Okally dokally then everyone. This shedcast owes its existence to a listener called Andrew, and appropriately through the operation of direct democracy, not a concept in which I have much faith, incidentally, through a survey and vote. In that survey, the idea of the history of the British Constitution came third. In fact the winning option was, in the words of those fine political theorists, Status Quo, whatever you want so really the constitution came second. Huzzah. A referendum, even if only advisory, clearly must be actioned to protect the legitimacy of the relevant corporation.
So, decision made, I then had to decide what I was writing; should this be some discussion of what a constitution is and how the UK example operates? Or is this simply an opportunity to cherry pick some key events in history, through the lens of constitutional history? Decisions, decisions. And what of law and justice, should that be included or not? And can we really look at just the BC without considering the rest of the world?
Well, you’ll all be delighted to learn that I’ve decided to do pretty much all of that. I am honestly not sure if I have been wise; it might have been better to hive off Common Law as a separate thing – if it therefore produces confusion I am sorry, but if Constitutions are at least partly about liberty and the rights of the individual then I felt I must. Though since I say that – it might well be that Constitutions are not in fact exclusively about liberty; a theme to which we will refer back, but let me start by trying a couple of surprisingly cynical quotes on you. Firstly let’s hear from that famous political theorist, Charles-Louis de Secondat, Baron de La Brède et de Montesquieu, 1689-1755. Montesquieu gave the old P&L look at the use of liberties in a Constitution and remarked
General rule; one can raise higher taxes, in proportion to the liberty of the subjects
So, despotic ruler, if you need money for, I don’t know, a foreign war lets say, chuck a bit of liberty around. Max Weber in Germany after the war, made a similar point that different societies
Had wished for and were compelled to secure the co-operation of the non-aristocratic masses and hence put arms and along with arms political power into their hands
So for many, it’s not just a noble search for liberty; but a deal, a bargain. A negotiation between rulers and the ruled. However, the rise of constitutionalism has been linked to the rise of the nation state, and more specifically to nationalism; the need to define what a new nation is and stands for. All these possible drivers go, then, into the pot of potcasting.
Let’s start off then, with a few principles of what constitutes a constitution as it were; and then let me take you by the hand through the process whereby the British arrived at their much vaunted liberty; which I am sad to say is largely a review of English history, given that it’s essentially the English constitution that was adopted after the unions of 1542, 1707 and 1801; but it’s categorically not a history of the English. The glories of the Scottish Enlightenment provided Britain with some of our most innovative judges and legal experts, with names like William Murray lord Mansfield, William Garrow and Thomas Erskine. Plus of course Tony Blair and Gordon Brown who have helped us to a veritable waterfall of constitutional change after a long drought. There are figures like Welsh PM Lloyd George and the peoples Budget and the crisis with the House of Lords, and famous Irishmen like Edmund Burke. So it’s a team effort.
What, then, is a constitution? And given that the UK is one of a vanishingly small number not to have one written constitutional document, along with Israel and New Zealand, does the UK even have one, and I am not even joking? Because this is an increasingly vital question – once described as the ‘Matchless Constitution’, the world has changed, and really, everyone who is anyone has a written constitution. In fact, as we will discover in a following episode, a written constitution has for quite a while been seen as a requirement for a modern state. Let us go to Turkey, for example, in 1908, and to the pen of one Kang Youwei. Kang was a philosopher and reformer, who had arrived from China in Istanbul, at the very time when Turkey was getting its constitution by the Ottoman rulers. Turkey had achieved its first constitution in 1876, but it had been rescinded; the Young Turk movement had forced them to restore it. Kwang wrote down the essence of the rebel leaders’ ultimatum to the Sultan
They all bent down respectfully and told him…’Every country has a constitution. Only Turkey first declared and then abolished it, so people are not satisfied’. [1]
Poor old UK. And now we are looking around ourselves nervously – with quite a few very influential folks at the world party looking at us and sniggering; so ‘why haven’t we got one of those? Why am I feeling as though I put my pants on after my trousers this morning?’ I might note by way of declaring my prejudices, that as a proud member of the Electoral Reform Society I come from the stable that thinks the UK needs a written constitution. But I shall put that prejudice aside, try to be objective, and let’s see where we get to.
Ok, so what is a constitution? Well, a constitution might have a Capital C, a set of rules regulating the government of a state, a written document probably including a Bill of Rights, and most of these rules are entrenched in law. But that’s not all; a constitution also includes a variety of laws that might be considered constitutional laws, even if they are not attached to a central written document – so that’s complicated then; even though most countries have a written Constitution, capital C, there’s all this mess around with constitutional laws. That’s annoying. And finally, you can’t get away with it, no written document can cover everything, or predict every circumstance – this isn’t Isaac Azimov’s Foundation trilogy we are living in; the Mule exists all over the place. That my friends, is a classic Sci Fi allusion, and any of you who recognise it off the top of your heads ought to get a prize. I said ‘ought’.
Anyway, so there are a whole load of political conventions that are included in any constitution written or not; a clever chap called Griffiths described the BC as a political constitution, rather than a legal constitution – so that means it’s arrived at by political accommodation, rather than sitting down in the pub with a wet towel over your head and writing down a list of rights. But bad news – in a study in 2013 Dawn Oliver and Carol Fusaro [2]found that every constitution in the world is to a degree political – so they include a bunch of political conventions which aren’t strictly law or in the Constitution – but nevertheless are critical rules to govern in the spirit of the state.
So, a Constitution = a whole load of constitutional law, which might or might not include one central document with a capital C, and a bunch of political conventions. So – just like the British Constitution then. But in point of fact the absence of the constitutional document is important, for reasons we’ll come to – at some point over the next couple of years of this whopper of a podcast series.
