English Legal History and its Materials

I. Introduction

Through contingency, the disempowered in England were able to transform unfreedom into freedom by unifying their might to usurp some power from the ruling classes. In England’s power ladder, the king was theoretically at the top, followed by the peerage and Parliament, and lastly, the commoners. But each rung depended in some way on a lower rung: the king depended on the peerage to raise funds and armies, and the peerage, in turn, relied on the commoners for taxes, labor, and military service. If a lower rung unified in opposition to a higher rung, they could deny that rung’s needs. In these moments, concessions could be forced upon the higher rungs, forcing them to give up some power and redistribute it more favorably to a lower-rung. Unfreedom in England gradually transformed into freedom through incremental concessions forced on the higher-rungs.

II. The Distribution of Power on the Ladder

Power in England was wielded through rhetoric, resources, or unity. Resources were firmly the domain of the peerage, the king could not directly and independently raise an army, impose taxes, or control local affairs. These powers were instead directly wielded by the peerage under the feudal expectation that they were exercised on behalf of the king and their benefits would flow upward to him. Thus, if the king needed money or an army, he had to rely on the barons or Parliament.

Despite this reliance, the king exclusively wielded the rhetorical power to lend his subjects royal legitimacy. The peerage frequently squabbled among themselves for power, and the king’s rhetorical support for one faction or another could be enough to tip the balance in their direction. Once a faction had the explicit backing of the king, dissent became rebellion. Even though those opposed to the king’s chosen faction often had the resources to potentially prevail in a rebellion, victory still meant risking their position and their lives. Furthermore, the legitimacy bestowed by the king’s support helped rally undecided nobles to his chosen faction while at the same time giving dissenters a pretense for backing down. In the constant struggle for power among the nobility, the king’s support could help Davids beat Goliaths and help Goliaths crush Davids. Thus, even though the king alone could not raise funds or an army, those would could needed his support.

But the king and the peers both relied on a lower-rung for power. The king’s economic and military power relied on a supply from the peerage and his ability to empower a faction with royal backing needed a faction to empower. If opposition to the king was united, he would have no independent means of raising funds or an army and no rhetorical power to use as a bargaining chip. Unified, the peers commanded enough resources to credibly threaten the king and make demands on him. But the peers relied on a lower-rung to muster those resources, they needed commoners to pay taxes, work their lands, and populate their armies. When the commoners united against the peers or the king, they too had enough leverage to make demands.

III. Freedoms for the Peerage Won by Contingency

When the peerage unified against the king, they could demand some of his power over them be relinquished. Over time, this transformed the peers’ unfreedom into freedom. For instance, the Magna Carta was issued five separate times by three different kings. The first three times, it was issued to appease a group strong enough to threaten the king. The last two times, it was issued as a concession demanded by the peerage in exchange for new taxes requested by the king. The Provisions of Oxford, establishing Parliament as a check on the monarchy, were only issued to appease the barons who were unified in refusing to raise taxes to help Henry III place his son on the Sicilian throne.

When the throne was empty the unified peerage had even greater leverage. Powerful factions forced insecure claimants to the throne to promise grants of liberty in exchange for their backing. When Henry I claimed the throne without the means to hold it, the barons only backed his claim in exchange for new rights and protections for themselves under the Charter of Liberties. Five hundred years later, the ejection of James VII left no obvious claimant to the throne, and so Parliament offered it to William and Mary, contingent on their acceptance of the Bill of Rights of 1689. With Parliament holding all the cards, the future king and queen replied, “we thankfully accept what you have offered us.”

IV. Freedoms for Commoners Won by Contingency

The commoners also used their leverage to transform their unfreedom into freedom. During the Second Baron’s War, “the barons had been dependent to a considerable extent upon the assistance of smaller landowners who also had to be satisfied by a measure of reform.” These landowning commoners leveraged their position for greater property rights, including regulation of the right of extra-judicial distress, which were later codified in exchange for peace by the Statute of Marlborough.

The least free people in England, serfs, also transformed their unfreedom into freedom by contingency in the century following the Black Death, when severe labor shortages mobilized laborers and enabled them to seek higher wages. Though Parliament clumsily attempted to end this practice with the Statute of Labourers, the leverage the serfs gained was a major blow to villeinage, which effectively ceased by the 16th century.

V. Conclusion

Throughout English history, those in power chose to “buy peace rather than make it.” Thomas Paterson, J. Garry Clifford, & Shane J. Maddock, American Foreign Relations: A History, to 1920: Volume 1 20 (2009). The price they paid was control over people and property. Over time, this power was nickeled-and-dimed away for short-term gains, incrementally transforming unfreedom in freedom.

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r4 - 15 Apr 2018 - 16:29:41 - LukeRushing
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