nations of the same origin, it is
in the invasion of the Arabs, in the second conquest of Spain by
the re-Germanized Goths, and in the effects of this great
revolution, but not in the institutions of the monarchy of the
Visigoths, that we may discern the causes of this procedure.
End Of Part I.
{256}
{257}
Part II.
Essays Of Representative Government In England,
From The Conquest Till The Reign Of The Tudors.
Lecture I.
Subject of the course: the history of the origin and
establishment of representative government in Europe.
Different aspects under which history is considered at various
epochs.
Poetic history; philosophic history; political history.
Disposition of our time to consider history under these various
aspects.
Fundamental principle and essential characteristics of
representative government.
Existence of this principle and these characteristics in
England at all times.
Subject of the course.
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.
{258}
Epochs Of European History.
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 the tenth 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.
{259}
Aspects Of History.
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 satisfied
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.
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The History Of Free Nations.
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.
Historic Requirements Of The Present Age.
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.
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Fifty years ago, a faithful picture of this age in the life of
peoples would have appeared only coarse and revolting; 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.
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Necessity Of An Acquaintance With History.
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, in fine,
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.
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Subject Of The Present Course.
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, in
fine, 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.
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Principle Of Representative Government.
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.
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Characteristics Of Representative Government.
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.
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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.
Division Of Power.
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.
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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."
Character Of The English Monarchy.
"The English monarchy," says Fortescue, "_non solum est
regalis, sed legalis et politica, potestas,_" 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.
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Importance Of The Towns.
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.
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Sources Of Liberty.
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.
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Lecture II.
Sketch of the History of England, from William the Conqueror to
John Lackland (1066-1199).
William the Conqueror (1066-1087).
William Rufus (1087-1100).
Henry I. (1100-1135).
Stephen (1135-1154).
Henry II. (1154-1189).
Constitutions of Clarendon.
Richard Cœur de Lion (1189-1199).
Early History Of England.
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.
The Norman Conquest.
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.
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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 landholders 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 [sic; 1066], 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.
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Reign Of William Rufus.
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.
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Reign Of Henry I.
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.
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Wars Of Stephen And Matilda.
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.
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Reign Of Henry II.
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.
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Constitutions Of Clarendon.
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.
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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_; 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.
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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.
Murder Of Thomas A Becket.
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.
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Conquest Of Ireland.
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 Cœur-de-Lion, succeeded him without
difficulty.
Richard Cœur-de-lion.
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.
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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.
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Lecture III.
Anglo-Saxon institutions.
Effects of the Norman Conquest upon Anglo-Saxon institutions.
Effects of the Conquest upon Norman institutions.
Causes which made the Norman Conquest favourable to the
establishment of a system of free institutions in England.
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.
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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.
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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.
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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.
{295}
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.
{299}
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.
{302}
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.
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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.
Stephen, Henry's successor, granted charters to his subjects as
Henry had done, and these charters were also the result of
usurpation. He published two; the first only confirmed the
liberties granted by Henry I., and the laws of Edward the
Confessor. The second is remarkable as containing a promise made
by Stephen to reform the abuses and exactions of his sheriffs. At
this period public offices were farmed, and those who filled
them, seeking to gain all the advantages possible from them, were
far more oppressive on their own account than on account of the
king. Accordingly it was no difficult matter to appeal to the
king against his own officers. Such a mode of appeal, however,
indicates that legal and regular guarantees were unrecognized and
but little thought of. The barons however began to procure them,
by force. They obtained from the king permission to fortify their
castles and put themselves in a state of defence. And the clergy
on their part, while taking the oath of fidelity, attached to it
a condition that they should be released from its obligation as
soon as the king should trespass on ecclesiastical liberties.
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Charter Of Henry II.
The charter granted by Henry II., about the year 1154, still
expresses nothing more than a recognition of rights; it does not
contain any new promise, or any concession of guarantees. The
reign of this prince, I need hardly remind you, was entirely
occupied with his disputes with the clergy, with the revolts of
his sons, and with his conquests, both on the Continent and in
Ireland. No important differences were brought into discussion
between him and his barons; no progress in existing institutions
is visible, and we may say that the reign of Henry II.,
considered from this point of view, was orderly and stationary.
If, however, the king, so far as his relations to his barons were
concerned, obtained an almost uninterrupted submission, and
caused the demolition of most of those fortified castles which
had been constructed during the preceding reign, the towns on the
other hand, and especially the city of London, increased in
strength and importance, and the aristocracy became every day
more compact by means of the fusion of the Normans and the
English, a fusion which was almost completed during this reign,
at least among the upper classes.
The fact of this period which bears most importantly upon the
subject which we have under consideration, is the substitution of
the _escuage_ for the personal service of the vassals. It is
under the reign of Henry II. that we find this impost collected
for the first time, at least in the form of a general measure.
The establishment and limitations of the _escuage_ became
soon the principal object of contention between the king and his
barons. The use which the kings came to make of the resources
derived from this impost was fatal to them, for they employed it
in order to keep up armies of foreign mercenaries, especially
Brabanters; and by these measures, they gave a new motive to the
English barons to coalesce. The expulsion of foreign soldiers
became at length one of the continually recurring demands of the
barons.
Henry II. towards the close of his reign, imposed by his own
authority a tax of one sixth on all moveable property. He
abandoned the _danegeld_.
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Reign Of Richard I.
The reign of Richard, which was entirely occupied with his
brilliant but unfortunate expeditions, offers nothing especially
illustrative of the history of institutions. The absence of the
king and the weakness of the royal power supplied the feudal
aristocracy with opportunities for extending their importance;
but they did not at that time take advantage of their superiority
to procure a recognition of their rights;--not until the reign of
John did the struggle become violent and the victory decisive.
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Lecture VII.
Charter of John, or the Great Charter (1215).
Three epochs in John's reign.
Formation of a coalition among the barons.
Civil war.
Conference at Runnymead.
Concession of the Great Charter.
Analysis of this Charter.
Its stipulations refer to national rights as well as to those
of the barons.
John petitions and obtains from Innocent III. a bull to reverse
the Great Charter.
Resistance of the English clergy.
Recommencement of the civil war (October, 1215).
Louis of France, son of Philip Augustus, is appealed to by the
barons.
Death of John (October, 1216).
Reign Of King John.
During King Richard's absence, the administration of the kingdom
had fallen into the hands of the barons: the feudal aristocracy
had begun again to interfere directly in the government, both by
way of encroachment and of resistance. Still, the acts of the
barons had no longer the same character which they possessed
under the preceding reigns; they no longer offered an open
resistance; they did not demand any new charters; they did not
petition for the observance of former ones: but they silently
collected their forces in anticipation of a struggle which was to
be decisive. We find them submitting to the exactions which
Richard imposed on all classes of society, both for his crusade
and for his ransom. Nevertheless, the old maxims as to the
necessity of obtaining the consent of the barons to every
extraordinary imposition, had revived with new vigour. This right
of giving consent to tributes was vindicated with an increasingly
determined firmness; and in the first assembly, which Richard
held at Nottingham after his return from the East, he was unable
to establish an impost of two shillings on every hide of land
until he had obtained the consent of his barons. Already every
tribute that was levied on the sole authority of the king had
begun to stir up a spirit of resistance. This resistance declared
itself as soon as John ascended the throne, and the opposition
which had been preparing during the reign of Richard then started
into prominence.
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Opposition Of The Barons.
The reign of John may be divided into three epochs: from 1199
till 1206, he was occupied with his quarrels with the king ol
France, and with the struggle which arose from the refusal of the
barons to second him in his continental enterprises. From 1206 to
1213, John was occupied by his disputes with the Pope and the
clergy. Lastly, from the year 1213 to the close of his reign, his
position with reference to the barons and the clergy became more
and more hostile; it revealed to him their power and his own
feebleness; and constantly succumbing before them, we see him
yielding one point after another to the clergy and barons, who
were always united in their attacks upon him, until at length he
granted that celebrated charta usually called Magna Charta, which
is a lasting monument of John's defeat and the abiding basis of
the English constitution.
John was not the lawful heir to the crown; it belonged to his
nephew, Arthur, Duke of Bretagne, whose rights were further
confirmed by a testament of Richard. Nevertheless, by his
largesses and his yielding disposition, John found no difficulty
in usurping the throne of England. The opposition was stronger in
his continental possessions; the feudal ideas there prevailing
favoured the system of representation, and the people were more
disposed to recognize the claims of a son than those of a
brother. Anjou, Poitou, Maine and Touraine declared for Arthur.
In 1201 (others say in 1204) John demanded of the barons, whom he
had assembled at Oxford, that they should assist him in the war
which he purposed carrying on in France. They required, as the
price of their assistance, that the king should promise to
restore to them their liberties and privileges. John, without
having granted anything to them, succeeded in winning over one
after another, until he had obtained from each individually what
had been refused to him by all when assembled. Nevertheless, this
opposition showed that the coalition among the barons had taken
shape and consistence.
John, who had as yet done nothing to deserve that his usurpation
should be overlooked, rendered himself odious by an imprudent
divorce, and by vexatious indignities. He introduced into his
retinue, bullies, whom he called champions of royalty; and he
obliged the discontented barons to enter into the lists with
them, and to settle, by these pretended judicial combats, their
disputes with the crown.
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At length, his exactions, his tyrannical proceedings, and above
all, the murder of Arthur, whom he is said to have assassinated
with his own hand, excited against him an almost general rising.
Abandoned by his barons, driven from Normandy, Anjou, Maine,
Touraine, and a part of Poitou, John, instead of conciliating the
minds of his people, only acted in such a manner as to alienate
them more and more, and only defended himself by rendering
himself more odious. A new _escuage_ of two marks and a half
for every knight's fief was extorted from the barons. John had,
therefore, to endure a new refusal when he asked them a second
time to follow him to the Continent. In vain was it that he
employed those means which had before succeeded; he was obliged
to yield, and to allow Philip Augustus to take possession of
Normandy, and reunite it to the crown of France.
Quarrels With The Clergy.
It was not enough for John that he had entered into hostilities
with the lay aristocracy; he still further made himself inimical
to the clergy. On the death of the Archbishop of Canterbury, the
Augustin monks had arrogated to themselves the right of
appointing his successor without the consent of the king. John,
nettled by this invasion of his prerogatives, united with the
bishops, who also protested against an election in which they had
taken no part, and in concert with them, nominated the Bishop of
Norwich to the vacant see. Upon this, Innocent III. interfered in
the dispute;--but without confirming either of the two elections,
he ordered the English clergy to choose Cardinal Stephen Langton.
The king, enraged against the Court of Rome, drove all the monks
from Canterbury, and made himself master of their revenues.
Accordingly, the Pope excommunicated the monarch, placed the
whole kingdom under his ban, and released his subjects from the
oath of fidelity which they had sworn to John. Moreover, he
charged Philip Augustus to execute his decrees, and offered to
him the crown of England. Philip eagerly accepted the present,
while John, frightened by the double danger which pressed upon
him, demanded, but in vain, assistance from his barons;--he had
acted unjustly towards them, and now he found them indifferent to
his misfortunes. At last, stripped of all resources and left
without hope, he sought safety in submission, and saved himself
by means of base servility: he declared himself a vassal of the
pope, and engaged to pay him annually a tribute of a thousand
marks.
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Commencement Of The Civil War.
After John had thus ransomed his crown, he soon endangered it
again by renewed acts of imprudence; his base tyranny, and his
criminal attempts on the wife of Eustace de Vesci, roused the
barons against him, and their opposition, was directed and
stimulated by the primate Langton.
It is not to be wondered at that the feudal aristocracy should
act under the guidance of an ecclesiastic; the two orders made
common cause, and this coalition, which preceding kings had
always endeavoured to prevent, was one of the effects of John's
odious and absurd conduct. He forgot that the royal power could
only maintain itself so long as the power of the clergy and that
of the barons balanced one another; when they united, he was
obliged to succumb. Their union was the result of John's base
submission to the Holy See; the English clergy, tired of the
despotism of Rome, and regretting the loss of their privileges,
openly embraced the cause of national liberty.
Such was the pervading feeling, when (August 25, 1213) an
assembly of the barons was convened at London. In one of their
meetings, Cardinal Langton informed them that he had found a copy
of the charter of Henry I., which was then entirely forgotten;
this charter was read to the assembly, and received with
enthusiasm. Another meeting was held at Saint Edmundsbury
(November 20, 1214), and there each baron, laying his hand upon
the altar, took an oath that he would use his efforts to force
the king to restore in full vigour the charter of Henry I. They
soon presented themselves at London in arms, and on January 5,
1215, they demanded from John, in a formal and positive way, the
renewal of this charter, as well as of the laws of Edward the
Confessor. John, terrified by their firmness, requested that some
leisure might be granted to him in order to think over these
demands, and accordingly his answer was deferred till Easter.
During this interval, he endeavoured to introduce division among
his enemies, and in the first place, wishing to conciliate the
clergy, he granted them by a charter the liberty of electing
their own bishops and abbots, and sent William de Mauclerc to
Rome to complain of the audacity of the barons.
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They too despatched Eustace de Vesci to Rome, to represent to the
pontiff the justice and sacredness of their cause. This embassy,
however, failed in its object; the Pope condemned the barons: but
they were not to be intimidated from their purposes, and John,
determining to make another effort in order to secure the support
of the church, took the cross on the 2nd of February, 1215, and
made a vow to lead an army into Palestine.
The respite, however, which the barons had granted to the king
came to an end, and they met again at Stamford in Lincolnshire,
on the 19th of April, 1215, being followed by nearly two thousand
knights in arms. The king asked them what their claims were; they
made at Stamford the same answer as they had made in London, and
presented the charter which they had sworn to establish. "And why
do they not demand my crown also?" exclaimed John in his fury;
"by God's teeth, I will not grant them liberties which will make
me a slave." This answer was taken as a declaration of war, and
on the 5th of May following, the barons met at Wallingford,
solemnly renounced their oath of allegiance, and at the same time
named Robert Fitz-Walter general of the "army of God and of Holy
Church."
War was declared: in vain did the Pope address letters to the
barons, in which he commanded them to desist from their
enterprise; the hostilities which had been commenced only
continued with greater vigour, and on the 24th of May, the
triumphant barons took possession of London with the consent of
the citizens. John left the city and retired to Odiham, in the
county of Hampshire, with no other escort than seven knights.
From his retreat he attempted, without success, to enter into
negotiations; he proposed the intervention of the Pope, but this
was also refused: baffled in all his attempts, he was at length
necessitated to acquiesce in the law which had been forcibly
imposed on him.
Conference At Runnymead.
On the 13th of June, a conference was opened in the plain called
Runnymead, between Windsor and Staines. The two parties had
separate encampments, as declared enemies; after some trifling
debates, the king at first adopted the preliminary articles, and
four days after, on the 19th of June, 1215, he made the grant of
the famous act known by the name of the Great Charter,--Magna
Charta.
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Analysis Of Magna Charta.
This charter, the most complete and important that had yet
appeared, may be divided into three distinct parts; one referring
to the interests of the clergy, another regulating those of the
nobility, and the third, those belonging to the people. This
methodical division is not taken from the order in which the
articles of the actual charter are distributed, but I have here
adopted it in order to render my account of it more natural and
distinct.
The Great Charter refers but little to ecclesiastical interests,
since they had been settled by the charter already granted to the
clergy. All that was therefore required was that this should be
confirmed. This accordingly is done in the first article, which
grants a general confirmation to all ecclesiastical immunities
and privileges.
The privileges of the laity, on the other hand, were more
uncertain, and more strongly contested; it was therefore
necessary that they should be minutely investigated and
separately conceded. The Great Charter is almost entirely devoted
to the settlement of the rights, and the confirmation of the
privileges, claimed by the laity.
In the first place, it determines with precision what had been
obscure and ambiguous in the feudal laws; and it fixes the amount
of relief which the immediate or indirect inheritors of fiefs
should pay. Hitherto this relief had been indeterminate. (Arts. 2
to 3.)
Then follow the precautions prescribed respecting the marriage of
feudal wards, and those which regard the widows and children of
vassals. (Arts. 6 to 8.)
The right and mode of collecting aids and escuages, are regulated
by the two following articles:--
"Art. 12. That no escuage or extraordinary aid shall be imposed
in our kingdom, except by the national council of our kingdom,
unless it be to ransom our person, to equip our eldest son as a
knight, and to marry our eldest daughter: and for these last
cases only a reasonable amount of aid shall be demanded, &c."
"Art. 14. In order to hold the national council of the kingdom,
for the purpose of imposing any other aid than for the three
cases heretofore mentioned, or to impose an escuage, we will
call together the archbishops, bishops, abbots, earls and great
barons, individually and by letters from ourself; and we will
assemble together by means of our viscounts and bailiffs, all
those who are directly dependent upon us.
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The great convocation shall be made on a fixed day, namely, at
intervals not greater than forty days, and in an appointed
place; and in the letters of convocation we will expound the
reason of such convocation; and the convocation thus made, the
business shall be transacted on the day appointed, by the
council consisting of those who are present, although all those
who have been summoned may not have arrived."
This charter is the first document in which we find a distinction
established between the greater and lesser barons, and the higher
and lower clergy; an important fact, since it may perhaps be
regarded as the original source of the separation between the two
Houses of Parliament.
Lastly, several articles have for their object to limit the
rights of the king on the lands of his tenants, to fix the amount
of fine imposed on beneficiaries according to the gravity of
their offence, to determine the length of time during which lands
should remain sequestrated on account of felony; in one word, to
give to the barons greater independence and security than they
had ever before enjoyed.
These are the principal enactments of the Great Charter in favour
of the nobility; up to this point, we find only sanctions given
to particular privileges, we have only met with that which
favours the interests of certain classes in society. But it
contains also clauses of wider and more general application; it
has for its object also the interests of the nation as a whole.
First of all, almost all the immunities granted to the barons
with respect to the king, the vassals obtained with respect to
their lords. These were not allowed from this time to collect
aids and escuages on their lands, except in the same cases and in
the same manner as the king. (Art. 15.)
Justice was for the future to be administered in a fixed and
uniform manner; the following are the articles in which this
important provision is expressed:--
"Art. 17. The court of common pleas shall not follow our court
(_curia_), but shall be held in a fixed place.
"Art. 18. We, or if we are absent from the kingdom, our chief
justiciary, shall send four times a year into each county two
judges, who, with four knights, chosen by each county, shall
hold the assizes at the time and place appointed in the said
county."
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"Art. 39. No freeman shall be arrested or imprisoned, or
dispossessed of his tenement, or outlawed, or exiled, or in
anywise proceeded against; we will not place or cause to be
placed hands upon him, unless by the _legal judgment of his
peers or by the law of the land_.
"Art. 40. _Justice shall not be sold, refused, or delayed to
anyone._"
Moreover, the king promises to appoint only capable and upright
judges (Art. 41); to forbid their condemning any person whatever,
without having previously heard the witnesses (Art. 38); to
reinstate every man who had been dispossessed without legal
judgment (Art. 32); to repair the injuries committed under Henry
II., and Richard I. (Art. 53); to put a stop to the imposts for
the construction of bridges (Art. 23); and to interdict
annoyances of all kinds inflicted either on townsmen, merchants,
or villeins (Arts. 20, 26, 28, 30, 31).
He grants and assures to the city of London, as well as to all
other cities, boroughs, towns, and harbours, the possession of
their ancient customs and liberties (Art. 13).
Lastly, the 41st Article provides that all merchants shall have
full and free liberty of entering England, of leaving it, of
remaining there, and of travelling there by land and by water, to
buy and to sell without being subject to any oppression (_male
toltâ_) according to the ancient and common usages, &c.
These, then, are the concessions made to promote the interests of
all.
It is not, however, enough that rights should be recognized and
promises made; it is further necessary that these rights should
be respected, and that these promises should be fulfilled. The
61st and last article of the Great Charter is intended to provide
this guarantee. It is there said that the barons shall elect
twenty-five barons by their own free choice, charged to exercise
all vigilance that the provisions of the Charter may be carried
into effect, the powers of these twenty-five barons is unlimited
if the king or his agents allow themselves to violate the
enactments of the Charter in the smallest particular, the barons
will denounce this abuse before the king, and demand that it be
instantly checked.
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If the king do not accede to their demand, the barons shall have
the right, forty days after the summons has been issued by them,
to prosecute the king, to deprive him of his lands and castles
(the safety of his person, of the queen, and of their children,
being respected), until the abuse has been reformed to the
satisfaction of the barons.
Though such a right was granted, no guarantee was thereby given;
it only authorized civil war; it was to perpetuate the struggle
indefinitely, and formally to leave the ultimate decision of the
question to force. It was still far from being a regularly
constituted political guarantee; but the spirit of that age was
not capable either of discovering or of comprehending such a
guarantee--it could only understand the recognition of its
rights. However, the forcible guarantee which the Great Charter
established was so far valuable, inasmuch as it centralized the
feudal aristocracy by organizing the council of barons.
It has been often said that the Great Charter would not have been
supported by the barons had not it not been for its influence on
their special interests. This opinion is untenable: how is it
possible that at least a third of the articles should have
related to promises and guarantees made on behalf of the people,
if the aristocracy had only aimed at obtaining that which should
benefit themselves? We have only to read the Great Charter in
order to be convinced that the rights of all three orders of the
nation are equally respected and promoted.
Another question has been raised, as to whether John did or did
not grant a special charter relating to forests at the time when
he granted the Great Charter. Mathew Paris is the only author who
speaks of this charter of forests, and there are several reasons
why his authority should in this matter be rejected. First of
all, the preliminary articles of the Great Charter contain
nothing on this point; in the second place, Articles 44, 47, and
48 in the Great Charter itself settle whatever relates to
forests; and lastly, the king and the Pope, in their
correspondence prior to these events, make no allusion to this
twofold concession.
When the king had distinctly adopted each article of the Great
Charter, the agreement between him and his barons, which had been
concluded on the 15th of June, was executed in order to ensure
the fulfilment of his engagements. The guarding of the city of
London was entrusted to the barons till the 15th of August
following, and that of the Tower to the Archbishop of Canterbury.
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Violation Of Magna Charta.
John dissembled at first, and appeared to submit without any
reserve to all the sacrifices which were imposed upon him; but
such a mask soon became intolerable to him. After a short time he
broke out into complaints and threatenings, and retired in fury
to the Isle of Wight. While there, he procured the enrolment of
an army of Brabanters in order to regain his power by battle, and
despatched a messenger to Rome beseeching for aid against the
violence that had been done him. Innocent III., hearing what had
occurred, and irritated by the audacity of the barons, whom he
called his vassals, annulled the Great Charter, and
excommunicated all the barons who had joined in the rebellion.
The king, trusting to this powerful support, threw aside the
mask, and retracted all his engagements. But he speedily
perceived that those spiritual weapons, which had recently been
so potent when opposed to him, were now without value when placed
in his own hands. Archbishop Langton refused to pronounce the
sentence of excommunication. He was summoned to Rome and
suspended, but in vain; the clergy sustained him in his disgrace,
and confirmed his refusal. John attempted ineffectually to divide
the two orders,--whenever he made any preparations for fighting,
they became inseparable allies.
John had now no other hope except in the support of his foreign
mercenaries; he made one last effort, and in the month of October
1215, war was again enkindled between him and the barons. The
attack was unforeseen; the barons being suddenly surprised
retreated before the king, who advanced in triumph as far as
Rochester Castle, of which he made himself master after an
obstinately resisted siege. He made prisoner its governor,
William d'Albiney, one of the twenty-five barons appointed to
guard the maintenance of the charter, and the most distinguished
captain among them: this was an irreparable loss to their party;
and from this moment the king met with no regular resistance. His
tyranny might now glut itself with vengeance; he let loose his
satellites, and the entire kingdom was soon filled with the
devastating effects of his rage.
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Nevertheless, some barons in the north still resisted him
manfully; and the remnants of the coalition combined with them;
but feeling themselves too weak, they sought in their turn safety
from a foreign ally. The crown of England was offered in their
name to Prince Louis, son of Philip Augustus, who thereupon sent
an army to attempt the conquest of England.
Louis had scarcely landed when the aspect of affairs entirely
changed. John, abandoned by his friends and by his soldiers, lost
in a short time all that he had recovered. The entire kingdom
fell into the hands of his young rival, and Dover was the only
town which remained faithful to John. Prince Louis, however,
though he had so far succeeded, did not establish himself on his
newly acquired throne. The predilection which he invariably
manifested for the French nobles could not but be distasteful to
the English barons, and the avowals of the Count of Melun, made
on his deathbed, had the effect of detaching almost all the
nobility of the kingdom from the side of Louis. This noble
induced the barons to distrust the king, who, he affirmed, fully
intended to dispossess all of them, and to distribute their lands
among his favourites and natural subjects. This disclosure,
whether it was true or false, had a powerful effect on the minds
of the barons, and most of them renewed their allegiance to their
former king.
Death Of King John.
John had now set his army on foot, and fortune seemed to promise
him new successes, when death surprised him on the 17th of
October, 1216. This event was more fatal to Louis than a lost
battle could have been. The hatred of the English to their king
died with him--they hastened to rally round his young son--a
general defection quickly ruined the already tottering cause of
the French prince, and after he had continued this useless
struggle for a short time, he abandoned a throne for the offer of
which he was indebted merely to the accidental distress of the
English barons, and which he would never have been able to secure
by the mere force of his arms.
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Lecture VIII.
Charters of Henry III.
First Charter of Henry III. (November, 1216).
Louis of France renounces his title to the Crown, and leaves
England.
Second Charter of Henry III. (1217).
Forest Charter granted by Henry III. (1217).
Confirmation of Charters (1225).
Revocation of Charters (1227).
New confirmation of Charters (1237).
Continual violation of Charters.
Civil war.
Renewal of Charters (1264).
New confirmation of Charters (1267).
Death of Henry III. (November 16, 1272).
Charters Of Henry III.
Hitherto we have only seen, in the charters, recognitions of
rights more or less open and complete; they are transactions
between two rival powers, one of whom gives promises while the
other establishes rights; but there is no power to guarantee that
these promises shall be faithfully kept and these rights duly
regarded. The only curb placed on royalty is the prospect of a
civil war that is always threatening to break out--a remedy which
is incompatible with order and stability, two elements which are
indispensable to a free government.
Under the reign of Henry III., the feeling began to be
entertained that civil war is an evil guarantee; and other means
of preventing the violation of oaths were sought and dimly
apprehended. The charters which were obtained in this reign have
still as their chief aim the obtaining of new concessions and
promises; but efforts towards the formation of guarantees are
also apparent, and we may now trace the first attempts after a
legal and efficient constitution.
This reign must be regarded under the two aspects which have been
indicated. Our object at present being only to follow the history
of English Charters, we shall examine the facts of this period
only under the first point of view: when we come to treat of the
formation of the Parliament, we shall search there for the first
attempts after an organized constitution.
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First Charter Of Henry III.
Henry, who was but a child when his father died, found an able
protector in William, Earl of Pembroke, Marshal of England, who
was then commander of the royal armies. Pembroke had been a
faithful servant to King John, and transferred to the son that
friendship which he had given to the father. His only thought was
that Henry should succeed to the throne, and accordingly the
ceremony of coronation was performed at Gloucester, on the 28th
of October, 1216. Afterwards, in a council of barons assembled at
Bristol, on the 11th of November, he assumed the title of Regent,
and in order to render the cause of the young king popular he
granted a new charter in his--the king's--name. This charter
corresponded, with the exception of a few modifications, to that
given by King John. All the articles are omitted which refer to
the establishment of _escuages_, to the liberty of entering
and leaving the kingdom, to the preservation of forests and
dykes, and to the customs of the counties; moreover, the article
was suppressed which granted the right of resistance by armed
force in case the king should violate his promises. These
suppressions were not, however, definitely concluded; it is
stated in the charter that "the prelates and lords have
determined that these things shall remain open, until they have
more fully deliberated concerning them." [Footnote 20]
[Footnote 20: The original of this charter still exists in
the archives of Durham Cathedral.]
We see by this that the barons at that time showed themselves
less exacting than they had been during John's reign, or rather
that they no longer stipulated for any other interests than those
which personally affected themselves, neglecting those belonging
to other classes in the nation.
However this may be, this new charter produced the effect which
Pembroke had desired; it finally broke up the party which had
been formed in favour of Prince Louis of France, and strengthened
that of King Henry. The French, however, had still some adherents
left; the city of London especially persisted, with an obstinate
determination, in remaining faithful to them. But after numerous
reverses, they could hold out no longer; a treaty was concluded
between the two monarchs on the 11th of September, 1217; Louis
abandoned all pretensions to the crown, left England with the
remnant of his party, and Henry remained in quiet possession of
the sovereignty.
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The retreat of the French re-established harmony in the kingdom,
but in order to render the concord more certain and immediate two
more charters were granted. One was similar to the preceding;
only one remarkable modification is to be found, namely the
decision that the escuage should be levied as in the time of
Henry II. The other is known under the name of the Charta de
Forestâ, being the same that has been erroneously attributed to
King John: it has only one special aim, and contains nothing but
a series of regulations as to the extent and limits of the
forests belonging either to the nobility or to the crown.
Violation Of The Charters.
These charters were perpetually violated by the agents of power.
For several years these infractions did not occasion more than
partial complaints, but at length, in the year 1223, the
protestation became general and urgent. The council of barons was
summoned to London, where they demanded a new confirmation of the
charters. One of the councillors of the regency, William de
Briwere, ventured to oppose, saying that "all these liberties had
been extorted from the king;" but the Archbishop of Canterbury
smartly reproved him, telling him that if he loved the king, he
at all events would not venture to trouble the kingdom. The young
king promised that the charters should be henceforth observed,
and twelve knights were appointed in each county, who should
enquire what were, according to ancient usages, the rights of the
king and the liberties of his subjects.
Still, new anxieties soon excited new protestations. Since the
preceding reign the barons had held in trust most of the royal
castles and domains, and this was the principal guarantee they
had that their treaties should be observed. Suddenly their
possession of this guarantee was threatened: a bull of Pope
Honorius III., which declared Henry to be of age when he was
seventeen years old, ordered at the same time that all those who
had royal domains in their hands should restore them to the king.
This bull occasioned many suspicions as to Henry's intentions;
fears began to be entertained lest, having obtained his majority,
he should revoke the two charters to which he had sworn during
his minority. The king and his advisers perceived the necessity
of meeting this disturbed state of feeling, and on the 11th of
February, 1225, the king granted of his own accord a new
confirmation of the charters. As an acknowledgment of this they
granted him a fifteenth part of all the moveable property of the
kingdom as a subsidy.
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Revocation Of The Charters.
But this mutual accommodation did not last long. At the end of
two years, Henry, having obtained his true majority, revoked all
the charters, under the pretext that they had been granted when
he was not in the free possession of his body and of his seal;
"_cum nee sui corporis nee sigilli aliquam potestatem
habuerit_."
This revocation excited the most active discontent. The indignant
barons turned their rage against the man whom the public voice
accused as the author of these proceedings. This was Hubert de
Burgh, the grand justiciary and intimate counsellor of Henry.
This minister was from that time exposed to the most violent
attacks, and did not cease to be persecuted by the rage of his
opponents till at length, in 1232, the king yielded to the storm,
withdrew his favour from the obnoxious minister, and exiled him
from the court.
The murmurs of the barons were hardly appeased when Henry seemed
as if desirous of exciting them afresh, by again surrounding
himself with men who were hated by his subjects. This was a
foreigner, a Poitevin, Peter des Roches, Bishop of Winchester,
who became the king's favourite on the disgrace of Hubert de
Burgh. From that time, only foreigners were trusted with places
and favours by the prince. Not content with draining the coffers
of the State, they burdened the people with exactions,--their
insolence was perfectly unbridled. When the laws of England were
appealed to against them, "we are not English," they said, "we do
not know what is the purport of these laws." The indignant barons
urgently demanded justice, and in the year 1234, two years after
the disgrace of Hubert de Burgh, the king found himself compelled
to abandon Peter des Roches and to dismiss the foreigners from
his court. But shortly after, on his marriage with Eleanor,
daughter of the Count of Provence, the Provençals took the place
of the Poitevins, and in their turn drew on themselves the hatred
of the English barons.
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Conformation Of The Charters.
The irritation was general, when the king, who was in want of
money, assembled the barons at Westminster, in the month of
January, 1237, in order to demand of them a subsidy. The barons
answered him with a refusal and with menaces. Henry, alarmed at
this, had recourse to a remedy which had not yet lost its
efficiency, namely, a new confirmation of the charters. Hardly
was it granted before he obtained a subsidy of a thirtieth part
of all moveable property.
But his prodigality soon dissipated these feeble resources; again
was he obliged to resort to arbitrary and tyrannical means in
order to provide himself with money,--to exactions, to forced
loans, a new kind of impost which is then for the first time to
be met with in English history. It is remarkable, however, that
Henry never dared to levy any general tribute on the nation on
his own personal responsibility. Imposts that were really public
were never collected except under the professed sanction of a
council of the barons, and after the king had purchased their
good will by a new confirmation of the charters.
On the 13th of May, 1253, a sentence of excommunication was
solemnly pronounced against any person who should infringe the
royal charters; and at the close of the ceremony the prelates
threw down their extinguished but smoking tapers, exclaiming,
"May the soul of every one who incurs this sentence so stink and
be extinguished in hell!" And the king added, "So help me God! I
will keep these charters inviolate, as I am a man, as I am a
Christian, as I am a knight, and as I am a king crowned and
anointed!"
Again were the charters violated, and at length it was seen that
their repeated renewals were vain,--civil war was therefore
declared. The Earl of Leicester, at the head of a party of
barons, took up arms, at first with the intention of effectually
limiting, but afterwards of entirely usurping the royal
authority. This rebellion had now no longer for its aim to obtain
the renewal of charters, it tended also to found practical
guarantees of recognized rights. Of these I shall speak more in
detail when I come to consider the formation of the Parliament.
At present I will content myself with observing that the result
of the insurrection headed by the Earl of Leicester was a general
renewal of the charters, granted on the 14th of March, 1264,--a
kind of treaty of peace between the king and the barons, the
king's object being to obtain from them the enlargement of Prince
Edward, whom they retained as a hostage.
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Death Of King Henry III.
At length, three years after, on the 18th of November, 1267, some
time before the departure of Prince Edward for Palestine, the
king once more confirmed the charters in the Parliament assembled
at Marlborough. This confirmation was the last granted by Henry
III.; he died five years afterwards, on the 16th of November,
1272, having passed a long reign in making promises to be
afterwards violated, renewed, retracted, and then renewed again.
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Lecture IX.
Conclusion of the history of Charters under the reign of Edward I.
Political conflict follows civil war.
The king frequently violates the Charters, especially in the
matter of imposts.
The barons resist energetically.
Edward gives a definitive confirmation to the Charters
(1298-1301).
A bull of Clement V., solicited by Edward I., annuls the
Charters.
Its failure.
Death of Edward I. (July 7, 1307)
Reign Of King Edward I.
During the two preceding reigns the struggle between the feudal
aristocracy and the royal power has been really a civil war.
Under Edward I. the struggle continued, but the civil war ceased.
The barons did not protest in favour of their liberty with any
less resolute determination than they had hitherto manifested,
nor did the king defend his prerogatives less vigorously, but
neither party appealed to arms. This is the general history of
important struggles; they are begun by a trial of strength
between the two contending parties, and when the problem of
material forces has been resolved, the struggle changes its
direction and its theatre; it becomes concentrated into an
assembly, and the victorious party has no longer any other aim
than to legalize the victory already gained, and thus add a
constitutional validity to a material victory. Parliamentary
debates follow civil war. When the parliamentary debates have
lasted through a certain number of years, and have received the
sanction of time, the struggle may be regarded as terminated. To
this stage had matters arrived in the reign of Edward I.; the
resistance which was shewn during his reign only displayed itself
in Parliament; and, when it had lasted for thirty years, the
rights which it had tended to consecrate were for ever recognized
and tolerably respected.
At the time of Henry's death, his son Edward was in Palestine;
notwithstanding his absence, however, he was proclaimed king
without any opposition. The capacity which he had displayed in
the troubles of the kingdom, and the moderation which he had
often shewn, had gained for him general favour.
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Upon his return to England, he justified the expectations which
had been formed concerning him; many abuses were reformed, and a
better order was introduced into the administration of justice.
I shall pass rapidly over the first twenty-four years of this
reign. They were occupied with the conquest of Wales, and with
Edward's wars in Scotland, which were incessantly renewed by the
insurrections of the Scotch. During all this time, although we
hear of very frequent assemblies of Parliament, we scarcely hear
anything even of the charters. The administration of the kingdom,
which was vigorous and fair, excited few complaints, and public
attention was absorbed by the expeditions and victories of the
monarch.
Exactions Of Edward I.
Nevertheless the necessity of frequently raising subsidies, in
order to keep up his numerous armies, soon obliged Edward to
adopt violent and arbitrary measures. He limited the quantity of
wool which might be exported, and placed on every sack of wool,
that was exported, a duty of forty shillings, that is to say,
more than a third of its value; all the rest of the wool and
hides, that were ready for shipping, were confiscated to the
service of the king. He demanded of each sheriff two thousand
quarters of wheat, and as many of oats, authorising them to take
the required wheat or oats wherever they could lay their hands
upon them; besides which he caused a large quantity of cattle to
be seized. Lastly, showing no regard for feudal right, he imposed
on every landed proprietor, having a larger revenue than twenty
pounds sterling, whatever might be the nature of his domains, the
obligation to attend him in the war which he was about to
prosecute in France.
The dissatisfaction among the people and barons was general, and
it was soon redoubled, in consequence of a fraud to which Edward
did not hesitate to resort in raising a subsidy, which had been
granted to him by the Parliament, held at Saint Edmundsbury in
the preceding year (1296.) Instead of contenting himself with the
eighth [Footnote 21] of the moveable property, which had been
granted to him, he assumed that the impost was much larger, and
obliged his subjects to pay it.
[Footnote 21: An eighth, a tenth, &c. was a money tax levied
on counties, cities, boroughs, or other towns, and so called
because it was the eighth, tenth, &c. of the sum at which
these counties, towns, &c. had been anciently valued under
the reign of William I. Thus each town knew what it had to
contribute. The valuations were contained in the Doomsday
Book. (_Parliam. Hist._, vol. i. p. 83.)]
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Quarrels With The Nobles.
In the midst of the excitement caused by these measures, Edward
convoked his barons at Salisbury to arrange with them for the
departure and march of his armies. He had intended to send one of
his armies to Gascony, and to lead the other into Flanders,
himself taking the command of the latter in person, while the
former was to march under the direction of Humphrey Bohun, Earl
of Hereford, and of Roger Bigod, Earl of Norfolk, the one the
Constable, the other the Lord Marshal of England. These two men,
who were vigorous champions of the national cause, refused to
accept the mission which was offered to them. The object of their
refusal was to compel the king to purchase their compliance by a
renewed promise to confirm the charters, a promise which he had
already made, but which he seemed in no haste to carry out. When
Edward gave them the order to repair to Gascony, they answered
that they were ready to follow him to Flanders, but that the
character of their offices would not allow them to separate
themselves from his person. "You shall go," said the king,
"whether I go with you or not." Hereford replied that he would
not go; upon which Edward exclaimed, "By the everlasting God, sir
earl, you shall either go or hang." "By the everlasting God, sir
king," replied Hereford, coolly, "I will neither go nor hang."
Edward did not feel himself sufficiently powerful to punish this
haughty reply; and, fearing lest he should find the same spirit
of resistance in all the barons, he abandoned his intention of
sending an army into Gascony. The two earls quitted Salisbury
with their retinue, and the king, after he had placed their
offices in the hands of two other lords, prepared to embark for
Flanders.
But before his departure, on the 12th of August, 1297, he
addressed to all the sheriffs of the kingdom a singular kind of
manifesto, one which was, perhaps, unique at that period, which
he intended should be read before the assembled people. In it the
king explained the causes of his quarrel with the two earls,
excused the exactions he had made by pleading the necessities of
war, and desired his subjects to maintain peace and order. This
proclamation, or, perhaps, rather this appeal to the public,
shows how greatly power already felt itself dependent upon the
support of opinion, and constrained in some way to acknowledge a
responsibility to it.
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First Charter Of Edward I.
To this apology for his conduct, which the king put forth, the
Earls of Norfolk and Hereford replied by another manifesto, which
was presented to the king at Winchelsea, in which they recounted
all the public wrongs and demanded redress. Edward answered that
his council was dispersed, and that he could not attend to these
protests till his return, and he accordingly went on his
expedition, leaving his son regent of the kingdom.
Upon this the two earls, after having published their manifesto
and the king's reply to it, presented themselves before the
treasurers and barons of the exchequer, and forbade them, as they
would dread to excite a civil war, to collect, for the king, the
tribute of one-eighth, which had been granted by the Parliament
at Saint Edmundsbury, affirming that the granting of it had been
illegal.
In order to bring these differences to a close, the prince-regent
assembled a Parliament in London, on the 10th of October, 1297.
The two earls were invited to take their place in the assembly,
and came escorted by five hundred horse and a body of infantry,
and would not consent to enter London until they had obtained
permission to place a guard at each gate. They demanded a general
confirmation of the charters, and, moreover, asked that several
additions should be made to them. The prince-regent subscribed to
all their demands, and the act of confirmation signed by him was
immediately sent to the king, who was at Ghent. Edward, after he
had taken three days to consider the matter, sanctioned the
confirmation, [Footnote 22] and granted an amnesty to the two
earls, who, satisfied with this exhibition of generosity on the
part of the king, went, subsequently, to Scotland to assist him
in the war which he was carrying on there.
[Footnote 22: A copy of this charter will be found, in a
note, at the end of this lecture. It is of all others the
most explicit in favour of public liberties. It was given at
Ghent, Nov, 5, 1298; the original is preserved in the British
Museum.]
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Confirmation Of The Charter.
When Edward returned again to England, the barons demanded that
he, in his own person, should confirm the charters which had been
granted to them. The king evaded these demands, and retired to
Windsor. Thither the barons followed him to renew their
importunities and their complaints. The king excused himself on
the ground of ill-health, and told them to return to London,
where he would send them an answer. This answer was a new
confirmation of the charters, but contained one restrictive
clause: _salvo jure coronæ nostræ_. At the public reading of
the charter, which was made at St. Paul's Cathedral, the assembly
hearing how all their rights were definitely confirmed in it,
made the most lively manifestations of joy; but hardly had the
reserve clause been pronounced, when violent murmurs were raised
on all sides; the people immediately left the church, and the
angry barons retired to their domains, resolved once more to
appeal to force.
Edward perceived that he had raised a storm of opinion against
him, and, after innumerable delays and evasions, and complaining
haughtily that he was too closely pressed, he, at length, decided
upon convoking a Parliament on the 6th of March, 1300, and
confirmed without any restriction all the concessions which he
had already made; he even added new guarantees, which were
contained in articles called _articuli super chartas_. The
chief provisions contained in these additions consist in a
regulation that the charters should be publicly read in the
county courts four times every year, and that there should be
elected in each county court, from among the knights of the
court, three justices, sworn to receive all complaints of
infractions of the charters, and to pronounce penalties against
the offenders.
Lastly, in the following year, 1301, at a Parliament held at
Lincoln, Edward, after having received its approval to a new
limitation of the forests, which had been for a long time
demanded and at length concluded, yet once more confirmed the
charters.
From the time when this charter of confirmation was granted, the
rights which it proclaimed were definitively recognized. The open
and exterior struggle ceased at this period, but the secret and
concealed did not. Edward endured impatiently the yoke which he
had taken upon himself, and endeavoured to release himself from
it. He did not, however, dare to raise the mask, but concealed
all his efforts.
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Towards the close of the year 1304, he petitioned Pope Clement V.
to release him from his oaths. The pontiff complied with his
wishes, and by a bull, dated January 5, 1305, declared that all
the promises and concessions made by Edward were _abrogated,
null and void_. [Footnote 23]
[Footnote 23: A copy of this bull will be found in a note at
the end of this lecture.]
This prince did not dare, as John had formerly done, to take
advantage of this bull, and he therefore kept it quite secret;
but he still had recourse to secret manœuvres. He began by a
series of vile persecutions of those who had headed the
confederation of the barons, and especially of the Earl of
Norfolk and the Archbishop of Canterbury. These two men, though
they were in former years so boldly courageous, now yielded with
a feebleness that can only be excused by their great age. But it
was too late; the authority of the king could no longer effect
anything against the charters, and the feebleness even of their
former defenders could not add to the power of royalty. Death
soon after put a stop to all Edward's efforts to carry out the
designs he had formed: it surprised him suddenly while he was in
Scotland, on the 7th of July, 1307. From that period the
charters, notwithstanding all attacks made upon them, have
remained as the immoveable basis of public right in England.
Statute Of Edward I.
_Statute issued by Edward I., in confirmation of the
Charters. November_ 5, 1297.
Edward, by the grace of God, King of England, Lord of Ireland,
and Duke of Guyan, to all those that these present letters shall
hear or see, greeting. Know ye that we, to the honour of God and
of Holy Church, and to the profit of our realm, have granted
that, for us and for our heirs, the charter of liberties and the
charter of the forest, which were made by common consent of all
the realm, in the time of King Henry our father, shall be kept in
every point without breach. And we will that the same charters
shall be sent under our seal, as well to our justices of the
forest as to others, and to all sheriffs of shires, and to all
our other officers, and to all our cities throughout the realm,
together with our writs in the which it shall be contained; that
they cause the aforesaid charters to be published, and declare to
the people that we have confirmed them in all points; and that
our justices, sheriffs, and mayors, and other ministers, which,
under us, have the laws of our land to guide, shall allow the
said charters, pleaded before them in judgment, in all their
points, that is to wit, the Great Charter as the common law, and
the charter of the forest for the wealth of our realm.
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And we will that if any judgment be given from henceforth
contrary to the points on the charters aforesaid by the justices,
or by any other our ministers, that hold pleas before them
against the points of the charters, it shall be undone and holden
for nought.
And we will that the same charters shall be sent, under our seal,
to cathedral churches throughout our realm, there to remain, and
shall be read before the people two times by the year.
And all archbishops and bishops shall pronounce the sentence of
excommunication against all those that by word, deed, or counsel
do contrary to the foresaid charters, or that in any point break,
or undo them. And that the said curses be twice a year denounced
and published, by the prelates aforesaid. And if the same
prelates, or any of them, be remiss in the denunciation of the
said sentences, the Archbishops of Canterbury and York, for the
time being, shall compel and distrain them to the execution of
their duties in form aforesaid:
And foresomuch as divers people of our realm are in fear that the
aids and tasks which they have given us beforetime towards our
wars, and other business, of their own grant and goodwill,
howsoever they were made, might turn to a bondage to them and
their heirs, because they might be at another time found in the
Rolls, and likewise for the prises taken throughout the realm by
our ministers, we have granted for us and for our heirs, that we
will not draw such aids, tasks, nor prises into a custom, for any
thing that hath been done heretofore, be it by Roll or any other
precedent that may be found.
Moreover we have granted for us and for our heirs, as well to
archbishops, bishops, abbots, priors, and other folk of Holy
Church, as also to earls, barons, and all the commonality of the
land, that for no business for henceforth we shall take such
manner of aids, tasks, or prises, but by the common assent of the
realm, and for the common profit thereof, saving the ancient aids
and prises due and accustomed.
And foresomuch as the more part of the commonality of this realm
find themselves sore grieved with the maletent of wool, that is
to wit, a toll of forty shillings for every sack of wool, and
have made petition for us to release the same; we, at their
requests, have clearly released it, and have granted, for us and
our heirs, that we shall not take such things without their
common consent and goodwill; saving to us and our heirs the
custom of wools, skins, and leather, granted before by the
commonality aforesaid. In witness of which things we have caused
these our letters to be made patents. Witness, Edward, our son,
at London, the 10th day of October, the five and twentieth year
of our reign.
And be it remembered that this same charter, in the same terms,
word for word, was sealed in Flanders, under the king's great
seal, that is to say, at Ghent, the 5th day of November, in the
twenty-fifth year of the reign of our aforesaid lord the king,
and sent into England.
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Bull Of Pope Clement V.
_Letter of Clement V. to Edward I._
Clement, bishop, servant of God's servants, to our well-beloved
son in Jesus Christ, Edward, illustrious king of England, health
and apostolic benediction:
The purity of thy loyal devotion, which is and has been uniform
and conspicuous in thy unwearied attention to the desires of the
Holy See, well deserves that the Holy See itself should remove
all that is hostile to thy welfare, should suppress whatever
displeases thee, and should ever secure for thee the enjoyment of
all good.
We have learnt recently, by an account worthy of credit, that
lately, when thou wert in Flanders, and even before thy arrival
there, when thy efforts were being used to maintain thy
prerogatives against thy enemies and rivals, that then certain
magnates and nobles of thy kingdom, and other persons who are
hostile to thy authority, taking advantage of the opportunity
when thou wert occupied in fighting against those in another
kingdom, who were opposed to thy rule, threatened that, unless
thou wouldst make certain concessions of a diverse and unjust
character, both relating to forest and other rights, which have,
from time immemorial, belonged to the crown, and the dignity of
thy rank, (which also, previously, they had importunately sought
before thy departure from the said kingdom,) they would conspire
against thee, would excite the people, and disseminate various
scandals:
And that thou, prudently treating their conspiracy, and wishing
then to avoid the dangers that were pressing upon thee, didst
grant these concessions, more by constraint than with thy free
consent:
And that, finally, on thy return to thy kingdom, the wars not
having then terminated, the said magnates, and others, through
their importunate and presumptuous suggestions, did obtain from
thee the renewal of these concessions; and that they have,
moreover, extorted royal orders to the effect that in every
cathedral church in the kingdom there should be pronounced, twice
every year, a sentence of excommunication against those who
should violate the said concessions, as is expounded formally and
in detail in the said commands, under the authority of the royal
seal:
As, therefore, the Holy Apostolic See regards thy kingdom
favourably, even above all other kingdoms, and entertains for
thee, personally, the most friendly feelings, and recognizes that
all these concessions have been made and extorted at the expense
of thine honour, and to the detriment of thy royal sovereignty:
So by the apostolic authority, and by our full power, we revoke,
annul, and dissolve the said concessions and all their effects,
and all that can result from them, as also the sentences of
excommunication which have or may be pronounced in order to their
observance, either in the said churches or elsewhere, we declare
them abolished, null, and without authority; annulling also the
orders and letters to which they have given occasion; we decree
for thee and for thy successors on the throne of England, that ye
neither are nor ever shall be bound to observe them, even
although ye may have engaged yourselves so by oath; besides that,
as thou hast assured us, at the time when thy coronation was
solemnized, thou didst swear to maintain the honours and the
prerogatives of thy crown; so that, if even thou hast bound
thyself to any penalty on this account, we absolve thee
therefrom, as well as from the accusation of perjury if it should
be made against thee.