A couple more things while we are on it; although I have just described the outward features of constitutions, what I’ve not done is really explain what a constitution really is. I mean, what it really is below the skin, behind the chrome and the go faster stripes. So in 1830 the German philosopher Hegel was able to write that ‘what is called making a constitution is a thing that has never happened in History’. Hegel, just like that famous Irish political thinker Edmund Burke saw a constitution not as a tawdry shopping list to control the business of government, the state as it were; no, the constitution should be the living breathing reflection of the entity that lies behind government, the spirit of the nation and its people, an organic living thing, an expression not just of the government but of a nation’s manners, culture and traditions. I might point out that there are however, over 200 countries with a written Constitution with a capital C. Those without that single document number just 3. So if this were a vote, well, unless you happened to be using a draft and inequitable system like FPTP, the winner would be a gimme. However, you might also reflect that a constitution is only worth the name if it reflects practice and political culture; for example I give you the Weimar Republic, which had a constitution whose authority too few were prepared to accept.
We will of course also need to explain the peculiarity of why Britain doesn’t have a written constitution; and in answering that, maybe look internationally and consider why Constitutions came in to being, what were the drivers. That will take a while, and like an unwritten constitution emerge from the spirit of the podcast, but one point I’d make is that all this busy constitution writing is relatively recent. There’s a healthy full and frank exchange of views about who came first; some people have mentioned San Marino in 1600, others Sweden in the mid 18th century or even their intrstrument of Government in then 17th century; England ironically makes a bit with it’s Instruments of Government in the 1650s; then there’s the claim of Corsica in 1755, and even the Nakaz of Catherine the Great in 1767. There is another line of thought that say pshaw, the first fully codified constitution belongs to Uncle Sam. The US constitution inspired many countries, and in particular it inspired Thetford’s favourite son, Tom Paine, on holiday in the US from sunny Lewes in Sussex to where he had moved, to define the 4 things he believed a constitution must have. These were
- It must be written down
- Constitution precedes government – it comes from the people, a government cannot write it
- It must be comprehensive. I think incidentally that India’s constitution is reputed to be the largest in existence but don’t quote me
- It constitutes fundamental law, higher than any other kind, including statute law.
That raises another couple of themes for us, which will vex the BC; the point that constitution preceded government means that Constitutional law is different and superior to normal statute law – it is fundamental law, natural law. How does that square with the BC and its principle of the supremacy of parliament? To be continued.
Apart from the US constitution, there are relatively few constitutions which have been going for more than 50 years. The experience varies wildly; the French have been obsessively trying to achieve the perfect constitution and have had multiple attempts, until they seem to have finally rested on one in 1958 – and that has also been constantly amended. Whereas Spain’s and the Czech republics although very recent are written in the spirit that they really should not be changed, and that produces its own problems.
OK that’s almost enough preamble; I’m sure other points will emerge from England’s story, but one more thing. Without wanting to sound like a parody of Winston Churchill, the story of how the British Constitution emerges is also the story of how our attitudes change towards society, the rights that ought to be accorded our fellow citizens, and how we protect those rights. No one is pretending we’ve reached the end of that process by the way; nor am I a Victorian out to laud the BC as the world’s greatest – au contraire, mon brave, as I say I think the old lady in in urgent need of a bit of a scrub up.
Also, you need to keep me honest if I do get too patriotic and flag wavy – not, by the way that I think there’s anything wrong with either of those things as long as they don’t stop us seeing things the way they are, but it’s always worth remembering that liberty on paper does not always reflect liberty on the ground – I will try to keep giving examples of that as we go through
But when you go back to the beginning and walk all the way through, you realise how much hard work, courage, vision and determination to break conventions there have been, and we owe our ancestors our thanks. Also though I am bound to say that the law of unintended consequences are strong in this one – seriously Simon de Montfort would be spinning in his grave at today’s parliament. Finally while I continue to rabbit and warble, here’s a quote by Michael Foot
Most liberties have been won by people who broke the law.
I really don’t think that’s true. Sometimes it has been. Often it’s not. I read an article in the New Statesman this week which contained the off line that change has been achieved by working class people; Well sometimes it has indeed and with great risk and bloodshed; sometimes it has been bone fide died in the wool high hat wearing toffs that have made changes.
Don’t get me wrong; it’s always worth remembering how much higher the risk and cost of protest was for working people, without the money and influence of social elites; 200 ordinary people were strung up after the Pilgrimage of Grace. But Lord Dacre and Robert Aske were executed also.
Sometimes change was achieved by radicals looking to change the world – just as often, it was achieved by conservatives trying to re-establish an idealised past. The BC has been the result of all kinds of people, from all walks of life. It belongs to all of us.
Just to repeat the point, don’t shout at me for the Anglo centricity of what follows, since the constitution really is mainly affected by English history until the acts of union. At some stage I will also probably drop a shoulder, sell you a dummy and go international, but since this is about the British Constitution series, it’s mainly about Britain. Anyway where shall we start then? Well let’s start with kingship, and with the Germanic tribes.
There is a really deep rooted set of ideas about the origins of Englishness, and they are impossible to dismiss as moonshine, because they will have at various points a direct impact on British liberty; lesson number one I’d like to advance is that myth is absolutely as important to nation forming as is objective truth. We spend a lot of time these days searching for an objectively true history which firstly may be an impossible concept anyway, and I would like to contend that no nation can exist without its myths that build cohesion.
I watched a thoroughly compelling Documentary on Auntie the other day called Black Power: A British Story of Resistance about the struggle against racism in the 60s and 70s. One of the protesters was wrongly convicted on police evidence; in his struggle to achieve justice he took the well trodden British approach of quoting Magna Carta, and his right to the judgement of his peers. The myth that magna carta was a statement of fundamental liberty rather than a peace treaty has been of enormous value.
