The history of democracy in the
United Kingdom is primarily a story of English politics. The institutions created in England have
dominated the politics of the United Kingdom.
The other parts of the Kingdom have had an impact, but their impact has
been on the English institutions.
Nevertheless, this book is not an English history book. What it does is to trace a series of events
on the road to democracy. Sometimes
these events have had a major impact and signalled a change of direction. Other times they are milestones and some are
just pointers giving us an idea as to how far we have come and how much further
we have to go.
The rise of democracy is
not a straight line inexorably moving upwards.
The line rises, it falls and for long periods it hardly moves at
all. It starts with the rule of law and
gradually increases by the number of people that participate in elections until
we have all adults participating without fear of intimidation or violence. Before the Roman invasion a number of Celtic
tribes occupied England. Many of them
had their origins in Europe. There was
no national or regional identity. The
first time England had any sense of stability or the rule of law was when the
Romans invaded and imposed their will on the inhabitants. It is therefore at this point that our
history of democracy starts.
In the introduction to
their book “The House of Lords in the
Middle Ages” by Enoch Powell and Keith Wallis they state:
"All government rests upon consent, and consent is not to be
had without taking counsel with the most eminent or influential or
representative of the governed, and seeking their advice: the act of taking
counsel cannot be separated from the act of exercising authority. All government rests also upon habit, upon
being exercised in the same way or a similar way to that in which the governed
remember or believe that it was exercised before. Brute force can break with habit; but as
soon as brute force begins to turn into government, it does so by starting to
observe habitual forms of behaviour.
Habitual forms or institutions for counsel and consent are thus of the
essence of government".
For democracy to exist there must be the rule of law and a
certain amount of habit or stability. The Romans led by
Aulus Plautius conquered England and Wales in 43AD. The invasion brought with it the basic
elements of the rule of law and stability at a national level, as we understand
it today. It was a military
dictatorship so democracy was nonexistent.
Britain was ruled by brute force.
With the progressive departure of the Romans starting in approximately
AD286-296 Britain entered the so-called Dark Ages. Comparatively little is known about this
time in our history but we see the return of a tribal system albeit on a larger
scale. This did not necessarily mean
anarchy but it did mean that law was exercised at a tribal level. Also during the fourth century we can see
the beginning of the establishment of monasteries.
Britain
changed after the Romans left. National
rule of law broke down, increasing instability. Many people abandoned the towns for a more
secure life in the countryside. The
towns had been essential to the Romans for they were more easily administered
and controlled. Central authority was
the hallmark of the Roman occupation.
As the towns declined the people began to form tribal societies. A stable system of authoritarian government
moved to a shifting series of chiefs and temporary tribal alliances. Society reverted to its basic level and
became unpredictable in the way in which it governed itself and yet it was not
anarchistic. Small tribes coalesced
into larger groups over the years to protect themselves from repeated invasions
of their territories.
Just
because there does not appear to have been codified laws did not mean that the
people were ungovernable. Oral
traditions together with the use of brute force to impose the will of the tribe
enabled the people to govern themselves and to accept the impositions. These oral traditions were passed from one
generation to the next. Effectively
they became laws. Britain was at a
similar point to Rome just before Roman law had been written down. Within their diverse societies law was
maintained. However physical force
dominated relations. Land belonged to
those that possessed it. If they
wanted it they took it by force. If you
found it you kept it. In any sense of
the term democracy was nonexistent.
There were many tribes
and force or the perception of force determined their leaders. Gradually the tribes began to amalgamate
either physically or by way of political or social alliances. The driving forces for these were military
strength and in part fear of being overwhelmed. During the seventh and eighth centuries the
Christian Church began to establish itself.
The tribes became kingdoms under the Anglo-Saxons. The Christian Church
having become an institution exerted considerable influence on the Kings and
their manner of government.
An early king had three main functions: he was a figure of
sacred significance, embodying in his person the prosperity of his people; he
was a warlord; and initially he was an adjudicator whose authority was strong
enough to enforce his decision. Later
this role changed to one of lawgiver.
His mystical significance arose largely through superstition, but his
other two functions resulted from the continual challenge to his authority both
without and within the realm.
Consequently his position rested on his military power in defence of his
kingdom and his ability to maintain law and order internally. Government therefore, was the responsibility
of the king. Meanwhile:
Monasteries became centres
of learning and culture and filled the gaps that kings had neither the time or
the knowledge to deal with. In time the
church became an instrument of government and high clerics were appointed the
Chancellors of kings. The secular power
of the monarch was difficult to separate from the political power of the Church
of Rome, and there soon developed a rivalry between them – especially as the
wealth of the church was gathered through church levies and lands acquired by
landowners, who were attempting to avoid the king’s taxes by donating land to
the Church. Bernard Crick - "Democracy"
A
major boost to the Church and the rule of law took place with the arrival in
East Kent on the Isle of Thanet, of Augustine in 597AD Although born in Rome, Augustine became the
first Archbishop of Canterbury.
Sometime after the
arrival of Augustine’s mission, in 602AD, Ethelbert, King of Kent (560AD to
616AD) issued a set of laws, in ninety sections These laws are much the
earliest surviving code composed in any of the Germanic countries, and were
almost certainly one of the very first documents written down. Ethelbert’s code makes reference to the
church in the very first item, which enumerates the compensation required for
the property of a bishop, a deacon, a priest, and so on; but overall the laws
seem remarkably uninfluenced by Christian principles. Ethelbert was the first English King to
convert to Christianity. He ruled over
lands as far North as the River Humber.
The laws are concerned
with setting and enforcing the penalties for transgressions at all levels of
society. The king had a financial
interest in enforcement, for part of the penalties would come to him, but the
king was also responsible for law and order, and avoiding blood feuds by enforcing
the rules on compensation for injury was part of how the king maintained
control.
One of Ethelbert’s laws
seems to preserve a trace of a very old custom: the third item in the code
states that “If the king is drinking at a
man’s home, and anyone commits any evil deed there, he is to pay twofold
compensation.” This probably refers
to the ancient custom of a king travelling the country, being hosted and
provided for by his subjects wherever he went. The king’s servants retained
these rights for centuries after Ethelbert’s time.
Clauses 77–81 in the code
have been interpreted as a description of a woman’s financial rights after a
divorce or legal separation. These
clauses define how much of the household goods a woman could keep in different
circumstances, depending on whether she keeps custody of the children, for
example. However, it has recently been
suggested that it would be more correct to interpret these clauses as referring
to women who are widowed, rather than divorced.
The Synod of Whitby in
664AD established Roman practice as the norm in Northumbria, and thus brought
the Northumbrian church into the mainstream of Roman culture and marked the
beginning of Roman Catholicism as the national church.
By the eighth century Bede (672AD – 735AD),
who was a Benedictine monk based in Sunderland and Jarrow, had established the
Church as the most important centre of culture, learning, and habit.
