Violation Of Magna Charta.
John dissembled at first, and appeared to submit without any reserve to all the sacrifices which were imposed upon him; but such a mask soon became intolerable to him. After a short time he broke out into complaints and threatenings, and retired in fury to the Isle of Wight. While there, he procured the enrolment of an army of Brabanters in order to regain his power by battle, and despatched a messenger to Rome beseeching for aid against the violence that had been done him. Innocent III., hearing what had occurred, and irritated by the audacity of the barons, whom he called his vassals, annulled the Great Charter, and excommunicated all the barons who had joined in the rebellion.
The king, trusting to this powerful support, threw aside the mask, and retracted all his engagements. But he speedily perceived that those spiritual weapons, which had recently been so potent when opposed to him, were now without value when placed in his own hands. Archbishop Langton refused to pronounce the sentence of excommunication. He was summoned to Rome and suspended, but in vain; the clergy sustained him in his disgrace, and confirmed his refusal. John attempted ineffectually to divide the two orders,—whenever he made any preparations for fighting, they became inseparable allies.
John had now no other hope except in the support of his foreign mercenaries; he made one last effort, and in the month of October 1215, war was again enkindled between him and the barons. The attack was unforeseen; the barons being suddenly surprised retreated before the king, who advanced in triumph as far as Rochester Castle, of which he made himself master after an obstinately resisted siege. He made prisoner its governor, William d'Albiney, one of the twenty-five barons appointed to guard the maintenance of the charter, and the most distinguished captain among them: this was an irreparable loss to their party; and from this moment the king met with no regular resistance. His tyranny might now glut itself with vengeance; he let loose his satellites, and the entire kingdom was soon filled with the devastating effects of his rage.
Nevertheless, some barons in the north still resisted him manfully; and the remnants of the coalition combined with them; but feeling themselves too weak, they sought in their turn safety from a foreign ally. The crown of England was offered in their name to Prince Louis, son of Philip Augustus, who thereupon sent an army to attempt the conquest of England.
Louis had scarcely landed when the aspect of affairs entirely changed. John, abandoned by his friends and by his soldiers, lost in a short time all that he had recovered. The entire kingdom fell into the hands of his young rival, and Dover was the only town which remained faithful to John. Prince Louis, however, though he had so far succeeded, did not establish himself on his newly acquired throne. The predilection which he invariably manifested for the French nobles could not but be distasteful to the English barons, and the avowals of the Count of Melun, made on his deathbed, had the effect of detaching almost all the nobility of the kingdom from the side of Louis. This noble induced the barons to distrust the king, who, he affirmed, fully intended to dispossess all of them, and to distribute their lands among his favourites and natural subjects. This disclosure, whether it was true or false, had a powerful effect on the minds of the barons, and most of them renewed their allegiance to their former king.
Death Of King John.
John had now set his army on foot, and fortune seemed to promise him new successes, when death surprised him on the 17th of October, 1216. This event was more fatal to Louis than a lost battle could have been. The hatred of the English to their king died with him—they hastened to rally round his young son—a general defection quickly ruined the already tottering cause of the French prince, and after he had continued this useless struggle for a short time, he abandoned a throne for the offer of which he was indebted merely to the accidental distress of the English barons, and which he would never have been able to secure by the mere force of his arms.
Lecture VIII.
Charters of Henry III.
First Charter of Henry III. (November, 1216).
Louis of France renounces his title to the Crown, and leaves
England.
Second Charter of Henry III. (1217).
Forest Charter granted by Henry III. (1217).
Confirmation of Charters (1225).
Revocation of Charters (1227).
New confirmation of Charters (1237).
Continual violation of Charters.
Civil war.
Renewal of Charters (1264).
New confirmation of Charters (1267).
Death of Henry III. (November 16, 1272).
Charters Of Henry III.
Hitherto we have only seen, in the charters, recognitions of rights more or less open and complete; they are transactions between two rival powers, one of whom gives promises while the other establishes rights; but there is no power to guarantee that these promises shall be faithfully kept and these rights duly regarded. The only curb placed on royalty is the prospect of a civil war that is always threatening to break out—a remedy which is incompatible with order and stability, two elements which are indispensable to a free government.
