Social Causes OfInstitutional Variation: Power over the Most Powerful

Why Parliament fused judicial and fiscal functions whilst the Parlement became primarily a judicial court is not extensively treated by historians. Brief explanations focus on differential patterns of timing and specializa­tion.

But the logic is not airtight. English royal courts may have operated already from the 1190s,^[313]8 but this did not reduce pressures on Parliament itself, especially since court and parliamentary functions were not identi­cal. The crown was as overwhelmed by petitions as in France, yet fusion still occurred.^[314] In any case, the prior existence of central royal courts in England and their delay in France were themselves endogenous to the master variable proposed here, ruler strength. England formed central courts earlier because the crown already had jurisdictional near­monopoly, as argued in the next sections.

Instead, I argue, judicial and fiscal functions were fused where nobles attended representative institutions (or the king’s court initially) at higher rates, including for judicial purposes. Attendance was higher when the ruler could compel the nobility. Once compelled to attend a central forum whilst subject to similar obligations, nobles were better able to solve their collective action problem: they had incentives to cooperate in their inter­actions with the king.

3.1.1 The Micro Level: Noble Attendance at Representative Institutions - Solving the Collective Action Problem

First, however, we need to show, as far as the limited records permit, that English nobles had higher levels of attendance than their French counter­parts. All such comparisons are precarious, as they are mainly inferred from lists of summonses, since English nobles were not paid for attending, while parliamentary rolls that recorded those present are too inconsistent. Scant records survive in France. Moreover, the groups differed in struc­ture. The English nobility was small, maybe amounting to 0.01 percent of a population reaching 4.7 million by 1300, when their immediate family is included.^[315] The highest rung of the nobility were the earls, who num­bered usually about 12;^[316] next, about 200 barons (“lords”) were tenants- in-chief holding enough land to pay an entry fine (relief) of £100.^[317] Below them were the gentry, viewed either as lesser landholders distinct from the nobility or as lesser nobility, with knights (“sirs”) at the highest rung; they held land in exchange for military service^[318] and numbered around 1,250.^[319] The French nobility included powerful ranks such as dukes and counts; it was also larger and included the knightly class, bringing the total up to about 2 percent of the population in the thirteenth century (about 200,000 members).^[320] Yet fewer were present at the center, both in proportionate and absolute terms.

3.1.1.1 Noble Attendance at the English Parliament Originally the king summoned mostly his tenants-in-chief, men holding directly of him, owing counsel and aid; this included high ecclesiastics.^[321] Noble status only emerged from the king’s summons to parliament itself after the fourteenth century - the summons was not an inherited legal privilege, as on the Continent.^[322]

Noble presence in parliament is first assessed from lists of those sum­moned to Parliament.^[323] Between 1283 and 1483, an average of 70 lay peers per session were summoned (Table 3.1) - about one third of the possibly 200 barons known.^[324] Of those summoned, between about 40 and 80 percent actually attended in that period (we cannot infer a secular increase, as early attendance was also high).³⁰ Attendance can also be approximated through lists of nobles witnessing royal charters. These suggest that the average earl was present for at least 60 percent of the Parliaments of Edward I,³¹ even though earls often fought abroad and Parliament was occasionally held far from London. So, when English historians note that “no more than” a third of those summoned attended,³² as in 1307, this typically means absolute numbers (57) larger than the maximum recorded for the three times larger population of France, as we will see.

This evidence can be supplemented by biographical information provided in the Oxford Dictionary of National Biography, which allows us to cross­reference parliamentary attendance with other types of recorded service and obligations. The ODNB entries are culled from sources by historians; they don’t specify the frequency of attendance for each person, only the

Table 3.1 Number of nobles in the English Parliament

Sources: Maddicott 2010, 286-87; Roskell 1956, 155.

minimum of known practice, and not with any claim of completeness. They establish a rough baseline, to be qualified by more detailed studies.^[325] A search in the ODNB for the period between 1200 and 1350 generated information for 317 earls and barons and 61 ecclesiastics.^[326] This involves about 7 earls and 25 percent of estimated barons (49) active around the year 1250.^[327] Forty-four percent of nobles before 1250 are recorded as attending the king’s court, rising to almost 80 percent after 1250 (see Table 3.2).

