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 11

Before we commenced the history of the charters, and after we had for some time fixed our attention on the Anglo-Norman government, we saw that this government was composed of but two great forces, royalty and the council of barons, a unique and central assembly, which alone shared with the king the exercise of power. Such was the state in which we found the government of England under William the Conqueror and his sons. But from their reigns to that of Edward I., a great change was being gradually evolved; after a laborious struggle, the charters were finally conceded, and the rights which they proclaim were definitively recognised. If, after this complete revolution, we cast a glance over the institutions of the country, we find them all changed; we perceive that the government has taken another form, that new elements have been introduced into it, that the Parliament—composed in one of its divisions of the lords spiritual and temporal, in the other of deputies from the counties and boroughs—has taken the place of the great council of barons.

This transformation is a fact; how was it produced? what were its causes and its mode of advance? what was the new Parliament after its formation? how far and in what respects did the introduction of these deputies change the character of the government? These are the questions that we have now to consider; and in order to answer them we must analyze and examine the principal individual facts which here combine to produce the common result.

The first of these facts is the introduction of county deputies into the national assembly. I shall first enquire how this event was brought about; and I shall then propose similar enquiries with respect to the introduction of town and borough representatives into the same assembly.

Two causes effected the introduction of county deputies into Parliament: first, the privileges belonging to knights as immediate vassals of the king; secondly, their interference in county affairs by means of the county-courts.

The immediate vassals of the king had in that capacity two fundamental rights; that no extraordinary charge should be imposed without their consent, and that they should have a place in the king’s court, either to give judgments, or to treat of public affairs. They were from both these circumstances, members of the general assembly by inheritance. They formed the political nation. They took a part in the government, and in the determination of public charges, as a personal right.

Although they were not elected and had received neither appointment nor mandate, we may nevertheless say that they were regarded as representing their own vassals, and that it was only in virtue of the power which was attributed to them in this fictitious representation that they exercised the right of levying im-posts on all the proprietors in the kingdom.*

Perhaps they never could have fully organized themselves into a united body, and soon this became impossible. On the one hand, there rose up among the direct vassals of the king, some influential barons, who united a considerable number of knights’ fiefs into one, and became by this cause much more powerful; and on the other hand, the number of knights with smaller wealth became much more considerable by the division of fiefs, which was itself the result of a vast variety of causes. However, the right of appearing at the general assembly and of giving their personal sanction to all extraordinary imposts, always remained to them. This is formally recognized in Magna Charta, Article 14.

This same article proves at the same time that there existed an evident inequality between different immediate vassals, for it ordains that the great barons should be summoned individually, while the others should be convoked en masse by means of the sheriffs. This is not the first time that such a difference in the mode of convocation is to be observed; it had already existed for some time, and was exemplified whenever the king required from his vassals the military service which they were bound to give him.

Thus, at the commencement of the thirteenth century, the right to take a seat in the national assembly belonged to all the immediate vassals of the king, but it was scarcely ever exercised on account of obstacles which increased every day. The assembly was almost entirely composed of the great barons.

But the other vassals, on the other hand, did not renounce their political existence; if their influence daily became more and more limited to their own county, there at least they exercised their rights and interfered actively in affairs. We often find that knights were nominated, sometimes by the sheriff, some times by the court itself, to give their decision on matters connected with the county. Thus William the Conqueror charged two free men in each county with the business of collecting and publishing the ancient laws and local customs. The Great Charter provides that twelve knights shall be elected in each county to enquire into abuses. These examples are frequent in the reigns of Henry III. and Edward I. Two writs of Henry III.* prove that subsidies were at that time assessed, not, as previously, by the judges in their circuits, but by knights elected in the county-court. The knights in this way brought their influence to bear upon government by the offices they discharged in their provinces, while at the same time they preserved, though without exercising it, the right to appear at the general assemblies.

But, on the other hand, in proportion as they thus became separated from the great barons, the knights who were direct vassals of the king united themselves more closely to another class of men, with whose interests they after a time completely identi fied themselves. They did not alone occupy a position in the county courts; many freeholders, subordinate vassals of the king, also constantly presented themselves at these courts, and performed the same administrative or judicial functions. Service in the county court was an obligation imposed in common, by their tenure, on all freeholders, whether vassals of the king or of any other feudal lord. Many of the latter were more wealthy and influential than certain direct vassals of the king. The practice of sub-enfiefment augmented their number continually. Many who were simply socagers gradually became considerable freeholders by receiving free lands from different nobles. Thus, a body of freeholders was formed in every county, the county court being its centre. There they all discharged the same functions, and exercised the same rights; whatever, in other respects, might be their feudal relations with the crown. We thus see that the dissolution, on the one hand, of the ancient general assembly of immediate vassals of the king, and the localisation, on the other hand, of a great number of them in the county courts, while at the same time their interests were united with those of the freeholders, prepared the elements of a new nation, and consequently of a new political order.

