Community and Contract in Later Medieval England
p. 349-356
Texte intégral
1England has an ambivalent political history. On the one hand, its long traditions of common law and parliamentary representation have made it – especially for Englishmen – the home of liberty. The English, uniquely, as it has often seemed to them, were ruled by laws that they had made themselves. Their kings were subject to these laws: by ancient prescription, by charters and oaths, and by the practical difficulty of ruling without the financial and political support of the people, mediated through parliament. Not surprisingly, perhaps, England was the home of a succession of early modern contractarian thinkers: Sir Thomas Smith, Richard Hooker, Thomas Hobbes and John Locke. A hundred and forty years before the storming of the Bastille, Englishmen, already notorious for killing their kings, tried and executed Charles I, abolished the kingly office and established a moreor-less democratic republic. On the other hand, England has been home to one of the world’s most powerful and enduring monarchies. In the middle ages, it was governed by royal agents far more closely and uniformly than anywhere else of comparable size. The concentration of resources at the disposal of its kings enabled the frequent projection of English power across the British Isles and much of France. Kings of England might be deposed from time to time, but they typically destroyed most of their opponents in the process, and the tendency was for the crown to become more independent over the course of the middle ages, not more restrained. In the nineteenth century, Walter Bagehot noted with pleasure that a republic had insinuated itself beneath the skirts of the monarchy, but to his continental contemporaries, it was the persistence of England’s imperial kingship and the overweening power of her landed aristocracy that were so striking. In a Europe of republics, it was in England that the ancien régime lasted longest, and claims that democracy only reached the English in 1918, or 1945, or later still, have some validity; it was only in the 1980s that «British citizen» replaced «British subject» as the normal description of people born in Britain, and even now we continue to be subjects of Her Majesty.
2This underlying duality may be among the reasons why notions of political contract have not been a prominent theme in English historiography. The big story has instead been the making, adjusting and preserving of the English constitution, an ingenious and evolving balance of powers and interests between a sovereign king and an ever-extending political class. It is a story full of conflict–especially between the thirteenth century and the seventeenth–but its underlying emphasis is on the forging of harmony between a range of different powers: the bringing together of crown, parliament and country in Macaulay’s narrative; the fusion of the freedom-loving English race and the governmental machinery of the Norman invaders in Stubbs’s. For Macaulay, it was a point of pride that «the assertors of liberty said not a word about the natural equality of men and the inalienable sovereignty of the people»; they did not conjure imaginary contracts, but cited ancient laws, rights and customs, and thus built a workable future on the residue of the past.1 While today’s historiography is less self-congratulatory and somewhat less convinced of the emerging harmonies of English history, it retains a sense of organic development, founded on processes of conflict and negotiation between a strong imperial kingship, the changing laws and institutions that it created, and the semi-autonomous power of lords, gentlemen, townsmen and peasants who sought to use those laws and institutions to advance their concerns. The titles of recent constitutional histories written in England– Government and Community (1980), Kingship, Law and Society (1989), Locality and Polity (1992), The Politics of Kingship (1996), Shaping the Nation (2005)–evoke the creative interaction of groups of subjects with the central power of the crown.2 This interaction is conducted through a host of real institutions, inspired at different times by a wide array of principles and animated by ever-changing social practice. It is not clear how readily this extensively-studied and complex political process can be captured or illuminated by a notion of political contract, and that may explain the qualified way in which the contributors to this English section of the volume have approached the master-topic of the conference. And yet in all four of the essays that follow this brief introduction, the notion of a contrat implicite, as Chris Fletcher puts it, has evidently been fruitful, and in Christian Liddy’s discussion of political culture in English towns, an actual contract–the indentures which established the government of Norwich following the arbitration of 1415–is shown to underlie the operation of at least one English political community.
