No Taxation of Elites,No Representation

The Bargaining Model of Representation

The bargaining model (BMR) is a widely invoked mechanism of political representation: rulers lacking resources are forced to bargain with the societal actors who control them, usually under war pressures, thus conceding rights and representation. Bargaining introduces consent in interaction previously based on coercion. This is a premise of neoclassical theorists of the state, fiscal sociologists, and neo-institutionalists among others. ⁸

Relative state weakness is a crucial assumption in this model. ⁹ Weakness, for instance, is a condition for the emergence of Parliament in medieval England. “Kings of England did not want a Parliament to form and assume ever-greater power; they conceded to barons, and then to clergy, gentry, and bourgeois, in the course of persuading them to raise the money for warfare.” ¹⁰ Weakness is also seen to generate new rights. ¹¹ Levi states: “the relatively weaker bargaining position of English monarchs vis-à-vis their constituents led to concessions that French monarchs did not have to make.” ¹²

A bargaining model also underlies the influential capital mobility thesis. When taxable resources are mobile, their holders have greater bargaining powers through the threat of exit. ¹³ These powers either secure a voice in policy selection or force the ruler to follow policies benefiting capital holders. The notion is an old one, ¹⁴ but it has permeated scholarship on democracy, redistribution, regime, and policy variation among others. ¹⁵

The BMR appears plausible because, historically, taxation demands by rulers often accompanied societal demands for representation, usually under war pressures. The growth of trade and money was a major feature of these dynamics. Medieval Europe is replete with assemblies and negotiations over taxes to finance wars. ¹⁶ And the classic American Revolutionary precedent, which coined the phrase “no taxation without representation,” remains paradigmatic.

However, existing accounts do not demonstrate causal effect. In the American case, no causal connection exists: when the British demanded taxes and the Americans demanded representation, the outcome was not a bargain; it was a revolution. American representative practices grew out of preexisting colonial institutions, not bargaining. In the European cases, paradoxically, where social groups had enough autonomy to bargain hard on taxation (as in France), rulers’ demands were resisted and representation never became the organizing principle of governance throughout the territory. Conversely, where national representation was most robust (as in England), taxation demands were overall accepted and tax revenue maximized. These patterns remain misunderstood, however.

Although fiscal bargaining is assumed to generate political outcomes in the BMR, these outcomes are not well specified either in scholarship on historical precedents, ¹⁷ on the resource curse ¹⁸ or on the political economy of regime and policy variation. ¹⁹ As a result, causal mechanisms remain underspecified. Four main problems afflict these studies.

First, no adequate distinction exists between the initial stage, when representative institutions or rights emerge or consolidate, and the subsequent stages. The later stages include survival of institutions over time under differing conditions, expansion to include broader social groups, and extension of broader rights to included groups. These stages often display a different logic: bargaining may, indeed, be key in the later stages. My analysis, however, suggests that extending the bargaining logic to the emergence of institutions and rights is misguided—and emergence remains crucial for developing countries, where institutional capacity cannot be taken for granted. This distinction between stages is salient in studies of democracy as well, in which taxation plays a limited role in the first stage of emergence and a more pronounced role in the extension of democratic institutions and practices. ²⁰

Second, representation is often conflated with democracy. ²¹ That may be less problematic for studies from the postwar period, when the two are fused. ²² However, universal suffrage is analytically distinct from whether a central organ of government exists that local actors have incentives to attend; representative institutions preceded the universal franchise by centuries in the key European countries. The distinction matters because representation can be taken for granted today, but it was not in the past or in the developing world today. The expected return from representative office had to be high and this is not the same as the expected return (and cost) of the democratic vote. Representation payoff is high where the state has resources to redistribute. ²³ Accordingly, the logic I analyze here explains how effective representation, not democracy, emerges as a practice.

The third confusion in the scholarship is to assume that localized bargaining between rulers and ruled over taxation amounts to a system of representation, understood as the organizing principle of governance. Localized bargaining was historically common and widespread; by contrast, a statewide representative system was rare and hard to secure—but it is representation as an overarching system that shapes regime type. All too frequently, observing such bargaining in historical cases is automatically assumed to translate into institutional or policy change. The European cases suggest, instead, that bargaining intensity is inversely related to political gains, whether in representative institutions or other rights.

Finally, accounting for the origins of representative systems as they interact with taxation, as is done here, is different from determining tax-and-spend equilibria in advanced democracies ²⁴ —the logic differs sharply, even though both seem plausibly related to the same bargaining dynamic. Nonetheless, the account of origins can inform the recent breakdown of these equilibria, by shedding light on the role of preexisting infrastructural capacity, especially the capacity to tax.

