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LECTURE 14 - François Guizot, The History of the Origins of Representative Government in Europe [1861]

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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 14

Mode of election of the deputies of counties and boroughs. ~ Who were the electors? No uniform principle to regulate elections in boroughs and towns. ~ Voting in public.

We have seen how county and borough deputies were introduced into Parliament; but we are still far from having obtained a complete and correct idea of representative government as it existed in England at the period at which we have now arrived. We have yet to learn by whom and in what manner these members were nominated—in a word, what was then the electoral system, if we may be allowed to give this name to a collection of isolated customs and institutions unconnected with each other, and almost entirely destitute of any generality or unity of character.

The two political parties, whose opposition and debates are met with at every step in the study of English institutions, have not failed to resolve this question, each in a different manner. The Tories, always disposed to limit the boundaries of public liberty, maintain that the introduction of county members into Parliament arose primarily from the impossibility of uniting in the general assembly all the direct vassals of the king, the whole body of whom alone had the right to be present; and that landowners of this class were originally the sole electors of these representatives. The Whigs assert, on the other hand, that all the freeholders in the county, whether direct or indirect vassals of the king, have always taken part in this election.

I shall seek the solution of this question exclusively in the facts which have special reference to the introduction of county members into Parliament; and as this change has been the result not of secondary or unforeseen circumstances, but of the natural course of time and of events, it is needful first to call to mind the general facts which preceded it and gave it birth.

We have seen that, a large number of the direct vassals of the king having very early renounced, on account of their small wealth or influence, their attendance at the general assembly, their political existence became localized and restricted to county affairs, and to attendance at the county court, at which those affairs were transacted. The direct vassals of the king, however, were not the only persons interested in the affairs of the county. Many other freeholders, whether vassals of the great barons or originally simple socagers, possessed considerable wealth and influence;* and as actual possession at this period was almost the only arbiter of right, there is little doubt, a priori, that all the freeholders of any importance in the county were then admitted to the county-court, to direct the administration of justice and to discuss their common interests.

These probabilities are changed into absolute facts by the testimony of history. It is proved that the knights, who were direct vassals of the king, did not alone compose the county-courts. From the time of William the Conqueror to the end of the reign of Edward I. a multitude of deeds, laws, writs, and historic records prove that all the freeholders, or nearly all, sat in these courts; and that if there were some exceptions to this rule, they did not in the least proceed from any general distinction between the direct or indirect vassals of the king, but merely from particular conditions imposed on individual tenures. For it does not appear that all freemen-landholders were equally compelled to make their appearance at the county-courts, as this service was esteemed a burden rather than a privilege.

It may then be regarded as certain, that either by the fall of many of the direct vassals of the king, or by the elevation of a great number of the simple vassals of the nobles, there had arisen in every county a body of freeholders, all of whom, in reference to the affairs of the county, and independently of the nature of their feudal relations, possessed the same importance and equal rights.

The county-courts, thus composed, exercised the right of election long before the regular and definitive introduction of their representatives into Parliament. Here officers invested with the powers necessary for the transaction of the county business were sometimes elected; and sometimes knights were appointed to execute the measures of the central government, or sent thither as bearers of complaints or representations. Instances of such elections are numerous. The charters have frequently prescribed them, and they are continually spoken of in the chronicles.

It cannot be affirmed that this appointment of particular knights for the transaction of specific local business was always conducted in a regular manner and by a distinct election. It was sometimes done by the sheriffs alone: but it is certain that most generally it took place “by the community of the county, with the consent and by the advice of the county, per communitatem comitatus, de assensu et consilio comitatus.”

We gather from all these facts, first, that before the introduction of county-members into Parliament, the direct vassals of the king, who, on account of their inferior importance, had ceased to attend at the general assembly, did not form a distinct body in the county-courts, or a particular class of landowners invested with peculiar rights; but that, on the contrary, they were merged in the general class of freeholders, nearly all of whom also attended the county-court, and there exercised the same rights; and, secondly, it is unquestionable that this assembly of freeholders was in the habit, in certain cases, of appointing some one of its members either for the management of the county business, or for any other purpose.

