08. England: The Crisis of the Constitution, 1603-1714

The Origins of the English Constitution

The Magna Carta

The political history of England between 1603 and 1714 was a time of significant constitutional crisis. From the English experience would come the foundations for constitutional government in the United States. Our early education often leaves us with the misconception that our government comes to us from the ancient Greeks. Not so. Our government comes from England. Before examining the 17th century constitutional crisis in England, it is important that we first take a look at the medieval origins of English government.

Throughout most of the Middle Ages, the fundamental basis of all legal, economic, social, political, and military identity in European countries was feudalism. Feudalism originated in the 9th and 10th centuries as a contractual relationship between noblemen seeking stability in a world seemingly without order. The operating principle underlying feudalism was security through mutual protection.

Here’s how it worked. Two noblemen would enter into an agreement pledging to each other and their heirs forever their mutual loyalty and protection. As both men were nobility, the contract was considered to be between legal and social peers, equals. As they were not equal in wealth or strength of arms, however, their relationship would be that of a lord to his vassal; the lord being the wealthier and stronger of the two at the time the contract originated. The vassal took a sacred oath to the lord pledging his homage (to be the lord’s “man”) and fealty (loyalty). The lord, in turn, provided his vassal with lands (called a fief) and military protection. The vassal was also obligated to provide his lord with military protection, providing his lord with a specified number of armed men for a specified period of time (usually forty days) per year. Because the contract was based on a sacred oath made before God in the presence of a priest or bishop, it was binding on both parties forever. Hence, the feudal contract was hereditary and, as a contract, could not be legally terminated or changed without the consent of both parties. Thus, the contract became the “law” defining the lord-vassal relationship.

In addition to providing his lord with military assistance, a vassal had three other contractual obligations: he must make a financial contribution to his lord 1) at the time of the knighting of the lord’s eldest son and 2) at the time of the first marriage of the lord’s eldest daughter. He must also 3) contribute to paying ransom for his lord should his lord be captured by an enemy. Beyond these three financial obligations, a vassal was not obligated to make any money payments to his lord. Should a lord need additional funds (the medieval word for such payments was “aids”), he could call on his vassals for contributions, but they would be obligated to pay only if they agreed in advance to do so. Thus, a lord needing money for extraordinary expenses would often summon his vassals together in a “common council” for the purpose of discussing and approving (or rejecting) the lord’s request. Herein lies an important concept with future implications. As medieval kings were feudal lords and their vassals were from among their nobles, kings needing money for special purposes had to call together meetings of their vassals. In England these meetings of kings with their vassals came to be called “parliaments.” (Today the word parliament has taken on generic meaning for any nation’s legislative body.)

The guiding principle underlying such parliaments was, therefore, that the king could not tax his vassals without their consent. Sound familiar? To simplify it in today’s political thinking: the government cannot collect a tax that is not its legal right to collect without the consent of its people. In the Middle Ages the government was the crown, the hereditary monarch. The “people” were the crown’s legal and social equals, those noblemen who were the king’s vassals. More often than not, the vassals said no. After all, to give the king money could enable the king to become more powerful. If that were the case he could use his expanded wealth to build up his own military strength and wage war against his nobles and bring them under his direct control. Under feudalism, nobles retained great power, prestige and independence. The law that governed them was that of the feudal contract, not that of a powerful king.

The feudal contract also dealt with matters of justice. The Middle Ages were a time without strong governments with the judicial power to exercise justice in civil and criminal matters. What justice existed was local and usually based on precedent, tradition, and superstition. Feudal nobles exercised justice over the peasants who lived on their manors. Kings exercised justice over the people who lived on crown lands (land held by the king outright as his own direct domain). As kings were part of the feudal system, kings exercised justice over nobles, but only as lords in relation to the disputes of their immediate vassals. Kings did not exercise justice over entire kingdoms. The Roman Catholic Church exercised justice in spiritual matters over all Christians regardless of their rank or where they lived. But the Church also exercised civil and criminal justice over those people living in the towns and villages that were on Church lands. The medieval Church in 1400 owned directly one-third of all the land in Europe.

For the nobility feudal justice was usually spelled out in the feudal contract. Vassals were expected to bring their disputes to their lord’s court to be settled by his decision. Sometimes the contract provided for a jury trial. In England the basic contract between the king and his vassals (the Magna Carta) specified that the king could not seize the property of nor imprison a vassal except by the decision of a jury of his peers (equals), i.e., the other vassals. The same English contract also specified that the king, as lord, could not delay nor deny his vassals justice. In time these rights to justice were extended to all “free men” in England. Our constitutionally guaranteed rights to due process of law and trial before a jury of our peers have their origins in the feudal contract between the English king and his vassals.

Today we are used to a political system with power held by a centralized government exercising sovereignty over its people. You are now very familiar with the concept of sovereignty. Very simply, sovereignty means the highest governing political authority. In ancient Egypt the pharaoh exercised sovereignty. He was totally absolute in authority. He made all the laws and he enforced them. Everyone, regardless of their rank, obeyed the pharaoh without question. Later in Classical Rome, the Emperor exercised similar sovereignty. We recently studied how Henry IV and Richelieu built royal sovereignty in France. And we’ve since seen how Louis XIV exercised that sovereignty as a divine right absolute monarch.