The Compellence Model and Its Historical Foundations

The revision offered here suggests that the capacity to tax, and to compel more broadly, preceded and enabled representative institutions (parliaments) to function as effective organs of governance. Compliance in medieval England was not exactly “quasi-voluntary,” that is, “voluntary because taxpayers choose to pay” but coercive if they do not—this is the modern equilibrium. ²⁵ The coercive, compelling side was more pronounced, especially since taxation financed mostly private royal goods, not public goods (which were paid locally). Once central governing institutions were in place of course, bargaining could lead to concession of further rights, but only after institutional procedures were well established. Absent prior capacity and absent a prior institutional frame, bargaining did not contribute to the creation or consolidation of representation—in fact, it encouraged the opposite, as I discuss below.

Instead, the origins of representation are better explained historically through a “compellence” model: ²⁶ the state compelled social actors to attend Parliament and the institution thrived only where this was possible. Compellence, however, accounted for different results when imposed on the nobility and when imposed on the Commons, which included both urban and rural representatives. Compellence of the nobility generated the institution of parliament. Compelling attendance from the Commons, on the other hand, generated the practice of “representation.” The two processes were separate originally. When magnates attended, they were not representing other social actors; accordingly, their presence did not generate the legal framework for what we call representation. Representation involved the granting of legal powers to representatives to act as agents of a principal community (I trace how this legal device entered politics below). Hence the focus in accounts of representative practice on the inclusion of popular, that is, bourgeois or nonnoble, representative elements. ²⁷

But it cannot be emphasized too strongly that accounts of urban and nonnoble representative practice are not tantamount to an account of how Parliament became the central, effective organ of governance. The institution can only be explained in the first instance through the incorporation of the nobility: Parliament eventually became central and effective where the Crown had a power advantage over the nobility. Only where the Crown already had the capacity to extract on a systematic basis from its most powerful actors did the latter have incentives to organize collectively and to then impose limits on such power. Where royal power advantage was lacking, as in most polities on the Continent, and rulers were left to negotiate only with urban or local representatives, representative institutions were too weak and were eventually suppressed, as I discuss below. For a parliament to become the central organ of representative governance in a state, compellence of all social groups was necessary.

Magnates would attend most consistently when they were obligated, by virtue of holding land from the Crown—the obligation followed from their tenurial status. Already from the eleventh century, nonappearance at the king’s court was the mark of a rebel in England. ²⁸ Failure to appear in Parliament carried penalties, if lacking a written royal exoneration. ²⁹ It could delay proceedings and trigger an enquiry by the Crown. ³⁰ Magnates were summoned according to the king’s will: no noble had a right to attend Parliament, until the seventeenth century. ³¹ Only from the 1300s was there, simply, a “marked tendency” to issue summons to the same families, initiating the formation of the “peerage,” which was defined by parliamentary privilege. ³² Throughout the thirteenth century, all “bargains” with the Crown were with this nobility—the Commons, the representatives of the towns and counties, were summoned incidentally after the middle of the century and more systematically only after the 1290s. They did not have decision-making capacity, however: They assented to what had been agreed.

The Commons were also summoned on a different basis. Whereas the magnate summonses were personal, the towns and counties were instructed in writing by the king to send representatives. These were originally appointed, but since 1261 elected in county courts and town assemblies. Empowered representatives were required by the king to ensure fulfillment of agreements reached: representative powers were thus a requirement from above, not a demand from below. Representation worked efficiently when the state could enforce compliance on local actors and provide incentives for it. Enforcement was necessary, not least because the expense of representation was carried by the communities and it was high: for a knight, it could be double the daily wage for military service. ³³ Focusing instead exclusively on societal demands for representation from below is misleading in this context. ³⁴ It ignores the role of obligation in the early stages of representation.

Neglected in social science, obligation has for a long time been noted in historical scholarship as central to representation; its discovery was a “signal achievement” of nineteenth-century historians. ³⁵ Obligation is tied to representation because the latter originated historically in the Roman practice of representation in law, in the form of plenipotentiary powers granted to agents, as I discuss in more detail below. Any decision agreed to by an agent in Parliament was binding on the principal who delegated such plenipotentiary powers, the community. Thus, when communities granted such powers to representatives, they accepted a high degree of constraint: localities could not ex post dissent from decisions that were collectively authorized at the center and thus collectively binding. These decisions frequently involved onerous levels of taxation.

Where does state capacity to compel and tax highly, however, originate? The question must be treated as exogenous here; space only permits the rejection of endogeneity. The claim here is that Crown capacity to compel the nobility at the time of parliamentary emergence was not endogenous to some prior interaction that did involve a bargain. This can be established both by temporal sequence and by assessing original royal capacity.

Parliament postdates state capacity in England. It is conventionally dated to 1216 and fully formed in 1295. ³⁶ However, Crown strength preceded 1216 and Magna Carta. England was already the most centralized state in Europe from the second half of the eleventh century, following the reforms of Henry II, as historians widely acknowledge. ³⁷ This strength is what enabled the decades-long, spectacular extraction by King John that finally led to Magna Carta in 1215, as described below.

