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THE LIFE OF SIMON DE MONTFORT . EARL OF LEICESTER
CHAPTER I.
INTRODUCTION.
I.
RISE OF PARLIAMENTARY GOVERNMENT.
The Norman kings of England, in their efforts to found
an absolute monarchy, made good use of every opportunity to crush the power of
their mightier vassals, while, as a balance to that power, they kept alive, if
they did not actively encourage, the remnants of national feeling and popular
government This community of interest, however slightly developed under his
predecessors, bore fruit under Henry I; in the struggle between him and his
nobility the people stood by their king. Under his successor the pent up spirit
of feudalism burst forth; it had its day and proved for ever its incapacity for government. The exhaustion of the older baronage, and a
natural reaction against the anarchy of the preceding reign, enabled Henry II
to rebuild the edifice of monarchy on foundations deeper than those which had
been laid by his forerunners. A strongly centralized administration of
justice and finance made the king practically independent of his barons, while
it revived the ancient popular institutions, and brought every class into
contact with the throne. A new aristocracy arose, mainly dependent on the
monarchy, but far more national than that which sprang from the Conquest. The
union of king and people was stronger than before; it bore the strain of
oppressive taxation and religious struggle, of war without and rebellion
within. But the strengthening of the monarchy was not the only result. When the
sovereign supported himself by aid of the law, the thought was sure to occur
that the chains he forged for others might be used to bind himself. The
nobility he had done most to raise, the people he had educated into a belief in
law, would be the first to cry out against a violation of that law by the
authority which gave it. Henry was wise enough to avoid this danger: Richard’s
personal character and his long absence from home prevented an outburst; but
John’s folly, tyranny, and vice united all elements against him. The process of
amalgamation, which had been going on for a century and a half, was now
complete; more than a generation before it had been said that English and
French-born were no longer to be distinguished. The universal pressure of a
strong government, the tendency towards equality inherent in the rule of law,
had helped to complete the union, the last obstacle to which was removed by the
loss of Normandy; and under a sense of common wrong the new-born spirit of
nationality sprang into consciousness of its power. There was no longer an
alliance between the king, the Church, and the people, against the feudal
nobility; it was now for the first time an alliance of the Church, the barons,
and the people against the king. The newer nobility, in whom the political
sense was strongest; the remnants of the older baronage striving to recover
their position; the smaller barons, the subtenants, and others, who eagerly
grasped the occasion to make their complaints heard; the towns, with London at
their head, in the first freshness of municipal and mercantile importance; and
above and embracing all, the Church, with its broader notions of justice and
its popular sympathies—these were the forces to the union of which John had to
give way at Runnymede.
Such in a few words was the general course of national
development, such the relations between king and people, before 1215.
Along with and dependent on the growth of the nation, grows the idea of a
Parliament, or representative council. In a people composed of elements so
different as those of which England consisted immediately after the Conquest
there was no possible centre, no representative
of national unity, but the monarch. As the different elements coalesced, a
representative body became possible; no sooner was the national unity complete
than Parliament in its modern form began to appear. But between the baronial
assemblies of the Norman kings and the Parliaments of our own day there is very
little similarity, though there is a distinct and unbroken connection. Many
attempts have indeed been made, chiefly by ardent supporters of parliamentary
rights, to trace back those rights to an antiquity equal to that of the
monarchy; but regularity of composition and consistency of authority do not
seem to have belonged to the earlier councils of the realm. On certain
regularly-recurring occasions the Norman kings were in the habit of gathering
round them their vassals. The king wore his crown, his greater barons appeared
in all their state, with long trains of attendants, who heightened the splendor
of their lords. Such an assembly was calculated to overawe a subject people, and
to inspire respect in strangers who visited what was then perhaps the most
splendid court of Europe.
At such times state business was sometimes discussed
if the king willed it; sometimes there was no discussion; if it appeared
inconvenient to hold the assembly, there was no scruple in omitting it
altogether. The subjects discussed were only those which the king chose to
bring forward; with him rested all initiative; until Stephen’s reign there seem
to be no records of such discussions as could have led to a division.
Next to the object of displaying a somewhat barbaric
magnificence, the purpose of these assemblies was primarily judicial. But
justice resided only in the king, or in those to whom he delegated his
authority; there is little trace of a great feudal court of justice; the
tendency was more and more to look on the king alone as holder of the scales.
The prejudices of the barons in favor of judgment by their peers were satisfied
so long as the Curia and the Exchequer were recruited from their ranks.