Under the reign of Henry III., the feeling began to be entertained that civil war is an evil guarantee; and other means of preventing the violation of oaths were sought and dimly apprehended. The charters which were obtained in this reign have still as their chief aim the obtaining of new concessions and promises; but efforts towards the formation of guarantees are also apparent, and we may now trace the first attempts after a legal and efficient constitution.
This reign must be regarded under the two aspects which have been indicated. Our object at present being only to follow the history of English Charters, we shall examine the facts of this period only under the first point of view: when we come to treat of the formation of the Parliament, we shall search there for the first attempts after an organized constitution.
First Charter Of Henry III.
Henry, who was but a child when his father died, found an able protector in William, Earl of Pembroke, Marshal of England, who was then commander of the royal armies. Pembroke had been a faithful servant to King John, and transferred to the son that friendship which he had given to the father. His only thought was that Henry should succeed to the throne, and accordingly the ceremony of coronation was performed at Gloucester, on the 28th of October, 1216. Afterwards, in a council of barons assembled at Bristol, on the 11th of November, he assumed the title of Regent, and in order to render the cause of the young king popular he granted a new charter in his—the king's—name. This charter corresponded, with the exception of a few modifications, to that given by King John. All the articles are omitted which refer to the establishment of escuages, to the liberty of entering and leaving the kingdom, to the preservation of forests and dykes, and to the customs of the counties; moreover, the article was suppressed which granted the right of resistance by armed force in case the king should violate his promises. These suppressions were not, however, definitely concluded; it is stated in the charter that "the prelates and lords have determined that these things shall remain open, until they have more fully deliberated concerning them." [Footnote 20]
[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.
The retreat of the French re-established harmony in the kingdom, but in order to render the concord more certain and immediate two more charters were granted. One was similar to the preceding; only one remarkable modification is to be found, namely the decision that the escuage should be levied as in the time of Henry II. The other is known under the name of the Charta de Forestâ, being the same that has been erroneously attributed to King John: it has only one special aim, and contains nothing but a series of regulations as to the extent and limits of the forests belonging either to the nobility or to the crown.
Violation Of The Charters.
These charters were perpetually violated by the agents of power. For several years these infractions did not occasion more than partial complaints, but at length, in the year 1223, the protestation became general and urgent. The council of barons was summoned to London, where they demanded a new confirmation of the charters. One of the councillors of the regency, William de Briwere, ventured to oppose, saying that "all these liberties had been extorted from the king;" but the Archbishop of Canterbury smartly reproved him, telling him that if he loved the king, he at all events would not venture to trouble the kingdom. The young king promised that the charters should be henceforth observed, and twelve knights were appointed in each county, who should enquire what were, according to ancient usages, the rights of the king and the liberties of his subjects.
Still, new anxieties soon excited new protestations. Since the preceding reign the barons had held in trust most of the royal castles and domains, and this was the principal guarantee they had that their treaties should be observed. Suddenly their possession of this guarantee was threatened: a bull of Pope Honorius III., which declared Henry to be of age when he was seventeen years old, ordered at the same time that all those who had royal domains in their hands should restore them to the king. This bull occasioned many suspicions as to Henry's intentions; fears began to be entertained lest, having obtained his majority, he should revoke the two charters to which he had sworn during his minority. The king and his advisers perceived the necessity of meeting this disturbed state of feeling, and on the 11th of February, 1225, the king granted of his own accord a new confirmation of the charters. As an acknowledgment of this they granted him a fifteenth part of all the moveable property of the kingdom as a subsidy.
Revocation Of The Charters.
But this mutual accommodation did not last long. At the end of two years, Henry, having obtained his true majority, revoked all the charters, under the pretext that they had been granted when he was not in the free possession of his body and of his seal; "cum nee sui corporis nee sigilli aliquam potestatem habuerit."
This revocation excited the most active discontent. The indignant barons turned their rage against the man whom the public voice accused as the author of these proceedings. This was Hubert de Burgh, the grand justiciary and intimate counsellor of Henry. This minister was from that time exposed to the most violent attacks, and did not cease to be persecuted by the rage of his opponents till at length, in 1232, the king yielded to the storm, withdrew his favour from the obnoxious minister, and exiled him from the court.
