LECTURE XXXVI.

The rebellions of Henry’s sons—He is succeeded by Richard I.—The steps taken at this period towards settling the succession to the kingdom—The laws of Oleron—Accession of John—His cruelty and oppressions.

Henry’s quarrel with the Pope, terminating in the manner it did, necessarily weakened the weight and influence he ever before supported, both in his own kingdom, and on the continent; nor could the unwearied pains he afterwards took, in redressing grievances, and making salutary laws, by the advice of his parliament, restore him to the consequence he had lost. The rest of his life was spent in unfortunate wars with his rebellious children, instigated thereto by the artful Philip of France. And the pretence was grounded on a step that Henry had taken in favour of his children, and I may add of his people, that of bringing the crown to a regular course of succession, and by that means preventing contests upon a vacancy. Hugh Capet, the first of the present race of French kings, who came to the throne by election, in order to perpetuate it in his family, invented that practice which his successors followed for near three hundred years, of associating the eldest son, by causing him to be crowned in the father’s lifetime.

Henry, who loved his children, and was sensible that the not following this practice in England had occasioned the wars between William and Henry the Conqueror’s sons, and their brother Robert, as well as those between Stephen and himself and his mother, crowned his eldest son Henry. But the use which the ungrateful prince made of his advancement, was to embroil his father, by demanding the immediate cession of Normandy, on pretence that, being a king, he should have some country given up immediately to govern. Upon young Henry’s death, the father, who knew Richard, with greater capacity, was equally unnatural with his elder brother, resolved not to give him the same pretence to trouble him, and refused obstinately to have him crowned; but this refusal served itself for a pretext for rebellion, as it gave Richard room to think, or at least to pretend to think, that his father intended to disinherit him, and to settle the crown on his youngest and favourite son John. In this rebellion Richard, assisted by the king of France, and many of Henry’s subjects, who probably suspected Henry’s design was such as was suggested, prevailed, and the father was obliged to engage that his subjects should take the oath of eventual allegiance to Richard, and soon after died of a broken heart, occasioned by the undutiful conduct of every one of his sons.

Richard accordingly succeeded; during whose reign we have little to observe concerning the laws, the whole time of it being spent in a continual state of war either in Palestine or France. Enormously heavy indeed were the taxations his subjects laboured under, and yet they bore them with chearfulness. For the holy war, and the recovery of the sepulchre of Christ from the infidels, no aids could be thought exorbitant; and for his wars after his return he was readily supplied out of affection; for the remorse he shewed for having occasioned his father’s death, his admirable valour, the injustice of and the cruel treatment he received in his captivity, and, above all, the opposition between the perfidious conduct of the French king and his openness and sincerity, endeared him to his subjects, made them shut their eyes on his many failings, and bear their burthens with patience.

Two things only passed in this reign proper for the subject of these lectures, the steps made for settling the succession of the crown, and the laws of Oleron. As Richard was unmarried when he set out for Palestine, he thought it proper to prevent, if he could, any doubt that might arise, in case he died without issue. There might, in this case, be two competitors, Arthur, the son of Geoffry, his next brother who was dead, and John the youngest brother, who was living. However clear the point is at this day in favour of the nephew, it was then far otherwise. For Arthur might be urged the right of representation. He represented his father Geoffry; in all the fiefs in France, the law was in favour of the nephew; nay, Glanville, who wrote in Henry the Second’s reign in England, as to English estates, declared to the same purpose; and certain it is that the general current of opinions at that time tended that way[384].

On the other side, it might be said in favour of John’s pretensions, that the examples of fiefs could be no precedents in case of crowns. These required more strictly, a person capable of acting in person. That this was the very case; John was a man, Arthur a child; that, allowing Glanville to have laid down the law right, he had made a distinction, which comes up to this case; for he says, the uncle shall succeed, if the father of the nephew had in his life-time been forisfamiliated; that Geoffry had been out of the patria potestas of Henry, by being sovereign prince of Britany; that in the Saxon times two cases, for the exclusion of infants, had happened, much stronger than the present; that when Edmund the first died in possession of the throne, his brother Edred succeeded, not his sons; and though Edmund Ironside had been king, yet, after the Danish usurpation ceased, his brother the Confessor was preferred to his son, though of full age, whereas Geoffry never had the crown; that, since the conquest, three several times had the lineal succession been set aside by parliament. So that there were not wanting plausible arguments of each side of the question, and it is with injustice that modern historians, considering only the maxims of their own times, when a regular succession has been established, charge John with a manifest usurpation of the crown of England. But that he was a manifest usurper of the territories in France must be allowed; for, by the laws of that country, they should have gone to the nephew.