3.1.1.2 Nobles and Petitions in the English Parliament We have seen how bottom-up demand for justice especially via petitions explained why broad social groups supported a regular central institution. But the nobility’s presence was critical in the early stages. Not only was their status crucial for the practice to take root but petitions in the name of the community of the realm also originated with them, as Chapter 2 noted. Popular

Table 3.2 Recorded (i.e. minimum) noble attendance at the king's court or Parliament in the ODNB

Source: Oxford Dictionary of National Biography.

representatives claimed the petition-making process only after the 1310s-20s.^[328] Early “community” petitions did not originate in the knights and burgesses (the Commons); rather, they simply claimed to refer to common rather than particularistic concerns, a point now emphasized by historians. Either the nobility channeled them, claiming to represent the community, or clerks designated them as common.^[329]

Nobles also gradually became involved in judging petitions, part of their increasing involvement in administration.^[330] They greatly outnum­bered royal officials since the 1280s,^[331] and appear as triers of petitions after the 1310s^[332] (whilst churchmen, who were themselves both nobles and tenants of the crown, and officials dominated in the early period).^[333] Their role is attested by complaints that proceedings were delayed for days until “grantz et autres” arrived, as some petitions could not be decided without the “common assent of the magnates.”^[334] By the 1340s, “earls were frequently being appointed auditors. Thus the judicial com­mittees begun under Edward I had become larger and more distinguished by 1348, with the clergy and magnates outnumbering the officials.”^[335] By the late 1300s, almost fifty nobles could be trying petitions, though numbers of triers decreased again after that.⁴⁴

Nobles were not keen to perform this service. Like their French coun­terparts, they had to be commanded to “sit in one place and hear the whole of the petition.”⁴⁵ However, once forced to participate, petitions were important enough for them to seek control of the process, as they did after 1311, displacing the royal bureaucracy of ministers.^[336] Ironically, the sidelining of bureaucratic personnel helped Parliament remain an institu­tion that included the most powerful actors and to thus sustain its cen­trality.

3.1.1.3 Nobles and Petitions in the Paris Parlement Whilst the role of English nobles in petition-hearing grew, France witnessed the opposite trend: in the Parlement nobles were less involved and eventually sidelined; it was the law professionals, such as justices and clerks, that became the key staff. Evidence is slim on French noble involvement in royal meetings.^[338] However, general trends differed from English ones both at the micro and the macro level (examined in the next section).^[339]

After the Paris Parlement regularized in the 1250s, the high nobility and clergy received individual summonses to the institution on the same basis as English peers: their tenurial status and social standing.^[340] Unlike English nobles, however, French ones were paid to attend, so the crown restricted their numbers in 1345: fifteen nobles and fifteen prelates in the main pleading institution, the Grand'Chambre - though others could come unremunerated.^[341] Historical estimates of noble presence vary from scarce (“We catch glimpses of great men in occasional attendance”)^[342] to “considerable.”^[343] Nonetheless, attendance was irregu­lar and a function of the meeting’s importance^[344] - and absolute numbers seem a fraction of the English ones that averaged around seventy per session.

Attendance cannot be confirmed by lists of summonses to a Parlement;^[345] it is known mostly from highly incomplete summaries.⁵⁶ It appears very limited: one record that names the nobles attending lists only seventeen, in 1331. But it included one king, two dukes, seven counts, and others.^[346] Participation was high for judicial occasions, as this argument predicts: the Parlement was judging the Duke of Burgundy,^[347] so attendance fulfilled an obligation to the crown.^[348] Similarly, the count of Flanders' appeal in 1290 drew sixty persons, though how many were nobles seems unknown;^[349] regardless, this is still lower than the English noble average. These (precarious) figures suggest 0.10-0.35 nobles attending per hun­dred thousand of population, compared to 2 in England.^[350]

Does war predict noble attendance better than compellence, as dom­inant hypotheses imply? Some evidence appears strong. The French king summoned far higher numbers when faced with war: an average of 400 nobles were summoned in six baronial assemblies between 1315 and 1320.^[351] This parallels English summoning patterns. However, no per­manent central institution followed from these assemblies. As Bisson notes, they had no connection with parlements.^[352] No comparable capacity to enlist nobles for judicial service and regular attendance thus existed, as we will see in Chapter 5. When war lapsed, so did the assemblies.

In the Parlement itself, the great lords increasingly gave pensions to procurators (avocats) to represent them, only appearing for “important affairs” as judges.^[353] Procuration was far more widely allowed in France than in England, where it is not attested for nobles before 1307 but was frequent for ecclesiastics.^[354] Eventually, noble “elimination from the Parlement happened softly, imperceptibly.”^[355] The highest ranks of tem­poral lords across all cases examined in this book still participated in governance in the Royal Council of course - they shared power that way.^[356] It was service, whether judicial or administrative, that was more cumbersome and the barons and the bannerets were indifferent.⁶⁸ So although some judicial service was delegated to French knights until the 1360s,⁶⁹ after this, officials, often men of “humble origins,” gradually replaced them. By the early fifteenth century, even knights only appeared exceptionally in the Parlement.⁷⁰

Parlement procedures were thus institutionalized without reliance on nobles, unlike in England. We often associate the Parlement with hereditary and venal office and the new nobility of the “robe,” but this only developed later, after the period of war and crisis in the late 1300s.7¹ Originally, the Parlement had a bureaucratic character, as discussed in the final section, which reflected noble distance from the institution, whilst English nobles were increasingly engaged.