Moreover, this antecedent strength was not itself the result of a bargain, even a noninstitutional one: it was predicated on the status of the king as landlord, at a time when land was not a market commodity and when the Crown held monopoly rights over land. ³⁸ As landlord, he could demand payment for various obligations pursuant their tenurial status and it is these obligations that Magna Carta sought to regulate, not broad-based popular taxation and not taxation of the mercantile classes. ³⁹ Royal strength was, thus, indeed exogenous and antecedent to Parliament.

The compellence model gains further persuasiveness by explaining two puzzles that the bargaining hypothesis leaves unanswered. First, that a locally selected representative has been entrusted to consent at the center does not explain why or how the locality would unanimously consent and abide by the obligations it imposed. This is even more critical since historically there was small leeway for negotiation and the king’s demands were typically accepted as demanded. ⁴⁰ Moreover, taxation usually provided private goods to the ruler, such as the defense of patrimonial property through wars in remote locations; it did not, as yet, secure public goods.

In fact, incentives, then as now, would be for locals to free-ride, avoid, or obstruct central demands—empirically we see that in most Continental cases (examined below). A high level of legal compliance at the locality must be assumed for delegated consent to translate into uniform local action. However, such compliance cannot always be assumed even in the modern context: it is poorly enforced in states with low capacity, for instance, which cannot compel citizens to comply with tax demands and thus face serious tax evasion. The compliance certainly cannot be taken for granted in the early period of institutional formation. Instead, compliance requires state capacity. This shows that compellence is necessary for the practice of representation and that successful imposition of obligation is a precondition for that success of representative institutions.

The capacity to compel representatives was thus critical for the success of any representative system. The obverse problem posited by most accounts—that of limiting political authority—has a key weakness: it assumes this authority is already established and effective enough to require limits. Formulating the problem as one of effective societal, bottom-up resistance simply projects the concerns of advanced, fully developed polities to the problem of institutional origins. By contrast, the real problem in the early stages of state building, as in some parts of the developing world today, was free-riding in the face of weak central institutions. This weakness undermined the capacity of rulers to carry out their tasks. Rulers thus had to compel dispersed subjects to tend to dynastic, more so than to “national,” affairs. The compellence problem, further, was acute when communal consciousness and collective action were weak—again, typical features of the modern developing world.

Second, the conventional narrative of bargaining as constraining central authority faces a striking paradox: institutionalized consent historically resulted not in more limited grants of taxation, but in higher per capita burdens. It is easy to assume that representation is a bottom-up demand when it is identified with the successful imposition of limits on taxation. But there is no warrant historically, and little evidence from the more contemporary record, to assume that was the case. This is the major point made by Hoffman and Norberg for the fifteenth century and later. ⁴¹ That “limited” regimes had a systematic extractive advantage over regimes without a central parliament in the early modern period also emerges from striking econometric evidence from eleven countries between 1660 and 1914. ⁴²

The same pattern can be established for the medieval period, albeit with less systematic data. ⁴³ The English, Strayer noted, could match the French “man for man” and “pound for pound” in the 1290s, despite having less than a fifth of their population and “much less” than a fourth of their wealth. ⁴⁴ With new data, I show elsewhere that the pattern extends to about the late 1500s, when English politics took an absolutist turn. ⁴⁵ England thus had a precocious extractive advantage already from the twelfth century. The more consent was institutionalized, the greater the extractive capacity of the state. This fact undermines the bottom-up logic of representation even further, as the incentives to avoid representation at the center should be even stronger in such cases—again, under conditions with limited public goods provision.

That bottom-up dynamics cannot account for institutionalized and statewide representative practices is observable in the multitude of cases in medieval Europe where such dynamics occurred. Proctorial representation was widespread throughout Europe. ⁴⁶ However, in most cases it was either not systematically applied or imperfectly enforced, as in France and Castile, as I elaborate below. A key factor in both cases was royal weakness, which precluded the imposition of a binding legal frame on representatives. As a result, the frame was rejected by the localities and not enforced. Local refusal undermined state policies and their execution, leading to a compromised capacity of the state to extract. This further undermined the consolidation of representative institutions.

The implications from the obligatory character of representation can be shown to transcend its historical origins and to be as relevant under modern conditions. It can explain puzzles that remain unanswered by the bargaining model, for instance the lack of representative practices despite demands for taxation in parts of the developing world—without effective imposition, no political effects should be expected. ⁴⁷ Compellence is critical for any model that links taxation, representation, and state capacity—but is ignored in approaches that focus on the contractual dynamic. ⁴⁸ In fact, the contemporary record echoes this logic as well: in a number of cases, demands for representation follow the successful imposition of taxation or other extraction, they are not traded in exchange. ⁴⁹

In the next section, I examine the logic of the bargaining model as it emerges from historical instances and show how at every point it is predicated on a prior institutional structure shaping interaction and on an overall dominant power position of the ruler, even if temporary weakening of power is observed.

