Counting Cats and John Galt (and Julie) have already given their thoughts about Magna Carta (the “Great Charter” of 1215) and I will read their thoughts and comment in due course – but first some thoughts of my own…..
I was at the 470 anniversary (yes I know, Captain Pedants, – people used the Julian calendar at the time, so the “real” anniversary is in a few days time) of the Battle Of Nasby over the weekend (at Nasby in Northamptonshire) and was struck by how the principles of Magna Carta (some 800 years ago now – in a few days time Captain Pedants) influenced the thinking of BOTH sides.
That the Parliamentary side rejected an unlimited, absolute, monarchy is well known (the cause of John Hampden, of no paying of “Ship Money” and so on) – but so did the Royalist side. They to believed they were fighting for the law and basic liberties – as did King Charles himself, see his speech at his execution. When Charles said he supported the liberty of people in their lives and goods (that this was liberty was – that liberty was not being part of the government) there is no reason to suppose that, facing certain death and God’s judgement, he was not sincere at that moment (whatever he may have thought before). Or that the men who died in the Royalist army at Nasby were any less sincere in their belief in limited government than the men who died fighting in the Parliamentary army.
Both sides at the Battle of Nasby (and the rest of the Civil War) believed they were fighting for the principles of Magna Carta and it is important to understand why.
Magna Carta was nothing to do with Parliament (which did not exist at the time), still less with democracy (the “divine right of the 51%”). Magna Carta was about the idea of limited government – the idea no one (including the King) could ignore the law, a rejection of the Roman law idea that law is the will of the ruler (or rulers) and may be changed according to the will (the whims) of the ruler or rulers.
Magna Carta was a “feudal” revolt in the name of the basic principles, the private property right principles, of the Common Law – against the idea of the unlimited power of the ruler (or rulers) that Roman Law (the law of the Roman Empire, not the Republic) stood for – ideas that were being reintroduced into Europe in the Middle Ages. The idea of the government being above the law and being able to change any law – this was what those who supported Magna Carta (and both sides in the English Civil War of the 1640s also) opposed.
This was, for example, the idea of the Edict of Quierzy in 877 (not as something new – but as an “old right”) that not even a King of France could take the land of one family and give it to another. Nothing to with Parliamentary government – but, rather, a rejection of Oriental Despotism (for example the Islamic world) where there were no private property rights limits on a the power of the rulers – just as there had been none on the powers of Roman Emperors.
Both sides at Nasby in 1645 (not just one side) held this principle of limited monarchy (limited government) – King John in 1215 is a very different case. King Charles is not King John.
The case of King Charles was not that he could do anything he felt like (certainly not – Charles was no rapist or robber like King John), his case was that Parliament (or rather certain individuals allegedly manipulating Parliament) were the true threat to the basic liberties (the property rights) of the people – such Parliamentarians as John Hampden honestly and sincerely believed that it was the King who was the threat to these property right basic liberties.
But what of RELIGION?
Many of the Parliamentarians (although not the chaplain of Parliament himself, the philosopher Ralph Cudworth – by the way those who seek to discredit Cudworth by pointing out that he believed in witches, simply show their own intellectual dishonesty) were ardent Calvinists – who believed that they were the “Elect” (predestined by God to go to heaven – and that their actions were not freely chosen, but were predetermined by God) – not so much formally “above the law” but the living embodiment of it (to confuse things some Royalists were Calvinists also, the idea that being on the Royalist side automatically meant a formal rejection of Predestination is a myth).
Some, again not all, of the Parliamentarians believed that the laws needed to be radically changed – or rather “restored” to be in line with the Bible. After all the Common Law had always been massively influenced by Christian law (Church Canon Law) and, although they would have been horrified to cite “Papist” sources, Parliamentarians believed (like the Catholic Scholastics) that “natural law is God’s law” (although the Scholastics added “and if God did not exist natural law would be exactly the same” they were natural law thinkers) – and some of them believed that Common Law had drifted away from God’s Law and needed to be restored to it.
This did, in the case of some (not all) Parliamentarians, indeed include the perversity of confusing crimes (i.e. aggressions) against the bodies and goods of others with sins – such things as adultery or dancing or the theatre (or even celebrating Christmas). Thus they fell short of the understanding of both some Common Law thinkers – and of some Catholic (and non Roman Catholic) Scholastics also.