By now the tribes were getting larger and the Church
was getting stronger and then the relative calm of England was violently
disrupted by invasion.
Cornwall’s Stannary Parliament dates from at least
the 8th century and probably earlier. It had jurisdiction over the tin mines and
related towns. It last met in 1753, but
has never formally been dissolved.
The first Viking attack on Britain took place at
Lindisfarne in 793AD. The Vikings
brought the idea of formal law to the English; indeed the very word LAW in
English is a Viking word. The English
word for a local law, e.g. laws about where you can park cars etc., is "by-law". The word "by”, comes from the Scandinavian word for "town".
In
their homeland the Vikings had a legislative assembly and a court. A criminal was brought to the court to stand
trial. The presumed facts of the case
were established by a panel of people stating what they thought was the
truth. A jury of 12, two times twelve
or three times twelve, depending on the importance of the case, decided the
question of guilt. The 'law-sayer'
told the jury what the law said about the crime committed and the accused was
either convicted or declared innocent by the jury. If convicted, the criminal was either fined
or declared an out-law. To be an outlaw
meant that the criminal had to live out in the wilderness and no one was
allowed to help him in any way, and he was free game for his enemies. They were free to do their best to hunt him
down and kill him.
The collection of taxes and a Treasury to collate the
monies collected were the start of an infrastructure of Government. The precise origins of government are
obscured to us, but it is thought that the foundations of the British
constitution were based on two principles, which were accepted by the King and
his subjects in Saxon times:
(1) In important matters, such as the
making of laws and the imposition of taxes, the King should not act without
first taking advice;
(2) In taking that advice, the initiative
should rest with the King to summon such counsellors, as he thought fit. These counsellors evolved into a National
Council called the Witangemot.
Before the unification of England in
the 9th century, the Kings of Essex, Kent, Mercia, Northumbria,
Sussex and Wessex convened separate Witenagemots. Even after Wessex became the dominant power
in England, supplanting the other kingdoms, local witans continued to meet
until as late as 1067.
Why did this occur? We do not know but it is remarkable in many
ways – at a time when many other Kings in other countries had a view of the
divine right of Kings or power by the use of force a tradition emerged which
was to have profound consequences.
There is a chicken and egg point as to whether English characteristics
emerged here or whether it is the characteristics of the Anglo Saxons to emerge
in a tribe, which then dominated either by luck, or because of these
innovations.
The recognition of the
first point above did much to limit the idea of despotic government; from it
developed the idea many centuries later of “no
taxation without representation”, and eventually, the theory of the legal
supremacy of Parliament. The observance
of the second placed the responsibility for suggesting policy squarely on
Government, which at this time was the King.
It was he that would decide whether there should be a new law or tax or
whether an existing law or tax should be altered. Why did the King and his subjects accept
these two principles? It would seem
that throughout the history of democracy the people want to be involved, they
want to be consulted and yet they also want a strong leader. By the nature of things a strong Leader
tends towards autocracy. This dilemma
still exists today, which is why the Prime Minister still has so much power,
yet cannot afford to get too out of touch with the people or they will reject
him or her at the next General Election.
Originally, occupation of
the thrones in England was enjoyed by virtue of military might, underwritten by
formal election by the members of the Witangemot – a vote - the first stirrings
of democracy.
Elective succession has
been, in its various forms, a common system of succession in monarchies.
Arguably the world's oldest method to determine succession was that of the
military leader who ascended to power through some sort of election. Most kingdoms were elective, though the
candidates were usually or always only from the family of the deceased
monarch. It was natural that the King
as the supreme military leader should be elected. It was equally natural that the King would
want his son to inherit his power – the classic clash between democracy and
inheritance goes back a long way.
The Anglo-Saxons ruled
England and its various kingdoms between the eighth and the eleventh
century. They instituted councils
consisting of the great and good – the Witenagemot or Witan, which the kings
used to consult. Eventually when
England became united a National Council was created which was the true
beginning of the English Parliament. In
the drawing up and promulgation of the codes of law by various kings from the
beginning of the seventh century on, different degrees of participation by the
Witan are apparent. At the time of
Alfred the Great, who inspired the production of the Anglo-Saxon Chronicle, (reigned from 871 to 899) the Witan seems to
have been limited to assenting to what the king had done. By the eleventh century it had become the
official term to describe formal assemblies of the king’s counsellors.
The Witan had its origins
in the Germanic assemblies summoned to witness royal grants of land and was
brought to England by the immigrants.
Eventually the Witan would become Parliament. It is remarkable to think that the English
Parliament, often known as the Mother of Parliaments was conceived in Germany. It is also a reminder that the so-called
Dark Ages were much less dark and unsophisticated than we imagine.
Summoned by the king (and
later by regional earls), witans would advise on the administration and
organisation of the kingdom, dealing with issues such as taxation,
jurisprudence and both internal and external security. The witan was also
needed to approve the succession of each monarch. The new king could be
whomever the witan decided would best lead the country, not necessarily the
offspring of the previous monarch, though custom often strictly limited their
choice. Kings and Earls could also be
deposed by witans; Sigeberht of Wessex was deposed this way in 755, Ethelwald
of Northumbria in 765.
The power of the witan
varied according to the personality of the reigning King, being considerable
under a weak ruler, but inconsiderable under a strong one. Generally speaking,
it diminished as the years went by, and from "necessary assenters" its members became "merely attesting witnesses." Its duties are shown by the preamble to the
laws of Ine, King of Wessex (reigned 688 to 726) and 150 years later by the
preamble to those of Alfred the Great.
Ine legislates "with the
counsel and with the teaching of Cenred my father and of Hedde my bishop, and
of Eorcenwald my bishop, with all my ealdormen and the most distinguished witan
of my people” and Alfred issues his code of laws "with the counsel and consent of his witan." Thus the members of the witan were primarily
counsellors. With their consent the
king promulgated laws, made grants of land, appointed bishops and ealdormen,
and discharged the other duties of government.
Ine was the most notable King of his time and died on a pilgrimage to
Rome. The Witan was also a court of
justice, Earl Godwine and many other offenders receiving a sentence of outlawry
from it.
Its members signed the
charters by which the king conveyed grants of land to churches and to
individuals, and it is from the extant charters that we mainly derive our
knowledge about the composition of the witan. It consisted in addition to the
king, his sons and other relatives, of the bishops and later some abbots, of
some under-kings (local Kings) and the ealdormen of the shires or provinces,
and of a number of ministri, or
king's thegns. These ministri were nominees of the king; they
included the important members of his household, and their number gradually
increased until it outstripped that of all the other members.
The Witan was in some
respects a predecessor to Parliament, but had substantially different powers
and some major limitations, such as a lack of a fixed procedure, schedule or
meeting place. The King had a role, which included some of the qualities of a
President. The Witan was a valuable check on royal power, preventing autocracy
and carrying on government during interregnums.
