On reading again Maine on Ancient Law, and Pollock and Maitland The History of English Law before the time of Edward I, I was once more made curious about the reluctance of English lawyers, historians and philosophers to acknowledge the importance of contract in the development of the common law – including in that term the constitution of England.
It was the insight of Sir Henry Maine that ‘the movement of the progressive societies has hitherto been a movement from Status to Contract.’ Maine made that observation before ideologues of a certain bent, mostly those in the service of a certain press baron, invested the term ‘progressive’ with a load of rather smelly baggage, but it is a comfort to most of us to know that rather than just inherit some standing in the world (status), we can have our say in it by dealing with others for that purpose (contract). Indeed, that great shift signifies the beginning of what we call the modern era after the waning of the Middle Ages. And it coincides with another shift – from the supernatural to science, and from the jurisdiction of God and his church to that of the people on this earth.
The very long epoch called the Middle Ages was characterised by what we now call feudalism. I sought to describe the compact at the heart of feudalism as follows.
A peasant farmer would go to the man in charge of the manor or village and offer to provide services, including what we would now call military service, in return for the protection afforded by the manor or village. The ceremony was simple. One man put his hands between the hands of the other and said ‘I am your man’. This was called doing homage.
In a world where God was everywhere, and where a transaction may not be thought to be worth much if God was not involved or invoked, there was often a further ceremony or rite. The man paying homage, whom we call the vassal, might swear on the Gospel to be faithful to his lord or master. This was called fealty, and it was given at a time when fear of eternal damnation was very real. The compact lasted for the joint lives of the two people involved. ……
So, what we have is an exchange of promises – you look after me and I will work or fight for you – that were intended to be binding and to be acted upon for life. That is what we call a contract.
Maitland said that ‘Glanvill and Bracton seem to lower their voices to a religious whisper when they speak of homage’ but he went on to say:
The contract was far from being a one-sided one. The lord was bound to defend and warrant his gift….But the primary obligation [was] the duty of defending his tenant in possession ‘against all men who can live and die.’ If the tenant was attacked by process of law, he vouched his lord, he called upon his lord to defend the action and the lord if he did his duty defended it. Now here we see a great force at work. Do what we may to make all men equal before the law, a rich man has and must always have great advantages in litigation…..
The contract at the bottom of vassalage was said by Professor Milsom to be ‘a relationship of reciprocal obligations…Now he [the lord] buys services and pays directly in land…He buys a man.’ You may wish to take care about repeating that last statement in some quarters.
We might wonder how a poor tenant might seek to enforce such a right as matter of law. The lord could enforce his rights under the compact by seizing and converting goods of the tenant without any intervention by the courts. This was the remedy called ‘distress.’ It was a burning issue because it was so open to oppression and abuse. Simon de Montfort called it ‘the beginning of all wars.’ The Year Books show a judge in 1310 saying that a ‘wicked ribald of a bailiff…may cause a poor man by coercion to do a suit.’
The wrongs inflicted under the banner of distress had led to the passing of the statute of Marlborough in 1267. This law severely limited the remedy of distress, to the extent that Maitland said that it ‘in many ways marks the end of feudalism.’ And as if to underline Maitland’s point about the advantages of the rich man in litigation, the statute began with an alarming proclamation of equality 500 years before the Bastille fell. Section 1 is still part of the law of England:
Whereas at the time of a Commotion late stirred up within this Realm, and also sithence, many great Men, and divers other, refusing to be justified by the King and his Court, like as they ought and were wont in Time of the King’s noble Progenitors, and also in his Time; but took great Revenges and Distresses of their Neighbours…..It is Provided, agreed, and granted, that all Persons, as well of high as of low Estate, shall receive Justice in the King’s Court; and none from henceforth shall take any such Revenge or Distress of his own Authority, without Award of Court, though he have Damage or Injury, whereby he would have amends of his Neighbour either higher or lower. [Emphasis added.]
Notice that this statute when it becomes operative says that it ‘is Provided, agreed, and granted that …’ What could be a more natural way of saying of a resolution of a dispute than that ‘the parties agree…..’?
Now, when we speak of ‘contract’ in this context, we use the term as it is used now in our law. The common law was nowhere near that point in the thirteenth century, much less anywhere near the doctrine of what we call ‘consideration.’ The first text of English law, published in the 12th century, said simply ‘It is not the custom of the Lord King to protect private agreements.’
The notion of contract had long been settled in Roman law, but not in ours. The jury was yet to emerge from its cocoon. Remedies for breach of covenant and recovery of debt or taking of accounts were being developed in the ad hoc manner of the common law, but we are not precluded from applying our concepts to medieval transactions and instruments. The common law was then locked into issues of form – the remedy revealed the right – but the disputes over the remedy of distress show that the basic feudal compact was enforceable as a matter of law.
It may seem odd that we use our current concepts to explain what happened in a different era. We would not feel any such oddity if we were talking of changes in learning about science. After referring to the dictum of Maine with which we started, Maitland said that Maine ‘was quick to add that feudal society was governed by the law of contract’. He went on, in his hallmark spritely style.