Let us now see how this new nation manifested its existence, and was brought to a central position in the State by means of representation.

In 1214, while the discontented barons were preparing for revolution, John convoked a general assembly at Oxford. The writs of the king ordered the sheriffs to demand for that assembly the assistance of a certain number of armed knights; while other writs † ordered that the followers of the barons should present themselves at Oxford without arms, and enjoined besides that the sheriffs should send to Oxford four approved knights from each county “in order to consider, with us, the affairs of our kingdom.”

This is the first indication of knights being represented in Parliament, that is to say, of the admission of certain individuals, who should appear and act in the name of all.

Was then this idea at that time present to their minds? Probably not. How were these four knights nominated? Were they chosen by the sheriff, or elected by the county court? Were these writs actually executed? All this is uncertain. But that which admits of no doubt is the aim and tendency of this innovation. The contents of the writs themselves, and the circumstances in the midst of which they were issued, clearly indicate its object. It is evident that John wished to find in the knights of the shires a means of defence against the barons, and that consequently the former already formed a class so far distinct from the latter that the attempt to separate them entirely from it was not altogether unreasonable, while they were sufficiently important to be appealed to as powerful auxiliaries.

John’s attempt did not succeed. Facts prove that, in the struggle between the royal power and the barons, the knights and other freeholders espoused the cause of the latter, who, as they protested in favour of public rights, were acting no less for the interest of the knights than for their own.

The struggle continued during the whole of Henry the Third’s reign, and throughout this period we find the king constantly endeavouring to alienate the knights from the party of the barons and win them over to his own, while the barons exerted themselves to keep the knights attached to themselves.

The following is an illustration of the attempts made by the royal power. In 1225, one of the periods when the charters were confirmed by Henry III., we find that writs were addressed to the sheriffs of eight counties, requiring them to cause to be elected in each of these counties four knights who should present themselves at Lincoln, where the council of barons was then assembled, in order to set forth the grievances of their counties against the said sheriffs, who also should be present to explain or defend themselves. In this case, there is no reference except to merely local affairs of particular counties, and the four knights are not called upon to take any part in the general assembly, but they are elected and sent in order to treat of the affairs of their counties before the central council. Here the election is a positive fact in the case, and the nature of their commission—to protest against local grievances—is one of the principles of representation.

In 1240, we find a general assembly of barons meeting in London, in which, however, there is nothing remarkable except the name given to it by the chroniclers. In speaking of it, Matthew Paris employs for the first time, the word Parliament (parliamentum).

Lastly, in 1254, when Henry III. was in Gascony and wanted money, he ordered the convocation of an extraordinary Parliament in London in order to demand of it an extraordinary subsidy. At the same time, he addressed a writ to the sheriffs, enjoining them to cause two knights to be elected in the county courts, “in the stead of each and all of them” (vice omnium et singulorum eorumdem), to deliberate on the aid to be granted to the king. Here then is a real and positive instance of representation; deputies are elected, they are introduced into the assembly, and a deliberative voice is there given to them. Certain historians have maintained that these writs were not executed, but on this point no satisfactory information is to be had. However, as it is proved that a subsidy was granted to the king, there is reason to believe that it was consented to by this assembly, composed of barons and knights.

Up to this time, the great feudal aristocracy had retained the knights and other freeholders on their side; we have now to see how they became alienated from them, and how, after having been for a long time the allies of the barons, they became afterwards allies of the throne.

During the year 1254, a general irritation broke out in the kingdom on the occasion of the demand for an extraordinary subsidy. Henry III., who was misled by the artifices and promises of Pope Innocent IV., had engaged in an adventurous war against Manfred, the usurper of the throne of Naples—a war in which Henry must have borne all the expense, and of which the Pope would doubtless have reaped all the advantages, if it had succeeded. But there was no occasion that his good faith should be put to such a test, for the war was an entire failure. Henry, however, had contracted an enormous debt; his prodigality and extravagance had drained his resources; and he was obliged to appeal to his subjects in order to relieve himself of this burden. These demands for money, which indicate what progress the principle that the king cannot levy imposts on his sole responsibility had made, served as a pretext for the discontented barons to take arms against their king. Simon de Montfort, Earl of Leicester, placed himself at their head, and civil war was declared.

But the aristocracy were weary of these incessant combats, which only yielded momentary advantages. The insurgents formed the project of no longer contenting themselves with conquering the king—they determined so far to fetter him as that henceforth he should be fully dependent upon them. The barons who had wrested Magna Charta from King John had attempted, in order to provide themselves with guarantees, to give beforehand a legal organization to civil war, in case the charter should be violated. The barons who dictated the law to Henry III., went farther: they attempted to organize, not a resistance but a power, and to secure for themselves guarantees, not in civil war but in the very constitution of the government. Not being able to restrain the authority of the king within just limits, they undertook to deprive him of it altogether, and to assume it themselves—in one word, to substitute the government of an aristocracy for that of the king.

