English Legal History and its Materials
The concentration of power over individual liberties in one person is the antithesis of freedom; because the monarchs began with almost unfettered power over individual liberties, freedom resulted from continual concessions forced onto the kings by their barons and by Parliament. Because the kings did not maintain a standing army until the late-17th century and their authority over local affairs flowed through the feudal system, they were forced to rely on the barons and Parliament to raise troops and funds. This reliance resulted in a sovereign unable to challenge the combined might of the barons or Parliament, and was repeatedly forced to relinquish his power over their rights. Over time, these relinquished rights added up to the modern freedom enjoyed by citizens of the UK and the weakened figurehead status of the monarch.

The king’s reliance upon the barons and Parliament meant that his greatest power neither economic nor military, but rather rhetorical; by either casting legitimacy on the factions of barons and Parliamentarians who squabbled over control of government, or refusing to do so. A minority of barons alone could not govern, the opposed majority would wield sufficient military and economic power to punish the minority for attempting to upset the status quo and claim power for themselves. But if that same minority of barons had the decisive backing of the king, the only form of dissent left to the opposing majority was rebellion. Consequently, the king’s power was that his decision to back one faction shifted the responsibility of starting a war to the opposing faction, if they refused to concede. Wars are expensive and risky, even when the opposition to the king was a majority of barons such that they could prevail in a rebellion, victory would still mean risking significant amounts of money and potentially their lives. Once the king picked a side, that faction could use the king’s backing to strengthen their might by rallying barons who otherwise had no stake in the conflict. Meanwhile, the opposing side could use the king’s authority to as a pretense for backing down and avoiding a bloody and costly rebellion. Thus, when the king backed one faction, it incentivized unity behind that faction at the same time that it disincentivized the dissenting faction from exercising their economic and military power, even when dissenting faction’s power was greater than that wielded by the king and the faction he chose. By making an ally of the kind, a faction with insufficient military and economic power to prevail on their own gained rhetorical power.

But this dynamic was a two-way street. The king, lacking his own army or independent means of collecting taxes, could not muster a meaningful military or economic power on his own. Furthermore, when acting against the combined might of the barons or Parliament, the king could hardly command legitimacy and so, as per Justice Jackson’s famous concurrence in Youngstown Sheet & Tube, his rhetorical power was at its lowest ebb. While the king’s rhetorical power was sufficient to empower a faction, it required a faction to empower; the king needed the backing of the barons to wield any rhetorical, economic, or military power. Standing against the king unanimously (or nearly so), the barons and Parliament could deny him his power and thus wielded their military and economic power unopposed at the same time that the king could not wield his usual rhetorical power. In this position the barons and Parliament could either credibly threaten the king or could refuse to assent to his demands.

These occasions were the moments when power was slowly stripped from the king. That power was either given to the peers, through whom it would sometimes flow to their subjects or, on rare occasions, directly to all English subjects. For instance, the Magna Carta, the first major declaration of the liberties of the English, was issued five separate times by three different kings. The first three times, it was issued to appease a group who mounted a credible threat to the king. The last two times, it was issued as a concession demanded by the barons in exchange for new taxes requested by the king. The Provisions of Oxford, establishing Parliament as a check on the monarchy, was only issued because Henry III tried to place his son on the throne of Sicily, but did not have the economic means to do so. He was forced to ask his barons for funding, who agreed only on the condition that he first had to accept the Provisions.

There was one set of circumstances where the barons and Parliament held even more power over the monarch: when the throne was empty. Several times throughout English history an insecure claimant to the throne would be forced by a powerful faction to promise certain grants of liberty in exchange for their backing in putting him on the throne. The Charter of Liberties, forerunner to the Magna Carta, was issued by Henry I as a condition of the support of the nobility who felt that his brother, William II, had over-taxed them. Henry’s acquiescence to being bound by the laws of the kingdom was the bargaining chip that placed him on the throne. Almost 600 an angry populace ejected the Catholic James VII from his throne. With no obvious claimant to a vacant throne, Parliament offered it to the Protestant William and Mary, on the condition that they first accept 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.”

The French foreign minister once noted that “the English buy peace rather than make it.” Throughout English history kings bought piece between themselves and their subjects. The price they paid was their power over government and individuals. Over time, the kings were forced to nickel-and-dime this power away for short-term gains, until they became the ceremonial figure-heads they are today and the citizens of the UK had the power they have today.


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r2 - 10 Jan 2018 - 15:35:20 - LukeRushing
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