There is no paradox here. In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that could not be done nowadays…Those were the golden days of ‘free’ if ‘formal’ contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place.
Whole libraries have been written about the abstract idea of the ‘social contract’, but the English for some reason are very coy about seeing that the two principal instruments of their constitution – Magna Carta, 1215 and the Bill of Rights, 1689 – represent actual contracts between the Crown and its subjects.
Each of them is what we lawyers would now call a service agreement or employment contract. There is however this difference. Not many CEOs would enter into an agreement for an indefinite time with the board of their company on the basis that they were locked in indefinitely unless both agreed otherwise. This job was for life.
Each of those two contractual instruments has been set out and adopted in a statute of the parliament. The parties to each such agreement intended it to be legally binding. Each contained mutual promises. Each is indisputably a part of the constitution of England. Each represented an agreement between the Crown and the people that was intended to resolve civil strife or uncertainty, and to seek to avoid similar strife in the future by defining the rights and duties of the Crown and the people by a binding compact. Each is in substance an agreement between the Crown and the people. Each is a form of social compact that the parties – the Crown and the people – have adopted as the law. Why should we not see each instrument as a legally binding contract?
How would the people be able to enforce these compacts if the Crown reneged? If I borrow money from a bank to buy a house, the bank takes a mortgage and can sell me up if I default. If a company borrows the money, the bank can send in receivers and managers if the company defaults. In either case, the bank takes possession of the mortgaged property. Going to court is not the only, or the preferred, way to enforce a contract. It is better for a party to have taken and to be able to enforce a security. In each of these settlements, the Crown gave security to the people to enable the settlement to be enforced against the Crown.
In Magna Carta the barons opted for the model of the receiver and manager. Article 61 refers expressly to security (securitas) and it is a security that not even the most over-mighty and overbearing corporation would now dare to seek. It provides that if the king defaults, the barons can give him a notice to remedy that default. If the king does not comply, a committee of twenty-five barons ‘together with the community of the entire country, shall distress and injure us in all ways possible – namely, by capturing our castles lands and possessions and in all ways that they can – until they secure redress according to their own decision, saving our person and the person of our queen, and the persons of our children.’(Emphasis added.)
Do you see the reference to the remedy of distress? It is what we would call distress on steroids that no bank in the western world would dare go near (and which gave the pope some ammunition to annul it). This led Theodore Plucknett in his Ford Lectures to say that ‘this chapter of the great charter is carefully drawn in the form of a covenant for distress.’
The momentary appearance of distress in the higher altitudes of constitutional law will serve to remind us of its great effectiveness, and it was thought to afford a substantial security for the king’s undertakings in the charter. It will also remind us that distress was one of the commonest casualties of medieval life which might befall any man, high or low, at any moment.
It also reminds us that the barons had their king taut over the proverbial barrel, and reduced by this contract to the status of the most vulnerable tenant or vassal. (King John had form with the latter as a vassal of Rome. History also credits him with at least five bastards and taking a bath every three weeks.)
Perhaps the significance of this grand medieval compact is that the king was driven to agree to it – and his successors would be driven to adopt and adhere to it. We might be reminded of Mafia dons coming together to ‘make the peace’ – or of that glorious re-enactment of the rite and ceremony of homage and fealty in the grand first scene of the movie of The Godfather.
But it would now be hard for a king to say that he reigned by the grace of God, when the truth was that he was only still there because he had done a deal with his principal minders, the barons. This looks like a shift from status to contract at the highest level on this earth. And it was not just lawyers who would be able to say that the king was under the law, because the law made the king.
In the Bill of Rights, the Commons elected to go for another kind of enforcement. It provided that ‘keeping a standing army within the kingdom in time of peace, unless it be with the consent of parliament, is against the law’ and then, immediately, ‘the subjects which are Protestants may have arms for their defence suitable to their condition and as allowed by law.’ In the idiom of the shorter form of cricket, here is the equation – we can have arms; Your Majesty cannot (except on our terms); if we have a falling out, we will be armed, and you will not; if there is a fight, can you guess who will win?
The government may have been centred on London, but it was carried out, if necessary by force, in the shires and in the counties. Sir Jack Plumb said: ‘The Bill of Rights had its sanctions clauses – there was to be no standing army and Protestant gentlemen were to be allowed arms; the right of rebellion is implicit.’ The phrase ‘right of rebellion’ might make constitutional lawyers blush*, but Sir Jack may have had in mind our current law of the right of the innocent party to accept the conduct of a guilty party as the repudiation of a contract, so bringing it to an end. Plumb had also said that: ‘…the power of the 17th century gentry was sanctioned by violence’ and that ‘…by 1688, violence in politics was an Englishman’s birth-right’.
The English of course, being sensible, just let all this odd stuff about the right to bear arms sink into history. Sadly, it still raises hell in the largest of its former colonies.
