§ I.—: On the nature of the Regal Power.

The Saxon population, having lost by its subjection all political existence, and the power of its ancient kings having passed into the hands of a stranger, the title of king changed its signification to the vanquished, and only preserved its ancient meaning to the conquerors. To the first, the Saxon word king, which the Normans translated by that of rey, expressed only a violent and illegitimate authority: and it was only when applied to the new inhabitants of England that this title conveyed the idea of a delegated authority. The singular ambiguity of these two entirely different significations, soon rendered uncertain the extent of the prerogatives of the person who bore the title of king. The Saxon, trembling before a master, was disposed to unlimited submission and to servile complaisances, which the son of the Norman, prouder because he was stronger, did not reckon amongst his duties to his lord. By a natural tendency, the kings inclined to believe, and endeavoured to make others believe, that the title they bore gave them a right to an equal submission on the part of all their inferiors, and they aspired to level to the same condition with respect to themselves, the two races of men who inhabited the country with such different destinies. Thence proceeded, among the Anglo-Norman kings, a tendency to egotism and isolation, which early offended the sons of the companions of Duke William. They were indignant that, confounding together the two distinct parties of his royal power, their chief pretended to treat them as he treated the Saxons who peopled his towns and boroughs. Their resistance to this pretension brought about troubles and wars. The different events which distinguished this struggle, inclined the undecided authority of the kings, sometimes towards its violent, and sometimes its legal side. There were fluctuations on this subject which had never occurred in the time of the Anglo-Saxon royalty, when all was simple, because the nation was one.

In the debates which this singular situation gave rise to, when hostilities were suspended, and each party exposed his rights in order to prevail upon the opposite party to acknowledge them, the Normans invoked the traditions of Anglo-Saxon royalty against the ambition of their chief. They maintained that the ancient limits of royal power ought to be re-established, and collected every thing that tradition furnished for fixing these limits. The Norman jurisconsults drew up methodically from verbal information, the customs which had ruled England before the Conquest, and adorned this collection with the name of Laws of King Edward the Confessor. Such was the origin of that clamour for the laws of Edward, so often reproduced in England in the twelfth and thirteenth centuries by the Anglo-Norman barons against the kings. The object of their complaints and insurrections was not to obtain for all the inhabitants of the country, without distinction of origin, securities against a common oppression. The charters which resulted from a momentary agreement of the two parties, prove that it was a question of security only for the possessors of the lands distributed after the Conquest; those who dwelt on domains that did not belong to themselves, remained in the class over which the royal power was absolute, and could only change their class by means of personal emancipation. Indeed, the customs which had existed in the times of Saxon independence, could be revived beneficially only for those who were, after the Conquest, in the position of the former Saxon freemen; and the Anglo-Saxon race was almost entirely fallen from this position. In losing its landed property, it had also lost the privilege of freedom, which, during the middle ages, had belonged exclusively to it; it had fallen into that class of farmers and tributaries which the old laws of the country called keorls, and for whom these same laws, previous to the conquest, had been extremely severe. The Saxons, inhabitants of towns, were in the condition of servitude which weighed upon the non-proprietors in the country; for they were regarded as simple farmers of the city which was their common domicile. The possession of most of the towns, distributed at the partition of the conquest, like great undivided shares, was the principal attribute of the royal prerogative in its arbitrary portion.

The first charter of liberty which the Anglo-Norman nobles forced their chief to Consent to, was that of Henry I. This charter, drawn up less than forty years after the Conquest, seems to have had for its sole object the better preservation to the sons of the conquerors of their natural right to be exempted from all the vexations which the natives were forced to submit to. It declared that all proprietors (and no right of property anterior to the conquest was then recognized) should inherit their possessions entirely and freely, without paying the king any sort of duty. It insured, moreover, to all the barons and knights, that is to say, to the men of Norman birth, the liberty of marrying their daughters and relations without the king’s permission, and of retaining the guardianship of their near relations during their minority, a right which was refused to the Saxons, or from which they were forced to buy their exemption by more or less heavy taxes. This act, thus destined to distinguish, in a more certain manner, the two opposite phases of the royal prerogative, was solemnly sworn, then openly infringed, on account of the tendency of the kings towards an order of things in which the conquest should exist for their benefit alone, and in which the entire population should be degraded to the same level. But thirty-six years after the signing of the charter of Henry I., the barons demanded of King Stephen the oath to observe this charter, and moreover exacted from him securities against the king’s endeavours to interdict to Normans as well as to Saxons the bearing of arms in the forests. These new acts were signed and deposited in Westminster Church, near London. But they soon disappeared, and the royal power recommenced confounding together the two orders of men which it ought to have distinguished. An armed opposition and a civil war were the consequences of this new attempt. A confederation of the descendants of the companions of William was formed against King John. They represented to him Henry I.’s charters, and threatened, that if he persisted in forgetting his duties toward them, they would seize his castles, possessions, towns, every thing which he had inherited of the fruits of the great victory gained in common by their ancestors. The quarrel was bloody; more than once the king promised, and violated his promise; at last a truce was concluded, and a treaty signed in the plain of Runnymede, near Windsor, between the two armies. The treaty of peace consisted of two distinct charters, one called the charter of common liberties, the other called the forest charter. The latter only reproduced the contents of the old charter of King Stephen; but the other, which has become so celebrated in the history of England, under the name of the Magna Charta, is expressed in a more formal and more detailed manner than all preceding charters.