Are we to believe that when the object in view was sending representatives of the county to Parliament, there was substituted, in place of the existing order of things, a new order by which to elect them? or, in other words, that those freeholders, who, though direct vassals of the king, were on the same footing with the other freeholders as regarded all the operations of the county-court, were distinguished from them by being alone called upon to elect members of Parliament? Nothing is less probable in itself, and in fact nothing is less true than that there was such a disorganization of the county-courts at election times.

It is not at all probable, because, in the state of society at this period, the status quo almost always ruled. We are greatly deceived if we expect to find the institutions of the time under the sway of some general rule, and issuing in the inevitable consequences of a principle. There was no such dominant general rule or principle. When a new law appears, it is the product of facts, not of a theory. When any new demand is made upon society, it is society in its actual condition, and not a systematically constituted society, which replies to the demand.

The freeholders in general formed the county-court on every occasion, and took part in all its acts. What reason could there be for suddenly setting aside an established custom in order to create a privilege in favour of certain landowners whose position, although special in some respects, was but little distinguished from that of others? Was there any occasion for an act so unusual that it could not be put in force without subverting the customs then in vogue? There was none: on the contrary, this act appeared to the county landowners as only another circumstance allied to the many existing facts of the same description: they neither foresaw all the importance which this fact could not fail to acquire, nor all the consequences to which it would necessarily lead. This election of knights summoned to Parliament, although somewhat more important than other elections, resembled all those which were frequently made in the county-court, and in which every freeholder took part. Why should the right of voting on such occasions have belonged exclusively to particular individuals among them? Were they not all equally interested, as the majority of the taxes were levied on their personal property; and the principal duty of the deputies was the settlement of the taxes? How is it possible to believe otherwise than that this, like every other election, was made by all the members of the county-court without distinction?

Facts, I repeat, confirm these probabilities. The writs addressed to the sheriffs by the king for the election of county members, are conceived in the same terms as those issued for elections relating exclusively to the administration of local affairs. They equally set forth that these knights shall be elected with the assent of the community of the county, de assensu communitatis comitatus. Further, the returns of the sheriffs declare that the election has been made “in full county, by the whole of the community of the county,” in pleno comitatu, per totam communitatem comitatus. Under the succeeding reigns, terms yet more formal were employed; thus, about the middle of the reign of Edward III. the writs contain, that the election ought to be made “according to the will, and with the consent, of the men of the county,” de arbitrio et consensu hominum comitatus. Finally, facts which have come down to us from later times prove that all freeholders possessed an equal right of participation in these elections. In 1405, a statute of Henry IV., intended to prevent certain abuses committed on these occasions by sheriffs under the preceding reign, orders among other things, that “all those who should be present at the county-court, even when they had not been duly summoned thither by the sheriff, should take part in the election.” Lastly, under Henry VI., the great number of the freeholders having given rise to many disturbances during the elections, two statutes (the first issued in 1429, and the second in 1432) limited the right of suffrage to freeholders possessing an annual income of forty shillings: this was the first and last limitation of the kind, and it still continues to subsist in England.

Thus, moral probabilities and historical facts alike indicate, that since the origin of the Parliament in its actual form, the representatives of counties have been elected not only by the direct vassals of the king, but by all the freeholders, whether mediate or immediate vassals, who composed the county court. In order definitively to establish this opinion, nothing remains but to examine the proofs that are alleged in favour of the opposite opinion. These may be reduced to two: first, it is said, that as the direct vassals of the king alone possessed originally the right of sitting in the general assembly, and as the election of knights of the shire arose entirely from the impossibility of assembling in Parliament all the direct vassals of the king, the latter alone must have been the electors of the representatives who were sent in their place. Secondly, the vassals of the barons long demanded exemption from the obligation of contributing to the payment of the fees allotted to the county members, which proves that they could not have shared in the election; for had they done so their claim would have been absurd. Both these proofs have the fault of being indirect, and of resting upon consequences deduced from general facts, and not upon special and positive facts, such as those I have just adduced in support of the contrary opinion. Moreover, the first argument supposes the existence of a general and absolute principle which was invariably followed; and that the county members were summoned to Parliament only to represent the direct vassals of the king. This supposition is neither probable nor conformable to facts. We again repeat, that there was at this period no general principle, no fixed and invariable rule. General principles and their consequences exist only in a calm and settled state of society; they are incompatible with a rude population and long-continued disorder. How, then, could social classifications and their corresponding rights have remained fixed and distinct in the midst of such chaotic confusion? Besides, the feudal system never exercised such complete sway in England as to insure anything like a strict observance of its principles. It is true that the right possessed by all the direct vassals of the king to appear in the central assembly, was one of the sources of county representation; but when this right, after having fallen into desuetude, began to revive in the persons of representatives, it was outweighed by an actual and more powerful circumstance, the formation of the general class of freeholders, meeting at the county-court, and there exercising the same functions and equal rights. This fact is incontestible; so the Tories are compelled to acknowledge that the deputies were elected by all present at the county-court. But how do they attempt to escape from the consequences of this confession? They maintain that the direct vassals alone sat in the county-court: an opinion too much opposed to the nature of things and to all the facts which I have brought forward, to require refutation.

