The beginnings of England’s political success (Robert Henderson)


The beginnings of England’s political success

by Robert Henderson
If England’s unique political success lies in the general tenor of her society, the institutions through which it was achieved were cultivated from the thirteenth century onwards. The start of the long climb towards representative government and the neutering of monarchy may reasonably be set in the reign of John. In 1215 he was forced by many of his barons to sign a charter which granted rights to all the free men of the kingdom. This charter, the Magna Carta, was of immense significance because it formally restricted the power of the king in an unprecedented way. The pope of the day thought it such an abomination he granted John absolution for its repudiation. Perhaps for the first time since the end of the classical world, a king had been forced to acknowledge unequivocally that there could be legal limits to his power.
Long regarded as a revolutionary document by historians, the fashion amongst them in recent times has been to treat the charter as little more than as an attempt to preserve and enhance the position of the barons or to restate existing English law and custom. Of course it did that but it did much more. Had it done nothing beyond circumscribing the power of the king it would have been revolutionary, but it went far beyond that by explicitly extending rights that we consider fundamental to a free society to all free men. Perhaps its two most famous clauses show its importance in the development of the future sharing of political power:
Clause 39 No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled or deprived of the standing in any other way , nor will we proceed with force against him or send others to do so, except by judgement of his equals or by the law of the land.
Clause 40 To no one will we sell, to no one will we deny or delay right or justice.
Until the security of a man and his property are secured, there can be no sustained spreading of power, for if a king may imprison and dispossess at will no man is safe. All merely live at the will of the monarch. By providing both, Magna Carta created the necessary legal and ideological infrastructure for the political development which culminated in parliamentary government.
Perhaps the most intriguing clause of Magna Carta was the one, clause 61, which gave a committee of 25 Barons legal authority and practical power over the king. It is long clause but worth quoting in full:
Clause 61. Since, moreover, for God and the amendment of our kingdom and for the better allaying of the discord that has arisen between us and our barons we have granted all these things aforesaid, wishing them to enjoy the use of them unimpaired and unshaken for ever, we give and grant them the underwritten security, namely, that the barons shall choose any twenty-five barons of the kingdom they wish, who must with all their might observe, hold and cause to be observed, the peace and liberties which we have granted and confirmed to them by this present charter of ours, so that if we, or our justiciar, or our bailiffs or any one of our servants offend in any way against any one or transgress any of the articles of the peace or the security and the offence be notified to four of the aforesaid twenty-five barons, those four barons shall come to us, or to our justiciar if we are out of the kingdom, and, laying the transgression before us, shall petition us to have that transgression corrected without delay. And if we do not correct the transgression, or if we are out of the kingdom, if our justiciar does not correct it, within forty days, reckoning from the time it was brought to our notice or to that of our justiciar if we were out of the kingdom, the aforesaid four barons shall refer that case to the rest of the twenty-five barons and those twenty-five barons together with the Community of the whole land shall distrain and distress us in every way they can, namely, by seizing castles, lands, possessions, and in such other ways as they can, saving our person and the persons of our queen and our children, until, in their opinion, amends have been made; and when amends have been made, they shall obey us as they did before. And let anyone in the country who wishes to do so take an oath to obey the orders of the said twenty-five barons for the execution of all the aforesaid matters, and with them to distress us as much as he can, and we publicly and freely give anyone leave to take the oath who wishes to take it and we will never prohibit anyone from taking it. Indeed, all those in the land who are unwilling of themselves and of their own accord to take an oath to the twenty-five barons to help them to distrain and distress us, we will make them take the oath as aforesaid at our command. And if any of the twenty-five barons dies or leaves the country or is in any other way prevented from carrying out the things aforesaid, the remainder of the aforesaid twenty-five barons shall choose as they think fit another one in his place, and he shall take the oath like the rest. In all matters the execution of which is committed to these twenty-five barons, if it should happen that these twenty-five are present yet disagree among themselves about anything, or if some of those summoned will not or cannot be present, that shall be held as fixed and established which the majority of those present ordained or commanded, exactly as if all the twenty-five had consented to it; and the said twenty-five shall swear that they will faithfully observe all the things aforesaid and will do all they can to get them observed. And we will procure nothing from anyone, either personally or through any one else, whereby any of these concessions and liberties might be revoked or diminished; and if any such thing be procured let it be void and null, and we will never use it either personally or through another, And we have fully remitted and pardoned to everyone all the ill-will, anger and rancour that have arisen between us and our men, clergy and laity, from the time of the quarrel. Furthermore, we have fully remitted to all, clergy and laity, and as far as pertains to us have completely forgiven all trespasses occasioned by the same quarrel between Easter in the sixteenth year of our reign and the restoration of peace. And, besides, we have caused to be made for them letten testimonial patent of the lord Stephen archbishop of Canterbury, the lord Henry archbishop of Dublin and of the aforementioned bishops.
The extreme nature of the concessions the king made – he gave permission for his subjects to act with force to remedy any Royal failure to observe the charter – is a graphic example of the inherent weakness of the mediaeval monarch. King he might be, but not a tyrant because he did not have the resources to dominate utterly.
This committee was never actually formed, but the clause has great interest. Once such a council of nobles to restrict the behaviour of the king is accepted as reasonable and possible, it is not such a great leap to the idea of a larger assembly which might do the same. That idea was realised before the century was out in a Parliament.