{333}
To ensure the execution of our desires, we expressly forbid our
venerable brethren, the archbishops, bishops, and others,
ecclesiastical as well as secular, who are settled in thy
kingdom, to do or attempt anything against the tenor of the
present annulment, abrogation, revocation, and abolition, under
penalty, as regards the archbishops and bishops, of suspension
from their offices and benefices; and, if they persist for one
month, under penalty of excommunication, which shall be, for this
sole reason, pronounced against them, and all who are accessory
to their designs.
We declare beforehand that every attempt against our present
decree is null and void.
If, however, there is any right belonging to the inhabitants of
the said kingdom, which they possess by virtue of previous
letters and concessions so made by thee, we mean not to withdraw
these from them.
It shall not be allowed to any one absolutely to violate in any
particular, or only to contradict the present act of abrogation,
revocation, annulment, and abolition.
If any one dare to allow this in himself let him know that he
incurs the indignation of the Almighty, and of the blessed
apostles Peter and Paul. (Rymer, _Acta Publica_, vol. ii.,
p. 372.)
{334}
Lecture X.
Necessity of inquiring into the political sense of the word
_representation_ at the time when a representative
government began to be formed.
Mistaken theories on this subject.
Rousseau's theory, which denies representation and insists on
individual sovereignty.
Theories of writers who attempt to reconcile the principle of
representation with that of individual sovereignty.
Erroneousness of the idea that the sovereignty belongs to the
majority.
True idea of representation.
Meaning Of Representation.
We have studied the primitive institutions of the Anglo-Norman
government; we have traced the successive steps in the history of
the charters, and of the struggle which was carried on by the
barons to secure their confirmation by the royal power; but up to
this point we have not seen anything of a representative
government. We have, however, now arrived at the point when this
government began to appear. Our attention is now to be called to
the creation of a Parliament, that is to say, to the birth of a
representative system.
As we approach this great historical question, a question in
political philosophy presents itself before us:--what is the true
and legitimate sense of this word _representation_ as
applied to the government of a community? It is not for us to
pass over this question without noticing it: the history of
political institutions is now no longer a bare recital of facts,
--it must rest on principles;--it neither deserves the name nor
possesses the authority of science, till it has sounded and
placed in clear light the primary foundation in reason, from
which the facts which it collects trace their origin. Political
history cannot now be otherwise than philosophical; this is
demanded by the stage of human culture which the mind of society
has reached.
{335}
Rousseau's Theory.
Let us now suppose a representative government, aristocratic or
democratic, monarchical or republican, completely established and
in action: if any one were to ask a citizen of such a
State,--supposing him to be a man of good sense but unversed in
political speculations,--"Why do you elect such a deputy?" he
would answer, "Because in the consideration of public affairs, I
believe him to be more capable than any other of sustaining the
cause to which my opinions, my feelings, my interests, are
allied."
Now bring this man before the political theorists who have
treated of representation; let his good sense be brought into
contact with their systems;--truth would soon be perplexed and
obscured by the falsities of science.
One learned gentleman would thus address him:--"What have you
done? You have supplied yourself with a representative,--you are
no longer free,--you are no longer in truth a citizen of a free
State. Liberty means a man's sovereignty over himself, the right
to be governed only by his individual will. And sovereignty
cannot be represented, just because the will cannot be
represented--it is either the same or something entirely
different, there is no medium. Who has certified you that your
representative will always and on all occasions have the same
will as yourself? He will certainly not be so accommodating. So
far then from your being represented, you have surrendered to him
your will, your sovereignty, your liberty. You have given
yourself up not to a representative, but to a master. And why?
Because you are an indolent, grasping, cowardly individual, who
pay far more regard to your own personal concerns than to public
matters, who will rather pay for soldiers than go to war, who
will rather appoint deputies and stay at home than go yourself
and share in the deliberations of a national council."
This is the way in which Rousseau conceives of representation: he
considers that it is delusive and impossible, and that every
representative government is in its own nature illegitimate.
[Footnote 24]
[Footnote 24: _Du Contrat Social_, b. iii. c. xv.]
Theory Of Individual Sovereignty.
Let the same citizen be addressed by other doctors who,
entertaining the same ideas of sovereignty and liberty as those
held by Rousseau, and nevertheless believing in representation,
endeavour to harmonize these different conceptions. They might
say to him: "Most true; sovereignty resides in yourself and in
yourself alone; but you may delegate without abandoning it;--you
do so every day; to your steward you commit the management of
your lands, to your physician the care of your health, and you
place your legal affairs into the hands of your solicitor.
{336}
Life is vast and complicated, your personal control is
insufficient for all its activity and demands; everywhere you
avail yourself of others in the exercise of your own power--you
employ servants. This is only a new application of the same
principle--you employ one servant more. If he swerve from your
directions, if he fail in giving expression to your will, we
grant that he abuses his trust. When you give him your suffrage,
you do not surrender to him your liberty--he on the other hand in
receiving them has renounced his own. The mandate which he holds
from you makes him a slave while it makes you free. On this
condition representation becomes legitimate, for the person
represented does not cease to be sovereign."
What will the citizen say to this? He must make his choice: such,
he is told, is the nature of representation that, in one way or
another, whenever he appoints a deputy he makes some one a slave,
either his representative or himself. This was far from his
intention; wishing to live at once in freedom and in security, he
connected himself, acting in concert with his fellow citizens,
with a man whom he regarded free as well as himself, and whom he
judged capable of defending his liberty and ensuring his
tranquillity; when he gave this man his suffrage he did not
believe he was either enslaving himself or the object of his
choice;--he thought to enter into a relation of alliance with
him, not of sovereignty or of servitude;--he only did what is
virtually done every day by men, who, having interests which are
identical and not being able to manage them individually and
directly, entrust them to that individual among their number who
appears to be most capable of efficiently conducting them, thus
shewing by their confidence their respect for his superiority,
and preserving at the same time the right to judge, by his
conduct, if the superiority is real and the confidence deserved.
Regarded in itself, this is the fact of election,--neither more
nor less. What then is to be said of the theory which comes to
denaturalize the fact, and to give it an import and significance
which it never had in its origin either in the intention or the
reason of the parties interested.
{337}
Consequences Of These Theories.
The source of all this confusion is to be found in a wrong
apprehension of the word _representation_; and the word has
been misunderstood, because false ideas have been entertained
regarding sovereignty and liberty. We must therefore revert to
earlier stages of the enquiry.
The fundamental principle of the philosophies which we oppose is,
that every man is his own absolute master, that the only
legitimate law for him is his individual will; at no time had any
one, be his credentials what they may, any right over him, if he
does not give his consent to it. Starting from this principle,
Rousseau saw, and saw truly, that as the will is a purely
individual fact, so all representation of the will is impossible.
Assuming that the will is the sole source of the legitimate power
which a man exercises over himself, it follows that no man can
transmit this power to another, for he cannot determine that his
will shall be conveyed to another man and cease to reside in
himself. He cannot confer a power which would certainly involve
the risk of his being obliged to obey another will than his own;
for on this very account, if on no other, that power would be
illegitimate. All thought of representation, therefore, is a
delusion, and all power founded on representation is tyrannical,
for a man only remains free so long as he obeys no law but that
of his own will.
The conclusion is inevitable,--Rousseau's only fault was that he
did not push it far enough. Going as far as this would lead him,
he would have entirely abstained from seeking after the best
government, he would have condemned all constitutions--he would
have affirmed the illegitimacy of all law and all power. In fact,
how does it concern me that a law emanated yesterday from my
will, if to-day my will has changed? Yesterday my will was the
only source of legitimacy for the law; why then should the law
remain legitimate when it is no longer sanctioned by my will? Can
I not will more than once? Does my will exhaust its rights by a
single act? And because it is my only master, must I, therefore,
submit slavishly to laws from which this master who has made them
bids me to enfranchise myself? This was not overlooked by
Rousseau: "It is absurd," he says, "to suppose that the will
should fetter itself with chains for the future." [Footnote 25]
[Footnote 25: _Du Contrat Social_, b. ii. c. i.]
{338}
Theory Of Reconciliation.
This then is the consequence of the principle when fairly carried
out. Rousseau did not see this, or did not dare to see it; it is
destructive not only of all government, but also of all society.
It imposes upon man an absolute and continued isolation, does not
allow him to contract any obligations, or to bind himself by any
law, and brings an element of dissolution even into the bosom of
the individual himself, who can no more bind himself to his own
nature than to any other person: for his past will, that is to
say, what he no longer wills, has no more right over him than the
will of a stranger.
Rousseau was at least sometimes doubtful as to the application of
his principle, and he only lost sight of it when, if he had
remained faithful to it, he would have been obliged to sacrifice
all else to it. Minds less powerful than his, and therefore less
able to cast off the yoke of social necessities, have believed
that they could preserve the principle without admitting all its
consequences. Like Rousseau, they have admitted that, every man
being the sole master of himself, no law can be binding upon him
which is not conformed to his will,--an axiom which has become
popular under this form: _No one is bound to obey laws to which
he has not given his consent_. Reasoning with strict logical
rigour, Rousseau would have perceived that this axiom did not
leave any standing place for organized power. He had, at all
events, clearly shown that all representation of power was
condemned by it as illegitimate and delusive. Other political
theorists have undertaken to deduce from it representation
itself, and all the powers of which it is the basis. They have
proceeded in some such manner as the following:--
They have placed themselves fearlessly in presence of existing
facts, determined to regulate them according to their convenience
by imposing alternately upon the facts a principle which they
reject, and upon this principle consequences which it will not
naturally admit. Given--society to maintain and government to
construct, without ceasing to affirm that the will of man is the
source of legitimacy for power. It is required that this work
should follow from this principle--they determine that it shall.
{339}
Representation Of Wills.
But an impossibility confronts them at the outset; how to avoid
imposing upon men any law without their consent. How shall all
individual wills be consulted regarding each particular law?
Rousseau did not hesitate; he pronounced great States to be
illegitimate, and that it was necessary to divide society into
small republics in order that, once at least, the will of each
citizen might give its consent to the law. Even if that could be
done, the problem would be far from being solved, so that the
principle should appear fully exemplified, whatever tests might
be applied to it. But still an impossibility had at length
disappeared, and logical consistency was preserved. The political
theorists of whom we are speaking, far more timid than Rousseau,
have not dared to protest against the existence of large
communities, but they have not feared to get over the
impossibility by the aid of a new inconsistency. While they do
not allow to individuals the right only to obey laws conformed to
their will, they substitute for it the right only to obey laws
which emanate from a power which has been constituted by their
will; they have thought to pay respect to the principle, by
basing the legitimacy of the law on the election of the
legislative power. Thus the theory of representation, that is, of
the representation of wills, has re-appeared, in spite of
Rousseau's logical reasonings: for, so long as the will of man is
recognized as the only legitimate sovereign for him, if the
creation of a power be attempted by means of representation, the
kind of representation that will really be attempted will be the
representation of wills.
But this theory must be carried out, and reduced to practice.
Now, after having annulled, so far as the creation of the law is
concerned, so many individual wills, the least that could be
expected is that all should be called upon to give their voice in
the nomination of those who shall be commissioned to make laws.
Universal suffrage was therefore the inevitable consequence of
the principle already so violently perverted; it has been
sometimes professed, but never actually adopted. Here then once
more a new impossibility has occasioned a new inconsistency.
Nowhere has the right of voting for the legislative power
belonged to more than a fragment of society; women, at least,
have always been excluded from it. Thus then, while the will has
been recognized as the sole legitimate sovereign in every
individual, a large number of individuals have not even taken any
part in the creation of that factitious sovereignty which
representation has given to all.
{340}
Theory Of Executive Power.
We might pursue these investigations, and we should find at every
step some new deviation from the principle which, it is
pretended, is always to be respected as forming the abiding basis
on which the formation of governments depends. The most
remarkable of these deviations is certainly the supremacy which
is everywhere attributed to the majority over the minority. Who
does not see that, when the principle of the absolute sovereignty
of the individual over himself has been once admitted, this
supremacy is entirely false? And if false, how is society
possible?
I have said enough, I think, to shew that this alleged principle
is powerless for the legitimate creation of the government of
society, and that it must incessantly yield to necessity, and
finally vanish altogether. I will now consider it from another
point of view. I will suppose that the work has been
accomplished, that a government has been constructed; and I
inquire what will be the influence of this principle upon the
government which, it is affirmed, is derived from it, and which
has only been created by the suffrance of numerous
inconsistencies. What right will the government have over
individuals, by whose will alone, it is said, it possesses any
legitimacy? Here, as elsewhere, it is necessary that the
principle should again be referred to; it must determine the
right of the government when it has been established, just as it
must have guided its formation.
Two systems present themselves. According to the one, the
individual wills which have created a legislative power have not
thereby lost their inherent sovereignty; they have provided
themselves with servants and not with masters; it is true they
have created this power in order that it may command, but on
condition that it shall obey. In itself, and in relation to those
from whom it holds its commission, it is nothing but a kind of
executive power, appointed to put in form the laws which it has
received, and constantly subordinated to that other power which
remains diffused among the individuals with whom it originally
resided, and which, although without form and without voice, is
nevertheless the only absolute and permanently legitimate
authority. In fact, there is a sovereign, which not only does not
govern, but which obeys, while there is a government which
commands, but is not sovereign.
{341}
Theory Of Despotic Power.
According to the other system, those individual wills which have
created the legislative and central power are, so to speak,
absorbed into it; they have abdicated in favour of the power
which represents them; and it represents them in the whole extent
of their inherent sovereignty. This is, obviously, pure and
unmixed despotism, rigorously deduced from the principle that
wills are to be represented in government, and which has in fact
been assumed by all governments which have emanated from this
source. "_The elect of the sovereign is itself sovereign:_"
such was the declaration both of the Convention and of Napoleon;
hence the destruction of all responsibility in power, and of all
the rights belonging to citizens. This certainly was not the
consummation which the friends of liberty demanded of
representation.
The first of these systems is the most plausible, and still
possesses many conscientious advocates. This system is so far
good, inasmuch as it ignores an inherent right to sovereignty as
the possession of any government; its error is, that this right
is allowed to exist elsewhere. I do not here examine it in
relation to any other principle than that from which it professes
to be derived; and if the individual wills which have created the
legislative power are bound to obey its laws, what becomes of
this principle? Every man, you say, is free only in so far as he
is left master of his own will. Those then alone will be free in
your government, who, by a happy coincidence of sentiment with
their legislators, approve the laws as thoroughly as if they had
made them themselves; for whoever is bound to obey laws, whether
he approve them or not, immediately loses his sovereignty over
himself, his liberty. And if he has a right to disobey, if the
will of the legislative power is not authoritative over the wills
which have created it, what becomes of this power? What becomes
of government? What becomes of society?
It must seem a somewhat superfluous expenditure of logical force
to appeal so often to a principle while power is being gradually
constructed, when the same principle, if once more appealed to
when the business is apparently completed, is found to give a
death-blow to this very power. Such, however, must be the result:
for the principle has disavowed, from the outset, the power which
was to be deduced from it.
{342}
Fallacy Of The Principle
If, then, we find that this principle, consistently pursued, can
only result in the dissolution of society or the formation of a
tyranny,--if it can issue in no legitimate power whatever,--if
it finally lands us, after our inquiries after a free and
reasonable political order, in the alternative of impossibility
or inconsistency,--must we not most evidently seek for the evil
in the principle itself from which we started?
It is not true, then, that man is the absolute master of
himself--that his will is the only legitimate law--that no one,
at any time, under any circumstances, has any right over him
unless he has consented thereto. When philosophers have
considered man in himself, apart from all connection with his
fellows, only regarding his active life in its relation to his
own understanding, they have never thought of declaring that his
will is for him the only legitimate law, or, which amounts to the
same thing, that every action is just and reasonable merely
because it is voluntary. All have recognized that a certain law
which is distinct from the individual will encircles him,--a law
which is called either reason, morality, or truth, and from which
he cannot separate his conduct without making the exercise of his
liberty either absurd or criminal. All systems, on whatever
principles they may found the laws of morality and
reason,--whether they speak of interest, feeling, general
consent, or duty,--whether they are spiritualistic or
materialistic in their origin,--whether they emanate from
sceptics or from dogmatists,--all admit that some acts are
reasonable and others unreasonable, some just and others unjust,
and that if the individual does in fact remain free to act either
to or in violation of reason, this liberty does not constitute
any right, or cause any act which is in itself absurd or criminal
to cease to be so because it has been performed voluntarily.
More than this: as soon as an individual prepared to act demands
from his understanding some enlightenment for his liberty, he
perceives the law which enjoins upon him that which is in itself
true, and at the same time he recognizes that this law is not the
product of his own individual nature, and that, by the volitions
of his will, he can neither disown nor change it.
{343}
His will remains free to obey or to disobey his reason: but his
reason, in its turn, remains independent of his will, and
necessarily judges, according to the law which it has
recognized, the will which revolts against it.
Of Will-Representation.
Thus, speaking philosophically and rightfully, the individual
considered in himself, may not dispose of himself arbitrarily and
according to his solitary will. Laws which are obligatory are not
created or imposed upon him by his will. He receives them from a
higher source; they come to him from a sphere that is above the
region of his liberty,--from a sphere where liberty is
not,--where the question to be considered is not whether a thing
is willed or not willed, but whether it is true or false, just or
unjust, conformable or contrary to reason. When these laws
descend from this sublime sphere in order to enter into that of
the material world, they are constrained to pass through the
region where liberty, which exists on the confines of these two
worlds, has its sway; and here it is that the question arises
whether the free will of the individual will or will not conform
to the laws of this sovereign reason. But in whatever way this
question is decided, sovereignty does not forsake reason and
attach itself to will. In no possible case can will of itself
confer upon the acts which it produces the character of
legitimacy; they have, or they have not this characteristic,
according as they are or are not conformed to reason, justice,
and truth, from which alone legitimate power can spring.
To express the same thought in a different way,--man has not an
absolute power over himself in virtue of his will: as a moral and
reasonable being he is a subject,--subject to laws which he did
not himself make, but which have a rightful authority over him,
although, as a free agent, he has the power to refuse them, not
his consent but his obedience.
If we look at all philosophical systems in their basis,--if we
rise above the differences that may exist in their forms,--we
shall be convinced that no one is to be found which has not
admitted the principle which I have now expressed. How then does
it arise that philosophers, when they leave man regarded as an
isolated being, and look at him in his relations with other men,
have started from a principle which they would not have dared to
adopt as the foundation of their moral doctrines, but which has
served as a basis to their political theories?
{344}
How comes it that the will which, in the solitary individual, has
never been raised to the position of an absolute and solely
legitimate sovereign, does yet suddenly find itself invested with
this title and its corresponding rights, as soon as the
individual is brought into the presence of other individuals of
like nature with himself?
Province Of The Will.
The fact may be thus represented: In that commingling and
collision of individuals which we call society, the philosophers
of whom we speak have pertinaciously adhered to that which does
in fact first present itself, namely, the commingling and
collision of individual wills. A true instinct, unrecognized
perhaps by them, has suddenly reminded them that the will is not,
in itself, and by its essential constitution, the legitimate
sovereign of man. If it does not occupy this position in the
individual and so far as he is himself concerned, how should it
be elevated to such a rank when another individual is concerned?
How should that which, in its own acts, has nothing that is
legitimate in the view of reason, when it says _I
will_,--how should it have any right to impose its will as the
law for another person? No will, merely because it is a will, has
any authority over another will:--this is evident; any opposite
assumption is revolting; it is brute force, sheer despotism.
How shall these perplexities be removed? How shall individual
wills be made to co-operate without conflicting, to shelter
without overpowering one another? Philosophers have only seen one
method of accomplishing this, and that is to attribute to each
will an absolute sovereignty, an entire independence; they have
declared that every individual is the absolute master of his own
person; that is to say, they have elevated all individual wills
to the rank and position of sovereignty. Accordingly the will
which, in man considered apart and by himself, possesses no
sovereign and legitimate power, has been invested with it as soon
as man is viewed in his relations with other men. Thus the reply,
_my will does not consent_, which, within the individual
himself, cannot establish any right if it be contrary to the laws
of the reason, has become, outside of the individual, the
foundation of right, the ever-sufficient and finally
authoritative reason.
{345}
Argument From Parental Authority.
Is it necessary that we should prove that a principle, which, in
its application to man considered as an individual, is evidently
false and destructive of all morality and of all law, is equally
so in the relations between man and man; and that in the one case
as in the other, the legitimacy of law and of power, that is to
say, of obedience or of resistance, is derived from quite another
source than the will?--Two facts shall serve us in the stead of
arguments:--
Who has ever denied the legitimacy of parental authority? it has
its limits, and may be carried to excess like every other human
power; but has it ever been alleged that it is illegitimate so
often as the obedience of the child, whom it seeks to control, is
not voluntary? An instinctive sense of the truth has in this case
prevented any one from even maintaining such an absurdity.
Nevertheless the will of the child, considered in itself, does
not at all differ from that of the fully-grown man; it is of the
same nature, and it is equally precious to the individual. Here
then is an illustration of legitimate power in cases in which
obedience to it is not voluntary. And from whence does this power
borrow its legitimacy? evidently from the superiority of the
father's reason to that of the child, a superiority which
indicates the position which the father is called to occupy by a
law above him, and which establishes his right to assume that
position. The rightful sway here does not belong to the will of
the child, who wants the reason that is necessary for such sway,
nor even does it belong to the mere will of the father, for will
can never vindicate right from itself; it belongs to reason, and
to him who possesses it. The mission which is given by God to the
father to fulfil, is that he should teach his child what reason
teaches him, and should bend his will to the claims of reason,
until he shall be able to control his will for himself. The
legitimacy of parental power is derived from the fact of this
mission: this establishes its right and also determines its
limits, for the father has no right to impose upon the child any
laws except such as are just and reasonable. Hence the rules and
processes of a judicious education, that is to say, of the
legitimate exercise of parental power; but the principle of right
is in the mission and the reason of the parent, and not in either
of the wills which are here brought into relation one to the
other.
{346}
Reason The Source Of Power.
Let me remind you of another fact. When any man is well known to
be mad or idiotic, it is customary to deprive him of his full
liberty. On what grounds? has his will perished? if it is the
principle of legitimate power, is it not always there to exercise
it? The will is still there; but the true sovereign of the man,
the lord of the will itself, reasoning intelligence, has departed
from the individual. It must therefore be supplied to him from
another source,--a reason external to himself must govern him,
since his own has become incapable of controlling his will.
What is true concerning the child and the imbecile is true of man
in general: the right to power is always derived from reason,
never from will. No one has a right to impose a law because he
wills it; no one has a right to refuse submission to it because
his will is opposed to it;--the legitimacy of power rests in the
conformity of its laws to the eternal reason--not in the will of
the man who exercises, nor of him who submits to power.
If therefore philosophers desired to give a principle of
legitimacy to power, and to restrain it within the limits of
right, instead of raising all individual wills to the position of
sovereigns and of rivals in sovereignty, they should have brought
them all into the condition of subjects, and appointed over them
one sovereign. Instead of saying that every man is his own
absolute master, and that no other man has a right over him
against his will, they should proclaim that no man is the
absolute master either of himself or of any other person, and
that no action, no power exercised by man over man, is legitimate
if it wants the sanction of reason, justice, and truth, which are
the law of God. In one word, they should everywhere proscribe
absolute power, instead of affording it an asylum in each
individual will, and allow to every man the right, which he does
in fact possess, of refusing obedience to any law that is not a
divine law, instead of attributing to him the right, which he
does not actually possess, of obeying nothing but his own will.
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True Doctrine Of Representation.
I may now return to the particular question which I proposed in
starting, and determine what _representation_ truly is, thus
justifying in its principle as in its results, the system of
government to which this name is applied.
We are no longer concerned to represent individual wills, which
is really an impossibility, as Rousseau has fully demonstrated,
though he was mistaken in thinking that this is the aim of
representation. We are not, therefore, careful to evade this
impossibility, and so fall into inconsistency, as has been done
by other political theorists. These attempts, illegitimate in
principle and vain in their issues, are, besides, chargeable with
the immense mischief of deceiving men; for they profess to
establish themselves on a principle which they constantly
violate; and by a culpable falsehood, they promise to every
individual a respect for his individual will,--whether
enlightened or ignorant, reasonable or unreasonable, just or
unjust--such as, in fact, they cannot give to it, and which they
are of necessity obliged to deny.
The true doctrine of representation is more philosophical and
more sincere. Starting from the principle that truth, reason, and
justice,--in one word, the divine law,--alone possess rightful
power, its reasoning is somewhat as follows:--Every society,
according to its interior organization, its antecedents, and the
aggregate of influences which have or do still modify it, is
placed to a certain extent in a position to apprehend truth and
justice as the divine law, and is in a measure disposed to
conform itself to this law. Employing less general terms:--there
exists in every society a certain number of just ideas and wills
in harmony with those ideas, which respect the reciprocal rights
of men and social relations with their results. This sum of just
ideas and loyal wills is dispersed among the individuals who
compose society, and unequally diffused among them on account of
the infinitely varied causes which influence the moral and
intellectual development of men. The grand concern, therefore, of
society is--that, so far as either abiding infirmity or the
existing condition of human affairs will allow, this power of
reason, justice, and truth, which alone has an inherent
legitimacy, and alone has the right to demand obedience, may
become prevalent in the community. The problem evidently is to
collect from all sides the scattered and incomplete fragments of
this power that exist in society, to concentrate them, and from
them, to constitute a government.
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In other words, it is required to discover all the elements of
legitimate power that are disseminated throughout society, and to
organize them into an actual power; that is to say, to collect
into one focus, and to realize, public reason and public
morality, and to call them to the occupation of power.
What Is Representation?
What we call _representation_ is nothing else than a means
to arrive at this result:--it is not an arithmetical machine
employed to collect and count individual wills, but a natural
process by which public reason, which alone has a right to govern
society, may be extracted from the bosom of society itself. No
reason has in fact a right to say beforehand for itself that it
is the reason of the community. If it claims to be such, it must
prove that it is so, that is to say, it must accredit itself to
other individual reasons which are capable of judging it. If we
look at facts, we shall find that all institutions, all
conditions of the representative system, flow from and return to
this point. Election, publicity, and responsibility, are so many
tests applied to individual reasons, which in the search for, or
the exercise of, power, assume to be interpreters of the reason
of the community; so many means of bringing to light the elements
of legitimate power, and preventing usurpation.
In this system, it is true,--and the fact arises from the
necessity of liberty as actual in the world--that truth and
error, perverse and loyal wills, in one word, the good and evil
which co-exist and contend in society as in the individual, will
most probably express themselves; this is the condition of the
world; it is the necessary result of liberty. But against the
evil of this there are two guarantees: one is found in the
publicity of the struggle, which always gives the right the best
chance of success, for it has been recognized in all ages of the
world that good is in friendship with the light, while evil ever
shelters itself in darkness; this idea, which is common to all
the religions of the world, symbolizes and indicates the first of
all truths. The second guarantee consists in the determination of
a certain amount of capacity to be possessed by those who aspire
to exercise any branch of power. In the system of representing
wills, nothing could justify such a limitation, for the will
exists full and entire in all men, and confers on all an equal
right; but the limitation flows necessarily from the principle
which attributes power to reason, and not to will.
{349}
Summary.
So then,--to review the course we have taken,--the power of man
over himself is neither arbitrary nor absolute; as a reasonable
being, he is bound to obey reason. The same principle subsists in
the relations between man and man: in this case also, power is
only legitimate in so far as it is conformed to reason.
Liberty, as existing in the individual man, is the power to
conform his will to reason. On this account it is sacred;
accordingly the right to liberty, in the relations of man with
man, is derived from the right to obey nothing that is not
reason.
The guarantees due to liberty in the social state have,
therefore, for their aim, to procure indirectly the legitimacy of
actual power, that is to say, the conformity of its wills to that
reason which ought to govern all wills, those which command as
well as those which obey.
Therefore no actual power ought to be absolute, and liberty is
guaranteed only in so far as power is bound to prove its
legitimacy.
Power proves its legitimacy, that is to say, its conformity to
the eternal reason, by making itself recognized and accepted by
the free reason of the men over whom it is exercised. This is the
object of the representative system.
So far then from representation founding itself on a right,
inherent in all individual wills, to concur in the exercise of
power, it on the other hand rests on the principle that no will
has in itself any right to power, and that whoever exercises, or
claims to exercise power, is bound to prove that he exercises, or
will exercise it, not according to his own will, but according to
reason. If we examine the representative system in all its
forms,--for it admits of different forms according to the state
of society to which it is applied,--we shall see that such are
everywhere the necessary results and the true foundations of that
which we call representation.
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Lecture XI.
Formation of a Parliament.
Introduction of county deputies into the Parliament.
Relations of the county deputies to the great barons.
Parliament of Oxford (1258).
Its regulations, termed the Acts of Oxford.
Hesitancy of the county deputies between the great barons and
the crown.
Formation Of A Parliament.
Before we commenced the history of the charters, and after we had
for some time fixed our attention on the Anglo-Norman government,
we saw that this government was composed of but two great forces,
royalty and the council of barons, a unique and central assembly,
which alone shared with the king the exercise of power. Such was
the state in which we found the government of England under
William the Conqueror and his sons. But from their reigns to that
of Edward I., a great change was being gradually evolved; after a
laborious struggle, the charters were finally conceded, and the
rights which they proclaim were definitively recognised. If,
after this complete revolution, we cast a glance over the
institutions of the country, we find them all changed; we
perceive that the government has taken another form, that new
elements have been introduced into it, that the
Parliament,--composed in one of its divisions of the lords
spiritual and temporal, in the other of deputies from the
counties and boroughs,--has taken the place of the great council
of barons.
This transformation is a fact; how was it produced? what were its
causes and its mode of advance? what was the new Parliament after
its formation? how far and in what respects did the introduction
of these deputies change the character of the government? These
are the questions that we have now to consider; and in order to
answer them we must analyze and examine the principal individual
facts which here combine to produce the common result.
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Of County Deputies.
The first of these facts is the introduction of county deputies
into the national assembly. I shall first enquire how this event
was brought about; and I shall then propose similar enquiries
with respect to the introduction of town and borough
representatives into the same assembly.
Two causes effected the introduction of county deputies into
Parliament: first, the privileges belonging to knights as
immediate vassals of the king; secondly, their interference in
county affairs by means of the county-courts.
The immediate vassals of the king had in that capacity two
fundamental rights; that no extraordinary charge should be
imposed without their consent, and that they should have a place
in the king's court, either to give judgments, or to treat of
public affairs. They were from both these circumstances, members
of the general assembly by inheritance. They formed the political
nation. They took a part in the government, and in the
determination of public charges, as a personal right.
Although they were not elected and had received neither
appointment nor mandate, we may nevertheless say that they were
regarded as representing their own vassals, and that it was only
in virtue of the power which was attributed to them in this
fictitious representation that they exercised the right of
levying imposts on all the proprietors in the kingdom. [Footnote
26]
[Footnote 26: This is expressly indicated by two writs, one
in the reign of John, dated Feb. 17, 1208; the other issued
by Henry III., July 12, 1237.]
Perhaps they never could have fully organized themselves into a
united body, and soon this became impossible. On the one hand,
there rose up among the direct vassals of the king, some
influential barons, who united a considerable number of knights'
fiefs into one, and became by this cause much more powerful; and
on the other hand, the number of knights with smaller wealth
became much more considerable by the division of fiefs, which was
itself the result of a vast variety of causes. However, the right
of appearing at the general assembly and of giving their personal
sanction to all extraordinary imposts, always remained to them.
This is formally recognized in Magna Charta, Article 14.
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The Knights Of Shires.
This same article proves at the same time that there existed an
evident inequality between different immediate vassals, for it
ordains that the great barons should be summoned individually,
while the others should be convoked _en masse_ by means of
the sheriffs. This is not the first time that such a difference
in the mode of convocation is to be observed; it had already
existed for some time, and was exemplified whenever the king
required from his vassals the military service which they were
bound to give him.
Thus, at the commencement of the thirteenth century, the right to
take a seat in the national assembly belonged to all the
immediate vassals of the king, but it was scarcely ever exercised
on account of obstacles which increased every day. The assembly
was almost entirely composed of the great barons.
But the other vassals, on the other hand, did not renounce their
political existence; if their influence daily became more and
more limited to their own county, there at least they exercised
their rights and interfered actively in affairs. We often find
that knights were nominated, sometimes by the sheriff, sometimes
by the court itself, to give their decision on matters connected
with the county. Thus William the Conqueror charged two free men
in each county with the business of collecting and publishing the
ancient laws and local customs. The Great Charter provides that
twelve knights shall be elected in each county to enquire into
abuses. These examples are frequent in the reigns of Henry III.
and Edward I. Two writs of Henry III. [Footnote 27] prove that
subsidies were at that time assessed, not, as previously, by the
judges in their circuits, but by knights elected in the
county-court. The knights in this way brought their influence to
bear upon government by the offices they discharged in their
provinces, while at the same time they preserved, though without
exercising it, the right to appear at the general assemblies.
[Footnote 27: One in 1220, the other in 1225.]
But, on the other hand, in proportion as they thus became
separated from the great barons, the knights who were direct
vassals of the king united themselves more closely to another
class of men, with whose interests they after a time completely
identified themselves. They did not alone occupy a position in
the county courts; many freeholders, subordinate vassals of the
king, also constantly presented themselves at these courts, and
performed the same administrative or judicial functions.
{353}
Service in the county court was an obligation imposed in common,
by their tenure, on all freeholders, whether vassals of the king
or of any other feudal lord. Many of the latter were more wealthy
and influential than certain direct vassals of the king. The
practice of subenfiefment augmented their number continually.
Many who were simply _socagers_ gradually became
considerable freeholders by receiving free lands from different
nobles. Thus, a body of freeholders was formed in every county,
the county court being its centre. There they all discharged the
same functions, and exercised the same rights; whatever, in other
respects, might be their feudal relations with the crown. We thus
see that the dissolution, on the one hand, of the ancient general
assembly of immediate vassals of the king, and the localisation,
on the other hand, of a great number of them in the county
courts, while at the same time their interests were united with
those of the freeholders, prepared the elements of a new nation,
and consequently of a new political order.
Representation Of Knights.
Let us now see how this new nation manifested its existence, and
was brought to a central position in the State by means of
representation.
In 1214, while the discontented barons were preparing for
revolution, John convoked a general assembly at Oxford. The writs
of the king ordered the sheriffs to demand for that assembly the
assistance of a certain number of armed knights; while other
writs [Footnote 28] ordered that the followers of the barons
should present themselves at Oxford _without arms_, and
enjoined besides that the sheriffs should send to Oxford four
approved knights from each county "in order to consider, with us,
the affairs of our kingdom."
[Footnote 28: Dated November 15, 1214.]
This is the first indication of knights being represented in
Parliament, that is to say, of the admission of certain
individuals, who should appear and act in the name of all.
Was then this idea at that time present to their minds? Probably
not. How were these four knights nominated? Were they chosen by
the sheriff, or elected by the county court? Were these writs
actually executed? All this is uncertain. But that which admits
of no doubt is the aim and tendency of this innovation.
{354}
The contents of the writs themselves, and the circumstances in
the midst of which they were issued, clearly indicate its object.
It is evident that John wished to find in the knights of the
shires a means of defence against the barons, and that
consequently the former already formed a class so far distinct
from the latter that the attempt to separate them entirely from
it was not altogether unreasonable, while they were sufficiently
important to be appealed to as powerful auxiliaries.
John's attempt did not succeed. Facts prove that, in the struggle
between the royal power and the barons, the knights and other
freeholders espoused the cause of the latter, who, as they
protested in favour of public rights, were acting no less for the
interest of the knights than for their own.
The struggle continued during the whole of Henry the Third's
reign, and throughout this period we find the king constantly
endeavouring to alienate the knights from the party of the barons
and win them over to his own, while the barons exerted themselves
to keep the knights attached to themselves.
The following is an illustration of the attempts made by the
royal power. In 1225, one of the periods when the charters were
confirmed by Henry III., we find that writs were addressed to the
sheriffs of eight counties, requiring them to cause to be elected
in each of these counties four knights who should present
themselves at Lincoln, where the council of barons was then
assembled, in order to set forth the grievances of their counties
against the said sheriffs, who also should be present to explain
or defend themselves. In this case, there is no reference except
to merely local affairs of particular counties, and the four
knights are not called upon to take any part in the general
assembly, but they are elected and sent in order to treat of the
affairs of their counties before the central council. Here the
election is a positive fact in the case, and the nature of their
commission--to protest against local grievances,--is one of the
principles of representation.
In 1240, we find a general assembly of barons meeting in London,
in which, however, there is nothing remarkable except the name
given to it by the chroniclers. In speaking of it, Matthew Paris
employs for the first time, the word _Parliament_
(_parliamentum_).
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Lastly, in 1254, when Henry III. was in Gascony and wanted money,
he ordered the convocation of an extraordinary Parliament in
London in order to demand of it an extraordinary subsidy. At the
same time, he addressed a writ to the sheriffs, enjoining them to
cause two knights to be elected in the county courts, "in the
stead of each and all of them," (_vice omnium et singulorum
eorumdem_,) to deliberate on the aid to be granted to the
king. Here then is a real and positive instance of
representation; deputies are elected, they are introduced into
the assembly, and a deliberative voice is there given to them.
Certain historians have maintained that these writs were not
executed,--but on this point no satisfactory information is to be
had. However, as it is proved that a subsidy was granted to the
king, there is reason to believe that it was consented to by this
assembly, composed of barons and knights.
Up to this time, the great feudal aristocracy had retained the
knights and other freeholders on their side; we have now to see
how they became alienated from them, and how, after having been
for a long time the allies of the barons, they became afterwards
allies of the throne.
De Montfort's Rebellion.
During the year 1254, a general irritation broke out in the
kingdom on the occasion of the demand for an extraordinary
subsidy. Henry III., who was misled by the artifices and promises
of Pope Innocent IV., had engaged in an adventurous war against
Manfred, the usurper of the throne of Naples;--a war in which
Henry must have borne all the expense, and of which the Pope
would doubtless have reaped all the advantages, if it had
succeeded. But there was no occasion that his good faith should
be put to such a test, for the war was an entire failure. Henry,
however, had contracted an enormous debt; his prodigality and
extravagance had drained his resources; and he was obliged to
appeal to his subjects in order to relieve himself of this
burden. These demands for money, which indicate what progress the
principle that the king cannot levy imposts on his sole
responsibility had made, served as a pretext for the discontented
barons to take arms against their king. Simon de Montfort, Earl
of Leicester, placed himself at their head, and civil war was
declared.
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But the aristocracy were weary of these incessant combats, which
only yielded momentary advantages. The insurgents formed the
project of no longer contenting themselves with conquering the
king,--they determined so far to fetter him as that henceforth he
should be fully dependent upon them. The barons who had wrested
Magna Charta from King John had attempted, in order to provide
themselves with guarantees, to give beforehand a legal
organization to civil war, in case the charter should be
violated. The barons who dictated the law to Henry III., went
farther: they attempted to organize, not a resistance but a
power, and to secure for themselves guarantees, not in civil war
but in the very constitution of the government. Not being able to
restrain the authority of the king within just limits, they
undertook to deprive him of it altogether, and to assume it
themselves,--in one word, to substitute the government of an
aristocracy for that of the king.
The First Parliament.
They had already made a similar attempt in 1244, when their
design had been that four prominent members of their body should
be admitted to the council of the king, who would have followed
him constantly and governed under his name. At that time the
attempt had been unsuccessful, but at the time which we are now
considering, their endeavours were followed by better results. In
the Parliaments convoked successively in 1255, 1257, and 1258,
the most violent reproaches were heaped upon Henry III. as to his
prodigality, his faults, his infatuated enterprises, and above
all the violation of his oaths of fidelity to the Great Charter.
Henry was intimidated, and, as he desired to appease his barons
in order to obtain from them a subsidy, he promised to repair his
errors and reform his government. It was determined that this
reform should be regulated by a Parliament convoked at Oxford,
June 11, 1258.
This is the first assembly that has received the official
designation of Parliament. The barons attended it, armed and
followed by a large retinue; Henry, on the contrary, not having
taken any precautions against them, found himself their prisoner.
Nevertheless they performed what had been agreed upon, that is to
say, that they should commit the care of deciding on the
projected reforms to twenty-four barons, of whom twelve were
chosen by them, and twelve nominated by the king.
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An unlimited authority was conferred upon these twenty-four
mediators. They began by making a complete change in the form of
government. Their first concern was to form the king's council,
and four barons chosen by the confederation were commissioned to
organize it. They composed it of fifteen members, and of these
fifteen, nine at least were taken from the party of the barons,
so that the chief power was placed entirely in the hands of these
nine persons, and consequently, in the hands of the barons.
The Acts Of Oxford.
A large number of regulations, known under the name of the
_Acts of Oxford_, were determined upon by this assembly,
that is to say, by the council of twenty-four barons. No complete
collection of them is to be found in any authentic document. The
following maybe gathered from different historians; among other
things the barons demanded:--
1. That the charters should be confirmed;
2. That they themselves should annually nominate the judges,
the chancellor, the treasurer, and other officers of the king;
3. That they should have the keeping of the royal castles;
4. That three Parliaments should be convoked every year, in the
months of February, June, and October;
5. That a permanent commission of twelve barons should be
appointed, who should be present at these Parliaments, and
assist the royal council in the transaction of all business;
6. That four knights should be appointed in each county, to
receive all complaints against the sheriffs or other officers
of the king, and to give an account of these to the next
Parliament;
7. That, for the future, the sheriffs should be nominated by
the county courts;
8. Lastly, that the king, his son Edward, his brothers, the
archbishops, bishops, &c., should be obliged on oath to promise
fidelity to the Acts of Oxford.
It was further agreed that the committee of twenty-four barons
should reform all the abuses that had been committed in the
kingdom, and administer, in the name of the king, the laws that
were necessary for this purpose; and then allow the government
thus regulated to proceed in an orderly way.
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Tyranny Of The Barons.
But after the separation of the Parliament, the barons, under the
pretext that they had yet abuses to reform and laws to
administer, refused to resign their power; and not content with
retaining it illegally, they employed it to their own advantage.
Their acts and laws had no other object than their own personal
interest. Without knowing it, they were acting ruinously to
themselves, for they detached from their party that part of the
population which clearly apprehended their designs. Two laws
especially alienated the minds of the people from them; one of
these laws took away from the sheriffs the right to fine those
barons who should refuse to present themselves at the county
courts, or at the assizes held by the judges in circuit. The
second decided that the judges' circuits should only take place
every seven years.
These measures opened the eyes of the people, and they speedily
abandoned the authors of them. One fact may prove how far their
tyranny had been already exercised at the expense of the country.
A deputation was sent to Prince Edward in the name of the English
bachelors (_communitatis bachelariæ Angliæ_), praying him to
compel the barons to finish their work and fulfil their promises,
as the king had fulfilled his. The prince replied that he had
sworn fidelity to the Acts of Oxford, and that he was resolved to
keep his oath. Nevertheless, he demanded of the barons, that they
should resign their power, threatening if they refused, to compel
them to do so, and to take into his hands the interests of the
community.
What was this _communitatis bachelariæ Angliæ_? There is
reason to believe that by this name, the body of knights of
shires represented themselves. We see by this that the great
barons had alienated from themselves this class of men, and that
the king had begun to attach them to his party.
From these facts we see that besides the two great powers
anciently established,--the nobility arid royalty,--a third power
had been formed at this period, which alternately inclined to one
or other of these rival powers, and which already exercised a
strong influence, since it ensured victory to the party in whose
favour it might pronounce.
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Lecture XII.
Struggle between Henry III. and his Parliament.
Arbitration of Saint Louis.
The Earl of Leicester heads the great barons in their struggle
with the king.
He is defeated and killed at Evesham (1265).
Admission of deputies from towns and boroughs into Parliament
(1264).
Royalist reaction.
Leicester's memory remains popular.
Henry III. And His Parliament.
We have seen how, in the midst of the struggles between royalty
and the feudal aristocracy, an intermediate class arose,--a new
but already imposing power,--and how the two contending powers
each felt the necessity of securing an alliance with this third
power; we have now to follow, by the examination of authentic
documents, that is to say, of the writs and laws of the period,
the progress of this new class, which we shall find taking an
increasingly active part in the government of the country.
We have seen how the twenty-four barons, who were commissioned to
reform the constitution of the kingdom, abusing the power which
they thus held in trust, had refused, in spite of the king and
the country, to resign their dictatorship. This refusal soon
excited violent dissensions between them and the king, and civil
war was on the point of being again enkindled. In 1261, Henry
sent writs to several sheriffs, enjoining them to send to him, at
Windsor, the three knights of each shire who had been summoned to
St. Albans by the Earl of Leicester and his party. These writs
plainly show that the king and the barons endeavoured more than
ever to conciliate the body of knights, and that the king had
then succeeded in attaching them to his party.
{360}
Arbitration Of St. Louis.
Henry sought yet another assistance. On his entreaty, the Pope
released him from his oath of fidelity to the Acts of Oxford.
Delivered from his scruples, Henry now openly broke off his
agreements with the barons, and again possessed himself of the
reins of government. In 1262, he convoked a Parliament at
Westminster, that his authority might be sustained by its
sanction. He met with but little opposition: wishing, however, to
deprive the barons of every motive for revolt, he agreed to leave
the adjustment of their claims to the judgment of an arbitrator.
The great renown for wisdom and equity which Saint Louis
possessed pointed him out as the best judge in this important
dispute. Accordingly Henry and his barons agreed to abide by his
decision.
Saint Louis assembled his great council at Amiens, and after
careful deliberations, he recorded a judgment by which the Acts
of Oxford were to be annulled, and the king to be placed again in
possession of his castles, as well as of the right to nominate
his own counsellors. But as he was equally careful to preserve
the lawful prerogatives of the English people and those of the
crown, Saint Louis gave his formal approval to all the ancient
privileges, charters, and liberties of England, and proclaimed an
absolute and reciprocal amnesty for both parties.
Scarcely had this decision been made known than Leicester and his
party refused to submit to it, and took up arms for the purpose
of seizing by force that which had been refused to them by
justice. Civil war was recommenced with much animosity, but it
was not of long duration. Leicester surprised the royalist army
at Lewes, in the county of Sussex, on the 14th of May, 1264.
Henry and his son Edward, being vanquished and taken prisoners,
were constrained to receive the terms offered them by the
conqueror. The conditions which he imposed were severe, but he
did not assume to himself the right of settling the reforms that
were to be made in the government; he only retained as hostages
the brother and son of the king, and left to Parliament the care
of settling political questions. Ideas respecting the legal
authority of Parliaments, and the illegitimacy of force in
matters relating to government, must have made considerable
progress, when we find that the victorious Earl of Leicester did
not venture to regulate on his own sole responsibility the plan
of administration for the kingdom.
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Government Of Leicester.
He did not, however, scruple to exercise other rights which did
not belong to him any more than these. Under the king's name,
who, though to all appearance set at liberty, did in fact remain
his prisoner, Leicester governed the kingdom. In each county he
created extraordinary magistrates, called preservers of the
peace. Their duties were almost identical with those of the
sheriffs, but their power was of much wider range. Leicester
enjoined them to cause four knights to be elected in each county,
and to send them to the Parliament which was to meet at London in
June 1264.
This Parliament assembled and passed a decree which was designed
to organize the government. This decree constrained the king to
follow in everything the advice of a council composed of nine
members, nominated by three principal electors, the Earls of
Leicester and Gloucester, and the Bishop of Winchester.
Leicester still remained the real head of the State. In the midst
of his power he was troubled by alarming disturbances; powerful
preparations to oppose him were being made in France. These
attempts were unsuccessful, and Leicester, in order to anticipate
any fresh opposition, undisguisedly sought protection from that
part of the population, which was every day becoming more
numerous and powerful,--the middle classes. On the 14th of
December 1264, he summoned a Parliament, and gave to it all the
extent which it has since preserved, that is to say, he called to
it the peers, county deputies, and also borough deputies. This
innovation was intended to conciliate popular favour, and
Leicester did not relax in his endeavours to preserve it.
Relieved from royal authority, he wished also to free himself
from the aristocracy by whose assistance he had conquered the
king. He turned his tyranny against the great barons who were not
pliant to his caprices. He confiscated their lands, no longer
summoned them to Parliament, and annoyed them in a thousand ways
in their persons and their rights. But this was the infatuated
course of a conqueror intoxicated by success. As soon as the
royal power and the aristocracy combined against him, Leicester
was obliged to yield.
{362}
Battle Of Evesham.
On the 28th of May, 1266, Prince Edward escaped from his
confinement, raised an army against Leicester, and offered him
battle on the 4th of August at Evesham. Leicester was defeated
and killed in the combat. His conduct was, though factious, yet
great and bold, so that he may be called the founder of
representative government in England, for, while he struggled at
one time against the king, at another time against the barons who
were rivals to himself, he hastened the progress of the middle
classes, and definitely established for them a place in the
national assembly.
Henry, delivered from slavery by the death of Leicester,
recovered his power and used it with moderation. Several
Parliaments were convoked during the last years of his reign, but
it is not proved that any deputies from the counties and boroughs
sat in them. There is even reason for thinking that, in the midst
of the disorder that then prevailed in the kingdom, the trouble
of convoking them, which was always tedious and difficult, was
dispensed with. The Parliament held at Winchester on the 8th of
September 1265, in which the confiscation of the goods of the
rebels was granted to the king, was composed entirely of prelates
and barons. This also was the case with regard to that which was
convened by the king at Kenilworth, the 22nd of August, 1266, in
which, after the rigour of the confiscations had been somewhat
moderated, the Acts of Oxford were annulled, but the charters
were solemnly confirmed. Nor do we find that deputies were
present at the Parliament held at St. Edmundsbury in 1267; but
they were admitted to that held at Marlborough, convened in 1269,
to which were called "the wisest in the kingdom, as well those
belonging to a lower as to a higher rank." Two years afterwards
the deputies from counties and boroughs were summoned to a grand
ceremony, in order to transfer the remains of Edward the
Confessor to a tomb which the king had caused to be prepared in
Westminster Abbey. After the ceremony a Parliament assembled; but
it is uncertain whether or not the deputies had a place in it.
This fact, however, does not the less prove the great importance
which had at this time been acquired by the towns, and the habit
which had been gradually established of summoning their deputies
on all great occasions.
{363}
Progress Of County Representation.
Such are the facts of the reign of Henry III. which relate to the
introduction of county deputies into Parliament. No general act,
no constitutional statute, called them thither. Indeed the idea
of such political proceedings hardly existed at that period.
Neither the government nor the people felt the need of regulating
facts in a general manner, and fixing them on an absolute basis.
The human mind had not arrived at that state of progress in which
the conception of such a design is possible. Facts spontaneously
developed themselves, in isolation and confusion, and according
to the influence of existing circumstances. We may present a
summary exhibiting the nature of their progress, and the causes
by which the representation of counties was accomplished, in the
following manner:--
All the king's vassals originally formed one body, and were
entitled to a seat in the general assembly.
This class of proprietors became divided; some became great
barons, and continued to sit in the central assembly. Others
continued to possess only a local influence. By this cause they
were separated from the great barons, and became united by common
interests to other free proprietors. The county courts became the
point of convergence for this new class.