Obviously to set against that is the need to understand the less attractive elements of our history so that we do not repeat the mistakes of the past. Quite where that leaves us I don’t know, there is a very tricky balance to be struck.
Anyway, this myth about the Germanic tribes and the Anglo Saxon period that follows, is that there is an elective element to kingship from the start – that it is effectively the people that used to choose kings; and that the operation of the state has always been dependant on the concept of consent, and the king ruled in line with the law, or maybe at this stage custom is the better word. It’s connect then to a myth which will form the backdrop to the English part of the British Civil Wars; it is a myth particularly strong in Victorian days. This was the legend of the Norman Yoke, the apparent sweeping away of English liberties by those brutal conquerors. The popularity of the myth owed a lot for its popularity to a Scot, ironically, Walter Scot and all his Ivanhoe. But for the moment you can park this thought, except to note that in the main these myths were hogwash, but that the hogwash in this case was a sight more important than the objective truth.
It is true to say that Kingship in Anglo Saxon England did not follow the model of primogeniture we think of as normal; in Anglo Saxon England the race was to the swift and the battle to the strong; Alfred the Great succeeded to the throne for example because his people wanted an experienced king at a time of crisis and set aside the lad who should maybe have succeeded. But that’s not quite the same thing as elective – the king would be chosen from members of certain families with royal blood, athelings, and was much more likely to be a selection process rather than an election by all members of the tribe. The other big myth was this thing about consent, in the form of the Witangemot, the council of wise men, supposedly a sort of Anglo Saxon parliament, to whom AS kings must refer. Well, the witan was in no way a parliament; if anything it was the forerunner of the Norman Magnum consilium, great council, the King taking advice from and consulting with his great men. Which he would feel perfectly at liberty to ignore if he chose.
Kings in Anglo Saxon England and the early middle ages were in fact restrained by little other than politics. The will of the king was law; the Anglo Saxons became increasingly enthusiastic about law codes and would issue many; but they came from the king, there was no nonsense about judge-made law. The king’s delivery of law was a sacral duty, drawing on biblical examples such as Solomon, but also more recent shining examples of regal authority – namely Charlemagne, the model of kingship in the post Roman world. These law codes did not attempt, even after the time of Alfred, to create one code for all the English, one code to bind them all and in the mist and rain find them; they drew on previous codes, but there were some innovations. At their heart was the principle of compensation – wergild which became increasingly complicated – starting off with the different value of a king, noble or Coerl, ending up looking more like a modern travel insurance policy, you know, one eye is worth £50, 2 eyes £55 that sort of thing.
So the king was supreme and in theory at least his power was untrammelled, though in effect custom played an important part. Kings did change law in line with changing ideas, but society was deeply conservative and local, and custom often had the power of law. I think I have said before that if you work in business these days and utter the words ‘we’ve always done it this way’ the only sound you will hear is the distant flush of a toilet as your career goes down the drain. In days of old, everyone around you would nod sagely and with deep approval.
The basis of the king’s power lay in a similar dimension as would survive much longer in Celtic lordship; he was king not of a territory or parcel of land; he was lord of a people, king of the English, not of England. Indeed not all land was held from the king in Anglo Saxon England – much was held with inalienable right, folcland, which may have no written title, but was theirs by ancient right, nothing to do with the king. The king’s power rested on the moral authority of lordship. To add to this came the help of the church, and after the 7th and 8th centuries, his power was also validated by God, which is handy. Over time, the development of the constitution will come to be between two antagonistic forces – between authority, monarchical authority usually, and liberty, meaning the delegated power of the people. A mixed constitution such as the British seeks to balance these forces.
Monarchical authority was king in medieval England – and yes, a pun was most definitely intended there, round of applause if you would. That is not to say that there were no restraints on monarchical power. One restraint was custom as mentioned; another was politics; kings who achieved magisterial levels of failure might lose effective power; but the survival of Aethelred the Unready, by any yardstick an unsuccessful ruler of industrial proportions, indicated just how deeply rooted was the concept of royal authority. That is not to say however, that kings did not have formal responsibilities. The first definition we get of these came in 975, at the coronation of Edgar. Edgar agreed to protect the church, maintain law and order, and deliver justice. These would remain at the heart of coronation oaths – though later kings would also add the requirement to protect the rights of the crown, which is rather like turkeys voting for veganism.
The first glimpse we get of an agreement that the king’s power might be trammelled in some way is often said to have to wait for Magna Carta, and that’s probably true in a written-up sense. None the less, in 1014 there is this interesting entry in the ASC
whereupon advised all the counsellors of England, clergy and laity, that they should send after King Ethelred; saying, that no sovereign was dearer to them than their natural lord, if he would govern them better than he did before. Then sent the king hither his son Edward, with his messengers; who had orders to greet all his people, saying that he would be their faithful lord — would better each of those things that they disliked — and that each of the things should be forgiven which had been either done or said against him; provided they all unanimously, without treachery, turned to him.
It’s a deal, essentially; the political start to a political constitution where the king accepts that his possession of the crown depends on his delivery of good governance, a common refrain in the centuries ahead – that is what kings were for.
The Anglo Saxons made other bequests to the constitution, though, maybe slightly tangentially, but relevant I think. One of these was in the development of how justice and government was delivered. By the time the Normans came around to mess it up with the chaos of feudalism, England was the most administratively advanced country in Europe; the rather sad evidence of this being the extraordinary efficiency with which they paid off the bully boys with Danegeld. The system of shires was largely established, and each shire divided into hundreds, Public officials administered an administrative and judicial system which involved folk moots, meetings of the local community. Two broad ways to bring cases to law existed; firstly accusation and secondly through the frankpledge and tithings – groups of 10 people responsible for making sure their members obeyed the law or were brought to justice if they didn’t. Most cases would be resolved by oath taking – by which means people of good reputation would probably be found innocent, but those who could not find people to swear for them could be for the high jump.