Although important trials were sometimes carried on before the Great Council,
yet the permanent courts, and commissions named at will by the king, usurped
more and more its claim to judicial functions. Further, there is no trace of
any constitutional authority which might be supposed to be conferred on
legislative acts by the fact that they were made by the king in council. But
here a different tendency at once appears. The moral force which such acts
would gain if backed by the magnates of the realm was too evident to be
neglected. Thus the heading of the so-called Laws of William I, which in
their oldest extant form are said by Professor Stubbs to date from the reign of
Henry I, states that the said laws were made by the Conqueror, with his chief
men although the terms of the statutes themselves hint at nothing but an act of
the kings sovereign will. So too the charter issued by Henry I on his accession
speaks of the laws of Edward having been granted by his father, with additions
made by him, with the counsel of his barons; and in the Act separating the
ecclesiastical and civil jurisdictions, the one authentic monument of Williams
jurisprudence, the king declares it to be done in common council and by counsel
of the higher clergy and all the great men of the realm.
Whatever argument may be deduced on behalf of
parliamentary authority from these enactments of the Conqueror is considerably
weakened by the fact that there are said to be no traces of legislative
assemblies under his successor. On the other hand, the charter of Henry I
attributes his coronation to the mercy of God and the common counsel of the
barons of all England; and it is just this right of coronation and the form of
election, still kept up, which seem more than anything else to have preserved
the notion of constitutional rights from complete oblivion. The ‘consent of the
barons’ is stated to have been given to the kings tenure of forests; while
concessions were made by the ‘king’s free gift’ and assemblies summoned ‘by
royal authority and power’. Florence of Worcester declares the queen to have
acted in Henrys absence ‘with common counsel of the great men’ but the vague
use of terms by the chroniclers renders such testimony very unsafe. It is
evident however that the theory of assent to legislation was partially
recognized, even if it be true that Henry I never called together a legislative
assembly except at his accession. Of Stephens reign it is scarcely necessary to
speak. His election is said in his charter to have been made ‘by assent of
clergy and people’; we hear of a General Council in 1136, at which the bestowal
of temporalities on a bishop was made ‘in the hearing and with the acclamation
of certain vassals’; and at the end of his reign ‘a convention of bishops and
other chief men of the kingdom’ swore to the terms of peace made between
Stephen and his successor. But except on these and a few similar occasions
constitutionalism was dormant.
There is the same scarcity of proof that the Great
Councils had any real weight in the matter of taxation under the Norman kings.
William the Conqueror and his sons, owing to their immense revenues, were
tolerably independent of the assent of their tenants-in-chief, and would seldom
have required to tax them beyond the regular feudal aids. Personal service
took the place of a war budget; the taxation of socage tenants, the tallage exacted from towns and other royal demesne, were
limited by nothing but the king’s will and the length of the purses to be
emptied. The Conqueror was lord of both nationalities, and used both
systems—the feudal, which he brought with him and improved; the native, which
he found and adapted: he needed the aid of neither party to tax the other, and
was thus independent of both. The royal power in this respect was somewhat
limited, or somewhat at least reduced from the dimensions to which it had under
grown under William II, by the charter of Henry I; but even here the limitation
is ‘the king’s own gift’. The same king speaks of ‘an aid which the barons have
given me’; but not much stress can be laid on the use of such a word to imply
that the barons were entitled to withhold the gift. We find no instance in
which the right to a share in the taxation is stated; no parliamentary
opposition to the king on this head or that of legislation, in the declaration
of war or the regulation of the Church, appears in the records preserved to us.
The difficulties to be met by the king are such as spring from the isolated
resistance of feudal barons, not from a Parliament with traditional rights to
defend. The Peers’ Committee thinks that the consent of military
tenants-in-chief was considered necessary in the case of
extraordinary taxation; but the theory, if it existed, seems to have gone no
further than this, that the levying of such taxes without the form of approval
by a council was held to be in some way or other unjust. As to legislation, the
rights of the baronage seem to have been confined to that of being present and
supporting, but not opposing, the kings acts. New laws, properly so called,
during this period there were none; royal edicts and charters, of so fleeting a
character that it seems to have been considered needful to confirm them at the
beginning of each reign, supplied their place. Sir John Fortescue says, some
three centuries later, that it never was a maxim in England that ‘that which
the prince wills has the force of law’; but it is very much to be doubted
whether it did not hold good during the first century after the Conquest.