A struggle arose between the king and the great barons. Both of
these sought support from the class of freeholders which existed
in the counties. A part of these preserved, as direct vassals of
the king, the right to take their seat in the central assembly.
The great barons certainly alone exercised this right; but as
their tendency was to possess themselves of authority, and to
identify the great council of barons with the government, they
felt the necessity of conciliating the body of freeholders who
were vassals of the king or of themselves; and the idea of
causing them to be represented by means of election was so much
the more natural, inasmuch as elections, had often taken place in
the county courts, when there was any occasion to commit local
affairs into the hands of certain proprietors. Thus the
centralization of the higher aristocracy to resist the royal
authority did of necessity involve and cause the centralization
of the inferior proprietors, who could only exert their influence
in the way of election.
{364}
Lastly, the principle that consent was necessary before any
impost could be levied had prevailed; the charters established it
to the advantage of the barons with regard to the king, and of
the inferior vassals in reference to their lords. The more that
power became centralized either in the hands of the king or of
the assembly of barons, the more did the consent of the other
proprietors to imposts also necessarily centralize itself. That
which had previously been local became general, and the
centralization of the aristocracy of great barons involved the
centralization of the aristocracy of free proprietors.
Progress Of Borough Representation.
Another question now presents itself for examination: namely, the
admission of town and borough deputies to parliament.
In general the towns possessed, before the Norman Conquest,
considerable wealth and importance. We have seen them take a part
in political events, and interfere actively in state affairs. The
citizens of London concurred in the election of several Saxon
kings; and those of Canterbury attended, under Ethelred II., at
the county court. It is, however, nearly certain that the towns
never sent deputies to the Wittenagemot. Their rights were
limited within the circle of their own walls, and when they took
part in politics, it was in an accidental and irregular manner.
After the Norman Conquest, the towns fell into decay, and lost
not only their influence on general affairs, but even their local
and individual rights. Their riches vanished with the commerce
whence they had been derived, and the oppression of the
conquerors completed their ruin.
They progressively recovered, especially after the reign of Henry
II. At that time, considerable rights began to be granted or
rather to be restored to them. The lord of the domain in which
they were situated was at first the proprietor of them, and
received tribute from their inhabitants; but they were allowed to
ransom themselves from this burden by taking the town in
_fee-farm_, a kind of tenure analogous to that of
_socage_. Lastly, several towns obtained charters of
incorporation, which gave them a more or less free municipal
system.
{365}
The lord, whether king or baron, retained the right of imposing
taxes upon them at will. This right, called the right of
_tallage_, was at first exercised in an entirely arbitrary
way, in virtue of the very superior force possessed by the lords;
but in proportion as this superiority became enfeebled, and the
towns, on the other hand, became strong enough to defend their
independence, it was found necessary to make terms with them. In
order to obtain money from them, privileges had to be granted to
them; and if they did not exact concessions of this kind, they at
least contended with their lord on behalf of their interests.
Those towns especially which lay in the domain of the king, and
were the most important of all, vindicated their rights with the
greatest degree of vehemence. The royal judges had now no other
occupation in their circuits than to obtain tribute from the
towns and boroughs, leaving those which could resist pretty
nearly to dictate their own terms, and making arbitrary charges
on those which were not in a condition to defend themselves.
By these causes the admission of town deputies into the national
assembly was delayed, while, on the other hand, the admission of
county deputies was hastened. In the counties there was not that
unity which is the natural characteristic of towns; there was
hardly any possibility of treating separately and successively
with proprietors scattered over their domains; and in order to
obtain money from them, they had to be united. It was not so in
the towns; the king dealt with them separately, made his advances
upon them as they became isolated from one another, and always
obliged them either to yield or to make him presents, to all
appearance voluntarily.
However, some towns early acquired sufficient importance not only
to gain and defend their liberties, but also to take part in
general politics. Among these towns, London and the _Cinque
ports_ [Footnote 29] must especially be mentioned.
[Footnote 29: The five towns of Dover, Sandwich, Romney,
Hastings and Hythe, were called the _Cinque ports._ ]
Borough Representation.
The importance which these possessed is established by a great
number of facts, and we often find their inhabitants called
_nobiles_ and even _barones_. Indeed, their deputies
appeared sometimes at the general assembly even before the
Parliament of 1264, but in this there was no general principle,
no public right recognized.
{366}
There was this difference between the introduction into
Parliament of county deputies, and that of town deputies;--that
the former is associated with a right, the right of the immediate
vassals of the king, and therefore possessed from the first a
character of generality; while the second, the introduction of
town deputies, was dissevered from every idea of right, and
resulted simply from isolated facts bearing no relation to one
another. Representatives were granted to a particular town, but
this did not involve any similar concession to all towns. Hence
the arbitrariness that of necessity prevailed in the division of
representation among towns and boroughs. Hence the vices which
still actually exist in the electoral system of England.
[Footnote 30] There remain to the present day towns of
considerable importance which send no deputies to the House of
Commons; and these abuses arise from the fact that the elections
of towns and boroughs have never been regulated in a general
manner, and as public rights. In the first instance, all was
decided by a solitary fact, and the right to representation has
still continued as a right in the case of many boroughs and
towns, although the primitive fact which originally suggested the
right has disappeared,--the fact, namely, of the importance of
the town or borough. Through these causes the evil of rotten
boroughs was introduced into the representative system of
England.
[Footnote 30: It must not be forgotten that this course of
lectures was delivered in 1821, ten years before the passing
of the Reform Bill.]
However this may be, not till the parliament of 1264 do we see
deputies from towns and boroughs appear in any large numbers in
the Parliament. We do not know how many towns were then called
upon to exercise this right; but the writs were addressed to them
directly, and not by the intervention of the sheriffs. This
innovation was doubtless a result of the policy of the Earl of
Leicester. He had sought for protection against the king in the
knights of the shires, and through these auxiliaries the king and
the royal authority had fallen into his hands; but soon finding
the want of another support against the barons, who had become
his rivals, he found it in the towns, and called upon them to
take a share in the exercise of power. This it was that rendered
his memory so popular that the king was obliged especially to
forbid his being spoken of as a saint.
{367}
The Mad Parliament.
We must then refer the complete formation of the English
Parliament to the year 1264. Its existence was still very
precarious; it rested on no law, on no public right; it was the
creation of a time of faction. The first Parliament, in which
Leicester had principally ruled (the Parliament of Oxford) was
soon called the Mad Parliament,--_Parliamentum insanum_. It
might have been expected that the new form of Parliament, the
presence of county and borough deputies, would have shared the
same fate as that suffered by the other institutions which were
introduced by Leicester for the purpose of organizing a purely
aristocratic government, and which disappeared with him. But
these rudiments of parliamentary organization were of a different
character; they were veritably public institutions, which,
instead of attaching themselves merely to particular interests,
had for their basis the interests of the entire population. They
survived Leicester, and his attempts against the royal power,
which was itself obliged to adopt them. Under the reign of Edward
I. they became definitely established, and acquired a consistency
and stability which would no longer allow of their being attacked
with success.
{368}
Lecture XIII.
Progress of the Parliament under the reign of Edward I.
Frequent holding of Parliament.
Different composition of Parliaments.
Deputies from the counties and towns were not always present.
Discretionary power of the king in the convocation of barons.
The varying number of county and borough deputies.
Parliaments Under Edward I.
Great political institutions generally originate under feeble and
incapable princes; in the midst of the troubles which arise in
their reign, they are extorted from them. They are consolidated
under more able princes, who know how to recognize the necessity
for them, and to understand the advantages which they may derive
from them.
This was the case in England under Henry III. and Edward I.
Henry, who was entirely deficient in firmness, allowed, although
quite against his inclination, all the concessions which were
demanded of him to escape from his hands; his son, who was able
and energetic, instead of setting himself to destroy the
institutions which his father had permitted to come into being,
made himself master of them, and turned them to his own
advantage. Edward I. would not perhaps have allowed them to begin
in his reign; but finding them in vigorous existence, he accepted
them as they were, and instead of dreading or dispersing the new
Parliament, he availed himself of it as an instrument to serve
and strengthen a power which he exercised with intelligence. It
was by the aid of the Parliament that Edward I. conferred, so to
speak, a national character upon his wars and conquests--
enterprises which might perhaps have excited his people against
him, if he had reigned alone, and acted at once without public
support and public control.
Two kinds of Parliament appeared under Edward I. The one kind was
composed only of the higher barons, and seemed to form the grand
council of the king; in the other, deputies from counties and
boroughs had a seat.
{369}
Progress Of Liberal Opinions.
No legal and fixed distinction existed between these assemblies;
their attributes were almost identical, and they often exercised
the same powers. However, the meetings of those Parliaments which
were composed only of the higher barons were very frequent; they
took place regularly four times a year. The other Parliaments, on
the contrary, were only convened on extraordinary occasions, and
when it was necessary to obtain from the freeholders, either of
the counties or of the towns and boroughs, some general impost.
This, however, was not the only motive which could lead to the
convocation of this last mentioned assembly, which, in truth,
alone deserves the name of Parliament. Whenever business arose of
so great importance that the concurrence of a great number of
interests was judged necessary, the great Parliament was
assembled, and by this cause its range of deliberation became
more extended, and it assumed a greater consistency.
We may infer the moral force which the Parliament had already
acquired at this period, by the political maxims which were
generally admitted. Robert of Winchelsea, Archbishop of
Canterbury, speaking to the Pope on behalf of the king and his
barons, addressed to him this remarkable sentiment: "_It is the
custom of the kingdom of England that, in matters which regard
the state of that kingdom, the advice of all those interested in
the matter should be consulted_." [Footnote 31]
[Footnote 31: "Consuetude est regni Angliæ quod in negotiis
contingentibus statum ejusdem regni, requiritur consilium
omnium quos res tangit."]
There is no need that we should take this principle in its most
rigorous application; it is not the fact that all those who were
interested in these matters were consulted about them; but the
sentiment is still a witness of the progress which had already
been made by the ideas of a free and public government. This
progress is still further attested by the answer which Edward
himself made to the clergy, who demanded of him the repeal of a
statute designed to restrain the accumulation of property in
mortmain: "_This statute,_" said he, "_had been made by
the advice of his barons, and consequently it could not be
recalled without their advice._" [Footnote 32]
[Footnote 32: "Consilio magnatum suorum factum erat, et ideò
absque eorum consilio non erat revocandum."]
{370}
The Commons In Parliament.
In this case, also, the principle was very far from being
strictly observed, and Edward himself, in 1281, on his own
authority, altered several of the statutes which had been passed
in 1278 by the Parliament at Gloucester. Nothing therefore was
more irregular and uncertain than the rights of the public and
the forms of government at this period. Principles were professed
which were only very partially carried into practice, and which
were often entirely neglected. But in the midst of this apparent
disorder, great institutions were gradually being formed; the
innovations of the preceding reign became habits, and these
habits, sanctioned by time, became necessities. Thus rights were
established.
As to the distinction which I have just made between the
different assemblies which met at this period, as they are all
equally called Parliaments, and exercised at various times the
most different powers, it is difficult to fix precisely upon
those which ought to be regarded as positive Parliaments. The
boundaries which separate them are contracted and often
imperceptible; it would be great temerity to pretend accurately
to determine what was the real character of any particular
assembly, and consequently whether it ought or ought not to be
regarded as a Parliament. Whenever Tory writers have not found
the presence of county and borough deputies attested by positive
and official proof, such as the writs of convocation, they have
denied the fact of their presence. But this is an excessive and
partial exactness: very often the chronicles of the period supply
the lack of writs, and indicate that these deputies were present.
I will now point out the principal facts which have been omitted
by these writers, which prove that complete Parliaments were
frequently holden.
While Edward was still in Palestine, a Parliament was assembled
in Westminster to take an oath of fidelity to the new king from
the hands of the Archbishop of York, and, according to several
chroniclers, four knights from each shire and four deputies from
each city were summoned thither.
Edward, on his return to England, convened a new Parliament at
Westminster, on the 25th of April, 1275. The preamble to the
statutes which were on that occasion decreed has been preserved:
it declares that "these statutes have been made by king Edward by
the advice of his council, and with the consent of the
archbishops, bishops, abbots, priors, barons, and _of the
commonalty of the kingdom_."
{371}
In the following year another Parliament was assembled in the
same place; it was constituted in the same manner, and, to all
appearance, consisted of the same members.
The year 1283 offers many proofs of the admission of deputies
from the Commons into Parliament. In the month of January two
extraordinary assemblies were convened, one at Northampton, the
other at York, to raise the forces and obtain the subsidies that
were necessary for the conquest of Wales. The writs of
convocation have been preserved: in the one case, the sheriffs
were ordered to send to Northampton all the freeholders who
possessed a revenue of more than twenty pounds sterling; in the
other case, they are enjoined to cause to be elected in each
county, city, borough, and mercantile town (_villâ
mercatoriâ_), four knights and townsmen having full power "for
the whole of the commonalty." Lastly, in the month of June of
this same year, a Parliament met at Shrewsbury, in order to
decide on the fate of David, prince of Wales, who had been made
prisoner, after the conquest of that country. The writs of
convocation are of four kinds: the first are addressed
individually to one hundred and eleven earls or barons; the
second to the magistrates of twenty-one towns or boroughs; the
third enjoin the sheriffs to cause two knights to be elected for
each county; the fourth are addressed to seventeen members of the
king's privy council, among whom are the judges. Prom 1283 to
1290 we meet with several Parliaments, some of which are even
celebrated by the statutes which emanated from them; however,
there is no proof that any deputies from counties and boroughs
were present at them.
But, in 1290, Edward on his return from France convened a
Parliament at Westminster, in which it is certain that some
county deputies sat. A writ has been preserved dated June 14th,
1290, addressed to the sheriff of Northumberland, and ordering
him to cause _two_ or _three_ knights to be elected.
There is every reason to believe that this county was not the
only one thus privileged, and that there were others which also
sent deputies to this Parliament. This convocation was probably
intended to enable the county deputies to pronounce concerning
the statute _Quia emptores terrarum_, which authorised the
proprietors of fiefs to sell them at their discretion, and
rendered the subsequent possessors direct vassals of the lord of
the fief, while the sellers ceased to be such; this removed the
necessity of sub-enfeofment, and must have considerably increased
the number of the direct vassals of the king. Boroughs were not
represented in this Parliament: probably because the matters of
which it treated did not immediately concern them.
{372}
The First Complete Parliament.
From 1290 to 1294 we find several Parliaments in which there is
no indication that county and borough deputies had a seat. In
these Parliaments the affairs of Scotland were considered. The
magnates of the kingdom alone took part in them. In the
Parliament held at Westminster in the month of October, 1294,
only borough representatives are wanting; county deputies were
admitted to it; they granted to the king a tenth of the moveable
wealth of the kingdom.
In the following year we find that not only the boroughs and
counties, but even the inferior clergy, exercised the right to be
represented in the great assembly held at Westminster in the
month of September, 1295. We possess the writs of convocation
addressed to the bishops and archbishops, ordering them to cause
a certain number of deputies for the chapters and for the clergy
to be nominated; we have also those which summon forty-nine earls
or barons individually, and those which enjoin the sheriffs to
cause two knights to be elected for each county, and two deputies
for each borough in the county. These boroughs were about a
hundred and twenty in number. This assembly was more general in
its character than any other that had as yet met; all classes of
society had access to it, and we may truly say that the entire
nation was represented. Accordingly the regular and complete
establishment of the British Parliament is generally dated from
this year, 1295.
This great assembly did not act as one single body; it was
divided into two houses, the one containing lay representatives,
the other ecclesiastical; and not only was the place of their
meeting distinct, but their votes were distinct also. The barons
and knights granted to the king an eleventh of their moveable
wealth; the townsmen gave a seventh, and the clergy, after long
disputes with the king, ended by only granting him a tenth, which
was the offer originally made.
{373}
The Commons In Parliament.
The Parliament which was held in the month of August, 1296, was
constituted in the same way as its predecessor, and the votes in
it were similarly divided. The barons and knights granted only a
twelfth part of their moveable property, and the burgesses an
eighth.
In 1297, a Parliament met at Salisbury, but the writs by which it
was convened are lost; we do not therefore possess any direct
proof of the presence of deputies from counties and boroughs in
this assembly; however, there is extant a writ of the 30th of
July, in the same year, in which Edward states that the towns and
counties have granted him subsidies, and this indirect proof may
supply the want of the writs of convocation.
During this same year (1297), the quarrel broke out between the
aristocracy and the crown on the subject of the confirmation of
the charters, and the Earls of Norfolk and Hereford, by their
bold steadfastness, secured victory for the national cause, and
extorted from the king a complete and definite sanction to the
rights and institutions whose maintenance they vindicated. We
find at this time that two deputies were summoned from each
county to receive from the hands of the prince-regent those
charters which had been confirmed by the king.
From the time when these charters were definitely confirmed, the
convocation of deputies from the counties and boroughs was no
longer an irregular and arbitrary transaction,--it became a
necessity. Accordingly, their presence in the Parliaments is
constantly attested by authentic proofs.
Thus they were admitted to the Parliament convened at York, on
the 15th of April, 1298; the writs of convocation of which are
preserved. They were also present in the Parliament held at
Lincoln on the 29th of December, 1299. The writs of convocation
for this Parliament are similar to those which convened the
preceding one. They summon the same deputies who had been present
at the last Parliament, enjoining further that substitutes should
be chosen in the place of any who had died since that time. We
find, moreover, that writs were addressed to the chancellors of
the Universities of Oxford and Cambridge, requiring them to send
to the Parliament four or five deputies in the case of Oxford,
and two or three from Cambridge; and directing them to select
such deputies from among those who were most discreet and most
learned in the law--_de discretioribus et in jure scripto magis
expertis prædictæ Universitatis_.
{374}
Composition Of Parliament.
Lastly, the writs of convocation for the Parliament held at
Westminster on the 24th of July, 1302, are in all respects
similar to the preceding.
I will not further trace this series of facts, which henceforth
ceases to be remarkable because of its unvarying uniformity.
Suffice it to say that all the Parliaments which were held during
the last five years of the reign of Edward I. were of the same
nature and composed of the same members. Two of these, however,
deserve special attention. The first is that held at Westminster
in 1305. The particulars of its dissolution are preserved to us,
as well as those which relate to the mode in which the petitions
which already flowed into it were received. The second is that
which met at Carlisle in 1307. We have the lists of the bishops,
abbots, priors, earls, barons, &c., who sat in it. The number of
earls or barons amounts to eighty-six, that of the bishops and
abbots to sixty-eight. There were besides a great number of
deputies from the inferior clergy, forming the lower house of the
ecclesiastical convocation; and there were, moreover, two knights
from each county, two citizens from each city, and two burgesses
from each borough.
From all these facts it follows that, if at the commencement of
the fourteenth century the Parliament was not yet constituted in
an actual and definite form, yet it already rested on a fixed
basis: moreover, as to its composition, we may deduce from the
facts to which I have already referred, the following results:
I. The Parliament was composed, in the _first_ place, of
earls or lay barons convened individually by the king;
_secondly_, of archbishops, bishops, abbots, and priors,
also summoned individually; _thirdly_, of deputies from
the knights or freeholders of the counties; _fourthly_, of
deputies from cities, towns, and boroughs.
{375}
II. No law or statute, no ancient or recognized right,
determined who were the earls, barons, abbots, &c., whom the
king was bound to convoke individually. He acted somewhat
arbitrarily in this respect, often omitting to summon those
whom he had summoned on previous occasions. [Footnote 33] These
omissions were sometimes, though rarely, resisted by protests.
The importance of a noble and of his family was the only
guarantee of his convocation to the Parliament. Disorder, civil
wars, and confiscations, prevented this convocation from being
an incontestable and hereditary right, except in the case of a
permanent feudal tenure.
[Footnote 33: Thus Edward summoned to the Parliament of
Shrewsbury (1283) a hundred and eleven earls or barons; to
the Parliament of Westminster (1295), he only summoned
fifty-three; and out of the hundred and eleven who were
present in 1283, sixty were absent in 1295. The latter
Parliaments of his reign furnish several instances of similar
irregularities. Thus we find at this time ninety-eight lay
_proceres_ who were only once summoned to the
Parliament, and fifty who were summoned once, twice, or three
times. There was a distinction among the barons who were
summoned individually: some were summoned by virtue of their
feudal tenure, others, only in virtue of the writ of
convocation, whether they were or were not immediate vassals
of the king. These last exercised in the Parliament the same
rights as the former, only it does not appear that the sole
fact of a writ of convocation conferred upon them a
hereditary right. There are even several examples of
ecclesiastical peers who were convened by special writs, and
who obtained a discharge from the obligation to attend the
Parliament by proving that they held no fief of the king. The
practice of creating barons or peers was of later
introduction: _first_, by a statute of the Parliament
(under Edward III.); _secondly_, by letters patent from
the king (under Richard II.).]
III. The principal functionaries of the king, such as the
judges and members of the privy council, were almost always
convened to the Parliament by virtue of their official
position; indeed, they were uniformly either earls or barons.
IV. The convocation of county and borough deputies was not a
legal or public necessity; but it became an actual necessity by
the predominance of the principle that consent in all matters
of impost was a right.
V. The convocation of county deputies was more certain and
regular than that of borough deputies; more certain, because it
originated partly in a right which had not then been questioned,
and which it was necessary to respect, the right, namely, of
every immediate vassal to a seat in the general assembly; more
regular, because the county courts, which were all composed of
the same elements and possessed of the same interests,
constituted a uniform and identical whole throughout England,
so that some could not be admitted to the privilege of
representation without all the rest being admitted also.
{376}
As the towns and boroughs, on the other hand, only owed their
admission into Parliament to varying causes without unity or
connexion with each other, and were only called to assist in
matters which concerned themselves individually; so the
admission of a representative from one town did not at all
involve the admission of representatives from other towns, nor
even the continuance of this privilege in any one case.
VI. The number of town and borough deputies was not fixed. The
king determined this arbitrarily. Nevertheless the convocation
of two deputies for each county, and as many for each borough,
passed into a rule.
VII. However irregular the convocation of borough deputies
might be, there is no reason to think that the number of
boroughs which were then represented in the assembly was as
limited as has been assumed; there is no reason to think, as
has been maintained by Tory historians, that only towns in the
domains of the king originally sent deputies to Parliament. The
assumption is, on the contrary, contradicted by facts which
prove that, besides the towns belonging to the royal domain,
those which had received a charter of incorporation, either
from the king or from some great baron, were represented; as
were also those which, without having received any such
charter, were rich enough to pay the expenses of their
deputies. However, the importance of particular towns, and the
necessity that was felt for their concurrence in public
business, was in this respect the only rule; and most
frequently, the choice of the towns which should be represented
was left to the arbitrary decision of the sheriffs.
{377}
Lecture XIV.
Mode of election of the deputies of counties and boroughs.
Who were the electors?
No uniform principle to regulate elections in boroughs and
towns.
Voting in public.
Who Were The Electors?
We have seen how county and borough deputies were introduced into
Parliament; but we are still far from having obtained a complete
and correct idea of representative government as it existed in
England at the period at which we have now arrived. We have yet
to learn by whom and in what manner these members were
nominated--in a word, what was then the electoral system, if we
may be allowed to give this name to a collection of isolated
customs and institutions unconnected with each other, and almost
entirely destitute of any generality or unity of character.
The two political parties, whose opposition and debates are met
with at every step in the study of English institutions, have not
failed to resolve this question, each in a different manner. The
Tories, always disposed to limit the boundaries of public
liberty, maintain that the introduction of county members into
Parliament arose primarily from the impossibility of uniting in
the general assembly all the direct vassals of the king, the
whole body of whom alone had the right to be present; and that
landowners of this class were originally the sole electors of
these representatives. The Whigs assert, on the other hand, that
all the freeholders in the county, whether direct or indirect
vassals of the king, have always taken part in this election.
I shall seek the solution of this question exclusively in the
facts which have special reference to the introduction of county
members into Parliament; and as this change has been the result
not of secondary or unforeseen circumstances, but of the natural
course of time and of events, it is needful first to call to mind
the general facts which preceded it and gave it birth.
{378}
Origin Of County Freeholders.
We have seen that, a large number of the direct vassals of the
king having very early renounced, on account of their small
wealth or influence, their attendance at the general assembly,
their political existence became localized and restricted to
county affairs, and to attendance at the county court, at which
those affairs were transacted. The direct vassals of the king,
however, were not the only persons interested in the affairs of
the county. Many other freeholders, whether vassals of the great
barons or originally simple socagers, possessed considerable
wealth and influence; [Footnote 34] and as actual possession at
this period was almost the only arbiter of right, there is little
doubt, _à priori_, that all the freeholders of any
importance in the county were then admitted to the county-court,
to direct the administration of justice and to discuss their
common interests.
[Footnote 34: It may be seen in the Black Book of the
Exchequer that Godfrey Fitzwilliam, in Buckinghamshire, held
twenty-seven knights' fiefs of Earl Walter Gifford, whilst
Guilbon Bolbech, in the same county, held of the king only
one knight's fief.]
These probabilities are changed into absolute facts by the
testimony of history. It is proved that the knights, who were
direct vassals of the king, did not alone compose the
county-courts. From the time of William the Conqueror to the end
of the reign of Edward I. a multitude of deeds, laws, writs, and
historic records prove that all the freeholders, or nearly all,
sat in these courts; and that if there were some exceptions to
this rule, they did not in the least proceed from any general
distinction between the direct or indirect vassals of the king,
but merely from particular conditions imposed on individual
tenures. For it does not appear that all freemen-landholders were
equally compelled to make their appearance at the county-courts,
as this service was esteemed a burden rather than a privilege.
It may then be regarded as certain, that either by the fall of
many of the direct vassals of the king, or by the elevation of a
great number of the simple vassals of the nobles, there had
arisen in every county a body of freeholders, all of whom, in
reference to the affairs of the county, and independently of the
nature of their feudal relations, possessed the same importance
and equal rights.
{379}
Functions Of The County Courts.
The county-courts, thus composed, exercised the right of election
long before the regular and definitive introduction of their
representatives into Parliament. Here officers invested with the
powers necessary for the transaction of the county business were
sometimes elected; and sometimes knights were appointed to
execute the measures of the central government, or sent thither
as bearers of complaints or representations. Instances of such
elections are numerous. The charters have frequently prescribed
them, and they are continually spoken of in the chronicles.
It cannot be affirmed that this appointment of particular knights
for the transaction of specific local business was always
conducted in a regular manner and by a distinct election. It was
sometimes done by the sheriffs alone: but it is certain that most
generally it took place "by the community of the county, with the
consent and by the advice of the county, _per communitatem
comitatûs, de assensu et consilio comitatûs_."
We gather from all these facts, first, that before the
introduction of county-members into Parliament, the direct
vassals of the king, who, on account of their inferior
importance, had ceased to attend at the general assembly, did not
form a distinct body in the county-courts, or a particular class
of landowners invested with peculiar rights; but that, on the
contrary, they were merged in the general class of freeholders,
nearly all of whom also attended the county-court, and there
exercised the same rights; and, secondly, it is unquestionable
that this assembly of freeholders was in the habit, in certain
cases, of appointing some one of its members either for the
management of the county business, or for any other purpose.
Are we to believe that when the object in view was sending
representatives of the county to Parliament, there was
substituted, in place of the existing order of things, a new
order by which to elect them? or, in other words, that those
freeholders, who, though direct vassals of the king, were on the
same footing with the other freeholders as regarded all the
operations of the county-court, were distinguished from them by
being alone called upon to elect members of Parliament? Nothing
is less probable in itself, and in fact nothing is less true than
that there was such a disorganization of the county-courts at
election times.
{380}
Rights Of The Freeholders.
It is not at all probable, because, in the state of society at
this period, the _status quo_ almost always ruled. We are
greatly deceived if we expect to find the institutions of the
time under the sway of some general rule, and issuing in the
inevitable consequences of a principle. There was no such
dominant general rule or principle. When a new law appears, it is
the product of facts, not of a theory. When any new demand is
made upon society, it is society in its actual condition, and not
a systematically constituted society, which replies to the
demand.
The freeholders in general formed the county-court on every
occasion, and took part in all its acts. What reason could there
be for suddenly setting aside an established custom in order to
create a privilege in favour of certain landowners whose
position, although special in some respects, was but little
distinguished from that of others? Was there any occasion for an
act so unusual that it could not be put in force without
subverting the customs then in vogue? There was none: on the
contrary, this act appeared to the county landowners as only
another circumstance allied to the many existing facts of the
same description: they neither foresaw all the importance which
this fact could not fail to acquire, nor all the consequences to
which it would necessarily lead. This election of knights
summoned to Parliament, although somewhat more important than
other elections, resembled all those which were frequently made
in the county-court, and in which every freeholder took part. Why
should the right of voting on such occasions have belonged
exclusively to particular individuals among them? Were they not
all equally interested, as the majority of the taxes were levied
on their personal property; and the principal duty of the
deputies was the settlement of the taxes? How is it possible to
believe otherwise than that this, like every other election, was
made by all the members of the county-court without distinction?
Facts, I repeat, confirm these probabilities. The writs addressed
to the sheriffs by the king for the election of county members,
are conceived in the same terms as those issued for elections
relating exclusively to the administration of local affairs.
{381}
Forty-Shilling Freeholders.
They equally set forth that these knights shall be elected with
the assent of the community of the county, _de assensu
communitatis comitatûs_. Further, the returns of the sheriffs
declare that the election has been made "in full county, by the
whole of the community of the county," _in pleno comitatu, per
totam communitatem comitatûs._ Under the succeeding reigns,
terms yet more formal were employed; thus, about the middle of
the reign of Edward III. the writs contain, that the election
ought to be made "according to the will, and with the consent, of
the men of the county," _de arbitrio et consensu hominum
comitatûs_. Finally, facts which have come down to us from
later times prove that all freeholders possessed an equal right
of participation in these elections. In 1405, a statute of Henry
IV., intended to prevent certain abuses committed on these
occasions by sheriffs under the preceding reign, orders among
other things, that "all those who should be present at the
county-court, even when they had not been duly summoned thither
by the sheriff, should take part in the election." Lastly, under
Henry VI., the great number of the freeholders having given rise
to many disturbances during the elections, two statutes (the
first issued in 1429, and the second in 1432) limited the right
of suffrage to freeholders possessing an annual income of forty
shillings: this was the first and last limitation of the kind,
and it still continues to subsist in England.
Thus, moral probabilities and historical facts alike indicate,
that since the origin of the Parliament in its actual form, the
representatives of counties have been elected not only by the
direct vassals of the king, but by all the freeholders, whether
mediate or immediate vassals, who composed the county court. In
order definitively to establish this opinion, nothing remains but
to examine the proofs that are alleged in favour of the opposite
opinion. These may be reduced to two: first, it is said, that as
the direct vassals of the king alone possessed originally the
right of sitting in the general assembly, and as the election of
knights of the shire arose entirely from the impossibility of
assembling in Parliament all the direct vassals of the king, the
latter alone must have been the electors of the representatives
who were sent in their place. Secondly, the vassals of the barons
long demanded exemption from the obligation of contributing to
the payment of the fees allotted to the county members, which
proves that they could not have shared in the election; for had
they done so their claim would have been absurd.
{382}
Refutation Of Tory Theories.
Both these proofs have the fault of being indirect, and of
resting upon consequences deduced from general facts, and not
upon special and positive facts, such as those I have just
adduced in support of the contrary opinion. Moreover, the first
argument supposes the existence of a general and absolute
principle which was invariably followed; and that the county
members were summoned to Parliament only to represent the direct
vassals of the king. This supposition is neither probable nor
conformable to facts. We again repeat, that there was at this
period no general principle, no fixed and invariable rule.
General principles and their consequences exist only in a calm
and settled state of society; they are incompatible with a rude
population and long-continued disorder. How, then, could social
classifications and their corresponding rights have remained
fixed and distinct in the midst of such chaotic confusion?
Besides, the feudal system never exercised such complete sway in
England as to insure anything like a strict observance of its
principles. It is true that the right possessed by all the direct
vassals of the king to appear in the central assembly, was one of
the sources of county representation; but when this right, after
having fallen into desuetude, began to revive in the persons of
representatives, it was outweighed by an actual and more powerful
circumstance, the formation of the general class of freeholders,
meeting at the county-court, and there exercising the same
functions and equal rights. This fact is incontestible; so the
Tories are compelled to acknowledge that the deputies were
elected by all present at the county-court. But how do they
attempt to escape from the consequences of this confession? They
maintain that the direct vassals alone sat in the county-court:
an opinion too much opposed to the nature of things and to all
the facts which I have brought forward, to require refutation.
{383}
There is another difficulty which perplexes Tory writers, and
which they are equally unsuccessful in their attempts to
surmount. It is impossible for them to deny that under the reigns
subsequent to that of Edward I., and especially under Henry IV.,
all the freeholders in the county took part in the election: now,
to avoid this embarrassment, it is pretended, that taking
advantage of the disorder of the times they had usurped the right
of suffrage, and that the statute of Henry IV. (in 1405) for the
first time legalized this abuse, and lawfully summoned the
freeholders to the election of deputies. There is no probability
in this supposition, which is not supported by a single fact.
Between the reigns of Edward I. and Henry IV., nothing can be
discovered which indicates the usurpation of the electoral right
by a portion of the freeholders who had remained till then
strangers to the election. No trace of change in the composition
of the county-courts is to be found, nor any alteration in the
form or language of the writs of convocation. Everything
indicates, on the contrary, that the elections continued to be
conducted as in former times; and that the statute of Henry IV.
has evidently no other object than to prevent the illegal
practices of the sheriffs, which had become scandalous under the
reign of Richard II. Thus, in whatever light it is viewed, this
first argument is utterly valueless.
Payment Of Representatives.
The second is of no greater worth. It is founded upon the
supposition that those only who have a voice in the election of
representatives ought to contribute to the payment of their
salary. Now this supposition is explicitly contradicted by a writ
of Edward III., which proves that even the _villani_, the
simple husbandmen, who certainly took no part in the election,
were required to contribute to the payment of the fees. If it
appear, then, that the freeholders demanded release from this
impost, it cannot thence be concluded that they had no share in
the election.
In these demands there is nothing extraordinary. The office of
member of Parliament was originally more an onerous burden than
an advantage. The person elected was compelled to give security
to guarantee his attendance at the assembly. A curious instance
is mentioned of an elected knight who could not find the required
bail; the sheriffs, therefore, seized his oxen and farm-horses to
compel him to fulfil the duties of his office. In a short time,
to render the charge less onerous it was made lucrative: fees
being awarded to the representatives. These fees were levied on
the entire county, with the exception of certain particular
immunities.
{384}
A writ of Edward III. proves this distinctly. It is true that the
vassals of the barons, chiefly under the reign of Edward III.,
made frequent claims of exemption from payment of the salaries
due to the members: but these were not founded upon the
circumstance that they had had no share in the election; they
rested on a pretext derived from feudal law, maintaining that, as
their lords sat in Parliament in their own right, that is to say,
in their quality of peers, they were represented by them, and
ought not to pay the salaries of the county representatives. It
is evident that these claims proceeded from confusing ideas of
the ancient feudal representation (a fiction which rendered the
noble in some sort the proxy of his vassals) with ideas of the
new system of representation. These facts in no way prove that
the vassals of the barons took no part in the election of the
county members; all that they indicate is that the collection of
the members' salaries was very arbitrary, and was regulated by
different customs in each county; no conclusion can, however, be
drawn from them relative to electoral rights.
Now that I have reduced to their just value these two arguments,
the sole support of the opinion which I oppose, it appears very
nearly certain that all the freeholders who attended the
county-court united in the election of the representatives,
whatever might be the nature of their feudal relation to the
crown.
Election Of Borough Representatives.
Having completed our researches into the election of county
members, let us next examine how the election of the
representatives of boroughs was conducted.
Although in the county-courts no fixed rule nor systematic
distinction regulated the distribution of electoral rights, there
was at least something general and identical in them throughout
England. The counties were territorial districts of the same
nature; the county-courts, wherever situated, were the same
institution, and the freeholders formed one class of men. Out of
circumstances nearly everywhere alike, there naturally arose an
electoral system in all places the same.
{385}
It was not, nor could it be thus with respect to the boroughs.
They had acquired their liberties successively to a greater or
less extent, and under a thousand different forms. The political
state of one town gives no clue to that of other towns, as they
were not at all correspondent to one another. Sometimes the
municipal rights belonged to the more or less numerous
corporation which held the town in _fee-farm_; sometimes to
the general body of freeholders who held their houses in
_burgage-tenure_, a kind of tenure analogous to the tenure
in _socage_; sometimes to the entire body of householders;
occasionally, but more rarely, to the whole of the inhabitants.
When any particular borough was summoned to send deputies to
Parliament, it occurred to no one to consider this new right as
distinct from their municipal rights, and to regulate the
electoral system on a separate basis. This summons had reference
to the borough in its existing condition, and did not introduce
the slightest innovation into the exercise of the civic
authority. The citizens who, in virtue of their charter, enjoyed
the right of managing the affairs of the borough, also exercised
that of naming its representatives. There was then nothing
general or uniform in the foundation of this new right, and it
would be impossible to reduce the elections in towns and boroughs
to any common principle. We can only examine a number of
particular facts, and derive from them the following results:--
I. The political right of electing members of Parliament was
not distinct from the municipal rights of the borough, and was
exercised in the same manner and by the same citizens.
II. From this it follows that the election was commonly made by
the council, who directed the local interests of the borough:
the number of electors, therefore, was very limited at the
outset.
III. Where a corporation held a town in _fee-farm_, it
also possessed the right of appointing the members of
Parliament. These corporations were generally composed of a few
individuals.
IV. As the freeholders of many boroughs sat in the
county-courts, not a few of the elections of borough members
took place originally in these very county-courts, and by the
borough freeholders who repaired thither, and who exercised
this power either on their own account, or as authorized by
their fellow-citizens.
{386}
V. The writs or orders for the election of deputies were at
first addressed directly to the borough magistrates themselves.
This, at least, was the case in 1264, the period of the first
convocation with which we are acquainted of the representatives
of boroughs under Henry III. In 1283, the same procedure was
followed by Edward I. for the convocation of the Shrewsbury
Parliament, to which the representatives of twenty-one boroughs
were summoned. In 1295, the writs were addressed to the
sheriffs of the counties in which the boroughs were situated,
and from that period, this has been the habitual and legal form
of convening the boroughs. In 1352 and 1353, however, Edward
III. addressed his writs directly to the municipal magistrates,
on the first occasion for ten boroughs, and on the second for
thirty-eight. These are the last examples of similar
convocations. The Cinque-ports remained the only boroughs which
received the writs directly.
Corruption Of Borough Representation.
These facts explain how borough-representation has been so easily
corrupted in England, and remains so disgraceful to this day.
[Footnote 35] In every town political rights have remained
restricted to the municipal bodies, who, originally, were usually
comprised in a very narrow circle. The general tendency has been
ever since, and especially at the period of the revolution of
1640, to extend electoral rights in boroughs, and thus to render
the election more popular; but, on the whole, the choice is
invariably made by the municipal powers, organized according to
their ancient charters of incorporation. In the counties,
electoral rights have adapted themselves to all the vicissitudes
of property, and have become proportionably extended: in the
boroughs, they have remained unaltered. Every unchangeable
institution is vicious, because ultimately it will be sure to
establish privileges in opposition to the actual state of
society.
[Footnote 35: Before the reform of Parliament in 1832.]
I should wish to be able to add to these researches into the
electoral system of England in the thirteenth century some
particular and circumstantial details concerning the forms of
elections; but nothing can be discovered on this subject, either
in history or in the laws. The laws did not mention the matter,
because at this stage of civilization it is not thought that such
things require to be either regulated or expressed.
{387}
It is probable that the electors, who were generally very few in
number, agreed among themselves, in presence of the sheriff, on
the representatives they wished to appoint; and that the sheriff,
by a writ, informed the Court of Chancery of the nomination. The
only important circumstance in this mode of election was the open
voting, which has been perpetuated to this day. Nobody then
attached sufficient importance to his choice to think concealment
necessary.
Forms Of Borough Elections.
Until the reign of Henry IV., we do not find any law respecting
the forms of election. In proportion as the elections became
important, the sheriffs, profiting by the absence of all forms,
took the matter into their own hands, and managed it agreeably to
their own will. The law to which I refer was passed in order to
prevent these abuses. Here, as everywhere, the organization of
sureties took place long after the recognition and exercise of
rights.
{388}
Lecture XV.
Philosophical examination of the electoral system in England in
the fourteenth century.
The system was the natural result of facts.
Who were the electors?
Four principles which determine the solution of this question.
Character Of The English Electoral System.
The facts adduced in my previous lecture, prove that the
electoral system of England in the fourteenth century was
determined by no philosophical combination, by no general
intention. This system arose naturally and spontaneously, out of
facts. Its study is therefore more curious and interesting:
modern times are full of science and artifice; institutions do
not now become developed with simplicity and freedom; under the
pretext of giving them regularity, things are distorted, to suit
some particular interest, or to accommodate a theory. Nothing of
this nature occurred in the formation of the British Parliament;
science did not then exist, and cunning was unnecessary. The
House of Commons was not of sufficient importance for the
executive to be much disturbed about its origin; the office of
member for a county or borough was not enough sought after to
induce different interests and parties to direct all their
instruments of warfare and stratagems of policy to this end.
Representatives of the country were required, who were to be
chosen by the method of election--but this election had no
occasion to adapt itself to a theory, or to be false in any way.
In such a state of society, the electoral system might be vicious
and incomplete in a thousand ways; its forms might be irregular
and destitute of all needful guarantees, but its general
principles would be natural and sound. These principles are what
I propose to seek after, and to bring to light, in the present
Lectures. They were neither known or thought of in the fourteenth
century, but they exist in facts; for there is a reason for every
fact, and all are subject to certain laws. Before entering upon
the ancient English electoral system, singly and in itself, we
should first consider it in its relations to society in general,
to the powers by which it was ruled, and to the liberties which
it enjoyed.
{389}
Modern Political Science.
In the present day, political science has rarely considered
questions in this point of view, though it is the first and most
important of all; it has operated on society and its government
by a process of dissection; it has taken all powers and rights
one by one, and has endeavoured to define each separately, and
with regard to itself alone; seeking first completely to disjoin
them from one another, and then to make them to proceed together,
confining each strictly to its own sphere. In this manner have we
seen enumerated the legislative power, the executive power, the
electoral power, the judicial power, and the administrative
power, and every effort of science has been exerted to make these
different powers co-exist, while maintaining among them a
rigorous distinction, and enjoining upon them never to fall into
confusion, nor even to assimilate their offices and action. The
same system has been applied to the rights and liberties of
citizens. It is easy here to discern the triumph of the fondness
for analysis which characterized the last century. But analysis
is a method of study, not of creation. The spirit of analysis is
scientific, but never political. In politics, whether dealing
with rights or powers, the object is to create real vital forces,
capable either of enforcing obedience or resisting oppression.
This can never be attained by analysis; for, in reality, actual
life is a very complicated matter, requiring the union and
amalgamation of a multitude of different elements, each modified
and sustained by the others. Analysis elucidates and separates
into parts, but never constructs. This truth is demonstrated by
the political history of our own time. All these powers and
rights, so carefully enumerated and distinguished by science, so
narrowly enclosed within specified limits, were found in the time
of action to be destitute of consistency, energy, and reality. It
was decreed that the legislative power should be absolutely
separated from the executive power, the judicial power from the
administrative, the municipal from the electoral power: liberties
and rights have been isolated and dissected just in the same way
as powers; and ere long all these rights and powers, incapable of
existence and action in their isolated condition, have become
centralized or lost in the hand of an individual or collective
despotism, which alone was powerful and real, because it alone
was other than a theoretic design or a scientific conception.
{390}
It may be fearlessly affirmed that rights, like public powers,
will never regain reality and energy until they escape from this
pretended science, which, under the pretext of classifying,
enervates and nullifies them; until, united by positive ties,
they mutually rest on one another, and coalesce to bring about
the same results. Doubtless, the great analytical labour
performed in our own time will not prove fruitless; many well
grounded distinctions and necessary limitations will be
maintained; all powers will not again fall into general
confusion, nor will all rights become concentrated. There is some
truth and usefulness in the results of the social dissection
which has been performed; but if it were to be perpetuated, if
rights and powers were to remain in the state of isolation and
dissolution in which science has placed them at the present day,
we should never possess either government or freedom.
Object Of The British Parliament.
It is very evident that nothing of this kind occurred at the
period of the formation of the British Parliament. Politics did
not wear so scientific a character, nor lay claim to such
consideration, as at present. It was necessary to summon together
the principal men in the kingdom--merchants, landowners, and
others--that they might assist in particular public business. But
this was never imagined to be the creation of a new right, or of
a new power. Established rights and existing powers were called
upon to exercise this new function, and to appear under this new
form. The freeholders, that is to say, every free and veritable
landowner, used to assemble in the county-courts, to administer
justice and to treat together of common interests; and these
county-courts were charged with the nomination of
representatives. In towns of any importance, the citizens, under
forms more or less liberal, regulated their own affairs, chose
their own magistrates, and exercised in common certain rights and
powers; and these municipal corporations were required to send
members to Parliament.
{391}
Combination Of Public Rights.
Thus, the assemblies which we now designate electoral colleges
were never at that period, as they now are, special and isolated
assemblies, invested with a temporary duty, and in all other
respects unconnected with the administration of the country.
County courts and municipal corporations, which were already
firmly planted and established, and possessed inherent strength,
were constituted into electoral colleges. Thus the electoral
system from its origin was united with every right and
institution, and with almost every local and real power. It was
the extension and development of existing liberties, a powerful
force added to other forces previously in action and exercising
government over other interests. It was not that in one place
there were merely electors, in another administrators, and
elsewhere judges; but there was a body of citizens who
participated in the administration of local affairs, and in
rendering justice; and who elected deputies for the transaction
of general business. It is easily understood that,--being thus
deeply rooted in the community at large, and closely united to
all other powers--the electoral power (to employ the language of
the present day) was defended from every vicissitude through
which we have seen it pass, when attempts have been made to
establish it, by itself, in some particular aspect or
combination.
This then is the first characteristic of the electoral system
which occupies our attention. We need not hesitate to elevate
this characteristic into a principle, and to assert that where it
is not met with, election, that is to say, representative
government itself, will be either powerless or harassed by
continual storms.
It is an error in modern politics immoderately to fear power,
whatever may be its form or situation. It is divided and
subdivided infinitesimally, until it no longer exists, so to
speak, except as powder. This is not the way to establish
liberty. Liberty cannot exist except by the possession of rights,
and rights are worthless if they are not themselves powers--vital
and strongly constituted powers. Placing right on one side and
power on the other is not constituting a free government, but
establishing a permanent tyranny, sometimes under the name of
despotism, and sometimes under that of revolution; the problem is
to place power everywhere in the hands of right, which can only
be done by organizing or accepting at once, in the very centre of
the government, and in every stage of its action, authority and
resistance.
{392}
Now resistance is only real and effectual when capable on all
occasions of opposition to authority, when authority is compelled
to treat with it at all times, to conquer or to yield. What then
is the electoral right or power, if so it is called, when
isolated from every other power? Its exercise is transient and
infrequent; it is the crisis of a day imposed upon actual
authority, which may, it is true, be defeated, but which, if it
escapes, is afterwards perfectly free, and continues its course
without the least obstruction, or sleeps in blind security. If,
on the other hand, the electoral right is supported by other
rights of more direct and frequent occurrence, if the electoral
system is closely interwoven with the whole government, if the
same citizens who have nominated the members, interfere in the
affairs of the country under other forms but by the same title,
if the central authority needs on other occasions their assent
and support, if it finds them elsewhere also grouped and united
for the exercise of other functions of power, then all rights
serve as guarantees to one another; the electoral system is no
longer suspended in air, and it becomes difficult to violate it
in principle, or to elude it in its consequences.
Independence Of Public Rights.
It is impossible to doubt that to this close union of electoral
rights, with a multitude of other public and local rights, the
electoral system is indebted in England for its strength and
permanence. One fact among a thousand others will prove this.
When the central power, finding itself threatened by the
elections, has endeavoured to rid itself of their influence, it
has been compelled to withdraw from the towns and corporations,
their charters and liberties. Without this nothing could have
been done. But by this also, everything was attacked, and liberty
and right being everywhere emperilled, the nation put forth its
efforts not only to re-establish a House of Commons, but also to
regain a multitude of other rights which had no reference to the
election of representatives. It is the secret of good
constitutional legislation, thus to unite all rights with each
other in such a manner that it is impossible to weaken any one of
them without endangering all.
This characteristic of the British electoral system has also
produced, in regard to the elections themselves, other
consequences no less felicitous, which I shall presently
indicate. I shall now consider this system in itself, in its
interior organization.
{393}
Two Classes Of Electors.
All the elements and laws of every electoral system resolve
themselves into these two questions:
I. In whom are the electoral rights vested? that is to say, who
are the electors?
II. How are these rights exercised? that is to say, what are
the modes of procedure and the forms of election?
I wish to bring together in succession under these two questions,
all the facts which relate thereto in the electoral system in
England, in the fourteenth century, and to examine what general
principles are contained in these facts.
And first, who were the electors? There were two classes of
electors, in the same manner as there were two kinds of
elections--those for counties and those for boroughs. This
classification was not the result of a systematic combination nor
of any previous intention: it was the expression of a fact.
Originally the knights, and a little later, the freeholders,
alone formed the political nation, and alone possessed political
rights. All enjoyed the same right of assisting at the court or
council of their lord; politically, therefore, they were equal.
When the towns had acquired sufficient importance to assist the
central power when needful, and strength enough to resist it if
occasion required, then inhabitants became citizens. A new nation
truly then entered the state. But in entering there, it remained
distinct from that by which it was preceded. The representatives
of boroughs never deliberated with those of counties. Each of
these two classes treated with the government of those affairs
which interested itself, and consented on its own account to the
taxes which weighed on itself alone. Originally there was no more
coalition between the representatives than between the electors:
the distinction was complete. It cannot be said that there was
inequality, for there was no room for comparison. They were
simply two different societies represented by their deputies to
the same government; and the difference of the representation
arose from no other principle than the real and primitive
difference between the two societies.
{394}
Right Derived From Capacity.
Now if each of these societies is considered singly and in
itself, an equality of political rights will be found among the
citizens called to enjoy them. As, in the counties, all the
freeholders had the same right to participate in the election,
so, in the towns, every member of the corporation to which a
charter had been granted shared in the election of their
representatives.
Thus the variety of classes existing in society was reproduced in
the representation. But, on the one hand, the different classes
were completely independent of one another: the knights of the
shire did not tax the citizens, nor the citizens the knights of
the shire; much less did either take part in the other's
elections. On the other hand, the principle of the equality of
right prevailed in each class, among the citizens summoned to
share in the election.