A couple more final points about Anglo Saxon justice. Firstly the principle was emerging that several sorts of case were part of a concept called the king’s peace; they were especially important, like murder and rape. Secondly although capital punishment was emerging, as opposed to the concept of compensation and broadly restorative judgement, the number of crimes attracting capital punishment were few. It’s interesting to view the whig idea of a constant progression in that light – there was nothing of the viciousness of the 18th century Bloody Code which in 1723 established over 200 often petty offences for which you could be executed – seriously don’t pick your nose in the 18th century, it doesn’t end well.
Okally dokally let us take a large step forward, and place on our shoulders the Norman Yoke. You may groan with its weight. The arrival of the Normans in 10 sixty I needn’t tell you the rest brought massive changes in some ways, and very little in others. Land ownership and lordship was the big one; the Anglo Saxon nobility was replaced by a Norman one, but in a way a much more significant change was that Billy claimed all the land of England by right of conquest, so it all belonged now to him; gone was the idea of folcland from ancient right – scattered holdings of land were distributed to the king’s tenants in chief in return for service. On the beauty of AS administration was imposed the chaos of Norman feudalism; daft things like franchises in the border lands where all the rules were different and the king’s writ didn’t run, driven by the needs of colonisation and repression which messed up local custom – just to live up to my don’t be too flag wavy requirement; the British Empire will face similar challenges from the other side. Public offices like Earldormen, where social elites were appointed to posts from which they could be removed, were cancelled; sometimes replaced with franchises that became hereditary. It always amazes me that there’s still a surviving tradition that the Normans brought efficiency – utter tripe. But this thing about land ownership – now although the title king of the English limped on for a while, king of England was now more accurate; lordship was very much bound up with land holding.
The Normans brought no law with them, and so Anglo Saxon law continued – indeed Billy the Conq claimed that he was confirming the laws of Edward the Confessor. Shire and hundred courts therefore survived as well as law; though the Normans brought with them trial by battle to add to ordeal and compurgation, i.e. oath taking, and also the complication of separating temporal and ecclesiastical justice. A mess that, thanks to Becket, would survive into the 19th century.
We have to wait another 100 years really before we can talk about major changes, and these come in the delivery of justice, and one of the greatest monarchs of them all, Henry II, who when he wasn’t arguing with his wife and sons and locking them up, or having irritating Archbishops mullahed, was busy transforming the judiciary. Essentially his reign saw the arrival of legal specialists, the start of the professionalisation of the law, and also the delegation of the royal authority in the deliver of justice. Partly this was due to necessity; Henry was whizzing about a massive empire, and could not be around enough to pass judgement on every baby that needed to be cut in half; so 5 judges were to sit permanently in Westminster. In addition he extended the system set up under Henry I, of royal justices who travelled around – Justices in Eyre, as they were known. By the end of his reign there were 35 of these judges, allocated to specific circuits, the forerunner of circuit judges.
Now look, you might think this is detail on the carbuncle of English history. But I tell you it is anything but – it’s far more significant than Walter Ralegh and his blessed cloak and puddle thingy, to pick an example at random. The jobs of these Justices in Eyre were broader than just making judgements; they informed locals about new legislation, they enforced those new statutes; they assessed taxes, monitored and possibly fined or fired corrupt sheriffs, took oaths of fealty to the crown. They were judicial, administrative and financial governors almost. Not only did they bring central government to the regions in a standard format, they also brought outsiders to give judgement, unsusceptible to local loyalties and powers. But as we’ll cover much later they provide the basic structure for what become a feedback mechanism; through these justices, and their replacements under Edward I in the 1th century the Assize Judges, there is a feedback mechanism established; not just centre to region – but region to centre. By the 16th century, this will become a vital component in the formation of the English state.
During Henry’s reign, a famous tract on English law was produced, which carried the name of a chief justice, Glanvil. Henry resisted moving towards the body of law known as Roman law used throughout the rest of Europe, and customary law held sway. Common Law is still for the future, there’s no distinction made between local customary laws and statute for example at this point; but we can see the direction of travel towards one common law; because now there is a permanent judiciary capable of bringing customary law together, beginning to select the best of local laws that could become common throughout the country. Another role that will be added under Henry’s son Richard is the system of Coroners, permanent royal officials making sure deaths are properly investigated.
And there’s another critical principle central to the growth of royal justice, articulated in Glanvil
‘ a poor man is not oppressed by the power of his adversary, nor does favour or partiality drive any man away from the threshold of judgement’
Now let’s not get carried away anti excess patriotism moment number 2; all of this applied to Free men and women – justice for the majority of English, who were serfs or bondsmen, was delivered by their feudal overlords. In addition, in practice the most powerful would absolutely and very frequently influence judgements in practice – for example by packing a court gallery with their thugs making threatening noises at the judges should they seem to be making the wrong decision. But here is a principle, and an aspiration often achieved. Also it’s worth noting that Thomas a blessed Becket put a substantial spoke in the wheel by stubbornly insisting on the survival of benefit of the clergy. Seriously, I’m not a Becket fan, the best thing Henry VIII did was get his monument carted off to the smelters in my humble opinion. Don’t write to me, this is a free country.
Okally dokally, I can see you lot all saying to yourself that this is all very well and impressive and all, but none of it is restricting royal power; in fact it’s extending it. The king and his authority is getting more and more in the good citizens collective face. But in fact people usually don’t resent these royal intrusions; they want impartial, Professional justice, and they want more of it. A royal judge WAS much less likely to be subjected to local intimidation than the hundred court, because the royal judge had a big brother – the king. Which leads us neatly to an island in the River Thames near the glorious metropolis of Staines, to Runneymede around lunch time – 1215.
