Roots of constitutional government

Elsewhere I have two posts on this topic (part I, part II) taking a look at where the US Constitution gets some of its roots.  Those roots are much further back than just the Enlightenment Era and the post-Westphalian conception of how a State is to be run so as to allow individual liberty of religious freedom.  That in and of itself is a great advance in that the State as conceived in the post-Westphalian West is something that while it can have a general religious direction, it is not seen as a benefit to promulgate worship at a religion directed by the State.  With that said, post-1648 thought is built on preceding lines of thought and the direction Continental Europe would take between the slow retreat of the Western Roman Empire (ca. 500AD) and the 30 Years War is not the main thread that was followed by the old Roman Province of Britannia.

If the swapping of Roman rule for local rule happened anywhere the fastest it was at the outskirts of the Empire, which was Britannia in the North and up to the Rhine river and Germanic peoples to the North East.  The Germanic peoples and their close Scandinavian cousins (excepting the Laplanders in Finland who have a language closer to the Bosque in Spain) had territory under their domain that stretched as far as the Upper Volga river, as far south as the Danube, and then westward towards what we would call Switzerland and then north up to Denmark and Norway.  The retreat of Roman rule meant territory going back to local concerns and smaller tribes in this larger cohort of Germanic and Viking populations could then see such territory as ripe for plunder or trade.  The Roman Catholic Church tended to represent concentrations of local wealth when the Empire receded and those outposts became focal points for raiding due to the accumulated wealth.  Two peoples of what we would call Denmark, the Angles and the Saxons, saw the East of Britannia as being similar to their lands in climate and far larger for spreading out in expanse.  By the investing of local populations in moving to these new lands (as Vikings were doing in the area of Northumbria and York) permanent settlements of a new type and legal view got planted in that territory.

These Anglo-Saxons retained a Viking system of authority in government which rested not upon a King to make law, but a King to govern the law and be a part of the body of the governed.  Unlike Kings in Continental Europe, the Kings of Viking peoples were held accountable to the Thing, which is a once to twice annual gathering of local Law Givers to administer justice, settle disputes and then receive local problems to be taken up to the next realm of government at what we would call a 'county' level.  These ill-defined regions tended to have local governors that were Jarls or Earls, and amongst their gatherings of Law Givers one or two would go to the largest assembly of the Thing that would then present multi-county problems to the King and also tell of how the law was being administered.  Law was not so much handed down by the King as settled upon by this group and the King, and then it had to be administered at the more local levels which had representation at the highest level via the Law Givers.  As a later Swedish King would put it: No King is above the law.

The Anglo-Saxon tradition of local law administration also had a relatively unique piece to it that is one that we would recognize today.  Trials, as such, had a law giver but the actual judgment of guilt or innocence was performed by peers with no interest in the dispute.  Thus law was judged by a jury and administered by a Law Giver and to be convicted one had to be convicted by a jury of his peers.  This system of law had proven to be durable over time and allowed for local management of affairs in a diverse Kingdom and was also one that scaled well downwards until there was only one local governing area or shire, and upwards until it encompassed many disparate geographic regions (as under King Canute).

One major record for this consolidation of what would become Angla-Land in old Britannia, was The Anglo-Saxon Chronicle (seen textually at the Online Medieval and Classical Library), sponsored by King Alfred the Great of Wessex.  It is of note that between ca. 500 AD and the rule of Alfred (871-899 AD) that the Anglo-Saxons now differentiated themselves as a different peoples from the Vikings and the Germanic peoples.  Linguistically and genetically they do source from those peoples, but through a process of inter-marriage with local tribes that survived and amalgamation with those tribes via the extensible shire and borough system (a burr or burg or borough being a small unit within a town that self-governs) the Anglalanders now had a National perspective.  King Alfred cemented this by commissioning The Anglo-Saxon Chronicle which would be kept in the common tongue (not in Latin) which would do two things: confirm that government was to be understood widely amongst the governed, and, more importantly, solidify what would become the English language in use and spelling.

National identity via commonly held government that is administered locally and having even the highest reaches of the government under the power of the law are all important and vital concepts in the formulation of constitutional government.  While constitutional government can often be 'in name only' and a sham used by a ruling organization that puts itself above the law, it contains the germinal seed of governing that goes quite beyond those who abuse it and remains as a reference point for the ideal that government is, indeed, something that is done in accordance to the people and in a way the people of a Nation understand.