Witans met at least once
a year and commonly more often. There was no single seat of the National Witan;
it is known to have met in at least 116 locations. The meeting places were often on royal
estates, but some witans were convened in the open at prominent rocks, hills,
meadows and famous trees. Almost
immediately after the Norman Conquest the word Witan fell into disuse.
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The reign of Alfred the
Great brought a key step forward in establishing the rule of law. All four older brothers of Alfred had been
Kings of Wessex (reigning between 839 and 871) so with this family experience
his concept of kingship was extensive.
A religiously devout and pragmatic man who learnt Latin in his late
thirties, he recognised that the general deterioration in learning and religion
caused by the Vikings' destruction of monasteries (the centres of the
rudimentary education network) had serious implications for governing. For example, the poor standards in Latin had
led to a decline in the use of the charter as an instrument of royal government
to disseminate the king's instructions and legislation. Latin was the language of the Church and
Alfred’s steps to prevent its decline suggest that the Church had a real role
in the maintenance of law and order.
Like
other West Saxon Kings, during the course of his reign Alfred established a
legal code; he assembled the laws of Offa and other predecessors, and of the
kingdoms of Mercia and Kent, adding his own administrative regulations to form
a definitive body of Anglo-Saxon law.
'I ... collected
these together and ordered to be written many of them which our forefathers
observed, those which I liked; and many of those which I did not like I
rejected with the advice of my councillors ... For I dared not presume to set
in writing at all many of my own, because it was unknown to me what would
please those who should come after us ... Then I ... showed those to all my
councillors, and they then said that they were all pleased to observe them' (Laws of Alfred, c.885-99).
The total population of
England and Wales at this time is estimated at 1.5 million people.
Because of the continuing
threat of invasion by the Danes by 886 Alfred had instituted in his kingdom
Burghs – self-governing towns or boroughs, perhaps the first case of delegated
government ('borough' comes from the Old English burh, meaning fortress). Alfred started a building programme of
well-defended settlements across southern England. These were fortified market
places. By deliberate royal planning,
settlers received plots and in return manned the defences in times of war. (Such plots in London under Alfred's rule in
the 880s shaped the street plan, which still exists today between Cheapside and
the Thames.)
This obligation required
careful recording in what became known as 'the
Burghal Hidage', which gave details of the building and manning of Wessex
and Mercian burhs according to their size, the length of their ramparts and the
number of men needed to garrison them.
Centred round Alfred's
royal palace in Winchester, this network of burhs with strong points on the
main river routes was such that no part of Wessex was more than 20 miles from
the refuge of one of these settlements.
Together with a navy of new fast ships built on Alfred's orders,
southern England now had a defence in depth against Danish raiders.
The Germanic tribes who had come over from the Continent already possessed an elaborate and developed legal system. The Christian influence to which the law was exposed from the sixth century onwards caused a few changes, especially with regard to family law, but the basic structure remained unchanged. Any system of government has three basic functions: the legislative, which makes the law; the executive, which ensures that those laws are observed; and the judicial, which determines whether laws have been broken and, if so, exacts punishment.
The Germanic tribes who had come over from the Continent already possessed an elaborate and developed legal system. The Christian influence to which the law was exposed from the sixth century onwards caused a few changes, especially with regard to family law, but the basic structure remained unchanged. Any system of government has three basic functions: the legislative, which makes the law; the executive, which ensures that those laws are observed; and the judicial, which determines whether laws have been broken and, if so, exacts punishment.
The legislative functions
of Anglo-Saxon England were carried out by the king and his council or,
sometimes, by the council alone. Codes
of law were produced at regular intervals by kings, and the issue of a new code
was an opportunity to add new statutes, modify existing ones, or re-state old
laws that were being ignored. Copies of
the laws written in old English were then made and sent out to the ealdormen,
bishops, and reeves who would be responsible for their administration. Many of these law codes still survive,
especially in Church archives, but there was also a mass of customary law,
which was handed on orally. No attempt
seems to have been made to codify this until after the Norman Conquest, when
much was forgotten or misunderstood.
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For the executive
function, Anglo-Saxon England did not have a professional standing law
enforcement body like our modern police.
In general, if a crime was committed then there was a victim, and it was
up to the victim - or the victim's family - to seek justice. However, during
the tenth century, a number of administrative changes took place in England,
which led to the formation of a semi-professional constabulary of sorts. The first step was to divide the shires into
hundreds, a reorganisation, which probably occurred during the reigns of Edward
the Elder, son of Alfred the Great, (reigned 899 to 924) and the warrior King
Athelstan (reigned 924 to 939). After
this, each hundred was further divided under Athelstan into groups of ten
freemen called tithings, of which there seem to have been ten in every
hundred. One man in each tithing was
senior to, and responsible for, the other nine, and he was called the
tithingman. In every hundred, a
hundredman was appointed and he, together with the ten tithingmen and a clerk,
met every four weeks if possible, "at
the time of the filling of the butts".
The main function of this
group seems to have been administrative: the king spoke to the shire-reeve, the
shire-reeve spoke to the hundredmen, and the hundredmen spoke to the
tithingmen. However, Athelstan and
Edgar, renowned for the legal codes he introduced, both passed laws, which
reinforced the hundredmen as the principal law enforcement arm of the
Anglo-Saxon executive. Hundredmen were
responsible for seeing that legitimate trading was encouraged and cattle-theft
actively discouraged. If a village
failed to report suspicious movements of cattle, the hundredmen could see to it
that the herdsmen were flogged. In
following the trail of a thief, the hundredman was to take one or two men from
each tithing. The hundredmen and
tithingmen were not a police force, as we would recognise it: prime
responsibility for bringing offenders to justice still remained with the
victim. However, they filled an
important role in dealing with crimes that broke the king's peace, crimes that
were considered to be against the king himself.
Once a charge had been
brought, it had to be heard by a court, which would decide whether or not a
crime had been committed and, if so, what action was necessary. The principal court was at the hundred level
and is known, not surprisingly, as the hundred court. The hundred court met every
four weeks, in the open if possible and usually at a prominent local landmark
that gave its name to the hundred. The
king's reeve usually presided over the court.
It had many functions, and was a mixture of parish council business
meeting, planning enquiry, and magistrates' court. Eventually, the king, the Church, and
landlords with interests in the district all found it essential to establish
and maintain a permanent presence in the hundred where much of the routine
legal business connected with their affairs would be conducted.
In 924 Athelstan became
the first Anglo-Saxon to be King of all the English. He was the grandson of Alfred the Great and
was the first to impose a unified coinage, which depicted him as the first
English King to wear a crown. In a
manuscript picture he held a sceptre, another first. He called himself “Rex totius Britanniae” (King of all Britain). He was the first West Saxon ruler to have a
border with the Scots, the first to have a “foreign
policy”, negotiating marriage alliances and hosting embassies.