There is another difficulty which perplexes Tory writers, and which they are equally unsuccessful in their attempts to surmount. It is impossible for them to deny that under the reigns subsequent to that of Edward I., and especially under Henry IV., all the freeholders in the county took part in the election: now, to avoid this embarrassment, it is pretended, that taking advantage of the disorder of the times they had usurped the right of suffrage, and that the statute of Henry IV. (in 1405) for the first time legalized this abuse, and lawfully summoned the freeholders to the election of deputies. There is no probability in this supposition, which is not supported by a single fact. Between the reigns of Edward I. and Henry IV., nothing can be discovered which indicates the usurpation of the electoral right by a portion of the freeholders who had remained till then strangers to the election. No trace of change in the composition of the county-courts is to be found, nor any alteration in the form or language of the writs of convocation. Everything indicates, on the contrary, that the elections continued to be conducted as in former times; and that the statute of Henry IV. has evidently no other object than to prevent the illegal practices of the sheriffs, which had become scandalous under the reign of Richard II. Thus, in whatever light it is viewed, this first argument is utterly valueless.

The second is of no greater worth. It is founded upon the supposition that those only who have a voice in the election of representatives ought to contribute to the payment of their salary. Now this supposition is explicitly contradicted by a writ of Edward III., which proves that even the villani, the simple husbandmen, who certainly took no part in the election, were required to contribute to the payment of the fees. If it appear, then, that the freeholders demanded release from this impost, it cannot thence be concluded that they had no share in the election.

In these demands there is nothing extraordinary. The office of member of Parliament was originally more an onerous burden than an advantage. The person elected was compelled to give security to guarantee his attendance at the assembly. A curious instance is mentioned of an elected knight who could not find the required bail; the sheriffs, therefore, seized his oxen and farm-horses to compel him to fulfil the duties of his office. In a short time, to render the charge less onerous it was made lucrative: fees being awarded to the representatives. These fees were levied on the entire county, with the exception of certain particular immunities. A writ of Edward III. proves this distinctly. It is true that the vassals of the barons, chiefly under the reign of Edward III., made frequent claims of exemption from payment of the salaries due to the members: but these were not founded upon the circumstance that they had had no share in the election; they rested on a pretext derived from feudal law, maintaining that, as their lords sat in Parliament in their own right, that is to say, in their quality of peers, they were represented by them, and ought not to pay the salaries of the county representatives. It is evident that these claims proceeded from confusing ideas of the ancient feudal representation (a fiction which rendered the noble in some sort the proxy of his vassals) with ideas of the new system of representation. These facts in no way prove that the vassals of the barons took no part in the election of the county members; all that they indicate is that the collection of the members’ salaries was very arbitrary, and was regulated by different customs in each county; no conclusion can, however, be drawn from them relative to electoral rights.

Now that I have reduced to their just value these two arguments, the sole support of the opinion which I oppose, it appears very nearly certain that all the freeholders who attended the county-court united in the election of the representatives, whatever might be the nature of their feudal relation to the crown.

Having completed our researches into the election of county members, let us next examine how the election of the representatives of boroughs was conducted.

Although in the county-courts no fixed rule nor systematic distinction regulated the distribution of electoral rights, there was at least something general and identical in them throughout England. The counties were territorial districts of the same nature; the county-courts, wherever situated, were the same institution, and the freeholders formed one class of men. Out of circumstances nearly everywhere alike, there naturally arose an electoral system in all places the same.