With the expansion of English rule over the older Kingdoms such as Sussex, Kent and Mercia, and the absorbing of Viking groups in the regions of Northumbria and York, then into Scotland, the new system of government served at once to break down larger territorial blocks (into shires and newly placed fortified towns with boroughs) and yet retain Earls who would oversee these more local territories that used to be Kingdoms in their own right.  That would place tension within the English system all the way to Ethelred II, and would even see Kingdoms temporarily resurrected when one Earl or another would gain enough power to try and upset the current ruling order.

Even though this stuff gets written down, it is merely agreements that are renewed by Kings with their Earls who are locally powerful aristocrats but are accountable to local law.  The written form of constitution had not been put fully in place, save as these agreements, so that when Alfred agrees to have taxation that is only amenable to his Earls, he forms a limit to the power of the King (that is the State) in that realm.  Taxation, from that, must be something that is amenable to the representative aristocracy for a given region and, what would follow to the displeasure or some Kings, would that for there to be such taxation there must be representation.  The Monarch would have some areas of taxation left solely to the State under his control, such as admiralty taxes and port taxes, meant for use and maintenance of ports, protection of them and even raising a navy.  Over time and abuse those would also move into the purely representative realm as the precedent had been established early on under Alfred.

In our Constitution it is interesting that the Supreme Court with the case of US v Wiltberger (1820) (which I looked at in the context for piracy) establishes that the extent of reach for US maritime law via the admiralty goes to a time prior to King Richard II and (if memory serves) goes back to King William.  William of Hastings comes in at a point where there is strife between Ethelred II and his Earls, due to changes in taxation, raising of troops and other actions being taken that were seen as not holding to the agreements between the Earls and the King since Alfred.  Ethelred II had the unfortunate problem of being on the throne when one of the strongest Viking Kings, King Sweyn of Denmark, had set his sights on Angla-Land as the best place to expand Viking rule.  King Sweyn went far beyond prior Viking raiders of the prior two to three centuries, and actually established military encampments and localized rule in surrounding areas.  At the Battle of Maldon a diverse Kingdom under Ethelred II was represented to try and halt the expansion of King Sweyn's Vikings.  For all the glory and songs about Maldon, Ethelred II lost the battle and was on the way to losing his Kingdom unless he could come to some agreement with his Earls. King Sweyn took the day in 1013, the Kingdom and early in 1014 he died. That defeat and subsequent retreat to the Isle of Wight, meant that Ethelred II had to send his son Edward as part of the agreement to pull in his tax policies and otherwise moderate his imposition on the Earls.  Edward was, in other words, hostage to the agreement of 1014:

A.D. 1014. This year King Sweyne ended his days at Candlemas, the third day before the nones of February; and the same year Elfwy, Bishop of York, was consecrated in London, on the festival of St. Juliana. The fleet all chose Knute for king; whereupon advised all the counsellors of England, clergy and laity, that they should send after King Ethelred; saying, that no sovereign was dearer to them than their natural lord, if he would govern them better than he did before. Then sent the king hither his son Edward, with his messengers; who had orders to greet all his people, saying that he would be their faithful lord -- would better each of those things that they disliked -- and that each of the things should be forgiven which had been either done or said against him; provided they all unanimously, without treachery, turned to him. Then was full friendship established, in word and in deed and in compact, on either side. And every Danish king they proclaimed an outlaw for ever from England. Then came King Ethelred home, in Lent, to his own people; and he was gladly received by them all. Meanwhile, after the death of Sweyne, sat Knute with his army in Gainsborough until Easter; and it was agreed between him and the people of Lindsey, that they should supply him with horses, and afterwards go out all together and plunder. But King Ethelred with his full force came to Lindsey before they were ready; and they plundered and burned, and slew all the men that they could reach. Knute, the son of Sweyne, went out with his fleet (so were the wretched people deluded by him), and proceeded southward until he came to Sandwich. There he landed the hostages that were given to his father, and cut off their hands and ears and their noses. Besides all these evils, the king ordered a tribute to the army that lay at Greenwich, of 21,000 pounds. This year, on the eve of St. Michael's day, came the great sea-flood, which spread wide over this land, and ran so far up as it never did before, overwhelming many towns, and an innumerable multitude of people.