It is very hard to decide, owing to the constant
variation of terms, what were the component parts of a Great Council under the
Norman kings. The elements and size of the councils vary according to
circumstances, time, and place, from the small councils, or rather courts,
consisting of the higher officers of the realm and the regular attendants of
royalty, with whose aid the king transacted the ordinary business of
government, to the great assemblies of all feudal tenants, whether
tenants-in-chief or subtenants, possibly of the whole body of landowners, such
as that of 1086, at which the Domesday survey was ordained. Such great
assemblies were however very rare, and even those that occurred can hardly have
been attended by all who might have been expected to be present. The ordinary
Great Council appears to have been attended by archbishops, bishops, abbots,
earls, and persons called, sometimes alone, and sometimes in conjunction with
the rest of the proceres or magnates, by the name
Barons. This word seems generally to include all who held by military tenure of
the king in chief, except those who held of him by escheat, that is, those who
by the death of their mesne lord were no longer subtenants but tenants of the
king. It was however used in many different senses, and its meaning is very
obscure. The distinction between earls and others, called especially barons, is
already evident under the first Norman kings; and in the charter of Henry I a
distinction is made between barones and homines, the former alone being recognized as
members of the council, and apparently including earls and those barons who are
called Majores Barones in Magna Carta. There
naturally grew up a distinction between those who habitually attended and those
who did not; the number of military tenants-in chief was even under William I
far too large ever to have met practically for the purpose of consultation; the
smaller barons would not have received the special summons directed to the
greater and better know; and thus a precedent was gradually established by
which a distinction not originally existing was introduced and confirmed.
Included in the list of barons would doubtless have been some of the
inhabitants of London and the Cinque Ports, but such would have attended as
barons in their own right, and in no way as connected with those towns.
Corporate tenure, such as that obtained gradually by most great towns,
conferred no right of membership, nor could such right have been exercised
until the system of representation was introduced into politics. Ecclesiastics
who were present, even if they kept at first the position they had held in the
Witenagemot, must soon, in a feudal assembly, have been looked on primarily as
feudal tenants, obliged to do military service like any other tenants-in-chief.
Thus the whole great class of freeholders, including
all tenants not holding by military tenure, that is, all socage tenants,
tenants of royal demesne and others, were left entirely without share in the
government, and were subject to tallage and other
exactions at the king’s will. The class of subtenants, gradually rising to
greater power, some of whom were superior in importance to many
tenants-in-chief, while others were at the same time tenants-in-chief
themselves, were considered, fallaciously enough, to be represented by their mesne
lords. In the time of Henry II the number of such tenants holding by
knight-service of their lords was nearly equal to the whole number of knights
fees in the kingdom. The force of such a body may be imagined when they first
became conscious of their political needs. The smaller tenants-in-chief who,
from inadvertence, from fear of expense, very often perhaps because they were
not summoned, had ceased, except on rare occasions, to attend the Council, were
theoretically perhaps members but had no real power. It cannot have been
pleasant for them to attend merely to be overridden by the physical force of
the greater barons; and the latter were not likely to encourage those who,
nominally their equals by similarity of tenure, were in reality so far their inferiors
in strength. Even in the case of the greater barons, that the king could abuse
his privilege of summoning the members so as to keep out an obnoxious noble, is
shown by the provisions of Magna Carta on that point.
This constitution of the national council as a feudal
assembly lasted after the accession of Henry II up to and long past the date of
Magna Carta. With regard to this point the utmost demanded in that charter is
that all tenants-in-chief shall be in some way or another summoned. Unsettled as
it may have been before, the theory that this was the legitimate form seems to
have grown up during the reign of Henry II. The importance of the council had
meanwhile been growing in no small degree. In right of legislation, it is true,
not much advance was made. The Charter of Liberties issued by Henry II confirms
that of his grandfather, and the same form, that of a donation or concession,
is kept up. The Constitutions of Clarendon are the report of a body of recognitors made in the presence of the great men, lay and
clerical, and confirmed by archbishops, bishops, earls, barons, and the nobler
men and elders of the realm; the latter seem to have been the great officers
and men of experience connected with the king’s courts, who would naturally
attend such a council. The Assizes of Clarendon and Woodstock were made by
assent of a similar body; but the authority by which other assizes were
issued during this reign is not stated to have been any other than that of the
king. How little is to be inferred from this action by common counsel of the
great men is evident from the fact that, when in 1177 Henry II assembled his
whole army for an expedition to Normandy it is said to have postponed by their
counsel, though how the advice of so vast an assembly could have been taken we
are not told.
Still, although documents fail us during this reign,
it appears from the chronicles that Henry II was accustomed to consult his
council on a great variety of topics, as might indeed have been expected from
so wise a king. From the first to the last years of his reign this habit was
kept up; in some cases the king appears to have yielded to the advice given.