Magna Carta is not as is commonly said the first formal restriction on the powers of a monarch. The coronation oaths of mediaeval kings regularly contained promises to observe the laws and customary freedoms of England, but there was no means of enforcing the oaths other than rebellion. There was even a previous occasion when Ethelred was forced to agree to formal restrictions on his powers in 1014, but that had no practical effect because of his death and the Danish conquest in 1016. Magna Carta unlike coronation oaths was both specific enough to usefully form the basis of law and in 1215 England did not fall under foreign rule. Instead, in modified form, it quickly became part of the statute books which developed in the thirteenth century. More importantly it acquired a mythological quality which lasts to this day. Every important English rebellion and political movement from 1215 until the Chartists in the 1840s has cited Magna Carta in their defence and derived their programme from it. The Levellers in the 1640s made constantly cited it. It was a benchmark which allowed the powers of the king to be progressively whittled away. Never again could an English king convincingly claim that such restrictions on the prerogative were unthinkable or unprecedented.

Advertisements

4 comments

  • Quite so Mr Henderson.

    And, as you imply, the Great Charter of 1215 was not the first (for example there was Henry the First’s Charter of 1100) and nor was this an solely English affair.

    Indeed throughout the Christian West (although not outside this area – which is noteworthy) there were formal charters limiting the powers of government – and saying what rulers could NOT do.

    An early example is that of Edict of Quierzy – agreed to a great Council that Chales the Bald (not to be confused with Charles the Great) had agreed to before 877 AD.

    The King (Charles and Louis II) accept as a matter of “old right” that the King may NOT take away land from one family and give it another. No “Asiatic Despot” (or Roman Emperor come to that) would ever have accepted such limits on his powers.

    Some of the Charters of Europe were restricted to “noblemen” (the Charter of Sicily springs to mind) – but most (like the English Charters) said any “free man” (aristocrat or not).

    So why did rulers gain in power in Europe over time?

    Well firstly European Kings never did get the full powers of Islamic rulers or what not (even someone like Louis “the Spider” was not an “Asiatic despot” it was clearly understood that there were things he must not do – at least must not be caught doing, that both the Church and the great landed families had rights AGAINST the ruler, rights they could legitimately enforce)

    But it is the case that rulers grow in power and subjects (especially humble subjects – but great ones also) had their freedom reduced over time (the poor man found himself taxes, and the noble found his castle blown up – and, in spite of prior agreements, taxes started to be imposed on nobles also – it simply is not true that they were not taxed before the French Revolution, although some taxes did not apply to them).

    So what was different about England?

    First the non acceptance of Roman Law.