The charter of common liberties established the strict obligation the king was under, not to raise money on the class of landed proprietors, unless it had itself consented to it by the free vote of its chiefs and representatives. Three cases only were reserved, in which the king, without a previous vote, might of his own authority levy a moderate contribution. On all other occasions, the archbishops, bishops, abbots, counts, and chief barons were to be summoned by letters addressed to each individually, and a certain number of inferior barons and knights domiciled in the provinces, were to receive from the royal officers a collective warning to assemble on a day fixed, as a deliberative assembly. This warning was to precede the meeting forty days. It was determined that no man of rank should be fined but by the judgment of his peers; that no free man should in any way be destroyed or ruined in body or estate except by the same judgment; that, without judgment, he should not be banished, imprisoned, or despoiled of his inheritance. The securities granted to free persons extended even over their domains, and the agricultural implements they used in their improvements. The carts and harness which belonged to the lord of the manor, could not be put in requisition for the repairing of fortresses, bridges, and roads, the expense and labour of which thus necessarily fell on the sons of the Saxons, the vassals of low estate, farmers and cottagers, in a word, on that numerous class of men whom the Normans designated by the name of villains. One clause only moderated the king’s administrative and judiciary acts towards them; the implements of labour, which the charter calls their gagnage, or, as we would call it, their means of gaining a livelihood, were excepted from the seizure of effects, which they frequently incurred for delay in the payment of taxes, or for contests of interests with the bailiffs of their lords. In this treaty of peace there is no mention made of the citizens of England, excepting those of London, a city in which a great number of Norman families had taken up their residence, and the inhabitants of which, for this reason, participated in some measure in the privileges of foreign descent. The citizens of London, who took the title of barons like the proprietors of estates, obtained as well as they, the assurance of never being taxed but with the consent of the great national council, which, in the Norman or French language, was called Parliament. No similar concession was made for the other towns and boroughs: only a declaration was made, that the immunities of various kinds which the royal authority had granted them, must be maintained. In confirmation of the contents of this act, the insurgents, that is to say, all the barons of England, except seven, chose twenty-five from amongst them to form a permanent commission, entrusted with watching the exact observation of the tenour of the Great Charter; moreover, the free proprietors of each county were to name twelve knights entrusted with seeking and denouncing to the twenty-five preservers of liberty, all bad customs which required to be extirpated.