The English Record and the Bargaining Hypothesis: The Missing Causal Links

Neo-institutional analyses ⁵⁰ and other foundational studies ⁵¹ assume a connection between taxation and political progress already in the remote European past. England offers the classic instances, according to two prevalent narratives, drawing on either the Magna Carta or the seventeenth century Civil War and Glorious Revolution. In the latter narrative, exorbitant demands by the absolutist, but cash-strapped, Stuarts in the 1600s led to social and political upheaval and bargaining that established Parliament as a sovereign body of government. In the first narrative, taxation was granted by the barons of the realm in exchange for Magna Carta in 1215 to a ruler weakened in war.

But these historical cases do not support a causal mechanism tying taxation demands to the emergence of representation. The problem with the seventeenth-century narrative is one of timing. The English Parliament existed already from the 1200s. ⁵² However important the Stuart dynamics four centuries later, they did not generate the institution or the practice of representation. Focusing on the early modern period is thus misguided. ⁵³ Parliament was fully fledged by 1295 and the institutional procedures and rights of the next two centuries structured the political conflicts of the seventeenth century. ⁵⁴ 1688 was a revolution, as rights were extended to broader social groups, especially under the impact of the increasingly important Whig merchant classes, ⁵⁵ and sovereignty shifted. Representation, however, did not originate then.

Magna Carta, on the other hand, appears to suggest a bargain exchanging taxes with consent at a very early stage, before Parliament emerged. It seems to encapsulate the dynamic of a central power, weak in the face of war, bargaining with resource-holders who use their bargaining advantage to extract rights. It thus figures as a classic reference in many modern social scientific accounts. ⁵⁶

The standard narrative on Magna Carta is that in 1215, English rebel barons acted collectively against King John, after he suffered a devastating defeat in France, losing his lands. Desperate for funds, the king was forced to grant a charter that codified political rights—some of which provided the foundation for rights that became fully fledged in the seventeenth century and are still valid, such as habeas corpus. ⁵⁷

This temporary bargaining advantage, however, resulted in a long-lasting equilibrium in which the Magna Carta served as a coordinating device only because of the background conditions in place. The Charter came after years of unprecedented extraction: the barons demanded consent to grant resources because the king was raising extortionate amounts for almost two decades—that is, because of long-standing excessive state capacity. ⁵⁸ Between 1199 and 1216, John raised more than six times the amounts, adjusted for inflation, his predecessor raised over thirty years. ⁵⁹ Further, this extractive capacity built on the institutional achievements of Henry II, widely credited with revamping the judicial, administrative and political governance of England starting in 1154. ⁶⁰

It is in the aftermath of this remarkable show of strength that the first acknowledged parliamentary meeting first occurred, in 1216. ⁶¹ However, taxation was far from the most important topic. Only two out of the Charter’s sixty-three articles were on taxation (12 and 14) and both were omitted from subsequent reissues. ⁶² Most articles demanded reform of the judicial system, property rights, and administration. ⁶³ Broader patterns of social interdependence, predicated on judicial and political ties, were necessary for any positive political effects of bargaining over taxation. The barons demanding changes were tenants of the Crown, as all land in England was held from the Crown: legal issues relating to possession and inheritance of land depended on royal judgment and royal institutions. It is these that Magna Carta demanded be made more readily available. This interdependence continued over the course of the thirteenth century—during which royal strength, the key precondition, also gradually increased. ⁶⁴

Magna Carta, however, also acquired an important role in its later history, as it remained a central point of contention between the king, the nobility and the Commons throughout the 1200s. It is these conflicts that have encouraged the narrative, even among the best historical scholarship, of a bargaining game that played out throughout the century and slowly built up the constitutional structure of Parliament and its rules: ⁶⁵ reconfirmation of the articles was a persistent demand, with taxation grants promised in exchange. Indeed, by 1400, Parliament had asked the king forty times to reconfirm Magna Carta in response to demands for taxation. Bargaining was especially prevalent in the critical, formative period of the 1200s, where almost every tax grant requested was tied to a reconfirmation of the articles of the Charter.

However, this exchange was not a bargain of rights per se for taxation; nor can it provide an account of how Parliament emerged or consolidated. Precisely the need to reconfirm, over and over again for a century, the articles of the Charter (consistently omitting the ones on taxation) meant that the gains of society vis-à-vis the Crown were minimal and that the Commons were not exchanging taxes for rights, but taxes for promises that were broken, decade after decade. Yet the taxes kept getting granted, usually at per capita levels unsurpassed on the continent.