3.1.1.4 Compellence or Weakness? Inferences about Power from Observed Attendance Patterns Noble attendance patterns don’t directly inform about power dynamics, however. Noble presence could result from royal compulsion or from noble demand. Conversely, noble marginaliza­tion could result from royal weakness or from royal design. Although the answer will be fully developed in Part II, some initial insight on this conundrum follows below.

First, the summons used language of compulsion. To the lords, the English king wrote, “We command and require you, as you love us and our honour”; to the bishops, “we command you, strictly enjoining you in the fidelity and love in which you are bound to us”; and to the represen­tatives of the shires (counties) and towns, “we strictly require you” to elect representatives “to have full and sufficient power for themselves and for the community... for doing what shall then be ordained according to the common counsel in the premises, so that the aforesaid business shall not remain unfinished in any way for defect of this power.”^{[357] [358]} This language was used throughout Europe. French kings also stated, “we require, order and command you... to delegate three or four good men... [with] full powers from you to agree, do and undertake all that shall be decided.”^[359] The formula was almost identical in Germany and similar in Ireland and elsewhere, having Roman law origins.^[360]

Older scholarship derived the obligatory character of the early sessions of Parliament from an observed unwillingness to attend or from limited re-election,^[361] but the evidence can be interpreted different ways.^[362] Nonetheless, frequent re-elections of representatives, which perhaps sug­gest greater willingness to attend Parliament, mostly occur from the early fourteenth century,⁷⁷ when Parliament was established: incentives increased as parliamentary decisions bounded those absent.⁷⁸ As for barons, as Stubbs noted, they too were “glad to escape the burden of attendance... to avoid the expenses by which their richer brethren maintained their high dignity.”^[363] It is only later that the “vassal’s duty to give counsel” was transmuted “into the vassal’s right to give counsel.”^[364] In any case, attendance rates do not offer independent evidence of prefer­ences, if royal power to compel is the question.

However, a second observation is that those summoned needed some excuse to obtain a pardon for non-attendance,^[365] as occurred with court jury duty.^[366] Exemptions seem rare, although enforcement varied widely and is hard to document for the early period.^[367] Moreover, elected knights guaranteed their attendance at Parliament by nominating other freehold­ers as surety (mainpernors).^[368] Attendance still suffered, as we saw, since threats of forfeiture were not always credible.^[369] Yet it was lower in France even in absolute terms, though “important nobles” were equally obligated to attend and had to be “hindered by legitimate impediment” in order to be excused.^[370] The same held in subnational parlements, like Brittany’s where absenteeism was less common,⁸⁷ and in the French Estates- General: representation by attorney required a valid reason, even a broken leg, but this had to be “known in the whole neighborhood.”⁸⁸

Finally, even restrictions on participation that appear to indicate royal suppression emerge differently on closer inspection. In France, prelates were marginalized only after the crown failed to reverse their irregular presence,⁸⁹ which undermined the institution.⁹⁰ The king was “aware of obstructing them from the government of their affairs,” but he “wanted in his Parlement men who could attend continuously without departing, and who were not preoccupied with other great occupations,” according to the edict of 1319.⁹¹ So he finally exempted prelates from the obligation to attend and turned to professionals instead. An act suggesting autocratic tendencies resulted from weakness faced with mounting opposition. Further evidence on royal compulsion will be presented next and in Part II, on taxation.

3.1.2 The Macro Level: Compellence at the Local Level and the Divergence of Common and Civil Law

The preceding evidence has suggested the differential capacity of the two crowns to engage nobles in government routine at the center and thus endow them with common interests; this capacity was critical for the institutional fusion I have argued was central to polity-level parliamentary emergence and consolidation. But the evidence examined, especially for France, is relatively weak. It receives additional support, however, from the pre-existing literature on probably the most important divergence in European premodern law: that between common and civil law. Historians have long ascribed this divergence to the English crown’s greater strength in establishing centralized adjudication: the micro­evidence in the previous section is thus supported by the macro­scholarship on “Legal Origins.”^[371] I discuss this next.