Now I realise that we have done Magna Carta. There is an excellent episode in the History of England, if I say so myself, and if you go to the website the history of England.co.uk and search for Magna carta you will see the text of MC, quite brilliantly annotated, again though I say so myself. Modesty is such an overrated personal characteristic don’t you think? So, I am not going to go into the drama and detail- you know all that I think. Just to say that MC was the culmination of 15 years of misrule by King John – of abuse of power, foreign failure including the loss of Normandy and poor governance. And so he was dragged against his will to make a treaty with his barons, in an attempt to gruntle them – probably always intending to gruntle them in a temporary way to distract them from the massive great stick he was holding behind his back with the help of the Pope. It is doubtful that his barons were ever fooled.
Now then the continual debate about the Great Charter is this; is it, as many have claimed, the source of England’s liberty? Or was it in fact nothing more than a peace treaty, extorted from a king on his uppers? This is a debate that has been joyfully argued back and forth. Medievalists have the best of it really, or at least they are ahead on points. Numerous articles have been written, often in faintly contemptuous terms that this is no forward looking statement of universal liberty, but the protection of the liberties of a small clique, and we should, as in all things let the scales fall from our eyes.
To digress, this in itself is an expression that always gets me thinking – afterall, am I a haddock? So I looked it up and do you know, it appears we do have shared characteristic with the noble haddock, in that it was once assumed that blindness came about by the development of fish like scales over the eyes. Well good golly. The first written usage in English is in the 1382 Wycliffe Bible, but its there, apparently, in the original Greek. Sounds like a fishy tail to me but I serve it up to you with all my soul, and possibly a slice of lemon.
Anyway, my point is that the treaty or freedom thing is a false dichotomy in my view, so just back off – it is both. Famous historians like the God of Constitutional law Freddie Maitland have disagreed about how to interpret clauses with other similarly large brained historians; names throughout history have gaily misinterpreted MC in the cause of advancing liberty –– the power of fake history to make us better people. Edward Coke, a fine legal mind and a great contributor to English liberty, while also being a bit of an arse, made it his cornerstone
‘Magna Carta was an affirmation of fundamental law and the liberty of the subject’ he said, before ordering a pie and jug of ale. As you do. Honest John Lillbourne, Leveller, claimed that the liberty of the English nation was all in MC, the Americans loved it even more, influencing several royal charters establishing English colonies in America; such as Massachusetts in 1629, Maryland in 1632, Maine in 1639, Connecticut in 1662, Rhode Island in 1663. The Massachusetts Body of Liberties (1641), the Virginia Bill of Rights (1776), the Fifth and 14th Amendments to the U.S. Constitution all quoted its language. So, the myth became the torch which lit the dark and twisting passage to the light of liberty. So, let’s hear it for fake history. The right kind of fake history, of course, without aliens, or reptiles.
Without going into the regulation of fish weirs on the River Thames then, let me make a few points about MC. First of all, several clauses use the phrase ‘all free men.’ So yes I know I know most people in England are bondsmen, and yeah yeah yeah most of Magna carta is about the feudal dues of the aristocracy who have barely a nodding acquaintance with the working classes, but, speaking in capitals here, it uses the language all free men. So hate or loathe it, the Barons are thinking outside their class, and English society is already marching towards the slow death of serfdom anyway. MC is unique in its time for this in Europe. So – a tick for liberty.
Secondly, MC established that the king is subject to the law. Good golly miss molly. ‘Such a fellow shall have no sovereign’ wrote Edward Coke before going back to the bar to pick up some pork scratchings and force his daughter to marry against her will a man she couldn’t stand the sight of. Its very existence was a statement that the English could not be subject to the arbitrary will of authority. MC, much amended it must be said will be re-issued several times, often at the demand of the Barons extracted, from a weak king like Henry III, but also by strong kings in times of trouble to establish a sense of unity and joint endeavour; like Edward I a man not given to either shillying or shallying. MC became a talisman.
Thirdly, and I promise we won’t get to the stage where I say ‘and ninethly’, I’ll control myself, in the original version was the idea of 25 Barons to regulate the operation of the treaty and make sure the king stuck to it. I can barely breath at the thought of it. It said what? Now your medievalist will look at you severely over the top of their horn-rimmed vari-focals and clink their cup and saucer at you in the most aggressive way, and remind you that this clause lasted barely a few months. At which I urge you to lean over, seize a rich tea biscuit forcefully and make the point that the un thinkable had been well and truly thunk, the genie was out of the bottle and no amount of royal foot dragging would force it back in. Then you can take a dainty nibble of the piece of cardboard laughingly describing itself as a biscuit and give the rest to the dog, who doesn’t care as long at it’s edible.
Fourthly, Magna Carta is the demonstration of a political fact that will run throughout hundreds of years of English history. You see, the trouble is that modern history, by and large, ruins everything. So all that 19th century radicalism has created, in my mind anyway, a link between protest and change; our model of protests are say the chartists, with their Charter for change in 1848 – or at least I have the link in my mind, though I am probably less intelligent that you lot and you are thinking ‘idiot’ as you listen. But for most of English history protest is deeply conservative – it’s the upper classes who are the radicals here; they’ve gone against custom and practice. MC seeks to restore changes made by the king against perceived custom, not to revolutionise. It’s also worth noting that MC is not objecting in any way to royal executive power – they simply want that power to be fairly exercised in line with the customs of the land. Good Governance.
