The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction to the Liberty Fund Edition
• Editor’s Note
• Preface
• Part 1: Representative Institutions In England, France, and Spain, From the Fifth to the Eleventh Century
• Lecture I
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25
• Lecture 26
• Part 2: Essays of Representative Government In England, From the Conquest Till the Reign of the Tudors
• Lecture 1
• Lecture 2
• Lecture 3
• Lecture 4
• Lecture 5
• Lecture 6
• Lecture 7
• Lecture 8
• Lecture 9
• Lecture 10
• Lecture 11
• Lecture 12
• Lecture 13
• Lecture 14
• Lecture 15
• Lecture 16
• Lecture 17
• Lecture 18
• Lecture 19
• Lecture 20
• Lecture 21
• Lecture 22
• Lecture 23
• Lecture 24
• Lecture 25

LECTURE 8

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.

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.”*1

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 Foresta, 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.

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 Bri-were, 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.

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 nec sui corporis nec 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.

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.

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.

[* ]The original of this charter still exists in the archives of Durham Cathedral.

[1. ]These passages explain Guizot’s opposition to Rousseau’s ideas on liberty, representation, sovereignty, and social contract. It is worth noting that Guizot’s critique of Rousseau differed, for example, from Constant’s. If the latter criticized the author of the Social Contract for advocating aflawed theory of (absolute) sovereignty that threatened individual freedom, Guizot loathed Rousseau’s “individualism,” which he believed to be “destructive not only of all government, but also of all society” (HORG, p. 288). Unlike Rousseau, Guizot believed that popular sovereignty might lead to despotism and anarchy instead of liberty. Reason, he argued, is superior to individual will; that is why, for Guizot, Rousseau’s famous definition of liberty as obedience to the laws we have prescribed to ourselves was mistaken. For a comprehensive discussion of the legacy of Rousseau, see Jean Roussel, Jean-Jacques Rousseau en France après la Révolution (Jean-Jacques Rousseau in Post-revolutionary France) (Paris: Armand Collin, 1972).