    In most of Europe (not quite everywhere – for example some parts of Switzerland rejected it, and the law of Norway remained based in custom and tradition codified by formal law codes of the Kings, but not created by them) Roman Law was formally “received” at some point or other.

    In England this was not so. It is not true that Roman Law had no influence on English Law (on the contrary it did), but the Central Doctrine of Imperial Roman Law that law was essentially the “commands” of the all mighty ruler was never formally accepted in England.

    Indeed the work of Thomas Hobbes could be seen as an effort to make England accept this principle of late (Imperial) Roman Law – hence the hatred of Hobbes for “Students of the Common Law of England” (which Hobbes rightly understood to be his true enemies).

    But there is also a PROCEDUAL point.

    Juries had once been fairly widespread in Europe (there was nothing specially “English” about them) – yet by the 15th century a “jury” was considered something peculiar to this island (English Law and Scots Law) – Chief Justice Fortescue in his book that was originally called “On The Difference Between And A Limited Monarchy” (later generations changed the title to “On the Laws and Governance of England” – thus losing the point of the book in the title) makes this point.

    Even before the evolution of Parliament (and there were “Estates” of one sort or another in most European countries) an English court looked different to what had become the norm in Europe.

    There was the officially appointed Judge or Judges – but there was also this group of people called “the jury” who could not be found in other lands (although that once been a feature of these lands also).

    Late Imperial Roman law had no place for juries (a thing of the Republic and of some cities in Classical Greece) and neither did lands that “Received” Roman law in the later Middle Ages.

    Also late Imperial Roman law considered that the law could be changed by the WILL of the Emperor.

    There was no “High Court of the King in Parliament” demanding that no law could be reinterpreted without its permission (the Senate being a rubber stamp)

    Acts of Parliament used to be quite rare (Maitland in the 19th century considered that the ease of making an Act of Parliament in the modern age was a good thing – and he was exactly WRONG). Parliament (before the modern age) did not always sit, sat for only a few hours a day when it did sit, and was governed (like everything in England) by complex evolved traditions and customs – it was difficult to pass a major Statute and RIGHTLY so. Think of the State Legislature of Texas – meets only a few days, is basically unpaid (not a real “job” as such – although there is some payment) and has little ability to do anything but pass a budget (or NOT pass one) – that is closer to the old English Parliament than the modern “Statute Machine” is.

    Saying that the law could not be changed without Act of Parliament was a safeguard (in days when Acts of Parliament were rare and difficult things – it is not a safeguard in this age of Thomas Hobbes and Maitland, today even the Executive can change the law which makes such things as the British Bill of Rights, oh yes there is one, a nonsense).

    And TRIAL BY JURY was another safeguard – one that parts of Europe may once have had (indeed it may well be more “Norman” than “Anglo Saxon” although there is the odd point, overlooked by people who hate the Anglo Saxons as Maitland does, that Saxon villages had councils of elders – how many men on the village council? TWELVE), but which they lost.

    The loss of old liberties in much of Europe (by a revived late Imperial Conception of Roman Law) was not mirrored in England till modern times – when (sadly) it has been.

    It “law” is simply the “command of the rulers or rulers” – then all is lost.

    The Constitutional tradition in Britain (England, Wales, Scotland and Ulster) has declined.

    The National Rifle Association (once larger than the American one) is a shadow of its former self. Those towns that have “Constitution Clubs” do not know why they are called that. The “law” is now just considered COMMANDS based on the WILL of the rulers (and on and on). Such things as the Great Charter of 1215 or the British Bill of Rights of the 17th century are largely forgotten.

    Americans need not smile with contempt – how many schools and universities teach such things as the Constitution of New Hampshire (1784) or the Constitution of Texas (1876) as “relevant” in their belief in formal limits on government and the right of the people to use force AGAINST the government?

    As far as the education “system” (a warning word in itself) is concerned – we are all Hobbesians now.