Fifthly – how confident are we that I’m not going to get to ninethly? – 1215 was very significant in another way as it ‘appens. That year in November the Pope ran a shindig in Rome, called the 4th Lateran Council, and darn me if Pope Innocent III didn’t have it that the church would withdraw from the operation of justice. This effectively put the primary form of proof, trial by ordeal, in a large bath and poured the strongest possible acid on it until all that was left was a sort of trial by ordeal soup. Because if God is no longer involved – ordeal tells you absolutely nothing, that’s the principle behind ordeal, that God is making a judgement. Together with the concept in MC of judgement by peers, it was this that lead to the development our much loved Jury system; the last trial by Ordeal came in 1219, which I am sure is a great pub quiz question. An alternative was needed to ordeal – and the Jury was the answer.
So, picture the scene; we are lets us say in York, and the Royal Justice on his eyre. First of all a Grand Jury is called of varying size, but something up to 24 maybe. There’s no property qualification, but these are both male, and pretty influential men – there’d have been little soil hanging around under fingernails in the hall. The Grand Jury were required to give Verdictum or vopir dit, a truthful answer, as to who’d committed a crime around here.
When the cases were agreed on, the Grand Jury would chose 12 good men and true to decide whether the suspect was guilty as charged. This is a very different jury than we are used to; the jurors were not there to weight evidence presented to them; they were local people who had knowledge of the event and from their own knowledge they’d make a decision. Judgement, then, was no longer made by God – it was made by people.
Okally dokally. So now then, let’s have a hack at some fake history then, and tear the scales from our haddocks so that we can be better people. There is this 19th century bloke called John Bright, a man who even for Victorian standards had magnificent side burns, and he created a very famous phrase, and like most very famous phrases it’s widely misquoted. England is the mother of Parliaments, which has been basely corrupted into the HoC being the mother of all parliaments. Well presumably our John Bright was referring to the adoption of the Westminster system in many countries through the Empire, but it’s kind of come to suggest that it all started here. Well it didn’t really – England is not the first parliament. So quiz question – what’s the oldest surviving parliament? Well, the Althing in Iceland has claimed to exist since 930. Oh, and the Cortes of Leon seems to have been an early example of early parliamentarianism, though Leon of course was eaten by Castile.
Ok then, what about in the British Isles, surely we can nail the English tail on that donkey? Well, not if you talk to a Manxman, where the bicameral Tinnvaal was established in 979. Though Mr and Mrs Picky would argue that it was essentially simply a court of law until the 15th century, but who’s paying any mind to the picky family?
Ok then what about in Britain? Well not if you speak to a Scotsman he’d point you to 1235 and the creation of something called a ‘colloquim’; although to be fair to the pickies, Burghs weren’t involved in decision making until 1296.
In England the tradition even after MC was that the king made all the decisions. OK, so three times a year he’d have a formal crown wearing, and invite all his tenants in Chief along for a Magnum Concilium. But it met entirely at the king’s pleasure, he had no requirement to do a blessed thing they said, not so much as to tie his shoelaces.
However, finally the English join the party in the 13th century. I have an observation to make. Why is it that great strides forward are often made by difficult people? I’m thinking of History in Technicolour on this. We’ve covered films on three people with who were difficult men with an impact but maybe difficult to like Thomas More, Beethoven and Terri Hooley – all difficult men; you may be wondering at More, but he did ignore the pleas of his family and burn a few heretics. Well there’s another one we are going to talk about now – the father of parliament, one Simon de Montfort. De Montfort was a difficult man from a difficult family. His father had slaughtered Albigensians in southern France, admittedly with the full encouragement of the Pope. Now of course we don’t visit the sins of the father on the son do we; do we?! No surely not. But Simon junior was still a very difficult man; personally he was proud and arrogant, expecting instant obedience; as a younger son he was deeply insecure about his wealth and inheritance and so was very acquisitive and at various points in his career you are left wondering whether his actions were driven by a desire to build his own and his family’s power and wealth rather than by a love of justice. He was a fiercely religious man – but stepped over a line with progroms of Jews in Leicester and London. Wouldn’t it be nice if we could have a few bone fide heroes who change the world whose feet are made not of clay but, you know, feet instead? And yet Simon de Montfort is an extraordinary figure in our constitutional progress.
Anyway, De Montfort was faced by a rather weak and wibbly king. But, second observation, the monarchs and their governments against whom we’ve rebelled aren’t really very terrible are they? I mean Henry III, Charles I James II and VII – they hardly top the league of tyrannical killers. Henry III was in many ways very nice – clearly adored his wife, managed to do what Edmund Tudor did not and kept his hands off his young wife until she was old enough, treated his Scottish neighbours with respect and a search for agreement despite a couple of sticky moments. But he was weak; and easily led. The delivery of patronage was the glue that held the medieval kingdom together with his barons; Henry III developed favourites from abroad which destroyed the political balance. He allowed himself to be persuaded by the Pope to claim the crown of Sicily; absurdly beyond his means, he promised to invade Sicily and took on the papal debt of 135,000 marks. Not for the first and certainly not for the last time then, rebellion was caused by financial problems of the king, and once again we can quote Magna Carta which declared in its original form that no general taxation should be raised ‘without the common consent’. There are few bigger clauses for their impact, not even the fish weir ones – again and again royal need for money drives constitutional change.
So let me fast forward then to April 1258 and the scene is Westminster Hall where Henry III is sitting in glorious state. Well, he might look glorious, but he’s in deep do do, yet again demanding money from his Barons in Council. The doors creak open and into the hall stalk 7 sworn confederate lords led by Simon de Montfort. Shock horror, all of them were in full armour and carried swords. It was time to call a halt – if he wanted money, Henry III would have to reform his ways, and submit to a council who would make him do it. The Council would also take complete control of the king’s government, controlling appointments inquiring into the king’s financial situation, rooting out corruption. Henry hated it – but was helpless. The resulting royal proclamation of 1259 reduced the king to a cipher; it was also strung through time and again with specific references to all free men and their needs; this not a reform movement by a small clique for the benefit only of a small clique. It was genuinely revolutionary; the king of France when he got to hear of it declared he’d rather break clods behind a plough than rule subject to such a charter.