This would not be the first time nor the last time that the Earls would hold the King to account to them, and the Earls would also demonstrate that while a powerful Earl could reign in the King, other Earls would not necessarily let that Earl then drag the Nation into a civil war.

King Sweyn was capable, competent and ready to make local agreements to start chipping away at England.  King Canute, however, would go for everything and, in 1016, actually do that.  Even with the replacement of so many English Earls with Danish Jarls, often with the expediency of killing of aristocrats and nobles, King Canute would then do something upon ascending the throne in England and agree to the prior compacts between the King and the Earls.  Yes he did garner a lot of booty and outright cash from this, but he put a guarantee on the continuity of government which, with a number of his own people in place, would assure a relative calm for England.  Canute had the great fortune to do all of that before he was 20.  He would also hold Norway, Denmark, Brittany and almost every other Viking land and become the last King of the Vikings.  In doing that he sought to allow local law prevail in each place as a uniform code of laws was unsuited to such vast and disparate holdings by any Monarch.

So, why would King Canute agree to have limits on the power he could exert over taxation, raising of men at arms and such?

The answer is simple and it is what drew his father, King Sweyn, to England: it is rich.

All of that raiding, tribute, and the rest of it had a point and that point was that the internal trade system of England afforded a prosperous economy.  From the time of Vikings holding York at least until Alfred if not after, York was the second largest trading city in Europe and it was situated in what was England.  That put it right after Constantinople in trade wealth.  Trade wealth, however, is transactional in nature not put into monuments or into vast storehouses of gold, but moving from hand to hand in exchange for goods and services.  Taxation on such wealth can garner large amounts of funds for a State but that also puts the very trade, itself, at the peril of over-taxation.  If Vikings understood one thing, it was that while local people must trade, the place of trade could move and today's central trading spot could become a ghost-town if over-taxed.  Thus keeping in the traditional agreements, traditional tax rates and traditional restrictions on the power of the King was agreeable to Canute due to the wealth it assured via continuity of trade.

Prior to William the Conqueror the system of England is one that, while largely not adhering to the written law standards of Roman law, is something comprehensible to the modern reader.  In fact we begin to see the outlines of a number of vital features embodied in the US Constitution showing up as common practice agreements in England.

- Representative government and holding the governors accountable to the law.  If there is any feature of US law it is that those administering law are held accountable to the same law and the same standards of it.  That is a strongly egalitarian principle that seems to evade many other revolutions that claim to be about egalitarianism and yet put a ruling class that is unaccountable to the law into a governing role.

- Trial by jury is ancient in the Anglo-Saxon lineage and pre-dates the migration of the Angles and Saxons to Britannia.

- Limited State power via a representative class in the governing role is a form of republicanism.  Not called republican by name, but the essence of breaking down the power structure of a Nation State into separate realms of power to a judiciary, legislative and executive is, inherently, republican in nature.  While the roles of these areas were malleable and remain malleable, that they are present and distinct is easy to discern with the earliest of written agreements between King and Earls.

- Another vital concept showing up is federalism, although not named as such, the ability of local government to hold the next higher form accountable to it is one that is clearly demonstrated by Ethelred II.  In fact the power to raise armies is directly related to the agreement of those local parts of government to agree to their part of the agreement between King and Earls.  That is not a conflict between the Earls as legislative group (moderating taxes) but in a direct power relation in support of the Nation State from the sub-National level.  That and having local law givers and juries figure out if they like higher level law then puts a distinctly federal cast into a republican system, yet neither is named as such as this is just common practice of government.

These are powerful and potent concepts that the Framers of the US Constitution could rely on because they had been time-tested by 1787 having been in practice for over 600 years by then in England.  Far from being new, these were old ideas that were put into a constitutional and written framework which at once both regularizes and solidifies the practices.