Although a shell of proto-constitutional exchange emerged, only rights previously conceded were reaffirmed. Bargains were thus part of the second stage of institutional preservation and extension, not of institutional emergence. The original concession of rights, in 1215, as argued, was the outcome of a long process of excessive use of royal power, not bargaining, at a passing moment of weakness—as seen by the fragility of the baronial gains at least where taxation was concerned. Crucially, moreover, Magna Carta nowhere requested the creation of a parliament nor that the “counsel” it stipulated should be provided within such an institution. It was only a full century later, in 1311, that Parliament was defined as the place where consent would be granted, through an ordinance that simply affirmed the by then status quo. ⁶⁶ The institution itself was not the result of a bargain—other processes generated it, as I outline below.

The following section will trace the transition of Parliament from an “occasion” to an “institution.” ⁶⁷ It will distinguish between two separate processes, the exchanges between Crown and nobility which define the institution, on the one hand, and the basis of popular attendance that generates the practice of representation among broader social groups. It will show how the relative power advantage of the Crown both in negotiations with the most powerful social groups, the members of the nobility, and in its relations with the members of the Commons, was critical in retaining an institutional equilibrium over time. The last point will be further supported through historical comparisons with Continental Europe.

A Brief History of the English Parliament, 1216–1307

Although precedents go back to the Anglo-Saxon period, the English Parliament conventionally dates from 1216, on the accession of Henry III, just after the issue of Magna Carta. ⁶⁸ Institutional activity picked up after the loss of the French territories and the emergence of Westminster as the seat of government; the term “parliament” gets applied to meetings between the Crown and magnates only in the 1230s. The period of emergence culminates with the so-called Model Parliament of 1295 that displayed the core institutional and procedural form Parliament would retain until 1918. ⁶⁹ The role of taxation should thus be assessed in this period.

For the purposes of this analysis, I will distinguish between four phases, two of which involve confrontation and tests of the power balance and two phases involving the institutional articulation of parliamentary practice. Phases one (1237–58) and four (1290–1307) saw confrontation through exchanges conventionally labeled as bargaining. ⁷⁰ Examined closely, they confirm the power advantage of the Crown. The two intervening periods (1258–65 and 1265–89) witnessed first baronial dominance and then a period of collaboration. At these times, again, there was no bargaining; only representative institutions and procedures were articulated whilst under temporary baronial leadership, with royal power reaffirming primacy shortly thereafter.

The first phase of baronial resistance and confrontation (1237–58) is taken to highlight the importance of “consent” for the emergence of Parliament. ⁷¹ It was triggered when, after his minority ended, Henry III embarked on military campaigns and the barons refused all ten grants he requested after 1237. This action is taken to exemplify the emergence of “consent” as a prerequisite for taxation, following the standard bargaining model. When taxation demands were later consented to, variation is explained as a result of interest: later tax grants were conceded because the nobility believed those wars to be more “profitable.” ⁷²

What this view ignores, however, is that, as the chronicler Matthew Paris pointed out, the aids were initially refused because the barons had been forced to grant “countless sums of money” for other extraordinary aids already. ⁷³ Great amounts were collected from the sheriffs’ farms, the profits of the eyre, and taxes on Jews, while the prises of 1248 (requisitions on foods and services) were spoken of in Parliament as “a scandal to the king and the kingdom.” ⁷⁴ So when the barons denied Henry the additional grants, they emphasized the king had “money untouched.” ⁷⁵ Moreover, none of these grants had brought “the least increase or advantage to the kingdom,” ⁷⁶ since he was fighting for his own patrimonial lands in southern France. The flouting of the Charter was again a recurrent complaint, which saw no redress. On closer inspection, the first period was not one of bargaining and concessions, but of constrained reactions in the face of prior excess.

Bargaining is also typically seen to predominate in the fourth phase, after 1290. Apart from the Charter, the major issue then was Jewish lending, which was claimed to burden borrowers heavily. In 1290, Parliament demanded the expulsion of the Jews, in response to Edward I’s demand for the greatest tax of his reign (£110,000). Edward’s order is typically presented as a major instance of the rising bargaining power of the Commons even among historians. ⁷⁷ Yet looked at closely, the measure emerges as nothing of the sort.

By 1290, Jewish economic power had shrunk from a peak in the 1240s, when their total wealth amounted to one-third of the circulating coinage in the kingdom, making them the wealthiest Jewish community in Europe per capita. By 1258, over half of total Jewish capital had been transferred to the Crown through taxation and already by 1270, Jewish lending “had slid massively down the social scale” and was “now overwhelmingly small scale, rural, and short term.” In other words, by 1290, the community was “only an impoverished shadow of its former self.” ⁷⁸

Accordingly, Jews were of no financial interest to the Crown; in fact, the queen and courtiers had been purchasing Jewish debts at such an alarming rate as to raise both public and religious condemnation. ⁷⁹ The expulsion resulted from a mix of anti-Semitic and social causes that also led other European rulers, unconstrained by parliaments, in the same direction—it was no costly concession by the Crown. ⁸⁰ That it was implemented within only a few months contrasts sharply with the century-long, but flouted, promises to uphold Magna Carta and other requests: unlike the articles, the expulsion did not cost the king much at all.