Although no general opposition is said to have been offered to the king’s
wishes on questions of legislation, yet this increasing habit of consultation
must have greatly strengthened, if it did not create, the theory that the
assent of the national council was necessary to give authority to law. During
the reigns of Richard I and John the principle seems to have been kept up, yet
so little was recognized that no legislative power is claimed for the council
in Magna Carta.
On the other hand, the theory of a right to assent to
taxation struck firm root during this period. The commutation of military
service for scutage introduced by Henry II, while it made the king at first
more independent of his vassals, seems in the end, partly because it was an
innovation on feudalism, partly because it was so much more liable than the
older system to abuse under a tyrannical monarch, to have rendered opposition
easier and more justifiable. It was to this tax that resistance was first
offered by Archbishop Theobald in 1156; his opposition seems not to have
been successful, but a precedent was set up. There was possibly in this case
nothing more to the than a mere denunciation of the tax, and that not in the
council. The refusal of Archbishop Thomas to consent to a change in the system
of taxation proposed by the king in 1163 was more serious; it was made in the
presence of the great men of the realm, and an example was set that could not
be forgotten. During the next reign the government was carried on for the most
part in a constitutional manner by men trained up under Henry’s rule of law,
but signs were not wanting to show the growth of a popular party. Not much
evidence on this head can be deduced from the opposition to Longchamp, whose
offences were probably much exaggerated by John for his own ends; but the
rising under Fitz-Osbert makes it clear that the lower classes had begun to feel
their needs and their strength. The noble position of the Church as the
champion of national liberties was maintained in 1198, when Hugh, Bishop of
Lincoln, refused to make a grant from his lands for a war beyond the shores of
England. Under Richard’s successor constitutional feeling was to win its first
great victory, but during the time of the Interdict the mind of the people was
divided between indignation against John’s tyranny and unwillingness to submit
to papal dictation, while until the arrival of Langton there was a want of
leaders to give expression to the popular discontent. The resistance of the
Archbishop of York in 1207 to the levying of a thirteenth was overridden, and
the archbishop exiled. This tax had been voted, however, by common counsel and
assent of the king’s council, which might perhaps be taken to imply that the
opposition of the archbishop was illegal. The opposition of the laity, which
ended in Magna Carta, began with the refusal of the Northern barons in 1213 to
serve abroad, and their example was followed by the rest of the baronage.
Thus the idea of parliamentary government grew and
strengthened during the first century and a half after the Conquest. The
opposition to absolutism, offered at first by isolated individuals, became
gradually the policy of a class, though it was not yet universal or really
parliamentary. At the same time its character changed: it was no longer solely
prompted, as in the first years of Henry II, by feudal anarchy, but was more
and more the outcome of the tendency towards constitutional liberty. The
principles upon which it acted, first distinctly laid down in Magna Carta, were
checked for some time by the reaction which followed, and left to formulate
themselves anew in the reign of Henry III. A general account of the charter
would be out of place here, even if it were not impossible for me to throw any
new light on a subject exhausted by the ablest writers; but a few words will be
necessary to sum up the results of that famous document from a political point
of view, inasmuch as the constitutional struggles of the following half-century
would to a great extent have been anticipated had it retained its original
form.
2.
THE GREAT CHARTER.
John was surprised, not crushed, at Runnymede : he
contemplated and nearly succeeded in effecting a complete abrogation of the
concessions extorted from him. After such a breach of faith his subjects could
hardly again have come to terms with him except by some such method as was
applied fifty years later to his son. His opportune death cut the knot. The
greater part of the opposition would hardly have been induced by anything but
despair to seek foreign aid, though the Pope had set an example by calling in
Philip against John. No sooner therefore was the immediate cause of fear
removed, than the national impulses regained their sway. From a child of nine
years old there was little to dread; the sins of the father could not with any
justice be visited on his son. His representatives republished the charter, at
least the greater part of it, with promises that the disputed points should be
settled after fair deliberation. The retreat of the French removed the last
obstacle to a pacification; this was followed by a third issue, again with
considerable alterations, in what was, as far as concerned the charter itself,
its final form.
The differences between the charter of 1215 and that
of 1217 were many and important, and involved, at least if construed literally,
a great constitutional retrogression. The struggle afterwards to be related the
charter was a struggle to regain the ground lost in those two years. Magna
Carta was in reality a treaty of peace, an engagement made after a defeat
between the vanquished and his victors. It was not intended so much to bind the
monarchy as a particular monarch: when he disappeared, it was but natural that
the other side should abate their precautions. That spirit of compromise, which
seems innate in Englishmen, together with a misgiving on the part of the barons
that they might have gone too far, a natural unwillingness on the part of those
in authority to bind themselves, and a conviction that the elaborate machinery
of government needed strength and unity at so critical a time, induced the one
side to propose and the other to accept certain modifications. What these were
will perhaps be most easily understood, if, instead of analyzing Magna Carta
according to modern ideas of a specialized political system, we regard it as
containing, on the one hand, a recapitulation and confirmation of existing
rights, and of such rights as were directly deducible from these, and, on the
other hand, an enactment of certain provisions and the establishment of certain
machinery for the better preservation of those rights.