3It is certainly not hard to find ideas, discourses and practices in medieval England which may be considered contractual or quasi-contractual. In granting a charter of liberties to «all the free men of our realm for ourselves and our heirs forever», King John knew that he was establishing a framework of binding laws and expectations which would govern his relations with his subjects and could, in principle, be enforced against him and his successors.3 Magna Carta was soon mythologised as a general statement of the fundamental rights of the English people and of the legal obligation of the king to uphold those rights. During the thirteenth and early fourteenth centuries, it was afforced and extended by ritualised reissues at moments of crisis, by subsequent charters, provisions and statutes, and by a series of associated ideological and institutional developments–the rise of a notion of communitas regni, a body which could negotiate with the crown over the government of the realm; the development of media of representation and petitioning; an increased emphasis on the oaths sworn by kings, councillors and other officers as means through which their rule could be adjudicated and correction justified; the development of historical narratives which, as Aude Mairey points out, emphasised the originally elective nature of the English kingship and the collective authorisation of the kingdom’s fundamental laws;4 the deployment of romano-canonical principles, such as the idea of the crown or fisc, the notion of the «common profit» and the process of deposition. By the mid-fourteenth century lots of Englishmen would surely have agreed with the canonist Walter Burley, who wrote in the 1340s that, in England «the state is governed by a multitude […] made up from the king, the powerful and the wise men of the realm. And in this way the many govern as much as […] the king alone, and on account of this, the king calls parliament for the expedition of difficult business».5 Caroline Burt’s essay explores the way in which these principles and others like them were realised in practice: a series of mutual expectations and shared institutions of justice governed the dealings of kings and landowners; if either broke the rules of this «informed and implied» political contract, conflict was certain to follow.
4At the same time, there are many problems with any attempt to conceptualise later medieval English political relations in contractual terms, at least at the level of the realm itself. For one thing, as Burt points out, only one of the putative parties had the right of enforcement: it was up to the king to uphold Magna Carta and other laws, and to ensure that the common profit of the people was advanced; he could be advised, challenged, guided by laws and customs, but he was hard to constrain, and those who attempted to control him typically faced destruction as traitors, a fate which the conflicts of the reigns of Henry III, Edward II, Richard II and Henry VI made painfully clear. This underlying reality, which strengthened as royal government expanded in range and complexity, had a profound effect on English politics. It meant a growing preference among communal representatives for strategies which acknowledged royal authority and avoided direct confrontation over questions of right: members of parliament, magnates, even popular rebels, proclaimed their loyalty and obedience to the king and attempted to secure improved government by voting taxes in return for redress of grievances, by pressing for alterations in the royal council or household, by insisting on better financial management or calling for better justice. While these measures did not prevent bloody conflicts, and could certainly undermine royal power in the short term, they ultimately reinforced the king’s right to direct the realm and determine where its common profit lay: the fifteenth-century resort to dynastic legitimism as a way of correcting the king was as much a tacit recognition of the inability of subjects to justify rebellion on any other grounds as it was a response to circumstance. Over the course of the fourteenth and fifteenth centuries, therefore, the quasi-contractual emphasis on oaths, laws and charters receded in favour of attempts to persuade and guide a ruler whose overwhelming authority could not be gainsaid. As Chris Fletcher’s essay neatly demonstrates, prevailing political discourses emphasised the responsibility of the king and other officers for the wellbeing of the political community, but they did not provide a direct and temporal remedy for abuses; the dominant approach of normative writing was hortatory, or didactic, not constitutionalist.
5In a like way, there was a persisting concern in English politics to protect the liberty of the king, and, increasingly, to do so on the grounds of its constitutional benefits. The 1322 Statute of York, in which Edward II’s regime repealed the Ordinances imposed on the king in 1311, declared that restraints on the power of the king were not only against the «estate of the crown»–and thus hostile to the agency through which the realm was governed for the common good–but directly against the wellbeing of subjects: «by such ordinances and provisions made by subjects […] troubles and wars have happened in the realm whereby the land has been in peril».6 The restraints imposed on Edward III in 1341 were removed in the parliament of 1343 with the recognition that they were not only prejudicial and contrary to the rights and prerogatives of the king, but also «to the laws and customs of our realm of England».7 In 1377, John of Gaunt was able to insert the qualifiers «justly and reasonably» in the clause of the coronation oath that bound the king to uphold the laws that his people should choose, while, in 1399, Henry IV secured parliamentary recognition that «he should be in as great royal liberty as his noble progenitors were before him», suggesting that this would enable him to «keep the ancient laws and statutes, ordained and used in the times of his noble predecessors, and to do right to all people, in mercy and truth, according to his oath».8 In this way, the king’s freedom from any tightly-defined framework was recognised as an essential part not only of the laws and customs of the realm, but also of the wellbeing of the people; and the practical significance of this principle was demonstrated in a number of ways–most clearly, perhaps, in the criticism of those who were thought to be «accroaching» (viz. usurping) the king’s power, but more generally in the marked tendency for the rights and responsibilities of subjects to be more clearly and extensively defined over the course of the fourteenth and fifteenth centuries, while those of the king himself remained mysterious, flexible and potentially unlimited.