Ethelred
the Unready inherited the kingdom of England in 978. Although named the Unready this was a
mistranslation. His nickname was Unroed meaning “lack of counsel”. It was a
pun on his name Ethelred that means “good
counsel”. At first he attempted to
buy off the Viking invaders but failed for the Vikings kept on invading and in
1002; Ethelred ordered the massacre of all Danes in England. Among those killed was Gunnhilda, the sister
of Sweyn Forkbeard, the King of Denmark and Norway. It was a fatal mistake. In 1013 Sweyn together with his son Canute
fought a campaign that added England to his kingdoms, and Ethelred fled into
exile in Normandy. Canute’s fame rests
on his attempt to turn back the tide.
This has been misconstrued. What
he was demonstrating was that only God could control the tide, not man.
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When Sweyn died in February 1014,
Ethelred regained his throne, negotiating a sort of contract with the
Anglo-Saxon nobles and clerics, promising to
“govern more justly than before” if they obeyed him, according to the Anglo-Saxon Chronicle. By now the Witan had acquired considerable
authority. This was the first agreement
between King and people – the first constitutional settlement. Suffice it to say they the agreement was
really with the nobles and clerics who purported to represent the people. He also turned to the Witan, a council,
which now consisted of Lords and Bishops, which voted to restore the defeated
King. Ethelred the Unready quickly
raised an army, forcing Canute to abandon England and sail back to
Denmark.
We
do not know how the Witan voted, whether by show of hands or by ballot, or
indeed how the idea of voting emerged in the Witan, but as anybody who has
attended a committee meeting will know, at first you try to arrive at a
consensus and if this fails you move to a majority decision. This is how voting begins and if done in a
fair way the decision is accepted by all.
In April 1016 Canute
entered the Thames with his fleet and besieged London. King Ethelred died suddenly during the siege
and Londoners proclaimed his son Edmund Ironside, King. In the mean time the Witan meeting in
Southampton elected Canute as King. A
decisive battle between Edmund and Canute took place at Ashingdon, Essex and
Edmund was forced to sue for peace.
Canute and Edmund agreed to divide the kingdom, but Edmund’s death left
Canute as sole ruler, leading to his acclamation as King by the Witangemot in
January 1017. Canute divided the
country into the four great earldoms of Wessex, Mercia, East Anglia and
Northumbria, a system of territorial lordships, which would underlie English
government for some time afterwards.
The four Earls were the core of what in time would become the House of
Lords.
The word “Lord” derives
from the Anglo-Saxon hlaford or hlafweard i.e. loaf ward or
guardian. This is the origin of the
“House of Lords”.
It is remarkable that
Canute chose to accept our system of Government rather than impose his own – a
course which William the Conqueror did not follow, although William did retain
many of the existing institutions.
William was the bastard son of Robert, Duke of Normandy and a tanner’s
daughter. Perhaps in order to make a success
of invasion a foreigner has to adopt and adapt the existing institutions of the
land that has been invaded? There is a
limit on how much can be imposed from above.
The ineffectualness that
had compelled Ethelred to enlist the Witan and inspired his belated promise of
good behaviour helped sow the seeds of the notion that English Kings must rule
with the consent of their people, as represented by the Witan and the Witan’s
role in proclaiming Canute as King reinforced the point. The Witan formalised the dispersal of power
from the King. This was the first time
the theory had been formally expounded in practise, but it may be that it was
purely a pragmatic way for Ethelred to appease the leading figures of the day.
By the early eleventh
century England had been divided into the shires (beneath the four Earldoms
which eventually disappeared under William I) that persisted until their
re-organisation by the Conservative government in 1974. Each shire had a court to administer royal
justice and was governed by powerful ealdormen who governed in the king’s
name. The shires were subdivided into
smaller areas of jurisdiction, called hundreds with their own courts which all
freemen were supposed to attend and which were held monthly to hear local
disputes and misdemeanours. This is
important for it showed that structures and order were being developed together
with the emergence of the rule of law, a necessity for the creation of
democracy.
With
this governmental machinery at their disposal it was no wonder that the
Anglo-Saxon kings felt empowered to legislate.
When they made laws eliminating cattle rustling and sent them, signed
and sealed to their senior magnates, the ealdormen and then on through the
sheriff they expected those writs to be faithfully obeyed.
On Canute becoming King,
Edward who was the son of King Ethelred II the Unready and Emma, the daughter
of Richard II of Normandy went into exile in Normandy. He lived in exile until 1041, when he
returned to the London court of his half brother, King Hardecanute. Hardecanute died of convulsions at a wedding
party and Edward became King in 1042.
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For the first eleven years of
Edward's reign the real ruler of England was Godwine, Earl of Wessex. Godwine was ambitious for his five sons, all
of whom were made Earls and collectively his family were as wealthy as the royal
family. Edward married Godwine's
daughter Edith in 1045, but this could not prevent a breach between the two men
in 1049. Edith was confined to a
monastery. When Godwine died in 1053,
his second son Harold took over
On his deathbed, Edward the Confessor
designated Harold the royal heir, but had previously promised the crown to his
cousin William, Duke of Normandy. In
1064, Harold was shipwrecked in Normandy and was turned over to the court of
Duke William of Normandy. William
considered himself to be the successor of the childless Edward the Confessor,
and got Harold to swear an oath to support William as the future king of
England. In 1065 Harold supported a
Northumbrian rebellion against taxes levied by his brother Tostig and replaced
him with Morcar, the Earl of Northumbria. This strengthened his acceptability
as Edward's successor, but divided his own family. Tostig went into alliance
with King Harald Hardrada of Norway. In January 1066, upon Edward's death,
Harold was proclaimed King by the Witenagemot who, under Anglo-Saxon law held
the ultimate authority to convey kingship.
Harold's position as
King, though, was much disputed and the country was invaded, first by Harald
Hardrada of Norway and then by William, Duke of Normandy. Harold offered his brother, Tostig, a third
of the kingdom, and Tostig asked what Harold would offer the King of
Norway. "Six feet of ground or as much more as he needs, as he is taller than
most men," was Harold's response according to Henry of Huntingdon, a
chronicler writing after the event.
Invading what is now Yorkshire in September 1066, Harald Hardrada and
Tostig defeated the English earls, Edwin of Mercia and Morcar of Northumbria,
at the Battle of Fulford near York on 20 September. But they were in turn
defeated and killed by Harold's army five days later at the Battle of Stamford
Bridge. Harold now forced his army to
march 240 miles to meet William the Conqueror, who had landed about 7,000 men
in Sussex, on 28 September. Harold
established his army near Hastings, and on 14 October the two armies clashed at
the Battle of Hastings, near the present town of Battle. Harold was killed and his forces
routed. According to tradition, an
arrow in the eye killed Harold, but the victim depicted in the Bayeux Tapestry
is anonymous. Whether he did, indeed,
die in this manner, or was killed by the sword, is unknown.
