The Compellence Model OfRepresentation and its Historical Foundations: Obligation before Right

Although the nobility originally claimed to represent the community as a whole, nobles received personal summonses, whilst representation applied to community members, whether urban or rural.

Representation thus imposed an obligation that resembled jury duty, which typically flowed from land held from a lord or the king. It had procedural ties to law courts, as Chapter 3 also showed: parliamentary representatives were chosen through the same process as jurors in county courts and borough assemblies.^[486] The county and borough were sum­moned by the sheriff through a single writ issued by the king, which is probably why they were linked by historians long before they sat together in Parliament as the Commons.¹³ Instead of bargaining, popular repre­sentation is thus better explained historically through a “compellence” model: the state compelled social actors to attend Parliament and the institution thrived only where this compellence succeeded. Today we take the obligation that follows from any agreement struck by our repre­sentatives for granted. Yet it is that dimension that was most precarious in the early stages of state formation.

But England was again no pioneer: plenipotentiary powers appeared earlier in Italy and Spain and spread widely, in France included.^[487] The practice is first recorded within the Church, allowing high-ranking clerics to avoid attending papal or local synods, which were costly and risky.^[488] Canonist thought was instrumental for their articulation into elaborate principles of practice.^[489] Proctorial representation is attested in royal meetings in England by the 1220s.^[490]7 It was first extended to royal bor­ough representatives in 1268^[491] - crucially, boroughs had lower status and greater dependence on the crown than knights, as we will see. After 1295, proctorial powers were a stereotypical request of English parliamentary summons for both counties and boroughs.^[492]

Non-compliance plagued the French kings, who faced recalcitrant social groups that insisted on the imperative mandate: when Philip the Fair was collecting taxes for the war in Flanders in 1309, the representa­tives were unauthorized to commit their communities, so they needed to consult back.^[493] This was a frequent pattern in Spanish cities as well.²¹ As the thirteenth-century French jurist Philippe de Beaumanoir stated, “no power of attorney is worth anything, unless he who grants this power does pledge himself to uphold firmly and stably whatever shall be decided or said by his attorney.”²²

Plenipotentiary powers tried to address a key problem, therefore. Although scholars focus on setting limits to political authority, this assumes that authority is established and effective. The real problem in early state-building, however, as in the developing world today, was free­riding. Rulers had business to complete, but not everyone wished to contribute, so rulers had to compel dispersed subjects to do so - even for wars that were not “national” but defending royal patrimony.

Representation addressed the problem of free-riding through the bind­ing and compelling character of consent. To understand consent in the medieval period, however, we need to suspend the prism of rights through which the literature conceives it both in social science and political theory.

The dynamic resembles more a case with multiple co-owners of a property (though medieval subjects were far from on an equal footing). Even co-owners faced with a mandatory expense (let alone subjects of a lord) often prefer to avoid it. The consent of all would be sought in this situation not because consent could be legitimately refused;^[494] the expense is part of the property obligations. Rather, any co-owner who withheld consent would be assumed to be withholding payment. This can typically stall the expense, as the other owners would fear being burdened dispro­portionately. Even where obligation is clear, enforcing it may be cumber­some. Once consent is given, however, meeting the expense without coercion is more likely. Everyone thus would be equally incentivized to secure the consent of all.^[495] Those withholding consent would, by con­trast, be deemed recalcitrant.

Unsurprisingly, not appearing at the English king’s court was the mark of a rebel from the eleventh century.^[496] It was also “something of a triumph” for the weaker French king to persuade the urban deputies “to come with full powers” to the Estates in the fifteenth century.^[497] Few “rights” are involved in this context, at least originally. Demands for rights become consequential once individuals have complied with the request. It is compliance, the acceptance of the burden, that creates some entitlement. Sending representatives was “at first [a] misfortune and later [a] right.”²⁷ And compliance depended on the differential capacity of leaders to enforce it.

Another classic maxim can be reassessed in this light, the quod omnes tangit (QOT): what touches all must be approved by all.²⁸ QOT was a mainstay of medieval constitutionalism, but it seems little emphasized that the invocations of this “right” were in commands of higher-ups, kings or higher prelates, not subordinates standing their ground. Some scholars simply assume that the latter is the case: one account affirms “the right of the archdeacons to be consulted before the higher prelates of England could grant a subsidy to the king,” whilst referencing the renowned medievalist Gaines Post, but in Post it is the bishops who invoked the principle in refusing the subsidy before involving the archdeacons, who alone could confirm the value of the benefices to be taxed.^[498]

The maxim enhanced the ruler’s claim to make everyone liable, thus boosting compliance when royal powers were strong.^[499] It is not as if the English Commons could, at least initially, actually refuse taxation to the crown when it invoked necessity - although “weapons of the weak” were always employed.^[500] Only barons could reject demands and they only did so when royal policy was generally unreasonable.^[501] Further, those who were not present to give consent were not exempt from the obligation.^[502] Where delegates invoked QOT as a right of resistance, as in Germany in the late sixteenth century, representative institutions faltered.^[503] Non­compliance was greater in cases where such binding mechanisms failed, as in France or Castile.

So, although the term “consent” is widely used in both historical and social scientific works, it differs critically from its modern understanding.^[504] The Commons did not even acquire the right to agree to taxation until the statute of 1340, by which time Parliament was well entrenched, and they still deferred to the Lords and the crown on questions of war after that: in 1348 they declared themselves “too ignorant and stupid” to offer views on the French war.^[505] Further, actual “redress before supply” does not occur in England before the seventeenth century; that is why medieval historians generally talk about “redress against supply” and why the redress of the same grievances kept being asked decade after decade.^[506]

That consent implies obligation is also seen in the elective principle that underlies representation.

Some historians, however, also questioned the obligatory character of representation, deriving it instead from bargaining around taxation.^[509] The debate raged for decades, as some evidence was ambivalent, but mostly because arguments about obligation were championed by conservative scholars, despite the original case being made by the staunch liberal, Frederic Maitland.^[510] The alternative bargaining, voluntarist view is the residue of a Whig, somewhat anachronistic perspective on English consti­tutional development.^[511] As argued already, the obligatory character of representation is attested by enforcement devices such as penalties and royal pardons. By the early 1400s, representation was indeed a coveted right, so laws even prevented non-residents from getting elected, as mag­nates co-opted seats by promoting their followers.^[512] This reflects the paradoxical contrast between conditions of emergence and maturity.

4.2