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LECTURE 6 - François Guizot, The History of the Origins of Representative Government in Europe [1861]

Edition used:

The History of the Origins of Representative Government in Europe, trans. Andrew R. Scoble, Introduction and notes by Aurelian Craiutu (Indianapolis: Liberty Fund, 2002).

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LECTURE 6

History of English Charters. ~ Charter of William the Conqueror (1071). ~ Charter of Henry I. (1101). ~ Charters of Stephen (1135–1136). ~ Charter of Henry II. (1154).

Liberties are nothing until they have become rights—positive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as they are not entrenched within guarantees. And lastly, guarantees are nothing so long as they are not maintained by forces independent of them, in the limit of their rights. Convert liberties into rights, surround rights by guarantees, entrust the keeping of these guarantees to forces capable of maintaining them—such are the successive steps in the progress towards a free government.1

This progress was exactly realized in England in the struggle, the history of which we are about to trace. Liberties first converted themselves into rights; when rights were nearly recognized, guarantees were sought for them; and lastly, these guarantees were placed in the hands of regular powers. In this way a representative system of government was formed.

We may date from the reign of King John as the period when the efforts of the English aristocracy to procure a recognition and establishment of their rights became conspicuous; they then demanded and extorted charters. During the reign of Edward I., the charters were fully recognized and confirmed; they became real public rights. And it was at the same epoch that a Parliament began to be definitely formed, that is to say, the organization of political guarantees commenced, and with it the creation of the regular power to which they are entrusted.

I have shown how the two great public forces—royalty and the council of barons, were formed, cemented, and brought into juxtaposition. We must now follow these forces into the combats in which they engaged their energies in order to have their reciprocal rights recognized and regulated; and to do this we must trace the history of English charters. I shall then enquire how the guarantees were organized, that is to say, how the Parliament was formed.

When William the Conqueror arrived in England, his position with respect to the Norman barons and knights had been already regulated on the Continent by the feudal law; their respective rights were fixed and recognized. After the Conquest, fear of the Anglo-Saxons kept the king and the Normans so far united, that neither of them cared much to extort concessions from the other. Very different, however, were the relations between William and his English subjects. He had to adjust these relations—here was a legislation to be created, and rights to be recognized or contested. The English made the most strenuous efforts to preserve their Saxon laws, and it appears to have been in the fourth year of William’s reign (the year 1071) that they succeeded in gaining an assurance that these laws should be maintained. There is reason to believe that on this occasion he granted the charter intituled, “ Charta regis de quibusdam statutis per totam Angliam firmiter observandis.”2 Some have asserted that this charter was not granted till nearly the end of William’s reign, but I see no reason for assigning any other period to it than that which I have mentioned.

This charter, the authenticity of which* has been sometimes questioned, I think on insufficient grounds, is a kind of vague declaration containing the general principles of feudal political law. William, in it, recognizes rights which he often allowed himself to violate; for his power rendered the violation of his promises easy. The Norman barons did not form themselves into any body, unless perhaps against the English; they were all too much occupied in the work of establishing themselves in their new domains. If they sometimes roused themselves to oppose the tyranny of William, their revolts were only partial, and the king adroitly used the English in order to put them down. His son, William Rufus, by adopting the same policy, obtained similar success. But Henry I. had to pay for his usurpation; the charter which he granted was the inevitable consequence of his possession of the throne.

This charter of Henry’s contains a solemn promise to respect all ancient rights. In it the king promises no more to follow all the evil practices by which the kingdom of England was oppressed under the king his brother, that is to say, not to appropriate the revenues of vacant abbacies and bishoprics, nor again to sell or farm ecclesiastical benefices, and to permit the heirs of his vassals to inherit their possessions on paying a just and legitimate fine. He assures to his barons their right to give their daughters or sisters in marriage to whomsoever they will, provided it be not to one of the king’s enemies; he grants to widows who are left without children the possession of their dowry and jointure, and liberty to marry again according to their free choice; and he renounces the right of guardianship, placing it in the hands either of the wife or some relative. He gives to all his vassals the right to dispose of their property either by gift or by will, renounces the right arbitrarily to levy taxes on the farms of his vassals, abandons the forests which William Rufus had usurped, and abolished feudal aids, even in the three cases which we have already speci fied. Lastly, he withdraws the right of coining from the towns and counties, pardons all the offences and crimes committed before his reign, and recommends his vassals to allow their vassals to enjoy all the advantages which he accords to them.

These concessions were merely recognitions of rights, without guarantees. Henry, accordingly, despite his oaths, violated these magnificent promises; and the abuses which they ought to have removed were not diminished in any degree, during the whole extent of his reign.