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On Christmas Day 1066, in the newly built
abbey church of Westminster, upstream from London, William, Duke of Normandy,
was crowned King of the English. The
Archbishop of York, one Aldred, asked the Englishmen present if they would have
William for their king. When they
shouted their assent, the Norman Bishop of Coutances addressed the same
question to his own compatriots, who answered in the same way. William having at the altar sworn an oath,
Aldred anointed, crowned, and enthroned him. (J Enoch Powell & Angus Maude - Biography of a Nation)
Aldred was active and
courageous, but these virtues were combined with ambition and greed. In asking the Englishmen present if they
would have William for their King, once again we see the principle of consent,
although by now it is taking on greater strength and reinforcing precedent –
important aspects of the rule of law.
Of course it is argued that the people had no choice, surrounded as they
were by men in arms, but the appearance of consent was important. Throughout history perception is
everything. William brought about major
changes to the government of Britain.
One such major change between Anglo-Saxon
practice and Norman practice was brought about because preserving their estates
was an obsession with the Norman nobility – everything would go to a single
heir. In the Anglo-Saxon way a
successor would get the nod from a dying king, provided that the Witan
consented to his choice. In the new way
the king gave the realm to his son without debate. The concept of the hereditary monarchy
without the necessity of election was born.
Many
of the fundamental institutions of government emerge in this period. What is then remarkable is that they were
sufficiently deeply embedded to survive the next centuries, when we went
through civil war and foreign attack. It
is particularly remarkable that at this point in time Britain had been
successfully invaded twice within fifty years, first by Canute and then by
William, and the previous century had survived several Viking invasions.
When the Normans took
control of Britain they imposed a governing structure similar to what had been
developed in their homeland during the tenth and eleventh centuries. This social, political, military structure
became known as feudalism.
As part of his feudal
system, William I developed the idea that the holding of land entailed the
acceptance of certain responsibilities.
His authority for government therefore rested not only on his military
power but also upon the moral obligations resulting from his ownership of all
the land in England. William ruled by
the sword. The English aristocracy was
decimated. He rewarded his war-like
barons and followers with enormous grants of land. By the end of his reign in total some 200
people owned England, virtually none of whom were Anglo-Saxon, yet some of the
Anglo-Saxon institutions such as burghs were still recognisable within the
governing structure.
In
order to fulfil his general function of government within a hostile country, it
was necessary that the King should exercise more detailed powers of initiating
and controlling policy. As a result of
the stability, which the Normans brought to English affairs, these powers were
in use continuously and thus became accepted as part of the common law, being
referred to in the course of time as “the
Prerogative”. Subsequently this
became the “Royal Prerogative”.
Although
these powers conferred on the Sovereign were ill defined, from the beginning
there were recognised limitations: decisions on grave and important matters
could only be taken after consultation with the great men of the realm;
taxation could only be levied with the consent of the Royal Council (Curia Regis); justice had to be equally
available to all persons and administered in a legal manner. Why did William accept these
restraints? After all, he had just
conquered England and was our first dictatorial King. He was very powerful. Did he recognise that to ensure his success
he had to work with the established institutions or had he learnt this way of
governing from his experiences in France?
He centralised power, a theme that manifests itself in French government
a millennium later. He created a tension
between local and national forces, which continued apace throughout the next
thousand years. If it is these latter
points which dominated his thinking there is a touch of irony that our
democratic institutions owe their existence to both this French inheritance and
the Celtic tribes from what is now Germany, which were the origins of the
Witan.
It is interesting to
observe that the Curia Regis (Royal
Council) took the place of the
Anglo-Saxon witan and it continued to be dubbed a witan until as late as the
twelfth century. The Romans had their
Senate, the Anglo-Saxons their Witan and now we had the Royal Council.
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The Norman kings observed
the limitations imposed on them, but later monarchs were to ignore them. The Royal Council mainly consisted of
relatives of the King, ecclesiastics, close associates, or individuals to whom
the King had given land. It replaced
its Anglo-Saxon predecessor, the Witenagemot – a backward step on the road to
democracy but a move towards the creation of the House of Lords. The Normans were becoming Anglo-Saxonised
whilst the Anglo-Saxons were becoming Normanised.
It was inevitable that
William should feudalise England.
Determined to avail himself to the full of all that attached to the
English kingship, which placed him on a level footing with his suzerain, the
King of France, he had to secure the maintenance of a feudal army in his realm
of England. Without the feudal bond
between lord and tenant, he could not as a foreigner, expect to retain and
strengthen the central government, which he inherited from the Wessex
kings. At first he accepted the
allegiance of such great English laymen and clerics as proffered it; only the
lands of those who at Hastings had fought against him, their “lawful” lord,
were made forfeit and granted to his Norman and other French followers. (Enoch Powell & Angus Maude - Biography of a Nation)
During the course of his
reign 1066 to 1087, William gave very large plots of land to those noblemen who
had fought with him in battle. In
return they had to swear an oath of loyalty to him. In addition they had to collect taxes and
provide him with soldiers if he requested them to do so. The men who were given the plots of land
were barons, earls and dukes. They were
known as tenants-in-chief. At first the
land reverted to William on their death but soon the tenures became
hereditary. Sometimes the services,
which had to be rendered to William, were spiritual, menial or domestic but
mainly they were military. The idea was
accepted that the King was the ultimate owner of all land and he could raise
armies, maintain religion and make his government function by granting land
upon conditions. This denial of
property rights diminished as the demands for hereditary recognition increased.
The tenants-in-chief then
subdivided the land they had been given and granted parcels to trusted Norman
knights, who had also fought with William, on the same terms and conditions
which William had granted to them. In
other words their obligations were passed on to sub tenants and so on. The effect of all this was that there were
obligations from the smallest tenant all the way up to the king. This division between tenants-in-chiefs and
knights became the dividing line between membership of the House of Lords and
membership of the House of Commons which was to come later. It set the scene for a thousand years of
parliamentary rule.
In the event, William had to Normanize as well as
feudalise England. When he died, little
more than twenty years after the Conquest, there were scarcely half a dozen
considerable tenants of the King who were English, including bishops and
abbots. The entire tenantry in chief,
that is, the class who held their land directly of the King, were Norman.
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"During the last five years of his life there
were only three (Saxon) earldoms in England-Chester, Shrewsbury, and
Northumberland- each on borders of the realm.
Of these only Chester survived the next generation. Everywhere outside these earldoms the
administration, based on the pre conquest shires, was in the hands of the
King’s officer, a viscount, (i.e. vice-count, or pro-earl), who came later to
be known by his English name of shire-reeve, or sheriff." (J. Enoch Powell & Angus Maude - Biography of a Nation )
Not only did William
physically conquer England he also changed the church. By the time of his death there were only
three Bishops left that had served under Edward the Confessor.
It is often the case that
a successful invader adopts the cultural habits of their conquests because they
cannot change everything and the stability of society makes for an easier rule. The Normans, by keeping the shires and the
boroughs, did not break down all of what the Anglo-Saxons had created, thus
giving some stability of government.