Today in the United States, we say the people are sovereign. That sovereignty, obviously, is exercised by a government elected by, representative of, and responsible to the people. Under our Constitution we check, balance, and separate the powers of sovereignty into three branches: legislative, executive, and judicial. We also separate sovereign power even more so through our federal system of government, with the exercise of authority shared by the central government with the governments of the fifty states. But, no matter how much we separate, check, and balance the exercise of political power, we still recognize the sovereignty we assign to our principles and institutions of government.

There was no political sovereignty in the countries of Medieval Europe. There was a Kingdom of France and a Kingdom of England and there were Spanish, German, Italian, Polish, and many other “states” appearing on the map, but these were not nations or countries as we are used to today. Instead they were feudal domains. The King of France in 1400 was the hereditary ruler of the Île de France, the small province around Paris in northern France. That he was king was because he was the heir to the title, king, an honor bestowed on a distant ancestor by the nobles and Church centuries before. He could exercise direct sovereignty only over those lands that were his personal hereditary possessions. These might include other French provinces that were acquired by the crown through marriage or conquest. Beyond these, he was king, but not in charge. The other provinces were the feudal possessions of the French nobility or the Catholic Church. In those provinces the crown had little or no authority. If the Duke of Burgundy were a vassal of the King of France, that would put Burgundy in a feudal relationship with the crown, but there would be no royal authority exercised over Burgundy. The Duke of Burgundy exercised feudal authority in Burgundy. In fact, in 1400 the King of England was the Duke of Normandy and feudal lord over several other French provinces. As such the English king was also the vassal of the King of France. But, because the English king was so powerful in his own right, the French king could exercise no political influence in those parts of France held by the English king. The French king, of course, wanted to exercise real sovereignty and the Middle Ages saw frequent warfare between the king and his vassals. The same was true elsewhere in Western and Central Europe. Under feudalism Italy and Germany had divided into hundreds of small states.

A notable exception to the pattern of weak feudal monarchs was England. In England the power of the crown was based on feudal contract, but one imposed at the time of the Norman Conquest in 1066. England’s new ruler, William of Normandy, required that all English nobles recognize him as their liege lord, the lord to whom they owed their first loyalty regardless of whatever other feudal contracts might exist. Thus, the feudal power of the English crown was stronger than that of any other European monarch. The disadvantage was that the English king was subject to the “law” that was the feudal contract and the entire English nobility were his vassals. His ability to be sovereign was thus considerably limited. The greatest and historically most significant statement of those feudal limitations on English royal power was the Magna Carta of 1215.

The Magna Carta (Latin, “Great Charter”) was the ancient feudal contract put in writing and reaffirmed by the English crown. King John (1199 - 1216) sought to make his crown sovereign. To this end he wanted to reduce the feudal rights and privileges of the nobility. The nobles, of course, did not want to see royal power expanded. They enjoyed the rights and privileges (“liberties” they called them) of the feudal contract. The nobles saw the king’s policies as a threat to the “law” of the land. Their lord was breaking the contract. To uphold the law, the nobles forced John in 1215 to accept a restatement of the ancient contract (the Magna Carta) or face the rebellion of his vassals. As was the earlier contract, the Magna Carta was binding upon both the nobles and monarch forever.

The Magna Carta would later have great constitutional significance. For John and his nobles, it was simply the restatement of the old contract establishing the proper feudal relationship between a lord and his vassals. It clearly defined the “liberties” of the nobility that could not be denied by the crown. But, consider what it was doing. It guaranteed specific rights and freedoms that the monarch could not take away! In later centuries (as we will see in this section of the syllabus) as English monarchs attempted to increase their sovereignty, they were constantly - and annoyingly - reminded by Parliament that they could not break the law. Monarchs whose policies and actions violated the Magna Carta were breaking the law! The monarch, therefore, was subject to a higher law. The Magna Carta became the foundation of the English Constitution, and, as such, of the American Constitution as well. The important underlying principle of constitutional government is that government is based on a contract between the government and the people and is subject to and not above the law.

Understand that the feudal situation in England was unique. In no other European kingdom was the feudal monarch liege lord over all the nobility. We are already familiar with this as we have seen the monarchs of Spain, Austria, France, and Russia build powerfully sovereign crowns in the 16th and 17th centuries. Other regions such as Germany, Italy, and Poland either divided into smaller feudal states or became so politically weak as to have ineffective government.