They had already made a similar attempt in 1244, when their design had been that four prominent members of their body should be admitted to the council of the king, who would have followed him constantly and governed under his name. At that time the attempt had been unsuccessful, but at the time which we are now considering, their endeavours were followed by better results. In the Parliaments convoked successively in 1255, 1257, and 1258, the most violent reproaches were heaped upon Henry III. as to his prodigality, his faults, his infatuated enterprises, and above all the violation of his oaths of fidelity to the Great Charter. Henry was intimidated, and, as he desired to appease his barons in order to obtain from them a subsidy, he promised to repair his errors and reform his government. It was determined that this reform should be regulated by a Parliament convoked at Oxford, June 11, 1258.

This is the first assembly that has received the official designation of Parliament. The barons attended it, armed and followed by a large retinue; Henry, on the contrary, not having taken any precautions against them, found himself their prisoner. Nevertheless they performed what had been agreed upon, that is to say, that they should commit the care of deciding on the projected reforms to twenty-four barons, of whom twelve were chosen by them, and twelve nominated by the king.1

An unlimited authority was conferred upon these twenty-four mediators. They began by making a complete change in the form of government. Their first concern was to form the king’s council, and four barons chosen by the confederation were commissioned to organize it. They composed it of fifteen members, and of these fifteen, nine at least were taken from the party of the barons, so that the chief power was placed entirely in the hands of these nine persons, and consequently, in the hands of the barons.

A large number of regulations, known under the name of the Acts of Oxford, were determined upon by this assembly, that is to say, by the council of twenty-four barons. No complete collection of them is to be found in any authentic document. The following may be gathered from different historians; among other things the barons demanded:

• 1. That the charters should be confirmed;
• 2. That they themselves should annually nominate the judges, the chancellor, the treasurer, and other officers of the king;
• 3. That they should have the keeping of the royal castles;
• 4. That three Parliaments should be convoked every year, in the months of February, June, and October;
• 5. That a permanent commission of twelve barons should be appointed, who should be present at these Parliaments, and assist the royal council in the transaction of all business;
• 6. That four knights should be appointed in each county, to receive all complaints against the sheriffs or other officers of the king, and to give an account of these to the next Parliament;
• 7. That, for the future, the sheriffs should be nominated by the county courts;
• 8. Lastly, that the king, his son Edward, his brothers, the archbishops, bishops, &c., should be obliged on oath to promise fidelity to the Acts of Oxford.

It was further agreed that the committee of twenty-four barons should reform all the abuses that had been committed in the kingdom, and administer, in the name of the king, the laws that were necessary for this purpose; and then allow the government thus regulated to proceed in an orderly way.

But after the separation of the Parliament, the barons, under the pretext that they had yet abuses to reform and laws to administer, refused to resign their power; and not content with retaining it illegally, they employed it to their own advantage. Their acts and laws had no other object than their own personal interest. Without knowing it, they were acting ruinously to themselves, for they detached from their party that part of the population which clearly apprehended their designs. Two laws especially alienated the minds of the people from them; one of these laws took away from the sheriffs the right to fine those barons who should refuse to present themselves at the county courts, or at the assizes held by the judges in circuit. The second decided that the judges’ circuits should only take place every seven years.

These measures opened the eyes of the people, and they speedily abandoned the authors of them. One fact may prove how far their tyranny had been already exercised at the expense of the country. A deputation was sent to Prince Edward in the name of the English bachelors (communitatis bachelariae Angliae), praying him to compel the barons to finish their work and fulfil their promises, as the king had fulfilled his. The prince replied that he had sworn fidelity to the Acts of Oxford, and that he was resolved to keep his oath. Nevertheless, he demanded of the barons that they should resign their power, threatening if they refused, to compel them to do so, and to take into his hands the interests of the community.

What was this communitas bachelariae Angliae? There is reason to believe that by this name, the body of knights of shires represented themselves. We see by this that the great barons had alienated from themselves this class of men, and that the king had begun to attach them to his party.

From these facts we see that besides the two great powers anciently established—the nobility and royalty—a third power had been formed at this period, which alternately inclined to one or other of these rival powers, and which already exercised a strong influence, since it ensured victory to the party in whose favour it might pronounce.

[* ]This is expressly indicated by two writs, one in the reign of John, dated Feb. 17, 1208; the other issued by Henry III., July 12, 1237.

[* ]One in 1220, the other in 1225.

[† ]Dated November 15, 1214.

[1. ]These pages contain important insights on the formation of Parliament as a fundamental institution of representative government. Also see HORG, pp. 311‒19, 399‒435.