Feudalism in practice
meant that the country was not governed by the king but by individual lords, or
barons, who administered their own estates, dispensed their own justice, minted
their own money, levied taxes and tolls, and demanded military service from
vassals. Usually the lords could field greater armies than the king. In theory the king was the chief feudal
lord, but in reality the individual lords were supreme in their own territory.
The tenants-in-chief held
territories, which were called manors.
At the time of the Domesday Book, 1086, the vast majority of the land
was held by about two hundred tenants-in-chief. Only 8% of land remained in Saxon
hands. The most important
tenants-in-chief were the earls and barons as well as the ecclesiastics
consisting of the archbishops, bishops and abbots. William I was an absolute ruler, but, as a
matter of course he sought the advice of the Curia Regis before making laws.
William the Conqueror recognised that knowledge was power.
If you want to tax the people you have to know where they are. He had a record made of all the land and its
contents, which were recorded, on the pages of the Domesday Book. In this book William would have had the
information to coerce, fine or confiscate, should any of his vassals waver in
their loyalty. For centuries afterwards
the strength of government in England was this partnership between the power of
the landed classes and the authority of the state, the guardians of the land
and the keepers of knowledge. Between
them, professing to understand each of their concerns was the eternal umpire –
the King. Power is beginning to be
shared and not rest entirely in the hands of one person.-----------------------------------------------------------------------
William the Conqueror was succeeded
by his son William Rufus, who reigned as William II (reigned 1087 to 1100), who
was killed by a stray arrow whilst riding.
The younger brother of William Rufus was Henry I (reigned 1100 to
1135). He was also riding in the New
Forest on the day that the King was killed and he seized power within
hours. Three days later, he was crowned
at Westminster. Henry's dubious right
to the kingdom was the possible cause of his lifelong insecurity. The chronicler Henry of Huntingdon observed:
'Each of his triumphs only made him worry
lest he lose what he had gained.' His
first concern was his older brother Robert, Duke of Normandy, who disputed his
claim (as he had disputed William Rufus's).
To consolidate support, Henry issued a Charter of Liberties, promising 'good government' and an end to unfair
taxes and other abuses, then married Matilda, sister of King Edgar of Scotland,
to secure his northern frontier.
In 1100 Henry I signed
the Charter of Liberties on his
coronation agreeing to rule in the same manner as the Anglo-Saxon kings, namely
with consent.
This charter, granted by Henry when he ascended the throne,
is important in two ways. First, Henry
formally bound himself to the laws, setting the stage for the rule of law that
parliaments and parliamentarians of later ages would demand. Second, it reads almost exactly like the Magna Carta, and served as the model for the Great Charter in 1215. The Mediaeval
Source Book sets out the Charter of
Liberties:
Henry, king of the
English, to Bishop Samson and Urso de Abetot and all his barons and faithful,
both French and English, of Worcestershire, [copies were sent to all the
shires] greeting.
1. Know that
by the mercy of God and the common counsel of the barons of the whole kingdom
of England I have been crowned king of said kingdom; and because the kingdom
had been oppressed by unjust actions, I, through fear of god and the love which
I have toward you all, in the first place make the holy church of God free, so
that I will neither sell, nor on the death of archbishop or bishop or abbot
will I take anything from the church's demesne or from its men until the
successor shall enter it. And I take
away all the bad customs by which the kingdom of England was unjustly
oppressed; which bad customs I here set down in part:
2. If
any of my barons, earls, or others who hold of me shall have died, his heir
shall not buy back his land as he used to do in the time of my brother, but he
shall relieve it by a just and lawful relief.
Likewise also the men of my barons shall relieve their lands from their
lords by a just and lawful relief.
3. And
if any of my barons or other men should wish to give his daughter, sister,
niece, or kinswoman in marriage, let him speak with me about it; but I will
neither take anything from him for this permission nor prevent his giving her
unless he should be minded to join her to my enemy. And if, upon the death of a baron or other
of my men, a daughter is left as heir, I will give her with her land by the
advice of my barons. And if, on the
death of her husband, the wife is left and without children, she shall have her
dowry and right of marriage, and I will not give her to a husband unless
according to her will.
4. But
if a wife be left with children, she shall indeed have her dowry and right of
marriage so long as she shall keep her body lawfully, and I will not give her
unless according to her will. And the guardian
of the land and children shall be either the wife or another of the relatives
who more justly ought to be. And I
command that my barons restrain themselves similarly in dealing with the sons
and daughters or wives of their men.
5. The
common seigniorage, which has been taken through the cities and counties, but
which was not taken in the time of King Edward, I absolutely forbid
henceforth. If anyone, whether a
moneyer or other, be taken with false money, let due justice be done for it.
6. I remit
all pleas and all debts which were owing to my brother, except my lawful fixed
revenues and except those amounts which had been agreed upon for the
inheritances of others or for things which more justly concerned others. And if any one had pledged anything for his
own inheritance, I remit it; also all reliefs which had been agreed upon for
just inheritances.
7. And
if any of my barons or men shall grow feeble, as he shall give or arrange to
give his money, I grant that it be so given.
But if, prevented by arms or sickness, he shall not have given or
arranged to give his money, his wife, children, relatives, or lawful men shall
distribute it for the good of his soul as shall seem best to them.
8. If
any of my barons or men commit a crime, he shall not bind himself to a payment
at the king's mercy as he has been doing in the time of my father or my
brother; but he shall make amends according to the extent of the crime as he
would have done before the time of my father in the time of my other predecessors. But if he were convicted of treachery or
heinous crime, he shall make amends as is just.
9. I
forgive all murders committed before the day I was crowned king; and those,
which shall be committed in the future, shall be justly compensated according to
the law of King Edward.
10. By
the common consent of my barons I have kept in my hands forests as my father
had them.
11. To those
knights who render military service for their lands I grant of my own gift that
the lands of their demesne ploughs be free from all payments and all labour, so
that, having been released from so great a burden, they may equip themselves
well with horses and arms and be fully prepared for my service and the defence
of my kingdom.
12. I
impose a strict peace upon my whole kingdom and command that it be maintained
henceforth.
13. I
restore to you the law of King Edward with those amendments introduced into it
by my father with the advice of his barons.
14. If any one,
since the death of King William my brother, has taken anything belonging to me
or to any one else, the whole is to be quickly restored without fine; but if
any one keep anything of it, he upon whom it shall be found shall pay me a
heavy fine.
Witnesses Maurice bishop of London,
and William bishop elect of Winchester, and Gerard bishop of Hereford, and earl
Henry, and earl Simon, and Walter Giffard, and Robert de Montfort, and Roger
Bigot, and Eudo the steward, and Robert son of Hamo, and Robert Malet. At
London when I was crowned. Farewell.