There is nothing, then, that can be deduced from this in favour
of an inequality among men called by virtue of the same principle
to take part in a like action. Such an inequality never existed
in the electoral administration of England in the fourteenth
century. The difference that existed was derived from society
itself, and was continued even to the very centre of
representation, which did not present a more uniform whole than
society itself. The true, the sole general principle which is
manifested in the distribution of electoral rights as it then
existed in England, is this, that right is derived from, and
belongs to, capacity. This requires some explanation.
What Is Electoral Capacity?
It is beyond doubt that, at this period, setting aside the chief
barons whose personal importance was such that it was necessary
to treat with each of them individually, the freeholders, the
clergy, and the burgesses of certain towns, could alone act as
citizens. Those not comprised in one or other of these classes
were chiefly poor husbandmen, labouring on subordinate and
precarious property. They included all men invested with real
independence, free to dispose of their person and wealth, and in
a position to rise to some ideas of social interest. This it is
which constitutes political capacity. This capacity varies
according to time and place; the same degree of fortune and
enlightenment is not everywhere and always sufficient to confer
it, but its elements are constantly the same.
{395}
It exists wherever we meet with the conditions, whether material
or moral, of that degree of independence and intellectual
development which enables a man freely and reasonably to
accomplish the political act he is required to perform.
Assuredly, considering the masses, as they should be considered
in such a matter, these conditions are not met with in England in
the fourteenth century, elsewhere than among the freeholders, the
clergy, and the burgesses of the chief towns. Beyond these
classes nothing is found but almost servile dependence and brutal
ignorance. In summoning these classes, then, to join in the
election, the electoral system summoned every capable citizen. It
was derived, therefore, from the principle that capacity confers
right; and among citizens whose capacity was recognized, no
inequality was established.
Thus neither the sovereignty of the majority nor universal
suffrage, were originally the basis of the British electoral
system. Where capacity ceased, limitation of right was
established. Within this limit the right was equal in all.
It is easy to prove that this is the sole principle on which it
is possible to found a national and true electoral system. Let us
for the moment forget facts, and consider the question from a
purely philosophical point of view.
What motive has assigned in all times and countries a fixed age
at which a man is declared to have attained his majority, that is
to say, is considered free to manage his own affairs according to
his own will? This appointment is nothing more than the
declaration of the general fact, that, at a certain age, man is
capable of acting, freely and reasonably, in the sphere of his
individual interests. Is this declaration arbitrary? No, for if
the period of his majority were fixed at ten years or at forty,
the law would evidently be absurd; it would assume the presence
of capacity where it did not exist, or else would not recognize
it where it did exist--that is to say, it would confer or
withhold the right wrongfully.
It is capacity, then, that confers right; and capacity is a fact
independent of law, which law cannot create or destroy at will,
but which it ought to endeavour to recognize with precision, that
it may at the same time recognize the right which flows from it.
And why does capacity confer right? because in reason, and reason
alone, is right inherent. Capacity is nothing else than the
faculty of acting in accordance with reason.
{396}
What is true of the individual considered in relation to his
personal interests, is true also of the citizen in relation to
social interests. Here, also, capacity confers right. Here, also,
right cannot be refused to capacity without injustice. Here,
also, capacity is a fact which the law, if it be just, asserts
and distinguishes, to attach thereto the right.
This is the only principle in virtue of which the limitation of
electoral rights can be reasonably assigned, and it was this
which, without general intention or philosophic views, the nature
of things and good sense caused to prevail in England at the end
of the thirteenth century.
This principle equally repels the admission of the incapable,
which would give dominion to the majority, that is, to material
force; and would lead to the exclusion of some portion of the
capable citizens, which would be an injustice; and to inequality
between capacities, of which the least is declared sufficient,
which would institute privilege.
Exterior Signs Of Electoral Capacity.
This principle once laid down, whether by the enlightened
intention of the legislator, or by the simple force of things, it
becomes necessary to put it in practice, that is, to seek and
recognize in society those capacities which confer rights. By
what exterior signs, susceptible of determination by law, can
this capacity be recognized? this is the second enquiry which
presents itself when the question is to fix the limit of
electoral rights.
Evidently, we can only proceed here upon assumptions, and those
of a general character. The capacity of acting freely and
reasonably for the promotion of social interests, is revealed by
no more distinct signs than any other internal disposition.
Besides, the law operates on the masses; its decisions will
necessarily be inexact, and yet must be rigorous. In their
application to individuals they will often assume capacity where
it is not, and will not in all instances discern it where it is.
This is the imperfection of human science; the endeavour of the
wise is to restrict this imperfection within its narrowest
limits.
{397}
Legal Signs Of Electoral Capacity.
The electoral system of England was less faulty, in this respect,
at its commencement, than it has since become. It is very
probable that, in the fourteenth century, all political capacity
was almost entirely contained in the classes of the freeholders,
the clergy, and the burgesses of the important towns. This kind
of qualification corresponded, then, very nearly with the true
external signs of capacity. It may even be said that if the
representative system had then possessed all its energy, if the
assembly of representatives had had power and importance to
become the principal spring of government, and the object of
individual ambition, it would very soon have been discovered that
the legal conditions of capacity included a multitude of
individuals in whom capacity did not truly exist. It was because
many of those who possessed the right of sharing in elections
took no part in them that the inconvenience of so much latitude
was not at first experienced. The principle remained intact
because it did not bear all its fruits. When the House of Commons
occupied a higher place in the State, it became necessary to
restrict the electoral right by requiring the freeholders
themselves to possess an annual income of forty shillings. The
action of Parliament in the government, and by consequence the
importance of electoral rights, far surpassed the intelligence
and independence of many of the men to whom ancient custom had
accorded them. Thence arose the limitation established by the
Parliament under Henry IV. Since that period, the progress of
society and the changes which have occurred in the condition of
property and industry, have altered in this respect the
exactness, and therefore the excellence, of the electoral system.
The legal signs of electoral capacity remain the same as to
right, but, in fact, they have changed. Formerly, the freeholders
were the only landowners who were truly free and capable of
exercising political rights; the copyholders were then little
better than _villani:_ this has long ceased to be the case;
although the legal distinction still subsists, it is merely
nominal: copyholds are properties as free, as secured, and as
fully hereditary as freeholds. The title of freeholder is now no
longer, as formerly, the only one which designates a landowner
capable of exercising political rights. The law, in its
description of the external characters of electoral capacity, no
longer corresponds really and truly with social facts. This
inconvenience is not very great in practice, because there are
few copyholders of any importance who do not possess a freehold
of forty shillings rent.
{398}
It is however real, for it maintains a distinction between
properties as to electoral rights, which is not founded upon any
real difference between the nature of the properties, and the
capacity of their possessors. The system has become much more
vicious as regards electoral rights in boroughs. Here the
external signs by which the law pretends to recognize capacity,
are become, in many instances, utterly false. The importance of
particular towns, and the material or intellectual development of
their inhabitants, was originally the cause of their investiture
with electoral rights. The capacity was there; the right
followed. Now the principle has disappeared; there are some
boroughs destitute of importance, the inhabitants of which
possess neither wealth nor independence; capacity is no longer
there, but nevertheless the right continues still. It might be
supposed that the name of the borough, its site, or its walls,
are the signs of an electoral capacity which ought to reside
there for ever,--that the privilege appertained to the stones. On
the other hand there are other towns, which in the fourteenth
century would not have failed to obtain their electoral rights,
because in effect the capacities of their citizens would have
been recognized, that do not yet possess them.
Thus a principle, equitable at first, has ceased to be so,
because attempts have been made to arrest the progress of its
effects; or rather the principle itself has perished, and a great
part of the electoral system of England is nothing more than a
violation of it.
Vicissitudes Of Electoral Capacity.
By this it may be seen that, if the principle which attaches
right to capacity in the matter of election, is universal in its
nature, and susceptible of constant application, the conditions
of this capacity and the external signs by which it is to be
recognized are essentially variable, and can never be restricted
to the terms of a law without endangering the existence of the
principle itself. The vicissitudes of electoral rights, even in
the earliest time of the existence of Parliament, demonstrate
this. Political rights belonged at first to the freeholders
alone. Who could reasonably have sought deputies and electors in
those devastated boroughs, abandoned for the most part by their
ancient inhabitants, peopled only by a few poor families, whose
condition and ideas were not elevated above those of the most
miserable peasants?
{399}
No Permanent Test Of Electoral Capacity.
Some towns rose again and became repeopled; commerce brought with
it wealth, and wealth procured social importance, and the
development of mind. Representatives should emanate from these
bodies; for there were certainly electors. New capacities form
and declare themselves by new symptoms. At the same time, or soon
after, the number of freeholders increases by the division of
fiefs, many among them fall to a much lower condition than that
of the ancient freeholders, and no longer possess the same
independence. Will they preserve the same rights when their
capacity is no longer the same? no, necessity makes each to know
his value; the mere title of freeholder is no longer a correct
sign of electoral capacity. Another is sought, and the condition
of forty shillings rent enters into the laws. Thus, without any
violation, and even by the authority of the principle, the
conditions and signs of electoral capacity vary according to the
real state of society. It is only when this portion of the
electoral system becomes invariable that the principle will be
violated.
It would then be vain and dangerous to pretend to regulate,
beforehand and for ever, this part of the electoral system of a
free people. The determination of the conditions of capacity and
that of the external characteristics which reveal it, possess, by
the very nature of things, no universal or permanent character.
And not only is it unnecessary to endeavour to fix them, but the
laws should oppose any unchangeable prescription regarding them.
The more numerous and flexible the legal characteristics of
electoral capacity, the less need this danger be dreaded. If, for
example, the land-tax was regulated and fixed once for all, as it
is to be desired that it may be, this tax alone would be an
incorrect sign of electoral capacity; for it would not follow the
vicissitudes of property: it would enfeoff the land itself with
the right of election; the rent would be a better indication,
because it would be more pliable. If, instead of attributing
electoral rights by name and for ever to a particular borough,
the English laws had conferred them upon every town whose
population reached a certain limit, or the revenue from which
attained a certain amount, the representation of boroughs,
instead of becoming corrupt, would have followed the changes and
progress of true political capacity. We could multiply these
examples, and prove in a thousand ways that it is better neither
to adopt any one legal sign of electoral capacity, nor to place
this sign beyond the reach of the vicissitudes of society.
{400}
General Conclusions.
In summing up, we may deduce, from our examination of the
electoral system of England in the fourteenth century, these
three conclusions:
I. The right ought to be coextensive with the capability of
judicious election, for it is its source.
II. The conditions of electoral capacity should vary according
to time, place, the internal state of society, public
intelligence, &c.
III. The external characteristics prescribed by the laws, as
declaring the accomplishment of the conditions of electoral
capacity, should neither be utterly immutable nor derived
entirely from purely material facts.
{401}
Lecture XVI.
Subject of the lecture.
Continuation of the philosophical examination of the electoral
system in England in the fourteenth century.
Characteristics of the elections.
Examination of the principle of direct or indirect election.
Forms Of Election.
I now pass to the second of the great questions to which every
electoral system gives rise. What are the proceedings and forms
of the election? In this question many others are comprised.
These may be divided into two classes: the one class relating to
the manner of assembling the electors; the other, to their mode
of operation when assembled.
The close union of the electoral system with the exercise of
other rights and political powers, has been productive in England
of extensive and very beneficial consequences with regard to the
mode of collecting the electors together.
Originally the election of county representatives required no
special and extraordinary convocation of the electors. At
appointed times, they repaired to the county-court to fulfil the
functions with which they were charged, and on these occasions
they elected their representatives. The first writs addressed to
the sheriffs set forth: _Quod eligi facias in proximo
comitatu_, "you will elect in the next county-court."
When the importance of the House of Commons had imparted a
corresponding importance to the election of its members, and the
necessity of preventing the abuses arising from elections made,
so to speak, by chance, and without any one receiving special
notice thereof, had become felt, the election was announced
throughout the country by a proclamation summoning the attendance
of all the electors and indicating the time and place of the
convocation of Parliament. The election thus became a special and
solemn act; but was always conducted in the county-court, and at
one of its periodic meetings.
{402}
The Object Of Election.
Ultimately, by the lapse of time, the changes of the judicial
system, and the development of every institution, the
county-courts ceased to retain in England that position which
they anciently occupied. Their jurisdiction is now rare and very
limited; the greater part of the freeholders never attend them;
nor are they of any considerable political importance. At the
present day the sole important object of any assembly of
freeholders in these courts is the election of representatives,
but the circumscriptions remain the same: frequent relations
still exist among the freeholders of the county; the county-court
is still their centre: it is now the electoral college, and that
is its sole important character; but the electoral college is
still the ancient county-court.
The great political result of all these facts is this, that the
election of representatives has always been, and still is, not
the work of an assembly of men extraordinarily and arbitrarily
convened for that purpose, among whom no other tie subsists, and
who possess no regular and habitual common interests, but the
fruit of ancient relations, of constant and tried influences
among men otherwise united in the transaction and possession of
common affairs, functions, rights, and interests. In examining
the question in itself, we shall very soon become convinced that
this is the only way to insure veracity in elections, and
suitableness and authority in the elected representatives.
The object of election is evidently to obtain the most capable
and best accredited men in the country. It is a plan for
discovering and bringing to light the true, the legitimate
aristocracy, which is freely accepted by the masses over whom its
power is to be exercised. To attain this end it is not sufficient
to summon the electors together and to say to them, "Choose whom
you will;" but they should have the opportunity of understanding
thoroughly what they are about, and of concerting together how to
do it. If they do not know each other, and are equally
unacquainted with the men who solicit their suffrages, the object
is evidently defeated. You will have elections which will result
neither from the free choice nor the actual wishes of the
electors.
{403}
Convocation Of Electors.
Election in its nature is a sudden act which does not leave much
room for deliberation. If this act is not linked with the habits
and previous doings of the electors, if it is not in some sort
the result of long anterior deliberation, and the expression of
their habitual opinion, it will be too easy to take the real wish
of the electors by surprise, or to induce them to listen only to
the passion of the moment; and the election will thus be
deficient either in sincerity or in rationality. If, on the
contrary, the men who have met to elect a representative have
long been united by common interests; if they are accustomed to
conduct their affairs among themselves; if the election, instead
of taking them out of the habitual sphere in which their lives
are passed, their activity displayed, and their thoughts
exchanged, only assembles them at the centre of that sphere, to
obtain the manifestation, the summary of their opinions, their
wishes and the natural influence which they exercise over each
other; then the election can, and generally will be, both
rational and sincere.
The whole of that part of the electoral system which relates to
the assembling of the electors ought, then, to be founded upon
respect for natural influences and relations. The election should
assemble the electors together at that centre towards which they
are habitually attracted by their other interests. Well-tried and
freely accepted influences constitute true and legitimate society
among men. Far from dreading them, in them alone should the real
desire of society be sought. Every method of uniting electors
which annuls or destroys these influences, falsifies the
elections, and makes them run counter to their intended object:
the less the electoral assembly is extraordinary, the more will
it be adapted to the regular and constant existence of those who
compose it, and the better will it attain its legitimate end. On
these terms only can there be electoral colleges that do what
they wish, and know what they are doing; on these terms only can
there be representatives who exercise over the electors a solid
and salutary influence.
The maintenance of natural influences, and thereby the sincerity
of elections, has not been the only good effect of the primitive
identity of the electoral assemblies and the county-courts.
{404}
Electoral Districts.
These courts being the centre of a multitude of administrative,
judicial, or other interests, presided over by the interested
persons themselves, it was impossible that the boundaries of the
district to which they related could be very extensive; as much
inconvenience would thereby have resulted to the men who
frequently repaired thither. The division of England into
counties was not a systematic performance, and it presents some
striking irregularities. But the force of events prevented most
of the counties from including a very extended territory. This
advantage is retained in the electoral system. The connections
and ideas of the great majority of citizens do not stretch beyond
a certain material sphere: and it is only within the limits of
this sphere that they are really conversant with affairs, and act
upon their own knowledge. If the election is at too great a
distance from them, they cease to be enlightened and free agents,
and become tools. Now, since it is of the will and judgment of
the citizens that the choice is required, it is absurd to
withhold from them, at the same time, the necessary conditions of
reason and liberty. There is always, then, a limit beyond which
the extent of an electoral convocation should not be carried, and
this limit is itself a fact, which results from the manner in
which men and interests are grouped together, in the divisions
and subdivisions of the country. It ought to be large enough for
the election to produce representatives capable of fulfilling
their public mission, and contracted enough to insure that the
greater number of the citizens who take part in the election may
act with discernment and freedom. If the elections were conducted
in England according to hundreds, they would yield, perhaps,
obscure and ignorant representatives; if by episcopal dioceses,
they would in fact annul a great part of the electoral body. The
material circumstance of the necessity of a distant removal is of
least consequence. The moral disorder which would result from too
widely extended boundaries is much more serious.
Further; the extension of political rights is no less interested
in this than the excellence of the results of the election. It is
desirable to enlarge the sphere of these rights, as far as it is
admitted by the imperious condition of capacity. Now, capacity
depends upon a multitude of causes.
{405}
A man perfectly capable of prudent choice within a radius of five
miles from his dwelling, becomes absolutely incapable of doing so
if the radius be extended to twenty miles: in the first case, he
had the full use of his reason and freedom; in the second, he
loses it. If, then, you would judiciously multiply the number of
the electors, do not place the electoral centre too far from the
points of circumference from whence some will have to repair
thither. In all this we must proceed to some extent upon
supposition, and general results alone are sought; but the
principle is invariably the same. The election must be made by
electors capable of choosing wisely, and must supply in those who
are elected, men capable of thoroughly comprehending the
interests upon which they will have to administrate. These are
the two requirements, between which the limits of electoral
boundaries should be sought, subject always to the condition of
never determining these boundaries in an arbitrary way, so as to
break through the habits, and destroy the natural and permanent
state of society. Generally speaking, the division into counties
formerly attained this twofold object in England.
The boundaries being defined, in accordance with the natural
grouping of the citizens, and the electors being assembled, what
is required of them?
Number Of Representatives.
Custom, and no standard derived from population, wealth, or any
other cause, has ordained in England, that two members only
should be returned from each district, with the exception of a
very few places. This custom probably derives its origin from the
impossibility which formerly existed of finding in the boroughs,
and even in the counties, a greater number of men able and
willing to undertake a mission then very little sought after. It
has been seen that on several occasions three or four knights
were required from the county-courts. The number was very soon
reduced to two, and this fact has become the general law.
Whatever may be its historic principle, this fact contains a
rational principle, viz., that the election is neither sound nor
good, except when the number required to be elected is very
small.
{406}
Action Of Party Influence.
No one has ever denied that the fundamental law of all election
is this, that the electors should do what they desire, and
understand what they are doing. In practice, however, this is
often forgotten. It is forgotten when electors, meeting together
but for a short space of time, are required to make choice of
more than one or two. The great merit of election is, that it
should proceed from the elector, that on his part it is a true
choice, an act both of judgment and will. Beyond doubt, no
extraneous will or judgment may in any case be rightfully imposed
upon him; though he may always accept or reject that which is
proposed to him: but this is not sufficient; the elector must be
placed in such a position that his personal judgment, his own
will, shall be not only free, but stimulated to display
themselves in their actual character. Their exercise must be not
only possible, but must not be too difficult. Now, this error is
fallen into when, instead of one or two names, a whole list of
names is demanded. The elector, almost always incapable of
completing this list of himself and by the help of his own
discernment, falls under the dominion of combinations which he
suffers rather than accepts; for he does not possess the
knowledge necessary for judging correctly of their whole aim and
effect. Who does not know that almost every elector in such a
case cannot include in his list more than one or two names that
are truly known to him, and which he really desires? The choice
of the remainder is made for him, and he writes them in
confidence or out of complaisance. And who makes this choice? The
party to which the elector belongs. Now, party influence, like
every other influence, is good only so far as it is exercised
upon those who can form a just opinion of it, and not submit to
it blindly. The despotism of party spirit is no better than any
other despotism, and all good legislation should tend to preserve
citizens from its sway. Into elections, as into every other act,
levity, inconsiderateness, or passion may enter: but to these
dispositions the law is not bound to show respect and afford
facility. It should, on the contrary, strive to prevent their
having any effect; and by the process of the election itself, it
should, as far as possible, secure to the citizen the exercise of
his judgment as well as the independence of his will. It is not
requisite to repel all influences, or to declare them
illegitimate beforehand. Every election is the result of
influences, and it would be folly to pretend to isolate the
elector under the pretext of obtaining his unbiassed opinion and
desire.
{407}
This would be to forget that man is a reasonable and free being;
and that reason is called to debate, and liberty to choose. The
soundness of election arises precisely from the conflict of
influences. The law must allow them to reach the elector, and
grant them all natural means of acting upon his judgment; but it
ought not to deliver him up to them defenceless. It should take
certain precautions against human weakness, and the most
efficacious of these precautions will be, to require nothing of
the elector that he cannot perform with true spontaneity of
action. The citizen being thus left to himself, all influences
may act upon him: they may perhaps induce him to abandon the name
that he loved for one with which he was previously unacquainted;
but they will need at least to exert greater efforts to conquer
his reason or to subdue his will. Now, it is right that they
should be condemned to make such efforts, and that they should
not be able to obtain from levity, precipitation, or ignorance
alone, an assent, the effect of which is to give to the whole
country an exponent whom the elector himself would not have
desired had he been able, in nominating him, to make a full use
of his reason.
Evils Of Hasty Elections.
When we investigate the causes which have introduced into certain
countries, in the matter of election, a custom so opposed to the
true interests of liberty, and which is never met with where
liberty has really been introduced into the practice of political
life, we perceive that it is derived, in part at least, from the
evil principle on which the whole electoral system has been
founded. Electoral rights have been isolated from other rights,
and separately constituted; electoral assemblies have been in no
way connected with other public affairs, with local
administration, or with common and permanent interests. They have
been made extraordinary and solemn assemblies of very brief
duration. The electoral boundaries have in general been too
widely extended: hence has arisen the necessity of suddenly
assembling together the whole body of electors, of dismissing
them almost immediately, and at the same time, of requiring from
them the choice of too many representatives. In England, the poll
remains open at least fifteen days for the election of one or two
members. Every one gives his vote when it bests suits him. In
America, the other forms are yet more mild and free.
{408}
In the system which has prevailed with us, on the contrary, all
is sudden and precipitate: everything is done _en masse_,
and by masses of people whose reason and liberty are in a great
measure disabled from acting, by the haste and extent of the
operation. Hence also is derived the scheme of the ballot, and of
an absolute majority, consequences inevitably flowing from a
rapid and numerous election; whilst elsewhere, the system of a
relative and long-contested plurality affords public opinion
leisure to select, and freedom to manifest its choice. And hence,
finally, arises the necessity of an elected bureau, which
entrusts beforehand to the majority the inspection of all the
electoral operations, thus casting suspicion upon the
authenticity of the results. When liberty is everywhere to be
found, when all rights are bound together and mutually sustained,
when publicity is real and universally present, there will always
be independent magistrates to whom the direction and
superintendence of elections may be confided; and there is then
no necessity for placing them under the influence of party
spirit, in order to withdraw them from the always-suspected
influence of superior authority.
Advantages Of Direct Election.
These details relate to the forms of electoral operations; but as
their vices flow from the general principles which regulate them,
it was necessary to point out this connection.
Direct election has been the constant practice of England; and
America has adopted the same system. It has been otherwise in
most of the European States in which representative government
has been established in our own times. This is one of the most
important facts presented to our view by the British electoral
system. In this system, direct election has been the natural
consequence of the idea that was then entertained regarding
political rights. Not only were these rights unshared by all, but
they were not even distributed systematically, or upon one
general plan. They were recognized wherever the capacity of
exercising them was actually to be met with. The importance of
freeholders and citizens had entailed upon them the right of
interference in public affairs. This intervention was their right
when these affairs related to themselves. Being unable to
exercise this right personally, they elected representatives.
{409}
In the spirit of the time, this right of election corresponded
exactly to the right that the powerful barons exercised of being
represented in Parliament by delegated agents. The individual
importance of a powerful baron being very great, his proxy was
individual. The freeholders and citizens also possessed an
individual right, but not the same importance, and they therefore
had one proxy to represent many of them. But, fundamentally, the
representation was founded on the same principle--the individual
rights of the electors to debate on and consent to such matters
as interested them.
Its Relation To Representative Government.
In this point of view, it is easy of comprehension that direct
election prevailed, and that no other idea presented itself to
the public mind. All indirect election, every new medium placed
between Parliament and the elector, would have appeared, and
would in fact have been, a diminution of the right, a weakening
of the importance and political intervention of the electors.
Direct election, then, is the simple idea, the primitive and
natural electoral system of representative government, when
representative government is itself the spontaneous produce of
its true principle,--that is to say, when political rights are
derived from capacity.
In considering this mode of election under a purely philosophical
point of view, and as it respects not merely the electors alone,
but society in general, does it remain equally preferable to
every other more artificial combination?
It is necessary to examine it first in its relation to the
rational principle of representative government; and, in the
second place, in its practical results.
We have in a previous lecture laid down the rational principle of
representative government. In right, this principle asserts, that
true sovereignty is that of justice; and that no law is
legitimate if it is not conformable to justice and to truth, that
is to say, to the divine law. In fact, this principle recognizes,
that no man or assembly of men, in a word, no terrestrial force,
is fully conscious and constantly desirous of reason, justice,
and truth--the true law. Connecting this right and fact together,
the inference is, that the public powers which actually exercise
sovereignty ought to be constantly required and constrained on
every occasion to seek after the true law, the sole source of
legitimate authority.
{410}
Qualifications Of Representatives.
The object of the representative system, in its general elements
as well as in all the details of its organization, is, then, to
collect and concentrate all the scattered elements of reason
which exist in society, and to apply it to its government.
From thence it necessarily follows that representatives ought to
be the men most capable:
1. To discover, by means of their united deliberation, the law
of reason, the truth which, on all occasions, the least as well
as the greatest, exists, and ought to be the ground of
decision; and
2. To enforce the recognition and observance, by the citizens
in general, of this law when once discovered and expressed.
In order to discover and secure the men most capable of
fulfilling this mission, that is to say, good representatives, it
is necessary to compel those who think or profess themselves to
be such, to prove their capacity, and to obtain its recognition
and assertion from the men who, in their turn, are capable of
forming a judgment upon it, that is to say, upon the individual
capacity of any man who aspires to become a representative. Thus
does legitimate power evidence itself, and it is thus that, in
the fact of election, philosophically considered, this power is
exercised by those who possess it, and accepted by those who
recognize it.
Now, there is a certain relation, a certain tie, between the
capacity of being [a good representative or otherwise], and the
capacity of recognizing the man who possesses the capacity of
being. This is a fact which is continually illustrated in the
world. The brave man excites those to follow him who can
associate themselves with his bravery. The skilful man obtains
obedience from those who are capable of comprehending his skill.
The wise man engages the belief of those who are capable of
appreciating his knowledge. Every superiority, has a certain
sphere of attraction in which it acts, and gathers around itself
real inferiorities, which are, however, in a condition to feel
and to accept its action.
This sphere is by no means boundless. This also is a simple,
self-evident fact. The relation which connects a superiority with
the inferiorities by which it is recognized, being a purely
intellectual relation, cannot exist where there does not also
exist a sufficient degree of knowledge and intelligence to form
the connection.
{411}
A man, though very fit to recognize the superiority capable of
deliberating on the affairs of his commune, may be quite unfit to
distinguish and point out by his vote a person who shall be
capable of deliberating on the affairs of the State. There are,
then, some inferiorities, destitute of all true relation with
certain superiorities, and which, if they were called upon to
distinguish between them, would be either unable to do so, or
would arrive at a most incorrect conclusion.
The limit at which the faculty ceases of recognizing and
accepting the superiority which constitutes the capacity of being
a good deputy, is that at which the right of election ought to
cease; for it is here that the capacity ceases of being a good
elector.
Above this limit, the right of election exists only because of
the actual existence of the capacity of recognizing the superior
capacity that is sought. Below it, there is no right.
Philosophic Necessity Of Direct Election.
From thence, the necessity of direct election philosophically
results. Evidently it is desired to obtain that which is sought.
Now, that which is sought, is a good representative. Superior
capacity, that of the representative, is necessarily, therefore,
the dominant condition, the starting-point of the whole
operation. You will obtain this superior capacity by requiring
its recognition by all those capacities which, although inferior,
stand in natural relation with it. If, on the contrary, you begin
by electing the electors, what will be the result? you have to
accomplish an operation analogous to the preceding, but the point
of departure is altered, and the general condition is lowered.
You take as your foundation the capacity of the elector, that is
to say, a capacity inferior to that which you wish definitively
to obtain; and you necessarily address yourself to capacities
still more inferior and quite unfit to conduct you, even under
this form, to the more elevated result at which you aim; for the
capacity of the elector being only the ability to select a good
representative, it would be necessary to be in a position to
comprehend the latter condition in order to comprehend the
former, which can never happen.
{412}
Evils Of Indirect Election.
Indirect election, therefore, considered in itself, derogates
from the primitive principle as well as from the ultimate object
of representative government, and debases its nature. Considered
in its practical results, in facts, and independently of every
general principle, this system appears equally unsatisfactory.
In the first place, we regard it as admitted, that it is
desirable that the election of representatives should not be in
general the work of a very small number of electors. When
electoral assemblies are very limited, not only is the election
deficient in that action and energy which sustain political life
in society, and afterwards contribute in great measure to the
power of the representative himself, but general interests,
expansive ideas, and public opinions cease to be the motive and
regulating power. Coteries form themselves,--in the place of
political parties, personal intrigues spring up; and a struggle
is established between interests, opinions, and relations, which
are almost individual in their nature. The election is no less
disputed, but it is less national, and its results possess the
same fault.
Starting, then, from this point, that electoral assemblies ought
to be sufficiently numerous to prevent individualities from
obtaining such easy dominion, I seek to discover how, by indirect
election, this end can reasonably be attained.
Two hypotheses alone are possible: either the territorial
boundaries, within which the assembly will be formed, charged
with the nomination of the electors, will be very narrow, or will
be of considerable extent. In England, for example, the electors
would be required from the tithings or the hundreds, which
correspond very nearly to our _communes_ and _cantons_.
If these boundaries are very narrow, and only a very small number
are required to be selected from each--two electors for
example--very probably some of these electors will be of a very
inferior order.
True electoral capacities are by no means equally divided among
communes; one commune may possess twenty or thirty, while another
contains only a few, or perhaps none at all; and this is the case
with the majority. If each district is required to furnish the
same, or nearly the same number of electors, great violence will
be done to realities. Many of the incapable will be summoned;
many who are capable will be excluded; and, finally, an electoral
assembly will be constituted, but little adapted for the wise
choice of representatives.
{413}
If, on the contrary, each district is required to designate a
number of electors proportioned to its importance, its
population, and the wealth and intelligence that are concentrated
in it, then, wherever the number to be chosen is considerable,
there will no longer be any true choice.
It has already been shown, that elections, when they are numerous
and simultaneous, lose their character. There will be lists of
electors prepared by the external influence either of parties or
of power, which will be adopted or rejected without discernment
or freedom. In this respect experience has everywhere confirmed
the previsions of reason.
If the districts summoned to name the electors possess any great
extent, another alternative presents itself. Either each will be
required to choose only a small number, and then the object will
be defeated, for the assembly whose duty it will be to elect the
representatives will be very innumerous: or a large number of
electors will be required from each district, and then the
inconvenience which has been already pointed out will be
incurred.
Let all the possible combinations of indirect election be
exhausted, and there will not be found one which can finally
supply, for the election of representatives, an assembly
sufficiently numerous, and formed at the same time with
discernment and liberty. In this system these two results
mutually exclude each other.
I proceed now to another vicious practice connected with this
system, which is no less serious, than those just indicated.
The end of representative government is to bring publicly into
proximity and contact the chief interests and various opinions
which divide society, and dispute for supremacy, in the just
confidence that from their debates will result the recognition
and adoption of the laws and measures which are most suitable for
the country in general. This end is only attained by the triumph
of the true majority--the minority being constantly listened to
with respect.
If the majority is displaced by artifice, there is falsity. If
the minority is removed from the struggle beforehand, there is
oppression. In either case representative government is
corrupted.
{414}
All the constituent laws of this form of government have, then,
two fundamental conditions to fulfil: first, to secure the
manifestation and triumph of the true majority; and, secondly, to
insure the intervention and unshackled endeavour of the minority.
These two conditions are as essential to the laws which regulate
the mode of the election of representatives, as to those which
preside over the debates of deliberative assemblies. In neither
case ought there to be falsehood or tyranny.
An electoral system which would annul beforehand,--with regard
to the final result of the elections, that is to say, with regard
to the formation of the deliberative assembly,--the influence
and participation of the minority, would destroy representative
government, and would be as fatal to the majority itself as any
law which, in the deliberative assembly, should condemn the
minority to silence.
This, to a certain extent, is the result of indirect election,
By direct election, and supposing that the limit of electoral
capacity has been reasonably fixed by law, that is to say, at the
point at which true capacity actually ceases, all the citizens
whose social position, fortune, or intelligence place them above
this limit, are equally summoned to unite in the choice of
representatives. No inquiry is made of them concerning the
opinions or interests which they advocate. The result of the
election will make known the true majority; but whatever that may
be they will have no cause to complain: the trial will have been
complete, and they will have taken their rightful part in it.
Indirect election, on the contrary, effects beforehand a thorough
purgation of the electoral capacities, and eliminates a certain
number, solely on account of the opinions or interests which they
may hold. It intrudes into the sphere of these capacities in
order to exclude a part of the minority, so as to give to the
majority a factitious force, and thus to destroy the true
expression of the general opinion. We should exclaim loudly
against a law which should say, _à priori_: "All the men, or
only the third or fourth part of the men, attached to such an
interest or such an opinion, shall be excluded from all
participation in the election of representatives, whatever may
otherwise be their importance and social position."
{415}
Source Of Indirect Election.
This is precisely what is done, _à posteriori_, by indirect
election; and thereby it introduces into representative
government positive disorder, for it creates a means of tyranny
for the benefit of the majority. It may even happen, and examples
of this are not wanting, that indirect election, when thus
employed to eliminate a portion of the natural electoral
capacities, may result in turning against the majority itself,
and putting it in the minority. A supposition will clearly
explain this idea. If, in the fourteenth century, it had been
decreed in England, that "the copyholders and villeins should
unite in nominating the electors of the members of Parliament,"
is it not evident that their choice would have fallen on the
lords whose lands they rented or cultivated by any particular
title; and that the inhabitants of the towns, the citizens, would
have been almost absolutely excluded from the House of Commons?
Thus, this part of the nation, which had already attained so much
importance, would have seen themselves deprived of the exercise
of political rights by a system which urged, as its sole specious
pretext, the extension of these rights to a greater number of
individuals.
This is, in fact, the true source of indirect election; it is
derived from the sovereignty of numbers, and from universal
suffrage: and as it is impossible to reduce these two principles
to practice, it is attempted to retain some shadow of their
existence. The principle of representative government is
violated, its nature debased, and the right of election weakened,
in order that consistent adherence to an erroneous doctrine may,
to all appearance, be maintained. Who can fail to see that such a
system must necessarily enervate election, and that reality and
energy can be preserved by the system of direct election alone?
Every action, the result of which is distant and uncertain,
inspires little interest; and the same men who will unitedly
display great discernment and animation in the choice of their
municipal officers, would give their suffrage blindly and coldly
to subsequent electors whom their thoughts never follow into the
future in which they interfere so little. This pretended homage
to wills not sufficiently enlightened to be trusted with a
greater share of influence in the choice of representatives, is
at the bottom nothing but miserable quackery and lying adulation;
and under a simulated extension of political rights there is
concealed the restriction, mutilation, and enfeebling of these
rights in the sphere in which they really exist, and in which
they might be exercised in all their fulness and with complete
effect.
{416}
The true way to diffuse political life in all directions, and to
interest as great a number of citizens as possible in the
concerns of the State, is not to make them all combine in the
same acts, although they may not all be equally capable of
performing them; but to confer upon them all those rights which
they are capable of exercising. Rights are worth nothing unless
they are full, direct, and efficacious. In place of perverting
political rights by weakening them, under the pretext of giving
them diffusion, let local liberties everywhere exist, guaranteed
by real rights. The electoral system itself will thus become much
more powerful than it could possibly be under a pretended system
of universal suffrage.
Practice Of Open Voting.
The last important fact to be noticed in the electoral system of
England in the fourteenth century, is open voting. Some have
attempted to regard this as an absolute principle capable of
constant application; but we think it ought not so to be
considered. The only absolute principle in this matter is, that
election should be free, and should truly display the true
thoughts and real wishes of the electors. If open voting puts a
serious restraint on liberty of elections and perverts their
results, it ought to be abolished. Doubtless such a condition
argues infirmity of liberty and timidity of morals, and proves
that a portion of society is in conflict with influences which it
is afraid to shake off, though it ardently desires to be rid of
them. This is a melancholy fact, but it is one which liberty,
rendered fruitful by time, can alone destroy. It is very true
that open voting in elections, as well as in the debates of
deliberative assemblies, is the natural consequence of
representative government. It is quite true that there is a
degree of shame attached to liberty if it claim secrecy for
itself' while imposing publicity on power. That liberty which can
only attack is still very feeble; for the true power of freedom
consists in its bold defence and avowal of its rights.
{417}
Certainly there is an ill grace in the complaints of the
niggardliness and delay with which power grants rights, when
concealment is necessary for the exercise of rights already
possessed. But when reason is applied to practice, it regards,
for some time at least, nothing besides facts; and the most
imperious of all principles is necessity. To impose open voting
when it would injure freedom of election would be to compromise
general liberty itself, which, ere long, must necessarily
establish open voting.
Electoral System Of England.
To sum up what I have said. Nearly all the fundamental principles
of a free and reasonable electoral system may be discovered in
the electoral system of England in the fourteenth century.
Bestowal of electoral rights upon capacity; close union of
electoral rights with all other rights; regard to natural
influences and relations; absence of all arbitrary and factitious
combinations in the formation and proceedings of electoral
assemblies; prudent limitation in the number to be chosen by each
assembly; direct election, and open voting; all are to be met
with. These are entirely due to the decisive circumstance that
the electoral system and representative government itself were in
England the simple and natural result of facts, the consequence
and development of real and powerful anterior liberties, which
served as their basis, and guarded and nourished in their bosom
the roots of the tree which is indebted to them for its growth.
By another equally decisive circumstance, this system, though so
national and spontaneous in its origin, became corrupted, at
least in part, and appears at the present day to require
correction. Perhaps it is owing to its very power that it remains
inflexible: it has only followed at a distance the vicissitudes
and progress of social conditions. It now protects the remnants
of those abuses against which, at first, and for a long time, it
was directed; and yet the reform of these abuses, by whatever
means and at whatever period it may be effected, will be the
fruit of the institutions, habits, principles, and sentiments
which this system has established.
{418}
Lecture XVII.
Origin of the division of the English Parliament into two
Houses.
Its original constitution.
Reproduction of the classifications of society in the
Parliament.
Causes which led the representatives of counties to separate
from the barons, and coalesce with the representatives of
boroughs.
Effects of this coalition.
Division of the Parliament into two Houses in the fourteenth
century.
Division Of The English Parliament.
Our attention has hitherto been directed only to the elements of
which the Parliament was composed, and to the proceedings that
took place at its formation, that is to say, to the process of
election: we have now to consider another question; we must
enquire what were the internal and external constitution and
organisation of the Parliament thus composed.
The Parliament at the beginning of the fourteenth century was not
divided, as at present, into the House of Lords and the House of
Commons; nor did it, on the other hand, consist of a single body.
Accounts vary regarding the date at which it assumed its present
form. Carte fixes it in the seventeenth year of the reign of
Edward III. (1344); the authors of the Parliamentary History, in
the sixth year of the same reign (1333); Mr. Hallam in the first
year of the reign of Edward III. (1327), or, perhaps, even in the
eighth year of the reign of Edward II. (1315).
The principal cause of this diversity of opinion is the different
circumstance with which each author connects the fact of the
union of county and borough members into one single assembly.
This fact is deduced by some from the date of their assembling
together in the same place; by others, from the period of their
common deliberation; and by others again, from the union of their
votes upon the same question. And as each of these circumstances
occurred in one particular Parliament independently of the
others, the period when Parliament first existed in its present
form is carried back or forward according to the circumstance
which is regarded as decisive in this respect.
{419}
However this may be, it may be affirmed that the division of
Parliament into two Houses,--one comprising the lords or great
barons individually summoned, and the other all the elected
representatives of counties and boroughs; and both these houses
deliberating and voting together in all matters of business--was
not completely and definitively effected, until towards the
middle of the fourteenth century. It is necessary to trace the
steps by which this fact was gradually accomplished. This is the
only way thoroughly to comprehend its nature and its causes.
Original Constitution Of Parliament.
Originally, as we have seen, all the immediate vassals of the
king had the same right of repairing to Parliament and taking
part in its deliberations. Mere knights, therefore, when they
repaired thither, sat, deliberated, and voted, with the great
barons.
When election was substituted for this individual right in the
case of the knights of shires, and only those elected by the
county-courts were entitled to attend the Parliament, they still
continued to be members of the class to which they had previously
belonged. Although elected and deputed not only by those knights
who were immediate vassals of the king, but also by all the
freeholders of their county, they continued to sit, deliberate,
and vote, together with the great barons who were individually
summoned.
The representatives of the boroughs, on the contrary, whose
presence in Parliament was a novel circumstance (which was not
connected with any anterior right exercised merely under a new
shape), formed a distinct assembly from their first appearance in
Parliament, sitting apart, deliberating and voting on their own
account, and as thoroughly separated from the knights of the
shire as from the great barons.
{420}
Separate Votes Of Various Classes.
This separation is evident from the votes of Parliament at this
period. At the Parliament held at Westminster under Edward I., in
1295, the earls, barons, and knights of the shire granted the
king an eleventh part of their personal property, the clergy a
tenth part, and the citizens and burgesses a seventh. In 1296,
the former granted a twelfth part, and the latter an eighth. In
1305, the former gave a thirtieth part, and the clergy, the
citizens, and burgesses a twentieth. Under Edward II., in 1308,
the barons and knights granted one twentieth, the clergy a
fifteenth, the citizens and burgesses a fifteenth. Under Edward
III., in 1333, the knights of the shire granted a fifteenth, the
same as the prelates and the nobles, and the citizens and
burgesses a tenth; and yet the records of this Parliament
expressly declare that the knights of the shire and the burgesses
deliberated in common. In 1341, the prelates, earls, and barons,
on the one hand, and the knights of the shire on the other,
granted a ninth of their sheep, lambs, and fleeces; and the
burgesses, a ninth of all their personal property. In 1345, the
knights of the shire granted two-fifteenths, the burgesses a
fifth: the lords granted nothing, but promised to follow the king
in person. Thus, at this latter period, the knights of the shire
no longer voted in common with the lords, but they still voted
apart from the burgesses.
In 1347, the commons without distinction granted two fifteenths,
to be levied in two years in the cities, the boroughs, the
ancient domains of the crown, and the counties. At this period,
then, the fusion of the two elements of the Commons House was
complete: and it continued so ever afterwards, although a few
examples are still found of special taxes, voted by the
representatives of the towns and boroughs alone in the case of
customs, especially in 1373.
The original separation, then, was between the representatives of
the counties and those of the boroughs. The recollections of
feudal law allied the former to the great barons during more that
[than?] fifty years. This separation was not confined solely to
voting the supplies. Everything indicates, although it is nowhere
proved by written evidence, that the knights of the shire and the
representatives of the boroughs did not deliberate together any
more on other affairs, either legislative or otherwise, which
interested only one of the two classes. When mercantile interests
were in question, the king and his council discussed them solely
with the representatives of the towns and boroughs. Thus, there
is reason to believe that the statute entitled _The Statute of
Acton-Burnel_, passed in 1283, was enacted in this manner on
the advice of the borough representatives alone, who met for this
purpose at Acton-Burnel, whilst the knights of the shire sat with
the great barons at Shrewsbury, to assist at the trial of David,
Prince of Wales, then a prisoner. The separation of the two
classes of representatives could therefore be carried thus far,
that each class may have sat in different, though neighbouring
towns.
{421}
Causes Of This Separation.
When they sat in the same town, and especially at Westminster,
the whole Parliament met together, most probably in the same
chamber; but the great barons and knights of the shire occupied
the upper end, and the borough representatives the lower part, of
the chamber.
A distinction existed even among the borough members. Until the
reign of Edward III., the representatives of those boroughs which
formed part of the ancient domain of the crown constituted a
separate class, and voted distinct supplies.
The division of Parliament, then, far from having originated in
the forms which prevailed fifty years later, arose from
principles altogether different. No idea then existed of truly
general interests and a national representation. The particular
interests which were of sufficient importance to take part in the
government, intervened in it solely on their own account, and
treated separately of their own affairs. Did the matter in hand
relate exclusively to things in which the great barons appeared
to be interested, and where the king required their assistance
alone--they alone assembled and deliberated. Was the question one
of modifications in the nature or mode of the transmission of
feudal territorial property--the knights of the shire were
summoned; and in this way the statute _Quia emptores_ was
enacted under Edward I. Were commercial interests concerned--the
king treated of them with the borough representatives only. In
these various cases, as in the matter of supplies, the
deliberation and vote of the different classes of members of
Parliament were distinct. These classes were formed in reference
to their common interests, and took no part in each other's
affairs: and very rarely, probably never, at this period, was
there any matter of sufficiently general and common importance to
all, for all to have been summoned to deliberate and vote in
common.
{422}
Formation Of The Commons.
Thus the classification of society was perpetuated in the
Parliament, and was the true principle of the division between
the members of Parliament.
This state of things did not long continue, because the
classification of society itself, in which it originated, also
tended to its own effacement. The county members could not fail
to separate themselves altogether from the great barons, and
completely to combine with the borough representatives; and for
the following reasons.
If the knights of the shire continued for some time to sit and
vote with the great barons, this was merely the effect of old
association, a relic of the ancient parity of their feudal
position. This equality had already received a severe check by
the substitution of election for individual right of presence.
The cause which had led to this change continued at work; the
disparity of importance and wealth between the great barons and
plain knights of the shire went on increasing; the remembrance of
feudal political right became weakened; and the social position
of the knights of the shire daily became more different from that
of the great barons. Their parliamentary position could not fail
to follow the same course. All things combined to separate them
more and more.
At the same time every circumstance tended to associate the
representatives of the counties with those of the boroughs. They
had the same origin, and appeared in Parliament by virtue of the
same title--election. The tie which had attached the county
elections to feudal right became progressively enfeebled.
Furthermore, these two classes of deputies were alike
correspondent to certain local interests. These interests were
often identical or of the same nature. The inhabitants of the
towns situated in a county, and the rural landowners of the
county, were often engaged in the same affairs, and frequently
entertained the same claims and desires. Besides, the
county-courts were a common centre at which they habitually
assembled together. Both the county and borough elections
frequently took place in these courts. Thus, while certain causes
increasingly separated the knights of the shire from the great
barons, other causes approximated them more closely to the
borough representatives. The analogy of social positions
naturally hastened the fusion of parliamentary positions.
{423}
Present Constitution Of Parliament.
Lastly, the great barons constituted the chief council of the
king. They often assembled around him in this capacity, and
independently of any convocation of the elected deputies. By
reason of their personal importance, they engaged in public
affairs, and took part in the government in an habitual and
permanent manner. The representatives of the counties and
boroughs, on the contrary, interfered in the administration of
public affairs only from time to time, in certain particular
cases. They possessed rights and liberties, but they neither
governed, nor contested with each other for the government, nor
were they constantly associated in it. Their political position
was in this respect the same, and was therefore very different
from that of the great barons. All things tended, then, broadly
to distinguish them from the latter class, and to connect them
together.
The constitution of Parliament in its present form is the result
of all the above causes. It was accomplished in the middle of the
fourteenth century, although some instances of separation between
the two elements of the House of Commons may subsequently be met
with. These cases very soon disappeared and the union became
complete. One fact alone remained, and that was the superiority
in importance and influence of the county representatives over
the representatives of boroughs, notwithstanding the habitual
inferiority of their numbers. This fact, with the exception of
only a few intervals, is met with throughout the whole course of
the history of Parliament.
Thus was effected, on the one side, the separation of the Houses
of Peers and Commons, and on the other, the union of the
different elements of the House of Commons into a single
assembly, composed of members exercising the same rights and
voting on all occasions in common.
This is the great fact which has decided the political destiny of
England. By themselves alone, the borough deputies would never
have possessed sufficient power and importance to form a House of
Commons capable of resisting sometimes the king, and sometimes
the great barons, and of gaining an ever-increasing influence in
public affairs. But the aristocracy, or rather, the feudal
nation, being divided into two parts, and the new nation which
was forming in the towns becoming combined with the county
freeholders there, arose from the combination a competent and
imposing House of Commons.
{424}
Early Importance Of The Commons.
There was a large body of the nation independent both of the king
and of the great nobles. It happened also that the king could
not, as in France, make use of the Commons to annihilate the
political rights and privileges of the ancient feudal system,
without substituting new liberties in their places. On the
Continent, the enfranchisement of the Commons definitively led to
absolute power. In England, a portion of the feudal class having
united with the Commons, they combined to defend their liberties.
On the other hand, the crown, supported by the great barons, who
could not hope to set up as petty independent sovereigns in their
own domains, possessed sufficient power to defend itself in its
turn. The great barons consequently were obliged to rally round
the throne. It is not true, though it is constantly reiterated,
that the aristocracy and people have made common cause in England
against the regal power, and that English liberty has arisen out
of that circumstance. But it is true that the division of the
feudal aristocracy having prodigiously augmented the power of the
Commons, popular liberties at an early date possessed sufficient
means of resistance, and the royal power received at the same
time sufficient support.
Thus, considering the division of Parliament into two houses
under the historic point of view, we see both how it was
effected, and how favourable it has been to the establishment of
popular liberty. Is this, then, all? Are this fact and its
results mere accidents arising out of circumstances peculiar to
England, and to the state in which society happened to be in the
fourteenth century? Or is this division of legislative power into
two houses a constitutional form intrinsically good, and
everywhere as well founded in reason as it was, in England, in
the necessities of the times? This question must be examined in
order properly to appreciate the influence which this form has
exercised on the development of the constitutional system in
England, and rightly to understand its causes.
{425}
Lecture XVIII.
Examination of the division of the legislative power into two
Houses.
Diversity of ideas on this subject.
Fundamental principle of the philosophic school.
Source of its errors.
Characteristics of the historic school.
Cause of the division of the British Parliament into two
Houses.
Derivation of this division from the fundamental principle of
representative government.
Its practical merit.
Division Of The Legislative Power.