The murmurs of the barons were hardly appeased when Henry seemed as if desirous of exciting them afresh, by again surrounding himself with men who were hated by his subjects. This was a foreigner, a Poitevin, Peter des Roches, Bishop of Winchester, who became the king's favourite on the disgrace of Hubert de Burgh. From that time, only foreigners were trusted with places and favours by the prince. Not content with draining the coffers of the State, they burdened the people with exactions,—their insolence was perfectly unbridled. When the laws of England were appealed to against them, "we are not English," they said, "we do not know what is the purport of these laws." The indignant barons urgently demanded justice, and in the year 1234, two years after the disgrace of Hubert de Burgh, the king found himself compelled to abandon Peter des Roches and to dismiss the foreigners from his court. But shortly after, on his marriage with Eleanor, daughter of the Count of Provence, the Provençals took the place of the Poitevins, and in their turn drew on themselves the hatred of the English barons.
Conformation Of The Charters.
The irritation was general, when the king, who was in want of money, assembled the barons at Westminster, in the month of January, 1237, in order to demand of them a subsidy. The barons answered him with a refusal and with menaces. Henry, alarmed at this, had recourse to a remedy which had not yet lost its efficiency, namely, a new confirmation of the charters. Hardly was it granted before he obtained a subsidy of a thirtieth part of all moveable property.
But his prodigality soon dissipated these feeble resources; again was he obliged to resort to arbitrary and tyrannical means in order to provide himself with money,—to exactions, to forced loans, a new kind of impost which is then for the first time to be met with in English history. It is remarkable, however, that Henry never dared to levy any general tribute on the nation on his own personal responsibility. Imposts that were really public were never collected except under the professed sanction of a council of the barons, and after the king had purchased their good will by a new confirmation of the charters.
On the 13th of May, 1253, a sentence of excommunication was solemnly pronounced against any person who should infringe the royal charters; and at the close of the ceremony the prelates threw down their extinguished but smoking tapers, exclaiming, "May the soul of every one who incurs this sentence so stink and be extinguished in hell!" And the king added, "So help me God! I will keep these charters inviolate, as I am a man, as I am a Christian, as I am a knight, and as I am a king crowned and anointed!"
Again were the charters violated, and at length it was seen that their repeated renewals were vain,—civil war was therefore declared. The Earl of Leicester, at the head of a party of barons, took up arms, at first with the intention of effectually limiting, but afterwards of entirely usurping the royal authority. This rebellion had now no longer for its aim to obtain the renewal of charters, it tended also to found practical guarantees of recognized rights. Of these I shall speak more in detail when I come to consider the formation of the Parliament. At present I will content myself with observing that the result of the insurrection headed by the Earl of Leicester was a general renewal of the charters, granted on the 14th of March, 1264,—a kind of treaty of peace between the king and the barons, the king's object being to obtain from them the enlargement of Prince Edward, whom they retained as a hostage.
Death Of King Henry III.
At length, three years after, on the 18th of November, 1267, some time before the departure of Prince Edward for Palestine, the king once more confirmed the charters in the Parliament assembled at Marlborough. This confirmation was the last granted by Henry III.; he died five years afterwards, on the 16th of November, 1272, having passed a long reign in making promises to be afterwards violated, renewed, retracted, and then renewed again.
Lecture IX.
Conclusion of the history of Charters under the reign of Edward I.
Political conflict follows civil war.
The king frequently violates the Charters, especially in the
matter of imposts.
The barons resist energetically.
Edward gives a definitive confirmation to the Charters
(1298-1301).
A bull of Clement V., solicited by Edward I., annuls the
Charters.
Its failure.
Death of Edward I. (July 7, 1307)
Reign Of King Edward I.