6Here, then, we are in a political culture in which a general reciprocity between ruler and subjects is clear, but from which the formalities and parities of contract are remote. The people may have established the king in the first place (or they may not–after all, English kings were formally descended from a Norman conqueror), but, like the Roman people who had established the Emperor in the Lex Regia, their constitutional energies may have been exhausted by this act; the king was now free to rule them as he judged best. The conceptualisation of the realm as a community and the priority given to its wellbeing, both in theory and through media of representation, fiscality, defence and justice, certainly bound king and people together and ensured the extensive politicisation of society, but they did not disclose the location of legitimate authority, nor, necessarily, did they even raise that question. On that basis alone, we may question whether «political contract» is a particularly helpful way of approaching the political conceptions and dynamics of later medieval England. We may also be struck by the collective nature of these communal obligations, while the contracts of the time, and the contractarian theory of the sixteenth, seventeenth and eighteenth centuries, dealt with individuals–individuals who must be induced to obey in the theories of Hobbes, and individuals whose fundamental freedoms must be protected (if also transformed) in those of Rousseau; as Chris Fletcher points out, the idea of a personal and voluntary commitment to accept political authority belongs to a later age.
7But perhaps the most substantial objection to adopting a contractual model for this period is that it threatens to disguise both the causes and the course of the key constitutional developments of the period. Political integration of the kind seen across the continent in the later middle ages did not arise from contractual theory, but from the expanding activities of government (in which the inspiration of romano-canonical models played a part) and from the resourceful exploitation and adaptation of new governmental media by individuals and groups among the governed.9 These developments were driven by practical exigencies and grew in a semi-conscious way, guided by the major ideas and discourses of the period, among which notions of contract, as opposed to less definite or equal reciprocities, were scarcely developed. More significantly still, the very integration of government and community that occurred in so many realms in the later middle ages–when the crown signified the mutual assent of «lordis, comouns and clergye», as an English poem of c. 1400 put it; when the personal virtue of Edward III could make it seem to every Englishman that «he himself rules in and with the king»; when notions of the body politic or ship of state ensured every person a role in the creation of common profit; and when structures of office, representation, military service and fiscality reached throughout society–made it less appropriate and less useful to distinguish between people and ruler as the constituents of political society, and still less to place relations between them on a contractual footing.10 In England, this kind of political dispensation is most apparent between c. 1350 and the Wars of the Roses: for a century or so before this, it is easier to draw distinctions between the king and his officers, on the one hand, and the community and its representatives, on the other; after the Wars, meanwhile, a sharper distinction emerges between a government made up of experts and gentry magistrates and a mass of common subjects. It is thus in the c. 1200–1350 period and then again under the Tudors and Stuarts that evidence of quasi-contractual thinking and action is more typically found, and that may tell us something about the changing patterns of English (perhaps European) politics. As Chris Fletcher pointed out in another session, all political regimes depend upon some measure of negotiation with, and consent from, the governed, however iniquitous their methods and however unequal the society they govern. It may thus be more helpful to notice the changing modalities of these processes, and the changing apprehension of distance between rulers and subjects, than it is to invoke a general model that erases those differences.