Another charter was granted by Henry I. to the city of London, by which it was authorized, among other things, to elect its own sheriff and chief magistrate, to hold its accustomed assemblies, not to pay either the danegeld or any other scot, or imposts for works along rivers, and not to give lodging to the retinue of the king.

Lastly, we find new promises and new concessions made by Henry I. in 1101, when his brother Robert laid claim to his rights. Wishing to assure himself of the fidelity of his barons, Henry assembled them at London, and delivered to them a speech, in which, after having given a hideous representation of Robert’s person, he added:—“As for me, I am truly a mild king, modest and pacific; I will preserve to you, and diligently guard your ancient liberties, which I have before sworn to maintain; I will listen with patience to your wise suggestions, and will govern you justly after the example of the best princes. If you desire it, I will confirm this promise by a written charter, and I will swear afresh to observe inviolably all the laws of the holy king Edward,” &c. &c.

These promises, made in a moment of danger, were always forgotten as soon as ever the danger had disappeared. During his entire reign, Henry continually violated the charter to which he had bound himself by oath, both as regards matters relating to feudal dependence, and in the levying of imposts. According to the historians, he levied each year a tax of twelve pence on every hide of land, a tax which was probably identical with the danegeld.

Stephen, Henry’s successor, granted charters to his subjects as Henry had done, and these charters were also the result of usurpation. He published two; the first only confirmed the liberties granted by Henry I., and the laws of Edward the Confessor. The second is remarkable as containing a promise made by Stephen to reform the abuses and exactions of his sheriffs. At this period public offices were farmed, and those who filled them, seeking to gain all the advantages possible from them, were far more oppressive on their own account than on account of the king. Accordingly it was no difficult matter to appeal to the king against his own officers. Such a mode of appeal, however, indicates that legal and regular guarantees were unrecognized and but little thought of. The barons however began to procure them, by force. They obtained from the king permission to fortify their castles and put themselves in a state of defence. And the clergy on their part, while taking the oath offidelity, attached to it a condition that they should be released from its obligation as soon as the king should trespass on ecclesiastical liberties.

The charter granted by Henry II., about the year 1154, still expresses nothing more than a recognition of rights; it does not contain any new promise, or any concession of guarantees. The reign of this prince, I need hardly remind you, was entirely occupied with his disputes with the clergy, with the revolts of his sons, and with his conquests, both on the Continent and in Ireland. No important differences were brought into discussion between him and his barons; no progress in existing institutions is visible, and we may say that the reign of Henry II., considered from this point of view, was orderly and stationary.

If, however, the king, so far as his relations to his barons were concerned, obtained an almost uninterrupted submission, and caused the demolition of most of those forti fied castles which had been constructed during the preceding reign, the towns on the other hand, and especially the city of London, increased in strength and importance, and the aristocracy became every day more compact by means of the fusion of the Normans and the English, a fusion which was almost completed during this reign, at least among the upper classes.

The fact of this period which bears most importantly upon the subject which we have under consideration, is the substitution of the escuage for the personal service of the vassals. It is under the reign of Henry II. that we find this impost collected for the first time, at least in the form of a general measure. The establishment and limitations of the escuage became soon the principal object of contention between the king and his barons. The use which the kings came to make of the resources derived from this impost was fatal to them, for they employed it in order to keep up armies of foreign mercenaries, especially Brabanters; and by these measures, they gave a new motive to the English barons to coalesce. The expulsion of foreign soldiers became at length one of the continually recurring demands of the barons.

Henry II. towards the close of his reign, imposed by his own authority a tax of one sixth on all moveable property. He abandoned the danegeld.

The reign of Richard, which was entirely occupied with his brilliant but unfortunate expeditions, offers nothing especially illustrative of the history of institutions. The absence of the king and the weakness of the royal power supplied the feudal aristocracy with opportunities for extending their importance; but they did not at that time take advantage of their superiority to procure a recognition of their rights—not until the reign of John did the struggle become violent and the victory decisive.

[1. ]This passage is important for understanding the relation between rights and liberties in Guizot’s political thought. The key idea is that liberties must be duly protected by rights if they are to be effective; free government requires not only liberties and rights (as guarantees), but also forces capable of maintaining them in practice. Not surprisingly, Guizot was a great admirer of Magna Charta, “the most complete and important [charter] that had yet appeared” (HORG, pp. 266‒67), by virtue of which the rights of all three orders of the English nation were equally respected and promoted.

[2. ]Charter of the king concerning certain laws to be observed steadfastly throughout all England.

[* ]The original is lost, but a copy of it exists in the Red Book of the Exchequer, which gives a strong presumption for its authenticity. Besides, the charter of Henry I. makes a distinct allusion to it.