What followed King Canute is the son of King  Ethelred II, King Edward the Confessor.  With the return of Edward came rising conflict between him and Godwin, Earl of Wessex, which would put England into turmoil but not open civil war.  In a matter of months the Earls would hold the King to account for the conflict between the two of them, and yet, when Godwin gets the upper hand, the Earls would then side with the King to put Godwin in check.  The idea was to keep a continuity of peace within England and to put the Earls in the position of being able to veto the strongest amongst them and the King as well.  These conflicts left the Kingdom weakened internally, even after the death of Godwin, with problems between the sons of Godwin with the earl of Mercia (which had been a Kingdom prior to its absorption into England).  Harold would have to deal with not just Tostig (Godwin's son in Northumbria), but in the year after his father's death in 1066 the agreement he had with William in Brittany and a Viking incursion near York.

Of these things only dealing with William at Hastings would prove to be too much and some of that brought on by a prior agreement with William after Harold had been shipwrecked traveling between Brittany and England.  The agreement to have William in power after the death of Edward the Confessor put into motion what would be known as the Norman Conquest under King William.

King William attempted to put a ducal system of nobility on top of the Earl/shire system that was then currently in place in England and even utilized the past agreements system to attempt a reconciliation amongst the Earls.  Although a few Earls did sign on to backing William, many did not and they found themselves chased down, executed or went into self-exile and lost power.  The Harrowing of Northumbria would be one of the worst parts of this and it would lead to a devastated region in England that would be later recorded in the Domesday book commissioned by William.  This is one of the great books that accounts for all property in England down to the last horse, cow and pig and is done so that King William can get an idea of just what sort of tax base he is dealing with.

By force of arms the Earldoms went down and the ducal system established military strongpoints under Dukes from William's extended family in Brittany.  With the ducal system also comes a different system of law enforcement, that being the position of sheriff who is also the tax collector for a given area under a Duke.  Along with these new systems would come the concept of the King's Land which would have different laws over it than the rest of the lands of England.  The King's Land laws would expand under William's son, William Rufus, so that even scaring a deer in the Royal Forest had a relatively nasty punishment attached to it.  During the reign of King William II the amount of land held in the King's name went up to 25% of all the land in England.

Under William II there would also be strife between the Church and the King as the King had the power to appoint Bishops and Arch-Bishops and when he decided not to fill a position, then the land and wealth fell into the hands of the King.  This was not the only concern of the Church as William II also kept close company with a male friend, produced no heirs and for all his martial skill appeared to be homosexual.

Thus amongst the common people and even yeoman class, there were problems with William II that started with the changes to the tax system via sheriffs and the encroachment of the King's Land via the Forestry Laws that were making life difficult for many.  Amongst the aristocrats and lesser nobility, the taste of what William I had done coupled with the evident land grab of William II put them ill at ease and an uncertain succession was in no one's interest.  And the Church had problems both on spiritual and practical grounds.  These were all problems which, no matter how well run other affairs of State were run, pointed to near-term problems that were not being addressed and some few were being made worse.  The death of William Rufus during a hunting accident left only his brother, Henry son of William I, as the closest claimant to the throne, although other cousins in Europe could also lay claim via kinship to William I and his wife.

If you were Henry faced with this, what would you do?

Would you continue the path of William II, your brother who had his problems put on display and was gaining ire amongst many classes in the populace?  This was the European path and it wasn't working that well in England.  Yet a stern and capable new King might just be able to solidify those gains and try to change the centuries old culture of England in two generations.

Would you try to put a cap on things and let an able relative take the throne (and the blame) for the turmoil that was coming and try to stand aside to save your own skin and, perhaps, offer a return to things only a bit less bad than they were under your brother's reign?

Would you take to the throne, and abase yourself before the Church (thereby crippling the treasury, or what was left of it at any rate) and then try to persuade it to be your interlocutor with the people?

Would you try to pull a Canute, re-affirm the power base amongst the nobles, withdraw much of the Forestry Law and coverage, assert the traditional role of the Church and undo what could be undone of the tax system your father put in place?