What we now call the right of a party to treat a contract as at an end if the other party repudiates that contact is in truth the notion that underlay the Glorious Revolution and the American Revolution. Jefferson adapted the English template in their Bill of Rights in his Declaration of Independence. That the contracts in Magna Carta and the Bill of Rights were later embodied in statutes does not mean that the contracts were at an end. They were simply translated into the highest form of binding legal obligation.
We need not be surprised to see contracts being entered into on high – by the highest on this earth. We do, after all, speak of a people whose religious faith derives from a book that holds that God himself enters into covenants with peoples that are, for people of that faith, binding beyond any power known to this world.
The word ‘covenant’ occurs at least 23 times in Genesis and 13 times in Exodus, generally referring to the covenant between God and his chosen people. The Latin word is either foedus (normally ‘compact’ or ‘treaty’) or pactus (normally ‘contract’ or ‘agreement’). If a people could covenant with God, they could covenant with their king; indeed, for people of that faith, nothing could be more natural or ordained than a covenant between a people and their king. And the English at relevant times were wont to see themselves as the chosen people – not least those of the elect who took ship on the Mayflower.
At about the time of Magna Carta, the Hungarians agreed to what was called The Golden Bull and the Spaniards agreed to a Privilegio de la Union, but neither achieved the standing of Magna Carta or anything like it. There might have been something in the air. The famous Sachsenspiegel had these words: ‘A man may resist his king and judge when he acts contrary to law and may even help to make war on him….Thereby, he does not violate the duty of fealty.’
This was the ‘right of resistance’ which, Marc Bloch said, ‘resounded in the thirteenth and fourteenth centuries from one end of the Western world to the other, in a multitude of texts.’ What we see is mankind groping its way to a realisation that people may have legal rights arising out of an agreement between a man and his lord or a people and their king.
Marc Bloch concluded his great work Feudal Society with these words:
Nor was it an accident that in Japan, where the vassal’s submission was much more unilateral and where, moreover, the divine power of the Emperor remained outside the structure of vassal engagements, nothing of the kind emerged from a regime which was nevertheless in many respects closely akin to the feudalism of the West. The originality of the latter system consisted in the emphasis that it placed on the idea of an agreement capable of binding the rulers; and in this way, oppressive as it may have been to the poor, it has in truth bequeathed to our Western civilization something with which we still desire to live.
We see here, then, the start of the process under which the rights of people derive from contract rather than status. It is here then that some will see truly heroic energy and, perhaps for the first time, the start of a process for recognising human rights on which hangs our whole concept of western civilisation. And it might all be said to have started with some sorry disputations about the forms of medieval writs.
But getting something good after a grubby kick-off is something that the English were good at once – at least in a previous manifestation; now they look to be locked into a sooty reverse.
*Compare the settlement entered into by Henry III after the battle of Lewes: the phrase ‘rise against us’ (contra nos insurgere) is expressly stipulated: see A L Poole, From Domesday Book to Magna Carta, Oxford, 1951, 476, note 3. The author there queries the Plucknett view – this distress, if fairly invoked, would have been a licensed revolt.
Maine: Ancient Law, John Murray, 1861, 170
Feudal compact: Gibson, Geoffrey, The Medieval West (Volume II of A History of the West), Amazon, 2014. (I have also used remarks in a book The Common Law, A History, A S P, 2012, and a paper Contract in the English Constitution, 2014, in Looking Down the Well, Papers on Legal History, Amazon, 2015.)
Maitland on homage: F Pollock and F W Maitland, The History of English Law before the time of Edward I, Cambridge, 1895, Vol I, 277, 287. (I refer to this as Maitland, since he wrote all but the first chapter.)
Milsom on buying a man: S F C Milsom, The Legal Framework of English Feudalism, C U P, 1976, 39
Simon de Montfort: T F T Plucknett, Legislation of Edward I, Oxford, 1949 (Ford Lectures), 58
Year Books: Year Books of Edward II (Selden Society) 1V. 161 (1310), Bereford, CJ, cited in Plucknett, 52, note 2
Statute of Marlborough: 52 Henry III
Maitland on: cited in Plucknett, 23
Not the custom: Glanvill, Laws and Customs of England, Nelson, 1965, 132
Maitland on no paradox: above, Vol.2, 232-233
Magna Carta: statute in 1297, 25 Edward I
Bill of Rights:  I William and Mary Sess. II (Bill of Rights) c. II
Plucknett on Magna Carta: above, 76
Plumb on Bill of Rights: J H Plumb, The Growth of Political Stability in England, 1675-1725, Macmillan, 1967, 19, 21, and 64
Vassal homage and Sachsenspiegel: Bloch, Feudal Society, Routledge, 2nd Ed, 1962, 451. (That great historian, and great man, is entitled to the highest respect on any aspect of feudalism or the medieval world, but we might doubt whether that ‘right of resistance’ applied in England up to the death of Edward I in 1307.)
Bloch on no accident: again, 452.