3.1.2.1 Legal Origins: A Natural Experiment and the Hidden Hand of Government Compellence The divergence between common and civil law in England and France with only a brief time lag is usually understood as the expression of deep-rooted differences in legal approach and phil­osophy. This prevalent view is expressed in Hayek.^[372] Weber likewise argued that English justices and lawyer guilds resisted foreign ideas.^[373] Ertman ascribed the legislative involvement of the Commons to strong local governance and to the lesser influence of Roman traditions. Common law was the “custom of the community, not... a body of (manmade) rules promulgated by the emperor or king for the public good.”^[374] Chapter 2, however, noted the strong legislative role of the crown. France, conversely, in many ways exemplified the organic growth of customary law, as historians have noted.^[375] Further, the two societies applied very similar legal mechanisms before the twelfth century for dispute adjudication, often emerging out of common traditions.⁹⁷ Their divergence is thus a much bigger puzzle.

Part of this variance can be examined through a natural experiment. The Pope abolished the judicial duel and ordeal for adjudicating guilt in Church proceedings at the Lateran Council of 1215, and reform swept through secular authorities. England acted in 1219 and France in 1258, but the two kingdoms diverged. England adopted the jury-based trial to adjudicate criminal cases; France adopted the canonist inquisition. Juries conscripted local men, whereas the inquisition applied Roman law concepts and relied on a judge directing an inquiry, collecting facts and secretly examining witnesses via increasing numbers of judicial officials and experts.⁹⁸

The French path differed in more ways, one of which is highlighted here. French rulers intervened in local justice by instituting the Parlement as a final court of appeal, which used Roman law to adjudicate between local customs. English kings, by contrast, just sidelined older local courts by extending new central courts that homogenized legal practice in part through the writ, a royal command. I show how all these variations depended on the greater powers of the English crown.

Jury vs. Inquest. Juries were a common European heritage of both the Anglo-Saxon and Frankish traditions.^[376] In France, juries established valid custom (enquete par turbe) until the 1600s.^[377] England did not turn to them due to isolation from Roman law, however.^[378] Justices applied Roman-inspired canon law in ecclesiastical courts.^[379] Even some of Magna Carta’s clauses “represented a choice among competing rules of law,” customary, canon, and Roman law.^[380] A broad menu for choice thus existed, often described as the European ius commune.^[381] Trial by witness, where the judge selected the most convincing testimony as in France, also “threatened to be a serious rival of trial by jury. ”^[382] But it was abandoned. Juries were adopted instead, though they imposed a tremendous burden on local communities, as discussed later.^[383] Why?

It could be that in 1219 not enough clerics with advanced education (magistri) were available to serve as judicial professionals. But magistri were already numerous by that time.^[384] They reached a third to a half of canons by 1230 in some studied regions^[385] and were increasingly present in administration by the 1250s,^[386] when canonist procedure was fully developed.^[387] It’s not as if French judges were highly specialized; little formal qualification was needed to practice law in France until the fif­teenth century and judges were not numerous.¹¹¹ Moreover, that the jury was established did not mean it could not get replaced if superior alterna­tives emerged later. Deeply rooted practices could be transformed by royal intervention, as when subinfeudation was prohibited in 1290. Another hypothesis is that maybe English lords accepted juries because they could manipulate them.^[388] This holds for the later period, when the nobility had organized collectively and was more unconstrained: by the fifteenth century, jury corruption consumed the Commons.^[389]

However, by 1219, the jury was already widely popular in England because it was employed in the possessory assize. As Maitland noted, the assize jury “was associated with the protection of the weak against the strong.” Moreover, what made its spread “possible was the subjection of the England of the Angevin time to a strong central government, the like of which was to be found in no other land.”^[390] As economists Glaeser and Shleifer also noted, the “generally accepted” view is that English rulers could restrict noble control of local justice, at least initially, making the jury possible.^[391] Keyto this was the removal of independent jurisdictional powers from noble elites.^[392] By contrast, in “France the royal power was obliged to struggle for supremacy against great feudatories.”^[393] In other words, English rulers adopted the jury because they could: the crown could mobilize society en masse and this served them well.^[394] But rulers also incentivized juries by allowing defendants to consent to them. As with much medieval consent, however, when it was not forthcoming, it was coerced: defendants refusing jury trial faced starvation or being crushed by heavy weights.^[395]

Writs and Parallel Courts vs. Roman Law and the Court of Appeal. Royal strength was also important for the way in which the two crowns inte­grated the judicial system and addressed variation in customary rules. The Parlement became a court of appeals from seigniorial or provincial courts, using Roman law to decide which customary rules had precedence rather than establishing independent law.¹²⁰ The “French Crown had to develop an appellate jurisdiction precisely because so much jurisdictional initiative remained intact at a local level.”¹²¹ It lacked exclusive jurisdic­tion over serious crimes (felonies) or over serious civil offenses (trespasses).¹²² Judicial business was mostly “being conducted in the courts of dukes, counts, viscounts, barons and seigneurs of all sorts.”^[396] The Parlement became more in demand by improving its efficiency.^[397] As the seventeenth-century jurist Charles Loyseau noted, it saved France from being “cantonized and dismembered as in Italy and Germany and maintained the kingdom as an entity.”^[398] But even this unity was weakened by the local parlements established over time.^[399]