  • Anarcho-liberalism is to politics like atheism is to religion: it is basically a rejection of it as a sort of superstition. Liberalism is not a form of power-sharing so much as a solution, or dissolution, of power as liberalism sees power as an unnecessary anti-social evil. Political power is intrinsically illiberal.

    Political success is always success at the public’s expense. The state can never earn its way, so it always needs to tax the public. It does so by coercion.

    The state, contra John Locke, does not serve the public but rather it attempts to rule over them. All the aims of the state are anti-social.

    Hobbes thought that the state was a grand solution to the war of all against all that he thought a natural anarchy, or a state of rude nature, would be bound to be. Locke corrected that meme of Hobbes, as he saw that men would imagine that there was a sort of natural law, whereby anarchy would not be a state of war but rather more like a society, though he did feel that the state might well make things better. Locke thought that most would honour the natural law but quite a few would not and the state might be better than the natural law, even though anarchy was not as hostile as Hobbes felt it would be.

    But the reality is that the state did exactly the opposite of what Hobbes supposed, for it set up the war of all against all on an institutional level, even though it has not stopped progress altogether, for despite the public menace of the dysfunctional negative-sum wasteful state, the acme of which is hot war rather than the cooler normal politics of cold war, the people have made progress nevertheless, by use of the positive –sum market.

    Politics is always cold war, so a vote, or any sort of political participation, is always a gratuitous attack on other people Trade, by contrast, always aids those who one trades with as well as ourselves, for both sides gain in any trade exchange. Trade is the very opposite to war, the market is the very opposite of the state. On the market people are served but by the state they are governed, or bossed around; so political success is not ever a social boon. Rolling back the state would be but not if the power is ever shared rather than dissolved. Liberty depends on getting rid of power. Political power needs to be seen as the unmitigated evil that it has always been; and that it always will be.

    So what about England? Does this basic fact about crass politics mean that England is anti-social too? England applies to many things rather than just the anti-social nation-state. It might refer just to the land called England, at least since 1066. The mere land is not anti-social at all, of course. Or it might refer to the nation, the people who are English. As with most populations, most of them will be friendly, or indifferent, rather than being politically hostile in any way, so, on the face of it, the English people are not particularly anti-social; despite being a bit reserved with a famous stiff upper lip. It is only the state that is anti-social.

    A truly free society would need to be free of the state, or of government. Contrary to the common sense blockhead Aristotle, this society would need to be free of crass anti-social politics. Man is not a political animal but Aristotle was right than man is a rational and also that man is a social animal too. But Aristotle got more things wrong than he got right in his social philosophy. He lacked the wit to realise the massive wasteful nature of the state; but then so does, hitherto, Robert Henderson. Both lack the sort of knowledge we might find in The Ultimate Resource (1981;II 1996) J.L. Simon.

    History is not very important, even when the fools who write it get it right. Usually history is sheer Romance. The state neglected most men, as Hobbes knew it was bound to do. Such men had a lot of liberty way before 1066, let alone the time of King John.

    __._,_.___

  • Some argue that Aristotle did not consistently apply his philosophy to his politics (that they contradict each other) – but-be-that-as-it-may the fact is he still advocated statist politics.

    Even the limited statism of Lycrophon is rejected by Aristotle – Lycrophon says that the state should be confined to trying to prevent people attacking each other (and punishing them if they do) that justice is a contract to neither do or suffer wrong.

    No says Aristotle (in his “Politics”) – the state must make people “just and good”.

    One does not have to be an anarchist to understand that such a broad conception of the role of the state is no limit at all.

    As Gladstone put it – of one thing I am certain, one should not look to the state for moral improvement.

    If one looks to the state for moral improvement (for making the population “just and good”) then one will be let down (badly) – and one will have destroyed any idea of limiting the state.

    The principles of the Common Law of England are not about morally improving people.

  • Still at least Aristotle pointed out that trying to help the poor by tax-and-spend was like pouring liquid in a jar with no bottom on it.

    Seeing the mess that vote seeking politicians had made of Athens was instructive for Aristotle.

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s