Reflections on the importance of the medieval English parliament
Reflections on the importance of the medieval English parliament
(Feast of Michael and All Angels, 2017)
What was the importance or significance of the mediaeval English parliament? This is a vast question and my thoughts on it are particularly difficult to articulate, but I think it requires a lengthy process of ‘setting the scene’ to begin with. To put the disputes between kings and representative institutions in their proper context, it is important to consider earlier mediaeval notions of law and kingship. The early mediaeval ‘customary law’ was not one of sovereignty, like the Roman law – whose famous maxim put it ‘whatever has pleased the ruler has the force of law’ – but one of compromises worked out according to a few immutable principles. In such an understanding, law – being the law of one’s fathers – was good because it was old, and old because it was good, and law was sovereign. The king was under the law, bound by it, and his very existence was predicated upon it. Indeed, the mediaeval Icelandic constitution functioned well without a king for centuries, with only one part-time ‘government employee’, a single lawspeaker. Furthermore, since ‘feudal’ relations were essentially personal ones of reciprocal rights and duties, territoriality, like sovereignty was alien to the mediaeval social and political order. As Frank van Dun has it in his essay Uprooted Liberalism and its Discontents, “…power rested on personal allegiances between freemen. Thus, the feudal lord-vassal relationship was not a transitive relation…” Tacitus’ words might well be applied to the early Germanic or barbarian societies, ‘Nec regibus infinita aut libera potestas’ (Their kings are not unlimited or free).
According to such an understanding, the king had certain obligations to his subjects just as his subjects had obligations to his person. The king had to be a loyal king, just as his subjects had to be loyal subjects. The early mediaeval social order was one of reciprocal rights and duties and it thus makes sense to view the barbarian kings through to the high mediaeval kings as little more than princes among princes. As such, if a king wished to enact ‘new’ law, he must make no new ordinance without the consensus fidelium. The importance of such a consensus may be seen in the great care taken by kings to explain that even innumerable statutes of relatively little importance had been enacted with the advice and consent of the great men of the realm.
However, later in the mediaeval period, from the high through to the late period, there were attempts by aspiring absolutist kings at a resurrection of the Roman law. The efforts of the legists went hand-in-hand with a growing central bureaucracy, an enhanced status of the king, and new ideas and concepts overturning older feudal practice such as that of ligesse in 13th century France.
This being the background, it is perhaps understandable that from the 13th century in particular in parts of Europe, there can be seen a growth of representative institutions, composed of lords, knights, and representatives of the towns. This reaction against a nascent centralised monarchy is especially understandable in relation to the aristocracy, for as Fritz Kern has it “the position of the aristocracy rested upon the weakness of the central power.” The question of whether the English parliament was more important or useful for the king or his subjects, then, must take some account of the different groups represented within parliaments. The questions to consider seem to be: whether parliaments served to restrain the king for the great men, the magnates, to whom the king traditionally looked for counsel, advice, and assent; whether they served as a legitimising tool of the king; and whether parliaments were effective in liberating those lower down the social scale, if not necessarily peasants and serfs. There is also the question of ‘important’ in what sense precisely; here I shall be concerned both with the importance to the king and his subjects of parliament, and the importance to parliament of the king and his subjects.
Philip de Commines, writing in the 15th century, stated that the consent of the people was required for princes to levy a single penny. And yet, it is wrong to see such principles as taxation requiring the consent of the class that paid it as late mediaeval principles. Rather, it was precisely during this period that such principles required articulation, since they were under threat. The magnates in England and across Europe used representative institutions to articulate and enforce old and established, not new and revolutionary notions of law and kingship. Against them were aspiring absolutist kings who sought to ride roughshod over the customs of the realm.
The magnates therefore sought to restrain the English king through parliament. This was not at all times and in all places the case, it is true; Edward III was held in great esteem by most of the great political families, working largely in harmony with them throughout his reign, and this is true of him in and out of parliament. And yet the implication of the idea of advice and assent was that the king could receive unwelcome advice and outright refusal from assemblies and representative institutions. The most fruitful area to explore here is that of taxation. The understanding in England was that a king required the consent of parliament to raise non-feudal, extraordinary revenues, and this principle was much exploited throughout the fourteenth century. The crisis of 1340-1 is also rich in evidence of the magnates in parliament’s determination to resist royal policy. Notables such as Arundel and Warenne supporting the claim of Archbishop Stratford led to the concession from the king to a petition from the great men that any one of them was entitled to a trial by one of their peers in parliament if and when a charge was laid against them.