In England, the crown already monopolized both capital and most routine land cases, which were heard in the royal courts and by royal commissions.^[400] The judicial system was homogenized by erecting parallel courts that sidelined local ones. These new royal institutions applied uniform procedure instead of Roman law: royal courts were increasingly accessed through royal writs, which were “royal com­mands, given by the chancellor, for the resolution of individual disputes.”^[401] Writs provided remedies for legal wrongs; otherwise “legal fictions” were used.^[402] There were about 50 set forms of writs by 1258, about 900 by the early 1300s, reaching 2,500 in the 1500s until their abolition in 1832.^[403]

These commands, however, implied a drastic intervention in local affairs. If lords did not render justice to their tenants, for instance, the writ of right allowed the sheriff to intervene.^[404] Barons failed to stop their loss of jurisdiction (by the writ prrecιpe) with clause 34 of Magna Carta. They were further challenged when itinerant royal courts conscripted local tenants for service; this prevented locals from serving as judges (“suitors”) in baronial courts and undercut baronial court revenues and patronage ties. “Suit of court became an issue of the first political importance”^{[405] [406]} in the 1200s, especially during the revolt of the 1250s

133 134

and 1260s. Yet suit of court declined. The remedies available through royal writ proved more efficient than existing custom, such that by the 1250s thousands of writs were removing cases from local courts.¹³⁵ Consequently, the county court lost jurisdiction over most cases by the end of the 1200s to the royal courts, as discussed below. Procedure harmonized substantive legal practice, but only because the crown could impose it throughout the polity, overcoming noble resistance.¹³⁶ Royal capacity is thus also reflected in the great divergence in legal systems, common law and civil law.

3.1.3 The Macro Level: Compellence at the Local Level and Territorial Anchoring

3.1.3.1 England: Territoriality or Unit Homogeneity? We have seen how, by compelling English nobles into service, the king inadvertently allevi­ated their collective action problem and ensured they were regularly present in a forum that he could also use for fiscal/political functions. This enabled functional layering and institutional fusion. The third con­dition for representative emergence identified in the Introduction remains crucial: how the centralized exchange of Parliament was territorially anchored throughout the polity, thus becoming an effective organ of governance. This is typically taken to depend on the “self­governing, self-taxing, participatory elite of England”^[407] that is well attested from the later period. But how did this elite come to be? Why are English actors taken to be “self-governing” and engaged in a “collaborative venture” with the crown, whilst their French counter­parts were “non-participatory?” For Ertman, the reason is that they were “[unencumbered by the legacies of dark age, neo-Roman state-building in general and opposition from old entrenched elites in particular”^[408] - coercion was thus less necessary, cooperation easier.

In this account, by contrast, these outcomes were due to coercion. As noted in Chapter 2, old Anglo-Saxon elites were indeed not entrenched, but only because the Normans wiped them out. This predominance allowed Normans to deploy the same state-building blocks as the French and others only much more effectively: itinerant officials. It was not the organs of local government that made England more territorial and participatory, but a penetration of the royal institutions described above into the localities so effectively that they sidelined local institutions, especially the county court.^[409] As part of this process, the crown also conscripted many subjects to staff the royal courts, as seen in the next section. Itinerant commissions were used across Europe but were more effective where rulers could penetrate outlying territories. In Germany, for instance, the emperor lacked such reach, as we will see in Chapter 10.^[410] The French also attempted to penetrate the localities but failed relatively, precisely because, as Ertman notes, magnates were more powerful.^[411] The baillis and senechaux were originally also itinerant colle­giate bodies sent from the center to dispense justice locally, modeled on Norman precedent, but they lagged in local integration.^[412]

English territorial governance thus did not flow from a spontaneous predilection for cooperation fostered by propitious structural conditions onto unpaid amateurs; the state compelled its subjects.^[413] Royal justice expanded by developing numerous offshoots of the king’s court (the curia regis) (Figure 3.1). These were either central courts, such as King’s Bench and Common Pleas,^[414] or itinerant commissions dispatched to the coun­ties as extensions of the central courts. These commissions exerted con­trol over county and other local courts, eventually sidelining them, generating deep conflict with the barons, as noted.^[415]