The time to act on any of these was short as even a relatively good sized war meant that the closest relative with a claim would be no less than a month away (with good travel) and no more than 6 months away (with major problems).  What Henry did was not only pull a Canute, but actually print up copies of what he was going to do and sent those to be read out in every town and village in England.  This would become The Charter of Liberties of Henry I and it would not only repeal many laws and tax systems, but also ensure the rights of the minor nobles and aristocracy for inheritance.  By re-establishing the seignorage on coin minting (if you brought in an ounce of gold you typically had to pay a certain part for the minting, or the King took that up as part of the cost of running things via taxation), assuring coinage, and re-establishing much of the traditional governing system, King Henry would, at a single stroke, win over everyone from the commoners to the Dukes and by utilizing the Church during his confirmation ceremonies and moving to restore Church lands and nominate Bishops and Arch-Bishops, put himself in good graces with the Church.  All of that meant that any other claimants to the throne faced a unified England under King Henry.

The Charter of Liberties of Henry I became heavily reprinted and later Kings would assure everyone that they held to that Charter which protected the liberties of conscience for worship, regular coinage, protection of property at least down to the level of Baron, and the local application of law to which all the aristocrats and nobles were also held accountable.  The framework that The Charter of Liberties of Henry I established became the template for the Magna Carta and for all later coronations of Kings and Queens of England and Great Britain.  It holds key pieces that would be put into the US Constitution and are recognizable as such.

One of the first is uniform coinage, which is a traditional way to assure a population that their trade is well regulated via consistent weights and measures.  That power was given to the US Mint and to a bureau of standards, and while part of many other legal systems, it remains a touchstone for the US especially now that the currency is no longer tied to precious metals.  A traditional way to re-establish a solid economy is to lay fears of devaluation to rest and that remains as true today as it did in the time of Henry I.

Another is the enshrining of the law above all people in the land, including the King.  Due process of law for inheritance and becoming penniless are given as powers to the US Congress via the Constitution and the concept of regularity of the law in its drafting and consistent application would become a major point in the centuries to follow in England.

Traditional, that is to say consensual, taxation is restored giving local government a say in the overall amount that could be taxed in the Nation.

Withdrawal of much of the Forestry Law becomes a major relief for the common man in England so that spooking deer did not cause one to be maimed, and was a major lesson to the Framers of the US Constitution in the necessary limits of land held by the Nation's State to require asking for its use and to enshrine that the land of an individual State actually belonged to it as it had to consent for usage for the common good by the National government.  It is an example of restriction of government from becoming onerous and abusive via confiscation of land by fiat and one that was worth regularizing in the US Constitution.

The Charter of Liberties of Henry I is not an actual constitution so much as it is a written agreement to a contract.  The people, as represented through their local and regional government, sets forth grounds for which they will be governed and restrictions on actions by the King, and the King then must agree to those terms so as to govern the people in the way they wish to be governed.  In fact all constitutions written by the people and proclaimed by them in overwhelming majority is just that:  a contract that any who wish to govern must abide by.  There are sham constitutions, those foisted upon a population by a ruling elite that then have no intention of abiding by it, or of having written themselves so many powers that the people of a Nation have no representation in government.  That is par for the course with human nature, after all.  What the US Constitution, in particular, has is a depth of understanding of just where the power for such a government comes from and that those who would govern are ultimately held accountable for their adhering to the contract by the people and their representatives.    The recourse for abuses and excesses is to find those that will stop such abuses and excesses and go back to the core basis of the constitution and re-affirm it not just in word but in substance.

The lesson of Henry and even Canute is that this is best done quickly, major portions of the abuses ripped out as fast as possible and as sharply as possible, re-affirm continuity of government so that those left out in the cold by the changes know that they don't have a recourse to change the system back, and then stick to that and pass it on as a durable lesson.  A once working government that has moved to excesses is found by trimming off the excess even if that means huge branches of the government, itself.  In return the continuity of the very basics of government tend to ensure stability, not chaos, which allows for further reforms and pruning to happen so as to get a well run and restricted government once more.  The other path, that of overthrowing the arrangement and trying to put a new constitution in place, is fraught with danger and, as Oliver Cromwell found, you often find your brand, new system emulating the old system you wished to end.  That points out that the actual requirement for continuity by a people of a Nation may actually be stronger than any new governing group or cabal may wish to think about.   Which brings into question just what it is that such revolutionaries are actually trying to do when what they end up with is little different than what they started with... wouldn't long-term reform have been a better path with less bloodshed?  And for those returning from a time of excess, there is much in the English tradition that points to less bloodshed, not more, from re-establishing a reformed government with sound and understood basis than trying to do something brand new from scratch.