The Royalists seized on this – how could men be fighting for liberty if they wanted to make every sin a criminal offence? Punish people for dancing, or seeing a play, or eating mince pies at Christmas?
And how could they be fighting to defend the weak against the aggression of the government (the King) if they attacked women for the “crime” of being Irish Catholics (as was the case after Nasby – doubly wrong as the women cut up were actually mostly Welsh)?
Thus the side of the King defended the claim that they (not their enemies) were fighting for basic liberty. And they pointed to the lack of due process and basic principles in the “legal system” of the Parliamentarians.
Even before the war Thomas Wentworth (betrayed by the King – in a desperate effort to keep the peace with Parliament) said at his mock “trial” (before his inevitable execution)………
“If a man can be put on trial for his thoughts, English law is dead”.
Thomas Wentworth demanded to know what specific crime he had allegedly committed (not that he allegedly had thoughts Parliament did not like) – as you-do-not-like-me-and-want-me-dead is not a “crime” that the Common Law recognises.
But it must be remembered that the Parliamentarians did NOT claim the right to make fundamental new laws – on the contrary they claimed to be defending the traditional law (based on the non aggression principle of justice – to each his own).
The Parliamentarians claimed to be the true supporters of the “Common Laws of England” – the defenders of the unchanging nature of basic law as it had been declared by Chief Justice Sir Edward Coke (see my post on “Dr Bonham’s case”) and was to be declared in the future by Chief Justice Sir John Holt (he of the period of 1688 and all that).
If Parliament in the 1640s had declared itself in favour of the Blackstone heresy of the 1700s (that Parliament can do anything it feels like doing) much of the Parliamentary army at Nasby (including its commander Sir Thomas Fairfax) would have declared for the King – and hanged, say, Colonel Oliver Cromwell from the nearest tree.
The Americans of 1776 were as religious as the Parliamentarians of the 1640s – but they also shared their belief (or at least the belief of the better Parliamentarians such as Sir John Hampden and Sir Thomas Fairfax, of Nasby, and his wife – the Lady Fairfax who called out “no – not even half of England” when the “trial” of King Charles claimed to be acting for England) in LIMITED GOVERNMENT – that Parliament could not just make up any “law” it liked. The Americans were no followers of Sir William Blackstone and his heresy that Parliament can do anything it feels like doing.
The authors of the Constitution and Bill of Rights were not followers of the determinist, moral relativist (if his denial of basic moral responsibility can even be described as “relativism”), and political absolutist (Legal Positivist) Thomas Hobbes (the enemy of the Whig tradition). They had far more in common with Ralph Cudworth and the Scots “Common Sense” philosopher Thomas Reid – we hold these truths to be self evident. And with the philosophers Noah Porter and James McCosh in the 19th century. And with the Oxford Realists Professor Harold Prichard and Sir William David Ross (Major Ross) of the 20th century – firm enemies of the forces of evil (Hobbes and so on).
The vile and false doctrine, that Parliament can do anything it feels like, is that of the Victorian Maitland (and others) – not of the men on either side at Nasby in 1645, or the folk of Magna Carta in 1215.
As both Chief Justice Sir Edward Coke and Chief Justice Sir John Holt maintained – the fundamental Common law (the rights and liberties of persons) is not the creation of the whims of Parliament or of the King, and it can not be voided by the whims or either.
Sadly this is not the dominant modern view – the modern view is that government can plunder at will, changing the “law” as it feels like. Indeed modern “human rights” documents often call upon the government to plunder MORE, in the name of “Social Justice” (the opposite of the Common Law idea of justice as the non aggression principle of to each their own, private property rights) and “Positive Rights” – again the opposite of what the Common Law tradition (for example the American Bill of Rights) understands “rights” to be – i.e. limitations on government, not benefits and services from government.
Thomas Hobbes may have tried to appeal to the King (and then to Parliament) offering a “philosophy” of slavery and despotism as “peace” – but BOTH sides at the Battle of Nasby would have been horrified to be associated with Hobbesian doctrines.
The position of Hobbes is really the position of King John (that caused the revolt of Magna Carta against him) – that the ruler (or rulers) can do anything they feel like doing, and that there is no moral duty (no moral responsibility – based upon our agency, our free will) to come to the defence of others threatened with plundering by the state.
Modern governments are, too often, really the practices of King John (and Thomas Hobbes) – made into institutional form.