The most important English itineration was the general eyre of the king’s court, which visited counties to hear pleas of the crown as well as criminal cases and civil pleas with juries of twelve to twenty-four mem­bers. “This provision apparently imposed from above was seized upon hungrily from below, and the system developed with a rapidity that now seems startling.”^[416] It was an extraordinary event, every seven years,^[417] which engaged the entire county - almost two thousand could attend.^[418] Other itinerant commissions also handled judicial business. Commissions of assize dealt with the possessory actions, such as novel disseisin, that allowed even lowly free tenants to protect their rights against their lords; they were so successful they could reach two to three thousand per year in the 1270s^[419] and lasted until 1971. Gaol delivery, oyer et terminer, and trailbaston dealt with crimes.^[420] Nobles sat on criminal commissions and supervised commissions of assize staffed by gentry.¹⁵¹

Commissions conscripted juries to obligatory service unless a legitimate excuse (essoin) could be presented, as with Parliament. The level of monitoring was astounding. Permissible excuses cover seventy printed pages of the standard edition of the thirteenth-century text of Bracton. Investigations determined whether the petitioner had “fallen into an accident willingly, when he would easily have avoided it.”¹⁵²

Figure 3.1 Judicial structure of medieval England

Note'. Some local courts, e.g. of some hundreds, were under royal jurisdiction. This is not a complete list.

Penalties ranged from physical restraint (chains and imprisonment) to excommunication and distraint (the removal of goods or land until the subject complied). Eventually, fines were the chief mechanism of enforcement.^[421] Penalties were predicated on royal power, especially the sheriff, a royal appointee serving “at the king’s pleasure.”^[422]

In the next section we will see the remarkable level of conscription that juries involved. They performed broad judicial roles: in both criminal and civil cases, they asserted facts relating to the case, substituting not just for witnesses but also for the investigating officials that assisted French judges and delivered verdicts, under unanimity rule mostly (jury of trial and assize);^[423] in criminal cases, they also presented persons suspected of crimes (jury of accusation), facing penalties if they did not or did so falsely.^[424] Juries, which proliferated as Parliament grew, therefore implied far more extensive service than the older “suit of court” performed at local courts.^[425] Suitors had served usually twice a year and assisted the judge in judging, mostly using majority rule.^[426] They also bore collective respon­sibility for any “false judgment,” which was punishable by fine, making service a burden.^[427]

Obligation to serve in England did not end with suit of court and jury duty, moreover. Landholders were also charged with appointments to perform tasks both for local governance and royal service, at their own expense. This was “self-government at the King’s command.”^[428] The list of tasks, flowing mostly from land tenure, was astonishing. Subjects investigated land rights and obligations, they measured and valued land, agricultural equipment, crops, and movables. They protected the royal forest and the king’s hunting, purchased ships for him, conveyed provi­sions and equipment required for his travels (especially wine), and built and repaired his houses and castles, bridges, and roads.^[429] Instead of paying for an extensive bureaucracy, the English crown compelled its subjects. As a result, by “the fourteenth century, the tradition that all work at the local level should be done at no cost to the king by the propertied men living in the counties and boroughs was firmly established.”¹⁶²

Such service was not unique to England; it was found throughout Europe, from France^[430] to Russia, as we will see. As Russian historian Valerie Kivelson noted regarding judicial service, “With minor alter­ations, [such] lists would describe local participation in Muscovite legal- administrative affairs.”^[431] Judicial service was prevalent throughout the premodern world - local courts could not operate without community participation.^[432] In fact, echoing Susan Reynolds’ thesis on parallels between communities across Europe,^[433] many or even most regime­building blocks observed in England were common across cases as diverse as France, Russia, Germany, Hungary, and Spain among others: service was pervasive, land was an overriding concern, the ruler served as judge, county courts elected officials or representatives, accountability was insti­tutionalized, and similar legal procedures were available not least through diffusion.^[434]

England differed, first, in applying these obligations more effectively throughout the polity (as tax extraction data will also suggest). Judicial institutions were not “feudalized,”^[435] that is, appropriated by local lords as in Germany, France, and elsewhere,^[436] at least in the period of parliamentary emergence. Second, in England these obligations were systematically aggregated across all thirty-seven counties at the center, through Parliament. What appears as “territoriality” is the effect of homogeneous governance harnessed at the center, especially of the integration of county courts into parliamentary procedure. Perhaps the quintessential “organ of local governance,” the county court remained critical to local life, despite the royal commissions eroding much of its jurisdiction. It bound all grades of landholders and imposed originally an onerous duty, meeting every twenty­eight days.^[437] It has been described both as a “microcosm” of county society and as “a local parliament.”¹⁷¹ It incorporated the lay and ecclesiastical nobility, the shire knights and borough representatives, though not all attended. It executed laws, raised juries and troops, and assessed and collected taxes. It is also where royal laws and decisions were proclaimed, where information was shared to shape public opinion, and where petitions were often drafted to be presented in Parliament.^[438]

The county court is likewise where representatives to Parliament and other officials were elected.^[439] Just as for juries, the king directed the sheriff to organize elections in the county court through an assembly of knights and “honest men.”^[440] The “institution of electing representative knights for local purposes was [thus] in active operation for nearly eighty years before such representatives were summoned to parliament.”^[441] Here again, similar patterns occurred throughout Europe.^[442] In France, Castile, Hungary, Poland, even Russia, local assemblies were also instru­mental for representative practice, as we will see. England integrated these practices better at the center.