During the two preceding reigns the struggle between the feudal aristocracy and the royal power has been really a civil war. Under Edward I. the struggle continued, but the civil war ceased. The barons did not protest in favour of their liberty with any less resolute determination than they had hitherto manifested, nor did the king defend his prerogatives less vigorously, but neither party appealed to arms. This is the general history of important struggles; they are begun by a trial of strength between the two contending parties, and when the problem of material forces has been resolved, the struggle changes its direction and its theatre; it becomes concentrated into an assembly, and the victorious party has no longer any other aim than to legalize the victory already gained, and thus add a constitutional validity to a material victory. Parliamentary debates follow civil war. When the parliamentary debates have lasted through a certain number of years, and have received the sanction of time, the struggle may be regarded as terminated. To this stage had matters arrived in the reign of Edward I.; the resistance which was shewn during his reign only displayed itself in Parliament; and, when it had lasted for thirty years, the rights which it had tended to consecrate were for ever recognized and tolerably respected.
At the time of Henry's death, his son Edward was in Palestine; notwithstanding his absence, however, he was proclaimed king without any opposition. The capacity which he had displayed in the troubles of the kingdom, and the moderation which he had often shewn, had gained for him general favour. Upon his return to England, he justified the expectations which had been formed concerning him; many abuses were reformed, and a better order was introduced into the administration of justice.
I shall pass rapidly over the first twenty-four years of this reign. They were occupied with the conquest of Wales, and with Edward's wars in Scotland, which were incessantly renewed by the insurrections of the Scotch. During all this time, although we hear of very frequent assemblies of Parliament, we scarcely hear anything even of the charters. The administration of the kingdom, which was vigorous and fair, excited few complaints, and public attention was absorbed by the expeditions and victories of the monarch.
Exactions Of Edward I.
Nevertheless the necessity of frequently raising subsidies, in order to keep up his numerous armies, soon obliged Edward to adopt violent and arbitrary measures. He limited the quantity of wool which might be exported, and placed on every sack of wool, that was exported, a duty of forty shillings, that is to say, more than a third of its value; all the rest of the wool and hides, that were ready for shipping, were confiscated to the service of the king. He demanded of each sheriff two thousand quarters of wheat, and as many of oats, authorising them to take the required wheat or oats wherever they could lay their hands upon them; besides which he caused a large quantity of cattle to be seized. Lastly, showing no regard for feudal right, he imposed on every landed proprietor, having a larger revenue than twenty pounds sterling, whatever might be the nature of his domains, the obligation to attend him in the war which he was about to prosecute in France.
The dissatisfaction among the people and barons was general, and it was soon redoubled, in consequence of a fraud to which Edward did not hesitate to resort in raising a subsidy, which had been granted to him by the Parliament, held at Saint Edmundsbury in the preceding year (1296.) Instead of contenting himself with the eighth [Footnote 21] of the moveable property, which had been granted to him, he assumed that the impost was much larger, and obliged his subjects to pay it.
[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.)]
Quarrels With The Nobles.
In the midst of the excitement caused by these measures, Edward convoked his barons at Salisbury to arrange with them for the departure and march of his armies. He had intended to send one of his armies to Gascony, and to lead the other into Flanders, himself taking the command of the latter in person, while the former was to march under the direction of Humphrey Bohun, Earl of Hereford, and of Roger Bigod, Earl of Norfolk, the one the Constable, the other the Lord Marshal of England. These two men, who were vigorous champions of the national cause, refused to accept the mission which was offered to them. The object of their refusal was to compel the king to purchase their compliance by a renewed promise to confirm the charters, a promise which he had already made, but which he seemed in no haste to carry out. When Edward gave them the order to repair to Gascony, they answered that they were ready to follow him to Flanders, but that the character of their offices would not allow them to separate themselves from his person. "You shall go," said the king, "whether I go with you or not." Hereford replied that he would not go; upon which Edward exclaimed, "By the everlasting God, sir earl, you shall either go or hang." "By the everlasting God, sir king," replied Hereford, coolly, "I will neither go nor hang." Edward did not feel himself sufficiently powerful to punish this haughty reply; and, fearing lest he should find the same spirit of resistance in all the barons, he abandoned his intention of sending an army into Gascony. The two earls quitted Salisbury with their retinue, and the king, after he had placed their offices in the hands of two other lords, prepared to embark for Flanders.
But before his departure, on the 12th of August, 1297, he addressed to all the sheriffs of the kingdom a singular kind of manifesto, one which was, perhaps, unique at that period, which he intended should be read before the assembled people. In it the king explained the causes of his quarrel with the two earls, excused the exactions he had made by pleading the necessities of war, and desired his subjects to maintain peace and order. This proclamation, or, perhaps, rather this appeal to the public, shows how greatly power already felt itself dependent upon the support of opinion, and constrained in some way to acknowledge a responsibility to it.