A question of this weight and difficulty should regularly have been decided in parliament, which always hitherto had determined in such matters; but Richard had never thought of the business till he left England, and then it was too late to proceed in that method. He was obliged, therefore, to content himself with declaring, by his own authority, his nephew Arthur his successor; and, to prevent John’s traversing his design, he exacted an oath from him not to set foot in England for three years; but from this obligation he afterwards released him, at the request of their mother. John used all his art to caress the nobility, and to supplant his nephew Arthur, as he fondly hoped Richard would never return. And indeed, the conduct of William Longchamp, bishop of Ely, Richard’s viceroy, contributed greatly to his success; for, as to oppressions and outrages, he was not exceeded even by William Rufus himself. This gave John a pretext for intermeddling to preserve the liberties of the people. He sent word to that prelate, that if he did not refrain from his exorbitancies, he would visit him at the head of an army; which for such an occasion he might easily raise.

A general assembly, or parliament, was called, to compose the differences; in which it was settled, that Longchamp should continue in the administration, and hold the castles during the king’s life, but that, if he died without issue, they should be delivered to John as successor; and this agreement was ratified by the oaths of all the nobility and prelates, so that, as Arthur had the decision of the king in his favour, John by this means attained that of the people. Sensible how much this step must offend the king, and of the dangerous predicaments he must stand in should he return, he spared no pains to ascend the throne even in the life of his brother, in which he was cordially supported by the king of France. But all his efforts were baffled by the vigilance of the regency, who had been appointed on Longchamp’s deposition, and was more necessary from his continuing in his former extravagancies. John even gave out that Richard was dead, and seized several castles, which he put in a state of defence. He was, however, soon reduced, upon the king’s return, and all his treasonable practices pardoned at the intercession of his mother. When Richard came to die, he changed his mind as to Arthur, and by will appointed John his successor: an alteration, considering his former attachments to his nephew, who had never offended him, that could proceed from nothing but his unwillingness to leave his dominions involved in a civil war through the intrigues and interest of his brother.

The laws of Oleron concerning naval affairs are the only specimen of this prince’s legislative capacity. They were made at the isle of Oleron, off the coast of France, where his fleet rendezvoused in their passage to the Holy Land, and were designed for the keeping of order, and the determination of controversies abroad. With such wisdom were these laws framed, that they have been adopted by other nations as well as England. And, I think, to this time we may, with probability enough, refer the origin of the admiralty jurisdiction. In his reign, for the first and the last time, was raised the feudal aid, for the redemption of the king from captivity.

Notwithstanding all the faults of this prince, his firmness against the papal power is to be commended. Two of his bishops having a controversy, there was an appeal to the pope, who sent a legate to determine it; but Richard prevailed on the parties to refer it to his arbitration, and would not suffer the legate to enter England, till he had made an end of the business; and when he did come, the king suffered him not to excercise his legatine power in any but one single point, and that by his express permission. Notwithstanding all the steps taken in favour of John, in order to pave the way for his succession, the notion of Arthur’s hereditary right had taken such strong root in the minds of many, that, had he been in England, and of a sufficient age to manage his affairs, he might have had a fair prospect of success[385].

The lower people indeed were easily prevailed on by his agents to take the oath of fealty to John, while the prelates, and nobility in general, retired to their castles, as deliberating what steps they should take; but, at length, by magnificent grants, and more magnificent promises, they were prevailed on to come in, and he mounted the throne without opposition. But in the French provinces his usurpation met with more resistance. Arthur had many partizans, and his cause was espoused by Philip of France, the lord paramount, not with an intention to strip John of all; for that, with Britany, would have made Arthur too powerful; but with a design to divide the dominions more equally between them, and perhaps to clip off a part for himself, as he afterwards did Normandy, as being forfeited by a sentence of the peers of France, by John’s murder of Arthur. By the way, I shall observe, that this sentence was notoriously unjust. By the laws of France, Arthur was the undoubted heir of Normandy, and on his death his sister ought to have succeeded, nor ought the duchy to have been forfeited by the crime of a wrongful possessor. Or, taking it the other way, that Philip had a right to choose his vassal, and, consequently, that the investiture he gave to John was valid; then was he rightful duke of Normandy, and Arthur, as duke of Britany, was his vassal, and had justly forfeited his life, by rebelling and endeavouring to depose his liege lord. That John was guilty of this crime there was no room to doubt; and truly, from the whole of his conduct from that time, he seemed to have been infatuated by the terrors of his conscience; for it was but little less than frenzy. He knew he was, by this cruel act, become the detestation of his subjects in general, and that his father, in the midst of his power and popularity, had been humbled by the Pope; and yet, at the same time, he trampled on the liberties of the former, and oppressed them in the most outrageous manner, and while his subjects were thus disaffected, he openly set the latter at defiance.