Reconfirmations of the Charter were again the focus of negotiations in 1297, after the king had requested unprecedented service abroad without his presence, in the midst of many heavy and arbitrary taxes, like a fifth, an eighth and the maltolt, a tax on wool. Barons, and especially the highest rank, earls, were again the major protagonists. ⁸¹ All the king granted, however, was “the promise of ‘common assent’ to all future ‘aids, mises and prises,’ ” a promise that later conflicts in 1300 and 1301 showed to be void. ⁸²

Though some measures were granted (e.g. the abolition of the maltolt) they were again temporary, as the maltolt was reinstated in 1303 and was fought over for the next forty years. In fact, parliamentary “bargaining” to abolish the tax shifted to mere “consent” over it, as the original demand, abolition, was rejected by the king. ⁸³ Conflict at the beginning and the end of the thirteenth century was therefore remarkably similar: baronial opposition articulated around the principles of Magna Carta, showing few substantive gains in rights for the community and, despite temporary setbacks, an overall relative advantage of the king.

However, over the same period, a background condition unfolded, which, although subject to glacial change, and although clearly grafted on the baronial backbone of Parliament throughout the century, was to have catalytic impact on the consolidation of Parliament as the central organ of governance: representation of the nonnoble classes.

The relevance of the Commons in the early stages was not their social power—that was minimal. Representatives of the counties and towns were present in only six out of fifty parliaments between 1258 and 1286, rising to thirteen out of thirty-four between 1290 and 1310, and to seventeen out of nineteen 1311–27; they were invariably present only after 1327. ⁸⁴ Not until 1322 was the need for assent of the commons formalized, by the Statute of York. ⁸⁵

Instead, the relevance of the Commons stemmed from the introduction of the principle of representation that bound them to their communities and integrated the local system of government to the central institutions of power. The basis on which knights in particular were summoned changed: no longer called, like the barons, on account of their status as tenants, they were now sent as elected representatives of the counties (as burgesses were of towns).

Community representation was set in motion in the two successive periods (1258–65 and 1265–89), which witnessed first baronial dominance and then a period of collaboration. Baronial dominance followed the revolt of 1258–61. Under the baronial leader, Simon de Montfort, a series of parliaments established a platform of reform, articulated in the Provisions of Oxford of 1258 and Westminster a year later. The baronial revolt expressed grievances against local and central government. Community representation was formalized in the Parliament of 1261, called by Simon, when knights were summoned not as tenants but as representatives of the counties; they were elected in county courts, a practice known to have occurred only once in the past, in 1254. This was repeated into 1265, when Simon died in battle. As mentioned above, it was not until many decades later that elected representatives became integral elements of Parliament; nonetheless, this was an important precedent.

The episodes involving Simon of Montfort—in which royal power was effectively usurped, even if for a very brief period—can easily be seen as a classic instance of English precocity. Instead, it was a case of English backwardness. This period simply allowed the popular element to acquire a presence in England it already held robustly in many other European cases: city representatives had been active in Léon, for instance, since the late 1180s; in Catalonia and Aragon since 1214; in Portugal since 1253; and, in 1295, the cortes of Castile-Léon comprised 130 towns sending about two representatives each on average. ⁸⁶

There was nothing unique, therefore, in the English developments of the 1250s—if anything, they were belated. But this backwardness had beneficial institutional effects. Paradoxically, the early strength of the English Crown made the early incorporation of towns less important, as it enabled the incorporation of the social actor with the greatest social effectiveness, the nobility. Towns were incorporated early on the Continent because rulers were weak and unable to tax the nobility. When the most powerful social actor was not obliged to attend, however, urban groups alone lacked the capacity to offer effective resistance to the Crown and this prevented central representative institutions from consolidating.

Isolating the baronial revolt from preceding history, moreover, distorts our understanding of why it was consequential. What made the Montfortian moment an important one for the English political trajectory were two key factors: the remarkable network of royal institutions, especially courts, that had been built over the preceding decades, on the one hand, and, on the other, the period of royal reconsolidation that followed the 1260s, during which the Crown effectively imposed the representative system across its territories and raised taxes to the unmatched levels mentioned by 1290. Without this court system, the extractive capacity would not have risen to the levels it did. ⁸⁷ Otherwise, the Montfortian experiment would have remained just that, an abortive effort at premature republican governance, like many on the European continent.