The old tendency to assimilate the proprietors of estates to the citizens, and the sons of the conquerors to those of the conquered, manifested itself anew, although the Great Charter had been solemnly deposited in most of the churches. The successor of King John raised up against himself a confederacy similar to that which had armed against his father. These treaties gained by the sword, were represented to him at the point of the sword; he swore to maintain them, his hand on the New Testament, in presence of the assembled bishops, who, holding lighted tapers, threw them all down at once, saying, “May he who violates this oath be thus extinguished in hell!” Notwithstanding this anathema, the king soon forgot what he had so solemnly promised, and the sons of the Normans were forced a second time to have recourse to arms to claim the rights of their ancestors. They compelled Henry III. to give them an act signed with his seal, in confirmation of the charter; but, whether the fatigue of these wars led them to avoid their return, or whether the energy of the Anglo-Norman barons was overcome by the perseverance of royal authority, they relinquished some of the privileges which the Great Charter insured to them, and allowed their condition gradually to share the character of uncertainty and dependence which predominated in that of the descendants of the conquered. In the course of a century and a half, their fathers and themselves had imposed five charters on the kings. Edward I., Henry III.’s son, confirmed the last; but after him commenced the reaction of royalty against the power and independence of the baronage. Richard II. went too hastily to the point of annihilating political rights for the benefit of the royal prerogative; he was defeated and made prisoner by the army of barons raised against him. Meanwhile, the doctrines on which the prerogative was founded, were already passing from the privy council into the Parliament, where a second assembly, partly composed of citizens accustomed to regard royalty as an absolute authority, had taken its place by the side of the great council of barons. Moreover, it was difficult to lower the sovereign and free class, without raising a little the subject and despised class. This felt it, and its present interest led it to lend all its forces in the service of royalty. The tendency to the assimilation of the two races under the absolute power of one man, was equivalent to the gradual overthrow of the order at first established by the Conquest. And as the masses, once put in motion by political interest, never stop but at the end of their progress, from the moment that the citizens or sons of the conquered became, under the king’s auspices, members of the House of Commons, from that moment commenced, although feeble and uncertain in the beginning, a great reaction of the inferior agaist the superior classes, with the intention of effacing from England all trace of the Norman Conquest, and of destroying all power which derived thence its origin, even royalty itself.

During the fourteenth century, the fusion of the least rich class among the men of Norman race with that portion of the other race which had enriched itself by industry and commerce, as well as the progress of a great number of citizens of the class of capitalists to that of territorial proprietors, had taken place with great activity, owing to the assistance of several laws or statutes relative to the possession of lands. Until then, the different divisions made at the time of the Conquest, had remained unalienable in the family of the original possessor, and moreover, were unable to pass from one race to another, on account of the customs which forbade the sale of a titled estate to a person who was not decorated with an equivalent title of nobility. New statutes compelled the feudal superior to receive as a vassal, the buyer, whoever he was, of the land of one of his vassals, and elevated to the same rank the proprietors of domains with equal titles, whatever their origin. These measures, destructive of the ancient political order, did not pass without opposition on the part of the sons of those barons who had twice made war on the kings to maintain their privileges of the Conquest; but their resistance was far from being as energetic as that of their ancestors; they confined themselves to soliciting legislative measures capable of attenuating the effect of those that displeased them. Entails, and the privilege of rendering a portion of land eternally unalienable, were established to resist the movement which was about to throw all the domains into the hands of whoever was able to purchase them. By the help of this privilege, a few fragments of the ancient race of conquerors was enabled to float up through centuries, and remain distinct from the rest of the population.

The kings did not entirely succeed in executing the project of the fresh conquest which they meditated against all the inhabitants of England, without distinction of race; they soon stopped willingly in their pursuit of this enterprise. Frightened at seeing their authority separated from the ancient supports which had surrounded it for several centuries, they changed their policy in time, and worked to re-establish part of what they had destroyed; they created orders of knighthood and other aristocratic corporations; they reproduced the distinction of races under new forms. It was very unwillingly, however, that they yielded to this necessity. Their conduct during the fifteenth century often presented disparities, and a mixture of two opposite tendencies, according as they were led by the desire of reigning alone, or the fear of being nothing if they remained alone. The nobility of the sixteenth century, a class of mixed origin, showed no remains of the spirit of independence of the ancient Norman nobility against the extension of the royal prerogative; but the will and power to act began to manifest themselves among the citizens represented in Parliament by the House of Commons. This immense class, issuing at the end of five centuries from the state of humiliation into which the Conquest had plunged it, made its revolution with the energy which is the characteristic of great masses of men when they appear for the first time on the political scene. It drew into its movement a part of the heirs of the privileges, domains, and titles which the Conquest had founded, whether Normans or English by origin. But these men, whom their position attached to the ancient order of things, surprised and grieved to see their project of moderate reform far surpassed by the violence of a multitude anxious to change every thing, mostly deserted the cause which they no longer understood, and ranged themselves against it, with the king and the descendants of the nobles of the fourteenth, the barons of the thirteenth, and the conquerors of the twelfth century under the Norman standard with three lions. Nothing external indicated there a quarrel of race; but, to see the animosity with which war was still carried on against all ancient political existences, any one would have said that an old leaven of national hostility was still fermenting in the depths of the hearts of the sons of the Anglo-Saxons, and that the shade of Harold had appeared to the adversaries of Charles I.