It cannot be emphasised enough the aristocratic nature of the early parliament at least, and this persisted. The position of the Lords was greater than that of the Commons and this to be expected. Nevertheless, too much significance may be easily given to the Commons; until the time of the Ordainers – the ordinances being themselves the work of barons and bishops (the latter of which, for all intents and purposes may be regarded as ‘great men’, certainly having more in common with the Lords than the Commons) – in 1311, knights and burgesses were seldom called to the parliaments of Edward II. When representatives of the shires and boroughs were called in the August 1311 parliament, they had little impact on the central political conflicts of the day, and for some time after this it has long been supposed that the Commons had a habit of not attending when elected. It is thus that the Lords mattered more than the Commons and the Lords were vitally important in restraining the power of the king.
Nevertheless, quite the reverse function of parliament may be seen when the king sought to use parliament merely as a rubber-stamp for his own policies or when he used parliament to seek legitimacy and thus bolster his authority. When in 1295, Edward I cited the passage from Justinian’s Codex which said “what concerns all must be approved by all”, it was simply to call the clergy to come to his parliament. Kings did not have the same understanding of parliaments as those who tried to use them to limit him. Here it is well to consider the difference between the earlier representative institutions and parliament. There is a sense in which the English parliament has roots in the Anglo-Saxon witan and the Norman magnum consilium and yet when in the 1240s the chroniclers as well as the king’s clerks begin to write of “the king’s parliament” it should be clear that they do not mean council, concilium, or conseil, but something new. The later 13th century references to parliament in a judicial context suggest that what is being discussed are those more general meetings of the king’s council where judicial and fiscal and other matters were being settled, thus the king’s parliament may be seen to be just that, a creature of the king, much like the exchequer or the courts.
However, the fact that there were repeated clashes between king and parliament over the same issues shows that it clearly wasn’t plane sailing for the king. Furthermore, while there was clearly a sense in which parliament was regarded by the chancery as a creature of the king, there are many other mentions which suggest otherwise, an entirely different meaning, much more in line with the early mediaeval understanding of law and kingship. Henry III’s clerks on different occasions, in 1244 and 1262, refer to parliament in historical terms, in terms of the 1215 Magna Carta and the Provisions of Oxford. To these clerks, then, parliament was the imposition by the great men of great limitations on royal power. Furthermore, parliaments could and did bring down kings, playing an important role in the downfall of Richard II, with him promising to abdicate before parliament, and Stubbs in the 19th century had it that Henry IV became king by the authority of parliament and thereby “made the validity of a parliamentary title indispensable to royalty.” This is not to argue that anything approaching the modern doctrine of parliamentary sovereignty had emerged at this time, but parliament, mainly through the Lords, was perhaps functioning to defend the sovereignty of law, or at least their own subjective rights, against the attempted sovereignty of kings. Parliament mattered and kings ignored them even in the later mediaeval period at their peril.
From the outset, though, representative institutions were not exclusively about noble interests. Here I do not merely mean to point out that there was a development of the role played by the Commons in the decades after the Hundred Years War. Much earlier one can detect the signs of a non-noble influence and a non-noble taste for rights and liberties. In Magna Carta – often taken as the genesis of the English parliament – we see a mercantile self-interest, with clause 33 demanding the removal of all fish weirs from the Thames and the Medway, which meant more freedom of trade. Thus clause 33 would benefit the City of London. The urban voices would continue to make themselves heard following Magna Carta. It must also not be assumed, however, that the Commons were merely interested in admittedly uninteresting issues such as fish weirs in the Thames; they were engaged, at times more so than the lords, in the great issues of war, the appointment of ministers, and taxation. For instance, we can see as early as 1339 just how violently the Commons could react against the financial measures of Edward III. In this year, the Commons can be seen refusing their adherence to the proposed taxes until they had consulted their constituents while the Lords had caved in.