Did this mean greater participation in elections? The only available estimate comes from after the franchise was restricted through the Act of 1430 to those with an income over 40 shillings, positing about 15,000 freeholders (3 percent of adult males). But this responded to a Commons petition which complained of “excessive numbers of people” voting, “the majority [of whom had] little or no means.”^[443] No estimate of those numbers exist. Yet, in theory, all landowners, aristocratic and gentry, should have been eligible to participate before the Act, as well as the free substantial tenants and yardlanders, and some part of the urban professionals. A “hypothetical” estimate has been offered by Bruce Campbell for these groups in 1290.^[444] Counties possibly comprised about 22,000 landowners, and 80,000 free substan­tial tenants and yardlanders,^{[445] [446]} who could conceivably be eligible to vote. Both groups amount to at least 9 percent of adult males, com­pared to about 12 percent eligible before the First Reform Act of 183 2.¹8⁰ But some part of the 137,000 urban professionals must also have been eligible, so the total could have exceeded that (without probably reaching the 18 percent eligible after 1832). This highlights the precocity of the early period and the “backsliding” that later occurred in constitutional practices, though, surely, as today, only a fraction would get to participate in elections.^[447]

Finally, England appeared as more “territorial” compared to the non- participatory mode of Continental Europe because, unlike in most of the latter, the rural countryside had independent representation, through the county court. In France and Castile, as Chapter 5 explains, the country­side was under noble control, so only towns represented the third estate. To the degree that Hungary and Poland also originally had independent county representation, their representative character was initially more robust, and other cases vary in the same way. English administrative units were more homogeneously and effectively centralized due to strong royal powers - territorial anchoring and local participation followed as a result.

3.1.3.2 Estimating the Size of the English and French Judicial Apparatus The next step in demonstrating the English crown’s greater capacity to shape the judicial structure of the realm - and thus to foster the territorial anchoring I have claimed was central to parliamentary consoli­dation - consists in tentatively quantifying the extent of popular mobil­ization throughout the English countryside, especially the counties.

The assumed small size of the royal English bureaucracy is usually contrasted to the large number of French officials. The 40 judges serving medieval Languedoc alone contrast with the 20 to 25 judges serving all English courts in an area almost four times bigger.^[448] One paid officier existed for every 380 French people in the 1600s, but only one justice of the peace for every 1,639 English people.^[449] Moreover, the English royal bureaucracy, which included sheriffs, escheators, keepers, coroners, and collectors of taxes at the county level, was small, though constables, bailiffs, and customs collectors for instance were more numerous.^[450]

However, as Harold Berman notes, the reason twenty justices sufficed in England is because they relied on local jurors to obtain information, a task that in France was delegated to paid officials facing robust private jurisdictions.^[451] Focusing on official judges ignores the functions covered above: the judicial obligations of all free subjects. These extended beyond serving as witnesses: though jurors were not strictly officials, they per­formed part of state judicial business.^[452] In England, instead of “an appropriation of public power by the private lord, the private lord had been appropriated as an agent by the public power.”^[453]

French numbers can be approximated through the Gallia Regia, a list of royal officials from 1328 to 1515.^[454] Out of about 5,600 records on officials active between 1328 and 1399, 2,300 are judicial officials: 1,039 judges or prosecutors are recorded^[455] and 1,284 baillis, senechaux, prevots and their lieutenants, who, like the English sheriff, had supervisory duties over justice. Since the focus here is on royal justice, these numbers don’t include the large numbers employed in local, customary courts.

No historical estimates exist of total numbers of English jurors nor did statutory rules exist; service was set by custom. Until a representative sample of counties is studied, baseline estimates can only be offered that underestimate totals. Juries were drawn “from the ranks of free men who owned property.”^[456] They consisted typically of 12 members (though occasionally this could rise to 18, 24, even 80) and were called for civil cases mostly related to property (juries of assize) or criminal ones, either presenting accusations or delivering a verdict (jury of presentment or of trial). An estimate exists only for juries of assize: surviving records from the 1270s suggest maybe between 8,000 and 24,000 jurors were called annually.^[457] It is unclear how many times jurors were called for other judicial events, like the large general eyres that were held in each county every seven years, or how often commissions for criminal and other cases were called. We know, however, that at the hundred level jurors were called about every three weeks (with regional variation) and that the sheriff’s tourn was also held at least once per year (later more often); 270 hundreds were under royal jurisdiction.^[458] With some conservative assumptions, we can posit at least a minimum of jurors serving across the royal hundred courts, sheriff’s tourn, and assizes alone (and excluding the general eyre and multiple other commissions): between 50,000 and 66,000 jurors.^[459] The total number of those nominally liable for jury duty might exceed 200,000.^[460]