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The Charter is interesting
in that it not only sets out some property rights but also women’s rights and
is perhaps the first move towards equality for women by setting out the rights
of a widow. Why did Henry sign the
Charter? We can only surmise from its
contents that the Barons and the Church were beginning to flex their
muscles. Property rights were starting
to be defined and we see the early moves towards a hereditary system. You can see in this document the origins of
the Bill of Rights, which was to play a major role in our history. It is signed by Robert de Montfort whose
family was going to cause Kings a much greater problem over a century
later. Its importance is in defining a
culture where the barons at least have the ability to constrain the King. Whilst it may be a reflection of the power
and money of the barons, what is interesting is how they choose to create
structures to wield that influence. The
references to King Edward give the document a continuity of age. England is developing habits, which are
getting quite ingrained.
Three weeks after Henry’s
death, Stephen, grandson of William the Conqueror became King. Stephen had promised to recognise his cousin
Matilda, daughter of Henry I as lawful heir, but like many of the
English/Norman nobles, was unwilling to yield the crown to a woman. He received recognition as King by the
papacy through the machinations of his brother Henry of Blois, Bishop of
Winchester, and gathered support from the barons. Matilda was in Anjou at the time of Henry's
death and Stephen, in a rare exhibition of resolve, crossed the Channel and was
crowned King by the citizens of London on December 22nd 1135.
Matilda, biding her time
on the continent, decided the time was right to assert her hereditary
rights. Accompanied by her second
husband Geoffrey of Anjou and her half-brother Robert, Earl of Gloucester,
Matilda invaded England in 1139. The
trio dominated western England and joined a rebellion against Stephen in 1141. Robert captured Stephen in battle at
Lincoln. Stephen's government collapsed and Matilda was recognised as Queen but
not crowned. The contentious and
arrogant Matilda quickly angered the citizens of London and was expelled from
the city. Stephen's forces rallied,
captured Robert, and exchanged the Earl for the King. Matilda had been defeated but the succession
remained in dispute. Stephen wanted his
son Eustace to be named heir, and Matilda wanted her son Henry to succeed to
the crown. Civil war continued until
Matilda departed for France in 1148.
The succession dispute remained an issue, as the virtually independent
barons were reluctant to choose sides from fear of losing personal power. The problem of succession was resolved in
1153 when Eustace died and Henry came to England to battle for both his own
rights and those of his mother. The two
sides finally reached a compromise with the Treaty of Wallingford - Stephen
would rule unopposed until his death but the throne would pass to Henry of
Anjou.
Matilda was one of the first women to campaign for equal rights for women in England. She did not succeed in becoming Queen, but by ensuring that her son became King she established the possibility of female succession. She made her mark.
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Matilda was one of the first women to campaign for equal rights for women in England. She did not succeed in becoming Queen, but by ensuring that her son became King she established the possibility of female succession. She made her mark.
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By the time of Henry II
in 1154 the Kings of England were supposed to be judge, warlord, theocrat and
potentate. The basic obligations were
to protect the Church, to preserve the patrimony of your ancestors, to do
justice and to suppress evil laws and customs.
During Henry’s reign he took on the Barons and decided to reduce their
power. The Baron’s Court was a court
for the freehold tenants of the estate who were legally obliged to attend.
There was a jury, usually twelve men, which was picked from amongst their
number.
To hold a Barons Court there had to be a minimum of 2
freeholder tenants. There was a decisive shift away from baronial courts to
royal courts. Any freeman might appeal
from the lord’s local jurisdiction or simply demand that their case be heard
before the King’s justice. Henry, who
also ruled a large part of France, was taking control of the law. And the law
was becoming centralised. Henry II is
recognised as the founder of the Common Law of England.
Henry II clashed with his own appointed Archbishop of
Canterbury – Thomas Becket over the Constitution
of Clarendon introduced in 1164, which limited church power. Two years later at the Assizes of Clarendon
trial by jury was established for the first time. Thomas Beckett had been Chancellor and was
the first Englishman since the Norman Conquest to reach such a high
office. He resigned on becoming the
Archbishop of Canterbury and from then on championed the rights of the Church
against the King. He disagreed with the Constitution of Clarendon and
continually quarrelled with the King thereafter. In 1170 he was murdered in Canterbury
Cathedral on the instigation of Henry II. By
his actions Henry was codifying the institutions which ran the country, but in
doing so he was effectively setting out their limitations.
Henry II believed that God directly anointed him
although this idea of the sacred autonomy of kings had never been accepted by
the papacy. It was also in direct
conflict with the Charter of Liberties. The papacy had supreme power over
Christendom and allowed Archbishops to crown Kings as a sign that they were
temporal rulers – servants of the Church.
In the eyes of the King sovereignty was absolute within his realm – a
fundamental difference of conviction.
Was the Church an institution of the realm or was it separate from
it? By making Becket Archbishop of
Canterbury Henry thought that he shared his view of the subordinate
relationship of Church to State. Henry
had problems with the Church but perhaps not so serious or consequential as
those of his son John, who ended up doing battle with the Pope. We see in this period a move by the King to
grab back power during a process of centralisation and moves towards democracy
are if anything in decline.
Nevertheless the 12th century set the scene for the barons to
get their revenge. Henry’s
appropriation of power set precedents, which his successors tried to follow but
which became disastrous for King John.
The
first step in establishing the principle of representation was taken in 1188
when Henry II imposed a tax on movables to raise money for the third
crusade. The tax system was extended
from the Barons to include freemen of the counties. If a man disputed the assessment of his
liability, a jury of neighbours, chosen locally and from among his fellows
decided the issue. It was but a short
step for representatives of these new taxpayers to be sent to the Great Council
The King formally granted
charters, which were assented to by the feudal council in its advisory
capacity. It was usual for the greatest
barons to sign these charters even if on occasion their signature consisted of
an “X”. In time the title baron became synonymous with tenant-in-chief.
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The idea of legislation –
that the law could be changed – was unknown to the ages of the Norman and
Angevin kings. The charters, statutes,
or “assizes” were conceived as declaring a law which existed, but had either
been temporarily broken or had come into uncertainty. Such a declaration, however, could usually
be effective only if made with the advice and consent of the King’s feudal
council. Thus we find the statutes of
Henry I and Henry II being issued with the assent of the “great ones” of his
realm. (Biography of a Nation by J.Enoch Powell and Angus Maude)
Richard
I younger son of Henry II succeeded Henry as King. Being involved in the Crusades he spent
little time in England during his reign (1189 to 1199). His brother John who ascended to the throne
in 1199 followed him. Significantly,
for the first time John was described on the royal seal as “King of England”
rather than as “King of the English”. Land had taken over in the description
from people. Was this a Freudian slip? Was he trying to get away from the “consent of the people”?
The
oldest recorded treaty between England and Wales, which has survived, dates
from 1201 - between Llywelyn Fawr and King John. 15 years later, Llywelyn the
Great summoned "the first Welsh
parliament" to meet at Aberdyfi.