In order to judge in itself of the division of the legislative
power into two Chambers, and to estimate its merit, we must first
detach it from certain particular and purely local
characteristics, which are not essentially inherent in it; and
which have associated it in England with causes which are not in
all times and places to be met with. Not a few writers have
fallen into grave errors, on this and many other questions, by
neglecting to take this step at the outset. Some have formed
their judgment of this institution entirely from a few of the
causes which led to its establishment in England in the
fourteenth century; and as, generally speaking, they did not
approve either of these causes or their effects, and had a bad
opinion of the social condition of which they formed part, they
have condemned the institution itself, appearing to believe that
it was derived solely from that social condition, and could not
possibly be detached from it. Others, on the contrary, struck
either with the general reasons which may be urged in favour of
the institution, or with the good effects which it has produced
in England and elsewhere, have adopted it exactly in that
particular form in which it was introduced among our neighbours
by their ancient social condition, asserting that all the
characteristics which it there presents are essential to it, and
even constitute it. Thus, the institution has sometimes been
censured on account of particular facts which accompanied its
establishment and combined to produce it, and sometimes these
facts and their special consequences have been adopted as
principles, simply because they were associated with an
institution deemed intrinsically good.
{426}
Philosophic And Historic Schools.
These two modes of judgment, both of which are equally erroneous,
characterize the two schools, which may be called distinctively
the philosophic school and the historic school. As this twofold
method of considering political questions has warped them,
sometimes in one sense and sometimes in another, it appears to me
that it would be useful to offer some general observations on
this subject, which may afterwards be applied to the particular
question with which we are now occupied.
One idea reigns in the philosophic school--that of Right. Right
is constantly taken both as its starting-point, and as its goal.
But right itself requires to be investigated; before adopting it
as a principle or pursuing it as an object, we must know what it
is. To discover right, the philosophic school commonly confines
itself to the individual. It takes hold of man, considers him
isolatedly and in himself, as a rational and free being, and
deduces from an examination of his nature that which it
denominates his rights. Once in possession of these rights, they
are advanced as a requirement of justice and reason, which ought
to be applied to social facts as the sole rational and moral rule
by which these facts should be judged, if judgment only be
required--or instituted, if the object be to institute
government.
The historic school is held in bondage by another idea--that of
Fact. It does not, if possessed of any good sense, deny right: it
even proposes right as its goal, but it never adopts it as its
starting-point. Fact is the ground to which everything is
brought; and as facts cannot be considered isolatedly, as they
are all bound up together; and as the past itself is a fact with
which the facts of the present are connected, it professes great
respect for the past and admits right only so far as it is
founded on anterior facts; or at least this school seeks to
establish right, only by uniting it closely with these facts, and
striving to deduce it from them. Such are the points of view, not
exclusively, for that cannot be, but dominantly, of the two
schools. How much is true, and how much erroneous in each? That
is to say, what is there incomplete in both?
The philosophic school is correct in adopting Right not only as
its end but also as its starting-point. It is right in
maintaining that an institution is not good, simply because it
exists or has existed, and that there are rational principles by
which all institutions should be judged, and rights superior to
all facts,--rights which cannot be violated unless the facts
which violate them are illegitimate, although real, and even
powerful.
{427}
Errors Of The Philosophic School.
But though right in standing upon this foundation, which is its
principal characteristic, the philosophic school is often
mistaken when it attempts to go farther. We say that it is
mistaken, philosophically speaking, and independently of all
ideas of application and practical danger.
Its two chief errors, in my opinion, are these:
I. Its researches after right are misdirected; and,
II. It mistakes the conditions under which right can be
realised.
It is not by considering man in isolation, in his single nature,
and individually, that his rights may be discovered. The idea of
right implies that of relation. Right can be declared only when
relation is established. The fact of a connexion, of an
approximation, in a word, of society, is implied in the very word
_right_. Right originates with society. Not that society, at
its origin, created right by an arbitrary convention. Just as
truth exists before man becomes acquainted with it, so does right
exist before it is realised in society. It is the legitimate and
rational rule of society in every step of its development, and at
every moment of its existence. Rules exist before their
application; they would still exist even if they were never
applied. Man does not make them. As a reasonable being, he is
capable of discovering and understanding them. As a free being,
he can either obey or violate them; but whether he be ignorant of
them or knowingly violate them, their reality, so far as they are
rules, that is to say, their rational and moral reality, is
independent of him, superior and antecedent to his ignorance or
his knowledge, to the respect or neglect with which he treats
them. Laying down this principle then on the one side, that rule
virtually exists before the relation or society to which it
corresponds, and on the other side, that it is not manifested and
declared until society is established, that is to say, that it
can only be applied when society really exists, we inquire, What
is this right and how can it be discovered?
Right, considered in itself, is the rule that each individual is
morally bound to observe and respect in his relations with
another individual; that is to say, the moral limit at which his
lawful liberty is arrested and ceases in his action on that
individual; or, in other words, the right of a man is the limit
beyond which the will of another man cannot morally be exercised
over him in the relation which unites them.
{428}
True Rule Of Social Relations.
Nothing can be more certain than that every man in society has a
right to expect that this limit will be maintained and respected
as regards himself by other men and by society itself. This is
the primitive and unalterable right which he possesses in virtue
of the dignity of his nature. If the philosophic school had
confined itself to laying down this principle, it would have been
perfectly correct, and would have reminded society of the true
moral rule. But it has attempted to go further: it has pretended
to determine, beforehand and in a general way, the exact limit in
every instance in which the will of individuals over each other,
or of society over individuals, ceases to be legitimate. It has
not contented itself with establishing right in principle, but
has considered itself capable of enumerating all social rights
_à priori_, and of reducing them to certain general formulæ
which should comprise them all, and might thus be applied to
every relation to which society gives birth. By this it has been
led to overlook many very positive rights, and to create many
pretended rights which have no reality. If it be true, as we have
laid it down, that right is the legitimate rule of a relation, it
is plain that the relation must be known before the right which
ought to govern it can be understood. Now social relations,
whether between one man and another, or between one and several,
are neither simple nor identical. They are infinitely multiplied,
varied, and interwoven; and right changes with relation. An
example will best explain our meaning. We will select the most
simple and natural of social relations, that of the father to the
child. Nobody will presume to assert that here no right exists,
that is to say, that neither the father nor the child have any
respective rights to be mutually observed, and that their will
alone should arbitrarily regulate their reciprocal relations. In
the outset, whilst the child is devoid of reason, his will has
little or no right: the right belongs entirely to the will of the
father, which even then is, doubtless, legitimate only so far as
it is conformable to reason, but which is not and cannot be
subordinate to that of the child, on which it is exercised and
which it directs.
{429}
In proportion as reason becomes developed in the child, the right
of the father's will becomes restricted; this right is always
derived from the same principle, and ought to be exercised
according to the same law; but it no longer extends to the same
limit, but becomes changed and narrowed day by day with the
progress of the intellectual and moral development of the child,
up to the age when at length the child, having become a man,
finds himself in a totally different relationship to his
father--a relationship in which another right holds sway, that is
to say, in which the paternal right is enclosed within entirely
different limits, and is no longer exercised in the same way.
If, in the most simple of social relations, the right, though
immutable in its principle, suffers so many vicissitudes in its
application,--if the limit at which it stops is so continually
altered, according as this relation changes in nature and
character--to a far greater extent will this be the case in all
other social relations, which are infinitely more changeful and
complicated. Every day old rights will perish; every day new ones
will arise; that is to say, different applications will daily be
made of the principle of right; and each occasion will vary at
the limits at which the right ceases, either on one side or the
other, in the innumerable relations which constitute society.
It is not, then, a simple matter to determine right, nor can it
be done once for all, and according to certain general formulae.
Either these formulæ must be reduced to this dominant truth, that
no will, whether that of man over man, of society over the
individual, or of the individual over society, ought to be
exercised contrary to justice and reason--or else these formulæ
are vain; that is to say, they confine themselves to expressing
the principle of right, or try unsuccessfully to enumerate and
regulate beforehand all its applications.
Impossibility Of Defining Rights.
In this there consists the first error of the philosophic school,
that, proud of having re-established the principle of right (a
matter, certainly, of immense importance), it has thenceforth
esteemed itself, by continuing the same process, in a condition
to recognise and define all rights; that is to say, all
applications of the principle to social relations; an attempt
which is most dangerous because it is impossible.
{430}
Conditions Of Realizing Right.
It is not granted to man thus to discern, beforehand and at a
glance, the whole extent of the rational laws which ought to
regulate the relations of men both among themselves and with
society in general. Doubtless, in each of these relations and in
all the vicissitudes which they undergo, there is a principle
which is their legitimate rule, and which determines rights; and
it is this principle which must be discovered. But it is in the
relation itself, over which this principle should hold sway, that
it is contained and may be discovered; it is intimately connected
with the nature and object of this relation, and these are the
first data that must be studied in order to arrive at a knowledge
of the principle. The philosophic school almost constantly
neglects this labour. Instead of applying itself to the discovery
of the true rights which correspond to the various social
relations, it arbitrarily constructs rights while pretending to
deduce them from the general and primitive principle of right; an
attempt the reverse of philosophical, for special rights are
applications, not consequences logically deduced from this
principle; which is perfectly exhibited in each particular case,
but which does not contain within itself all the elements or all
the data required for the discovery of the right in every case.
The second error of the philosophic school is that of mistaking
the conditions under which right may be realised, that is to say,
under which it may become associated with facts, so as to
regulate them.
It has long been said that two powers, right and might, truth and
error, good and evil, dispute the mastery of the world. What is
not so often said, though it is no less true, is this--they
dispute for it because they simultaneously possess it, because
they co-exist in it everywhere at the same time. These two
powers, so opposite in their nature, are never separated; in
fact, they meet and mingle everywhere, forming by their
co-existence and conflict that sort of impure and troubled unity
which is the condition of man on earth; and which is reproduced
in society as well as in individuals. All mundane facts bear this
character: there are none that are completely devoid of truth,
justice, and goodness; none that are wholly and purely right,
good, or true. The simultaneous presence, and at the same time
the struggle, of might and right, forms the primitive and
dominant fact which is reproduced in all other facts.
{431}
Amalgamation Of Might And Right.
The philosophical school habitually loses sight of this intimate
and inevitable amalgamation of might and right in all that exists
and takes place upon the earth. Because these two powers are
hostile, it thinks them separate. When it recognises some great
violation of right in an institution, a power, or a social
relation, it concludes that right is utterly absent from it; and
imagines, at the same time, that if it can succeed in laying hold
of this fact, and shaping and regulating it according to its own
will, it will secure the undisputed sway of right in that fact.
Hence the contempt, one might almost say the hatred, with which
it judges and treats facts. Hence also, the violence with which
it pretends to impose upon them those rules and forms which
constitute right in its eyes: what regard is due to that which is
only the work of might? what sacrifices are not due to that which
will be the triumph of right and reason? and the firmer the minds
and the more energetic the characters of these reasoners, the
more will they be ruled and the further misguided by this method
of viewing human things. Facts past and present do not deserve so
much disdain, nor do future ones merit so much confidence. We do
not here adopt the views of the sceptics, nor would we regard all
facts as equally good or bad, and equally invested with or
destitute of reason and right. Nothing can be more contrary to
our opinion. We firmly believe in the reality and legitimacy of
right, in its struggle against might, and in the utility as well
as the moral obligation of sustaining right in this eternal but
progressive combat. We only ask that, in this struggle, nothing
may be forgotten, and nothing confounded; and that indiscriminate
attacks may not be made. We ask that because a fact may contain
many illegitimate elements, it is not therefore to be supposed
_à priori_ to contain nothing besides, for such is not the
case. Right exists everywhere more or less, and everywhere right
ought to be respected. There is also more or less falsity and
incompleteness in the speculative idea which we form to ourselves
of right, and there will be unjust force and violence employed in
the strife in which this idea is made to prevail, and in the new
facts which will result from its triumph. This is not saying that
the combat ought to be suspended, or that the triumph ought not
to be pursued. It is only necessary truthfully to recognise the
condition of human things, and never to lose sight of it, whether
the question be one of judgment or of action.
{432}
Errors Of The Philosophic School.
This is what the philosophic school can rarely consent to do.
Taking right for the point at which it sets out, and also that at
which it aims, it forgets that facts subsist between these two
extremes--actual and existing facts, independent data; a
condition which of imperative necessity must be submitted to,
when the extension of right is sought after, since these facts
are the very matters to which right must be applied. This school
begins by neglecting one of the fundamental elements of the
problem which it has to solve; it falls into reverie, and
constructs imaginary facts, whilst it ought to be operating on
real facts. And when compelled to quit hypotheses, and deal with
realities, it becomes irritated at the obstacles which it meets,
and unreasonably condemns the facts which throw them in its way.
Thus, through having desired impossibilities, it is led to forget
a part of that which is actually true. Society at every period
swerves more or less from the general type of right; that is to
say, the facts which constitute its material and moral condition
are more or less regulated according to right, and also become in
a greater or less degree susceptible of receiving a more absolute
form, a more perfect rule, and of continually assimilating more
closely to reason and truth; and this it is which must be
absolutely studied and understood before passing a judgment on
these facts, or endeavouring to effect their change and
improvement. Perfection is the aim of human nature and of human
society; perfection is the law of their existence, but
imperfection is its condition. The philosophic school does not
accept this condition; and is thus misled in its endeavours
towards attaining perfection, and even in its own idea of the
perfection to which it aspires.
Errors Of The Historic School.
The historic school possesses other characteristics, and falls
into different errors. With the utmost respect for facts, it
easily allows itself to be induced to attribute to them merits to
which they are not entitled; to see more reason and justice, that
is to say, more _right_, in them than they really contain,
and to resist even the slightest bold attempt to judge and
regulate them according to principles more conformable to general
reason.
{433}
It is even inclined to deny these principles, to maintain that
there is no rational and invariable type of right that man can
take for a guide in his efforts or his opinions: an error of
great magnitude, and sufficient to place this school,
philosophically considered, in a subordinate rank. What then is
perfection, if there is no ideal perfection to be aimed at? What
is the progress of real rights, if there is no rational right to
comprehend them all? What is the human mind, if it is incapable
of penetrating far beyond actual realities in its knowledge of
this rational right? and how can it judge of them except by
comparing them with this sublime type, which it never holds in
full possession, but which it cannot deny without abnegating
itself, and losing every fixed rule and guiding thread?
Doubtless, facts command respect, because they are a condition, a
necessity; and they deserve it, because they always contain a
certain measure of right. But the judgment ought never to be
enslaved by them, nor should it attribute absolute legitimacy to
reality. Is it so difficult, then, to perceive that evil is evil
even when it is powerful and inevitable? The historic school
constantly endeavours to evade this confession. It tries to
explain every institution, and to abstain from giving judgment
upon them, as if explanation and judgment were not two distinct
acts, which possess no right over one another. It never suffers
the institution of a comparison between the real state of any
society and the rational state of society in general; as if the
real, or even the possible, were the limit of reason; as if, when
judging, reason should be deposed, because when applied it is
compelled to undergo conditions and to yield to obstacles which
it cannot conquer. The historic school would be perfectly right
if it confined itself to the careful study of facts, bringing to
light that portion of right which they contain, and searching out
the degree of perfection which they are capable of receiving, and
if it restricted itself to maintaining that it is not easy to
distinguish real rights, unjust to condemn facts _en masse_,
and impossible and dangerous to neglect them altogether. But when
it undertakes to legitimise facts by facts; when it refuses to
apply the invariable law of justice and rational right to all, it
abandons every principle, falls into a sort of absurd and
shameful fatalism, and disinherits man and society of that which
is most pure in their nature, most legitimate in their
pretensions, and most noble in their aspirations.
{434}
Comparison Of The Two Schools.
To sum up, the philosophic school possesses the merit of
everywhere acknowledging the principle of right, and adopting it
as the unchangeable rule of its judgment on facts. Its errors
consist in its knowledge of facts being slight, imperfect, and
precipitate; and in not allowing to facts the power which is
inseparable from them, and the degree of legitimacy which they
always contain. The historic school is better acquainted with
facts, appreciates their causes and consequences more equitably,
effects a more faithful analysis of their elements, and arrives
at a more exact knowledge of particular rights as well as at a
more just estimate of practicable reforms. But it is deficient in
general and fixed principles: its judgments fluctuate according
to chance; and accordingly it almost always hesitates to come to
a conclusion, and never succeeds in satisfying the mind, which
the philosophic school, on the contrary, always impresses
strongly, at the risk of leading it astray.
We have insisted on the distinctive characters and opposite
errors of these two schools, because we meet with them
unceasingly when investigating how institutions and social facts
have been appreciated and understood. Of this we have given an
example by indicating the two points of view under which the
division of the legislative power into two Chambers has been
commonly considered. The historic school approves and recommends
it; but it often founds its reasons on illegitimate facts, and
adheres too absolutely to the forms which this institution has
assumed in the past, while it refrains from attaching itself to
any rigorous and rational principle. The philosophic school has
long maintained, and many of its disciples still believe, that
this is an accidental and arbitrary institution, which is not
founded on reason and the very nature of things.
Let us now consider this institution in itself, after having
disentangled it from that which, in England, has related merely
to its actual origin, and to the local circumstances in the midst
of which it took its rise.
{435}
Origin Of The House Of Peers.
It is beyond doubt that the immense inequality of wealth and
credit,--in a word, of power and social importance, which existed
between the great barons and the other political classes of the
nation, whether freeholders or burgesses, was in England the sole
cause of the institution of the House of Peers. No political
combination or idea of public right had anything to do with its
formation. The personal importance of a certain number of
individuals, in this case, created their right. Political order
is necessarily the expression, the reflection, of social order.
In this stage of civilisation especially, power is indisputably
conveyed from society into the government. There was a House of
Peers because there were men who, bearing no comparison with
others, could not remain confounded with them, exercising only
the same rights, and possessing no greater amount of authority.
To the same cause must be ascribed several of the leading
characteristics of the House of Peers; the hereditary
transmission of social importance, wealth, and power (the result
of the feudal system as regards property), carried with it the
inheritance of political importance. This is proved by the fact,
that originally the sole hereditary peers were the barons by
feudal tenure. Hereditary right did not originally belong to the
_barons by writ;_ although individually summoned to the
Upper House, they exercised, when sitting there, the same rights.
The judicial functions of the House of Peers also had the same
source. At first they belonged to the general assembly of the
direct vassals of the king. When the greater number of these
vassals ceased to attend that assembly, the great barons who
alone attended, continued to exercise nearly all its functions,
and especially its judicial authority. Of this they continued to
hold possession when the knights re-entered Parliament by means
of election. Thus, a right, which originally devolved upon the
general assembly of the political nation, became concentrated in
the new House of Peers, at least in every case unaffected by the
new jurisdictions instituted by the king. On examining in all its
details the political part now performed in England by the House
of Peers, it will be found that a great number of its attributes
are only the results of ancient facts, that they are not inherent
in the institution itself, but solely derived from the social
position of the great barons; and at the same time it will be
perceived that all these facts are connected with the general and
primitive fact of the great inequality then subsisting between
the great barons and the citizens.
{436}
Advantages Of A House Of Peers.
As this inequality really existed, and could not fail to
re-appear in the government, it was very fortunate for England
that it assumed the form of the House of Peers. Inequality is
never more oppressive and fatal than when displayed solely for
its own advantage, and in an individual interest. This is the
invariable result when the upper ranks are dispersed over the
country, and are brought into contact with, and into the presence
of, their inferiors alone. If, instead of uniting in the House of
Peers to exercise, as members of that assembly, the power they
possessed over society, the great barons had each remained on his
own estates, their superiority and power would have weighed
heavily on all their vassals and farmers, and social emancipation
would have been very much retarded. Every baron would then have
had to do with his inferiors alone. In the House of Peers, on the
contrary, he had to deal with his equals; and to obtain influence
in that assembly, and effect his will, he was obliged to have
recourse to discussion, to the advancement of public reasons, and
to constitute himself the exponent of some interest superior to
his own personal interest, and of opinions around which it would
be possible for men to unite together. Thus men, who, had they
remained isolated on their domains, would have acted only upon
inferiors and for their own interest, were constrained, when they
had met together, to act upon their equals, and for the interests
of the masses, whose support alone could increase their power in
the frequent struggles which this new situation imposed upon
them. Thus by the single fact of its concentration, the high
feudal aristocracy insensibly changed its character. Each of its
members possessed rights originally derived entirely from his own
power, which he came to the House of Peers to exercise solely for
his own interest; but when once brought together into each
other's presence, all these individual interests experienced the
necessity of seeking new means of obtaining credit and authority
elsewhere than in themselves. Personal powers were constrained to
sink themselves into a public power. An assembly composed of
individual superiorities, jealous only to preserve and increase
their power, became gradually converted into a national
institution, compelled to adapt itself, in many points, to the
interest of all.
{437}
Results Of Its Establishment.
As I have elsewhere had occasion to say, one of the greatest
vices of the feudal system was to localise sovereignty, and to
bring it everywhere, so to speak, to the door of those over whom
it was exercised. The formation of the House of Peers weakened
this evil in England, and thus, at least in a political point of
view, struck a deadly blow at feudalism.
Further, the great barons thus formed into a body, had the power
and duty of defending in common their rights and liberties
against the royal power; and their resistance, instead of
consisting in a series of isolated wars, as was the case in
France, immediately assumed the character of a collective and
truly political resistance, founded on certain general principles
of right and liberty. Now there is something contagious in these
principles and their language, which very soon extends them
beyond the limits within which they are at first enclosed. Right
calls forth right, liberty engenders liberty. The demands and
resistance of the great barons provoked similar demands and
resistance in other classes of the nation. Without the
concentration of the high aristocracy in the House of Peers, the
House of Commons would probably have never been formed. From all
these facts flows this consequence, that when great inequality
actually exists in society between different classes of citizens,
it is not only natural but useful to the progress of justice and
liberty, that the superior class should be collected and
concentrated into a great public power, in which individual
superiorities become placed on a more elevated level than that of
personal interest; they learn to treat with their equals, to meet
with opposition, and to furnish an example of the defence of
liberties and rights; while by exposing themselves in some sort
to the view of the whole nation, they experience by this fact
alone the necessity of adapting themselves, to a certain extent,
to its opinions, sentiments, and interests.
{438}
Is A House Of Peers Advantageous?
But, it may be said, a social inequality of sufficient magnitude
to occasion the formation of such a power, is neither a universal
fact, nor one in itself good and desirable; and under this point
of view the House of Peers, as it is constituted in England, was
simply a remedy for an evil. There can be no doubt that the
accumulation of land, wealth, and positive power which belonged
to the great barons, and the securing of all these social
advantages, were the result of violence, and as contrary to the
internal tendency as to the rational principles of society in
general. If then the division of the legislative power into two
Chambers is derived only from such causes, it might in certain
cases be inevitable and even beneficial; but where these causes
are not met with, nothing would recommend it, or ought to make
its necessity a matter of regret. The equitable and natural
distribution of social advantages, their rapid circulation, the
free competition of rights and powers--this is the object, as it
is the rational law of the social condition. An institution
which, in itself and by its nature, is opposed to this object and
derogates from this law, contains nothing which ought to lead to
its adoption when not imposed by necessity.
Is this the case with regard to the division of the legislative
power into two Chambers, setting aside those particular
characteristics which, in the English House of Peers, are derived
solely from local and accidental facts, and cannot be referred to
rational causes of universal validity?
Before considering this question in its relation to the
fundamental principle of representative government, some
observations are necessary.
{439}
Two Tendencies In Society.
It is by no means true, that similar inequalities to those which
produced the preponderance of the great barons in England, and a
permanent classification of society in conformity to these facts,
are natural conditions of the social state. Providence does not
always sell her benefits at so high a price to the human race,
and has not rested the very existence of society on this
denomination, this immovable constitution of privilege. Reason
must believe, and facts prove, that society can not only subsist,
but is even better off in another condition; in a condition in
which the principle of free competition exercises more dominion,
and where the different social classes are more nearly allied. It
is certain, however, that there exist in society two tendencies,
equally legitimate in their principle, and equally salutary in
their effects, although in permanent opposition to each other.
The one is the tendency to the production of inequality, the
other, the tendency to maintain or restore equality between
individuals. Both are natural and indestructible: this is a fact
which requires no proof, the aspect of the world displays it
everywhere; and if we look within, we shall perceive it in
ourselves. Who does not desire, in some respect or another, to
raise himself above his equals? and who would not also wish, in
some particular, to bring down his superiors to an equality with
himself? These two tendencies, considered in their principle, are
equally legitimate: the one is attached to the right of the
natural superiorities which exist in the moral as well as in the
physical order of the universe; the other, to the right of every
man to that justice which desires that no arbitrary force should
deprive him of any of the social advantages which he possesses,
or might acquire, unaided and without injury to his fellows. To
prevent natural superiorities from displaying themselves, and
exercising the power that belongs to them, is to create a violent
inequality, and to mutilate the human race in its noblest parts.
To enslave men in regard to those rights which are common to all,
by reason of the similitude of their nature, to unequal laws
imposed or maintained by force, is to insult human nature and to
forget its imperishable dignity. In fine, these two tendencies
are equally salutary in their effects: without the one, society
would be inert and lifeless; without the other, might alone would
dominate, and right would for ever be suppressed. In considering
them as respects that which is legitimate and moral in each, let
us ask what is this tendency to inequality but the desire to
elevate ourselves, to extend our influence, and to bring to light
and effect the triumph of that portion of moral power which is
naturally placed by the will of God the Creator, in each
particular individual? and is it not this impulse which
constitutes the life and determines the progress of the human
race? On the other hand, what is this tendency to equality except
resistance to force, to capricious arbitrary wills, and the
desire to yield obedience only to justice and true law?
Doubtless, in both these tendencies, the bad as well as the the
good parts of our nature display themselves: there is a taint of
insolence in the desire of self-elevation, and of envy in the
passion for equality. Injustice and violence may be employed
either to abase superiors or to surpass equals; but in that
conflict of good and evil, which is everywhere the condition of
man, it is not the less true that the two tendencies of which I
am speaking constitute the very principle of social life, the
twofold cause which makes the human race advance in the career of
improvement, which leads it back when it wanders astray, and
urges it forward when perverse powers or wills seek to arrest its
course.
{440}
Tendency To Inequality.
The tendency to inequality is then a fact inevitable in itself,
legitimate in its principle, and salutary in its effects, if it
is restrained by the law of competition, that is to say, beneath
the condition of a permanent and free struggle with the tendency
to equality, which, in the order of Providence, appears to be the
fact by which it is destined to be balanced. In every country
there will always arise and exist a certain number of great
individual superiorities, who will seek an analogous place in
government to that which they occupy in society. They ought not
to obtain it for their personal interest, nor to extend it beyond
what comports with the public interest, nor should they retain it
longer than they possess the title in virtue of which they
assumed it, that is to say, their actual importance, nor should
they preserve this title by means violative of the principle of
free competition, and the maintenance of the rights which are
common to all. All this is indubitable, but, this being allowed,
there will still remain the necessity of introducing and
concentrating among the superior powers all the great
superiorities of the country, in order to engage them in the
transaction of public affairs, and in the defence of the general
interests.
This, as we have seen, is the sole object of the representative
system: its precise purpose is to discover and concentrate the
natural and real superiorities of the country, in order to apply
them to its government. Now, is it good in itself, and in
conformity with the fundamental principle of this system, to
apply only one method of seeking out these superiorities, and to
gather them all into a single voting urn? that is to say, must
they be united in one single assembly, formed upon the same
conditions, after the same tests, and by the same mode? We now
reach the pith of the question.
{441}
Opposition To Absolute Power.
The principle of the representative system is the destruction of
all sovereignty of permanent right, that is to say, of all
absolute power upon earth. The question of what is now called
_omnipotence_ has at all times been agitated. If by this is
understood an actually definitive power, in the terms of
established laws, such a power always exists in society, under a
multitude of names and forms: for wherever there is a matter to
be decided and completed, there must be a power to decide and
complete it. Thus, in the family, the father exercises the power
of definitively determining, in certain particulars, the conduct
and destiny of his children; in a well regulated municipality,
the municipal council definitively enacts the local budget; in
civil trials, certain tribunals give final judgment upon cases
submitted to their decision; and in the political system,
electoral omnipotence belongs to the electors. Definitive power
is thus disseminated through the social state, and is necessarily
met with everywhere. Does this imply that a power ought somewhere
to exist, which possesses omnipotence by right, that is to say,
which has the right to do anything it pleases? That would be
absolute power; and it is the formal design of the representative
system, as well as the object of all its institutions, to provide
against the existence of such a power, and to take care that
every power shall be submitted to certain trials, meet with
obstacles, undergo opposition, and, in fine, be deprived of sway
until it has either proved its legitimacy, or given reason for
presuming it.
There is not, then, and there cannot be, any omnipotence by
right, that is to say, any power which should be allowed to say:
"that is good and just because I have so decided it;" and every
effort of political science, every institution, ought to tend to
the prevention of such a power being anywhere formed; and should
provide that the actual omnipotence which exists under so many
names in society, should everywhere meet with restraints and
obstacles enough to prevent its conversion into an omnipotence by
right.
Until the summit of society is reached, and while those powers
only are constituted, above which other permanent powers will be
placed for the purpose of controlling them, and with power to
enforce their authority, this end appears easy to attain.
{442}
Bulwarks Against Absolute Power.
Judicial power, municipal power, and every second class power may
be definitive without much danger, because if they are abused in
a manner likely to become fatal, the legislative or executive
power will be there to repress them. But we must necessarily come
at last to the supreme power, to that power which superintends
all others, and is not itself ruled or restrained by any visible
and constituted power. Shall the right of omnipotence appertain
to this? Certainly not, whatever may be its form or name. It
will, however, be always prone to aspire to it, and able to usurp
it, for in the political system it possesses omnipotence, and of
this it cannot be deprived; for in reference to general
interests, as well as to local and private interests, a
definitive power is a necessity.
Here then, all the foresight of the politician ought to be
displayed: he will need all his art and all his efforts, to
prevent actual omnipotence from asserting its inherent
rightfulness, and general definitive power from becoming absolute
power.
This result is endeavoured to be secured by a variety of means:
I. by recognising the individual rights of citizens,--the
effect of which is to superintend, control, and limit this
central supreme power, and constantly to subject it to the law
of reason and justice to which it ought to be subordinated;
this is the object of the jury, of the liberty of the press,
and of publicity of all kinds:
II. by constituting, in a distinct and independent way, the
principal powers of the second class, such as the judicial and
municipal powers; on such a plan that these being themselves
repressed and restrained when necessary by the central power,
may restrain and repress it in their turn if it should attempt
to become absolute:
III. by organising the central power itself in such a manner as
to make it very difficult for it to usurp rightful omnipotence,
and to provide that it shall meet with such oppositions and
obstacles within itself as will not admit of its attaining
actual omnipotence except under laborious conditions, the
accomplishment of which gives ground to presume that it does in
effect act in accordance with reason and justice; that is to
say, that it possesses legitimacy.
{443}
Secret Of Political Liberty.
This last description of means is the only one connected with the
question that now occupies our attention. The division of the
legislative power into two Chambers has precisely this object. It
is directed against the easy acquisition of actual omnipotence at
the summit of the social system, and consequently against the
transformation of actual omnipotence into rightful omnipotence.
It is therefore conformable to the fundamental principle of the
representative system, and is a necessary consequence of it.
Why is it undesirable that the legislative and executive powers,
that is to say, the entire supreme power, should reside either in
one man or in a single assembly? why does tyranny always spring
from these two forms of government? Because it is in the nature
of things, that a power which has no equal should think itself
rightfully sovereign, and should very soon become absolute. It
has happened thus in democracies, aristocracies, and monarchies;
wherever actually sovereign power has been conferred upon a
single man, or a single body of men, that man, or that body, has
assumed to be rightfully sovereign; and more or less frequently,
and with greater or less violence, it has exercised despotism.
The art of politics, the secret of liberty is, then, to provide
equals for every power for which it cannot provide superiors.
This is the principle which ought to preside in the organisation
of the central government: for on these terms only can the
establishment of despotism at the centre of the State be
prevented.
Now if the legislative power is entrusted to a single assembly,
and the executive power to one man, or if the legislative power
is divided between one assembly and the executive power, is it
possible for each of these powers to possess sufficient force and
consistence to admit of the necessary equality between them, that
is to say, to secure that neither shall become the sole and
undisputed sovereign power? Such an example has never been
witnessed: wherever the central power has been thus constituted,
a struggle has arisen, which has resulted, according to the
times, either in the annihilation of the executive power by the
legislative assembly, or of the legislative assembly by the
executive power. Some countries have been governed by a single
assembly, others by several assemblies, of which some have been
aristocratic and others democratic; while all have contested with
each other for the sovereignty. These various forms of government
have given rise either to tyranny or to continued commotions, and
have nevertheless endured. But a government in which the
legislative assembly and the executive power have remained
distinct, preserving their personality and their independence,
and reciprocally limiting each other, is a phenomenon without
example, either in antiquity or in modern times. One of these
powers has always speedily succumbed, or been soon reduced to a
state of subordination and dependence equivalent to nonentity, at
least as regarded the essential purposes for which it was
instituted.
{444}
Division Of The Central Power.
This could not fail to be the case. Equality is impossible
between powers which are completely dissimilar, either in their
nature, or in their means of obtaining power or credit. The
dominion of one person, that is to say, the pure monarchical form
of government, derives its springs and means of action from
certain dispositions of human nature, and certain conditions of
society. The full and exclusive rule of a single assembly derives
the same from other dispositions and other social circumstances;
according as one or other class of these circumstances
predominate, kings have abolished assemblies, and assemblies have
overthrown kings. But the co-existence of these two systems of
government, when confronted with each other and acting in direct
opposition, is impossible. They do not then act as a restraint
upon each other, but they wage a war of extermination: such an
event has accordingly never been met with except in revolutionary
times: it may possibly have been an unavoidable condition of such
epochs; but then it has always involved one or other of these
forms of despotism: it has never become the basis of a free and
regular government.
When it is once admitted that the division of the central power
is indispensable, in order to prevent all usurpation of rightful
omnipotence, or, at least, to render such usurpation infrequent
and difficult, it necessarily follows that this division ought to
be effected in such a way that the resulting powers shall be
capable of regular co-existence, that is to say, of mutually
restraining, limiting, and compelling each other to seek in
common for that reason, truth, and justice, which ought to
regulate their will and preside over their actions. It is
essential that neither of these powers should elevate itself so
much above the others as to be able to throw off their yoke; for
the excellence of the system consists precisely in their mutual
dependence, and in the efforts which it imposes on them to secure
unanimity. Now there can be no mutual dependence, except between
powers which are invested with a certain degree of independence,
and with strength enough to maintain it.
{445}
Its Relation To Representative Government.
The division of the central power, or of the actual sovereignty,
between the executive power and two legislative assemblies is,
therefore, strictly derived from the fundamental principle of the
representative system; or rather it is the sole constitutional
form which fully corresponds to this principle, and guarantees
its maintenance, since this is the only form which, by providing
equals for powers which admit of no superiors, prevents them all
from claiming and usurping rightful sovereignty, that is to say,
absolute power.
Why has this truth been so frequently forgotten? why has this
constitutional form been so often repudiated by men who,
nevertheless, desired to establish representative
government?--Because they have forgotten the principle of this
form of government. At the very moment when they were directing
their efforts against absolute power, they have imagined that it
legitimately existed somewhere; and they have attributed it to
society itself,--to the entire people. They have thus proved
wanting in consistency and courage in their opposition to
absolute power; and either have not known, or have not dared, to
pursue it wherever it might be found; to leave it no refuge; to
denounce and banish it under every possible name and form. Thus,
admitting the existence of one sole sovereign, naturally and
eternally legitimate, they have also been obliged to admit an
undivided representation of this undivided sovereign. The
sovereignty of the people, thus understood, necessarily carries
with it the unity of the legislative power: and when tyranny has
sprung from it, when the lessons of experience have led men to
seek other combinations, when it has been considered right to
divide the legislative assembly, it has been done with the
assertion, that such a step was contrary to the principle of
representative government, but necessary: that principles cannot
rigorously be followed, and that it is necessary to believe in
the theory, but not to practise it. Such language is an insult to
truth, for truth never contains evil; and when evil does appear
anywhere, it arises not from truth but from error.
{446}
If the consequences of a principle are fatal, it is not because
the principle, though in itself true, is not applicable, but
because it really is not true. It has been said by the advocates
of divine right: There is only one God; there ought therefore to
be only one king; and all power belongs to him because he is the
representative of God. The advocates of the sovereignty of the
people say: There is only one people; there ought therefore to be
only one legislative assembly, for that represents the people.
The error is the same in both cases, and in each instance it
leads equally to despotism. There is only one God, that is
certain: but God exists nowhere upon the earth, for neither is
any man nor is the entire people God, nor do any perfectly know
his law, or constantly desire it. No actual power, then, ought to
be undivided, for the unity of actual power supposes a plenitude
of rightful power which nobody possesses or can possess.
Good Effects Of This Division.
Far, then, from the division of legislative power being a
derogation from the principles of political liberty, it is, on
the contrary, in perfect harmony with these principles, and is
specially directed against the establishment of absolute power.
Having this [thus?] established the principle, it would be easy
to consider it in practice, and to demonstrate its good effects.
It would be easy to prove that it is indispensible for realising
the responsibility of the executive power; for curbing inordinate
ambition, and turning every kind of superiority to the profit of
the State; for preventing fundamental institutions, the public
rights of citizens, and all the higher branches of legislation,
from being treated as simple measures of government, and made
subject to the instability of political experience: but these
considerations would lead me too far; I wished to establish this
constitutional form in principle, because it is owing to the want
of such foundations that it has long been regarded with mistrust
and doubt by many enlightened men. Its utility is never disputed;
its good results are acknowledged; but men are generally ignorant
how it can be made to agree with the general principles of a free
government; and it has been found, not without reason, that these
principles would be weakened by any derogation from them. In
times when the human race is subject to regenerative influences,
empiricism is never the ruling spirit: man then requires some
rational and rigorous principles which may furnish a solution to
every difficulty; and he mistrusts experience when he finds her
counsels at variance with those primitive axioms which his reason
has firmly adopted. This is our natural disposition: let us not
lament it, it characterises all great epochs; it is then only
necessary rigidly to examine principles themselves, and to grant
dominion to those ideas only which truly deserve it.
{447}
How Should It Be Effected?
A second question remains for consideration: it is, to ascertain
how the division of the legislative power into two houses ought
to be effected, and what should be the mode of formation, what
the attributes and the relations of the two assemblies. This, at
least to a great degree, is a question of circumstance, the
solution of which is almost entirely dependent upon the state of
society, its internal constitution, and the manner in which
wealth, influence, and intelligence, are distributed; this is
sufficiently indicated by what I have said about the causes that
led to the formation of the House of Peers in England. It is
evident, for example, that those countries in which there was no
such inequality as then existed between the different classes of
society, would be ill adapted for a division of the legislative
power based upon the same ideas, presenting the same
characteristics, and entailing the same consequences. Perhaps the
only general idea which can be laid down beforehand upon this
subject is, that the two assemblies should not proceed from the
same source, and be constituted in the same manner; in a word,
that they should not be exactly alike. The object of their
separation would then be defeated, for their similitude would
destroy the mutual independence which is the condition of their
utility.
{448}
Lecture XIX.
Power and attributes of the British Parliament in the
fourteenth century.
At its origin, and subsequent to its complete development, the
Parliament retained the name of the Great Council of the
kingdom.
Difference between its attributes and its actual power at these
two epochs.
Absorption of almost the entire government by the Crown;
gradual resumption of its influence by the Parliament.
Original Name Of The Parliament.
The first name borne in England by the assembly which was
succeeded by the Parliament, was, as you have seen, that of the
great council, the common council of the kingdom, _magnum
commune consilium regni_. The same name has also been given to
the Parliament in England for the last two centuries, when it is
desired to indicate completely the nature of its interference in
the government, and the part which it there performs. It is
called the great national council: the king governs in
Parliament, that is to say, with the advice and consent of the
great council of the nation.
Thus, both at the origin of the British government, and since it
has attained its complete development, the same idea has been
attached to the assembly, or union of the great public
assemblies; and they have both been designated by the same word.
At both these periods, the Parliament or the corresponding
assembly which preceded it, has never actually been, and, indeed,
could not be considered as a special power, distinct from the
government properly so called,--an accessory limited in its
action to a certain number of affairs or emergencies. The
government itself has resided in it. All superior powers have
there been concentrated and called into exercise.
{449}
The Great National Council.
At the origin of modern States, and especially of England, it was
very far from being thought that the whole and sole right of the
body of capable citizens, of the political nation, consisted in
consenting to the imposition of taxes; that they were otherwise
subjected to an independent authority, and were not authorized in
any way to interfere, either directly or indirectly, in the
general affairs of the State. Whatever these affairs might be,
they were their affairs, and they always occupied themselves with
them, when their importance naturally called for their
intervention. This is testified by the history of the Saxon
_Wittenagemot_, of the Anglo-Norman _Magnum Consilium_
and of all the national assemblies of the German peoples, in the
earliest period of their existence. These assemblies were truly
the great national council, deliberating and deciding on the
affairs of the nation in concert with the king.
When the representative system has achieved all its mighty
conquests, and borne its essential fruits, it has invariably
resorted to this; and returned in fact to the point from which it
set out. In spite of all distinctions and apparent limitations,
the power of Parliament has extended to everything, and has
exercised a more or less immediate, but in reality a decisive
influence on all the affairs of the State. Parliament has again
become the great national council in which all the national
interests are debated and regulated, sometimes by means of
anterior deliberation, at other times by those of responsibility.
When this first and last condition of free governments has been
recognized, it will be perceived that a very different
intermediate condition is to be met with, in which Parliament,
although sometimes styled the great national council, exercises
none of its functions, does not in a permanent manner interfere
in political affairs, and is not, in a word, the seat and
habitual instrument of government. During the whole of this
period, the government is separate from the Parliament, and
resides altogether in the royal power, around which are grouped
the principal members of the great aristocracy. The Parliament is
necessary in certain cases, but it is not the centre, the focus,
of political action. It exercises rights, defends its liberties,
and labours for their extension; but influences the government in
no decisive way: and principles which belong only to absolute
monarchy co-exist with the more or less frequent convocation of
the representatives of the nation.
{450}
Parliament In The Fourteenth Century.
Such was the state of the British Parliament, from its formation
in the thirteenth century until nearly the end of the
seventeenth. It was only at the end of the seventeenth century
that it resumed all the characteristics of a great national
council, and became once more the seat of the entire government.
The British Parliament was not, then, in the fourteenth century
either what the public assemblies of the German peoples had
originally been, nor what it is in the present day. In order
properly to comprehend what, at that period, was the nature of
its power and the scope of its influence, we must follow the
progress of events.
Common deliberation on common affairs is the principle, as well
as the most simple form, of political liberty. This principle
fully obtained at the infancy of modern nations. The national
assembly was the great council in which public affairs of every
kind were transacted. The king, the natural head of this council,
was required to convoke it, and to follow its advice.
By the dispersion of the nation over an extended territory, the
great national council became dispersed, and could not be
assembled: for some time, however, it retained its ancient form,
and the full extent of its ancient rights; but power is attached
to continual presence, and the great council became of rare
occurrence. Its numbers rapidly thinned; and it was very soon
composed of great landowners alone, whom wealth, political
importance, and that ambition which increases with the growth of
power, frequently assembled round the king. The government, which
formerly resided in the great national council, now resided only
in this new council, formed of the king and the great barons, who
became daily further separated from the body of the nation. The
same words continued to be employed: the king always governed
with his great council; but this was no longer the same assembly;
the government and the body of the nation had become disjoined.
The king endeavoured to free himself from the great barons, and
to govern alone; they resisted; and in the struggle in which they
engaged for the defence of their liberties or the preservation of
their influence in the central government, they were compelled to
seek support from the body of the nation, the freeholders and the
burgesses.
{451}
Admission Of The Commons.
The issue of this struggle was favourable to liberty; the
freeholders and the burgesses, who were become almost strangers
to the central government, renewed their connection with it by
the formation of Parliament; and this great council of the king,
which for two centuries had been continually contracting, once
more began to extend.
But at their return, the new citizens were very far from taking
the same place which their ancestors had occupied. The
development of inequality is always the first result of the
progress of the social state. Royalty had extended and fortified
its power; it now existed by itself, powerful and independent,
and claiming distinct rights proportionate to its own strength.
It was the same with the great barons, who also were strong and
independent in themselves. If it had been possible to congregate
in a single assembly all the descendants of those ancient Saxons
or Normans who had originally formed the great common council, a
very different spectacle would have been presented. Instead of
finding an assembly of warriors, not enjoying perfect equality,
certainly, but sufficiently equal for each to preserve his
personal importance, and to consider himself in a condition to
defend it; instead of seeing a chief at their head, too little
distinguished from the principal men among them to be powerful
without their adherence,--there would have been a king invested
with great wealth and power, mighty barons followed by a
multitude of retainers almost entirely dependent upon them, and a
body of citizens obliged to unite and act collectively for the
recovery of some influence over those measures which interested
them most directly. In this new composition of society and of the
national assembly, the deputies of the counties and boroughs were
very far from pretending to associate themselves with the
government properly so called, or from thinking to control or
direct the central power in all public affairs; several centuries
necessarily elapsed before their ideas could acquire so much
generality, and their interference in Parliament became so
comprehensive. They assembled there for the sole purpose of
defending themselves, and those whom they represented, against
the most crying abuses of power, against the violent and
arbitrary invasion of their persons and their possessions.
{452}
Vicissitudes Of The Parliament.
Discussing the demands for supplies that were addressed to them,
and presenting their complaints to the government against the
most perilous acts of injustice of the agents of the king or of
the great nobles, constituted the whole of their mission, and, in
their own opinion, the full extent of their rights. Their
personal importance was too trivial, and their intellectual
activity too limited, for them to imagine themselves called to
discuss and regulate the general affairs of the State. They
resisted power when it directly attacked them, or required great
sacrifices from them; but royalty and its prerogatives, the
ordinary council of the king, and his measures in regard to
legislation, peace and war, or general politics, in a word, the
government properly so called, were entirely beyond their
interference. They had not the power, or even the wish, to meddle
with such matters; it was all discussed and decided between the
king, his ministers, and the great nobles who were naturally
called to take part therein by the elevation and importance of
their social position.
Both the ancient assembly of the Saxon or Norman warriors, then,
and the existing Parliament, would be vainly sought for in the
Parliament of the fourteenth century. No violence is done to
facts: a new society had been formed which could only engender a
political order in accordance with its own character. Great
inequality prevailed, and this inequality would naturally
reappear between the powers to which it gave birth. The primitive
and simple unity which exists in an uncivilized community had
disappeared; the wise unity to which a state of civilised society
can elevate itself by the diffusion of wealth and intelligence,
was still far distant. There was a king, a House of Lords, and a
House of Commons: but there was not a Parliament in the political
sense which is now attached to that word.
The permanent co-existence of royalty and a great public council,
through all these vicissitudes of government and liberty, is an
important fact. This council, formed at first by the general
assembly of the nation, afterwards restricted to the great
barons, and speedily admitting within its circle the
representatives of other social conditions, has always been in
England the principal organ of the central government. The
English monarchy has never succeeded in isolating and
enfranchising itself therefrom.
{453}
Its Gradual Increase.
It has been narrowed or extended by reason of changes occurring
in society: but it has always constituted the condition and form
of the monarchy. Popular liberty, so to speak, has always
maintained a footing in the central power; the nation has never
been completely excluded from participation in its own affairs.
The progress of Parliament has been the progress of the
government itself. In vain was the House of Commons feeble and
inactive at its origin: it did exist, and it formed part of the
king's council; it was always present to embrace, in some
measure, every opportunity of extending its influence, and
aggrandising its position and the part it had to perform. In the
fourteenth century, its power was very limited, its attributes
very restricted, and its intervention in public affairs very
infrequent; but it was impossible that it should not daily
increase. In effect it did greatly increase from the time of
Edward I. to that of Henry VI. During the wars of the Red and
White Roses, the great feudal aristocracy destroyed itself by its
contentions. When Henry VII. ascended the throne, there no longer
existed a body of great barons capable of offering armed
resistance to the royal power. The House of Commons, though
strengthened, had not yet emerged from its condition of
inferiority, and was incapable of taking the place of the great
barons in resistance to royalty. Hence the Tudor despotism in the
sixteenth century, the only period at which the maxims of
absolute power have prevailed in England; but even in that very
century, the House of Commons daily penetrated further into the
government, until its power was fully revealed by the great
Revolution of the seventeenth century.
I have now given you a glimpse of the space between the period of
the definitive formation of the British Parliament, and that at
which it sought to obtain its entire dominion. In our subsequent
lectures we shall examine the principal phases in the development
of this great government during those three centuries.
{454}
Lecture XX.
Condition and attributes of the Parliament during the reign of
Edward II. (1307-1327).
Empire of favourites.
Struggle of the barons against the favourites.
Aristocratic factions.
Petitions to the king.
Forms of deliberations on this subject.
Deposition of Edward II.
Reign Of Edward I.
In order to explain the manner in which the British Parliament
was formed, I have found it necessary, up to this point, to
follow history step by step,--to enter into all the details, and
to collect all the facts, that might serve as proofs either of
its existence, or of its participation in public affairs. I have
now another object to attain, and I must therefore pursue another
course. The Parliament is now definitively formed; and if I were
to continue to narrate all the facts which relate to it, and to
keep a register, as it were, of all its acts, I should write the
history of the country, and not that of its institutions. What I
am seeking to describe, is the development of representative
government; and I shall avoid all questions unconnected with this
object. The extension which the Parliament received, the
revolutions which it underwent,--in a word, its personal and
internal life, will constitute the subject to which our attention
must be directed.
On considering the reign of Edward I. from a political point of
view, it is evident that, notwithstanding the agitations by which
it was disturbed, there was, during that reign, some wholeness
and unity in the exercise of power. Edward was a firm and capable
prince, who well knew how to concentrate and direct the various
forces of society; in him, the State possessed a centre and a
chief. Under Edward II., the English government lost all solidity
and unity: no intelligent and determined will presided over it;
the nation had no rallying-point; the string of the bundle was
broken; all forces and all passions were displayed at hap-hazard,
and came into conflict upon the interests of individuals or
factions.
{455}
Empire Of Favourites.
In such a state of things, what could the Parliament be? Nothing,
or next to nothing, unless it were an instrument of factions. The
body of barons was then, and long continued to be, the
preponderant portion of the assembly: the Commons, though strong
enough sometimes to defend themselves when their own interests
were at stake, were not sufficiently powerful to interfere, in a
decisive manner, in public affairs, and to become the centre of
the government. All matters were, therefore, arranged between the
court and the barons, or rather between the different factions
into which the body of barons was divided. The Commons appeared
in the train of one or other party, to give their alternate
triumphs the appearance of a national adhesion, but without ever
determining the course of events, or even modifying them in any
effectual manner. The supreme power and the country were a prey
to the conflicts and schisms of the high aristocracy.
In order clearly to demonstrate that such was the state of
institutions and of the central government at this period, it
will be sufficient to refer to the three principal events of this
reign.
Rebellions Of The Barons.