Tracing the stages in the pattern of interaction between the king and the two major social actors, the nobility and the Commons, suggests that bargaining cannot explain the institution of Parliament itself or the practice of community representation. Effective central authority was in fact necessary to make the representative system operate systematically across a state; this will become apparent from the genealogy of the legal principle of representation itself, traced in the next section.

Legal Origins and Character of Representation

Representation today is considered a political concept, but originally it was a legal one, stemming from the Roman judicial practice of the proctor, the agent granted full powers to act as a representative in court. ⁸⁸ The legal device was applied in the medieval period in Italy, Spain, France, England, and elsewhere, ⁸⁹ primarily within the Church, allowing high-ranking clerics to avoid attending papal or local synods, which were costly and risky. “By the middle of the thirteenth century . . . proctorial representation had become the law and custom of the western church.” ⁹⁰

Representation entered politics in the twelfth century, especially in communes in Italy and Spain. ⁹¹ Representatives could commit to decisions bounding the whole community, restricting individual capacity to dissent. ⁹² Proctorial representation was adopted in England by the Crown ⁹³ by the 1250s, when members of urban corporations with representative powers were summoned to Parliament. After 1295, it was a stereotypical feature of parliamentary summons. ⁹⁴

Plenipotentiary powers had a clear purpose, stated by the king in the commands he sent requesting attendance. In the summons of 1295, the English king required it “so that the aforesaid business shall not remain unfinished in any way for defect of this power.” ⁹⁵ Similar language was used in French summonses, where the king stated “we require, order and command you . . . to delegate three or four good men . . . [with] sufficient authority from you to agree, do and undertake all that shall be decided.” ⁹⁶

The main beneficiary was thus the summoning party, the king. Representative powers secured the agreement of distant principals, who otherwise could reject or obstruct policies or concessions demanded by the center after the fact. Representation addressed the problem of compliance through the binding character of consent: once consent to action is given, the consenter is obliged to fulfill that agreement. The principle was clear in contemporary legal treatises: “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.” ⁹⁷

The binding element becomes sharper when we draw the analogy with judicial consent, whence the concept originates. ⁹⁸ By submitting our case to a judicial court, we bind ourselves to accept its decision, whether it is in our favor or not (just as we do with democratic elections). Actors will commit in this way only if they lack other options, that is, when they are compelled, given that outcomes favor them only some of the times. “Consent” in the pre-modern period had this fundamental character (although contestation was possible in both formal and nonformal ways).

The kind of obligation representation imposed was also very similar to the obligation to perform suit of court in the manor or the county, which was binding on all who held land from a lord or the king directly (all tenured land ultimately was held of the Crown, as the apex of the feudal pyramid). ⁹⁹ The relation to courts of law is not just theoretical: representatives were chosen through the same process and administrative machinery as jurors. ¹⁰⁰ When elections of representatives were introduced in 1264, they were held in the county courts and borough assemblies, at the order of the Crown; both elections were administered “in common” by the sheriff, a royal official, which is where the term “Commons” originated. ¹⁰¹

Election was by other knights and “honest men,” who were obligated to do so for the same reason they owed suit of court, land tenure. ¹⁰² For centralized representation in London to be systematic, a remarkable machinery was thus activated at the king’s command, throughout the kingdom: for instance, about 640 elections were probably held in county courts and borough assemblies between 1313 and 1316. ¹⁰³ Absent strong enforcing capacity from the center and a radiating system of royal courts and officials, the system would not have succeeded in representing the whole of the land and population—private jurisdictions did not exist, as on the Continent, to limit the reach of the king’s courts.

But the royal reach extended further. As representation imposed the duty on the community to conform to any decision in Parliament, it consolidated the status of communities as quasi-corporations; entities, that is, that were bound with a collective legal responsibility, even on criminal matters. Easily taken for granted, the process was indispensable for the establishment of a system of obligation that bound all taxpayers and effectively minimized free-riding; this in turn generated incentives to hold representatives accountable. ¹⁰⁴

Even within the historical literature, however, some scholars question the obligatory character of representation and view it as a bargain around taxation ¹⁰⁵ —as opposed to those who see representation as a legal imperative. ¹⁰⁶ The more voluntarist bargaining view can be seen as the residue of a Whig, somewhat anachronistic perspective on English constitutional development. ¹⁰⁷ The inadequacy of the voluntarist account becomes apparent by the multiple enforcement devices applied, discussed above, such as penalties and the need of royal pardon.