Of these constitutional safeguards some were merely
temporary, some were intended to be permanent. The latter were little more than
statements political convictions which had grown up during the last sixty
years, but which had as yet received no recognition in law. The Great Charter
was thus based on that of Henry I, but went far beyond it. That charter had
been mainly of a feudal character; it contained no provisions for, and scarcely
even hinted at, a constitutional form of government: the general enactments
were summed up in a promise to keep peace in the land, and to observe the laws
of Edward. The modes of oppression to which the Church was subject were
somewhat more clearly defined and denounced, while the rights of the vassal
alone were minutely laid down, his protection carefully ensured, and the same
rights extended to the subtenant. These ancient rights were therefore amplified
and proclaimed anew in Magna Carta, and with slight alterations reappear in the
subsequent editions of 1216 and 1217; the subtenant was in all cases as
scrupulously protected as the tenant-in-chief. But this was not all; the
advance made in other ways since 1100 had to be recorded and confirmed. We find
therefore the judicial and administrative system established by Henry II
preserved almost intact in Magna Carta, though its abuse was carefully guarded
against. The limitations introduced were somewhat strengthened in subsequent
confirmations, and point, on the one hand, to an excessive growth of royal
power, and, on the other, to the necessity of concession to the feudal spirit.
So too were confirmed the rights and liberties of the Church, including, at
least in the charter of 1215, the newly-granted freedom of election; the
liberties of the towns were recognized, and London and the Cinque Ports
specially mentioned; finally, the great progress made in the forest legislation
was recorded, and, having been somewhat vaguely stated in the charter of 1215,
was incorporated two years later in a separate charter. But the greatest
advance made in Magna Carta, and that which gives it its most lasting fame, is
the regard paid to the liberties of all subjects. The same spirit is visible in
the charter of Henry I, and is inherent in both charters, as engagements in
which the most powerful class promises to extend to others the benefits it
claims for itself. But whereas in 1100 this spirit did not go beyond the bounds
of feudalism, in 1215 it embraces the whole nation. The people, the ‘communa’ of the land, are called upon to undertake with
their leaders the defence of their newly-won
liberties; while the barons, the representatives of a foreign system, of the
feudal invasion, acknowledge their fusion with older elements by a special
extension to themselves of a right more ancient than feudalism, the right of
judgment by their peers.
So far then existing rights, whether they trace their
origin to immemorial usage, or to the ancient law of the land, or to charters
and edicts of the kings, were stated, amplified, and confirmed. A great advance
had been made since the last important charter, but the advance had been made
on the same lines; that part therefore of the charter which embodies those
rights with their logical extensions, and confirms the established system of
government, was kept almost intact in the subsequent confirmations and in the
final form. Now the recognition of public rights, of universal liberty, was a
great step, but how was it to be secured. The word of an absolute monarch was
not a sufficient guarantee. But the constitutional ideas of the time were
vague, and the measures in which they found expression were incompatible with
the existing conception of monarchy. The spirit of nationality, of which the
chief portion of Magna Carta was at once the product and the seal, was a fact
that could not be gainsaid; but the principle of self-taxation and the other constitutional
principles announced in 1215 had not yet struck so deep a root. The
constitution of the Great Council seems indeed to have been at least in theory
such as it is stated to be in the charter; the clause concerning its
composition and the summons to it is merely a statement of usage in danger of
becoming obsolete. Further, the right of self-taxation had already been
asserted, as we have seen, and that too successfully: it was connected with the
existing appliances for self-assessment: it was deducible from other and more
general rights. When it was once allowed that the person and property of the
subject were not to be liable to excessive punishment or tyrannical
caprice, it was not hard to argue that his purse must be protected from
financial exaction, even in the name of the State; that the taxpayer must have
a voice in the levying of the tax; that his assent must be secured in regular
form and after due deliberation; that the great officers who administer the law
under which he lives must be men of the same blood as those whom they govern,
and must be instructed in the law of the land. These objects then were provided
for in the Great Charter of 1215, but further than this its compilers dared not
go. Not a word was said of any share in general legislation, of any control
over the executive, of the appointment by Parliament of the great ministers of
the Crown. The right of consent to taxation was claimed only in the case of an
extraordinary tax, and that only for the tenants-in-chief; the regular feudal
aids were looked on as a matter of course, though confined to three special
occasions; the only limitation to their amount was that they were to be
reasonable and to London alone, besides the great vassals, was even this vague
privilege extended.