Well, it was too good to last – and it didn’t; leading us to agree with Trotsky, and indeed my daughter, that it’s Permanent Revolution we need, to avoid the forces of reaction regaining control. Slowly the reform process ran out of steam, Henry III re-asserted himself. But in 1263, De Montfort returned from France and was asked to lead the Reformers again. The situation called for a clever, subtle, collaborative and diplomatic person. Simon de Montfort was none of those things. And so it meant war instead. The key battle took place at Lewes in 1264 and de Montfort won. But he had won at a great price; persuading the king to accept a Council to rule him was one thing; forcing him to do it at the point of a sword was quite another. Barons slipped away from their support; the Pope and king of France threatened to invade to re-establish Henry’s right – they could see where this sort of would lead.
However, de Montfort pressed on. In January 1265 he persuaded the king to call a parliament, which has become known to history as the ‘Model Parliament’ capital M capital P. It is so called because for the very first time this was not a meeting of the king and his great men; every town was to be represented; plus 2 knights were to be elected from each shire to represent their community.
England sadly was not ready, and de Montfort could not hold together his coalition; Edward, Henry’s heir, who had initially been a supporter was now a fierce opponent, and dramatically escaped his capture to raise an army for the king. Edward met the rebels at the battle of Evesham. It did not go well for de Montfort. Beset on all sides he saw his son die, and provided script ideas for film makers by crying ‘time to die’. Edward’s men obliged. In their frenzy, de Montfort’s body was mutilated including the removal of wedding tackle and the head was sent to Matilda Mortimer who being a marcher lord may have complain that she already had a few of those thank you very much; his hands were chopped off, and the Abbot of Evesham refused to bury him in consecrated ground. De Montfort had broken all the rules, and his body was made to suffer for it.
So the counter revolution had won, the revolution is dead, long live the counter revolution and the middle classes, we always win in the end! Trotsky turned in his grave, or he would in 700 years or so. However, de Montfort had not died in vain. The principle of parliaments and the broad representation from across society was now established practice; by the end of Henry III’s reign it was clear there could be no taxation without consent. The statutes of Marlborough in 1267 continued to demonstrate the reformers’ concern for the wider community of the realm, with common law extended to the servants of the magnates not just the magnates. Writs to investigate royal abuses could be raised without charge by any free man.
But other things changed too. It’s always struck me that the Norman centuries, though brutal in some ways were quite gentle in others – time and again a magnate or magnates would rebel against the king, there’s be a big bust up, the king would win, pardon the rebels and they’d all go back to normal; you might contrast this with the carnage of the Wars of the Roses where people are getting executed willy nilly. Well the change can be traced back to here. De Montfort had crossed a line, trying to force the king to sacrifice his royal authority; in 1266 the Dictum of Kenilworth ended the old idea of rebel magnates being simply in a feudal dispute; now rebellion against the king would be treason.
Edward I, Henry’s son, has generally been seen as one of strong royal authority; after all, during his reign Wales was conquered by the Statute of Wales; there were numerous changes in the law and Edward was a powerful and skilful ruler, who made major changes in the effectiveness of the judicial system. Despite that, his reign saw the incremental recognition that royal rule had limits; and Edward was forced to make concessions. If bad governance can create change, as it had under John and Henry, then the other big driver of change are war and finance. It was this that forced Edward into concessions – he fought wars in Wales, Scotland and Gascony; he spent a fortune building castles. Raising the money for these wars would require careful handling of his partners.
Which brings us to another point about change and radicalism. There is an old trope, probably Victorian, that English history is the story of concessions being wrung from kings by rebellious Barons desperate to clip royal wings. It wasn’t really like that. The aristocracy and king firmly believed they were in a partnership together; that royal will was central to effective government and the constitution of the kingdom; and on the kings part, that he could not rule without the support of his nobility. By and large, that meant that the more sensible rulers knew how far to go. Let me give you an example.
So, in pursuit of effective government, Edward I was eager to recover any lost royal land to make sure the royal finances did not suffer. He therefore instituted a process called Quo Warranto, in which royal commissioners toured the country demanding just that – by want warrant did landholders possess their land – show me legal documentation for that. Well, I don’t know what your filing system is like, but in the middle ages they were pretty rubbish. Many nobles were outraged. So let me take you to a court of the royal commissioners, sitting there interrogating a queue of miffed nobles when it comes to the turn of one of the mightiest magnates of the land, John de Warenne, earl of Surrey. Into the hall strides the Earl, straight up to the commissoner’s table and down crashes in front of them an ancient rusty sword
Here my lords, here is my warrant! My ancestors came with William the Bastard and conquered their lands with the sword, and I shall defend them with the sword against anyone who tries to usurp them. The king did not conquer and subject the land by himself, but our forefathers were partners and co-workers with him.
Well the earl was right in a way, but of course William the Bastard had declared he owned all the land himself. Either way, John de Warenne got away with it; as did many, especially Marcher lords. In fact a deal was done to agree that anyone who’d owned their land since 1189 could be said to have title, the source of the phrase ‘time immemorial’ incidentally. It took many more centuries for one of the two Ronnies to come up with the phrase time imemmoral, but that’s another story. The point of my tale about Quo Warranto is that even a powerful king like Edward I was limited by the need to retain the partnership with his nobles.