8And yet, to end on this note would be to reflect the developmental biases of traditional English historiography, and to overlook the benefits of the problem-oriented approaches which were pioneered by Marc Bloch and other founders of the Annales, and eagerly taken up in Britain and elsewhere from the middle years of the twentieth century. What the political contract model has most notably offered the contributors to this section is an opportunity to formulate questions, or open up perspectives, that go against the historiographical grain. For Christian Liddy, this means a challenge to the prevailing view of steadily increasing oligarchical control in the towns of the later middle ages: looking for the presence of contractual or quasi-contractual phenomena draws attention to fissures within the urban polity and to a strong and persisting process of negotiation and constitutional adjustment between plutocrats and less exalted citizens, a process which is well-studied in continental towns, but strangely neglected in England. For Caroline Burt, the central question concerns the origins of the power-sharing that developed in the sphere of justice and order: why did the crown move, in the fourteenth century, from a system of justice in which its officers were the key agents, to a more diffuse system, in which the influence of great landowners was more freely admitted and more tacitly managed? Burt’s sense of an implicit contract between landowners and the crown opens the way to a fresh interpretation of bastard feudalism that acknowledges the historiographical developments of the last few decades. Chris Fletcher’s search for a sense of contract in the political culture of later medieval England leads him to a new reading of the so-called ‘complaint’ literature of the fourteenth century: he shows how a shared spiritual and penitential framework produced the conceptual and discursive tools for office-holders to challenge and contain the exploitation of their offices in the interests of a social peace on which their class interests depended. Aude Mairey, meanwhile, draws new attention to the political resonances of the national history, a still-under-studied topic among British late-medievalists, but full of importance for the conceptualisation of English government in an age of burgeoning literacy and self-consciousness. Fortescue’s startling image of the realm of England as a college, «in whiche shul syng and pray for evermore al the men of Ingland spirituel and temporel» has tended to mystify English historians, but Mairey’s essay shows how this «newe ffundacion of is crowne» proposed to Edward IV correlates with the first foundation of England by Brutus and his fellows.11 It looks forward to a new era in which the political community will be sustained by the potentially divergent notions/structures of «commonwealth» and «prerogative», an era in which the idea of an original contract underlying the political order will steadily make more sense.
Notes de bas de page
1 T. B. Macaulay, The History of England, ed. H. Trevor-roper, London, 1979, p. 292.
2 J. R. Lander, Government and Community: England, 1450–1509, London, 1980; E. Powell, Kingship, Law and Society: Criminal Justice in the Reign of Henry V, Oxford, 1989; C. Carpenter, Locality and Polity: a Study of Warwickshire Landed Society, 1401–1499, Cambridge, 1992; J. Watts, Henry VI and the Politics of Kingship, Cambridge, 1996; G. Harriss, Shaping the Nation: England, 1360–1461, Oxford, 2005.
3 Magna Carta (1215), cl. 1, translated by J. C. Holt, Magna Carta, 2nd edn, Cambridge, 1992, p. 451.
4 Another example, this time citing forty Saxon peers as the founders of the kingdom, is the late thirteenth-century or early fourteenth-century Mirror of Justices, ed. W. J. Whittaker, Selden Society 7, London, 1895. This treatise may well have been read by Fortescue. Note especially p. 6: «And they […] chose from among themselves a king to reign over them […] and to maintain and defend their persons and goods by the rules of right».
5 S. H. Thomson, «Walter Burley’s Commentary on the Politics of Aristotle», in Mélanges Auguste Pelzer, Louvain, 1947, p. 577.
6 English Historical Documents, 1189–1327, ed. H. Rothwell, London, 1975, p. 543–544.
7 B. Wilkinson, Constitutional History of Medieval England, 1216–1399, London, 1952, vol. II, p. 203.
8 English Historical Documents, 1327–1485, ed. A. R. Myers, London, 1969, p. 186.
9 This is a central claim and theme of my new book, The Making of Polities: Europe, 1300–1500, Cambridge, 2009.
10 For the poem, see J. Kail (ed.), Twenty-Six Political and Other Poems, Early English Text Society, original series 124, London, 1904, p. 50. The second quotation is again from W. Burley: S. H. Thomson, «Burley’s Commentary», p. 577.
11 The Governance of England […] by Sir John Fortescue, Knight, ed. C. Plummer, Oxford, 1885, p. 154–155.
Auteur
-
John Watts
Corpus Christi College, University of Oxford
Coordinateur d’aire
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