So little appearance was there at this time of a
Parliament according to modern ideas, and from even moderate a statement of
principles its authors seem to have shrunk back in alarm at their own boldness.
The omission in succeeding confirmations of the clause in the charter of 1215,
which granted liberty of election to the Church, is regarded by Professor
Stubbs as showing merely the reluctance of the clergy to receive the privilege
as a royal favor, the right itself being included among the liberties confirmed
by the opening words of the charter. But there is no such way of accounting for
the omission of the clauses bearing on the composition and rights of the
national council. A promise was given in the issue of 1216 that certain serious
and doubtful matters touching scutage and aids, the holding of the council, and
other questions, should be treated of with due
deliberation, but even this promise disappeared in the issue of the next year.
The charter of 1216 made no promise as to the appointment of fit persons to the
high offices of the realm; the clause concerning this important point was
omitted without comment in that and later issues. Further, in the charter of
1217, it was provided that scutage should be levied as in the days of Henry II,
a provision which probably secured against the arbitrary increase of the amount
which had taken place under John, but which deprived the council of any legal
influence in the levying of the tax. The omission of the clause protecting the
tenants-in-chief brought with it of course the omission of the clause
protecting subtenants from similar arbitrary exactions.
Besides this retrogression in those points where
constitutional legislation might have been expected to be permanent, those
articles which put a check, probably never intended to be lasting, on the royal
power were naturally omitted. The clumsy expedient intended to secure the
execution of the charter, the establishment of a committee of government of
twenty-five, did not reappear. It would have been a mere drag on the executive,
for its powers were so unlimited that it could have interfered on almost any
pretext, while its numbers almost precluded the possibility of united and
energetic action. In spite of its failure, we shall see how the experiment was
repeated, with almost equal want of success, in later years. Other occasional
articles, whose objects had already been carried out, were also omitted; one
important addition was made in 1217, the order for the destruction of the
adulterine castles built since the outbreak of war between John and the barons,
a provision which shows how far the country had relapsed into a state of things
similar to that of seventy years before. This clause was found to be no longer
necessary in 1225; with this exception, the issue of that year is almost
identical with that of 1217. There is however an important difference in the
way in which the charter was issued. It is said to be granted of the king’s own
good-will, a statement recalling the charter of Henry I; but as the price of
this concession, and for the gift of these liberties, the people of the realm
grant the king a fifteenth of their goods. These two points are closely
connected; they contain from one point of view a great advance in theory, but
from another the reverse. If the liberties granted do not belong of right to
the people, as is implied by the conception of the grant as a royal gift, it is
obvious they can be withheld by the king at will, and only granted in
consideration of a certain payment. To acknowledge this was to give up a great
point of vantage, the argument from the abstract and inherent justice of the
peoples claims. On the other hand, the recognition that property belongs to its
possessors and not to the king, and that therefore the tax to be levied was a
concession on the part of the people, was a great step gained, and as the king
was sure to want money, it showed his subjects a way of enforcing their claims,
of which they were not slow to take advantage.
The Great Charter then, as it stands in its final shape,
is, with the exception of its appendix the forest Charter, little more than a
definition, extension, and confirmation of the charter of Henry I, with the
judicial and administrative changes and the grants of privilege made since.
This, it is true, forms the surest basis of political reform, but the attempt
to formulate and legalize such reform was, as we have seen, no sooner made than
it was allowed to fall through. The improvement on the earlier charters is
indeed so great that the later one quite supersedes them; henceforward it is
the Great Charter, and no other, to which all appeal is made; it is the Great
Charter which is so repeatedly confirmed. But it too, like other early codes,
was mainly negative; feudalism and class-interest were still strong in it,
though it contained the germs of a broader and nobler spirit. The
constitutional principles advanced in it were legally thrust aside, legally,
but not really, for they were too closely connected with existing custom, too
much engrained in men’s minds, for their memory to perish; the very advance
made in Magna Carta was likely to urge the sons of those who made it to outdo
their fathers. The principle of self-taxation underlies the whole struggle of
the succeeding reign; other demands, such as that of the appointment by
Parliament of the great officers of the Crown, were strictly connected with it;
the right to dispose of the tax when paid is a corollary to it; and exactions,
favoritism, and administrative confusion only made the necessity of its recognition
more patent. Yet it was not till the resistance became corporate instead of
individual, universal instead of partial, constant instead of spasmodic, that
the practical difficulties in the way of collecting a tax without support of
Parliament became so great as to render the assent of that body indispensable.