To this reign, however, so inglorious, and so miserable to the English of that age, do their successors owe the ascertaining their liberties. He was, if we except William Rufus, the first of the kings that openly professed to rule by arbitrary power. I do not mean to deny that every one of his predecessors from the Conquest had, in some particular or other encroached on their people, but then there were either peculiar circumstances of distress, that almost enforced and excused them, or one or two wrong steps were atoned for by the greatness and goodness of their general conduct. It is very observable, that, as England is almost the only country in Europe that hath preserved its liberties, so was it the first wherein the kings set up for absolute power: and the preservation of them, I apprehend, was in a great measure owing thereto, that this claim was started there when the feudal principles, and the spirit of independency, except only in feudal matters, were in their vigour, and consequently raised such a spirit of jealousy and watchfulness, as, though it hath sometimes slept, could never be extinguished; whereas, in other countries, the progress of arbitrary power hath been more gradual. It hath made its advances when the feudal system was in its wane, and when the minds of men, by the introduction of the civil and canon law, were prepared for it.

What encouraged the kings of England to attempt this sooner than other monarchs, we may judge, was the greater disparity in riches between them and their vassals, than was in other countries; so that nothing much less than a general confederacy could curb them; whereas, abroad, two or three potent vassals were an overmatch for the sovereign. Besides, having subjects on each side of the water, not knit together in any common interest, they might hope to use the one to quell the other. But whatever was the cause, so was the fact; and John, even before the death of Arthur, having removed the dread of a competitor, shewed, by a most extraordinary step, what kind of sovereign he was like to prove. By the law of these days a vassal was to pay his relief to his superior out of his own demesnes, and the profits of his seignory, and had no right to demand aid for that purpose from his sub-vassals; John having detached Philip from his nephew’s interest, by ceding a part of his French territories, was to pay twenty thousand marks for the relief of the rest; and, to receive this sum, he, by his own authority, laid three shillings on every hide of land in England; thus making England to pay that relief for his foreign dominions, which his foreign subjects themselves were not obliged to pay.

The next instance was in favour of the Pope, under pretence of the holy war. Innocent had laid a tax upon the clergy, of the fortieth of their revenues, and sent a collector to England to gather it, whom John, of his own authority, empowered to collect it from the laity. These two impositions were submitted to, in as much as there was no plan of opposition then formed; but they afterwards occasioned great discontent among a people, who thought no taxes could be raised without their own consent. Accordingly, the next time he summoned his military tenants to attend him into France, they assembled at Leicester, and agreed to refuse attendance, unless he would restore their privileges; for though, by the law of the Conqueror, they were obliged to go, they looked upon this obligation as suspended by his behaviour. However, they had not yet sufficiently smarted, to unite them thoroughly, and this affair was made up by his accepting a scutage.

To enumerate all the exorbitancies he committed would be tedious, and unnecessary, as the remedies prescribed in Magna Charta sufficiently point out the grievances. Let it suffice to say, in general, that he oppressed his military tenants by exacting extravagant reliefs, by disparagement of heirs, by wasting his wards lands, by levying exorbitant scutages, by summoning them to war, and delaying them so long at the place of transportation that they were obliged to return home, having spent all their money; or, when they were transported, keeping them inactive till they were obliged to return for the same reason, and then, without trial, seizing their lands as forfeited. The same oppressions he extended to others, seized lands and tenements at will and pleasure, imprisoned whom he pleased, laid heavy talliages on the socage tenants and boroughs, without any regard to the privileges they had obtained from his predecessors; and having, by these means excited the detestation of his subjects, and forfeited his reputation by losing Normandy by his indolence, he took it into his head that he was a match for the Pope, and engaged in a contest with his Holiness, which subjected him and his kingdom to the Roman See, tho’ eventually it contributed not a little to the recovery of his subjects liberties.[386] The manner in which this happened shall be the subject of the ensuing lecture.