These numbers simply establish magnitudes and should not be con­fused with historical estimates of total jurors in England; they also don’t capture the complexities involved, e.g. that some jurors were called to serve repeatedly, though compliance was high until the early 1300s.^[461] Even these partial estimates, however, suggest that around 1270 more than 1.5 percent of English subjects might be at some point dispensing unpaid judicial functions entrusted to paid royal professionals in France.^[462] This is 150 times more than the percentage of judicial officials suggested by the Gallia (0.01 percent of the population). Laypeople were of course also involved in court proceedings in France in supportive roles, as many were in England, but they did not dispense justice.^[463]

3.1.3.3 AmateurEnglish OfficialsandPaidFrenchBureaucrats Officials in France thus had duties often dispensed by “unpaid amateurs” in England.^[464] But even official members of the English royal bureaucracy were often unpaid. For some scholars, this is just another symptom of the crown’s weakness in the thirteenth century.^[465] According to the historian Fryde, “only landowners of independent means could find the office [of sheriff] worth holding because of the temporary power and prestige it conferred.”^[466]

But such service was an obligation like jury duty that could only be excused for a reason. “Like other medieval offices the person nomin­ated [for sheriff] was and is compelled to serve, and to serve without payment.”²⁰¹ The reason why only “landowners of independent means” would take on the position is because already from the mid­twelfth century the sheriff’s office “could set a man on the road to ruin,” precisely due to the obligations it entailed.²⁰² The same applied to other commissioned officers. Financial burdens led to under-performance and corruption,^[467] but corruption was no less with paid officials in France, especially after offices became hereditary.^[468] Office independence was curtailed by the crown, which prevented the sheriff’s office from becoming either hereditary or locally elected and thus subject to local pressures throughout the period of parliamentary emergence.^[469]

Not all English service was unpaid, moreover. From the 1250s, justices in the central royal courts were paid a regular salary by the crown,^[470] initially supplemented by fees from court procedures. Some English offices were also sold as freeholds, as in France. Nonetheless, the most powerful officials, the justices themselves, served at the pleas­ure of the crown and “for good behavior.”^[471] As with the nobility in general, the crown intervened most forcefully at the top echelons in the hierarchy. When Edward I faced popular complaints, he removed two out of three judges from the King’s Bench and four out of five from Common Pleas, fining them heavily for crimes as serious as murder and fraud. Although such a purge remained extraordinary, royal control was strong, despite English justices having higher status than their French counterparts.^[472]

The French system, by contrast, is considered exemplary of patrimo- nialism, where administrative office becomes private, inheritable property that can be sold.^[473] However, originally the opposite held: judicial offi­cials were either appointed by the crown in a bureaucratic manner, eventually from candidates proposed by other members of the Parlement, or elected by their peers. Offices became informally hereditary and alienable only gradually, under Francis I (1515-47),^[474] due to ruler weakness. Only “after several abortive attempts at abolishing [office inheritance] the royal treasury began to share in the deal, from 1567 on, by receiving a fixed fee from the successor,” a practice systematized later with the paulette.^[475] Ironically, purchase of office lasted longer in England because of the “veneration of inherited rights”; commissions on merit were not installed until 1871, 200 years after France.²¹² The early con­trast of patrimonial England and bureaucratic France again reverses common assumptions.

*

This chapter first offered evidence of the superior power of the English crown to compel the nobility to regular judicial service - a systematic obligation that solved the nobility’s collective action problem and endowed it with incentives to co-opt parliamentary procedures handling the rise in petition-making. This helped explain why the English Parliament fused judicial and fiscal functions whilst the French Parlement did not. French weakness meant the Paris institution was dominated by administrators, making it less relevant for tax-raising pur­poses. The long-standing literature on Legal Origins corroborated the claim of English royal capacity, as did the evidence on the remarkable mobilization of English subjects for compulsory service that in France was carried out by salaried officials. English “amateurs” had little choice but to serve. This further explained how a central institution became anchored into local governance, eliciting the labels “territorial” and “par­ticipatory” so common in the literature.

All this, however, aimed to buttress an account of institutional emer­gence, which is predicated on noble presence and ruler capacity; it does not explain how broad-based participation in parliament was achieved. In Part II, I explain how institutional emergence interacted with the growth of representative practice and taxation, both flowing from greater royal infrastructural power.