Beginning in the late 13th century, monarchs sought to increase their sovereignty by seeking other sources of financial support, namely, the middle class. We are already familiar with the economic, social, and political impact of the middle class. The new middle class had what kings needed to build their sovereignty - money. As did kings, the middle class resented the powers and privileges held by nobility under the feudal contract. The middle class also resented feudalism’s institutionalized anarchy that enabled nobles to resolve their differences through warfare. Feudal wars between kings and nobles and conflicts between nobles disrupted trade and hurt business. The middle class saw value in a strong sovereign government that could preserve the peace necessary for the expansion of trade. Thus, for economic reasons, kings and the middle class had a common interest in reducing the power of the feudal nobility. In 1295 England’s King Henry III summoned wealthy representatives of the middle class to attend meetings of his parliament. Commoners would now meet with the Lords to consult with the king on matters of royal government. It was the beginning of the parliamentary House of Commons that is today the legislative body of British government.

In the Middle Ages the English Parliament would not become a formal instrument of royal authority. It did not meet on a regular basis but only when the king summoned it into session. Nonetheless, an important precedent was set: the crown was stronger when it worked with Parliament. As the crown’s financial and political needs became more pressing, monarchs found themselves meeting with Parliament more often. We’ve seen the Tudors astutely understand Parliament’s role as reflecting of the mood of the English political nation and make it an active partner in achieving their political ends. Henry VIII secured England’s spiritual separation from Rome through the parliamentary Act of Supremacy. The hapless Queen Mary understood that she could not restore England to Catholicism without the support of the Parliament. Throughout her long reign, the beloved Queen Elizabeth brilliantly flattered and manipulated Parliament, raising it to new heights of importance as an instrument of royal government.

In conclusion, the constitutional origins of English government lie in the medieval feudal contract of mutual obligations between the monarch as lord and the nobility as vassals. As later reaffirmed by the Magna Carta, the crown’s ability to exercise sovereignty was limited by that contractual relationship with the English political nation. The contract required the crown to assemble its vassals in parliament and receive their consent to any expansion of power beyond the contract. Seeking to increase their sovereignty, monarchs expanded the political nation (heretofore the lords) to include wealthy commoners from the middle class. Thus, a House of Commons was added to the Parliament. While the middle class might be more sympathetic to the crown’s ambitions to increase royal sovereignty, the Commons remained committed to Parliament’s constitutional function, to govern with the crown under the law.

-------------------------------------------------------------------------------------

Queen Elizabeth died without heirs in 1603. The Crown of England was inherited by her Scottish cousin, King James, of the ruling Stuart family. The new Stuart monarchs had little practical understanding of the constitutional traditions of English royal government. Their intention to increase royal sovereignty and become absolute would bring them into direct and serious conflict with Parliament.

England: The Early 17th Century Parliament

In the 17th century the English Parliament, particularly the House of Commons, would challenge the Stuart monarchs as they sought to achieve the supremacy of the crown. The following is a description of the Parliament as it existed between 1600 and 1648.

The House of Lords

The “Lords Temporal” - 82 hereditary nobility (“Peers of the Realm”) and the “lords Spiritual” - the 26 Anglican bishops. The Lords were mostly high Anglican, although a small minority were Puritans.

The House of Commons 450 Members of Parliament (identified simply as MPs)

There were MPs representing two types of constituency, the shires (counties) and the boroughs (towns).

MPs representing the shires (2 MPs from each shire): were elected (since 1455) by all male property holders with land worth at least 40 shillings a year.

• These MPs came largely from the “gentry,” the wealthy land-owning class of “country gentlemen.”

• They were mostly Anglican, although some were Puritan.

MPs representing the established boroughs (those cities and towns that held the royally-granted privilege of sending representatives to the Commons).

These MPs were elected by the qualified male voters in the boroughs. Qualifications for voting differed from town to town but most were based on wealth or property qualifications.

• Although called “burgesses” (townspeople), most borough MPs were gentry in their socio-economic background.

• They were primarily Anglican, although strongly Puritan; a few others were of the more radical forms of Calvinist expression, Presbyterian, Separatist or Independent.

---------------------------------------------------------------------------------------------------

Parliament met only when summoned into session by the monarch. There was no specific term over which a Parliament “sat” (met). The monarch could dissolve (dismiss) a Parliament at will. Once dissolved, a Parliament could not legally remain in session. New elections for the Commons were held whenever the monarch issued a summons for a new Parliament. The same MPs who sat in a previous Parliament were usually reelected when a new parliament was called. The crown could also prorogue (temporarily adjourn) a Parliament and recall the same Commons back into session. The passage of legislation required the approval (a majority vote) of both the Commons and Lords. By the 17th century the tradition had developed whereby all revenue bills (proposed laws for the collection of taxes) wanted by the crown had to originate in the House of Commons.

All MPs were property owners jealously protective of their lands. Many MPs were lawyers conscious of Parliament’s “constitutional” rights and privileges. In the first half of the 17th century many MPs were Puritans, and, as such, suspicious of and opposed to those Anglican doctrines that they saw as being too “Catholic.” In the early 17th century the absolutist policies of the Stuart monarchs, James I and his son Charles I, proved both unpopular and expensive. Royal demands that the crown be granted greater fiscal (financial) powers were met with increased parliamentary resistance. In the mid-1600s the mounting spiral of hostility existing between crown and Parliament exploded in civil war.

-------------------------------------------------------------------------------------------------------------------------------------------------------------

The image is from the Wikipedia article on the Magna Carta.