However, the importance of these other interests in relation to those of the magnates is questionable. To take the importance of towns, for example, England’s towns were not among the freest in Europe. The degree of independence of towns may be regarded in this period as a good barometer for the strength of royal power and England, like Southern Italy, had towns with, as Daniel Waley and Peter Denley put it, “a strictly limited right to order [their] own internal affairs.” And indeed from the outset, while other interests are present, it is nevertheless clear that they are secondary to those of the greatest men. It is only during the second century of its existence that the English parliament always included representatives of shires, cities, and boroughs, and so in the absence of such – the Commons – in its first century, J.G. Edwards argues it cannot be definitively called a “representative parliament” in the broader sense. Indeed, to further illustrate this point, it must be pointed out that for some purposes King, Council, and Lords assembled in one room, and Commons in other. In a parliament roll of 1376, after the initial assembling of parliament, the Commons were told to withdraw to ‘leur ancienne place’ (their ancient/former place) in the Chapter House, their last-recorded meeting place being the Refectory of Westminster Abbey. Clearly, so far as the evidence goes, the Commons were of lesser importance. It must also not be assumed that when the Commons were allowed to meet with the King and Lords that ‘every man Jack went’; in fact in the 1373 parliament “aucuns de Communes en nom de tous” went into the White Chamber. Some chosen delegation in the name of all would have represented a larger body, and the Commons were not happy when shut out and protested, but again, the Duke of Lancaster’s response in the 1376 Good Parliament is telling, “Sir Piers, there is no need for so many of the Commons to come in for the purpose of giving an answer…twelve or thirteen at any one time will be enough.” The response of Lancaster suggests many things, not least that the Commons were summoned to answer questions, rather than turning up to debate issues. Thus while parliament may have been important for the king’s lesser subjects, whose independent attitude was developing due to the difficulties arising from war and plague and their perennial anger at high-handed officials, they were not important within it, which is an equally important consideration.
Parliament did not usher in political modernity, but nor did it hold it back. Instead, it makes more sense to see parliament as a stabilising force for the first few centuries of its existence; not until the 17th century does parliament come into its own as a ‘progressive’ force. On balance, then, Parliament was most vital in maintaining a voice for the magnates. At a time when the Roman Law was being resurrected, albeit in a bowdlerised form, representative institutions, not just in England but elsewhere in Europe, prevented the unquestioned growth of sovereign territoriality. An instructive case is that of the court of Alfonso X of Castille which produced a classic Roman-revivalist legal work, the Siete Partidas in the late 13th century. The influence of the Roman Law is clear from its bold statement that, “no one can make law except the emperor or king or another on their orders.” Yet, the influence of representative institutions is clear from its assertion elsewhere that a king should also take counsel from his subjects. The mediaeval legal order, then, was strong enough to resist attempts to undermine it entirely. It was likewise in England, where even if there was a growth of centralised power, the voice of the nobility, not unlike the Anglo-Saxon witan, can still be heard protesting against the king well into the later Middle Ages, most vocally through Parliament. Parliaments were most important for the traditional counsellors of the king, the nobility, even if their efforts to maintain and restore their rights and the ancient customs of the realm were not always and everywhere effective.
In other words, the mediaeval parliament which came about as a result of 1215 was a Good Thing, an attempt by the nobility to defend a liberal mediaeval social order against the other understanding of parliament as ‘the king’s parliament’ and other creatures of the late mediaeval monarchy. To put it bluntly, and at the risk of some exaggeration, following the destruction of the aristocracy in the 16th century and the creation of a Tudor client peerage, liberalism lost touch with its mediaeval roots and the 17th century opponents of the absolutist Stuart kings found themselves debating how many angels could dance on the head of a pin, since they accepted the Romanised view of law which their mediaeval counterparts had bitterly opposed.
Some introductory reading
Berman, H.J. Law and Revolution: The Formation of the Western Legal Tradition
Edwards, J.G. The Second Century of the English Parliament
Fryde & Miller. Historical Studies of the English Parliament
Kern, F. Kingship and Law in the Middle Ages
Pollard, A.J. Late Medieval England
Powell, J.E. The House of Lords in the Middle Ages
Waley, D & Denley, P. Later Medieval Europe 1250-1520