The first is the conflict which the English barons maintained
against the king, with regard to a favourite, Piers Gaveston,
whom, in spite of his father's advice, Edward II. had persisted
in retaining in his confidence. The favourite and his creatures
absorbed all the power and advantages of the court; and in 1311,
the barons, desiring their share of riches and favours, after
having attempted all other means for his overthrow, demanded his
dismissal with arms in their hands. Their enterprise was
evidently intended neither to promote the interests of the people
nor those of the king; it was a revolt of courtiers. They fought,
not to assert the inviolability of charters or rights, but to
obtain the employments and treasures of a favourite.
Nevertheless, they attempted to give a national colour to their
rebellion.
{456}
The plans and measures of the great rebel Parliament held at
Oxford during the reign of Henry III. were revived; Lords
Ordainers were appointed to reform the State; they bid for public
favour by the abolition of a few abuses; they enacted that the
possessors of landed property alone should be appointed sheriffs;
they limited the right of purveyance, which was held by the
crown; and they prohibited all grants of royal letters-patent
ordering the suspension of the regular course of justice. But
these were merely outward appearances intended to conceal the
selfish egotism of the great barons; their only object was to
make themselves masters of the royal authority, of the right of
appointing to the chief offices of state, and of the revenues of
the crown. They put Gaveston to death, and seized upon the whole
power. The representatives of counties and boroughs, who were
present in the Parliament by which these designs were executed,
gave their consent; but they were mere followers of the
rebellion, and had no influence upon the government. The great
barons, who came to Parliament in arms and accompanied by their
troops, had the entire management of everything in their own
hands.
Edward escaped from the tutelage imposed upon him by the
coalition of the barons, only to fall under the sway of two new
favourites, Hugh le Despencer, or Spencer, and his son. The
elevation of these two courtiers raised up against them a storm
similar to that which had overthrown Gaveston. The new rebellion
which broke out in 1321 is the second remarkable event of this
reign. It was first manifested by a sentence passed against the
two Spencers by the great barons of the realm. They passed it by
their own authority alone, without the concurrence either of the
Commons or of the king, and at the same time compelled the king
to grant them an amnesty for themselves and their adherents;
shortly afterwards, the civil war began, and the confederated
barons were overcome. Edward convoked a Parliament at York, in
1322, at which the Commons attended, and which repealed first the
sentence against the two Spencers, and afterwards all the
ordinances passed by the Lords Ordainers in 1311 and 1312, as
being contrary to the rights of the king, and to the laws and
usages of the country. Thus, whether the court or the rebels
prevailed, a Parliament always sanctioned their triumph, saving
only the ever-ready recourse to civil war, the only true means of
decision.
{457}
Deposition Of Edward II.
Moreover, it is evident that the riches which were amassed by
court favours and the exercise of royal power were a constant
subject of jealousy and faction., The petition presented to the
king in 1322 by Hugh Spencer the elder against the barons who had
condemned him, sets forth that they had devastated sixty-three of
his manors or domains in fifteen different counties,--that they
had carried off 28,000 sheep, 22,000 head of cattle, two
harvests, one from his barns and granaries, and one of standing
corn, 600 horses, a great quantity of provisions of all kinds,
and complete suits of armour to equip 200 men,--and that they had
moreover done damage, in his castles and lands, to the amount of
more than 30,000_l._ sterling. Such was then the wealth of a
great English baron; and herein resided an inexhaustible source
of rebellions.
A third event, the deposition of Edward II., presents a spectacle
of the same character as the two preceding occurrences. This was
the result of a new confederation of the barons, at whose head
the queen, Isabella, had placed herself. A Parliament, convoked
at Westminster, on the 7th of January, 1327, declared the
incapacity of the king, then a prisoner in Kenilworth Castle. A
deputation, composed of four bishops, two earls, four barons,
three deputies from each county, and several burgesses of London,
of the Cinque Ports, and of other cities, was sent to acquaint
him with the resolution of the Parliament, and formally to
renounce the oath of fidelity. This deputation received from
Edward II. his abdication in favour of his son Edward III., then
fourteen years of age, under whose name the dominant faction
expected to wield the supreme power to its own advantage.
Notwithstanding the interference of the Commons in this and the
preceding acts, it is clear that the whole affair was managed
between aristocratic factions influenced by personal interests,
and profiting by the king's incapacity to appropriate to
themselves the government and all its advantages. There is
nothing to indicate any progress of political institutions and
triumph of national liberties. The government of the barons,
after such scenes, was even more arbitrary and oppressive than
that of the king.
{458}
Progress Of The Parliament.
It is, nevertheless, a remarkable fact that, in all these
occurrences, the sanction of the Parliament was always regarded
as necessary, and as the only means of terminating and legalizing
the works of violence. The Parliament, or at least the House of
Commons, was merely a passive instrument in the matter; but it
was already thought impossible to dispense with its concurrence.
Now, as it is part of the nature of this instrument to serve the
cause of public liberties and to lead, sooner or later, to their
extension, every circumstance that augmented its importance and
established its necessity may be considered as a progress of the
representative system.
I will now bring under your notice the principal parliamentary
facts of this period, and inquire in what respects the principles
of a free government were manifested or introduced in them.
It was at this time that the Parliament decidedly became the
centre towards which all demands for the reform of abuses, the
redressing of grievances, the modification of laws, in a word,
all petitions, were directed; it had possessed this character
from its origin, but in a less extended measure. When the
Parliament, or rather the body of barons in Parliament assembled,
had begun once more to act as the great council of the king, a
host of applications which had previously never been made, or had
been addressed to the king alone, were addressed to the king in
Parliament, and became a subject for deliberation at its
meetings. Thus, in the Parliament held at Westminster, in 1315,
we find that 268 petitions were presented.
These petitions were of two kinds. Some were presented by the
Commons to the king in council, and had reference to demands or
complaints of general interest. Others were presented by
individuals, corporations, or towns, and had reference to private
or local interests. The former class gave birth to the right of
initiative; the latter to the right of petition. Both classes
were addressed to the king, in whom the actual power resided; and
upon whom, on this account, it devolved not only to provide for
the general necessities of the State, but also to do justice to
special interests.
{459}
Practice Regarding Petitions.
On the opening of each Parliament, a certain number of days were
fixed for the reception of petitions. A certain number of
persons, chiefly judges or councillors of the king, were
appointed to receive them, to investigate their nature, to
classify them according to their objects, to set aside those
which were to form the subject of discussion in the Parliament
itself, and finally to present them to Parliament. This
discussion was almost confined to the House of Barons, who were
supposed to form a great intermediary council between the privy
council of the king and the entire Parliament. The barons, when
assembled in the privy council, deliberated and decided upon the
demands of the Commons relative to matters of general interest.
If these demands referred to certain complaints against abuses of
the exercise of the royal power, or against the conduct of the
sheriffs, for example, the king answered them in his own name
alone, after having taking the advice of his privy council, of
the judges, or of the barons, according to circumstances. If the
petitions prayed for some interpretation or declaration of the
existing law, the answer was given in the same manner. If they
suggested the enactment of a new law, the king, when he judged it
convenient, proposed this law to the Parliament; but in early
times, this was very rarely the case; and when the petition had
once been presented, the Commons ordinarily had nothing further
to do with the matter than to receive the answer of the king.
As to those petitions which originated from individuals or from
bodies unconnected with the Parliament, and which related only to
matters of private interest, the meeting of Parliament was merely
chosen as the occasion of their presentation, because it was more
favourable than any other period for obtaining a reply. The royal
council decided upon all those petitions which did not require
the intervention of the barons or of the entire Parliament.
The presentation of petitions at this period is, therefore, a
very complex fact with which are connected not only the right of
petition to the Houses of Parliament, but also the right of
petition to the government generally, the right of initiative,
the jurisdiction of the Houses of Parliament, in short, a host of
institutions essential to the representative system, and each of
which it is necessary to consider separately. They all existed,
but in a confused and embryo state, in this affluence of
petitions of all kinds, which called into action very different
powers, then exercised indiscriminately.
{460}
This original confusion was, undoubtedly, one of the principal
causes of the universality of the power of the British
Parliament. We cannot now examine into all the institutions which
sprang from this source, and progressively disentangled
themselves, assuming a distinct form. The question of the right
of petition, in the sense which is attached to it at the present
day, is in itself deserving of our careful examination, and will
form the subject of our next lecture.
Conditions Of Granting Subsidies.
One particular fact attests the progress which the Commons were
beginning to make in the comprehension of their power and rights.
It is beyond doubt that, originally, the voting of supplies
always furnished them with an opportunity of obtaining some
concessions or the redress of their grievances; this is proved by
the history of English charters. But, in 1309, when granting
Edward II. a twentieth part of their moveable goods, they
expressly attached the condition that "the king should take into
consideration, and should grant them the redress of certain
grievances of which they had to complain." [Footnote 36]
[Footnote 36: These grievances were eleven in number, viz:
1. That the king's purveyors took all kinds of provisions
without giving any security for the payment;
2. That additional duties had been imposed on wine, on
cloth, and on other foreign imports;
3. That by the debasement of the coin, the value of all
commodities had been advanced;
4. That the stewards and marshals of the king's household
held pleas, which did not fall under their cognizance;
5. And exercised their authority beyond the verge, that is,
a circuit of twelve leagues round the king's person;
6. That no clerks were appointed, as they had been under
the last monarch, to receive the petitions of the Commons
in Parliament;
7. That the officers appointed to take articles for the
king's use in fairs and markets, took more than they ought,
and made a profit of the surplus;
8. That in civil suits, men were prevented from obtaining
their right by writs under the privy seal;
9. That felons eluded the punishment of their crimes by the
ease with which charters of pardon were obtained;
10. That the constables of the castles held common pleas at
their gates without any authority; and
11. That the escheators ousted men of their inheritances,
though they had appealed to the king's courts.
_Rot. Parl._ i. 441.]
These grievances had existed for a long while, and were
perpetuated for a considerable period afterwards; but the Commons
had begun to look them full in the face, and to insist year after
year upon their redress, as the only condition upon which they
would grant the supplies.
{461}
Statute Of 1322.
A statute passed in 1322, by the Parliament at York, which
revoked the sentence against the two Spencers, declared that
"thenceforward all laws respecting the estate of the crown, or of
the realm and people, must be treated, accorded, and established
in Parliament by the king, by and with the assent of the
prelates, earls, barons, and commonalty of the realm." This is a
formal recognition of the right of the Commons to interfere in
the legislation of the country, and in all great public affairs.
Many English publicists attach great importance to this statute,
and regard it as the first act which officially sanctioned the
fundamental principle of the British government. This importance
appears to me to be exaggerated. The principle enunciated by this
statute had been put into practice on many previous occasions,
and a sufficiently clear knowledge was not then possessed of that
which constituted matter of legislation and general interest to
obtain conformity to it in practice. It is, therefore, far from
being the case that the Commons, from this time forth, always
exercised the power allotted to them by this statute.
Nevertheless, the official exposition of the principle indicates
progress in the ideas ol the times.
Whig And Tory Errors.
Such are the principal facts of the reign of Edward II., with
regard to the condition and action of the Parliament. They
contained no very important innovation, but they announce the
consolidation and natural progress of the institutions
definitively established under Edward I. Tory writers, taking
their stand upon the preponderant influence exercised by the
great barons during the reign of Edward II., have attempted to
cast doubts even upon the presence of the Commons at several of
the Parliaments of this period. Whig writers, on their side,
endeavour to deduce, from the proofs which are extant of the
presence of the Commons, an argument for their great importance
and decisive participation in events. The former are mistaken
when they deny the presence of the Commons in Parliament, from
their having been unable to find any writs of convocation
addressed to the sheriffs; for the writs which order the payment
of the salaries of the representatives are extant for nearly all
the Parliaments of this period.
{462}
The latter deduce too extensive results from the presence of the
Commons in the Parliament: it is beyond all doubt that the high
aristocracy, who sat in the House of Lords, then managed and
directed affairs almost entirely alone. The progress of liberty
is not so rapid; the most important point is, that it be certain.
Thenceforward it was certain, and it received great development
during the two following reigns.
{463}
Lecture XXI.
Of petitions during the early times of representative
government.
Regulations on the subject.
Transformation of the right of petition possessed by the Houses
of Parliament into the right of proposition and initiative.
Petitions ceased to be addressed to the king, and are presented
to Parliament.
Origin of the right of inquiry.
Necessity for representative government to be complete.
Artifices and abuses engendered by the right of petition.
Right Of Petition.
The circumstances which occur at the origin of an institution are
well calculated to make us acquainted with its nature. At such
periods, events are simple, and produce themselves spontaneously.
No effort has yet been made either to evade them or to change
their nature, and the state of society is not sufficiently
complicated to render it impossible to attain the object aimed at
by any but subtle and indirect means.
To say truth, in what does the right of petition consist? It is
the right to demand the reparation of an injury, or to give
expression to a desire. Such a demand must naturally be addressed
to the power which is capable of satisfying the desire or
repairing the injury,--which has authority, and power enough to
grant the prayer of the petition.
Accordingly, in the fourteenth century, all petitions, whether
they emanated from the two Houses of Parliament, or from
individuals unconnected with those Houses, whether they had
reference to general or private interests, were addressed to the
king. No one had any idea of petitioning the Houses themselves;
the king governed; in him resided both the right and the power to
redress public or private grievances, and to satisfy the
requirements of the nation. To him the barons, commons,
corporations, and citizens applied whenever they had need.
{464}
Presentation Of Petitions.
The king governed in his council: and of all his councils, the
Parliament was the most eminent and the most extensive. In
certain cases, the advice and acquiescence of the Parliament, as
a whole or in part, were necessary to the exercise of the royal
authority. The meeting of Parliament was, therefore, the natural
opportunity for the presentation of all petitions. It was, as it
were, the moment at which the nation and the government met face
to face, either to transact in common those affairs which
required their concurrence, or to make those reciprocal demands
of which they mutually stood in need. Private citizens naturally
availed themselves of this opportunity for presenting their own
petitions, either because the co-operation of the great powers of
the State was necessary to grant their prayers, or because they
referred to demands upon which the king was competent to decide
alone, but to which his attention would then be more effectually
directed, as they might receive support from the patronage of the
barons or deputies met in council with the king.
In all cases, it was to the king in his council, that is to say,
to the government itself, that petitions were addressed; and far
from the Houses of Parliament, after having received and examined
them, referring them to the government for decision, it was the
king who, by officers specially appointed for the purpose,
received and examined them, and afterwards called the attention
of both Houses to those with whose prayers he could not comply
without their sanction. All complaints and demands were thus
forwarded directly to the power entrusted with the duty of coming
to a definitive decision regarding them; and the Houses of
Parliament interfered subsequently only in certain cases, and
then as a necessary council.
Such was the primitive and natural fact. The progress of the
representative system, however, completely changed its course and
character.
We have seen that, in the fourteenth century, petitions were of
two kinds; first, those drawn up or presented to the king, by one
or both Houses, and relating to grievances of a more or less
general character; secondly, those addressed to the king by
corporations or citizens, and relating to collective or private
interests. We have now nothing further to do with the first class
of these petitions. As far as the Houses of Parliament are
concerned, they have become transformed into a right of
initiative, more or less efficacious and more or less direct.
This right, its importance and its forms, give rise to questions
of an entirely distinct character. At the present day, the
complaints or demands addressed by private citizens to the
legislative authorities, are alone called by the name of
petitions.
{465}
Assertion Of The Right Of Petition.
There is now no further question about the right of addressing
such demands to the executive power itself,--to the government
properly so called. No one thinks of contesting the right of
citizens to seek in this manner the redress of their grievances,
or the satisfaction of their desires. Nor that this right, in
itself so simple and incontestable, has not sometimes assumed
great political importance, and thereby occasioned animated
discussions. In 1680, Charles II., having ceased for several
years to convoke a Parliament, a great number of petitions were
addressed to him demanding its convocation. The king, by
proclamation, declared them seditious, and refused to receive
them; but the Parliament having met at last, the House of Commons
enacted, on the 27th of October, 1680;
"1. That it is, and ever hath been, the undoubted right of the
subjects of England to petition the king for the calling and
sitting of Parliaments, and redressing of grievances.
2. That to traduce such petitioning as a violation of duty, and
to represent it to his Majesty as tumultuous or seditious, is
to betray the liberty of the subject, and contribute to the
design of subverting the ancient legal constitution of this
kingdom, and introducing arbitrary power.
3. That a committee be appointed to enquire after all such
persons, that have offended against the right of the subject."
[Footnote 37]
[Footnote 37: Parliamentary History, vol. iv. p. 1174.]
A state of crisis could alone lead to such an attempt to destroy
the most natural of the right of citizens--the right of
addressing the government itself in order to make known to it
their desires--and the Charter, reasonably, neither sanctioned
nor limited it. The right to which it gave sanction, and which
alone now bears the name of the _right of petition_, is the
right of applying to the two Houses of Parliament to urge their
interference, either in some matter of general legislation, or
for the redress of private grievances. To this right the question
which we have now under consideration is restricted. We must
enquire how it became introduced into the representative system
of government, and in what respects the various forms which it
has successively assumed correspond to the various stages of the
development of that system.
{466}
Petitions To Parliament.
In fact, this right did not exist in the fourteenth century; that
is to say, nobody thought either of exercising or of demanding
it. The Houses of Parliament, and particularly the House of
Commons, were themselves the great public petitioner. They had
quite enough to do to present and obtain the reception of their
own demands, without incurring the labour of interfering on
behalf of private interests, which at that time were treated
generally with much less consideration. They were, moreover, too
slightly connected with the government thus to meddle with the
details of its action. They were neither the seat nor the centre
of power. Their assembly lasted only for a short period. The
king's answers to their own demands were ordinarily given only
during the next session. In such a state of things, it was
natural that all private petitions should go directly to the king
in council, for from that source alone could redress be expected.
When the Houses had acquired greater importance, sat for a longer
period, and interfered in all great public affairs--when, in
full and secure possession of their fundamental rights, they
began to apply them to practice instead of limiting their efforts
to defend their existence--when, in a word, they had acquired, in
public opinion and in reality, the consistency of public powers
associated in the government of the State, it became natural that
petitions should be presented to them against the abuses or
errors of that government which they were appointed to control.
The right of petition to the Houses of Parliament was then
regarded as a natural consequence of the right of petition to the
king. The Parliament was always considered and called the great
council of the king. This council, it is true, was habitually in
opposition and conflict with the government of the king, which
still remained exterior to it, and endeavoured to free itself
from its control: but ancient traditions retained their sway;
complaint was made to one part of the government against the
injuries committed by the other part. The new mode of petitioning
did not, therefore, appear extraordinary, and no attempt was made
either to authorize or prohibit it. It was brought into use
without opposition. [Footnote 38]
[Footnote 38: Mr. Hallam is of opinion that the interference
of the Commons in regard to petitions relating to matters of
private interest originated solely in this desire to repress
the encroachments of the Privy Council.
"From the first years of Henry V.," he says, "though not, I
think, earlier, the Commons began to concern themselves
with the petitions of individuals to the Lords or Council.
... Many of the requests preferred to them were such as
could not be granted without transcending the boundaries of
law. A just inquietude as to the encroachments of the
king's council had long been manifested by the Commons: and
finding remonstrances ineffectual, they took measures for
preventing such usurpations of legislative power, by
introducing their own consent to private petitions. These
were now presented by the hands of the Commons, and in very
many instances passed in the form of statutes with the
express assent of all parts of the legislature. Such was
the origin of private bills, which occupy the greater part
of the rolls in Henry V. and VI.'s Parliament."
(Hallam's Middle Ages, vol. ii. p. 224.)
Beginning from the reign of Edward III. (1322), or, as Mr.
Hallam thinks, from that of Edward II. (1310), we find both
Houses, at the opening of the session, each appoint a
committee for the purpose, not only of receiving, but of
examining petitions, in order to enquire into the truth of
the facts stated, before the petitions became the subject of
deliberation in Parliament. (Parliamentary History, vol. i.
p. 230.) It is doubtful whether the committees received
directly the petitions addressed to the king in council, or
whether those which fell under the cognizance of the
Parliament were referred to them by the officers of the king.
In 1410, we meet with an instance of a private petition,
addressed to the Commons, and transmitted by them to the
king, with their recommendation. (Report of the Lords
Commissioners, p. 362.) For the mode of the presentation of
petitions, both to the Privy Council, and to the House of
Lords, see Hallam's dissertation on the Privy Council, in the
second volume of his History of the Middle Ages.]
{467}
Right Of Initiative.
But when this practice was introduced, the Houses of Parliament
themselves had undergone great change of form, and received
considerable development, as regarded their internal
constitution, their proceedings, and their privileges. Instead of
those petitions which, at the outset, they had been accustomed to
present to the king, the right of initiative had been
substituted, and this right belonged to every member of either of
the two Houses of Parliament who might exercise it by bringing
forward, with such formalities and delays as were required by
usage, any motion with which he thought it fitting to occupy the
assembly.
{468}
Mode Of Presenting Petitions.
With the right of initiative was connected the right of enquiry
into all such facts or acts as appeared to the House of
sufficient importance to induce it to desire a thorough knowledge
of them, and afterwards to adopt a resolution regarding them,
either of prosecution or of censure, or simply to declare its
opinion. On coming before Houses invested with such rights,
petitions necessarily took another course than would have been
the case had those rights been wanting. And in the first place,
it passed into a custom that they must be presented by a member;
this custom was not, originally, a precaution against the abuse
of the right of petition, but the natural form of its exercise.
As every member enjoyed the right to call the attention of the
House, by motion, to any particular subject, it was natural that
he should make use of this right whenever he became the exponent,
to the House, of the demands of his constituents or his friends.
By this means, they acquired an authority which they could not
otherwise have obtained; the House was thus made to deliberate,
not upon the petition, but upon the motion of the member who had
presented it, and who had based upon it a proposition either for
an enquiry, or for an address, or for a prosecution, or for a
law, or for any other act which the House was entitled to
accomplish. And whatever this motion might be, it was subjected
to all the formalities and all the delays which, on every
occasion, regulated the debates and deliberations of the
assembly.
Thus invested with all the rights necessary for exercising over
the government, by one mode or another, the influence which
properly belonged to them, the English Houses of Parliament
regarded the petitions which were presented to them merely as an
opportunity for exercising this influence in virtue of these
rights. They did not act as a sort of patron placed between the
petitioners and the government from which the redress of the
grievance was definitively demanded; nor did they refer the
petition to the government, with a postscript of their own to
request the passing of any act of which they were unable to
superintend or compel the execution. After its presentation, they
no longer had anything whatever to do with the petition; if the
motion to which it had given rise were adopted, then began an act
of the House itself, accomplished with all the usual formalities,
and terminated by a resolution which specially belonged to it,
and which placed the government in presence of the
thoroughly-discussed and clearly-expressed opinion or will of the
assembly which shared with it in the exercise of the supreme
power in the nation.
{469}
Course Of The Right Of Petition.
When, by a further progress, the government found itself at last
obliged to fix its seat within the Houses of Parliament, when
they had become once more the great national council, discussing
and deciding public affairs in public, petitions also were
restored to their natural state, to their primary
condition,--that is to say, being addressed to the Houses of
Parliament, they were addressed to the king in council, to the
government itself, which consisted in the royal power, surrounded
by the parliamentary majority, and compelled to justify its
wishes and acts against the attacks of the opposition, which sat
in the same council, by virtue of the same title, and with the
same rights. What has been the consequence of this? Every
petition, when converted into a motion by a member of the House,
gives rise to a regular combat, conducted according to the usual
formalities, between the ministry and the opposition. The issue
of this conflict fully decides the fate of the petition, that is
to say, the result at which it aims; it has not to go elsewhere
in search of a solution; the House has neither compromised itself
frivolously, nor given its verdict inconsiderately; and, with the
exception of the case of appeal to a new House after a
dissolution, all its acts, after having been accomplished in
obedience to those formalities which give pledge of their
maturity, directly attain their object.
Such has been the course of the right of petition in England.
Closely connected with the whole system of representative
government, it has kept pace with the progress of that system,
adapting itself to its various successive stages, and holding the
same rank with the other rights of deliberative assemblies. It
has thus been brought back to its true nature, which is
incessantly to proclaim and assert, in the centre of the
government itself, the grievances and the requirements of
citizens, so as to ensure, after mature deliberation, the redress
of the former and the satisfaction of the latter.
{470}
Abuses Of The Right Of Petition.
I do not say that this result is always attained in England;
other causes have, in certain respects, neutralized the natural
virtue of representative government, and prevented it from
producing all its legitimate results. I merely say that the right
of petition has there assumed its reasonable form, and that, but
for the action of causes which effect a general change of the
system, it would by that form attain the object which its
advocates should propose to themselves.
Let us now enquire what must happen in a different state of
things, when representative government, though perhaps less
changed in certain particulars, is nevertheless much more
incomplete. It will be seen how the right of petition may
introduce disorder among the public powers of a State, and yet
remain almost illusory.
This is the hypothesis upon which I stand. I suppose the Houses
of Parliament invested, by right, with great power, associated in
the legislation of the country, voting taxes, receiving accounts
of the administration of the revenues of the State, carrying on
their discussions in public, and enjoying a large amount of
liberty in these debates. It is beyond a doubt that, in the
public opinion, they will be held to possess the mission and the
power to obtain the redress of all grievances, and the
satisfaction of all legitimate requirements, and to compel the
executive power to act, on all occasions, in accordance with
justice, the laws, and the general interests of the country. It
is from the action of the Houses of Parliament that the public
and the citizens will expect all that they desire or hope; and
towards them they will turn their eyes to obtain it.
Such being the disposition of the public mind, if these same
Houses do not possess the right of initiative, or the right of
enquiry, or any positive external jurisdiction--if it is not in
their power to set themselves in motion and to pursue their own
objects--in a word, if their means of direct action are far below
their written mission and the public expectation, what will be
the consequence?
Evidently both the Houses and the public will seek for indirect
means of exercising that influence which rightfully belongs to
them, and which is actually imputed to them. And if the right of
petition had been solemnly sanctioned, to it will resort be made
to supply the place of deficient rights, and by it will members
of the Houses strive to obtain that control over the whole
government, of which it has been attempted to deprive them.
{471}
Who cannot perceive, for example, that the right of petition is a
real right of initiative, since its effect is to introduce, into
the Houses of Parliament, questions which the government has not
brought forward, and to give rise to discussions which the
government has not originated? Thus, the right of initiative,
though denied to members of the Houses, belongs to all citizens,
to the first comer, even to a fictitious name. The elect of a
large number of citizens may not provoke his colleagues to
discuss with him a solemnly propounded question: but if he leave
the House, if he cast aside his character of representative and
assume that of petitioner, he has the power to do so, and the
humblest citizen possesses it equally with himself. Thus, instead
of an initiative, the utility and propriety of which would be
guaranteed by the character and position of the members of the
Houses, an initiative is substituted which is guarded by no
guarantee, and which imposes no moral obligation upon the man who
exercises it, since he is not a part of the public power which he
sets in motion.
And as this power holds a very lofty position in the public
opinion, as it is supposed to possess the mission and the power
to remedy every evil, its interference will be solicited in
matters of all kinds; it will be called upon to deliberate upon
affairs most foreign to its attributes; and its petitioners will
afterwards be astonished to find its actual power so limited in
comparison with the immensity of the rights which it is supposed
to enjoy.
It will soon be felt that there is disorder in such a state of
things, and attempts will be made to remedy it. Restrictions will
be imposed, if possible, upon this universal initiative. The
remedy would present itself spontaneously, if every member of the
legislative assemblies had the right to propose such motions as
he judged fitting. It would then come to pass, as it did in
England, that every petition must be presented by a member, and
must become, on his part, the subject of a motion. Thus the
members themselves would exercise over petitions that kind of
censorship from which it is impossible to liberate them.
{472}
In the absence of this censorship, another kind is invented; the
petitions are referred to a committee _ad hoc_, appointed to
examine them beforehand, and to call the attention of the House
to those which appear to deserve its notice; but to whom does
this censorship belong? to the parliamentary majority which names
the committee. This is the reverse of the natural order of
things. Petitions almost always belong to the minority. The
minority presents and supports them. The minority is,
consequently, placed, in this respect, at the discretion of the
majority, whose censorship may become a means of tyranny;
whereas, if the right of initiative belonged to all the members,
a legitimate censorship would be established, which would refuse
to bring forward a multitude of unsuitable petitions, and would
neither reject nor postpone any of those which were possessed of
real importance.
Discussion Of Petitions.
After the first step in the exercise of the right, that is to
say, after the presentation of petitions, comes their discussion.
If they could be introduced by a member only, this discussion
would be subject to all the delays and formalities required for
the due regulation of legislative debates. A first motion, for
instance, would suggest that the petition should be read; a
second, that it be printed; a third, that it form the subject of
an enquiry, or of an address to the crown, or of a law. During
this process, facts would be cleared up, and opinions would be
formed; and a conflict would occur between the minority and the
majority, only if the latter should formally refuse to grant the
justice demanded, or to comply with the wish expressed. In the
other system, on the contrary, the debate must be precipitate and
confused; the House and the government must adopt their
resolution in a few moments, often without thoroughly
understanding what they demand of, or refuse to, one another.
Petitions succeed and fall upon one another with a rapidity that
produces sometimes violence, and sometimes indifference; and the
right of petition itself thus becomes an occasion of disorder, or
is treated with a sort of levity and disdain which compromises it
in the legislative chambers, and also compromises the Chambers in
the opinion of the public.
{473}
Right Of Enquiry.
The manner in which petitions are introduced into the Chambers is
not the only cause of so vicious a mode of deliberation, but the
absence of the right of enquiry also contributes greatly towards
it. Every petition received by one of the Chambers calls for a
resolution on its part; there is therefore something more than
mere singularity in depriving it of the means of adopting that
resolution with a full knowledge of the cause. It is a great
defect of representative government that, leading as it
necessarily does to the systematic organization and permanent
conflict of parties, it habitually divides the truth into two
parts, and induces men never to consider questions on more than
one side, and to see only half the ideas or facts in reliance
upon which their decision must be made. It is, without doubt, a
system of exaggeration and partiality; and this evil is, to a
certain point, inevitable. All means of diminishing it are,
therefore, of great importance. Now, the most effectual,
indisputably, is to compel opposing opinions to unite, on certain
occasions, in a common search after truth. This is the effect of
the right of enquiry. When these opinions reach the moment of
decision, without having been brought into contact or made
acquainted with each other, without having been constrained
mutually to communicate motives and facts, their resolution will
chiefly be dictated by party spirit, and by anterior engagements
which have experienced no necessity to modify it. Everything, on
the other hand, that brings the minority and the majority into
presence, before the moment when they must appear in public and
pronounce their decision, draws them for a time out of their
habitual sphere, and leads them to extend or to correct their
ideas. This is especially the case in reference to facts. It is
immensely inconvenient if all communications of this kind can
only be made at the rostrum, and in the midst of the decisive
combat; for they are then rejected, and scarcely ever influence
the decision. Thus, as the absence of the right of enquiry leaves
parties in their natural ignorance and primitive crudity, it is
injurious not only to the goodness of the special resolutions of
deliberative assemblies, but also to the wisdom of their general
arrangements.
Besides, when the right of enquiry is wanting, its absence is
supplied in the same way as that of the right of initiative by
the right of petition. As it is impossible to undertake a serious
and complete investigation of any particular kind of abuse which
appears to have introduced itself into the government, special
complaints are suggested and multiplied.
{474}
Now, the right of petition is no more competent to supply the
place of the right of enquiry than that of the right of
initiative. The revelation of abuses or grievances which it
occasions is, by the very nature of things, full of confusion and
error; matters are seldom presented without prejudice and with
generality. And yet, from the very fact that there are no means
of going into the details, and examining them in all their
bearings, men are involuntarily led to put confidence in these
complaints. Never were the demands presented by the House of
Commons itself for the redress of grievances so numerous and
violent as in those times when it was allowed to address them to
the king only, and was permitted neither to have them thoroughly
investigated by its own members, nor to sum them up in a body of
facts accompanied by satisfactory proofs.
Necessity For The Completeness
Of Representative Government.
Finally, when the representative system of government is
complete, and provided with all the rights and all the means of
action which it needs in order to accomplish its ends, the right
of petition is nothing but the right of calling the attention of
the Houses of Parliament, by means of one of their members, to
any particular question, or act of the governing power. When once
this first provocation has taken place by way of petition, the
petition has attained its object; nothing more is necessary but a
discussion and resolution of the House itself, which takes place
according to the ordinary formalities, as if it had originated
within the assembly itself, and independently of all relations
with the external world. Thus the exercise of a right which
should belong to all citizens is reconciled with the dignity of
the public power of the nation, and with the maturity befitting
their acts. Thus all grievances may solicit redress, all desires
may be expressed, without giving rise to any disorder, any
precipitation, or any subversion of the procedure of the great
deliberative bodies. When, on the contrary, these deliberative
bodies themselves are deprived of the rights and means of action
which are necessary to them for the fulfilment of their
destination, the right of petition becomes an irregular and often
violent means by which the public and the legislative chambers
endeavour to supply their deficiencies. And then this right, by
all the practices to which it lends itself, and by the vicious
mode of deliberation which it entails, creates, in its turn, new
disorders which men undertake to remedy by imposing upon the
right itself restrictions or trammels which would be completely
useless if the legislative chambers were invested with all the
means of action which are their due.
{475}
Political liberty has this in common with science generally; it
is most dangerous when it is incomplete. The history of the
British Parliament proves this at every step.
{476}
Lecture XXII.
Condition of the Parliament under Edward III.
Progress of the power of the Commons.
Their resistance to the king.
Regularity of the convocation of Parliament.
Measures taken for the security of its deliberations.
Division of the Parliament into two Houses.
Speaker of the House of Commons.
Firmness of the House of Commons in maintaining its right to
grant taxes.
Accounts given by the government of the collection of the
taxes.
Appropriation of the funds granted by Parliament.
Parliamentary legislation.
Difference between statutes and ordinances.
Reign Of Edward III.
Hitherto we have only met with political struggles between the
king and his barons, or between opposite aristocratic factions;
the Commons have hitherto appeared only in a second rank; they
exercised as yet hardly any direct influence over general
affairs, over the government properly so called; or if they
occasionally interfered in the administration of the country, it
was merely as the auxiliary or the instrument of some particular
faction.
The reign of Edward III. presents a different aspect; the
conflict between the king and his barons has ceased, and all the
great aristocracy seems to be grouped around the throne; but at
the same time, the Commons have formed themselves into a body,
distinct and powerful in itself. They do not aspire to snatch the
supreme power from the hands of the king and the barons; they
would not have strength enough to do so, nor do they entertain
any thought of it; but they resist every encroachment upon those
rights which they are beginning to know and to appreciate; they
have acquired a consciousness of their own importance, and know
that all public affairs properly fall under their cognizance.
Finally, either by their petitions, or by their debates in
reference to taxation, they are daily obtaining a larger share in
the government, exercise control over affairs which, fifty years
before, they never heard mentioned, and become, in a word, an
integral and almost indispensable part of the great national
council, and of the entire political machine.
{477}
Influence Of The Commons.
Thus, whereas hitherto the political aspect of England has been
the conflict of the great barons with the king; from the reign of
Edward III., the resistance of the Commons to the king's
government, generally formed and sustained by the barons, becomes
the great fact of the history. It is not unintentionally that I
here employ the words _conflict_ and _resistance_. In
the first period, in fact, the barons struggled, not only to
defend their rights, but to invade the supreme power, and to
impose their own government upon the king. This conflict was
consequently nothing but a permanent civil war. But during the
second period, this was no longer the case; we hear of no
revolts, and of no civil wars: under Edward III., at least, the
Commons do not arm to attack the government with force; but they
oppose to it a political resistance, they constantly protest
against the abuses and arbitrariness of the central power.
Instead of directing their attacks against the king himself, they
lay all blame upon his ministers, and begin to assert and
popularize the principles of parliamentary responsibility.
Finally, they separate completely from the great barons, act on
their own account, and become the true depositaries of the
pledges of public liberties.
This was a great revolution, and it prepared the way for all
others. The more minutely we examine into the events of the reign
of Edward III., the more proofs shall we discover of this
important change. I shall content myself with giving a rapid
summary of these proofs by recapitulating the general facts which
characterize this reign.
The first of these facts is the regularity, previously
unexampled, with which the Parliament was convoked. A measure was
adopted for this purpose in 1312, during the reign of Edward II.,
by the Lords Ordainers. Subsequently we meet with two statutes
relative to the convocation of this assembly, one of which was
passed in 1331, and the other in 1362. Finally, in 1377, the last
year of the reign of Edward III., the Commons themselves demanded
by petition that the sessions of Parliament should take place
regularly every year. It is curious to compare this petition with
the requests addressed to the king, under previous reigns, by the
members of the House of Commons, to be exempted from serving in
Parliament: they had now begun to feel that their mission was not
a burden, but a right.
{478}
Parliaments Of Edward III.
During the reign of Edward III., we may enumerate forty-eight
sessions of Parliament, which makes nearly one session in each
year.
Nor did the Parliament merely provide for the regularity of its
convocation; it took measures, at the same time, to ensure the
security of its deliberations. In 1332, a royal proclamation
forbade all persons to wear coats of mail, or to carry any other
offensive or defensive arms, in those towns in which the
Parliament was sitting: it also prohibited all games and
diversions which might disturb the deliberations of the assembly.
The frequent recurrence of proclamations of this kind announces
the formation of a regular assembly.
It is also during the reign of Edward III., in 1313, that we hear
for the first time of the Parliament being divided into two
Houses. According to historical documents of that year, the
prelates, counts and barons, on the one hand, and the
representatives of the counties and boroughs, on the other, sat
at Westminster, the former in the White Chamber, and the latter
in the Painted Chamber; and deliberated thus upon the question of
peace with France.
Finally, it is also at the end of this reign, in 1377, that the
rolls of Parliament first make mention of the Speaker of the
House of Commons; Sir Thomas Hungerford is the first person upon
whom this title was conferred. Previously, the House used to
select one of its members whenever it was necessary to speak in
its name, either to the king, or in the full Parliament: and it
was probably in 1377, that it began to appoint its Speaker for
the whole session, and at its commencement.
{479}
Prorogations Of Parliament.
It has been asserted that, during this reign and in earlier
times, every session of Parliament involved a fresh election; and
that the right of proroguing the existing Parliament to a new
session did not appertain to the king. This is an error. It was
necessary that a session of Parliament should take place in each
year, but not an election. The following fact proves this. The
Parliament held under Edward I. in 1300, resumed its session in
1301. The writs summon the deputies of the previous year, except
in cases in which a new election was necessary on account of
death or absolute inability to serve. In 1305, the king prorogued
Parliament on the 21st of March, and allowed the deputies to
return home, "_Issint qu'ils reveignent prestement et sanz
délai, quele houre qu'ils soient autrefois remandez._"--"On
condition that they should return readily and without delay, at
such time as they might be previously recalled." In 1312, during
the reign of Edward II., the Parliament separated after having
sat two months, and on the same day the king addressed writs to
the sheriffs, ordering them to send "the same knights and
burgesses--_eosdem milites et cives_," to Westminster on the
2nd of November following, "to the same Parliament which we have
thought should be continued there--_ad idem Parliamentum quod
ibidem duximus continuandum_." This Parliament thus prorogued
actually met, and sat from the 2nd of November to the 18th of
December, after which it was dissolved. In 1329, during the reign
of Edward III., the Parliament which sat at Salisbury, from the
15th to the 31st of October, was adjourned to Westminster, where
it held a second session, from the 10th to the 22nd of February,
1330. We meet with similar instances in 1333 and 1372. The
Parliaments were, therefore, not elected annually, and the right
of prorogation was in full vigour.
Thus was developed and regulated the internal constitution of the
Parliament: thus, instead of being merely an accidental meeting,
limited to the accomplishment of a single object, it gradually
assumed the consistency of a political assembly of periodical
obligation.
{480}
Voting Of Taxes.
A second general fact, which serves to support the views which I
have advanced, is the voting of taxes. There is, perhaps no reign
which presents so many instances of arbitrary and illegal imposts
as that of Edward III., and yet there is not one which
contributed more powerfully to secure the triumph of the
principle that taxes are legitimate only when they are freely
granted. This principle was incessantly lost sight of practically
by the king, who was pressed by necessities, created partly by
his wars, and partly by the bad administration of his revenues.
His whole reign was spent in efforts to regain, under forms more
or less indirect, the right of taxing his subjects at his
pleasure; but the Commons, on their side, never ceased to protest
against these efforts, sometimes attaching the revocation of an
arbitrary tax to the concession of a legal subsidy, and sometimes
by endeavouring to introduce the principle of the necessity of
consent into all those ways by which the king attempted to elude
it. Thanks to their perseverance, the schemes of power were, if
not always frustrated, at least always unmasked, and thereby
rendered impotent for the future.
Instances of this conflict abound in the Parliaments held in the
years 1333, 1340, 1347, 1348, and 1349, which are in general
filled only with complaints of the Commons, demanding either the
abolition or the diminution of unjust and illegal taxes, which
had been imposed without their consent. To all these demands the
king replied, sometimes by a formal refusal, sometimes by
reference to the consent which had been granted him by the Lords,
and sometimes by an assurance that the tax should not be levied
for any length of time; but if the Commons threatened to refuse
him new subsidies, he felt himself compelled to meet these
demands by some new concessions.
Nor was it merely by keeping a firm hand upon the voting of taxes
that the House of Commons maintained its rights; it also extended
them beyond the concession of subsidies on two important
occasions. In 1340, the Parliament, suspecting that a portion of
the subsidies voted by it had not found its way into the royal
exchequer, appointed certain persons to receive the accounts of
the tax-collectors, and required them to give security for the
payment of all that they received. This is the first instance of
any account whatever being given to Parliament with regard to
taxes; it began by desiring to make sure of the fidelity of the
receipts, and thus took a first step towards asserting its rights
to receive an account of the employment of the funds, that is to
say, of their expenditure. In 1354, we perceive the dawn of
another parliamentary right, that of the appropriation of the
public funds. The Parliament, when granting a tax upon wool,
added to its vote the condition that the money derived from this
subsidy should be devoted to the expenses of the war then waging,
and not to any other purpose.
{481}
Share In The Legislation.
After all, it is not to be wondered at that the king and his
Parliament were incessantly at variance with regard to subsidies,
and mutually occasioned each other continual miscounts. There was
then no means of estimating receipts and expenditure beforehand.
The king involved himself in an expense without knowing to what
sum it would amount; and the Parliament voted a subsidy without
knowing what it would produce. In 1371, the Parliament granted a
subsidy of £50,000, to be levied at the rate of 22_s_.
3_d_. on every parish, which supposed the existence of
45,000 parishes in England. It turned out, however, that there
were only 9,000. The king convoked a great council, to which he
summoned only half the deputies of the last Parliament, one from
each county and borough, "to save expense--_ad parcendum
sumptibus._" The matter was laid before this council, which
ordained the assessment of every parish at 116_s_. instead
of at 22s. 3d., in order to raise the sum of £50,000. Great
disorder must necessarily have accompanied such ignorance.
The third general fact which proves the great increase of
importance which the Parliament had obtained at this period, is
its participation in the legislation. When we open a collection
of the statutes of this reign, we find at the head of each
statute one of the two following formulas: _"A la requeste de
la commune de son roïalme par lor pétitions mises devant lui et
son conseil, par assent des prélats, comtes, barons, et autres
grantz, au dit Parlement assembles_," &c. [Footnote 39] Or:
"_Par assent des prélats, comtes, et barons, et de tote la,
commune du roïalme, au dit Parlement assembles_," &c.
[Footnote 40] Sometimes the statute begins with these words:
"_Ce sont les choses que notre seigneur le roi, les prélats,
seignours, et la commune ont ordiné en ce présent Parlement_."
[Footnote 41]
[Footnote 39: "At the request of the commons of his realm, by
their petitions! laid before him and his council, and by the
assent of the prelates, earls, barons, and other nobles, in
the said Parliament assembled."]
[Footnote 40: "By the assent of the prelates, earls and barons,
and of all the commons of the realm, in the said Parliament
assembled."]
[Footnote 41: "These are the things which our lord the king,
the prelates, lords, and commons have ordained in this
present Parliament."]
{482}
Ordnances And Statutes.
All these formulas express the participation of the House of
Commons in the legislation of the country; and prove, as I have
already observed, that this participation was generally exercised
by the presentation of petitions to the king; the lords
deliberated upon these petitions, which were afterwards converted
into statutes by the king, without being returned to the House of
Commons to receive its express assent under the form of statutes.
Accordingly, as the Commons did not interfere in the enactment of
statutes by any direct vote, their petitions were frequently
mutilated and altered; and the statutes, which were drawn up
either by the judges or by the members of the privy council, did
not always faithfully convey their meaning. It was probably with
a view to remedy this inconvenience that, in the Parliament of
1341, a certain number of prelates, barons, and royal
councillors, with twelve knights of shires and six burgesses,
were appointed a commission for the purpose of converting into
statutes such petitions as gave rise to measures of general
legislation.
But all the petitions of the Commons were not resolved into
statutes; they frequently gave occasion merely to ordinances.
Many dissertations have been written upon the distinction between
the legislative acts designated by these two words. It has been
maintained that ordinances were issued by the king alone, by the
advice of the Lords, but without the concurrence of the Commons.
Originally, this distinction was incorrect, for most ordinances
were issued, just as statutes were enacted, upon the request of
the Commons. Thus, in 1364, the Parliament having desired the
passing of sumptuary laws, the king demanded of both Houses, by
the chancellor, "whether they would have such matters as they
agreed on to be by way of ordinance or of statute?" And they
replied: "By way of ordinance, that they might amend the same at
their pleasure." [Footnote 42] From this answer it has been
inferred, with great appearance of reason, that the nature of
statutes was to be perpetual, whereas ordinances were only
temporary.
[Footnote 42: Parliamentary History, vol. i. p. 128.]
Ordinances were not inscribed, like statutes, upon the rolls of
Parliament; they were less solemn in their character, although
their object frequently had reference to matters equally
legislative and of equally general interest, such as the
enactment of jurisdiction or of penalties. It is not more easy to
clearly distinguish ordinances from, statutes, than great
councils from Parliaments properly so called. All that we can say
is, that less importance and stability were attributed to this
class of legislative measures.
{483}
Conservators Of The Peace.
Legislative measures were not always adopted upon the petition of
the Commons; the king also exercised the right of initiative, not
only in matter of taxation, but in reference to all other
subjects of general interest. Thus, in 1333, Sir Jeffrey Scroop
of Markham, in the king's presence, and at his command, informed
the prelates, earls, barons, and other nobles, of the disorders
committed in the country by bands of armed marauders; pointed out
the necessity of repressing their outrages; and demanded of them
to suggest to the king such measures as they deemed suitable to
effect this purpose. The prelates hereupon retired, saying that
it did not befit them to deliberate upon such a subject. The
other nobles deliberated among themselves, and proposed to the
king a series of regulations for the maintenance of the public
peace. These regulations were read in presence of the nobles, the
knights of the shires, and the "commons--_genz du commun,_"
who all gave their assent to them, and the necessary measures
were adopted in consequence. A result of this deliberation was
the restoration of the _Conservators of the Peace_, who had
been temporarily appointed by the Earl of Leicester, during the
reign of Henry III., and who were the precursors of the justices
of the peace.
After all, it is easy to imagine that, in the fourteenth century,
confused ideas were entertained as to what was and what was not
matter for legislation; since, in our own days, we not only feel,
but formally admit, the impossibility of fixing the limit _à
priori_, in a philosophic and absolute manner.
{484}
Lecture XXIII.
Continuation of the history of the progress of the Commons
House of Parliament during the reign of Edward III.
Their interference in questions of peace and war; and on the
internal peace of the kingdom.
Their resistance of the influence of the Pope, and of the
national clergy, in temporal affairs.
First efforts of the Commons to repress abuses at elections.
First traces of function of Committees of both Houses to
investigate certain questions in common.
Political Powers Assumed By Parliament.
It was not merely in the matter of taxation and of general
legislation that the House of Commons, during the reign of Edward
III., extended and consolidated its rights. Its interference in
the administration of public affairs, in politics properly so
called, assumed at this period a development previously
unexampled, and an entirely a novel character. It began really to
take part in the government of the State. This is proved by a
multitude of facts.
First, in the matter of peace and war, its intervention became,
at this period, habitual and almost indispensable. Mr. Hallam
seems to me to have fallen into error on this subject; he is of
opinion that the king alone, in the fourteenth century, desired
that the Commons should interfere in questions of this kind, in
order that he might cast the responsibility upon them, but that
they constantly refused to incur it. I think that this assertion
is incorrect. The Commons of the fourteenth century frequently
sought and exercised this power, and accepted the attendant
responsibility; and they always gained greatly by it. The
principal facts are these. In 1328, during the minority of
Edward, and while Mortimer reigned in his name, the treaty of
peace with Scotland, which fully liberated that kingdom from all
feudal subordination to England, was concluded with the consent
of the Parliament. The Commons are expressly mentioned; and we
may suppose that Mortimer was anxious thereby to cover his own
responsibility for a disgraceful treaty.
{485}
In 1331, Edward consulted the Parliament upon the question of
peace or war with France, on account of his continental
possessions, and also upon his projected journey to Ireland. The
Parliament gave its opinion in favour of peace and of the king's
departure for Ireland. In 1336, it urged the king to declare war
against Scotland, saying: "That the king could no longer, with
honour, put up with the wrongs and injuries daily done to him and
his subjects by the Scots." [Footnote 43]
[Footnote 43: Parliamentary History, vol. i, p. 93.]
In 1341, after Edward's first victories in France, the Parliament
pressed him to continue the war, and furnished him with large
subsidies; and all classes of society bestirred themselves to
support the king in a conflict which had become national. In
1343, the Parliament was convoked to examine and advise what had
best be done in the existing state of affairs, especially in
regard to the treaty recently concluded by the king with his
enemy the king of France. Sir Bartholomew Burghersh told the
Parliament that "as the war was begun by the common advice of the
prelates, great men, and commons, the king could not treat of, or
make peace, without the like assent." [Footnote 44]
[Footnote 44: Ibid. p. 106.]
The two houses deliberated separately, and gave their opinion
that the king ought to make peace if he could obtain a truce that
would be honourable and advantageous to himself and his friends;
but if not, the Commons declared that they would aid and maintain
his quarrel with all their power. In 1344, when the truce with
the king of France had been broken off by him, the Parliament, on
being consulted, manifested a desire for peace, but thought it
could only be obtained by carrying on the war with energy, and
voted large subsidies for the purpose. In 1348, the war had
become increasingly burdensome; all the subsidies proved
insufficient; and the king again consulted the Parliament
"concerning the war undertaken with its consent." The Commons,
perceiving that they had gone rather too far in their language,
now showed greater reserve and answered "that they were not able
to advise anything concerning the war, and therefore desired to
be excused as to that point; and that the king will be advised by
his nobles and council, and what shall be by them determined,
they would consent unto, confirm, and establish." [Footnote 45]
[Footnote 45: Parliamentary History, vol. i. p. 115.]
{486}
The French Wars.