First Charter Of Edward I.
To this apology for his conduct, which the king put forth, the Earls of Norfolk and Hereford replied by another manifesto, which was presented to the king at Winchelsea, in which they recounted all the public wrongs and demanded redress. Edward answered that his council was dispersed, and that he could not attend to these protests till his return, and he accordingly went on his expedition, leaving his son regent of the kingdom.
Upon this the two earls, after having published their manifesto and the king's reply to it, presented themselves before the treasurers and barons of the exchequer, and forbade them, as they would dread to excite a civil war, to collect, for the king, the tribute of one-eighth, which had been granted by the Parliament at Saint Edmundsbury, affirming that the granting of it had been illegal.
In order to bring these differences to a close, the prince-regent assembled a Parliament in London, on the 10th of October, 1297. The two earls were invited to take their place in the assembly, and came escorted by five hundred horse and a body of infantry, and would not consent to enter London until they had obtained permission to place a guard at each gate. They demanded a general confirmation of the charters, and, moreover, asked that several additions should be made to them. The prince-regent subscribed to all their demands, and the act of confirmation signed by him was immediately sent to the king, who was at Ghent. Edward, after he had taken three days to consider the matter, sanctioned the confirmation, [Footnote 22] and granted an amnesty to the two earls, who, satisfied with this exhibition of generosity on the part of the king, went, subsequently, to Scotland to assist him in the war which he was carrying on there.
[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.]
Confirmation Of The Charter.
When Edward returned again to England, the barons demanded that he, in his own person, should confirm the charters which had been granted to them. The king evaded these demands, and retired to Windsor. Thither the barons followed him to renew their importunities and their complaints. The king excused himself on the ground of ill-health, and told them to return to London, where he would send them an answer. This answer was a new confirmation of the charters, but contained one restrictive clause: salvo jure coronæ nostræ. At the public reading of the charter, which was made at St. Paul's Cathedral, the assembly hearing how all their rights were definitely confirmed in it, made the most lively manifestations of joy; but hardly had the reserve clause been pronounced, when violent murmurs were raised on all sides; the people immediately left the church, and the angry barons retired to their domains, resolved once more to appeal to force.
Edward perceived that he had raised a storm of opinion against him, and, after innumerable delays and evasions, and complaining haughtily that he was too closely pressed, he, at length, decided upon convoking a Parliament on the 6th of March, 1300, and confirmed without any restriction all the concessions which he had already made; he even added new guarantees, which were contained in articles called articuli super chartas. The chief provisions contained in these additions consist in a regulation that the charters should be publicly read in the county courts four times every year, and that there should be elected in each county court, from among the knights of the court, three justices, sworn to receive all complaints of infractions of the charters, and to pronounce penalties against the offenders.
Lastly, in the following year, 1301, at a Parliament held at Lincoln, Edward, after having received its approval to a new limitation of the forests, which had been for a long time demanded and at length concluded, yet once more confirmed the charters.
From the time when this charter of confirmation was granted, the rights which it proclaimed were definitively recognized. The open and exterior struggle ceased at this period, but the secret and concealed did not. Edward endured impatiently the yoke which he had taken upon himself, and endeavoured to release himself from it. He did not, however, dare to raise the mask, but concealed all his efforts. Towards the close of the year 1304, he petitioned Pope Clement V. to release him from his oaths. The pontiff complied with his wishes, and by a bull, dated January 5, 1305, declared that all the promises and concessions made by Edward were abrogated, null and void. [Footnote 23]
[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.
And we will that if any judgment be given from henceforth contrary to the points on the charters aforesaid by the justices, or by any other our ministers, that hold pleas before them against the points of the charters, it shall be undone and holden for nought.
And we will that the same charters shall be sent, under our seal, to cathedral churches throughout our realm, there to remain, and shall be read before the people two times by the year.