Llywelyn the Great married the illegitimate daughter of King John and
was probably the ablest of all the medieval Welsh Princes. This all happened nearly fifty years before
the De Montfort Parliament met in England.
Did De Montfort get his idea from this?
In
1208 King John refused to accept the Pope’s nominee for Archbishop of
Canterbury. As a result an interdict
was placed on England. Under this no
subject of the King could receive the sacrament of marriage or be buried on
consecrated ground. John responded by
seizing Church property, which at this time consisted of a third of all the
land in England. This led to John being
excommunicated until eventually in 1213 he capitulated by surrendering England
to be a fiefdom of the Pope. At this
point in time the Pope was all-powerful.
It was not to last.
Knights
representing their shires were first summoned to the national assembly with the
prelates and barons in 1213. This is
the earliest known occasion on which this happened. Why did this happen? Was the King trying to extend his taxing
powers? Were there the signs of the
knights beginning to fight back? Did
the King feel that he would strengthen his cause by meeting them in
person? We can only speculate, but
whatever the reason it was a significant step towards the creation of a
parliament.
Armed with Papal blessing
John took on Philip Augustus at the battle of Bouvines in France in 1214, where
his army went down to disastrous defeat.
Philip Augustus established his throne at the battle of Bouvines. Notre Dame is a lasting monument of his
attention to the fortification and layout of Paris. Had John won the battle of Bouvines in all
likelihood there would have been no Magna
Carta (The Great Charter). For the
famous “Charter” signed by John at Runnymede on 15th June 1215 was
conceived in the first instance by a coalition of barons who were resolved to
take advantage of the King’s defeat and to push back the centralising power of
the King. The Magna Carta should not be read as though it were a sort of
primitive constitution. It was a
catalogue of things which the King would henceforth not be permitted to do. It spelled out for the first time, and
unequivocally that the law was not simply the will or the whim of the King but
was an independent power in its own right, and that Kings could be brought to
book for violating it – that they should, for example, show due cause why a
person’s body might be confined (habeas
corpus) and not just be declared to be detained at the pleasure of the
King. All this presupposed that there
was some sort of English “state” of
which the king was a part (albeit the supreme part) but not the whole.
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The Magna Carta, 1215, drew together some of the most important customs
of the land in its attempt to guarantee certain rights in the feudal society of
the time. Among other things, the King
had to promise not to levy scutage (payment made by a knight to commute the
military service that he owed his lord), outside of three customary feudal
dues, without the consent of the Common Council – a committee of 25
Barons. The first clause of the “Charter” asserted the freedom of the church. It went on to protect against arbitrary
taxation, guaranteed the privileges of the City of London and of the boroughs
and allowed freedom of movement.
Furthermore, no freeman could be seized, imprisoned, dispossessed of his
land or outlawed except by lawful judgement of his peers and the law of the
land.
Throughout
the centuries the freedom, which the Magna Carta espoused, has continuously
come under attack and has had to be defended.
At the height of the second World War in 1943 Winston Churchill,
probably the greatest Prime Minister of the twentieth century, said “The power of the executive to cast a man
into prison without formulating any charge known to the law, and particularly
to deny him the judgement of his peers, is in the highest degree odious, and
the foundation of all totalitarian government whether Nazi or Communist.”
The
Charter eventually became a document on which the rights of the people were
based. It was recognised by Parliaments
and the law courts, and some of its provisions remain on the statute books as
enduring benchmarks in the evolution of British law. The original Magna Carta has vanished, but copies of the document were
distributed to all the counties and four of those copies survive. They are held at the British Library, House
of Lords, Lincoln Castle and Salisbury Cathedral.
An
elaborate device for securing the observance of the charter was included within
the Charter. It said:
“the barons are to elect twenty-five barons of the realm and if any one
of the twenty-five Barons shall die, or remove out of the land, or in any other
way shall be prevented from executing the things above said, they who remain of
the twenty-five Barons shall elect another in his place, according to their own
pleasure, who shall be sworn in the same manner as the rest.
In all those things which are appointed to be done by these
twenty-five Barons, if it happen that all the twenty-five have been present,
and have differed in their opinions about any thing, or if some of them who had
been summoned, would not, or could not be present, that which the greater part
of those who were present shall have provided and decreed, shall be held as
firm and as valid, as if all the twenty-five had agreed in it: and the
aforesaid twenty-five shall swear, that they will faithfully observe, and, with
all their power, cause to be observed, all the things mentioned above.
And we will obtain nothing from any one, by ourselves, nor by
another, by which any of these concessions and liberties may be revoked or diminished. And if any such thing shall have been
obtained, let it be void and null: and we will never use it, neither by
ourselves nor by another by common consent most people agree”.
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It was the beginning of
the idea of representation and incorporated the principle of majority
voting. It also provided against
coercion or intimidation in exercising the vote. An oath to support the twenty-five in these
duties was to be exacted throughout the country. Any infringement of the Charter was to be
reported to four of the twenty-five barons who would then distrain upon the
King until redress was obtained. This
was a very significant point in moving toward democracy. We can see here that democracy is not only
voting but that voting is part of a process setting out the conditions under
which the vote takes place. In this
case it is a process being used to restrain the power of the King and as such
there is some similarity to the Witangemot of Anglo-Saxon days.
What
we are seeing is the development of law, the concept of voting, institutions of
representation and constraints on the power of the King. As such they do not constitute democracy but
they are the bases on which democracy can be built. This primitive move towards democracy was
far ahead of its time. Some would argue
that democracy; justice and liberty can all be traced back to this point.
Magna
Carta was not a human rights document setting out the relations between the
common man and the state. It was a
settlement between forces competing for power.
The people were subjects not citizens.
Nevertheless it led the way.
The
charter broke down almost immediately it was made. The barons broke their promise to give the
king any security he wished for their keeping the peace.
After
signing the “Charter” King John appealed to Pope Innocent III to have it
annulled. The Pope, being well versed
in diplomacy, having deposed Otto IV the Emperor of Germany, agreed. John died in 1216 and was succeeded by his
9-year-old son Henry III.
After
John’s death, in the reign of his son Henry III Magna Carta was reissued on no fewer than three occasions, although
the clause allowing the Barons to use force to implement the “Charter” was
eliminated. The idea of a contract
between King and subjects started to take firm root. When lawyers started collating English law
in later centuries they listed Henry III’s version of Magna Carta as the first in the statute book.
By
the time of Henry III how far had we got on the road to democracy? The pre-requisite for democracy - the rule
of law – was becoming established, courts had been instigated. The power of the king had become
circumscribed. Under Henry I’s Charter
of Liberties the people began to acquire rights. By the time of Henry II the
principle of representation had been established. With Magna Carta justice gained a toehold,
as did the idea of deciding matters by a majority. The seeds of democracy were in place. How long would they take to grow?
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