In 1354, the Lord Chamberlain, by the king's command, informed
the Parliament: "That there was great hopes of bringing about a
peace between England and France, yet the king would not conclude
anything without the consent of his Lords and Commons. Wherefore
he demanded of them, in the king's name, whether they would
assent and agree to a peace, if it might be had by treaty." To
this the Commons replied at first, "that what should be agreeable
to the king and his council in making of this treaty, would be so
to them;" but on being asked again, "If they consented to a
perpetual peace, if it might be had," they all unanimously cried
out, Yea! Yea! [Footnote 46] Finally, on the 25th of January,
1361, peace having been concluded by the treaty of Bretigny, the
Parliament was convoked, the treaty was submitted to its
inspection and received its approval, and on the 31st a solemn
ceremony took place in the cathedral church at Westminster, when
all the members of Parliament, both Lords and Commons,
individually swore upon the altar to observe the peace.
[Footnote 46: Ibid. p. 122.]
In 1368, the negotiations with Scotland were submitted to the
consideration of the Parliament; the king of Scotland, David
Bruce, offered peace on condition of being relieved from all
homage of his crown to the king of England. The Lords and Commons
replied, "That they could not assent to any such peace, upon any
account, without a disherison of the king, his heirs and crown,
which they themselves were sworn to preserve, and therefore must
advise him not to hearken to any such propositions;" [Footnote
47] and they voted large subsidies to continue the war.
[Footnote 47: Ibid. vol. i. p. 131.]
In 1369, the king consulted the Parliament as to whether he
should recommence the war with France, because the conditions of
the last treaty had not been observed; the Parliament advised him
to do so, and votes subsidies.
These facts prove the most direct and constant intervention of
the Commons in matters of peace and war. Nor did they seek to
elude this responsibility, so long as the war was successful and
national. When the subsidies became excessive, they manifested
greater reserve in giving their opinion beforehand.
{487}
When fortune turned decidedly against Edward III., at the close
of his reign, the Commons, as we shall presently see, took
advantage of the right of intervention which they had acquired,
to possess themselves also of the right of impeaching the
ministers to whom they attributed the misfortunes of the time.
All this follows in the natural course of things, and clearly
demonstrates the continually increasing influence of the Commons
in political matters.
Influence On The Administration.
In regard to the internal administration of the country, their
progress was not less perceptible. Until the reign of Edward III.
all attempts to encroach upon the central government had
originated with the barons; it was the barons who, under Henry
III. and Edward II., had seized upon the right of appointing to
great public offices, and of disposing of the revenues of the
State. In 1342, the Commons ventured a similar endeavour, less
direct and arrogant in its character, but tending towards the
same object by more regular and better chosen means. Profiting by
the necessities of the king, who was then destitute of funds, and
utterly unable to continue the war with France, they presented to
him the two following petitions:
1. "That certain by commission may hear the account of those
who have received wools, moneys, or other aid for the king, and
that the same may be enrolled in the chancery." To this the
king consented, upon condition that the treasurer and lord
chief baron should be members of the commission.
2. "That the chancellor and other officers of state may be
chosen in open Parliament, and at the same time be openly sworn
to observe the laws of the land and Magna Charta." To this also
the king consented, but with these restrictions: "That if any
such office, by the death or other failure of the incumbent,
become void, the choice to remain solely in the king, he taking
therein the assent of his council; but that every such officer
shall be sworn at the next Parliament, according to the
petition; and that every Parliament following the king shall
resume into his hands all such offices, so as the said officers
shall be left liable to answer all objections." [Footnote 48]
[Footnote 48: Parliamentary History, vol. i. p. 104. ]
These decisions were immediately converted into statutes. The
chancellor and treasurer, with the judges and other officers of
the crown, were required to swear to observe them upon the cross
of Canterbury.
{488}
The chancellor, treasurer, and several judges, protested against
this act, as being contrary to their first oath and to the laws
of the realm; their protest was entered upon the rolls of
Parliament, but the statute was nevertheless definitively passed.
The Commons had now obtained the most formal recognition of the
responsibility of ministers to Parliament. The most pressing
necessities alone had extorted consent from the king. Scarcely
had the Parliament dissolved, when the king, by his own authority
only, formally revoked the statute by writs addressed to all the
sheriffs; and it is a most singular circumstance that so illegal
an act excited no remonstrance, and that the statute was revoked
by the Parliament itself in the year following.
Interference With Ministers.
The mere attempt, however, was a great step. It proves that two
fundamental ideas had taken possession of the minds of the
representatives of the Commons; first, that the Parliament ought
to exercise some influence over the choice of the king's
ministers; secondly, that these ministers should be responsible
to Parliament for their conduct. As to the first point, the
Commons of the fourteenth century employed a very bad method of
obtaining it, by claiming that their influence over the choice of
the agents of the supreme power should be direct, and by
interfering directly in the appointment of ministers; they
prodigiously weakened, if they did not utterly destroy,
ministerial responsibility: and the progress of representative
government has proved that indirect influence, exercised in such
matters by a majority of the Parliament, is alone admissible and
efficacious. But it was a great thing for the Commons to have
attained such growth as to dare to entertain such an idea of
their rights. They resumed the exercise of these rights, with
greater success, at the close of this reign. The king was old and
feeble; his arms were everywhere unsuccessful; abuses multiplied
at his court; Edward had fallen beneath the sway of favourites;
one of his sons, the Duke of Lancaster, alone enjoyed his favour,
and abused it; a woman, named Alice Perers or Pierce, possessed a
shameful influence over him, which she employed chiefly in
supporting the interest of her friends, in the courts of justice.
She might often be seen, sitting within the precincts of the
judicial tribunals, intimidating by her presence the judges whom
she had pestered with her solicitations.
{489}
Their Impeachment.
A report was spread at the same time that the Duke of Lancaster
intended to have himself declared heir to the crown, to the
prejudice of the youthful son of the Black Prince, who was then
in a dying state, and who possessed the affection of the whole
nation. A Parliament was convoked in 1376; and a powerful party
in both Houses pronounced against the ministers of the king. In
the Upper House, the Black Prince himself led the attack, and in
the Lower House, the opposition was headed by Peter de la Mare.
The Commons demanded that the king's council should be augmented
by ten or twelve members, prelates, lords, or others; that no
important matter should be decided without the consent of six or
four of them; and finally, that all the officers of the crown
should be sworn to receive no present, emolument, or reward
beyond their legal salaries and expenses. The king consented to
all these demands upon condition that he should himself appoint
the new councillors, and that the chancellor, the treasurer, and
the keeper of the privy seal should be allowed to discharge the
duties of their office without their interference. The Commons
next endeavoured to obtain that the justices of peace in each
county should be appointed by the lords and knights of that
county in Parliament, and should not be removed without their
consent; but the king refused to grant this. The Commons
continued to complain of the king's evil counsellors, attributing
to them the distress into which the king had fallen, the
dilapidation of the subsidies, and so forth. Finally, with a view
to the immediate application of the principles which they
maintained, they formerly impeached the Lords Latimer and Nevil,
who occupied posts in the king's household, and four merchants of
London, named Lyon, Ellis, Peachey, and Bury, who were farmers of
the royal subsidies. This accusation had its effect; the accused
persons were declared incapable of all public employment, and
banished from the court and council, and their property was
confiscated. As for Alice Perers, the Commons attacked her also,
and the king was constrained to issue the following ordinance:
"Whereas complaint has been brought before the king that some
women have pursued causes and actions in the king's court by way
of maintenance, and for hire or reward, which, thing displeases
the king, the king forbids that any woman do it hereafter, and in
particular Alice Perers, under the penalty of forfeiting all that
the said Alice can forfeit, and of being banished out of the
realm." [Footnote 49]
[Footnote 49: Rot. Parl. ii. 329.]
{490}
Nothing of this kind had previously been attempted by the
Commons. This Parliament sat from the end of April to the 6th of
July, 1376, that is, for a longer period than any preceding
Parliament; the number of its petitions to the king was 223, and
all its acts were so popular that it received the name of the
Good Parliament.
Death Of The Black Prince.
But the Commons were not in a position to maintain unassisted so
brilliant a success; their triumph had been due in great measure
to the co-operation of the Black Prince and his party in the
Upper House; and the Black Prince died before the closing of the
Parliament. The king, by settling the crown upon his son Richard,
dissipated many fears. A new Parliament was convoked on the 27th
of January, 1377, and one of his first acts was to solicit the
revocation of the sentence passed in the preceding year against
Lord Latimer and Alice Perers; which request was granted. Six or
seven only of those knights who had been members of the previous
Parliament sat in the new one; and Peter de la Mare was
imprisoned. Nevertheless, the new Parliament maintained the
rights already acquired in several particulars; it insisted upon
the proper appropriation of the subsidies, upon an account being
given of the receipts, and so forth. The death of Edward III.
which occurred on the 21st of June, 1377, put an end to a
struggle which was probably about to arise once more between the
Commons and the advisers of the crown.
In addition to this intervention of the House of Commons in the
general affairs of the State, some particular facts prove the
progress which its influence was making in all respects, and
deserve to be remarked in this point of view.
{491}
Opposition To The Clergy.
I. The Commons began energetically to resist both the power
which the Pope still assumed to exercise in England, and the
internal influence of the English clergy themselves. In 1343,
they protested against the right which the Pope claimed to have
to appoint foreigners to certain vacant ecclesiastical
benefices, and against other abuses of the same kind. They
called upon his majesty and the lords to aid them in expelling
the papal power from the kingdom, and addressed to the Pope
himself a letter full of the most indignant remonstrances.
Previously, the barons alone had actively interfered in affairs
of this kind. In 1366, the king informed the Parliament that
the Pope intended to cite him to Avignon to do homage for his
crown, according to the terms of the treaty concluded with king
John, and also to pay the tribute promised upon that occasion.
The Lords on the one hand, and the Commons on the other,
replied that king John had no right to contract such
engagements without the consent of the Parliament, called upon
the king to refuse to comply with the Pope's citation, and
promised to support him with all their power. In 1371, the
Commons complained that the great offices of the State were
occupied by ecclesiastics, to the great detriment of the king
and the state, and demanded that in future they should be
excluded therefrom, leaving to the king the right of choosing
his officers, provided they were laymen. Finally, in 1377, they
demanded that no ordinance or statute should be enacted upon
petition of the clergy, without the consent of the Commons; and
that the Commons should be bound by none of the constitutions
which the clergy might make for its own advantage and without
their consent, since the clergy would not be bound by the
statutes or ordinances of the king to which they had not
consented. This conflict between the national representatives
and the clergy soon became a permanent habit, which contributed
powerfully, in the sixteenth century, to the introduction of
the Reformation.
II. In 1337, the Parliament turned its attention to the
protection of the national industry. It prohibited the
exportation of English wools, and granted great encouragement
to those foreign clothworkers who should take up their
residence in England. These regulations soon fell into
desuetude in consequence of the wars with France; but they
prove the disposition of the Parliament to give attention to
all matters of public interest.
{492}
Regulation Of Elections.
III. It was also during this reign that, for the first time, we
find the Parliament manifesting anxiety about the abuses which
were committed at elections, and seeking to prevent their
recurrence. In 1372, an ordinance, passed at the suggestion and
by the advice of the Commons, prohibited the election of
sheriffs during the continuance of their functions, and also of
lawyers, because they made use of their authority to procure
their own election, and afterwards cared only for their own
private interests. [Footnote 50]
[Footnote 50: The influence of the king upon elections was
manifested at this period in a direct manner, or nearly so.
Two edicts of Edward III., passed at an interval of more than
forty years, prove this. The first, dated on the 3rd of
November, 1330, concludes thus: "And because that, before
this time, several knights, representatives for counties,
were people of ill designs and maintainers of false quarrels,
and would not suffer that our good subjects should show the
grievances of the common people, nor the matters which ought
to be redressed in Parliament, to the great damage of us and
our subjects;--we, therefore, charge and command that you
cause to be elected, with the common consent of your county,
two, the most proper and most sufficient knights, or sergeants
of the said county, that are the least suspected of
ill designs, or common maintainers of parties, to be of our
said Parliament, according to the form of our writ which you
have with you. And this we expect you shall do, as you will
eschew our anger and indignation." (_Parl. Hist._ vol. i. p.
84.) This writ was issued at the time when the young king had
just delivered himself from the yoke of Mortimer and his
faction. The second writ, dated in 1373, orders the sheriffs
"to cause to be chosen two dubbed knights, or the most
worthy, honest, and discreet esquires of that county, the
most expert in feats of arms, and no others; and of every
city two citizens, of every borough two burgesses, discreet
and sufficient, and such who had the greatest skill in
shipping and merchandizing." _Parl. Hist._ vol. i. p. 137.]
IV. Finally, it is under this reign that we first find
committees of the two Houses uniting to investigate certain
questions in common, and afterwards reporting the result of
their investigations to their respective Houses. It is
remarkable that this usage, so necessary to facilitate the
progress of the representative system and to procure good
deliberations, should have arisen precisely at that period when
the Parliament became divided into two Houses. It was the
natural consequence of their former combination in a single
assembly. There was no regular or invariable plan with regard
to the mode of the formation of these committees. Sometimes the
king himself appointed a certain number of lords, and invited
the Commons to choose a certain number of their own members to
confer with them; sometimes the Commons named the lords with
whom they wished to confer; and sometimes each House appointed
its own committee.
{493}
Confirmations Of The Old Charters.
It is remarkable that most of the parliamentary sessions of this
reign begin with a confirmation of Magna Charta and the Charta de
Foresta, which were always regarded as the foundation of the
public rights and liberties, and also violated with sufficient
frequency to render it necessary incessantly to renew their
concession.
All these facts prove the immense progress made by representative
government in general, and by the House of Commons in particular,
during the course of this reign.
{494}
Lecture XXIV.
State of the Parliament under Richard II.
Struggle between absolute royalty and parliamentary government.
Origin of the Civil List.
Progress of the responsibility of ministers.
Progress of the returns of the employment of the public revenue.
The Commons encroach upon the government.
Reaction against the sway of the Commons.
Violence and fall of Richard II.
Progress of the essential maxims and practices of
representative government.
Parliament Under Richard II.
It is a remarkable fact in the history of England that, during
the interval which elapsed between the years of 1216 and 1399, an
able monarch always succeeded an incapable king, and _vice
versâ_. This circumstance proved very favourable to the
establishment of free institutions, which never had time either
to fall beneath the yoke of an energetic despotism or to dissolve
in anarchy.
The reign of Richard II. does not present, like that of Edward
III., the spectacle of the struggle of the Commons in defending
their rights, and extending them by the very fact that they were
defending them against the royal power, which was incessantly
striving to evade those rights because they checked its
authority, but which was nevertheless sufficiently acute to
perceive that it stood in need of the assistance of the people,
and could not afford to quarrel with their representatives.
During the reign of Richard, the conflict assumes a more general
character; it now involves far more than special or occasional
acts of resistance. The question at issue now is, whether the
king shall govern according to the advice and under the control
of his Parliament, or rule alone and in an almost arbitrary
manner. A positive conflict arose between parliamentary
government and purely royal government; a violent conflict, full
of reciprocal iniquities, but in which the question between
liberty in general and absolute power was laid down more clearly
and completely than it had ever been before.
{495}
Increased Power Of The Commons.
The vicissitudes of this struggle are broadly outlined in facts.
The reign of Richard II. may be divided into two parts. From 1377
to 1389, the government was parliamentary, that is to say, the
Parliament exercised the supreme control and really directed all
public affairs, notwithstanding the attempts at resistance on the
part of the king and his favourites. Prom 1389 to 1399, this
state of things underwent a change, and the king progressively
regained the upper hand. Not that the Parliament abandoned or
lost all its rights; for that of voting the taxes, in particular,
was boldly maintained, and even respected to a certain extent.
But generally speaking, the government was arbitrary, the king
had the sole disposal of it, and the Parliament, which had lost
its preponderating influence, interfered only as an instrument.
This state of things was contrary to the desires and instincts of
the country, and it was terminated by a tragical event. Richard
was deposed by a proscribed exile who landed in England with
sixty men, but found both the Parliament and the entire nation
disposed to support him, or at all events, not to oppose him. The
deposition of Richard and the elevation of the House of Lancaster
were the work of force, but of force supported by that powerful
adhesion which the silence and immobility of the public afford to
enterprises which tend to overthrow an odious or despised
government.
Such was the general aspect of this reign. I shall not linger to
detail its events, but merely select and bring to light those
facts which relate to the condition of the public institutions of
the country, and which prove the truth of that which I have just
affirmed.
As you have already seen, during the last years of the reign of
Edward III., the influence of the Commons in the government had
rapidly augmented; and its further progress was favoured by the
minority of Richard II. Sixty years before, the nonage of the
king would have placed the State under the control of some
faction of barons; but during the latter half of the fourteenth
century, the Commons take the initiative in all things, and
plainly say how they think the government should be administered.
{496}
Important Petitions.
A first Parliament was convoked in the month of September, 1377.
Peter de la Mare, formerly the leader of the opposition, was
liberated from prison, and chosen speaker of the House of
Commons. Three lords selected by the Commons were appointed to
confer with them regarding the public necessities. Three
propositions were submitted by the Commons to the king and lords:
1. the formation of a council of government;
2. the appointment of "men of virtuous and honest conversation"
to guard the person and conduct the education of the king, and
to take care "that the charge of the king's household should be
borne by the revenues of the crown, so that what was granted to
the wars might be expended that way only;"
3. the strict observance of the common law and statutes of the
realm, "that they might not be defeated by the singularity of
any about the king." [Footnote 51]
[Footnote 51: Parliamentary History, vol. i. p. 160. ]
The Lords granted the first proposition, rejected the first part
of the second as too harsh and interfering too much with the
liberty of the royal person, promised to deliberate upon the
second part with the great officers of the king's household, and
gave their unhesitating assent to the third proposition.
The second of these propositions contains the germ of the
distinction between the civil list and taxes voted for the public
expenditure. A subsidy was voted by the Commons, after the
establishment of the administration. It was agreed that moneys
thus raised should be lodged in the keeping of special
treasurers, who should give an account of their receipts and
disbursements, in such manner as the king and council should
order. Two London merchants, William Walworth and John Philpot,
were appointed to this office by the king.
Several other petitions were presented by this Parliament.
1. That the evil councillors of the late king Edward might be
removed from the royal councils;--which was granted.
2. That, during the king's minority, all the ministers and
other great functionaries of State, might be appointed by
Parliament; and that if an office fell vacant, while Parliament
was not sitting, it should be filled up by the king's council,
subject to the approval of the next Parliament;--which was
granted in the case of the greater officers, but refused in
respect to those of less importance.
3. That Parliament should be holden once a year;--in reply to
which it was promised that "the statutes made for that purpose
shall be observed and kept." [Footnote 52]
[Footnote 52: Ibid. vol. i. pp. 161, 162.]
It is clear that, in all these matters, the initiative and
general direction of the government belonged to the Commons.
{497}
Regulation Of Subsidies.
On the 25th of April, 1378, a second Parliament met, and voted a
poll-tax, as the king had involved himself by loans. The
chancellor concluded his speech by saying that, for all past and
probable expenditure, the treasurers were prepared to give
account.
On the 20th of October, 1378, a third Parliament met, and a fresh
subsidy was demanded. The Commons maintained that the king ought
not to be in want of one, and that a promise had been made that
no further imposts should be levied for a long time. The
chancellor, Richard le Scroop, denied that any such promise had
been made; and long and violent debates ensued upon this
question. The Commons demanded that an account should be given
them of the way in which the last subsidy had been spent. The
chancellor asserted that they had no right to require this, but
finally yielded, under protest that it should not be considered a
precedent. The Commons accordingly examined the accounts.
The Commons next requested that five or six lords or prelates
should be deputed to confer with them respecting the public
charges: thus aspiring to make their own body the centre of
deliberation, and affecting to regard the lords only as a part of
the king's council. The lords refused their request, and proposed
that, according to ancient usage, each house should appoint
certain of its members to confer together. This suggestion was
adopted, and a subsidy voted. The Commons further demanded the
appointment of special treasurers to receive and disburse its
proceeds; which was granted.
On the 15th of January, 1380, a fourth Parliament was held, for
the purpose of demanding fresh subsidies, rendered necessary by
the wars with France and Scotland, the revolts in Gascony, and
other causes. The chancellor concluded his speech by saying "that
the lords of the great council were ready to lay before the
Commons the receipts of the last subsidial grants, and the
disbursements of the same."
The Commons demanded:
1. That the counsellors given to the king at his accession,
should be dismissed (probably because they suspected them of
unfaithfulness in the management of the public revenue);
{498}
2. That the five chief officers of State should not be changed
until the next Parliament;
3. That a commission should be formed to survey and examine, in
all his courts and palaces, the state of the king's household,
and the expenses and receipts in all the offices;--which was
granted, and the commission composed of six lords and six
members of the House of Commons;
4. That some of the most discreet barons should be placed about
the king, in order to give wise answers to foreign ministers.
One baron only, the Earl of Warwick, was appointed for this
purpose. A subsidy was then voted.
Disturbed State Of The Country.
In November, 1380, a fifth Parliament met to vote further
subsidies; and a long discussion arose between the Commons and
the Lords regarding the amount. A fixed sum of £16,000 was
required; to meet which the Commons voted a poll-tax of 15 groats
on every individual above 15 years of age, mendicants alone
excepted; and annexed to their vote the condition that the rich
should help the poor to pay the tax. The Commons moreover voted
that "no knight, citizen, or burgess of the present Parliament
should be collector of this money;" apparently in order to avoid
every suspicion of partiality in its assessment. A violent
popular insurrection broke out in consequence of this tax; and in
order to quell it, the king was obliged to make promises of
general enfranchisement.
On the 14th of September, 1382, a sixth Parliament assembled; but
was adjourned on account of a quarrel between the Duke of
Lancaster and the Earl of Northumberland, who had both come
thither in arms, with a numerous retinue. The importance of these
great barons was such that the Parliament could not meet until
the king had succeeded in reconciling them. Great agitation was
felt in this Parliament, as it did not know how to calm the
disturbance in the country. The charter of manumission which had
been extorted from the king was revoked. The Commons accused the
bad government of the king of having caused the insurrection, and
drew a melancholy picture of the deplorable state of the people.
A committee of inquiry was appointed in consequence. The Commons
refused to grant a subsidy, basing their refusal upon the
disposition of the country to revolt. The king declared that he
would not grant his amnesty for all the offences committed during
the late insurrection, unless a subsidy were granted; and under
the influence of this threat, the Commons yielded.
{499}
Conferences With The Lords.
At the opening of this Parliament, the Commons demanded that the
prelates, the lords temporal, the knights, the judges, in a word,
the various estates of the realm, should examine, each for their
own class, the charges which should be brought; and should report
the same to the Commons, who would deliberate upon it. This was
an attempt to make themselves a sovereign and undivided assembly;
but the king maintained the ancient usage, which required that
the Commons should deliberate first of all, and communicate their
propositions to the king and lords.
This Parliament was twice prorogued; from the 15th of December to
the 15th of January, 1383, and again from the latter date to the
7th of May.
Seven sessions of the Parliament were held from the 7th of May
1383, to the 1st of October 1386. The king endeavoured to free
himself from the control of the Parliament. In 1383, he dismissed
a very popular chancellor, Richard le Scroop, because he had
refused to seal some inconsiderate gifts of property which had
become confiscated to the crown. During the same year, the clergy
obtained from the king a violent statute against the Lollards or
disciples of Wickliffe. The Commons complained of this, saying
that the statute was surreptitious; that it had never received
their consent, and that "it was not their meaning to bind
themselves, or their successors, to the prelates, any more than
their ancestors had done before them." They, therefore, demanded
and obtained the revocation of the statute; but after their
departure, the act of revocation was set aside, and the statute
maintained.
In 1383, also, the Commons having demanded to confer with a
committee of lords whom they mentioned by name, the king
consented to their request, but added that it belonged to him
alone to appoint the lords whom he thought fit to send to such
conferences. In the same Parliament the Commons prayed the king
"to place the most discreet and valuable officers about his
person," and to regulate his household in such a way that his
revenues might be well administered, and prove sufficient to meet
his wants.
{500}
Opposition To Parliamentary Rights.
The king answered that he would summon to him the persons who
suited him, and that he would regulate his household by the
advice of his council. In 1386, the Commons petitioned that the
state of the king's household should be examined every year by
the chancellor, the treasurer, and the keeper of the privy seal;
and that they should be authorized to reform its abuses. The king
replied that he would order such an examination when it pleased
him. The Commons next inquired who were the ministers and chief
officers of State whom the king intended to place at the head of
affairs. The king replied that he had officers sufficient at
present, and would change them at his pleasure. All these facts
indicate an effort on the part of the king and his council to
free themselves from the control of Parliament. In proportion as
this desire became apparent, the Commons became, in certain
respects, more timid and reserved. In 1383, the king consulted
them as to whether he should march in person at the head of his
army against France; and they replied that it was not in their
province to decide upon such a question, but that it should be
referred to the council. In 1385, they were consulted on the
question of peace or war with France: and refused to give an
opinion. The king insisted upon having an answer, but all that he
could obtain from them was that "if they were in the king's
place, they would prefer peace." Every circumstance, on both
sides, indicates an imminent separation, or at least a
progressive estrangement. The king was desirous to escape from
the guidance of the Parliament; and the Parliament refused to
share the responsibility of the king's council.
Richard was under the sway of two favourites, Robert de Vere,
Marquis of Dublin, and Michael de la Pole, Earl of Suffolk. Hence
the government was courtly, capricious, destructive, and laid
claim to an insolent and frivolous exercise of arbitrary
authority. The haughty tone of the chancellor Suffolk was
extremely offensive in the speeches with which he opened the
Parliaments of 1384 and 1385. The Commons could endure the
government (though often tyrannical) of a council of barons with
much greater willingness than that of a pack of court favourites.
The great feudal aristocracy were deeply rooted in the
associations of the country; but the arrogance and frivolity of
favourites were unspeakably offensive to the people.
{501}
The King Compelled To Yield.
The storm broke out in the Parliament which met on the 1st of
October, 1386. The Commons, "with one accord," impeached the Earl
of Suffolk. The king withdrew to Eltham. The two Houses sent to
him to demand the dismissal of the lord treasurer and of the
chancellor, relating to whom, they said, they had matters to
treat of which could not be safely done whilst he remained in his
office. The king sent an evasive answer; and the Parliament
declared that it would do nothing so long as the king continued
absent, and the Earl of Suffolk remained minister. The king
proposed that they should depute forty knights of their number to
confer with him. The Parliament refused. After a long and
singular correspondence, the king was constrained to yield and to
choose new ministers.
Doubt has been cast upon several of these facts, and especially
upon the king's correspondence with the Parliament. Knyghton is
the only historian who records it, but there is reason to believe
it authentic. The Earl of Suffolk was impeached and condemned.
The charges brought against him were of little weight as legal
crimes, but of great importance as abuses in the government. A
committee of eleven lords was appointed by Parliament to regulate
all public affairs, and to govern in concert with the king., The
Parliament enacted the penalties of high treason against any
person who should advise the king not to follow the counsels of
this committee, and constrained the king to confirm these
resolutions by letters-patent. The king, on his part, made
protestation in full Parliament, with his own mouth, "that for
any thing which was done in that Parliament he would not any
prejudice should come to him or his crown; but that the
prerogative and liberties of it should be safe and preserved."
In 1387, the king travelled through the west and north of
England; and assembled at Nottingham a council composed of
partisans of his favourites. He inquired of the sheriffs of the
neighbouring counties what forces they could raise for his
assistance, if he should find it necessary to oppose the
committee of eleven lords. The sheriffs replied that the people
were convinced that the lords were friends to the king, and
desired the welfare of the country, and that therefore few
persons would be found willing to take up arms against them.
{502}
The king then commanded the sheriffs to elect to the next
Parliament those persons only whom he should nominate. They
answered that they could not undertake to secure the election of
any persons but those who were to the people's liking. The king
then summoned the judges to Nottingham, and proposed to them
various questions concerning the rights and prerogatives of the
crown. The judges, either intimidated or guided by Sir Robert
Tressillian, gave answers tending to establish the arbitrary
power of the king and to free his government from the control of
the Parliament. This was the evident object of the whole of this
struggle.
The Wonderful Parliament.
Dissension now broke out between the king and the lords. A
Parliament was convoked. The king inserted in his writs an order
to return those persons who were _debatis modernis magis
indifferentes_; but he was soon obliged to erase this clause,
and to declare it illegal in new writs. The Parliament met on the
3rd of February, 1388, and took precautions to ensure that it
should alone decide upon all great public matters, and that it
should not be dissolved after having voted a subsidy. An
accusation was lodged by five lords, called appellants, against
the favourites of the king, and the judges. This accusation
really conceals a great party conflict beneath the forms of
judicial procedure. The Upper House declared that, on such grave
occasions, the Parliament alone could judge, and was bound by
none of the laws which regulate the proceedings of other courts.
Eighteen persons were condemned, most of them to death, and many
by default. The Parliament separated after having sat five
months. It was called the _Wonderful Parliament_, and also
the _Pitiless Parliament_. It had been careful to declare
that the condemnation of the favourite councillors and judges,
did not in any way throw discredit upon the king himself.
{503}
Increase Of The Royal Power.
The authority of the committee of eleven lords over the
government was exercised without opposition for a year. In May,
1389, the king assembled his council, and declared that, being
now of full age, he was capable of governing his inheritance
himself, and that it was not fitting that he should be in a worse
condition than every subject in his dominions who could freely
dispose of his goods. "It is well known," he said, "that for
several years I have lived under your guardianship, and I thank
you for the trouble you have taken on my account; but now that I
have reached my majority, I am determined to remain no longer
under tutelage, but to take in hand the government of my kingdom
and to appoint or revoke my ministers and other officers
according to my pleasure." He changed the chancellor and other
great officers, and dismissed from his council several of the
eleven lords.
Here began the second epoch in this reign--the epoch of reaction
against the Parliament. Great obscurity prevails as to the causes
which placed Richard II. in a position to effect such a
revolution; but he was most probably emboldened to do so by
division in the committee of eleven lords, and by the bad use
which some of them had made of their power. The king and his new
council governed at first with prudence, and manifested great
respect for the Parliament. On the 16th of January, 1390, a
Parliament was convoked. The new ministers resigned their
offices, and submitted their conduct to its scrutiny. The
Parliament declared that it found no cause for complaint, and the
ministers resumed their functions. Seven Parliaments were held
from 1390 to 1397. They became more and more timid and docile,
and the king's authority assumed an increasingly extended and
arbitrary character. These are the principal facts which
characterize this reaction:--
In 1391, the Parliament assured the king that the royalty and
prerogatives of his crown should ever remain intact and
inviolable; that if they had in any way been infringed, it should
be reformed; and that the king should enjoy as large liberty as
any of his predecessors ever did: "which prayer seemed to our
lord the king honest and reasonable," and he consented to it. In
1391 and 1392, the Parliament admitted the king's power to
dispense with the observance of certain statutes in
ecclesiastical matters, on condition that these statutes should
not be held to be thereby revoked. In 1392, the king, being
offended with the city of London, withdrew from it its liberties
and imprisoned its magistrates; but shortly afterwards he
restored its liberties to the city, and imposed on it a fine of
£1000 sterling.
{504}
In 1394, the judges who had been banished to Ireland by the
Parliament of 1388, were recalled. In 1397, a bill was brought
forward in the House of Commons, proposing that all extravagant
expenditure should be avoided in the royal household, and that
those bishops and ladies who had nothing to do at court should
not have permission to reside there. The king was incensed at
this bill before it was presented to him, and said in the Upper
House, "that it was directed against those liberties and
royalties which his progenitors had enjoyed, and which he was
resolved to uphold and maintain." He ordered the Lords to inform
the Commons of his resolution, and directed the Duke of Lancaster
to command Sir John Bussy, the Speaker of the Commons, to inform
him what member had introduced the bill into Parliament. The
Commons became alarmed, and humbly besought the king's pardon. At
a conference, they placed the bill in the king's hands, and
delivered up to him its proposer, Thomas Haxey. The king forgave
them, and the Parliament itself declared Haxey guilty of treason.
The clergy saved his life by claiming him as a clerk--which
proves that at this period ecclesiastics were not excluded from
Parliament.
In September, 1397, Richard II. at length judged himself in a
position to assume the plenitude of his power, to annul all that
had been done in 1388 to limit his authority, and to avenge his
injuries.
A Parliament was convoked. Every precaution had been taken to
ensure its docility. The sheriffs had been changed; and all sorts
of practices had been put in force to influence the elections.
Numerous bodies of troops formed the royal guard. The Parliament
was opened with great solemnity. The chancellor, the Bishop of
Exeter, took as the text of his speech: _Rex unus erit
omnibus._ Subsequent events fully corresponded with these
preliminaries. All the acts of the Parliament of 1388 were
revoked, and their authors accused of treason; five of them were
condemned to death. The principal leader of the opposition, the
Duke of Gloucester, was assassinated in prison at Calais, after
having been constrained to acknowledge his past crimes in a
confession in which he formerly accused himself of having
"restrained the king of his freedom." After these condemnations
the same Parliament held a second session at Shrewsbury, in which
the answers of the judges in 1387 were declared good and
legitimate, and precisely the same measures were taken to render
these new decisions inviolable, which had been employed by the
Parliament of 1388 to ensure the observance of its own
resolutions. These two sessions lasted sixteen days. In less than
two years afterwards, Richard was dethroned.
{505}
Discontent In The Realm.
He thought himself, however, well secured against such a
contingency; for he had taken all sorts of precautions firmly to
establish the power which he had just regained. The Parliament
had granted him, for his lifetime, the duty upon wools and hides,
upon condition only that this concession should not be regarded
as a precedent by the kings his successors. As several of the
petitions and other matters laid before the Parliament during its
last session had not been fully terminated, the Parliament at its
dissolution appointed a permanent committee of twelve lords and
six members of the House of Commons, to whom it transferred its
powers to regulate and decide, in concert with the king, all
affairs of public business. Richard thus remained surrounded by
the men who had just assisted him to regain arbitrary power; and
although the mission of this committee was limited to the
settlement of those affairs only which the Parliament had not had
time to arrange, it did not hesitate to take possession of the
entire government. In concert with the king, it issued
ordinances, and declared the penalties of high treason against
any person who should attempt to resist its authority; and it
imposed on all the lords the obligation, under oath, to respect
and maintain all that it should enact. All the powers of
Parliament were thus usurped by this committee. Private vexations
were added to this general usurpation; in spite of the amnesty
which had been proclaimed, even by the last Parliament, Richard
continued to wreak his vengeance upon the adherents of the
Parliament of 1388. He extorted money from seventeen counties
under the pretence that they had taken part in the rebellion; and
he forced wealthy citizens to sign blank cheques in order to
ransom themselves from prosecutions for treason, which blanks he
filled up at his pleasure.
{506}
Death Of Richard II.
Such acts as these could not fail to produce general hatred and
indignation; and an accidental cause led to their manifestation.
A quarrel existed between the Dukes of Hereford and Norfolk; and
the last Parliament had left the dispute to the decision of the
king and his committee. A single combat between the two dukes was
appointed to take place at Coventry; but the king anticipated the
duel, and banished both the dukes, one for ten years, and the
other for life. By letters patent, he expressedly authorized the
Duke of Hereford to sue, during his banishment, for the livery of
any lands that might be bequeathed to him. In 1399, John of
Gaunt, Duke of Lancaster and father of Hereford, died. The king
and his committee annulled the letters-patent, and confiscated
the property of the Duke of Lancaster. Richard then set out for
Ireland. On the 4th of July, 1399, the Duke of Hereford, who had
become Duke of Lancaster by the death of his father, landed in
England. He made rapid progress, and when Richard returned to
England, he soon found himself abandoned and taken prisoner. A
Parliament was convoked in his name on the 30th of September.
Richard abdicated. An accusation in thirty-three articles was
drawn up against him; and his deposition was pronounced by the
Parliament. Henry of Lancaster claimed the crown in virtue of a
pretended right of birth. It was granted to him on the 6th of
August, 1399, and new writs were issued for the convocation of a
Parliament within six days. This was impossible: so the same
Parliament met again, and became the Parliament of Henry IV.
Richard, who had been kept prisoner in Pomfret Castle, was put to
death on the 23rd of October, 1399.
This royal catastrophe was the work of force, just as the
deposition of Edward II. had been; but public opinion and public
passion had a much greater share in it. Efforts were made to
impart even to these acts of violence an appearance of
constitutional regularity, and the progress of parliamentary
government may be discerned even in its tragical excitements.
{507}
The Houses Recover Their Strength.
Such were, in a political point of view, the character and
progress of this reign. A few particular facts are worthy of
notice.
1. The extension of the practice of forced loans. In 1378, a
petition was presented that no man should be constrained to
lend money to the king; and it was granted. Nevertheless, in
1386, a writ addressed to several inhabitants of Boston enjoins
them to make every person possessing property of more than
twenty pounds in value contribute to the loan of £200 which the
town had promised to grant to the king, and which would be
received in deduction from the subsidies of the present
Parliament.
2. The principle of the appropriation of subsidies becomes
increasingly prevalent.
3. The Commons make efforts to ensure that their petitions
should not be altered when passed into statutes. In 1382, they
requested the communication of one of the king's ordinances
before it was registered: and desired that some of their
members should be present during the preparation of the rolls.
The affair of Thomas Haxey gives us reason to believe that the
practice commenced, during this reign, of proceeding in the
form of bills discussed and adopted by both Houses before they
were submitted for the sanction of the king. Nevertheless, in
1382, the House of Commons having requested the opinion of the
House of Lords on a question which then occupied their
attention, the Lords replied that ancient usage required that
the Commons should first communicate their opinion to the king
and assembled lords. This very fact, however, proves that the
present form of initiative was about to introduce itself.
4. In 1384, the town of Shaftesbury addressed a petition to the
king, lords and commons, against the sheriff of Dorsetshire,
who had made a false return of an election, and left out the
name of the person really elected. We are not aware of the
result of this petition, but this is the first instance of the
official intervention of the Commons in the matter of contested
elections. Only three examples of analogous petitions are to be
met with in previous times, viz. under Edward II. in 1319,
under Edward III. in 1363, and under Richard II. in 1384. Until
then, the king alone had examined the petition, and referred
its judgment to the ordinary tribunals.
5. In 1382, a statute ordains, under penalty of fine or other
punishment, that all the lords and deputies of the Commons
shall repair to Parliament when they are summoned; and that all
the sheriffs shall cause all due and accustomed elections to be
made, without omitting any borough or city.
{508}
Progress Of Liberty.
These particular acts, as well as the general course of events,
attest the progress of constitutional maxims and practices.
{509}
Lecture XXV.
Summary of the history of the Parliament from the death of
Richard II. to the accession of the House of Stuart.
Progress of the forms of procedure, and of the privileges of
Parliament.
Liberty of speech in both Houses.
Inviolability of members of Parliament.
Judicial power of the House of Lords.
Decadence of the Parliament during the wars of the Roses, and
under the Tudor dynasty.
Causes of this decadence and of the progress of royal
authority, from Henry VII. to Elizabeth.
Conclusion.
The Tudors And Stuarts.
It is impossible to comprehend the entire scope of the character
and influence of great events. Some occurrences, which procure
order and liberty for the present, prepare the way for tyranny
and confusion in the future; while others, on the contrary,
establish absolute power at first, and subsequently give birth to
full political freedom. We cannot fail to be struck by this
reflection when we consider the prodigious difference which
exists between the immediate results and the remote consequences
of the deposition of Richard II. It delivered England from an
arbitrary, insolent, and disorderly government; but sixty years
afterwards it gave rise to the wars of the Red and White Roses,
and to all those cruel internal distractions which facilitated
the establishment of the Tudor despotism: so that the decay of
English liberties, from 1461 to 1640, had its primary source in
the event which, in 1399, had consummated their triumph.
In considering the general character of the state of the
government from 1399 to 1461, under the first three kings of the
House of Lancaster, Henry IV., Henry V., and Henry VI., we must
admit that this period was remarkable neither for the
unchangeableness nor for the progress of institutions. During
this epoch, the Parliament gained none of those signal victories
which distinguished the reigns of Edward III. and Richard II.; no
really new right, no fundamental and previously unknown
guarantee, were added to those already possessed.
{510}
Improvement Of Parliament.
Neither did arbitrary power again assume the offensive, and
obtain the advantage; and the crown and Parliament engaged in no
serious conflict calculated to compromise the existence of either
party, or notably to change their degree of political importance.
In truth, the work of this period was to regularize the results
of previous struggles. The Parliament exercised, without much
opposition, the right for which it had fought during the
fourteenth century, viz., the voting of taxes, the appropriation
of the subsidies, the investigation of the public accounts,
intervention in the legislature, and the impeachment of the great
officers of the crown. The kings, though frequently seeking to
elude the application of these rights, never ignored them
completely, or braved them openly. The whole of the political
machine remained almost unaltered; but though it underwent no
great revolutions, it received many important developments in its
internal organization. Practical ameliorations were sought after
and attained; further consequences were deduced from established
principles; and this epoch is more remarkable for various
improvements in the springs of parliamentary government, than for
the conquest of great rights, or the formation of fundamental
institutions.
The internal constitution of the Parliament, especially during
the course of this period, made important progress; from this
time we may date, with some degree of accuracy, its principal
forms of procedure and its most essential privileges.
One of the most essential is, certainly, liberty of speech.
During the reign of Henry IV., we find the speaker of the House
of Commons demanding it of the king at the opening of every
session. One of the first acts of the first Parliament held
during this reign, in 1399, was to obtain the revocation of the
sentence passed upon Thomas Haxey, in the reign of Richard II.
Every circumstance proves that, under Henry IV., the Commons used
greater liberty of speech than they had previously enjoyed. It
was, indeed, made a subject of special praise to Sir John
Tibetot, speaker in the Parliament of 1406. The king soon
manifested great distrust of the extension given to this right,
which was probably exercised with all the rudeness which
characterized the manners of that time.
{511}
First Opposition To Liberty Of Speech.
In 1410, he told the Commons that he hoped that they would no
longer use unbecoming language, but act with moderation. In 1411,
the speaker, Sir Thomas Chaucer, having made the usual demand at
the opening of the session, the king replied that he would allow
the Commons to speak as others before had done, but that "he
would have no novelties introduced, and would enjoy his
prerogative." The speaker requested three days to give a written
answer to this observation, and then replied "that he desired no
other protestation than what other speakers had made; and that if
he should speak anything to the king's displeasure, it might be
imputed to his own ignorance only, and not to the body of the
Commons," [Footnote 53] which the king granted.
[Footnote 53: Parliamentary History, vol.i. p. 313.]
We meet with no infringement upon the liberty of speech enjoyed
by the Commons until the Parliament of 1455, at which time a
deputy from Bristol, Thomas Young, complained that he had been
arrested and imprisoned in the Tower, six years before, on
account of a motion which he had brought forward in the House.
The object of this motion had been to declare that, as the king
then had no children, the Duke of York was the legitimate heir to
the throne. The Commons transmitted this petition to the Lords,
and the king commanded his council to do whatever might be judged
fitting on behalf of the petitioner.
In all official transactions with the king and the lords, the
Speaker was the mouthpiece of the House of Commons, and for him
especially liberty of speech was then demanded. He acted in the
name, and on the behalf, of the House, on almost all occasions.
In 1406, we find him giving his consent, in this capacity, to the
act which regulated the succession of the crown.
{512}
Imprisonment Of The Speaker.
The inviolability of the members of Parliament was a right of no
less importance than liberty of speech. The ancient Saxon laws
granted protection and security to the members of the
Wittenagemot, in going and returning from the place of meeting,
provided they were not notorious robbers and brigands. From the
formation of the new Parliament, the same right was claimed by
its members, who, as they came to transact the business of the
king in his national council, were entitled to exemption from
arrest or hindrance. In 1403, Sir Thomas Brooke repaired to
Parliament as a representative of Somersetshire; and one of his
suite, Richard Cheddre, was maltreated and beaten by John Salage.
A statute ordained that Salage should pay double damages to
Cheddre, according to the award of the Court of Queen's Bench;
and "moreover, it is granted by the said Parliament that the same
shall be done in times to come, in similar cases." This
circumstance gave rise to a petition of the Commons, who prayed
that all lords, knights, citizens, and burgesses, coming to
Parliament and residing there, might be, as well as their
followers and domestics, under the special protection and defence
of the king, until their return home; and that they might be
arrested for no debt, contract, or suit, or imprisoned in any
manner during that time, under penalty of a fine to be paid to
the king, and damages to the person injured. The king replied
that provision should be made to this effect. The statute of 1403
was renewed in 1433, during the reign of Henry VI.
In 1430, a complaint was laid before the House of Commons on
account of the imprisonment, for debt, of William Lake, the
servant of William Mildred, one of the members for London. He was
set at liberty by a special act of Parliament.
In 1453, the Commons complained to the king and to the lords of
the imprisonment of Thomas Thorpe, their speaker, who had been
arrested for debt at the suit of the Duke of York. The Lords
referred the matter to the judges, who replied through Sir John
Fortescue: "That it was not their part to judge of the
Parliament's actions, who were judges and makers of the laws
themselves; only they said there were divers _supersedeas_
of privilege of Parliament brought into courts; but a general
_supersedeas_, to suppress all proceedings, there was not.
For, if there should, it would seem as if the High Court of
Parliament, that ministered all justice and equity, should hinder
the process of the common law, and so put the party complainant
without remedy, inasmuch as actions at common law are not
determinable in Parliament; but if any member of Parliament be
arrested for such cases as are not for treason, felony, or surety
of the peace, or for a judgment had before Parliament, it was
usual for such person to be quitted of such arrest, and set at
liberty to attend his service in Parliament." [Footnote 54]
[Footnote 54: Parliamentary or Constitutional History of
England, vol. ii. p. 287.]
{513}
Conflicting Opinions.
Notwithstanding this answer of the judges, the Lords decided that
Thorpe should remain in prison: and ordered the Commons, in the
king's name, to elect another speaker, which they did. But this
was a party quarrel; Thorpe was attached to the House of
Lancaster, and the Duke of York was then in the ascendant. The
privilege then existed, but still in a precarious manner, and a
special act of Parliament was necessary on every occasion to
ensure its being put into practice.
It was also during this period that the right of parliamentary
initiative superseded the right of petition. We have already
noticed the abuses originated by the initiative which the House
of Commons exercised by means of its petitions; and that the
petitions were not always faithfully reproduced in the statutes
which they had suggested. We have also seen what efforts had
already been put forth by the Commons to prevent these
trickeries. In 1414, during the reign of Henry V., they
complained of them in a special petition, to which the king
replied by promising that in future the statutes should
correspond exactly to the petitions granted. But this guarantee
was very insecure, and the Commons had already begun to obtain
more effectual securities by accustoming themselves to draw up in
the form of complete bills, the statutes which they had
previously suggested by petitions; and sending them to the House
of Lords, that they might be discussed and adopted by that House,
before they were presented to the king, who then had nothing more
to do than to give or refuse his sanction. It is impossible to
indicate with precision the period at which this important change
took place; for it was accomplished gradually, and was not
remarked by the historians of the time. The usage of petitions
co-existed for some time with that of bills. The following facts
indicate the progress of the change. Under Richard II., in 1382
(and I have already alluded to this fact), the Commons attempted
to obtain the opinion of the Lords, upon a certain question,
before bringing under the notice of the king.
{514}
Clearer Regulations Of The Parliament..
The attempt was repulsed by the Lords, who staked their honour
upon not separating from the king, and upon receiving
simultaneously and in concert with him, the propositions of the
Commons. The complete initiative of the Houses of Parliament
arose, naturally and necessarily, from the voting of taxes.
Originally, as you have seen, each class of deputies voted alone
those taxes which were destined to weigh especially up on
themselves; and the knights of the shire deliberated and voted
upon this matter with the Lords. When the knights of the shire
had fully combined with the deputies of the boroughs--when the
House of Commons deliberated and voted, in a body, upon the same
taxes--it became necessary that the votes on such matters should
receive the consent of the Lords, who would also have to bear the
consequences. Bills passed in reference to subsidies were
thenceforward discussed and voted by both Houses before they were
laid before the king; and the initiative, in its present form,
was thus fully established in this particular case. In 1407, a
remarkable incident brought this form of proceeding to light,
gave it final sanction, and deduced from it at the same time two
other parliamentary rights of great importance. In consequence of
a debate which arose between the House of Lords and the House of
Commons with regard to the initiative of subsidies, three
principles were recognised, and have since remained firmly
established:
1. Parliamentary initiative in its present form;
2. The exclusive initiative of the Commons in the matter of
subsidies;
3. The right of the Houses, that the king should take no
cognizance of the subject of their deliberations until they had
come to a decision upon it, and were in a position to lay it
before him as the desire of the Lords and Commons in Parliament
assembled.
It was natural that that which was practised with regard to
subsidies should soon extend to all matters; and that the
propositions of Parliament, whatever might be their object,
should reach the king as emanating from both Houses instead of
being merely the petitions of one of them. Mr. Hallam affirms,
without giving any particulars, that this practice became general
during the reign of Henry VI., and from this period he dates the
real division of the legislature into three branches. I am
inclined to think that this practice had commenced at an earlier
date, although it was rarely carried into effect; and it is
certain, from the very constitution of Parliament at this epoch,
that it did not become constant and general until a later period.
{515}
In 1406, I find the Commons demanding, by the mouth of the
speaker, Sir John Tibetot, the right of withdrawing their bills
from the House of Lords, at any stage of the deliberation upon
them, in order to introduce amendments; which was granted. The
Commons were therefore already in the habit of occasionally
drawing up their petitions in the form of bills, and of passing
them through the House of Lords before presenting them to the
king.
At this period, the House of Lords was still regarded as the
great council of the king, and as a sort of intermediary between
the privy council and the entire Parliament; and a number of
propositions on matters of government, and even of legislation,
still emanated from the Commons alone, and were presented, in the
form of petitions, to the king and lords. The practice of
initiative by way of bills adopted by both Houses could not,
therefore, have been general. The periods of the king's minority
or absence tended increasingly to impart the character of a great
council of government to the House of Lords. Accordingly these
epochs, and especially the reign of Henry VI., abound in
propositions or petitions of the Commons to the Lords. It was at
a later period, when the king and his privy council had regained
a more independent power than their predecessors had enjoyed
--that is to say, under the Tudor dynasty--that the Upper House
became entirely disjoined from the government properly so called,
and found itself placed, with respect to the king, in almost the
same position as the House of Commons. Then alone did the
practice of proceeding by bills discussed in both Houses before
they were laid before the king, assume a constant and general
character, that is to say, the parliamentary initiative was
definitively substituted for the ancient right of petition
possessed by each House, and especially by the Commons.
{516}
Votes Of Subsidy.
With regard to the order of the debates in Parliament, it was an
ancient custom that the king should not reply to the petitions of
the Commons until the last day of the session; which rendered it
impossible to make the concession of subsidies dependent upon the
king's answers. They endeavoured to reverse this order, probably
during the reign of Richard II.; for the sixth question which he
proposed to the judges was whether, when the king had called the
attention of Parliament to any subject, the Parliament might
attend to other matters before deciding upon the propositions of
the king. The judges replied that such a proceeding was an act of
treason. The answers of the judges of Richard II. having been
declared illegitimate in the Parliament of 1399, the foregoing
_dictum_ was comprised in the general reprobation.