The attempt to introduce the principle was as yet premature. There was also a
glaring inconsistency visible in the partial expression given to it in 1315. It
was not only the tenants-in-chief, but the subtenants, the freeholders, the
townsfolk, who paid the taxes. For these however there was as yet no adequate
means of representation, except in so far as the subtenants were represented by
their lords. If the principle was to be recognised,
these classes must be admitted to a share in the government; but the magnates
were unwilling to admit them, nor was it perceived that the necessary
machinery already existed. This was understood later,
and the principle received due recognition; but the issue of the struggle
through which this point was attained shows at once the prematurity and the
essential justice of the ideas which prompted the charter of
1215.
3.
THE EARLY YEARS OF HENRY III
The first sixteen years of the reign of Henry III did
not introduce any new principles, though the king’s minority naturally
strengthened the idea of parliamentary rule, and the cloud of popular
discontent rapidly formed after he had taken the government upon himself. It
was about the year 1232 that parliamentary opposition began to take a more
solid form, and thenceforward it continually increased, together with a
corresponding development of constitutional ideas, in spite of interruptions
and temporary relapses, till it culminated in the events of 1265. There was at
first, as we have seen, a considerable reaction. The want of a more elaborate
constitution was not immediately felt. Copious legislation is not a feature of
an infant state, and the condition of the country was such that a strong
government was far the most pressing need. Henry was on the whole
fortunate in those who represented him during his minority. The great Earl of
Pembroke and Archbishop Langton steered the country through the most critical
period, and with the help of Cardinal Gualo got rid of the French, and conciliated, at least outwardly, most of their
partisans. The influence of the legate, backed by the strength of the
spiritual arm, was at this crisis most beneficial. It was unfortunate
that gratitude to the papacy for the saving of his crown led Henry, in his
devout subservience to Rome, to forget the interests of his country. The year
1219 saw a change for the worse. The Earl of Pembroke died, Cardinal Gualo was recalled, and the legate Pandulf took his place. Soon afterwards the struggle between Hubert de Burgh, the
justiciary and Peter des Roches, Bishop of Winchester, Henry’s tutor,
began. For a time Hubert, supported by the archbishop, was practically
supreme. He ruled well and strongly, but his severity produced much
ill-feeling. In 1222 he suppressed with no little cruelty
disturbances that had arisen between the citizens of London and the Abbot of
Westminster; the rebellion of Falkes de Breautle in 1224, which was countenanced by the Earl of
Chester, the head of the opposition, was directed against, and to some extent
excused by, his determined policy. The rebellion was put down, and with it the
troubles originated by John seemed to be over. As a kind of seal to this happy
consummation the Great Charter was again confirmed, in the final form spoken of
above. Aided by the lull at home, by the fifteenth granted to the king, and by
the confusion consequent on the death of Louis VIII, the English succeeded in
regaining Gascony and Poitou, though the issue of the war, so much less
favorable than it might have been, added but little to the reputation of the
Government.
At this conjuncture the king, though
not yet twenty years old, declared himself of age, and took the government into
his own hands (January 1227). He dismissed the hated Peter des Roches and his
following, but another of his first steps did not promise well. He began his
reign without the issue of a charter of liberties. The custom had been dropped,
it is true, since the accession of Henry II, but it must have been expected as
a prudent measure of reconciliation after the recent troubles. A further
declaration, that all charters issued during the king’s minority would require
renewal, was thought at first to endanger the Great Charter and the Charter of
Forests; but even if Henry, as is probable enough, thought of breaking loose
from all restrictions, his action seems to have resolved itself into a mere
threat. We are told indeed that he actually cancelled the Forest Charter, as
made and signed when he was not his own master, wherefore he was not bound to
keep what he had been forced to promise. The proceeding, whatever it was, was
calculated to alarm all lovers of liberty, and was a blunder in which it is
hard to acquit de Burgh, with his innate tendency towards a strong government,
of all share. It was naturally attributed to him, and did not raise him in
popular estimation. The temper of the country was already disturbed, and many
of the nobles alienated from the Government. The papal exactions from England
as a fief of the Church continued to be paid; the number of foreigners promoted
in the country was already beginning to cause discontent; only the year before,
the clergy, with the archbishop at their head, had refused a demand
from Honorius III for two prebends in every cathedral. The position was
difficult, and required first of all things in the ruler a strong and steadfast
policy. But that was not to be. Whatever weakness had been the faults of
her princes, England had not since the Conquest felt the want of a king with a
will of his own; but this king was all his life the plaything of his
favorites. It was a bad omen when, in July of this same year, an injustice
done to his own brother Richard, Earl of Cornwall, for the sake of one of his
creatures, produced a general rising of the great barons, with the Earl of
Cornwall at their head, who with sword in hand compelled the king to make
restitution of his brother’s rights.