Edward’s reign also saw the arrival of Statue Law, and the use of parliament to promulgate the statute; if you want a date for the start of statute law, such a central concept now of course, then you may pop 1275 and the Statute of Westminster in your notebook. Edward I was a great lawmaker, and he did not need parliament to make them, a king was still the legislator and could create law by proclamation. However it was useful to create and communicate law through parliament, to help communicate, to create a sense of consent. Although the king created law, none the less his right dovetailed with the right of his subjects to access to him, and to bring petitions to the king for justice; and herein lay the process for creating law in parliament, not just the king’s plans and thoughts, but ideas and wishes brought to him by his people by petition. So when you exercise your clicktivism and sign the nth petition online for electoral reform, consider that you are following an ancient and noble tradition – the right to petition your government.
None the less, parliament remained an event, not a process and would remain so for many centuries – it was called when the king willed it not according to set rules of procedure. And yet bit by bit things moved on constitutionally, baby steps – it’s an evolutionary process, not revolutionary.
Now then, in his book on the British constitution, Matin Loughlin identifies [i]4 stages through which royal power went in its integration to a modern constitution.
The first was Distinguishing between private and public aspects of kingship;
then recognition that kingship was representative of the wider community;
then the king became part of a system, in which government authority is not just King, or parliament but the two together – the king in parliament.
And finally, the acceptance that authority derives from people not top down.
The first of these steps is a feature of the reign of Edward I’s son Edward II who oversaw a reign of utter chaos from 1307 to 1327, and ended up being deposed and murdered by his wife and her lover, Roger Mortimer. Obviously it’d be lovely to go through the lives and loves of the royal ditcher and hedger, but honestly you are best to return to the History of England – it’s a hoot though, a king far less competent even that John, and possibly even than Henry VI. Two very important things happened, or may have happened. In 1308, Edward II had quickly turned out to be a disappointment; once again the fair access to the king’s ear was the problem, since the King’s ear appeared to have Piers Gaveston’s cherry lips glued to it. Possibly his tongue as well. Yuk, sorry. So the leading barons took action to remove the lad from the royal lobes, and were forced to justify their action against God’s anointed. They came up with a wizard wheeze; they were bound to be loyal to the crown come what may agreed; but they were not necessarily bound to be loyal to Edward Plantagenet the bloke come what may. This wizard wheeze becomes slowly from here a key principle of the operation of the constitution; by Tudor times, Elizabeth for example will clearly differentiate between her person royal, and her person biological. There are echoes in the famous line ‘the queen is dead long live the queen’ – the crown continues immortal – the head holding it up for the moment changes regularly.
Here then is the appearance of the first of Martin Loughlin’s steps on the road to the modern British Constitution; separating the private and public aspects of kingship; it won’t really get going until later, and all public and private finances become separate – but there’s a start here.
The second point, about king as representative of a wider community has some echoes in the review of parliament that is published around this time – go and have a look at episode 90 of THoE. Within the description is this
‘…it is to be understood that the two knights who come to parliament for the shire carry more weight…than the greatest earl of England, and in like manner the proctors of the clergy …carry more weight…than the bishop himself’
Put this together with Simon de Montfort’s rhetoric about the complete community of the realm, and you have a growing recognition of the importance of representation; the constitution is no longer simply about a ruling clique. The knights of the shire are more important than an earl because they represent a community. Anti excess Patriotism moment number 3 – of course the commons in parliaments are really not in practice very independently minded – they are still subject to all the influences and social power of their superiors. But they can’t be ignored even know; and as we’ll find out next time, they can cut up rough on occasion.
Poor old Edward II’s reign is more ignored than it should be, because there’s a further very significant outcome of the reign. Sadly, Edward himself gets no credit at all for any of it – because it’s largely his incompetence that drives it.
Ok, so off to Westminster Hall we go again. Piers Gaveston has been totalled years ago, but what would you know? A couple of other villains had ridden into town as his favourites – the Despencers. Come on Teddie baby, we’ve warned you loads of time now, give over you daft pillock. Given this incorrigibility, the lords decided Edward would have to go. So, there’s a tricky question, not used to this one – how did you get rid of a king, God’s annointed? There was literally no precedent for it, no rules. So, as would happen in the future, necessity was the mother of invention, though mother necessity would prove to be a hard parent for Edward. The Bishop of Winchester put his thinking cap on and drafted an announcement, which the ABC read out in Westminster Hall at a parliament
The Articles of Deposition included an end of term report on Edward II which, had I been taking it home, would for sure never have reached my parents, either that or I’d have put a might book down the back of my trousers. Edward was charged with being incompetent to govern, unwilling to listen to wise counsel, destroying the church and many noble men, losing Scotland, Ireland and Gascony which even Lady Bracknell would have thought careless, breaching his coronation oath to do justice to all, stripping his realm, and by his cruelty and wickedness showing himself incorrigible and without hope of amendment. Ooopsie.
Then a group went to see Edward and told him the tidings of great joy, which he didn’t take well or joyfully. But then a legal fiction was needed; because there was no accepted process to depose a king. The fiction was that Edward II had abdicated in favour of his son, freely and willingly. None the less the whole occasion is filled with ambiguity. The parliament of 1327 was in reality probably not a legal parliament – parliament after all had to be summoned by the king. The deposition of a living king was…well nuclear, hence the abdication fiction. The screams that later issued from Edward II’s chamber in Berkley castle and the sad announcement of his unfortunate demise, so sorry, were a sign that no one wanted said abdication to be examined in the cold light of day.
[1] Colley, L The Gun, the Ship and the Pen p1
[2] Oliver and Fusaro, Ed How Constitutions Change, 2013 pp423-430
[i] Loughlin, M The British Constitution A very short introduction, 2013 P106