Further support for the nonvoluntarist, compellence view comes from the patterns of attendance and reelection to Parliament, both of which, as indicators of the desirability of representation, have been major topics in the historical literature. In the early period, few representatives were reelected. Incentives to attend increased as Parliament acquired more powers in its dealings with the king, so that reelection increases from the 1310s. ¹⁰⁸ By the early 1400s, representation was the coveted right we now assume it to be: laws had to be passed to prevent nonresidents from taking over representation of a shire or borough. ¹⁰⁹ And the nobility increasingly placed their followers on seats of Parliament to protect their interests. ¹¹⁰ This is the default assumption in much of the literature. Critically, however, the reverse held for the two preceding centuries, when Parliament was forming.

Variations in Representative Practice

Variation in representative practice was a function of state strength, which the account above has noted was high in the English case. It was not a function of variation in demand: demands for representation were not unique to England. Assemblies flourished throughout Europe, as did “counseling” on state affairs. ¹¹¹ In fact, a paradox exists: demands for consent were as or even more radical in other European cases, such as France, ¹¹² Spain, ¹¹³ or the Italian city-states. ¹¹⁴ Yet these latter cases eventually transitioned into absolutist forms of governance—central representative institutions either never emerged or failed to consolidate as central organs of governance. The English trajectory was far from inevitable, but England retained such an institution continuously from the time of emergence in the thirteenth century into the modern period; this cannot have been accidental. Instead, where we observe greater bargaining powers and demands, representative institutions in fact falter.

In France, royal authority was weak, so it was “something of a triumph” for the king to have persuaded the urban deputies “to come with full powers” to the Estates in the fifteenth century. ¹¹⁵ Indeed, objections plagued the French king, who faced recalcitrant social groups. ¹¹⁶ Representatives could claim they were unauthorized to choose between the options presented by the Crown and needed to consult with their communities, as happened repeatedly when the French kings were collecting taxes for war. The same pattern affected French assemblies throughout. ¹¹⁷

French assemblies also claimed greater prerogatives, for instance the right to judge whether war itself was necessary, which in England was a royal prerogative. ¹¹⁸ They would reject a demand if a war was not actually imminent, when it was simply threatening. ¹¹⁹ Estates also demanded tax collection cease once the cause for war ended—and the king obliged. ¹²⁰ In some cases they demanded, and obtained, a refund if the threatened cause of war never materialized. ¹²¹ In 1355, the Estates agreed to provide for the defense of the country faced with immanent attack only on condition that they be granted participation in government, that estates be held regularly, that they have responsibility for the collection and expenditure of taxation and that nobles pay more than wealthy nonnobles. Even then, the bargained agreement failed because of noncompliance on the part of the nobility. ¹²² In the 1480s, the Estates made proto-democratic claims that “the kings were originally created by the votes of the sovereign people,” long before similar claims were made in the English Parliament. ¹²³

Central assemblies were eclipsed because, although widespread and often central in the collection and administration of taxes, ¹²⁴ they never became central organs of governance, even when war and taxation pressures were high. In France, some faltering attempts at representation were made after the 1560s, but the Estates-General were abolished from 1614 until the French Revolution in 1789. ¹²⁵ A similar pattern can be discerned in most continental European cases, which transitioned into absolutist forms of government after the sixteenth century. In some cases, this did not mean the complete eclipse of representative institutions at the local level. In France, robust assemblies (in Brittany, Burgundy, and Languedoc) continued to function until the Revolution at the provincial level, generating important revenue in taxes for the Crown. ¹²⁶ Assemblies in Castile, Aragon, and Catalonia also continued to function into the eighteenth century. Nonetheless, such assemblies failed to shape the character of the overarching regime under which they operated.

So, all these cases, where communities initially were better able to resist rulers, especially by refusing to grant full plenipotentiary powers to their delegates, eventually lapsed into absolutism. ¹²⁷ From this we can draw a few conclusions that challenge some foundational assumptions that often remain implicit. The diverging trajectories of England and Continental Europe were not due to a deficit in demand for rights in the latter or to England’s being endowed with a stronger civil society, capable of bargaining better with the Crown. On the contrary: England, as a result of the greater capacity of the Crown and the more efficient application of the principle of representation, had more successful centralization.

In other words, the difference between England and the cases where central institutions failed is, to a large extent, a difference in the location(s) of exchange: in England, exchange between ruler and ruled occurred primarily in a central institution; in other cases exchange was dispersed throughout the territory, either at local parliaments or at even more dispersed points. ¹²⁸ The English central Parliament gives the appearance of greater demand for consent, when in fact consent is simply organized and articulated in a more concentrated way.

The lapse into absolutism is not a coincidence, I argue, but the inevitable outcome when assemblies have greater autonomy. Empirically (and counterintuitively), only when the powerful social groups that dominated assemblies were under the relative control of the ruler did regime-defining representative institutions develop. The critical mechanism in this dynamic is the capacity of the ruler to enforce representation systematically; where this occurred, representation could acquire an institutional form that became the core organ of state governance. Crucially, when the ruler had the ex ante ability to tax those powerful groups, they had incentives to attend the institution.