It was not, nor could it be thus with respect to the boroughs. They had acquired their liberties successively to a greater or less extent, and under a thousand different forms. The political state of one town gives no clue to that of other towns, as they were not at all correspondent to one another. Sometimes the municipal rights belonged to the more or less numerous corporation which held the town in fee-farm; sometimes to the general body of freeholders who held their houses in burgage-tenure, a kind of tenure analogous to the tenure in socage; sometimes to the entire body of householders; occasionally, but more rarely, to the whole of the inhabitants. When any particular borough was summoned to send deputies to Parliament, it occurred to no one to consider this new right as distinct from their municipal rights, and to regulate the electoral system on a separate basis. This summons had reference to the borough in its existing condition, and did not introduce the slightest innovation into the exercise of the civic authority. The citizens who, in virtue of their charter, enjoyed the right of managing the affairs of the borough, also exercised that of naming its representatives. There was then nothing general or uniform in the foundation of this new right, and it would be impossible to reduce the elections in towns and boroughs to any common principle. We can only examine a number of particular facts, and derive from them the following results:

I. The political right of electing members of Parliament was not distinct from the municipal rights of the borough, and was exercised in the same manner and by the same citizens.

II. From this it follows that the election was commonly made by the council, who directed the local interests of the borough: the number of electors, therefore, was very limited at the outset.

III. Where a corporation held a town in fee-farm, it also possessed the right of appointing the members of Parliament. These corporations were generally composed of a few individuals.

IV. As the freeholders of many boroughs sat in the county-courts, not a few of the elections of borough members took place originally in these very county-courts, and by the borough freeholders who repaired thither, and who exercised this power either on their own account, or as authorized by their fellow-citizens.

V. The writs or orders for the election of deputies were at first addressed directly to the borough magistrates themselves. This, at least, was the case in 1264, the period of the first convocation with which we are acquainted of the representatives of boroughs under Henry III. In 1283, the same procedure was followed by Edward I. for the convocation of the Shrewsbury Parliament, to which the representatives of twenty-one boroughs were summoned. In 1295, the writs were addressed to the sheriffs of the counties in which the boroughs were situated, and from that period, this has been the habitual and legal form of convening the boroughs. In 1352 and 1353, however, Edward III. addressed his writs directly to the municipal magistrates, on the first occasion for ten boroughs, and on the second for thirty-eight. These are the last examples of similar convocations. The Cinque-ports remained the only boroughs which received the writs directly.

These facts explain how borough-representation has been so easily corrupted in England, and remains so disgraceful to this day.* In every town political rights have remained restricted to the municipal bodies, who, originally, were usually comprised in a very narrow circle. The general tendency has been ever since, and especially at the period of the revolution of 1640, to extend electoral rights in boroughs, and thus to render the election more popular; but, on the whole, the choice is invariably made by the municipal powers, organized according to their ancient charters of incorporation. In the counties, electoral rights have adapted themselves to all the vicissitudes of property, and have become proportionably extended: in the boroughs, they have remained unaltered. Every unchangeable institution is vicious, because ultimately it will be sure to establish privileges in opposition to the actual state of society.

I should wish to be able to add to these researches into the electoral system of England in the thirteenth century some particular and circumstantial details concerning the forms of elections; but nothing can be discovered on this subject, either in history or in the laws. The laws did not mention the matter, because at this stage of civilization it is not thought that such things require to be either regulated or expressed. It is probable that the electors, who were generally very few in number, agreed among themselves, in presence of the sheriff, on the representatives they wished to appoint; and that the sheriff, by a writ, informed the Court of Chancery of the nomination. The only important circumstance in this mode of election was the open voting, which has been perpetuated to this day. Nobody then attached sufficient importance to his choice to think concealment necessary.

Until the reign of Henry IV., we do not find any law respecting the forms of election. In proportion as the elections became important, the sheriffs, profiting by the absence of all forms, took the matter into their own hands, and managed it agreeably to their own will. The law to which I refer was passed in order to prevent these abuses. Here, as everywhere, the organization of sureties took place long after the recognition and exercise of rights.

[* ]It may be seen in the Black Book of the Exchequer that Godfrey Fitzwilliam, in Bucking-hamshire, held twenty-seven knights’ fiefs of Earl Walter Gifford, whilst Guilbon Bolbech, in the same county, held of the king only one knight’s fief.

[* ]Before the reform of Parliament in 1832.