Accordingly, in 1401, the Commons maintained that it was not
their custom to grant any subsidy until the king had replied to
their petitions, and they demanded that this course should be
pursued. The king said that he would confer on the subject with
the Lords, and on the last day of the session, he replied "that
there was never such use known, but that they should first go
through with all other business before their petitions were
answered; which ordinance the king intended not to alter." We do
not find that the Commons then resisted, or attempted to procure
the recognition, in a general manner, of the principle which they
asserted. But this principle was frequently put into practice in
subsequent Parliaments, and the king was forced not to throw any
hindrance in its way. In 1407, Parliament opened on the 20th of
October. On the 9th and 14th of November, the Commons presented
themselves before the king, explained their numerous grievances,
received his answer, and granted no subsidies until the 2nd of
December following. In 1410, Parliament met on the 27th of
January; and it was not until the 9th of May, after it had
obtained satisfaction on several points, among others on the
dismissal of two members of the privy council, that it granted a
subsidy. This practice became almost constant during the reign of
Henry VI. We find an evident proof of this in the Parliament held
in November 1455. The Commons sent several times to demand of the
Lords the appointment of a Protector for the kingdom, on account
of the imbecility of Henry VI.; and the Archbishop of Canterbury
urged the Lords to give a definitive answer, "for it is well
known that the Commons will not give attention to any affairs of
the Parliament until they have obtained an answer, and
satisfaction of their request."
{517}
Judicial Powers Of The Lords.
The principle had, therefore, become a fact, and was generally
admitted as a fact.
It was also during the course of this period that elections to
Parliament, and the rights of Parliament in the matter of
elections, began to be regulated. I have already observed in
treating of the formation of the Parliament, that the electoral
system had been definitively established by statutes of Henry IV.
in 1405, and of Henry VI. in 1429 and 1432. Many facts prove that
at this date the importance of the House of Commons had become so
great; that the elections were a subject of frequent frauds. A
number of statutes of detail, during the reign of Henry VI., were
passed to prevent such frauds, and to regulate the procedure by
which they should be investigated and punished. Then also, for
the first time, we find conditions imposed on the choice of the
electors. The ancient spirit of electoral institutions required
that the persons elected should be inhabitants of the county or
town which they were chosen to represent. This was converted into
an express law by a statute of Henry V. in 1413, which was
renewed by a statute of Henry VI., in 1444; but the law has
fallen into desuetude by the force of circumstances, without ever
having been formally repealed.
The judgment of elections continued to belong, during this
period, to the lords and the king's council, who were frequently
urged to exercise this prerogative by petitions from the Commons.
It was also at this epoch that the judicial power, which
originally resided in the entire Parliament, was declared to
belong exclusively to the House of Lords. This declaration was
made in 1399, at the suggestion of the Commons themselves, and by
the mouth of the Archbishop of Canterbury, who said: "That the
Commons were only petitioners, and that all judgment belonged to
the king and lords; unless it was in statutes, grants of
subsidies, and such like." Since this period the Commons, when
they desired to interfere in judgments otherwise than by
impeachment, were obliged to employ the means of bills of
attainder. They adopted this plan in the case of the Duke of
Suffolk in 1450, and very frequently afterwards.
{518}
Resistance To The Commons.
These are the most notable marks of progress made, during this
period, by the constitution and forms of Parliament. If we now
consider Parliament, no longer in itself and its own internal
proceedings, but in its relations to the government properly so
called, we shall find that its rights and influence in matters of
taxation, legislation, and public administration were the same as
it had won under Edward III. and Richard II., and that it merely
exercised them with greater assurance and less opposition. Henry
IV. tried more than once to resist the power of the House of
Commons; but it had set him upon the throne, and felt itself in a
position to confine him within the limit of his authority. In
1404, it demanded of him the dismissal of four officers of his
household; and he replied with singular humility "that he knew no
cause why they should be removed, but as the Lords and Commons
judged it for the interest of the kingdom and his own advantage,
he would remove them, and would do as much in future to any
minister who should incur the hatred of his people." In 1406, the
Commons submitted for the approbation of the king thirty articles
which, they said, they had drawn up to ensure the better
administration of public affairs, and which they demanded that
the king's officers should swear to observe. These articles,
though of a temporary nature, were intended to repress many
existing abuses, and to restrict the royal prerogative in certain
respects. The king thought that he could not refuse his assent.
Towards the end of his reign, Henry IV. appeared more bold, and
less disposed to yield unresistingly to the control of the
Parliament; but his death prevented all serious conflict. The
glory of Henry V. and the passion for wars with France filled up
his somewhat brief reign; the Parliament sustained him in all his
measures, and even went so far as to grant him, in 1415, a
subsidy for life, with power to use it arbitrarily and at his
pleasure. During the minority of Henry VI., or rather during all
that part of his reign which was not stained with civil war, and
was in fact a long minority, the power of Parliament reached its
climax, and absorbed the entire government. All matters were
decided between the Lords and Commons; but it was too soon for
the nation, thus left to its own guidance, to provide itself with
a regular government. Violent factions arose among the
aristocracy, which the House of Commons was not in a condition to
repress. That great development of public institutions and
liberties which had commenced under king John, and continued with
such regularity since the reign of Edward III., was suddenly
interrupted, and England plunged into the violent anarchy of the
wars of the Red and White Roses, to emerge only into the
despotism of the House of Tudor.
{519}
Review Of The State Of Europe.
How came it that institutions, already so strong and active, at
least in appearance, decayed so rapidly? How came it that
parliamentary government, which seemed in possession of all its
essential rights and principles, paused in its progress, and
yielded for more than a century to the rule of an almost absolute
monarchy? Now that I have reached the conclusion of this course
of lectures, I cannot investigate with you the causes of this
apparently singular fact; but they may be discerned in another
very remarkable fact in the analogy which prevails between the
history of England and the history of France at this period. In
France, also, during the fourteenth and fifteenth centuries, we
discern the appearances of attempts at representative government;
these incoherent and superficial essays were succeeded by the
wars of religion, the League, and the great disorders of the
sixteenth century; and order was not restored, France did not
regain repose and vigour, until the establishment of absolute
power by Cardinal Richelieu and Louis XIV., and by the
annihilation, as a political power, of that ancient feudal
aristocracy who had been able neither to procure for the country,
nor to assume for themselves, in the government of France, their
legitimate and lasting position.
In England, as you have just seen, representative government,
originating in the thirteenth and fourteenth centuries, did not
confine itself to incoherent and feeble essays; but established
itself upon its essential foundations, and speedily obtained
considerable development. The sanguinary conflicts for the
succession to the throne, the protracted dissensions of the Red
and White Roses, abruptly arrested its progress. Just as in
France, from the reign of Louis XI., we hear nothing of attempts
at the establishment of free institutions, so in England, during
the reigns of Edward IV. and Richard III., the Parliament has no
history.
{520}
In the intervals of the civil war, it appears only as the
instrument of the vengeance of the victorious party, and to pass
bills of attainder against the leaders of the vanquished faction.
It voted a few taxes, but this was the only one of its rights
which, it still maintained, and even this was eluded by the
practice of _Benevolences_, or gifts in appearance
voluntary, but in reality compulsory, of which we meet with a few
examples in antecedent times, but which received great extension
under Edward IV. Finally, more than once several years elapsed
without a Parliament being convoked, especially from 1477 to
1482; such a suspension had been unprecedented since 1327.
The civil wars of the fifteenth century, however, are only the
superficial, and as it were, external cause of this sudden
decadence of representative government in England; in order to
discover its true cause, we must penetrate deeper into the state
of society.
Until this period, the three great forces in English society
--the royal power, the aristocracy, and the Commons--had
maintained intimate and continual relations amongst themselves,
and had served each other by turns, either as an obstacle or as a
means of success. It was by the aid of the great barons that the
Commons had been enabled to win their liberties. The royal power,
though strong in itself, had nevertheless been obliged to resort
sometimes to the barons, and sometimes to the Commons. From the
political concurrence of these three great social forces, and
from the vicissitudes of their alliances and fortunes, the
progress of representative government had resulted. Liberty can
be established only where there does not exist in the State any
constituted power sufficiently preponderant to usurp absolute
authority.
In the latter half of the fifteenth century, the equipoise of
these three forces ceased. The royal power disappeared in some
sort, in consequence of the imbecility of Henry VI. and
afterwards by the uncertainty of the right of succession to the
crown. The government fell into the hands of the high
aristocracy, who were divided and distracted by their intestine
quarrels. The Commons were not in a condition to act the part of
mediators between these terrible factions, and to impose upon
them respect for public order.
{521}
The knights of the shire took part in the train of the great
barons with whom they were still dependently connected by a
multitude of ties: and the towns, thus left alone, could do
nothing, but were carried away in the general stream. In this
state of disorder and violence, the Commons disappeared, or if
they were not materially annihilated, their political power
vanished. The high aristocracy worked its own dissolution; many
great families were destroyed, and many more were ruined. Henry
VII., at his accession, found only the wreck of that nobility
which had made his predecessors tremble. The great barons,
wearied with their own excesses, and stripped of a great part of
their resources, were no longer inclined or able to continue that
struggle against the royal power, which had been headed by their
ancestors ever since the days of king John. On this side
therefore, the royal power no longer had any powerful
antagonists. On the other side, the Commons, wasted and enervated
by civil war, were not in a condition to take the place of the
high aristocracy in the struggle against the royal authority.
They had taken part in the government as followers of the nobles;
and when they found themselves standing almost alone in presence
of the crown, it did not even occur to them that this
interference was their right: they, therefore, contented
themselves with defending a few special rights, particularly that
of consenting to large subsidies; and, in other respects, they
allowed themselves to be governed. Hence arose the government of
Henry VIII., and at a later period, that of Elizabeth.
More than a century was requisite to enable the English
Commons--re-invigorated and strengthened, in a material point of
view, by long years of order and prosperity, and in a moral point
of view, by the reformation of religion--to acquire sufficient
social importance and intellectual elevation to place themselves,
in their turn, at the head of the resistance against despotism,
and to draw the ancient aristocracy in their train. This great
revolution in the state of society broke out in the reign of
Charles I., and determined that political revolution, which,
after fifty years of conflict, finally established representative
government in England.
The End.
{522}
{523}
INDEX.
Acts of the Oxford Parliament, 357
Adalid Mayor, 248
Adalides,
election and office of the, 247, 248
Administration of Diocletian, 24
Alaric II.,
king of the Visigoths, in Gaul, 208
Alfaqueque,
appointment of, 249
Alfred the Great,
influence of,
on English legislature, 30, 41;
right of, to the throne, 53
Algila,
king of the Visigoths, 210
Allodium,
characteristics of the, 107
Allods, 106;
conversion of, into benefices, 125;
proprietors of, 107, 135
Almocadene,
appointment of the, 249
Almogavars, 248
Alode,
origin of the term, 106
Amalaric,
king of Spain, 209
Ambassadors,
French, 108
America,
elections in, 407, 408
Anglo-Saxons, 29, 37;
resemblance of, to the Normans, 281;
subjection of the, 286;
general assemblies of the, 49;
institutions of the, 38, 46, 282, 284
Anglo-Saxons, Saxon heretochs,
election of, 247
Anglo-Saxons, Normans,
institutions of the, 282, 314
Antiquity,
study of, 5-7
Antrustions, see Leudes.
Apocrisiary, or keeper of the palace, 166
Arianism, introduction of, into Spain, 210
Arimanni, or Rathimburgi, 146
Aristocracy,
origin of the, 34;
signification of the term, 56;
historical definition of, 66;
influence of the, 235
Aristocracy,
feudal origin of the, 135, 143;
powers of the, 299
Aristocracy, French, 97
Aristocracy, Norman, cohesion of the, 286
Aristocracy, Saxon, 271
Army, privileges of the,
under the Roman Empire, 194
Arthur, duke of Bretagne, 309;
death of, 310
Assembly, general, of the Saxons,
see Wittenagemot
Assemblies,
Germanic, 47, 163
Assemblies,
national, first termed Parliaments, 356
Assemblies,
of the Franks, 163, 164;
decay of, 171;
revival of, under Charlemagne, 164;
Hincmar, on the, _ib_.
Assemblies, of the Normans, 298, 311
Assemblies, of the Saxons, 291, 293
Assemblies, of the Visigoths, 210
Assessors,
appointment and duties of, 44, 158, 239
{524}
Assizes, first appointed, 315
Athanogild, 210
Austrasia,
kingdom of, 88;
queen of, 89, 210
Authority,
judicial, institution of, 239
Authority,
parental, legitimacy of, 345
Authority,
regal, progress of, in England, 499, 500, 521
B.
Ballot, origin of the scheme, 408
Barbarianism, epoch of, 258
Barons,
original qualifications of, 294;
tyranny of the, 358;
wealth of the, 457;
struggles of, with the Commons, 497-501
Barons,
Council of, 423
Barons,
factions of the, 518, 519
Barons, Norman,
coalition of the, 300, 303, 309, 311;
increasing powers of the, 306;
contests of,
with King John, 311-318;
with Henry III., 322;
with Edward I., 327;
with Edward II., 456
Barons, French, powers of the, 101
Basques, see Vascons.
Becket, Thomas,
rise of, 275;
fall of, 278
Belgium, settlement of the Franks in, 84
Benefices, 112;
tenure of, 114, 115, 120, 135;
transference of, 116;
conditions attached to, 124;
character of, 125
Benefices, Montesquieu on, 117
Benefices,hereditary, 119
Beneficiaries, 135, 160
Benevolences, substitution of, for taxes, 520
Bills,
parliamentary, origin of, 514;
amendments to, first permitted, 515
Bills, of attainder, 517
Bishops,
powers of, in Gaul, 143;
nomination of, 144;
position of, in the Roman Empire, 200, 205;
political preponderance of, 221
Black Prince, the, 489, 490
Borough representation, corruption of, 386
Boroughs,
progress of the liberties of, 28;
deputies of, first called to Parliament, 361;
forms of elections for, 387
Boroughs, representatives of, 384, 385
Bracton, on "Sovereign power," 267
Breviarium Aniani, 209, 241, 245;
abolition of the, 244
Britain, a Roman colony, 25;
first inhabitants of, 270
Britons, origin of the, 270
Brunehaut,
queen of Austrasia, 89
ancestors of, 210
C.
Cambridge, University of,
first represented in Parliament, 373
Capacity,
electoral, 395, 396;
legal signs of, 397
Capitularies, 168
Carlovingians,
wealth of the, 113;
dissolution of the kingdom under the, 95;
monarchy of the, 157;
fall of the, 160, 171
Catalonia, origin of the name, 207
Castile, ancient customs of, 246
Centralization,
origin of, 39;
object of, 201
Centralization,
progress of, in England, 268, 275, 289, 316, 364
Centralization,
tendency to, in France, 94, 158;
progress of, 160, 170, 201
Centralization, in Rome, 184, 201
Centralization, monarchical, 158
Centralization,
of power opposed to representative government, 520;
origin of, 289;
tendency to, in England, 364, 497;
tendency to, in France, 100, 289
Ceorls, history of the, 33-37
{525}
Chamberlain, office of, 166
Champs de Mars,
assemblies of, 80, 163-169
Champs de Mai, 171
Chancery, courts of, 297
Charlemagne,
political aspect of the reign of, 96 98;
attempt of, to establish monarchy, 149, 158;
government of, 154, 157, 170
Charles the Bald,
reign of, in France, 99;
government of, 158, 171;
laws of tenure under, 120
Charles the Fat, reign of, 100
Charters,
origin of, 300
Charters, English,
history of, 302-306;
general character of, 319;
statute in confirmation of, 330
Charters, of Edward I., 328
Charters, of Henry I., 273, 304
Charters, of Henry II., 306
Charters, of Henry III., 320;
violation of the, 321;
revocation of, 322;
confirmation of, 323, 324
Charters, of John, 309, 311, 316
Charters, Magna, or the great, 313-317
Charters,
relating to forests, 316, 321;
confirmation of, 493
Charters, of Stephen, 305
Charters, of William the Conqueror, 303 _n._
Charters, of manumission, 498
Charters, granted to the clergy, 311
Chartularii, 147
Chiefs, Frankish, 83
Childeric, 83
Chindasuinth, 212
Chintila, reign of, 212
Christianity,
dawn and growth of, in Rome, 187, 189;
effects of, on society, 162, 190
Chronicles, European, 259
Church,
early endowment of the, 144;
first union of, with the state, 144
Church,
property, seizure of, 118
Cinq Ports,
political importance of the, 365
Cities, defenders of,
appointed, 199;
duties of, 242
Citizenship, Roman,
terms of admission to, 182, 185
Civil list,
origin of the, 496
Civil courts, powers of the, established, 276
Civilization,
effects of, on society, 32, 33;
its aid to power, 39;
progress of, 155;
chief aim of, 161
Civilization,
in England, 282
Civilization,
European, unity of, 257
Clarendon, constitution of, 276-278, 292
Clarissimi, 193, 194
Classification of persons,
principles of, 134, 135, 137, 138, 193
Classification of members, 421, 422,
Classification of governments, 61, 75
Clement V.,
bull of, 332, 333;
letter of, to Edward I., 332
Clergy,
influence of the, 98, 162, 177, 190, 205, 212;
privileges of the, 194;
political predominance of, 220;
incompetency of, for government, 232;
powers of the, 276, 310;
decline of, in England, 282, 491;
contests of, with royalty, 310;
charters granted to, 311;
statutes in favour of, 499
Clovis,
wars of, 84;
death of, 85;
successors of, 86
Code of English laws, 286
Code of the Visigoths, 177
Colonies,
Roman, 25;
state of the, 179
Comitia, the, in Rome, 184, 185
Commons,
admission of the, to Parliament, 370-373, 451;
formation of the, 422;
intervention of, in matters of peace or war, 485;
political influence of, 452, 487, 495;
progressive rights of the, 400, 476, 480, 488, 496, 516;
resistance of, to regal power, 477, 499, 501;
power of, in government, 495, 497;
annihilation of the, 521
{526}
Commons, House of, 268, 418-423, 437
Commons, House of, a secret assembly, 81
Commons, House of, in France,
enfranchisement of the, 424
Committees, parliamentary, first formed, 492, 497
Compurgation, 250-252
Concilium, attributes of the, 290, 448, 449
Concilium, Regni, 290
Confiscation, 286
Conquest, Norman, 271;
effects of the, 281, 283, 285;
results of, 287, 288
Conquest, of England by Louis of France, 318
Conquest, of Gaul, 84, 91
Constitutions of Clarendon, 276-278, 292
Constitutions of English, basis of the, 309
Convocation, writs of, 371, 373
Corporation, municipal, right of, to elect members, 385
Cortes, acts of the, 246
Councils of Clarendon, 276
Councils of barons, 315, 320, 423
Councils of kings,
various names of the, 291, 292, 448;
increase of the, 489
Councils of State, 165
Council, national,
of England, 448, 449;
dispersion of the, 459
Council of Northampton, 292
Councillors,
election of, 165;
duties of, 167
Counts,
institution of, 152;
jurisdiction of, 152;
rise of, 158
Counties,
deputies of, called to Parliament, 351, 362
Counties, progress of the representation of, 363
County courts,
origin and laws of, 43, 150;
effects of, on feudalism, 287;
members of, 352;
functions of, 379
Courts,
civil powers of, established, 276
Courts, of Chancery, 297
Courts, of Exchequer, 297
Courts, of kings, 291, 294
Courts, of law, established in England, 297
Cromwell, Parliament under, 6, 7
Crusades, 279
Curator, 198
Curatores, 199
Curfew, laws of, 271
Curia,
attributes of the, 183, 188, 197;
importance of the, 243;
abolishment of, 204
Curia, de more, 290, 291
Curia,
regis, 291;
constitution of the, 293
Curials of the Roman Empire, 183, 193;
functions and charges of, 195
D.
Danegeld, the, 296, 305
Danes,
establishment of, in England, 270;
affinity of, to the Normans, 271
David Bruce, 486
Debt, national, progress of the, 507
Debates, parliamentary, order of, 515
Decurio, origin of the term, 183
Defensores,
appointment of, 199;
result of the, 200;
duties of, 242
Democracy,
principles of, 70
Democracy,
compared with representative government, 73, 445
Denariales, 146
Deputies of boroughs,
first called to Parliament, 361
Deputies of counties,
admitted to Parliament, 351, 363;
relation of, to the great barons, 354;
election of, 381;
union of, with borough members, 422
Deputies of towns,
first admitted to Parliament, 365
{527}
Despotism,
origin of, 156, 158, 341;
tests of, 170, 187;
union of, with privilege, 194;
forms of, 444
Despotism,
Roman, 161, 199;
effects of, in the west, 180;
dangers of, 187;
principles of, 204
Diocletian, administration of, 24
Dissolution,
tendency to, in early states, 95, 101;
phenomena of, 102
Districts, electoral, 404
Donors of benefices, 124
Doomsday-book,
compilation of, 286;
tythes granted by, 326 _n_.
Dukes,
appointment and jurisdiction of, 152
Duty on wool, first imposed, 326
Duumvir, 198
E.
Edward I.,
reign of, 325-330;
exactions of, 326;
quarrels of, with the nobles, 327, 329;
statute of, 330;
character of, 368;
Parliaments of, 368, 370, 371, 374
Edward II.,
reign of, 454-461;
Parliaments of, 455;
deposition of, 457
Edward III.,
reign of, 476, 484-489;
death of, 490;
Parliaments of, 495-498
Egica, succession of, 214
Eginhard,
on the "Tenure of Benefices," 117, 124
Election,
direct advantages of, 408;
necessity of, 411
Election,
indirect evils of, 412, 413;
source of, 416
Elections,
an element in representative government, 80, 409;
evils of, 407
Elections,
American, forms of, 407
Elections,
of borough members, 387
Elections,
of councillors, 166
Elections,
of county members, 381
Elections,
English, 404-407
Elections,
French, 408
Elections,
of kings, 222
Elections,
of knights, 380, 419;
by the sheriff, 354
Elections,
under the Merovingians, 159
Elections,
by vote, limited power of, 339
Elections,
character and power of, 63;
introduction of, 80;
forms of, 387;
necessity for, 265;
effects of, on feudalism, 422;
advantages of, 408;
fundamental law of, 405;
influence of kings upon, 492 _n_.;
abuses of, first repressed, 491;
parliamentary interference in, 507
Electors,
original qualification of, 377, 381, 385;
two classes of, 393;
rights of, 406, 407
Emperors, powers of the, 28
Empire, Roman,
political sterility of the, 24;
social condition of, in the 5th century, 193-203;
fall of the, 187, 205;
position of bishops under the, 200, 205;
Honorati of the, 243
Enfranchisement,
modes of, 146, 147;
progress of, 173;
effects of, on the continent, 424
Enfranchisement,
general, 498
England,
early history of, 29-31, 270;
division of the soil, 42;
representative government in, 56, 69, 258, 263, 266, 268, 519;
progress of feudalism in, 274, 280;
civilization of, 282;
conquest of, by Louis of France, 318;
facts which decided the political destiny of, 423;
modern state of, 448;
political aspect of, in the reign of Edward III., 477;
institutions of, 30, 149, 284, 494
Enquiry,
right of, 473
Enquiry,
commissions of, instituted, 487
Epochs of European history, 258
Error, sources of, 4
{528}
Error of the Whigs and Tories, 293, 462
Erwig, usurpation of, 213
Escuage,
establishment of, 306;
laws of, 313
Euric, king of the Visigoths, 208
Evesham, battle of, 362
Evil, conflicts of, 68
Exchequer, court of, instituted, 297
Excommunication, 310
F.
Fact, philosophy of, 426
Favourites, empire of, in England, 455, 500, 502
Feudalism,
characteristics of, 14, 35, 104, 120, 173;
first principles of, 41;
importance of, to the formation of society, 130;
rapid extension of, 146, 158, 171;
origin of, 148;
conflicts of, 149;
rudiments of, 151;
influence of, 175;
epoch of, 258;
establishment of, in England, 271, 280;
decline of, in England, 437
Feudalism,
in France, 95, 285;
effects of, 102;
progress of, 110, 111, 113;
predominance of, 153;
attacks on, 173;
source of, 284.
Feudalism,
effects of, on the Saxons, 286
Fidelity, oaths of, 123
Fiefs, book of, 117
Forests, charters relating to, 316, 321, 493
Formation and dissolution, phenomena of, 102
Fortescue, on "Sovereign Power," 267
Forty-shilling freeholders, origin of, 381
Forum Judicium,
laws of the, 216, 224, 226, 237;
study of the, 255
France,
historical position of, 3;
absolute monarchy in, 56;
representative government in, 62, 175, 519;
early settlements of, 84;
partition of the realm, 87, 92;
national assemblies established in, 163 169;
centralization of power in, 289
Franks,
origin of the, 82;
countries first inhabited by, 88;
institutions of the, 83, 103, 149;
first habitations of, 111;
condition of, under the Romans, 134;
national assemblies of the, 163, 174;
results of their settlement in Gaul, 172
Franks,
under Charlemagne, 97
Fredegonde, queen of Neustria, 89
Free-men,
various classes of, 136;
rank of, 143;
signification of the term, 145
Free-men,
in Rome, 193
Freeholders,
origin of, 295, 378
Freeholders,
court of, 353, 379
Freeholders,
rights of, 380, 381, 385
Fueros, or ancient customs of Castile, 246, 247
G.
Gaul,
invasion of, by the Germans, 26;
conquest of, by Clovis, 84;
by Pepin, 91, 93;
territorial division of, 103, 150;
settlement of the Franks in, 172;
Visigothic monarchy in, 208
Germany,
Franks in, 84;
primitive state of society in, 148;
institutions of, 148
Gibbon, history by, 259, 260
Goths,
character of the, 236;
laws of the, 246
Government,
forms and principles of, 56, 58, 443;
co-existence of, with society, 57;
true laws of, 60;
problem of, 78;
twofold object of, 155;
theories of, 341
Government,
aristocratic, 66, 70;
consequences of, 68, 457
Government,
central, rise of, 289;
principal organ of, 452
{529}
Government,
ecclesiastical, 51, 234
Government,
free, progress towards, 302
Government,
English, sources of, 283;
fundamental principles of, 369
Government,
local, 240
Government,
monarchical, sources of, 444;
encroachments upon, 487
Government, parliamentary,
struggles of, with absolute power, 495-501
Government, representative,
origin of, 12;
distinct features of, 47, 61;
principles of, 55, 71, 77, 264, 265, 267, 440, 441;
aim of, 62, 64;
requirements of, 67;
forms of, 77, 266;
characteristics of, 265;
formation of, 302;
nature of, 340, 348, 440
Government, representative, in England,
causes which led to the establishment of, 267, 289, 521;
first development of, 354, 355;
necessity for the perfecting of, 474, 475;
decadence of, 520
Government, representative,
in France, 62, 175, 519
opposed to absolute power, 441
Government, representative,
under the feudal system, 175
Government, representative,
the government of the majority, 72
Motesquieu on, 56
Governments,
classification of, 61, 75
Governments,
free, 449
Grants, parliamentary, 419, 420
Gregory VII., Pope,
contests of, with William the Norman, 272
Gundemar, reign of, 211
H.
Harold, usurpation and death of, 271
Henry I.,
usurpation of, 272;
reign of, 273;
death of, 274;
charters of, 304
Henry II.,
reign of, 275;
charters of, 306;
negotiations of, with Rome, 278;
Parliaments of, 292
Henry III.,
reign of, 319;
charters of, 320, 321, 323;
struggles of, with the barons, 355, 356, 359;
Parliaments convoked by, 360, 362;
political character of, 368
Henry IV., reign of, 518
Henry V.,
parliamentary character of the reign of, 518
Hierarchy of feudalism, 175
Hincmar, Archbishop,
letter of, on national assemblies, 164
History,
simultaneous development of, 1, 2, 11;
aspects of, 259, 260;
adoption of, to the present age, 261
History, of the Anglo-Saxons, 29, 37
History, of England,
sketch of, 270;
remarkable fact in the, 494
History, of English towns, 364
History, European, epochs of, 13, 258
History, of free nations, 260
History, philosophic, 260
History, poetical, 259
History, political, 262
History, practical, 260
Honorati, the,
under the Roman empire, 243
Honorius III.,
decrees of, 321
House of Commons,
origin of the, 268, 419-423, 437;
early importance of, 424;
rights of the, 480;
participation of, in the legislature, 481
House of Commons,
in the 14th century, 388
House of Commons,
in the reign of Henry III., 484
House of Commons,
in the reign of Edward II., 458
House of Commons,
speaker of the, first chosen, 478
{530}
House of Lords,
origin of the, 419-423, 435;
results of the establishment of the, 437;
increasing powers of, 486;
struggles of, with the Commons, 498
House of Lords, in the 15th century, 515
Houses of Parliament,
origin of the separation of the, 314, 418;
distinct characters of, 372, 478
Hubert de Burgh, 322
Hugh Capet, 101, 160;
succession of, 171
Hullman, Dr.,
views of, on the social state, 104
Hume, history by, 259, 260
I.
Independence under the feudal system, 130
Independence, individual, 156
Industry, national, protection of, 491
Inequality, tendency of society to, 440
Influence, political, 231
Initiative,
right of, 464, 467, 483;
abuse of, 471;
introduction of the present form of, 507
Innocent III., Pope, 311, 317
Institutions,
points necessary to the study of, 32;
three systems of, 148
Institutions,
ancient, study of, 4, 7
Institutions, Anglo-Norman, 282;
political estimation of the, 283, 314, 328
Institutions, Anglo-Saxon, 38, 46, 282, 284;
political estimation of, 283
Institutions,
central, 46, 52, 159, 229, 282
Institutions, English,
foundations of the, 30, 284
Institutions, European, 3, 13;
general character of, 23;
origin of, 281
Institutions, feudal, establishment of, 172
Institutions,
Frankish, 82;
difficulties relating to, 103, 104, 149
Institutions,
free, birth of, 254;
establishment of, in England, 28, 284;
circumstances favourable to, 494;
decline of, 149, 172
Institutions,
of liberty in Germany, 148
Institutions,
local, 1, 150;
results of, 45, 150
Institutions,
of the Visigoths, 237
Institutions,
monarchical, decline of, 158, 172
Institutions,
political, study of, 11
Institutions,
Roman, 235
Insurrections in England, 323, 355, 360
Ireland, conquest of, 279
Irenarchæ, 199
J.
Jews, treatment of, by the Visigoths, 211;
massacre of the, 271
John, reign of, 308-318;
character of, 301;
excommunication of, 310
Judges, laws referring to, 239, 240;
appointment of, 315
Jurisdiction, seignorial, extension of, 153
Jurisdiction,
of counts, 158
Jurisdiction,
of dukes, 152
Jurisdiction,
Norman, 296
Juries, Gothic, in Spain, 247
Jury,
origin of the, 44;
election of officers by, 249
Justice,
character, and power of, 33;
administration of, according to Magna Charta, 314
Justices,
itinerant, 297
Justinian,
laws of, 199;
possessions of, 210
K.
Kingdom of the Franks,
division of the, 92, 95
{531}
Kingdoms,
barbarian foundation of, 27,86, 87
King's court, 291, 294
King's ministers, appointment of, 488
Kings,
origin of the appointment, 53;
private domains of, 113;
progress of the power of, 151, 486;
duties of, 169, 225;
election of, 222
Kings,
Anglo-Saxon, 53
Kings,
Frankish, 113
Kings, of France,
maintenance of, 108
Kings, Norman,
wealth of, 295;
government of, 290, 298
Kings,
of the Visigoths, 207-214
Knights of shires,
appointment of, 351, 353, 354;
admission of, to Parliament, 353;
influence of, 358, 359;
election of, 380, 419
L.
Lands,
distribution of, in France, 111;
condition of, a symbol of the condition of persons, 105
Lands,
allodial, 106;
division of, 106;
taxation of, 108
Lands,
beneficiary, 112
Lands,
salic, 106, 107
Lands,
tributary, 126
Lands,
waste, 128
Landowners,
power of, 47, 377;
benefices conceded by, 124
Language, changes in,
connected with the changes in society, 65
Law,
theory of, 217, 218
Law,
courts, established in England, 297
Law,
of the inviolability of members, 511;
infringement of the, 512
Law,
Divine, the true law of man, 60, 347
Law,
man, subject to, 60, 349
Laws, barbarian, 137, 215
Law,
of compurgation, 250, 251
Law,
criminal, principles of, 226
Laws of Henry I., 273
Laws relating to judges, 239, 240, 315
Laws relating to slaves, 227
Laws, Saxon, 286
Laws, of tenure, 1, 14, 117, 120, 135
Laws of the Visigoths, 119, 125, 177, 208, 215, 229, 236
Laws of William the Norman, 271
Leicester, Earl of,
result of the insurrection headed by, 323, 355, 360;
government of, 361;
death of, 362
Legislation, theory of, 216
Legislation, Anglo-Saxon, 36, 41
Legislation, according to Magna Charta, 314
Legislation, parliamentary, 480, 481
Legislation, under William the Norman, 45, 272
Legislation,
of the Visigoths, 215, 228;
defects of the, 229
Legislature,
division of the, into three branches, 514
Legislature,
English, 30, 41
Leovigild, reign of, 210
Leudes,
appointment of, 141;
offices held by, _ib._;
duties and emoluments of, 142;
rise of the, 160
Liberalism, progress of, 369
Liberty,
demands of, on society, 133;
character of, in the early ages, 135;
aspects of, 154, 155;
principles of, 201, 205;
guarantees of, 240;
sources of, 269;
theory of, 335
Liberty, natural, 155
Liberty, moral, 155
Liberty, municipal, 241-244
Liberty, personal, two meanings of, 154
Liberty,
political, origin of, 283;
secret of, 443;
principles of, 450
Liberty, of the press,
advantages arising from the, 64, 81, 264
Liberty, social, 155
{532}
Liberties, English, causes of the, 283, 424
Liberties, of the Franks, Mannert on the, 143
Liuva I., reign of, 210
Liuva. II., death of, 211
London, early political importance of, 365
Lords, committee of, appointed, 501
Lords, struggles of the,
with royalty, 502;
with the Commons, 496, 498
Lords,
House of, 419-423, 435;
results of the establishment of, 437
Lords,
ordainers, institution of, 456,
measures of the, 477
Louis the Debonnair, reign of, 98, 99, 158, 171
Louis the Prince,
conquest of England by, 318;
his resignation of the kingdom, 320
Louis, St.,
arbitration of, between Henry III. and his barons, 360
Loyalty,
general requirements of, 123
M.
Magistrates,
appointment of, 45, 361;
various kinds of, 238
Magistrates,
municipal, 198, 199
Magistrates,
local, 238
Magna Charta, 309;
analysis of, 313-316;
violation of, 317;
confirmation of, 493
Magnum Concilium, 290
Magnum commune consilium regni, 448
Majority, sovereignty of the, 340
Man, a free agent, 427
Mannert, on "the liberties of the Franks," 143
Mariana, Abbé, on Councils of Toledo, 241
Marshals of England appointed, 327
Martel, Charles, 91, 92;
seizure of church property by, 118;
despotism of, 157
Matilda, queen of Henry I., 273
Matilda, daughter of Henry I., coronation of, 274
Mayors of the palace,
institution of, 90;
authority of, 164
Members of Parliament, 383;
nomination of, 377;
election of, 385;
classification of, 421-422;
inviolability of, 511;
salaries paid to, 383, 461
Merovingians,
fall of the, 91, 160;
tendency of events under the, 94
Might and right, amalgamation of, 431
Ministers of State, responsibility of, 488
Monarchy,
issue of, from feudalism, 174;
progress of, under Charlemagne, 15, 157
Monarchy,
absolute, in France, 56, 149
Monarchy,
absolute, in England, 519
Monarchy,
Anglo-Saxon, 48
Monarchy, English, 266;
character of the, 267;
increasing powers of, 451
Monarchy, Frankish, 89;
decline of, 158
Monarchy, French, 86;
extension of, 148, 149
Monarchy, of the Visigoths, 208-214, 221;
destruction of the, by the Arabs, and consequent results, 254
Montesquieu, on "Representative government," 56
Montesquieu, on the "Tenure of Benefices," 116
Montesquieu, on the "Origin of Nobility," 142
Montfort, Simon de,
rebellion of, 355, 360;
death of, 362
Municipia, 181;
constitution of the, 184;
growing importance of, 186;
burdens of the, 188;
decay of the, 191
Murder, punishment of,
under the feudal system, 137, 138
{533}
N.
Nations, free, history of, 260
Nature, law of, 8, 129
Neustria, kingdom of, 88, 89
Nobles, functions of the, in early Parliaments, 292
Nobility, origin of the, 142, 143
Nobility, Montesquieu on, 142
Normandy,
union of, to the British crown, 273;
reunion of, to the crown of France, 310
Normandy,
feudalism in, 285
Normans, the, 100;
resemblance of, to the Anglo-Saxons, 281;
national assemblies of the, 290
Norway, election of the kings of, 298, 311
O.
Oath of the Adalid, 248
Oaths of fidelity, 123
Office of kings appointed, 53
Offices held by Leudes, 141
Officers, municipal, 183, 198
Officium palatinum, 234
Omnipotence, great question of, 441
Oppression, primary cause of, 133, 134
Ordeal, trials by, 249, 251, 252
Ordinances, nature of, 482
Organization, monarchical, 158
Ostrogoths, in Italy, 236
Oxford, Parliament of, 356;
acts of the, 357
P.
Palace, keeper of the, 166
Palace, mayors of the, 90, 164
Palatines, appointment of, 167
Parliament, English,
a secret assembly, 81;
origin of the, 266, 268;
formation of, 350-354, 366, 388;
progress of, 326, 360, 370, 372, 453;
final establishment of the, 372;
composition of, 374, 376;
original constitution of, 419;
sittings of, 421;
present constitution of, 423;
object of, 442;
first name of, 448;
power and attributes of, 449;
vicissitudes of, 452;
development of, 467;
prorogations of, 479, 499;
reaction against, 503;
climax of the power of, 518;
suspension of, 520;
admission of the Commons to, 370
Parliament, Anglo-Norman, 290
Parliament, two Houses of,
necessity for the, 265;
origin of the division, 418-421, 434
Parliament, the Good, 490
Parliament, of Oxford, 356, 367;
acts of the, 357
Parliament, the Wonderful, 502
Parliaments,
annual, 496;
statutes relating to, 477
Parliament, of Edward II., 370, 371, 374, 454, 455
Parliament, of Edward III., 455, 477
Parliament, of Henry II., 292
Parliament, of Henry III., 360, 362
Parliament, of Richard II., 494-507
Party influence, action of, 406
Peers, origin of the House of, 52;
functions of the, 435;
advantages of, 436
Pembroke, Earl of, 320
People, sovereignty of the, 69
Pepin, ancestors of, 90, 91
Pepin the Short, 96;
despotism of, 157, 160
Perers, or Pierce, Alice, influence of, 488
Persons, classification of, 132;
principles of, 134, 193
Peter de Roches, 322
Petition, right of, 463, 465, 469;
abuse of the, 470;
right of, superseded, 515
Petitions, practice regarding, 459;
presentation of, 464, 468, 482;
discussions of, 472;
usage of, exchanged for bills, 513
{534}
Phenomena of nature and of mind, 102
Philosophy of fact, 426
Philosophy of will, 337, 338, 344
Philosophy school of, 426, 427, 430, 432
Plurality, definition of, by Pascal, 62
Police regulations, 42, 271
Poll-tax levied, 497, 498
Politics, art of, 443
Popes, origin of the right of, to make and unmake kings, 96;
powers of the, 311, 317, 321;
resistance of the Commons to the, 490
Power, derivation of, 346;
legitimacy of, 349
absolute, characteristics of, 58, 59, 233, 299, 346;
fallibility of, 77;
theory of, 341;
causes which led to the establishment of, in France, 424;
bulwarks against, 442;
struggles of, in England, 495-502
Power, administrative, division of, in England, 289
Power, central, division of, 444;
relation of, to representative government, 445
Power, ecclesiastical, 275, 276;
decline of, in England, 282
Power, electoral, 264;
division of, in England, 266
Power, executive, 288;
tendency of, 289;
theory of, 340
Power, judicial, 288, 441;
division of, 289, 517;
concentration of, in the person of Henry II., 296
Power, legislative, 288;
division of, in England, 418-424;
effects of, 446
Power, monarchical, progress of, 15
Power, regal,
extension of, 148, 151;
causes of the, 160, 276;
theory of, 218, 446;
origin of, 219;
struggles of, with feudal powers, 308-325;
restrictions to, 361;
resistance of the Commons to, 477
Powers, division of, essential to government, 79, 289;
results of, in England, 268
Powers, emancipation of, in France, 289
Powers, which rule society, 288
Precaria, origin of the, 117
Prerogative, royal origin of, 300;
maintenance of, 503
Problem of government, 78
Progress, the law of nature, 129
Property, territorial, 126-129
Proprietors, isolation of, 130
allodial, 135
beneficiary, 135
Prorogation of Parliament, 499;
right of, 478, 479
Publicity,
an essential characteristic of representative government, 80, 265
Publicity, in England, 81
R.
Reason, unity of, 79;
sovereignty of, 343, 346
Reason, the source of power, 346
Recared I., reign of, 211
Recared II., reign of, 212
Recesuinth, accession of, 213;
laws of, 244
Reconciliation, theory of, 338
Recommendation, feudal system of, 125, 126
Reformation, causes which led to the, 491
Regent, title of, first adopted, 320
Régime, feudal, in France, 97
Relations, social, rule of, 428
Religion, influence of, on royal power, 161, 162
Rentals, origin of, 127
Representation,
political meaning of the term, 334, 348;
theories of, 335, 336, 341;
doctrine of, 347;
first development of, in English government, 354, 355;
progress of, 363, 367
{535}
Representation of counties, 363
Representation of boroughs, 364-366
Representation of universities, 373
Representation of will, 339
Representatives of counties,
election of, 381;
payment of, 383, 461;
number of, 405;
coalition of, with members for boroughs, 422;
qualifications of, 410
Representatives of boroughs, election of, 384, 385;
assembly of, 419
Republic, Venetian, result of the, 69
Requirements, historic, of the present age, 261
Revenue, public employment of the, 499
Revenues of the Norman kings, 296
Revolutions,
general effects of, on society, 2, 10;
epochs of, 187
Revolutions, French, effects of the, 40
Richard Cœur de Lion, 279;
death of, 280;
reign of, 306
Richard II.,
reign of, 494-506;
government of, 500;
deposition of, 505, 506, 509;
political character of, 507, 508
Right,
impossibility of defining, 429;
philosophy of, 426, 437, 430;
legitimacy of, 431
Right and might, amalgamation of, 431
Right, derived from capacity, 394
Right, Divine, theory of, 213, 446
Right, of enquiry, 473, 487
Right, hereditary, 435
Right,
initiative, 464, 471;
completion of the, 514
Right, of petition, 463, 469
Right, of prorogation, 478, 479
Rights, electoral, 406, 407
Rights, municipal, 200, 385, 386
Rights, national, 63
Rights, political, 63;
separation of, from municipal rights, 200
Rights, public, combination of, 391;
independence of, 392
Robert, duke of Normandy, 273
Robertson, history by, 259, 260;
Rochester, siege of, 317
Rome,
political institutions of, 184;
classification of the inhabitants of, 193, 200;
centralization of power in, 202
Rousseau,
his hypothesis of society, 57;
his theory of representation, 335, 337, 339
Royalty, theory of, 218;
struggles with feudal aristocracy, 311, 317, 322, 327
Royalty, among the Franks, 159
Royalty,
Anglo-Norman, 295;
wealth and power of, 296-299
Runnymede, conference at, 312
S.
Salic lands, 107
Salic law, 107
Salisbury, Parliament at, 373
Savigny, M. de,
on the laws of the Visigoths, 241, 244
Saxons,
enmity of, to the Danes, 270;
analogy of, with the Normans, 282;
national assemblies of the, 291-293
School, philosophic,
fundamental principles of, 426;
errors of the, 427, 429, 430, 432
School,
historic principles of the, 426;
errors of the, 433
Science, political, 389
Scribæ, 199
Scotland,
early independence of, 484;
wars of, 486
Senators, Roman, 194
Serfs, see Slaves.
Service, military,
origin of, 109;
limits of, 110;
exaction of, 326
{536}
Siesbut, reign of, 211
Sisenand, usurpation of, 212
Slaves, 33, 38;
causes of the condition of, 136;
laws regarding, 227
Socialism, first law of, 57
Society,
classification of, 33;
origin of, 57;
philosophy of, 57;
desire and tendency of, 66, 438, 439;
earliest condition of, 133;
tests of the social condition of, 137;
meaning and object of, 441;
government of, 288;
parliamentary classification of, 420, 422;
great aim of, 432, 438
Society, Anglo-Saxon, 34-37
Society, Christian,
influence of, on the fallen powers of Rome, 187;
growth of, 189
Sovereignty,
right of, 58;
effects of, 67;
theories of, 263, 264;
opinions of Bracton and Fortescue on, 267
Sovereignty, individual,
theory of, 336-338, 242;
results of, 443;
division of, 445
Sovereignty, of the majority, 340
Sovereignty, of reason, 343
Sovereignty, of will, 341, 344
Spain,
under the Roman Empire, 206;
invasion of, 209;
monarchy in, 210;
fall of the, 214;
division of, into dioceses, 213;
Gothic laws of, 246, 247;
institutions of, 235
Speaker of the House of Commons,
first appointed, 478;
functions of the, 511
Speech, liberty of, secured, 510
State,
councils of, 165;
revenues of the, 487
States, barbarian, 232, 281
States,
modern, 201, 448;
comparison of, with the Roman Empire, 113, 201
Statute of Acton Burnel, 420
Statute in confirmation of charters, 330
Statute granted to the clergy, 499
Statutes, formation of, 461, 482
Stephen,
wars of, 274;
regal power of, 300;
charters of, 305
Sub-enfeoffment, origin of, 124
Subsidies,
conditions attached to, 461, 497, 498;
appropriation of, 480
Succession, hereditary, 101, 158, 159, 209, 212
Suffolk, earl of, 501
Suffrage, universal, origin of, 339
Suffrage, right of, 381, 385
Suffrage, Roman, 181
Suinthila, king of the Visigoths, 212
Susceptor, 199
Suzerainty, 172, 173
System, electoral, of England, 377-388, 408, 517
System, feudal, 14, 35, 126, 173, 146, 158, 171, 175;
establishment of, in Normandy, 103, 283;
origin of the, 112
System, municipal, 200;
decay of, 202, 204
System, municipal, Roman, 178;
effects of the, 180, 181;
extension of the, 186;
results of the, 189;
abolition of the, 192
System, philosophical, 343
System, representative,
nature of the, 348;
object of, 440;
principle of, 440, 449
Systems, judicial, of France and England, 287
T.
Tabularii, 147
Talliage, 364
Taxes levied by Edward I., 326
Taxes levied by Edward III., 479, 498
Taxes levied by Henry III., 323
Taxes levied by the Norman kings, 296, 305, 306
Taxes levied by Richard II., 497
Taxes, right of imposing, 364, 480, 495
Taxes, voting of, 400, 481
{537}
Taxes, distinction between, and the civil list, 496
Taxes, imposition of, in France, 110
Tenchebray, battle of, 273
Tenure, laws of, 114, 117, 120, 124, 135
Tenure, Montesquieu on, 116
Tenure, of national assemblies, 293
Territory, divisions of, under the Anglo-Saxons, 42
Territory, divisions of, by the Frankish kings, 86, 92
Thanes, history of the, 33-35
Theodosius the Great, 24
Theodoric,
dominions of, 86
invasion of Spain by, 207;
death of, 208
Theodoric II., 208
Theory of law, 217
Theory of power, 219, 220
Theory of reconciliation, 338
Theory of royalty, 218
Theories of representation, 335, 336;
consequences of, 337
Theories of government, 341
Theudegisil, king of the Visigoths, 210
Thorismund, 208
Time,
past, importance of the study of, 5;
present characteristics of the, 21
Toledo, general councils of, 211-213, 221, 230;
political influence of the, 231, 233;
Abbé Mariana on the, 241
Tories,
their estimation of Saxon and Norman institutions, 283;
opinions of, on national assemblies, 290;
on electors, 377;
theories of, refuted, 382
Towns, English,
importance of, 268, 306, 362, 364;
liberties of, 265, 280;
effects of the Norman conquest on, 294;
deputies of, called to Parliament, 362;
representation of, 366
Towns, conquered, treatment of, by the Romans, 181
Trial, by ordeal, 249, 251
Trial by jury, 250, 252
Tribute, laws of, 108
Truth,
difficulty of attaining the, 19;
characteristics of, 68
Tyranny,
local, effects of, 174;
origin of; 340, 341
Tythes,
institution of, 326;
continuation of, 372
U.
Unity,
definition of, 62, 265;
power of, in government, 72
University of Oxford first represented in Parliament, 373
Usurpation, frequency of, 223
V.
Vascons or Basques, defeat of the, 210
Vassals,
etymology of the term, 122;
condition of, 175
Vassals, royal, duties of, 296
Vassalage, 122, 126
Visigoth legislation, character of, 215
Visigoths,
laws of the, 119, 125, 177, 208, 215;
national assemblies of, 211;
institutions of, 237
Visigoths, monarchy of the, in Gaul, 207, 208
Visigoths, monarchy in Spain, 207, 210
Visigoths,
bishops of the, 232;
character of, 236
Visigoths,
kings of the, 207-214;
duties of the, 225
Votes, classification of, 420
W.
Wallia, king of the Visigoths, 207
Wamba, 213
Wars, civil, 274, 275, 280, 311, 519;
results of, 301, 520
{538}
Wars of Clovis, 34
Wars of Edward II., 456
Wars of Henry III., 323
Wars of Stephen, 274
Wars regulated by Parliament, 486
Wars of York and Lancaster, 519;
effects of, on the representative form of government, 520
Wealth, stationary condition of, 131
Wealth, of the Norman kings, 295
Wehrgeld, or classified value of life, 137, 138
Whigs, opinions of the,
on Saxon and Norman institutions, 283;
on national assemblies, 291;
on the election of members, 377
Will, philosophy of, 337, 338, 344;
representation of, 339;
province of the, 344
Will representation, 343
William the Norman,
changes in the legislature instituted by, 45, 272;
conquest of England by, 211;
charters of, 303
William Rufus, political character of the reign of, 272
Wittenagemot,
composition of the, 46;
powers of, 49, 51;
character of the, 52;
assemblies of the, 284, 292, 449
Withema, 211
Witiza, reign of, 214
Writs of Chancery, 297
Writs of convocation, 371, 373, 374
Writs of election, 386
Y.
Yeomanry, English, origin of the, 36
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------------------------------------
[Transcriber's note: The following items are on the front fly
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Thos. Frognall Dibdin.
2 vols. in 1. 7_s_. 6_d_.
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