And all archbishops and bishops shall pronounce the sentence of excommunication against all those that by word, deed, or counsel do contrary to the foresaid charters, or that in any point break, or undo them. And that the said curses be twice a year denounced and published, by the prelates aforesaid. And if the same prelates, or any of them, be remiss in the denunciation of the said sentences, the Archbishops of Canterbury and York, for the time being, shall compel and distrain them to the execution of their duties in form aforesaid:
And foresomuch as divers people of our realm are in fear that the aids and tasks which they have given us beforetime towards our wars, and other business, of their own grant and goodwill, howsoever they were made, might turn to a bondage to them and their heirs, because they might be at another time found in the Rolls, and likewise for the prises taken throughout the realm by our ministers, we have granted for us and for our heirs, that we will not draw such aids, tasks, nor prises into a custom, for any thing that hath been done heretofore, be it by Roll or any other precedent that may be found.
Moreover we have granted for us and for our heirs, as well to archbishops, bishops, abbots, priors, and other folk of Holy Church, as also to earls, barons, and all the commonality of the land, that for no business for henceforth we shall take such manner of aids, tasks, or prises, but by the common assent of the realm, and for the common profit thereof, saving the ancient aids and prises due and accustomed.
And foresomuch as the more part of the commonality of this realm find themselves sore grieved with the maletent of wool, that is to wit, a toll of forty shillings for every sack of wool, and have made petition for us to release the same; we, at their requests, have clearly released it, and have granted, for us and our heirs, that we shall not take such things without their common consent and goodwill; saving to us and our heirs the custom of wools, skins, and leather, granted before by the commonality aforesaid. In witness of which things we have caused these our letters to be made patents. Witness, Edward, our son, at London, the 10th day of October, the five and twentieth year of our reign.
And be it remembered that this same charter, in the same terms, word for word, was sealed in Flanders, under the king's great seal, that is to say, at Ghent, the 5th day of November, in the twenty-fifth year of the reign of our aforesaid lord the king, and sent into England.
Bull Of Pope Clement V.
Letter of Clement V. to Edward I.
Clement, bishop, servant of God's servants, to our well-beloved son in Jesus Christ, Edward, illustrious king of England, health and apostolic benediction:
The purity of thy loyal devotion, which is and has been uniform and conspicuous in thy unwearied attention to the desires of the Holy See, well deserves that the Holy See itself should remove all that is hostile to thy welfare, should suppress whatever displeases thee, and should ever secure for thee the enjoyment of all good.
We have learnt recently, by an account worthy of credit, that lately, when thou wert in Flanders, and even before thy arrival there, when thy efforts were being used to maintain thy prerogatives against thy enemies and rivals, that then certain magnates and nobles of thy kingdom, and other persons who are hostile to thy authority, taking advantage of the opportunity when thou wert occupied in fighting against those in another kingdom, who were opposed to thy rule, threatened that, unless thou wouldst make certain concessions of a diverse and unjust character, both relating to forest and other rights, which have, from time immemorial, belonged to the crown, and the dignity of thy rank, (which also, previously, they had importunately sought before thy departure from the said kingdom,) they would conspire against thee, would excite the people, and disseminate various scandals:
And that thou, prudently treating their conspiracy, and wishing then to avoid the dangers that were pressing upon thee, didst grant these concessions, more by constraint than with thy free consent:
And that, finally, on thy return to thy kingdom, the wars not having then terminated, the said magnates, and others, through their importunate and presumptuous suggestions, did obtain from thee the renewal of these concessions; and that they have, moreover, extorted royal orders to the effect that in every cathedral church in the kingdom there should be pronounced, twice every year, a sentence of excommunication against those who should violate the said concessions, as is expounded formally and in detail in the said commands, under the authority of the royal seal:
As, therefore, the Holy Apostolic See regards thy kingdom favourably, even above all other kingdoms, and entertains for thee, personally, the most friendly feelings, and recognizes that all these concessions have been made and extorted at the expense of thine honour, and to the detriment of thy royal sovereignty:
So by the apostolic authority, and by our full power, we revoke, annul, and dissolve the said concessions and all their effects, and all that can result from them, as also the sentences of excommunication which have or may be pronounced in order to their observance, either in the said churches or elsewhere, we declare them abolished, null, and without authority; annulling also the orders and letters to which they have given occasion; we decree for thee and for thy successors on the throne of England, that ye neither are nor ever shall be bound to observe them, even although ye may have engaged yourselves so by oath; besides that, as thou hast assured us, at the time when thy coronation was solemnized, thou didst swear to maintain the honours and the prerogatives of thy crown; so that, if even thou hast bound thyself to any penalty on this account, we absolve thee therefrom, as well as from the accusation of perjury if it should be made against thee.