It was not long before the other great cause of
dissatisfaction, the kings subservience to the Court of Rome, made itself felt.
Gregory IX had been made pope the year Henry came of age, and the
excommunication of the Emperor Frederick II, which soon followed, showed that
the policy of Innocent III, a policy so disastrous to England, was to be
resumed. Next year Stephen Langton died, and in him the staunchest bulwark of
English freedom disappeared. The Pope kept up the precedent of his appointment
by quashing the election of one of their own number by the monks of Canterbury,
and choosing Richard le Grand, Chancellor of Lincoln, who was proposed by the
bishops of the province; a man of energy and high principle, but without the
broad-views and commanding ability of his predecessor. His firmness was soon
put to the test. The Pope demanded a tenth of all moveables from laymen and clergy throughout England, to prosecute his war with the
Emperor. After showing great reluctance the clergy yielded, Henry having, it
was said, consented through his proctors at Rome; but the laity obstinately
refused, and the old Earl of Chester went so far as to forbid any of the clergy
in his County Palatine to pay the tax. The baronage was not inclined to pay for
the quarrels of Rome, especially those with the Emperor, with whom negotiations
had been entered into five years back, to end in his marriage with the king’s
sister six years later. The whole story throws a remarkable light on the
position of the parties concerned : the use which the Curia made of English
gold; the subservience of the king; the reluctant concessions of the Church;
the opposition of the laity. It was a mournful foreshadowing of the evil to
come.
Still Henry might have, staved off much trouble had he
had the wisdom to cling to his faithful minister. It was at the outset of the
unfortunate expedition to France that his fickleness and ungovernable temper
led him into what seems to have been his first quarrel with Hubert de Burgh.
Irritated, it appears, by the want of transport, the king, in one of those sudden
bursts of passion which characterized him, called him ‘a hoary traitor, who had
betrayed his country for French gold’ and, drawing his sword, would have rushed
upon him had he not been prevented by the Earl of Chester. The expedition was
only postponed, to be taken up next year (1230). The complete want of success
which attended it, in spite of the disadvantages under which the French
labored, showed the want of administrative power in the Government, and the
incapacity of the king as a commander. When he returned, after much loss
Pecuniary both of honor and money, he found difficulties on all sides. He had
with some trouble obtained an aid before starting. It was voted by the clergy
only after deliberation, and with mention of their rights. At the close of the
war they refused altogether, on the ground that their assent did not depend on
that of the laity, but in spite of their opposition the king got the money. Up
to this time the efforts of the clergy were mostly confined to resisting the
king, while the lay barons made it their business to oppose the Curia; it was
not till many years later that the coalition of the two exactors rendered a
hearty alliance of clergy and laity inevitable.
It was however already felt that the great contest
between the papacy and the empire was draining the life-blood of England. A
kind of secret society was established, which affixed letters to the doors of
monasteries and other ecclesiastical buildings, threatening speedy punishment
if the clergy gave way further to the exactions of Rome. Armed men with masks
on their faces pillaged the granaries of Italian dignitaries, and gave away or
sold the corn cheaply to the neighborhood. Meanwhile financial difficulties,
caused by the war with France and thoughtless liberality towards continental
favorites, pressed heavily on the king. In the midst of these troubles his evil
genius, Peter des Roches, reappeared. He regained his influence over the king
by persuading the magnates to grant a fortieth, and shortly afterwards succeeded
in ousting his old rival Hubert de Burgh, who was dismissed by his sovereign
with undeserved contumely and ingratitude. With him went the only remaining
security for good government, for the Earl of Chester died about this time; and
the king delivered himself hand and foot to the ruinous counsels of his
favorite. At this point may be said to begin a new period in the history of the
reign : Henrys worst tendencies, till now somewhat kept in check by his
minister, ran their course without restraint; collisions between the monarchy
and the baronage became more serious and more frequent; the claims of the
latter and their constitutional ideas became more definite. Henry had held the
reins of government for five years, and the sketch I have attempted to give of
that period will perhaps suffice to show that all the elements of future
disaster were already distinctly visible. It cannot have needed very great
political insight to foretell that with such a king a rupture was inevitable.
But before 1232 the man who was destined to play so important a part in the
struggle had already appeared upon the scene.
CHAPTER II.
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