To ensure the execution of our desires, we expressly forbid our venerable brethren, the archbishops, bishops, and others, ecclesiastical as well as secular, who are settled in thy kingdom, to do or attempt anything against the tenor of the present annulment, abrogation, revocation, and abolition, under penalty, as regards the archbishops and bishops, of suspension from their offices and benefices; and, if they persist for one month, under penalty of excommunication, which shall be, for this sole reason, pronounced against them, and all who are accessory to their designs.
We declare beforehand that every attempt against our present decree is null and void.
If, however, there is any right belonging to the inhabitants of the said kingdom, which they possess by virtue of previous letters and concessions so made by thee, we mean not to withdraw these from them.
It shall not be allowed to any one absolutely to violate in any particular, or only to contradict the present act of abrogation, revocation, annulment, and abolition.
If any one dare to allow this in himself let him know that he incurs the indignation of the Almighty, and of the blessed apostles Peter and Paul. (Rymer, Acta Publica, vol. ii., p. 372.)
Lecture X.
Necessity of inquiring into the political sense of the word
representation at the time when a representative
government began to be formed.
Mistaken theories on this subject.
Rousseau's theory, which denies representation and insists on
individual sovereignty.
Theories of writers who attempt to reconcile the principle of
representation with that of individual sovereignty.
Erroneousness of the idea that the sovereignty belongs to the
majority.
True idea of representation.
Meaning Of Representation.
We have studied the primitive institutions of the Anglo-Norman government; we have traced the successive steps in the history of the charters, and of the struggle which was carried on by the barons to secure their confirmation by the royal power; but up to this point we have not seen anything of a representative government. We have, however, now arrived at the point when this government began to appear. Our attention is now to be called to the creation of a Parliament, that is to say, to the birth of a representative system.
As we approach this great historical question, a question in political philosophy presents itself before us:—what is the true and legitimate sense of this word representation as applied to the government of a community? It is not for us to pass over this question without noticing it: the history of political institutions is now no longer a bare recital of facts, —it must rest on principles;—it neither deserves the name nor possesses the authority of science, till it has sounded and placed in clear light the primary foundation in reason, from which the facts which it collects trace their origin. Political history cannot now be otherwise than philosophical; this is demanded by the stage of human culture which the mind of society has reached.
Rousseau's Theory.
Let us now suppose a representative government, aristocratic or democratic, monarchical or republican, completely established and in action: if any one were to ask a citizen of such a State,—supposing him to be a man of good sense but unversed in political speculations,—"Why do you elect such a deputy?" he would answer, "Because in the consideration of public affairs, I believe him to be more capable than any other of sustaining the cause to which my opinions, my feelings, my interests, are allied."
Now bring this man before the political theorists who have treated of representation; let his good sense be brought into contact with their systems;—truth would soon be perplexed and obscured by the falsities of science.
One learned gentleman would thus address him:—"What have you done? You have supplied yourself with a representative,—you are no longer free,—you are no longer in truth a citizen of a free State. Liberty means a man's sovereignty over himself, the right to be governed only by his individual will. And sovereignty cannot be represented, just because the will cannot be represented—it is either the same or something entirely different, there is no medium. Who has certified you that your representative will always and on all occasions have the same will as yourself? He will certainly not be so accommodating. So far then from your being represented, you have surrendered to him your will, your sovereignty, your liberty. You have given yourself up not to a representative, but to a master. And why? Because you are an indolent, grasping, cowardly individual, who pay far more regard to your own personal concerns than to public matters, who will rather pay for soldiers than go to war, who will rather appoint deputies and stay at home than go yourself and share in the deliberations of a national council."
This is the way in which Rousseau conceives of representation: he considers that it is delusive and impossible, and that every representative government is in its own nature illegitimate. [Footnote 24]
[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. 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.